author: HERSEY, Judge.

text:
    Patricia GATES, Appellant, v. CHRYSLER CORPORATION, a Foreign Corporation, and Frank Green Chrysler-Plymouth-Dodge, Inc., a Florida Corporation, Appellees.
    No. 78-2551.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.

      Rod Tennyson of Ombres, Powell, Tennyson & St. John, P. A., West Palm Beach, for appellant.
    Edna L. Caruso, West Palm Beach, and Montgomery, Lytal, Reiter, Denney & Sear-cy, P. A., West Palm Beach, for appellee, Chrysler Corp.
   HERSEY, Judge.

This is an appeal from a final judgment rendered in favor of appellant as to one count of her complaint and in favor of appellee on two additional counts.

Appellant’s difficulties began with the purchase of a Plymouth Volare automobile from Frank Green Chrysler-Plymouth-Dodge, Inc. in 1977. Very shortly thereafter she began experiencing various problems with the automobile involving mechanical malfunctions, electrical failures and fuel distribution system irregularities. In addition, there were problems of body integrity including rust and faulty handles.

On numerous occasions between March and December of 1977 work had to be done on the automobile by a Chrysler dealership. Finally, in December, appellant met with a representative óf appellee, Chrysler, and because of the continuing problems she requested a refund of her purchase price. Settlement negotiations failed.

Appellant filed suit, seeking, in Count I, damages and rescission against the selling dealership, in Count II damages and attorneys’ fees against Chrysler for violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 and in Count III. treble damages and attorneys fees against Chrysler pursuant to Sections 320.64, 320.696, and 320.697, Florida Statutes (1979).

The trial court directed verdicts in favor of Chrysler on Counts II and III. The jury brought in a verdict for damages against the selling dealership in the amount of $1,200. Appeal is taken from that part of the final judgment directing verdicts against appellant.

We note first that no appeal is taken from the award of damages. In fact, the record discloses that appellant has been paid and that the judgment has been satisfied. As to Count I, then, the issues have been put to rest.

Analyzing the allegations of Count II of the complaint in light of the material and relevant evidence, we conclude that three violations are relied upon to invoke the penalties of the Magnuson-Moss Warranty Act.

Appellant first urges that Chrysler was required to but did not express in writing any restrictions, disclaimers or modifications which Chrysler sought to engraft onto implied warranties arising out of the manufacture and sale of the automobile in question. Neither appellants’ briefs nor the record contain any indication that Chrysler attempted at any time to restrict, modify, or disclaim any implied warranties. That being so, there was no requirement of written notice and no violation.

Second, appellant points out that Chrysler failed to make certain required disclosures on the face of its warranty. We find only one such omission applicable to the facts contained in this record. The statement which is required but which was omitted reads:

This warranty gives you special legal rights, and you may also have other rights which vary from state to state.

Appellee questions whether the rule imposing this requirement applies in this case because of the date of its enactment. 40 Fed.Reg. 60, 188 (1975). Whether or not it applies need not detain us long because the violation was at most a technical one and contributed not at all to appellant’s damages. The relief which she sought and re-eeived was afforded by state law; obviously, she was not misled to her detriment by Chrysler’s failure to advise her of that law’s possible existence at the time of the sale.

We come, then, to the third possibility which is the crux of Count II. Appellant contends, and we think correctly, that a cause of action exists under Magnuson-Moss where there has been a breach of warranty which has not been remedied although the warrantor has been given a reasonable opportunity to cure the breach. Section 2304(a)(1), Magnuson-Moss Warranty Act.

It is undisputed that there was sufficient evidence to go to the jury on the question of rescission under Count I (even though rescission was in fact not the remedy eventually applied). Clearly, more elements are required to be proved for rescission than to sustain a finding of breach of warranty. Pinellas Central Bank & Trust Co. v. International Aerodyne, Inc., 233 So.2d 872 (Fla. 3d DCA 1970). Thus, there was more than slight evidence of a breach of warranty. Where there is any evidence on which a jury can find for the plaintiff, then a defendant’s motion for directed verdict should be denied. Hillsborough Grocery Co. v. Leman, 51 Fla. 203, 40 So. 680 (1906). A motion for directed verdict should be granted only when the court, after viewing the evidence and testimony in the light most favorable to the nonmoving party, concludes that the jury could not reasonably differ as to the existence of a material fact or inference and that the movant is entitled to judgment as a matter of law. Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973). Unless the evidence is such that under no view could a jury find in favor of the non-moving party, a verdict should not be directed. Atlantic Coast Line Railroad Co. v. Burquest, 101 So.2d 828 (Fla. 2d DCA 1958). We have applied these principles in a warranty case. See, e. g., Zabner v. Howard Johnson’s, Inc., 201 So.2d 824 (Fla. 4th DCA 1967). We apply them again here, and reverse for a new trial on Count II.

