author: PER CURIAM. MILLS, Judge,

text:
    Farrell WAHLQUIST, Appellant, v. The SCHOOL BOARD OF LIBERTY COUNTY, Florida, a public body corporate, Appellee.
    No. AE-241.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Rehearing Denied Jan. 4, 1988.

      John D. Carlson of Woods, Johnston & Carlson, Tallahassee, for appellant.
    Clinton E. Foster and Richard D. Ogburn of Law Offices of Clinton E. Foster, P.A., Panama City, for appellee.
   PER CURIAM.

Wahlquist appeals from an order of the Liberty County School Board (hereafter “Board”) denying a request for a hearing concerning his transfer from a supervisory to a teaching position, and ruling that Wahlquist, because of his prior resignation from the Liberty County system to accept a position with the Panhandle Area Educational Cooperative (hereafter “Cooperative”), was not entitled to continuing contract status. We find error in the Board’s denial of a hearing with respect to his transfer from a supervisory to a teaching position, and we further find error in the Board’s determination that Wahlquist is not entitled to continuing contract status.

Wahlquist was a school teacher on continuing contract with the Board. In January, 1977, he resigned this position in order to accept a position as Educational Consultant with the Cooperative, which had its headquarters in Washington County. He thereafter resigned his position with the Cooperative, effective July 31,1979, and was reemployed by the Liberty County school system as Director of Instruction, effective August 1, 1979. He then entered into a written contract with the Board dated July 1, 1980, providing for his employment as a supervisor in the Liberty County system for the period July 1, 1980 through June 30, 1981. His contract with the Board provided, among other things, that he could be transferred to a similar position at any other school in the district “provided that the duties shall be similar to the duties originally assigned.”

In January, 1981, Wahlquist was notified by letter from the Liberty County Superintendent of Schools that he was being transferred to a teaching position in the county. A month later Wahlquist wrote a letter to the Superintendent and the Board, pointing out that the transfer to a teaching position was contrary to his contract. He also proposed a settlement, suggesting that the Board should “[G]rant me back my continuing contract as a classroom teacher,” in return for which he would withdraw his contest to the transfer. The Board’s response was by letter from the Superintendent dated April 3, 1981, informing Wahl-quist that he would not be nominated for employment in the Liberty County school system for the 1981-82 school year.

On April 22, 1981, Wahlquist filed a two count petition for administrative hearing and affirmative relief. Count I requested a 120.57(1) hearing concerning the transfer, and Count II sought a declaratory statement under Section 120.565 (Florida Statutes), concerning Wahlquist's right to be reemployed by the Board under the automatic reinstatement provisions of Section 231.36(9), Florida Statutes (1979). Count II also requested relief pursuant to Section 120.56(1), Florida Statutes (1979), and requested an administrative hearing pursuant to Section 120.57.

The Board, at its May, 1981 regular meeting, voted to deny Wahlquist’s request for a hearing under Count I, and further determined that Wahlquist should be denied an administrative hearing concerning the Board’s failure to reemploy him for the 1981-82 school year. The Board decided, however, that he was entitled to a declaratory statement with respect to his contention that he was entitled to continuing contract rights.

On the first point, we agree with appellant’s contention that the Superintendent’s one sentence letter of January 6 informing Wahlquist that he had been transferred to a teaching position was not a “clear point of entry” to Chapter 120 proceedings. This court has recently reaffirmed the rule that actual notice of agency action which does not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate to “trigger” the commencement of the administrative process. Sterman v. Florida State University Board of Regents, 414 So.2d 1102 (Fla. 1st DCA 1982). It should be noted that in Dickerson, Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981), also relied upon by the Board, the notice to the affected party did state a time limit within which an administrative hearing could be requested. Appellant’s petition for hearing and other relief was filed within 21 days after he received the Board’s notice that he would not be employed for the next school year. The action of the Board at its May, 1981 regular meeting—later formalized by its order of June 6, 1981—-finding that Wahlquist waived an administrative hearing concerning his transfer to a teaching position, was in error.

Appellant’s attack upon the Board’s order dealing with Count II of the petition contains an admixture of issues relating to appellant’s right to a declaratory statement as to his continuing contract status, under Section 231.36(9), Florida Statutes (1979), and his entitlement to an administrative hearing for review of the Board’s action in failing to rehire him for the school year 1981-82. Because of our resolution of the issues presented by the Board’s ruling on Count II, we find it unnecessary to dwell at length upon procedural niceties. The Board concedes that it did not comply with the notice requirements of Section 120.565, Florida Statutes, but urges that the error was harmless. With respect to its noncompliance with Section 120.56, the Board correctly points out that its decision to terminate appellant’s employment was not a rule, but an order, which is not subject to challenge under the provisions of Sections 120.-54(l)(a), or 120.56. Where the issue on appeal is simply one of law, the agency’s failure to comply with certain procedural requirements of the administrative procedures act may not rise to the level of material error which impairs the fairness of the proceedings or the correctness of the action. City of Pensacola v. Florida Public Employees Relations Commission, 358 So.2d 589 (Fla. 1st DCA 1978). We will therefore proceed with review on the merits.

We find error in the Board’s conclusion that Wahlquist lost his continuing contract status with the Liberty County school system by resigning to take a position with the Cooperative. Although Section 231.-36(3)(e) provides that continuing contract status terminates when a person “resigns,” that provision must be construed in the light of subsection (9), of Section 231.36, which clearly contemplates resignation by a teacher on continuing contract in order to accept a position in a cooperative education program. Since the Board’s order ruling upon Wahlquist’s dismissal is grounded entirely upon the premise that Wahlquist’s resignation precluded him from claiming the benefit of Section 231.36(9), the order is in error and must be reversed.

In view of our finding of error which requires reversal of the Board’s order, we find it necessary to address the contention that the provisions of Section 231.36(9) apply only to a teacher who has accepted employment with a cooperative education program as a teacher. The Board contends that since Wahlquist’s position with the Cooperative was as “educational consultant,” he has no standing to assert the automatic reverter provision of subsection (9). We find no language in subsection (9) or in other provisions of the statutes which would indicate that subsection (9) is limited to continuing contract teachers who accept employment with cooperative education programs as teachers. This subsection is obviously designed (as the Board concedes) to encourage teachers to participate in cooperative education programs, and it does so by offering protection for the teachers’ continuing contract status. The statute provides such protection in two ways: First, it allows an eligible teacher — that is, one who, “at the time of employment,” is on a continuing contract in a school district which is participating in support of the particular cooperative education program —to be “immediately” placed on a continuing contract with the school board wherein the cooperative education program is produced. Second, it provides that if, at the time of reappointment of personnel, during the first three years, that teacher is not recommended “for continued employment in the cooperative education program,” that teacher “shall automatically revert to continuing contract status in the district of immediate prior employment.” Section 231.36(9). The use of the unqualified term “employment” in the foregoing manner must be construed to mean employment both in a teaching, administrative, or supervisory capacity. To construe the statute otherwise would require us to add qualifying language when no basis for the qualification has been made to appear. Furthermore, our reading of subsection (9) is consistent with subsection (3)(f), of Section 231.36, which provides, in part: “Continuing contract status earned by any member of the instructional staff prior to assuming a position as supervisor or principal shall be retained in the position in which it was attained....”.

As we have stated, Wahlquist’s resignation from his teaching position with the Board did not preclude his subsequent claim, under Section 231.36(9), that he should “automatically revert” to continuing contract status when he became reemployed by Liberty County. We have further concluded that it is immaterial that his position with the cooperative education program was in an administrative or supervisory capacity, father than as a teacher. On the other hand, we are unable to determine, from this record, whether Wahlquist remains eligible to claim automatic reverter under another provision of subsection (9). The automatic reverter provision does not apply unless Wahlquist, “during the first 3 years,” was “not recommended for continued employment in the cooperative education program, .... ” Section 231.36(9). As the facts indicate, Wahlquist accepted employment with the Cooperative in 1977, but returned to the Liberty County school system in 1979. His return to Liberty County was clearly within the “first 3 years,” specified in the statute. However, neither from his petition nor other portions of the record can we determine whether he was, in fact, not recommended for continued employment in the cooperative education program. Therefore, on remand, the Board shall conduct such proceedings as may be necessary for resolution of this factual issue. If Wahlquist meets this requirement, the result must be that he was improperly terminated, and he is entitled to continuing contract status with the Liberty County school system.

Appellant’s request for attorney’s fees and costs is denied. Jess Parrish Memorial Hospital v. Florida Public Employees Relations Commission, 364 So.2d 777 (Fla. 1st DCA 1978).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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

MILLS, J., concurs and dissents with opinion.

MILLS, Judge,

concurring in part and dissenting in part:

I agree with the majority that the Board erred in denying Wahlquist’s request for a hearing concerning his transfer from a supervisory to a teaching position. Actual notice of agency action, which fails to inform the affected party of his right to request a hearing and the time limits for making the request, is inadequate to trigger the commencement of the administrative process. Sterman v. Florida State University Board of Regents, 414 So.2d 1102 (Fla. 1st DCA 1982).

Also, I agree with the majority that Wahlquist’s request for attorney’s fees and costs should be denied. Jess Parrish Memorial Hospital v. Florida Public Employees Relations Commission, 364 So.2d 777 (Fla. 1st DCA 1978).

I do not agree with the majority that the Board erred in its determination that Wahl-quist is not entitled to continuing contract status.

Section 231.36(3)(e), Florida Statutes (1981), provides that continuing contract status terminates when a person resigns. It is uncontroverted that Wahlquist resigned as a school teacher on continuing contract with the Board in order to accept a position as Educational Consultant with the Cooperative.

Section 231.36(9), Florida Statutes (1979), provides that:

(9) Any teacher who is employed in a cooperative education program in this state may be immediately placed on continuing contract with the school board wherein the cooperative education program is produced if, at the time of employment, such person is on a continuing contract in a district which is participating in support of the particular cooperative education program in which the person is employed; provided that if at the time of reappointment of personnel, during the first 3 years, said person is not recommended for continued employment in the cooperative education program, he shall automatically revert to continuing contract status in the district of immediate prior employment; and provided further, that in meeting the requirements for a continuing contract prescribed herein prior successive years of service rendered in any district participating in the support of the particular cooperative education program may be counted as years of probationary service for a continuing contract with the school board wherein the cooperative education program is produced.

It is uncontroverted that Wahlquist was not placed on continuing contract with the Washington County School Board where the cooperative education program was produced.

It is likewise clear that the Cooperative did not recommend that Wahlquist’s employment be discontinued at the time of reappointment during the first three years of his employment with the Cooperative. Wahlquist resigned in order to return to the Liberty County school system as Director of Education on an annual contract basis.

The reverter provision of Section 231.-36(9) is not applicable to the facts of this case. Wahlquist recognized this in his letter of 6 February 1981 to the Superintendent of Liberty County school system when he stated, “Grant me back my continuing contract as a classroom teacher in Liberty County and let your action on my transfer stand.”

      . Section 231.36(9), Florida Statutes (1979) provides:
      (9) Any teacher who is employed in a cooperative education program in this state may be immediately placed on continuing contract with the school board wherein the cooperative education program is produced if, at the time of employment, such person is on a continuing contract in a district which is participating in support of the particular cooperative education program in which the person is employed; provided that if at the time of reappointment of personnel, during the first 3 years, said person is not recommended for continued employment in the cooperative education program, he shall automatically revert to continuing contract status in the district of immediate prior employment; and provided further, that in meeting the requirements for a continuing contract prescribed herein prior successive years of service rendered in any district participating in the support of the particular cooperative education program may be counted as years of probationary service for a continuing contract with the school board wherein the cooperative education program is produced.

      . The Board contends that Wahlquist was required to request a hearing within 21 days of the January 6 letter, citing Capeletti Brothers, Inc. v. State Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). Under the Model Rules, Florida Administrative Code (Rule 28-5.111), when an agency has not adopted its own rules, a hearing shall be requested within 21 days of the written notice of agency action.

      . Section 231.36(3)(e) provides:
      (e) Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the school board without the necessity for annual nomination or reappointment until such time as the position is discontinued, the person resigns, or his contractual status is changed as prescribed below, (emphasis supplied)

      .See footnote 1, supra.

      . The Liberty County School Board is a participating member of the Panhandle Area Educational Cooperative.

      . A tenured teacher acquires a valuable property right in his or her expectation of continued employment. Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978).

      . Our construction of the statute avoids the problem that might otherwise arise in implementing the protective provisions of Section 231.36(9), in that it would not allow a teacher to remain with an educational cooperative for an indefinite period of time and then seek a return to continuing contract status with his or her district of immediate prior employment. If Wahlquist was recommended for continued employment by the cooperative, then he would have no right to return to the Liberty County school system on a continuing contract basis.

      . We are not called upon to decide and therefore express no opinion as to the applicability, to cooperative educational programs, of Section 231.36(3)(h), Florida Statutes, which authorizes school boards (until July 1, 1977) to enter into continuing contracts with principals or supervisors only if they were so employed on or before July 1, 1974, or otherwise meet the requirements of Section 231.36(3)(a).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles F. ROYALS, d/b/a Days Inn, and Morrison Assurance Company, Appellants, v. Wanda Louise OWENS, Appellee.
    No. AL-37.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Enrique Escarraz, III, St. Petersburg, for appellants.
    Harry Goodmark of Goodmark & Good-mark, West Palm Beach, for appellee.
   PER CURIAM.

Appellants appeal an order of the deputy commissioner ordering that the employer/carrier authorize Drs. Henry A. Saiontz and Mary Jo Thomas, Palm Beach County physicians, to render medical care for the claimant and pay the medical expenses incurred by the claimant as a result of an extensive evaluation by Dr. Shafey. We affirm in part and reverse in part.

Prior to the day of hearing, the claimant never advised the employer/carrier of her change of residence from Pinellas County to Palm Beach County and never requested treatment by or authorization of physicians in the Palm Beach County area as required by Section 440.13, Florida Statutes. Furthermore, the issues raised in the claim, notice and application for hearing did not include the question of medical authorization of Palm Beach County physicians as one to be litigated. Under these circumstances, we conclude that the deputy commissioner erred in ordering authorization of Drs. Saiontz and Thomas and, accordingly, reverse. In all other respects, the order is affirmed.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Edward H. ROBINSON, Appellant, v. Robert E. HUCKER, Appellee.
    No. AL-225.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Edward H. Robinson, in pro. per., Jacksonville, appellant.
    Robert E. Hucker, in pro. per., Jacksonville, appellee.
   WENTWORTH, Judge.

Appellant husband petitioned, and wife counter-petitioned, for a dissolution of marriage. After a continuance of more than one year, husband and wife reconciled and stipulated to a dismissal of their petitions. Five days prior to the filing of the stipulated dismissal, the appellee Hucker, wife’s counsel, without the consent of his client and on his own behalf, filed a motion for attorney’s fees to be paid by the husband, or by the wife, or both. Without considering the stipulated dismissal, the trial court entered an order setting a hearing on the motion for attorney’s fees. After hearing the trial court entered an order awarding the wife’s attorney a fee of $3,500, $2,000 of which was to be paid by the husband. The order also denied the husband’s motions for a continuance, to quash, and for a summary judgment of dismissal. The husband, alone, appeals the award on the grounds (1) that only a party is authorized to seek attorney’s fees under § 61.16, Florida Statutes (1981), and (2) that the trial court erred in ordering the husband to pay $2,000 when the wife was capable of paying her own fee and had not sought such an order. We reverse in part, confining our review to matters adversely affecting and therefore appealable by the husband.

We note first that the appellee, wife’s attorney, is properly before this court under the provisions of § 61.16, Florida Statutes (1981), which permits an attorney to defend or enforce an award ordered in his own name. See Baucom v. Baucom, 397 So.2d 345 (Fla. 3d DCA 1981).

Section 61.16, Florida Statutes (1981), construed in Baucom, “contemplates that only a party to a marriage dissolution action may apply for such an award of attorney’s fees.” Id. at 341. The record in this case shows, and the parties agree, that the wife did not seek such an award and that she filed an affidavit of solvency averring that she had ample funds and ample assets to pay a reasonable attorney’s fee, but that her attorney had never submitted a bill for his services detailing the time spent on her case. We therefore conclude that appellant is entitled by this appeal to challenge the award against him and, for the reasons stated in Baucom’s application of the cited statute, we reverse and remand with directions to amend the order by deleting that portion ordering the husband to pay $2,000 of the $3,500 fee.

REVERSED and REMANDED with directions.

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

      . See Cassel v. Gulf Life Insurance Co., 143 So.2d 510, at 515 (2d DCA 1962), quoting Day v. Norman, 42 So.2d 273 (Fla.1949):
      No appeal has been taken by any other of the several defendants. Consequently, we should not and do not consider the position taken in the court below by any of them, nor can this appellant assert their rights to a reversal if any exist, (e.s.)
      See also Lynn v. City of Ft. Lauderdale, 81 So.2d 511, 513 (Fla.1955), and 3 Fla.Jur.2d, Appellate Review, § 283.


author: JOANOS, Judge.

text:
    STATE of Florida, Appellant, v. Michael Timothy MORGAN, Appellee.
    No. AL-318.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for appellant.

      Alan R. Parlapiano, Public Defender and Margaret Kathleen Wright, Asst. Public Defender, Gainesville, for appellee.
   JOANOS, Judge.

The State appeals an order granting Morgan’s motion to suppress evidence. We affirm.

Briefly, viewing the evidence in a light most favorable to the successful movant, this is what occurred. A particular residence was burglarized on November 3,1981. Later on November 3, 1981, Officers Du-bose and Ingram went to Morgan’s home, a house trailer, and requested permission to search the premises. Morgan refused to consent to the search, but agreed to accompany the officers to the sheriff’s department and discuss the case. Officer Ingram did not accompany Dubose and Morgan to the department. Morgan was interviewed there by Officers Dubose and Turner. Morgan, a 20 year old felony probationer, denied involvement in the burglary and continued to refuse consent to search his home.

Morgan’s version of what occurred next, which was accepted by the trial court, was that Officer Dubose told him they were going to search the trailer that night, they could obtain a search warrant, and would get the judge out of bed that night in order to do so if he did not consent to the search, or they would call his probation officer who did not have to have a warrant in order to search. (It appears there may not have been probable cause to support a search warrant.) Officer Dubose placed a call to Morgan’s probation officer, placed Morgan on the phone, and immediately following the conversation Morgan signed a consent to search form. Morgan said at that point he felt he had no other choice. A search of Morgan’s home that night revealed no incriminating evidence.

On November 5, 1981, Officers Turner and Ingram, accompanied by Officer Bas-tak, returned to Morgan’s home. Additional officers were also present, but remained outside the trailer. The officers again advised Morgan of his rights and asked him for permission to search, and he signed another consent to search form. Morgan said he signed because he did not want to go through the events of November 3 again. This time evidence was found and seized and Morgan was arrested and confessed to the burglary.

In the order suppressing the evidence, the trial judge stated he was “unable to conclude that there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of the initial actions of the deputies. It appears to me from the facts as presented, that the evidence seized came about by exploitation of the illegality.” The evidence was sufficient for the trial judge to reach that conclusion.

The consent obtained on November 3, 1981, was invalid because it was coerced by the procedure employed by the officers at the sheriff’s department after Morgan had repeatedly refused consent to search his home. See Denehy v. State, 400 So.2d 1216 (Fla.1980); Seuss v. State, 370 So.2d 1203 (Fla. 1st DCA 1979); Gonterman v. State, 358 So.2d 595; Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976); Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975). The consent obtained on November 5,1981, was also invalid. The State contends that the passage of 48 hours, Morgan’s literacy, his opportunity to discuss the previous search with his parents and the warning of his rights prior to the second consent dissipated the taint of the encounter of November 3. Considering the evidence presented as to the events of November 3, plus the presence of a number of additional officers outside the trailer on November 5, the trial judge could conclude that the factors relied upon by the State did not constitute “clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.” Norman v. State, 379 So.2d 643, 647 (Fla.1980).

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.

      . Morgan testified he told his parents about the questioning and search of November 3, and they did not give him any advice.


author: WIGGINTON, Judge.

text:
    Theadell DELOACH, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-367.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Theadell Deloach, in pro. per.
    Malcolm S. Greenfield, Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Deloach, a prisoner at Lawtey Correctional Institution, appeals from a commission decision that established his presumptive parole release date. We affirm.

A review of the record reveals Deloach’s initial point to be meritless as the Commission Action Form clearly reflects that the commission aggravated nineteen months for each of the two concurrent convictions.

As to Deloach’s final point, the commission properly aggravated his score using concurrent sentences pursuant to Rule 23-19.01(5), Florida Administrative Code. In Glisson v. Florida Parole and Probation Commission, 420 So.2d 336 (Fla. 1st DCA 1982) [7 FLW 2082], this Court held that “the use of concurrent sentences as aggravating factors ... does not encroach on the function of the judiciary and does not violate the separation of powers clause, Article II, Section 3, Florida Constitution.”

AFFIRMED.

SHAW and JOANOS, JJ., concur.


text:
    James JOHNSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-372.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    James Johnson, pro se, appellant.
    John C. Courtney, Asst. Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   JOANOS, Judge.

In this appeal from a final order of the Parole and Probation Commission, appellant asserts the Commission erred in declining to review, following his 1981 biennial review, the action taken at his initial interview in 1979. Following the initial interview in 1979, appellant sought Commission review, pursuant to Section 947.173, Florida Statutes, of the same issues raised in the present appeal. We affirm the Commission action declining to re-review these issues. See McClain v. Florida Parole and Probation Commission, 416 So.2d 1209 (Fla. 1st DCA 1982).

The Commission has brought to our attention a clerical error in scoring appellant for robbery and considering the use of a firearm as an aggravating factor, rather than scoring him for armed robbery. Pursuant to the Commission’s request, we remand for correction of this error. See Wickham v. Florida Parole and Probation Commission, 410 So.2d 989 (Fla. 1st DCA 1982).

AFFIRMED and REMANDED for correction of clerical error.

SHAW and WIGGINTON, JJ., concur.


text:
    Cleveland MYERS, Appellant, v. The FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-469.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Cleveland Myers, pro se, appellant.
    Earl H. Archer, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   JOANOS, Judge.

Myers appeals Florida Parole and Probation Commission action denying review of his presumptive parole release date (PPRD) determination set in 1979 after his biennial review in 1982. We affirm.

Initially, we observe that Myers failed to seek review of his PPRD within the sixty-day period pursuant to Section 947.173, Florida Statutes (1979). Also, a re-interview is not grounds to relitigate a PPRD determination. Gatto v. Florida Parole and Probation Commission, 415 So.2d 869 (Fla. 1st DCA 1982).

SHAW and WIGGINTON, JJ., concur.


author: McCORD, Judge.

text:
    Ralph D. WEBB and DeEtta Webb, his wife, Appellants, v. Calvin WHITE and Allstate Insurance Company, Appellees.
    No. AM-58.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    William A. MacGuire, Orange Park, for appellants.
    John M. McNatt, Jr., and J. Stephen O’Hara, Jr., of Mathews, Osborne, McNatt, Gobelman and Cobb, Jacksonville, for appel-lees.
   McCORD, Judge.

Appellants’ contention that the Florida Automobile Reparations Reform Act [§ 627.730, et seq., Fla.Stat. (1981) ] denies them equal protection and due process under the law and access to the courts has been previously addressed and rejected by the Florida Supreme Court. Chapman v. Dillon, 415 So.2d 12 (Fla.1982). Accordingly, we affirm the trial court’s order dismissing their complaint for damages.

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


author: ERVIN, Judge.

text:
    Rufus ALFORD, Administrator of the Estate of Brenda Ann Alford, Deceased, Appellant, v. Glenn O. SUMMERLIN, Appellee.
    No. AE-33.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Anderson E. Hatfield, Gainesville, for appellant.
    L. William Graham of Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates, P.A., Gainesville, for appellee.
   ERVIN, Judge.

This is an appeal from a final judgment entered in a medical malpractice action pursuant to the lower court’s prior order directing verdict for defendant/appellee on the ground that more than two years had elapsed from the date the alleged negligent acts of the defendant occurred until the action was filed. We affirm.

This is the second time this case has been brought before us. In Alford v. Summerlin, 362 So.2d 103 (Fla. 1st DCA 1978), the issue raised was whether the trial court had erroneously dismissed a complaint filed more than two years after the date of the death of plaintiff’s decedent. We held that the order should be reversed because the facts alleged in the complaint revealed that the defendant doctor had fraudulently concealed his negligent treatment of the minor child and fraudulently concealed the cause of death. In so holding, the court determined that Section 95.11(4)(b), Florida Statutes (1975), effective May 20,1975 (Laws of Florida, 75-9), was controlling. The cause was then remanded to the trial court for further consistent proceedings; appellee affirmatively defended by alleging that the claim was barred by the applicable provisions of Section 95.11 because the cause of action had accrued, and was known or should have been known to plaintiff more than two years before the filing of the action. The case came on for trial, and the court, at the conclusion of plaintiff’s case, granted defendant’s motion for directed verdict on the ground that plaintiff had failed to prove a prima facie case of fraudulent concealment, because in the court’s view plaintiff had not relied upon defendant’s alleged misrepresentations, therefore the limitations period could not be tolled. We do not affirm the judgment on the narrow ground reached by the trial court; nor do we address the question posed by appellant whether Besett v. Basnett, 389 So.2d 995, 998 (Fla.1980) (holding that a recipient of a representation may rely upon its truth, even though its falsity could have been discovered had he made an investigation, unless he either knows the representation to be false or its falsity is obvious to him) requires a different result. We rest our decision of affirmance simply upon the fact that an essential allegation pled, that decedent’s survivors did not discover the negligence of the defendant until a time more than two years after the death but less than two years before the filing of the complaint, was not established by the evidence. We therefore sustain the lower court’s ultimate conclusion that the two-year limitation period was not tolled. In so holding, we consider it necessary to trace the history of the pertinent statutes of limitations that were in effect both at the time of the death of Brenda Alford and when plaintiff allegedly first became aware of defendant’s negligence.

Appellant filed his complaint on July 13, 1976, and at trial proved that his daughter, Brenda Alford, died on September 27, 1972, nearly four years before the filing of the complaint. The statute in effect at the time of Brenda’s death, Section 95.11(6), Florida Statutes (1971), amended the general four-year limitation period formerly provided in Section 95.11(4) and (6), Florida Statutes (1969), by reducing the time within which to bring such actions to two years, and provided also that “an action to recover damages for injuries to the person arising from any medical, ... or surgical operation, ... [shall] not be deemed to have accrued until the plaintiff discovers, or through the use of reasonable care should have discovered, the injury.” The accrual provisions of the amended statute pertaining to personal injury actions did not also encompass wrongful death actions. Neither did the 1974 amendment (Section 95.-ll(4)(a) and (c), Florida Statutes (Supp. 1974)), extend the notice or accrual provisions to wrongful death actions. See Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979), and Worrell v. John F. Kennedy Memorial Hospital, 384 So.2d 897 (Fla. 4th DCA 1980), affirmed in part, reversed in part, on other grounds, sub nom. Dober v. Worrell, 401 So.2d 1322 (Fla.1981). It was not until the legislative amendments of 1975, see Chapter 75-9, Laws of Florida, effective May 20, 1975, passed as Section 95.11(4)(b) and (d), Florida Statutes (1975), that wrongful death actions were so covered. The amended statute defined “[a]n action for medical malpractice [as including] a claim in tort ... for damages because of the death, injury, or monetary loss to any person arising out of any medical, ..., or surgical diagnosis [or] treatment .... ” Section 95.11(4)(b) also required the action be filed “within two years from the time the incident ... occurred or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; ...." (e.s.).

Unless, then, the 1975 amended statute could be retroactively applied to the time plaintiff allegedly discovered the defendant’s negligent acts (November 6, 1974), appellant’s cause of action would normally have been required to be filed, by operation of Section 95.11(6), Florida Statutes (1971), within two years from the date of Brenda’s death. In 1974, at the same time the legislature enacted Section 95.-ll(4)(a), Florida Statutes (Supp.1974), effective January 1, 1975, it also adopted a savings clause which accompanied the 1974 revision. It provided that “any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1,1976, and if it is not commenced by that date, the action shall be barred.” Section 95.022, Florida Statutes (Supp. 1974). It is immediately apparent that the savings clause has no applicability to the cause of action before us since the latter was not filed until July 13,1976. Additionally, as pointed out by the Florida Supreme Court in Homemakers, Inc. v. Gonzales, 400 So.2d 965, 967 (Fla.1981), Section 95.022 was directed only to those sections of Chapter 95 whose time periods were shortened by the amended statute, and has no application to situations in which the time periods remain the same or were lengthened. Gonzales restated the general rule that a statute of limitations will be prospectively applied unless the legislative intent to provide retroactive effect is expressed, clearly and manifestly. Id. In so ruling, the court held the plaintiff’s malpractice action was barred because it was not filed within the two-year period required by Section 95.11(6), Florida Statutes (1973) (the action was deemed to have accrued on April 3,1973), and because the provisions of Section 95.11(4)(b), Florida Statutes (1975), could not be retroactively applied.

Thus, were it not for our prior opinion in this cause applying the provisions of Section 95.11(4)(b), effective May 20,1975, to plaintiff’s cause of action, appellant’s wrongful death action would necessarily have been barred two years following the death of Brenda Alford. Yet, our mandate was issued pursuant to our opinion and the cause was remanded on our erroneous perception that the cause did not accrue until plaintiff’s alleged discovery of the purported negligence on November 6,1974, and not as of the date of death, September 27, 1972.

Nevertheless, given the posture of this case and the manner in which the parties have addressed the issue now before us, we consider that we are bound by our earlier opinion by reason of the doctrine of the law of the case, stating that whatever is once established between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case. McGregor v. Provident Trust Company, 119 Fla. 718, 162 So. 323 (1935); Rosenkrantz v. Hall, 172 So.2d 518 (Fla. 3d DCA 1965). The doctrine, moreover, extends to questions not only actually presented, but also impliedly presented in the former appeal. 3 Fla.Jur.2d, Appellate Review, § 421, at 576 (1978). Although it does not appear from our former opinion that any actual question was raised as to the retroactive effect of the amended statute to the plaintiff’s wrongful death action, such issue was impliedly addressed, since the accrual provisions of the statute were considered to apply to a death which occurred before the effective date of the amendment.

Yet, even though we consider that we are bound by our former opinion, it was incumbent, under the accrual provisions of Section 95.11(4)(b), Florida Statutes (1975), for appellant to prove that his action was “commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the accident is discovered, or should have been discovered with the exercise of due diligence .... ” See also Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). In his complaint, appellant alleged the following: “Decedent’s survivors did not discover the negligence of Defendant physician until they were called upon to defend an action by Alachua General Hospital to collect his bill, which action was instituted on or about November 6, 1974, or more than two years after decedent’s death.” In the court’s pretrial order, the court specifically stated that this allegation was one of the issues framed by the pleadings which was to be tried. Appellant failed to submit any proof in support of his allegation that he did not discover defendant’s negligence until November 6, 1974. The evidence on that point before the jury was absolutely silent.

Accordingly, because appellant’s evidence was not legally sufficient to establish that he filed his cause of action within two years after the date he was placed on notice of the alleged negligence of Dr. Summerlin, the judgment must be

AFFIRMED.

McCORD and SHAW, JJ., concur.

      . Another curious anomaly is that nowhere in the record is it shown that plaintiff sought, before filing his complaint in circuit court, any proceeding before a medical liability mediation panel. At the time the complaint was filed, July 13, 1976, such a showing was a necessary condition precedent to an action in circuit court. See Section 768.133(l)(a), Florida Statutes (1975) and Glass v. Camara. Of course, the Medical Mediation Act was later declared unconstitutional in its entirety as to all medical mediation proceedings which had not terminated by February 28, 1980. Aldana v. Holub, 381 So.2d 231 (Fla.1980).


author: LARRY G. SMITH, Judge.

text:
    GREYNOLDS PARK MANOR and R.P. Hewitt & Associates of Florida, Inc., Appellants, v. Lovie GEORGE and Division of Workers’ Compensation, Appellees.
    No. AG-486.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellants.
    L. Barry Keyfetz of Keyfetz, Poses & Halpern, P.A., Miami, for appellees.
   LARRY G. SMITH, Judge.

We affirm the deputy commissioner’s finding of bad faith under Section 440.-34(3)(b), Florida Statutes (1981), because of the employer/carrier’s failure to pay, or to make provisions for paying, hospital and medical expenses incurred in the treatment of the claimant’s compensable injuries.

This court in Greynolds Park Manor v. George, 417 So.2d 990 (Fla. 1st DCA 1982), rejected the E/C’s contention that the E/C had no obligation under the workers’ compensation law, enforceable by the claimant, to pay hospital and medical expenses incurred in claimant’s treatment because these medical expenses had already been paid by the Department of Health, Education and Welfare (Medicare), and Blue Cross. The deputy commissioner’s ruling that the claimant could enforce the E/C’s obligation to pay these expenses, notwithstanding they had already been paid by third parties, was affirmed. However, this court modified the deputy commissioner’s ruling that the E/C pay or reimburse HEW and Blue Cross, and instead, ordered that payment for the medical expenses incurred should be made direct to the claimant, subject to a lien for the benefit of HEW and Blue Cross, and subject also to the requirement that the claimant “shall insure that those entities are properly reimbursed.” Id at 992.

On appeal, the E/C assert that the bad faith award was erroneous for the reasons, first, that there was no evidence of bad faith, and secondly, even if there were, there was no “economic loss” to the claimant as required by the statute. We disagree with each of these contentions, and adopt the reasoning of the deputy commissioner which he expressed in his order, in part, as follows:

2. The Employer/Carrier had conceded claimant was involved in a compensable accident, that particular medical bills previously awarded were authorized and the responsibility of the Employer/Carrier, but objection was made to the actual payment thereof on the grounds that bills were paid by others and that payment thus need not be made by the Employer/Carrier unless those who actually paid the bills in some fashion not evident from the Workers’ Compensation Law can and do proceed to seek and obtain reimbursement. Where the Employer/Carrier refuses to pay benefits for which they are obligated under Workmens’ [sic] Compensation Law without justification such conduct has been held to constitute bad faith under Section 440.34 F.S. Where the Employer/Carrier admits they are obligated for benefits which they nevertheless refuse to pay such conduct is per se bad faith. In order to enforce actual payment of these medical benefits where the Employer/Carrier admits they are owed, but refuses to pay . . . [and it becomes] necessary for claimant to employ counsel to compel the Employer/Carrier to comply with their obligations under the Workers’ Compensation Law, absent payment of attorney’s fees in connection therewith by the Employer/Carrier then the purposes and intent of the Workers’ Compensation Law is completely defeated when even admittedly owed obligations need not be paid.

We note that the employer/carrier presented no evidence to justify its nonpayment of these medical expenses at the hearing scheduled before the deputy commissioner for that specific purpose. We fully concur in the deputy commissioner’s order finding bad faith on the part of the defaulting employer/carrier. Furthermore, with respect to the employer/carrier’s contention that “economic loss” requires actual “out-of-pocket” expenditures by the claimant, we observe that this court has decided to the contrary in Legal Aid Services of Bro-ward County, et al. v. Logsdon, 419 So.2d 1203 (Fla. 1st DCA 1982), in which the court held that a six month delay in payment of a hospital bill provided sufficient basis for a finding of bad faith under the attorney’s fee statute. Our prior decision (417 So.2d 990) established the claimant’s entitlement to a monetary award. We therefore will not presume the absence of an economic interest on the part of the claimant sufficient to meet the statutory “economic loss” requirement.

With respect to appellee’s cross-appeal claiming an insufficiency in the award of attorney’s fees, we affirm the deputy commissioner’s award of attorney’s fees in the amount of $1,564 based upon recovery of medical benefits in the approximate amount of $6,570.

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.

      . We have not overlooked appellee’s contentions that the bad faith finding is supported by the employer/carrier’s delay in payment of compensation benefits. Delay in payment of compensation benefits has been held to justify a finding of bad faith. Barosy v. Landscape Crane, 418 So.2d 400 (Fla. 1st DCA 1982). Delay in payment alone, if not for an unreasonable period, or if satisfactorily explained and justified, has been held insufficient for a finding of bad faith. Exceptional Children’s Home and Nursery, Inc. v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982). Our resolution of this case does not require that we consider the delayed payment issue. We note that the deputy commissioner stated in his order that in considering the benefits obtained for the claimant, he did not consider compensation benefits ultimately furnished to the claimant. On the subject of delay, appellee’s brief advises us that the medical expenses for which the employer/carrier have been held responsible are still unpaid, and have remained so for a period of approximately two years.


author: MILLS, Judge.

text:
    Sarah C. COOK, Appellant, v. BURNHAM VAN SERVICES, INC. and Liberty Mutual Insurance Co., Appellees.
    No. AJ-6.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Richard A. Bokor, Tampa, for appellant.
    Richard A. Valeri and Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   MILLS, Judge.

The parties stipulated that Cook suffered a compensable, work-related injury on 12 July 1978. The employer/carrier (E/C) voluntarily accepted the claim and began timely payments to Cook based on a 40% permanent partial disability.

Subsequently, Cook claimed that her disability exceeded the 40% voluntarily paid by E/C. The deputy commissioner ordered that Cook should receive professional assistance in making a job search prior to his making any final adjudication of the claim. The firm of Watson, Deutsch & Associates, Inc., was retained to assist in the job search. That firm found a job for Cook making egg polls at Oriental Food Delicacies Company, but Cook left the job after only two hours, claiming she could no longer continue because of pain.

After a hearing, the deputy commissioner denied Cook’s claim for permanent total disability benefits. He chose to disbelieve Cook’s testimony and to accept that of other witnesses whose testimony showed that Cook was capable of performing the work.

The deputy commissioner’s findings are supported by competent, substantial evidence. Therefore, we will not disturb them on appeal.

AFFIRMED.

ROBERT L. SMITH, Jr., C.J., and McCORD, J., concur.


author: THOMPSON, Judge.

text:
    Michael CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. AJ-461.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appel-lee.
   THOMPSON, Judge.

Campbell appeals a final judgment adjudicating him guilty of driving under the influence. We reverse.

Appellant drove his pick-up truck in front of an oncoming train. The ensuing accident caused the death of his passenger and severe injury to him. He was taken to the hospital, where blood was drawn and tested for purposes of determining his blood type and to obtain other information needed in an effort to save his life. The blood test revealed, among other things, that the appellant had a .185 blood alcohol level. Shortly thereafter, a state trooper requested that additional blood be drawn so that it could be tested for the purpose of possibly prosecuting appellant for driving under the influence. However, the appellant was in shock and the laboratory technician was unable to draw a second blood sample. The state’s attorney subsequently filed an information charging the appellant with vehicular homicide, driving a vehicle while under the influence, and driving a vehicle without a valid driver’s license.

Prior to trial the appellant filed a motion to suppress the test results, arguing inter alia, that the test had been performed for treatment purposes and had not been done at the request of a law enforcement officer as required by §§ 322.261, .262, Fla.Stat. (1979). Although the state admitted that the blood was drawn for hospital purposes and not at the request of a law enforcement officer, the trial court denied the motion to suppress. At trial, the appellant renewed his motion to suppress on the grounds previously argued, and on the further grounds that the blood testing equipment used was not approved or certified for court purposes, and was not tested and inspected for court purposes. This motion was also denied by the court.

Appellant contends that the test results were inadmissible because they were not obtained at the request of a law enforcement officer and because the testing did not comply with §§ 322.261, .262, Fla.Stat. This alleged error was preserved for appellate review by appellant’s written motion to suppress prior to trial and by an oral motion to suppress made during the trial.

Section 322.261, Florida Statutes, provides in part:

(2)(a) The test determining the weight of alcohol in the defendant’s blood shall be administered at the direction of the arresting officer in accordance with rules and regulations which shall have been adopted by the department. Such rules and regulations shall be adopted after public hearing, and shall specify precisely the test or tests which are approved by said department for reliability of result and facility of administration and shall provide an approved method of administration which shall be followed in all tests given under this section.
(b) Only a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician, acting at the request of a peace officer, may withdraw blood for the purpose of determining the alcoholic content therein. Such withdrawal of blood shall be performed only at a hospital, clinic, or other medical facility. This limitation shall not apply to the taking of a breath specimen.

Section 322.262, Florida Statutes, provides in part:

(2) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages, when affected to the extent that his normal faculties were impaired, the results of any test administered in accordance with s. 322.261 and this section shall be admissible into evidence when otherwise admissible, and the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood or breath shall give rise to the following presumptions:
(3) Chemical analyses of the person’s blood or breath, in order to be considered valid under the provisions of this section, must have been performed according to methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose. The Department of Health and Rehabilitative Services is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Health and Rehabilitative Services.

The foregoing provisions mandate that blood tests be administered at the direction of the arresting officer and that the test or tests used be approved by the Department of Health and Rehabilitative Services for reliability of result and facility of administration. Otherwise, the results of the test are not admissible into evidence and do not give rise to the presumptions set forth in § 322.262. It is admitted in the instant case that the blood tests were not taken at the direction of a peace officer and there was no showing of compliance with § 322.261. Accordingly, the test results were not admissible and the trial judge erred in denying appellant’s motion to suppress. State v. Bender, 382 So.2d 697 (Fla.1979); Grata v. State, 414 So.2d 621 (Fla. 3d DCA 1982); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979).

REVERSED AND REMANDED.

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


text:
    Milton Jerome NEDD, Appellant, v. STATE of Florida, Appellee.
    No. AK-439.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant. Appellant pro se.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

Nedd was convicted of forgery and uttering forged credit card sales drafts after a jury trial. He appealed the conviction and filed a pro se brief after the assistant public defender filed an initial brief accompanied by a motion to withdraw pursuant to An- ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We have considered the briefs and the record and find no reversible error. Therefore, the judgment and sentence of the trial court is affirmed.

SHAW and WIGGINTON, JJ., concur.


text:
    Michael GOLDBERG, Appellant, v. BEKINS MOVING & STORAGE COMPANY, a corporation; Bekins Van Lines Company, a corporation; Transport Indemnity Company, a corporation; City of Jacksonville, a municipal corporation; and the Travelers Insurance Company, a corporation, Appellees.
    No. AL-98.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    Jack F. Wayman, Jacksonville, P.A., for appellant.
    Mattox S. Hair of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   MILLS, Judge.

Goldberg appeals a summary judgment in favor of the consolidated City of Jacksonville and its insurer. We affirm.

Section 768.28(6), Florida Statutes (1981), establishes a three-year limitations period for written notice of claims against a municipality. Showell Industries v. Holmes County, 409 So.2d 78 (Fla. 1st DCA 1982). Section 205 of the Soldiers and Sailors Civil Relief Act (50 U.S.C.App. § 525) tolls limitation periods until discharge from service. It is undisputed that the cause of action arose 11 August 1976. Goldberg was discharged 10 October 1977 and filed his written notice 5 November 1980.

There being no disputed issue of material fact, summary judgment was appropriate and is

AFFIRMED.

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


text:
    Terry D. MORRIS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-13.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Terry Dave Morris, in pro. per.
    Earl H. Archer, Asst. Gen. Counsel for Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Morris appeals the commission’s action in determining his presumptive parole release date. We affirm.

Following Morris’ initial conviction on two grand larceny counts, his probation and revocation thereof resulting from his guilty plea to additional counts of second degree grand larceny, the commission set a new presumptive date for release. Morris urged two grounds for further review which the commission promptly explained and corrected in that process. Morris would now have this Court strike the aggravating factors due to the commission’s initial error, but despite the commission having taken timely action to cure the defects.

The commission must be permitted to correct its errors and oversights in an orderly manner pursuant to administrative procedures. The corrections were made pri- or to Morris seeking this Court’s review of the commission’s action to correct its acknowledged error. Zygadlo v. Florida Parole and Probation Commission, 414 So.2d 600 (Fla. 1st DCA 1982).

The issues that may be raised on appeal from the commission’s setting of a presumptive parole release date are limited to those issues presented to the commission. Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). Morris, not having met this requirement, will not be permitted to present them for our initial review.

SHAW and JOANOS, JJ., concur.


text:
    Elzie COOK, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-28.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    Certiorari Denied Feb. 22, 1983.
    See 103 S.Ct. 1222.

      Elzie Cook, in pro. per.
    Malcolm S. Greenfield, Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Cook, an inmate at Sumter Correctional Institution, appeals from final commission action which followed his 1981 biennial interview.

Appellant committed his crimes in August, 1975, and received two concurrent sentences for robbery and sexual battery. In 1979, the commission established a presumptive parole release date of February, 1986. At the end of 1981, Cook received his regularly scheduled biennial interview at which time the hearing examiner recommended that Cook’s PPRD be reduced by twenty-four months because of several self-help programs he had completed and because he had received no major disciplinary reports. The commission approved a reduction in PPRD, but only twelve months.

In essence, Cook seeks to utilize the biennial review to relitigate the initial tentative parole release date. Such is improper. Gatto v. Florida Parole and Probation Commission, 415 So.2d 869 (Fla.1st DCA 1982). Even taking cognizance of that, the issues raised by Cook are without merit.

The commission neither erred in using guidelines in effect on the date of appellant’s interview, Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla.lst DCA 1982), nor by aggravating Cook’s score using concurrent sentences pursuant to Rule 23-19.01(5), Florida Administrative Code, Sala v. Florida Parole and Probation Commission, 414 So.2d 263 (Fla.lst DCA 1982); Perkins v. Florida Parole and Probation Commission, 414 So.2d 264 (Fla.1st DCA 1982); Glisson v. Florida Parole and Probation Commission, 420 So.2d 336 (Fla.lst DCA 1982).

Finally, a review of the record shows that although Cook has completed self-help programs, as the examiner found, he has also received two disciplinary reports that were not mentioned by the examiner. The commission was justified in its determination and the final action is affirmed.

SHAW and JOANOS, JJ., concur.


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

text:
    Shirley A. COLSON, Appellant, v. GENERAL INSURANCE CO., Appellee.
    No. AM-217.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    Robert J. Denson of Robert 0. Stripling, Jr., P.A., Gainesville, for appellant.
    S. Edwart Groot of Druck, Hicks & Groot, P.A., Ocala, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Shirley Colson appeals from a circuit court order dismissing with prejudice her amended complaint against appellee General Insurance Company, insurer of the family automobile owned by Colson’s husband. Colson sued for personal injury protection benefits payable under her husband’s policy for her injury sustained while driving an automobile allegedly owned by Automobile Rentals, Inc., and leased to Dart Industries “and/or” Tupperware Parties. The trial court dismissed her amended complaint against appellee General Insurance, ruling that, because appellant Colson was not the owner of a motor vehicle with respect to which security was required by section 627.-730, et seq., Florida Statutes (1979), she is entitled to PIP benefits payable by the insurer of the owner of the motor vehicle that she occupied and was driving at the time of her injury, section 627.736(4)(d)4.a., and correspondingly is not entitled to PIP benefits under her husband’s policy. Assuming the allegations of Colson’s amended complaint to be true, we find that Colson was in fact excluded from coverage under the policy issued by the insurer of the owner of the motor vehicle in which she was injured, and instead was covered for PIP benefits by appellee General Insurance.

Appellant Colson alleged that she was a “named insured” within the meaning and application of the General Insurance policy issued to her husband. By that allegation she invoked the policy definition of “named insured” which included the resident spouse of the person named in the policy declarations. That provision, as will be seen infra, is consistent with the coverage requirements of section 627.736(4)(d)3., Florida Statutes (1979).

Whether Colson is entitled to PIP benefits from General Insurance, as alleged, or from the insurer (not a party here) of the automobile in which she was an occupant when injured, depends on section 627.-736(4)(d). That statute describes the liability of that other insurer as follows:

(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle ... provided the injured person is not himself:
a. The owner of a motor vehicle with respect to which security is required under [the Automobile Reparations Reform Act], or
b. Entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.

The trial court, in dismissing Colson’s action, evidently relied on the Supreme Court’s decision in Travelers Insurance Co. v. Bartoszewicz, 404 So.2d 1053 (Fla.1981). There the Court held that a policy issued to and naming a corporation as the named insured did not by implication name the corporation’s employees as other named insureds. The Court reasoned that a corporate employee injured while driving the corporation’s vehicle would be insured by the policy incorporating section 627.736(4)(d)4, whether named or not in the policy, unless the injured employee was one who, in the language of the policy incorporating section 627.736(4)(d)4.a., was the “owner of a motor vehicle with respect to which security is required” under the Automobile Reparations Reform Act.

The Bartoszewicz decision appropriately explains why certain employees driving the named insured’s automobile will be covered for injuries sustained while driving the automobile, and why other such employees, like Bartoszewicz himself, will not be covered because “at the time Bartoszewicz personally owned another car and was required by law to maintain security .... ” 404 So.2d at 1053. But the Supreme Court’s decision does not imply that all employees except those excluded by subsection 4.a. must necessarily be insured by the insurer of the owner of the automobile occupied by the employee when injured. For section 627.736(4)(d)4.b. also excludes from coverage of the owner’s policy any injured occupant who, in the language of the statute, is “[e]ntitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle” as is described in subpart a., namely, some other “motor vehicle with respect to which security is required” by the Act. Travelers Insurance Co. v. Furlan, 408 So.2d 767, 768 (Fla. 5th DCA 1982); State Farm Mutual Automobile Insurance Co. v. Guerra, 340 So.2d 1221, 1223 (Fla. 3d DCA 1977).

Because appellant Colson is “a relative of the owner [of another motor vehicle] residing in the same household,” and sustained accidental bodily injury in Florida while occupying a motor vehicle, and was not herself the owner of a motor vehicle in respect to which security was required, appellant Colson is by the terms of section 627.736(4)(d)l and 3 entitled to PIP benefits payable by the insurer of her husband’s automobile, appellee General Insurance. Subsection (4)(d)3 provides that General Insurance (the “insurer of the owner of a motor vehicle”) shall pay PIP benefits for

3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1 [“Accidental bodily injury sustained in this state ... while occupying a motor vehicle ....”] ... provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required ....

The amended complaint therefore does state a cause of action against appellee General Insurance and, absent defensive averments excepting appellant Colson from that coverage, her claim is meritorious. The order dismissing the amended complaint and Colson’s cause of action is REVERSED.

McCORD and MILLS, JJ., concur.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    Robert C. ROY, Sr., Appellant, v. DAVIDSON EQUIPMENT, INC., Appellee.
    No. 81-2401.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Ronald E. Jones, P.A., West Palm Beach, for appellant.
    F. Gregory Barnhart of Montgomery, Ly-tal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee.
   OWEN, WILLIAM C., Jr., Associate Judge.

Appellant, Robert C. Roy, suffered a money judgment in a suit on a guaranty agreement, which agreement appellant contends here (as he did at trial) was executed by him solely in a representative capacity. We affirm the trial court’s judgment on its determination of appellant’s personal liability, but reverse for a new trial on the issue of damages.

Roy Energy Corporation signed an equipment rental agreement with Davidson Equipment, Inc., for the lease of earth-moving equipment to be used in the corporation’s coal mining operation. The signature read:

LESSEE: Roy Energy Corporation By: Robert C. Roy , Pres.

The following words were typed under the “Remarks” section of the agreement:

$204,000.00 rental to be guaranteed personally by Mr. Robert Roy ....

At the same time a guaranty agreement was executed, which agreement included the following language:

The undersigned, jointly and severally, absolutely guarantee the full and prompt payment of any and every indebtedness, liability or obligation of Roy Energy Corporation arising out of such Contract.... In the event of default in payment of any amount due thereunder ... by Roy Energy Corporation ... the undersigned promise to pay the full amount of such indebtedness ....
The liability of the undersigned shall not be affected by ... the discharge or release of the indebtedness, liability or obligation of Roy Energy Corporation ....

This document, upon which appellant’s liability was based, was signed as follows:

ROY ENERGY CORPORATION. GUARANTOR
BY Robert C. Rov_President (Signature) (Title)

The manner in which the guaranty was signed, standing alone and without more, would be the classic example of a corporate officer signing in a representative capacity only. But here there is much more. The instrument to which the signature was affixed was a guarantee of the corporate indebtedness of Roy Energy Corporation. For a corporation to guarantee its own debt would add nothing to its existing obligation and would be meaningless. Ricker v. B-W Acceptance Corporation, 349 F.2d 892 (10th Cir.1965). Furthermore, the guarantee was the joint and several obligation of the undersigned, which obligation was “not to be affected by ... the discharge or release of the indebtedness, liability or obligation of Roy Energy Corporation,” an obvious paradox if Roy Energy Corporation were the guarantor. This language specifically negates the signature as having been made in a representative capacity. Cf., Manufacturers’ Leasing, Ltd. v. Florida Development & Attractions, Inc., 330 So.2d 171 (Fla. 4th DCA 1976). Under the facts of this case appellant was personally obligated on the guaranty agreement.

Appellant’s obligation, to guarantee payment of the corporate debt to appellee, was limited to the amount of that corporate debt. It appears from the record that the trial court, in computing the extent of appellant’s obligation, looked to the amount which the rental agreement stated appellant would guarantee, i.e., $204,000, without considering the effect, if any, of the lease provision which terminated the corporation’s obligation for further rental upon repossession of the equipment, an event which did occur.

That part of the judgment holding appellant personally liable on the guarantee is affirmed; the award of damages is reversed and this cause remanded for a new trial on damages only.

AFFIRMED, in part; REVERSED, in part, and REMANDED.

LETTS, C.J., and DELL, J., concur.

      . If the guaranty were a negotiable instrument, a signature in this manner would fall under Section 673.403(3), Florida Statutes (1981).


author: KAPNER, LEWIS, Associate Judge. SCHWARTZ, Judge

text:
    Terrence James JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1234.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.

      Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   KAPNER, LEWIS, Associate Judge.

Appellant, defendant below, was convicted of rape and was sentenced to three consecutive terms totaling 249 years. He appeals his conviction and that portion of the sentence wherein the trial court retained jurisdiction over the decision of the Parole Department. We find his arguments regarding his conviction to be without merit and, we, therefore affirm his conviction.

With respect to the trial court’s retention of jurisdiction, however, we believe the case should be remanded.

The transcript indicates the judge failed to retain jurisdiction, but the clerk’s notes and the written order of judgment and sentence indicate the opposite. Accordingly, we remand the case with directions to determine whether the sentencing judge properly retained jurisdiction at the time of sentencing in accordance with Section 947.-16(3), Florida Statutes (1979) and Hayes v. State, 400 So.2d 519 (Fla. 3d DCA 1981). See Robinson v. State, 407 So.2d 1038 (Fla. 1st DCA 1981).

Conviction affirmed. Sentence remanded to the trial court for proceedings consistent with this opinion.

SCHWARTZ, Judge

(dissenting in part).

In my view the trial court erroneously both refused to excuse a prospective juror for cause and permitted the admission of evidence concerning Johnson’s allegedly bad and violent character during the state’s rebuttal although the matter had not been fairly placed in issue by the defense. Hence, I would reverse for a new trial on the authority of Leon v. State, 396 So.2d 203 (Fla. 3d DCA 1981), rev. denied, 407 So.2d 1106 (Fla.1981), as to the first point, and Bates v. State, 422 So.2d 1033 (Fla. 3d DCA 1982), as to the second.

I do not disagree with the court’s treatment of the sentencing question.

      . Section 947.16(3), Florida Statutes (1979):
      [I]n any case of a person convicted of (certain felonies) ..., at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order.... [emphasis supplied]

      . Where a final conclusive judgment and sentence has been pronounced, the court may not recall the case and enhance the sentence .... Section 947.16(3) gives a trial court veto power over parole and thus has the effect of enhancement of a sentence.... After defendant had been sentenced the trial court was without jurisdiction to retain jurisdiction for the purpose of reviewing a parole commission release order.
      400 So.2d at 521.


text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Felicidad MORALES and Edgard Morales, her husband and State Farm Insurance Company, Appellees.
    No. 81-1861.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Richard E. Hardwick, Coral Gables, Daniels & Hicks and Elizabeth K. Clarke and Patrice Talisman, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for appel-lees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The summary final declaratory judgment as to uninsured motorist coverage and directing arbitration here under review, in favor of an injured passenger against her husband’s UM carrier, is reversed under the decision and reasoning found in Behrmann v. Industrial Fire & Casualty Insurance Company, 374 So.2d 568 (Fla. 3d DCA 1979) with directions to the trial court to proceed with a determination as to the responsibility and rights of the respective parties. Travelers Insurance Company v. Wilson, 371 So.2d 145 (Fla. 3d DCA 1979).

Reversed and remanded with directions.

      . The husband was not involved in the accident in question.


author: FERGUSON, Judge.

text:
    PENINSULAR SUPPLY COMPANY, Appellant, v. C.B. DAY REALTY OF FLORIDA, INC., and The Haskell Company, Appellees.
    No. 81-1973.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.

      Smith & Hulsey and Douglas P. McClurg, Jacksonville, Stephen B. Rakusin, Gaines-ville, for appellant.
    Rogers, Towers, Bailey, Jones & Gay and G. Kenneth Norrie, Jacksonville, for appel-lees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

We reverse the order of the trial court dismissing appellant’s complaint seeking to impress an equitable lien against undis-bursed construction funds.

Appellant, Peninsular Supply Company, is a materialman not in privity with the owner. The owner C.B. Day entered into a contract with a general contractor HAS-KELL to construct a motel in Dade County, Florida. HASKELL subcontracted with BUTLER for plumbing materials and supplies. BUTLER entered into an arrangement with PENINSULAR whereby the latter would furnish supplies on an open account. BUTLER defaulted on its contract to pay PENINSULAR, owing PENINSULAR some $60,000 for materials furnished to the construction project. PENINSULAR’S Notice to Owner, a prerequisite to perfecting a lien under the Mechanics’ Lien Statute, Florida Statutes, Chapter 713 (1979), was invalid because it was not filed within 45 days from the first furnishing of materials. § 713.06, Fla.Stat. (1979). The trial court dismissed the complaint to impress an equitable lien upon the undis-bursed construction funds for the stated reason that there was no perfected statutory lien.

Section 713.06 painstakingly limits its application to perfection of a statutory lien and section 713.30 provides that the remedies provided by that section shall not be an exclusive remedy. We therefore cannot accept appellees’ argument that because appellant failed to perfect a statutory lien he is without any remedy, particularly an equitable lien, to recover for materials which were furnished for the construction project and for which he has never been paid. To the contrary, the doctrine of equitable liens came into existence to remedy those situations where, as here, there is either an absence of an available lien or no adequate remedy at law. Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925); In re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). A lien claimant not in privity, who files an untimely notice to the owner, though without a statutory remedy, is entitled to participate with lienors of equal priority out of any funds remaining in the hands of the owner at the time of the filing of the notice, provided the funds are not consumed by other claimants having greater priority. Royal v. Clemons, 394 So.2d 155, 159 (Fla. 4th DCA 1981).

We also disagree that the 1977 Amendments (Ch. 77-353, Laws of Florida) to Chapter 713, Florida Statutes, entitled “AN ACT relating to mechanics’ liens; ...” implicitly abrogated the right to an equitable lien. Abrogations by implication are not favored. Tamiami Trail Tours, Inc. v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947). Unless a statute clearly and explicitly states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law by implication. Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182 (1912); State v. Michell, 188 So.2d 684 (Fla. 4th DCA 1966); Reeves v. Eckles, 77 Ill.App.2d 408, 222 N.E.2d 530 (1966). The equitable lien doctrine is firmly established in Florida. 34 Fla.Jur.2d, Liens § 6 (1982). It arises when declared by a court of equity out of a general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings in the particular case. Jones v. Carpenter, 106 So. at 129; In re Estate of Donner, 364 So.2d at 752. If the legislature had intended that a materialman who failed to give a timely notice to the owner should be without any remedy, specifically an equitable lien, it would have said so explicitly, in light of the number of cases which had previously construed the statute. When the legislature reenacts a statute, it is presumed to know and adopt the construction placed thereon by courts or administrators, except to the extent to which the new enactment differs from prior constructions. See National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 64 L.Ed. 496 (1920); State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1974). The 1977 Revision made clear that a claimant not in privity with the owner who did not perfect lien rights by giving proper notice was completely without a remedy under the mechanics’ lien statute, rejecting Crane Co. v. Fine, 221 So.2d 145 (Fla.1969) (which held plaintiff could perfect both an equitable and statutory lien, though statutory prerequisites had not been met), only insofar as the case allowed a secondary type of statutory mechanics’ lien for a claimant who filed a notice after the time for filing had expired. [e.s.].

Appellees, as owner and general contractor, have no right to title or interest in any funds remaining except as security for the payment of materialmen, servicemen, or laborers who, like appellant, remain unpaid by reason of a breach of contract by a subcontractor, and the court will not permit retention by the owner or general contractor of funds which in equity and good conscience belong to an unpaid supplier. Crane Co. v. Fine, 221 So.2d at 149. The purpose of the Mechanics’ Lien Law is to prevent an owner from being obligated to pay for an improvement more than once. Morgan v. Goodwin, 355 So.2d 217, 218 (Fla. 1st DCA 1978); W.W. Gay Mechanical Contractors, Inc. v. B.J. Case, 275 So.2d 570 (Fla. 1st DCA 1973). It was not intended, nor shall we interpret it to permit an unjust enrichment.

The complaint alleges that plaintiff furnished materials and supplies which were incorporated into appellees’ construction project; that there was a default by a subcontractor of an agreement to pay for the materials and supplies; that the statutory notice was not filed timely which may preclude an action on a mechanics’ lien; and that there are undisbursed construction funds held by appellees, payable to the subcontractor, sufficient to pay the subcontractor’s debt to appellant. It is asserted here on appeal, without contradiction, that the subcontractor is insolvent. Although the issue was not considered by the trial court, from this record it appears that appellant has, or at least can, sufficiently plead a claim based on an equitable lien theory.

Reversed and remanded for further proceedings.

      . Butler, the plumbing subcontractor, now insolvent, is not a party to this appeal.

      . The order granting appellees’ motion to dismiss states, inter alia:
      The position of C.B. Day and Haskell on the effect of Section 713.06(2)(a), Florida Statutes (1977), on this action has been summarized by them as follows:
      The 1977 Amendments To The Florida Mechanics Lien Law, And Particularly The Amendment To Section 713.06 Thereof, Which Amendments Took Effect July 1, 1978, Categorically Rejected The Holding In Crane Co. v. Fine, 221 So.2d 145 (Fla. 1969) And Extinguished Any Right To A Lien, Either Statutory Or Equitable, On Undisbursed Construction Funds By A Materialman Who Shall Have Failed To Comply With The Florida Mechanics Lien Law Through Failure To File A Timely Notice To Owner.
      The Court agrees and finds on that basis that the plaintiff has not and cannot state a cause of action against C.B. Day or Haskell for an equitable lien. The Court having so found, and finding that it is therefore unnecessary to reach the other grounds asserted in the motion to dismiss of C.B. Day and Haskell, it is hereby:
      ORDERED:
      The Motion to dismiss of defendants C.B. Day and Haskell is granted and this action is dismissed with prejudice as to those defendants only.

      . § 713.06(2)(a), Fla.Stat. (1979) provides:
      All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter, shall be required to serve a notice on the owner setting forth the lien- or’s name and address, a description sufficient for identification of the real property ... A subcontractor or a materialman to a subcontractor shall serve a copy of the Notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a lien. A materialman to a subcontractor shall also serve a copy of the notice to owner on the subcontractor of the subcontractor as a prerequisite to perfecting a lien under this chapter and recording of lien, (emphasis supplied).

      . § 713.30, Fla.Stat. (1979) provides:
      This part I shall be cumulative to other existing remedies....

      . Appellees cite two cases as supportive of their argument. In Pilot Electrical Construction Company, Inc. v. Waters, 384 So.2d 61 (Fla. 1st DCA 1980) plaintiffs who had not filed proper notice sought mechanics’ liens. The court properly construed the revised statute to reject the secondary type of statutory lien for late filers which had been recognized in Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). In Sarasota Commercial Refrigeration and Air Conditioning, Inc. v. Schooley, 381 So.2d 1141 (Fla. 2d DCA 1980) the claim was also based on a statutory lien. The trial court’s dismissal of the complaint without leave to amend because of a failure to file a timely notice was reversed because the trial court should have applied the older statute which Crane construed, and not the 1977 revised statute. Though the court was not called upon to construe the 1977 statute, the opinion contains a gratuitous sentence that “Under the new statute, however, failure to file a timely notice to owner does bar all recovery”, id. at 1144 with no discussion. Even though the statement is obiter dictum, and so is without force, State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973), the result reached herein may still present an interdistrict conflict. Sweet v. Josephson, 173 So.2d 444 (Fla.1965) citing to Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960). Because no reason is given in support of the conclusion we will not consider the case as persuasive.


text:
    Luis CALVO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2648.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Webb, 398 So.2d 820 (Fla.1981); Russell v. State, 415 So.2d 797 (Fla. 3d DCA 1982); State v. Brown, 395 So.2d 1202 (Fla. 3d DCA), petition for review denied, 407 So.2d 1102 (Fla.1981).


text:
    Jerome KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 82-85.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.

      Bennett H. Brummer, Public Defender and James H. Greason, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. A.McD. v. State, 422 So.2d 336 (Fla. 3d DCA 1982); see Washington v. State, 419 So.2d 1100 (Fla. 3d DCA 1982).


author: NESBITT, Judge.

text:
    Nancy R. BROUDY, Appellant, v. Donald H. BROUDY, Appellee.
    No. 82-182.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.

      Fromberg, Fromberg, Roth, Gross, Cohen, Shore & Berke, and Jeffrey Michael Cohen, Coral Gables, for appellant.
    Milledge & Hermelee and Alan Rosenthal and Allan Milledge, Miami, for appellee.
    Before BARKDULL, SCHWARTZ, and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal and cross-appeal from a final judgment entered upon petition and cross-petition for modification. The husband’s petition for modification requested termination of alimony payments on the allegation that the wife had become self-supporting. The wife’s cross-petition requested: (1) an increase in alimony payments; (2) arrearages due to nonpayment of cost-of-living increases; (3) arrearages in child support; and (4) attorney’s fees. The matter was referred to a general master for the taking of testimony. The husband filed exceptions to the master’s findings. Each of the master’s findings was overturned by the circuit judge.

A threshold issue is whether the agreement incorporated into the parties’ 1974 judgment of dissolution was modifiable, pursuant to Section 61.14, Florida Statutes (1973), or whether it constituted a true property settlement agreement within the contemplation of Salomon v. Salomon, 196 So.2d 111 (Fla.1967). The master found that the agreement was a true property settlement agreement and thus was non-modifiable. The trial court sustained the husband’s exception to this finding.

We recognize that a master’s findings must be approved by the referring chancellor unless clearly erroneous or unless the master has misconceived the legal effect of the evidence. Harmon v. Harmon, 40 So.2d 209 (Fla.1949); Shaw v. Shaw, 369 So.2d 81 (Pla. 3d DCA 1979). However, because the pleadings in this case necessarily assumed that the agreement was open to modification, neither party presented the master with any testimony on the issue of modification. In this posture, the trial judge was in as favorable a position as the master to construe the written agreement.

A perusal of the agreement substantiates the trial court’s determination of its legal effect. In pertinent provisions, it recognizes that the alimony payments contemplated were fair and reasonable under the circumstances at the time of execution and that the wife waived attorney’s fees except in proceedings in which she might seek modification. Therefore, the trial court’s construction of the agreement as being modifiable is in conformity with Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA), cert. denied, 376 So.2d 71 (Fla.1979) and Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978). Moreover, we will not permit the wife to take a position inconsistent with that assumed by her in her cross-petition for modification. See Hodkin v. Perry, 88 So.2d 139 (Fla.1956); Lyle v. Hunter, 102 Fla. 972, 136 So. 633 (1931); United Contractors, Inc. v. United Construction Corp., 187 So.2d 695 (Fla. 2d DCA 1966).

Since the agreement is modifiable, pursuant to Section 61.14, we next consider the husband’s contention that alimony should be terminated as against the wife’s claim that it should be increased. Because the master misinterpreted the contract as being nonmodifiable, he recommended that the alimony payments not be terminated. Upon examination of the evidence presented, the trial court correctly determined that the payments should cease, but wrongly decreed that termination was effective as of the date of the final hearing.

The evidence showed that due mainly to the inheritance of some rental property and a newly-obtained job, the wife’s income rose from zero at the time of the final judgment of dissolution to over $40,000 a year at the time the husband filed his petition for modification. Within the same time span, the value of the wife’s assets increased from approximately $100,000 to over $300,000. During the course of the modification proceedings, the wife’s annual income again rose sharply, and her assets increased by $500,000 as a result of the sale of her interest in a shoe company.

The trial court’s decision that payments were terminable on the date of the final hearing was apparently influenced by the more recent contributions to the wife’s financial well-being. It is clear, however, that the $40,000 annual income and $300,000 in fixed assets rendered the wife self-supporting previous to the filing of the husband’s petition for modification. We therefore agree with the point upon the husband’s cross-appeal that although the matter is discretionary with the trial court, Brisco v. Brisco, supra; Simon v. Simon, 155 So.2d 849 (Fla. 3d DCA 1963), the court in this case abused its discretion by not terminating the husband’s alimony obligations as of the date he filed his petition for modification.

We turn now to the wife’s claims for arrearages in alimony and child support payments. The basis for seeking alimony arrearages was the husband’s refusal to pay the cost-of-living increases required by the agreement. Under the evidence presented, the master recommended that the husband be required to pay these arrearages, thereby rejecting the husband’s asserted defense of waiver. Without taking additional testimony, the trial court overturned this finding and ruled that the wife had waived the cost-of-living arrearages.

The testimony on this issue was clear-cut. The husband stated that he never paid the cost-of-living adjustments because he was not ordered to do so. The wife testified that she had not attempted to enforce the adjustment provision because of an attorney’s advice that efforts at obtaining the arrearage might precipitate the husband’s petition to terminate alimony. Neither position indicated that the wife’s inaction constituted the intentional relinquishment of a known right, without which there can be no waiver. See Opler v. Wynne, 402 So.2d 1309 (Fla. 3d DCA 1981), pet for review denied, 412 So.2d 472 (Fla.1982). Mere delay is insufficient to support a defense of waiver, Mercede v. Mercede Park Italian Restaurant, Inc., 392 So.2d 997 (Fla. 4th DCA 1981), and the evidence adduced showed nothing more than mere delay. Consequently, the trial court erred in denying the cost-of-living increases to the wife. Since we have already determined that alimony was terminable on the date the husband’s petition for modification was filed, the husband is required to pay only the cost-of-living arrearages that accumulated previous to that date.

The wife’s claim for child support arrearages was based upon an agreement provision obligating the husband to support the couple’s three children until they attained the age of twenty-one. The husband fulfilled his support obligations while all three children remained under the wife’s roof. In the summer of 1976, however, the couple’s daughter entered college. The parties orally agreed that the husband would have complete financial responsibility for the daughter’s college tuition, board, lodging, and other expenses and would accordingly reduce his child support payments to the wife by one-third. The daughter’s stay at college proved short-lived. She moved back with her mother in March of 1977. Except for a brief period when the daughter lived with a boyfriend, she then remained with her mother until reaching the age of twenty-one on July 12, 1979.

The master found that the wife was entitled to arrearages for the daughter’s support from the date the daughter moved back into the house after her stay at college, until July 12, 1979. This was exactly what the wife had claimed in her cross-petition. The husband excepted to the master’s finding and the trial court ruled that there was no evidence to. support a claim for any child support arrearages. Neither the master nor the circuit judge was entirely correct. When the daughter returned to her mother’s care and custody after attending college, the husband’s child support obligation resumed. However, this obligation did not include providing for the daughter when she was living with her boyfriend because during that time she was not dependent on either her mother or her father for support. See Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). For the remaining periods of time, the arrearages are due and owing.

The final dispute is with respect to attorney’s fees. The master recommended that the wife be allowed a substantial portion of her attorney’s fees. This recommendation was obviously predicated upon the master’s view that the agreement was nonmodifiable and upon his other findings. The trial court sustained the husband’s exception to the award of the wife’s attorney’s fees.

Section 61.16, Florida Statutes (1979), provides the statutory authority for the award of attorney’s fees in proceedings to enforce or modify a dissolution judgment. The general rule is that the purpose in awarding these fees is to ensure that both parties have similar ability to secure competent legal counsel. Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981). See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Cummings v. Cummings, 330 So.2d 134 (Fla.1976). The record demonstrates that the wife had sufficient means to obtain able counsel of her own choosing. Nonetheless, the general rule, operating as it does within courts of equity, must be flexible enough to permit consideration of other relevant factors. Cf. Creel v. Creel, 423 So.2d 419 (Fla. 3d DCA 1982) (relative financial positions of parties as well as the husband’s substantially nonmeri-torious petition for reduction in child support entitled wife to attorney’s fees); Patterson v. Patterson, supra, (when it is necessary for one spouse to seek enforcement of a final judgment because of wilful refusal of the other spouse to comply with its terms, the trial court may take into account the disregard of the court’s order in considering a motion to assess attorney’s fees) (citing Spencer v. Spencer, 305 So.2d 256 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 470 (Fla.1975)); Jaffee v. Jaffee, 394 So.2d 443, 447 (Fla. 3d DCA 1980) (totally merit-less attempt to reduce or eliminate alimony made the husband liable for all instead of half of attorney’s fees expended in defending against his motion). In the present case, we hold that the husband’s refractory attitude concerning his obligations to pay alimony increases and to resume child support payments justified awarding the wife the attorney’s fees incurred in seeking enforcement of these obligations. The trial court erred in rejecting the master’s report insofar as it recommended awarding these fees.

By way of recapitulation, we observe that the property settlement agreement in this case was modifiable, pursuant to Section 61.14, Florida Statutes (1973); that the evidence clearly warranted the termination of alimony payments retroactive to the date of filing of the husband’s petition for modification; that alimony arrearages accumulating prior to that date as a result of the husband’s failure to pay cost-of-living increases are due to the wife; that the wife is to be awarded child support arrearages for the intervals of time that her daughter lived at home after her return from college; and that the wife is to receive attorney’s fees as indicated above.

For the foregoing reasons, the judgment appealed from is affirmed in part and reversed in part on the wife’s appeal and reversed on the husband’s cross-appeal. The case is remanded to the trial court to calculate the arrearages and to fix and determine partial attorney’s fees in conformity with this decision.