Next we turn our attention to the directed verdict on Count III. We assume for purposes of this discussion that at all pertinent times the remedies afforded by Section 320.697, Florida Statutes, were available to “any person suffering pecuniary loss because of a violation ...” of the applicable statutory sections.

Appellant alleges that Chrysler violated the statute, giving rise to treble damages and attorneys’ fees, in two ways.

The first violation arises as a result of Chrysler’s failure to comply with the requirements of the Magnuson-Moss Warranty Act, thus constituting an illegal act, which invokes the statutory remedy. The second violation is occasioned by the fact that Chrysler and its agent were unable to remedy the defects in the automobile so that representations that the automobile-was well constructed and reliable were false, deceptive and misleading.

The trial court obviously determined that there was no violation of the Magnu-son-Moss Warranty Act since it directed verdicts on both Counts II and III. As previously discussed, though, there was evidence of violation of the Act. The question, then, is whether this violation constituted an illegal act as contemplated by Section 320.64(4), Florida Statutes (1979). We view an illegal act as being one subject to criminal penalties. Violation of the Magnuson-Moss Warranty Act does not result in criminal penalties; rather the Act provides civil remedies. Thus, on this specific issue the directed verdict was not error.

However, in directing the verdict on Count III, the trial court also necessarily concluded that Chrysler’s representation as to construction and reliability of the automobile were, as a matter of law, not false, deceptive or misleading or that if they were, plaintiff failed to demonstrate that she relied in any way on those representations.

Chrysler’s brochure states:

For the first 12 months of use, any Chrysler Motors Corporation dealer will fix, without charge for parts or labor, any part of our 1976 passenger cars we supply (except tires) which proves defective in normal use, regardless of mileage.

There was evidence that plaintiff looked at a brochure containing these representations prior to purchasing the automobile in question.

The statements in the brochure when considered along with Chrysler’s inability to remedy the defects in plaintiff’s automobile could be determined to be, at the very least, misleading. Such a determination, though, is in the province of the jury as is the question of whether plaintiff, in buying her automobile, relied upon the representations.

Accordingly, the trial court erred in directing a verdict on the issue of Chrysler’s representations in Count III.

It has previously been noted that appellant obtained a jury verdict for her damages which has been satisfied. Where one sues both a retailer and a manufacturer for identical damages under the same theory of recovery, a judgment against one precludes a similar judgment against the other. Billman v. Nova Products, Inc., 328 So.2d 244 (Fla. 1st DCA 1976) and Escambia Chemical Corporation v. Industrial-Marine Supply Co., 238 So.2d 684 (Fla. 1st DCA 1970). Since the directed verdict was entered prior to the jury verdict the trial court has not yet had an opportunity to consider and rule on the applicability of that principle to the facts of this case. Our instruction remanding this cause for a new trial is not to be interpreted as preempting the trial court from making such finding as may be appropriate on this issue whether or not such finding obviates the necessity for a new trial. Nor should our conclusion that some evidence is contained in the record of a violation of the Magnuson-Moss Warranty Act be construed as an attempt by us to invade the province of the trial court in whose sole discretion lies the question of attorneys’ fees in these cases. 15 U.S.C. § 2310(d)(2). We have absolutely no preconceived notions as to the appropriateness or inappropriateness of an award of attorneys’ fees in this case.

We have carefully considered each of the additional points raised by the briefs and have determined as to each of them either that resolution of the issue is unnecessary to the result we have reached, or that the point is without merit. For the reasons we have previously stated we affirm the final judgment and disposition of post-trial motions with the exception that we reverse the directed verdict on Counts II and III and remand for such further proceedings, including trial if warranted, as may be appropriate to afford appellant her day in court on the allegations and theory of her complaint.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LETTS, C. J., and GLICKSTEIN, J., concur.


source: Caselaw Access Project

author: PER CURIAM. MOORE, Judge,

license: Public Domain

text:
    John B. GREEN, Appellant, v. JOHNNIE LEE JAMES NURSERY and United States Fidelity and Guaranty Company, Appellees.
    No. 79-1253.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Robert H. Aschbeim of Druss & Asch-heim, Fort Lauderdale, for appellant.
    James W. Dawson of Fazio, Dawson, Steinberg & DiSalvo, Fort Lauderdale, for appellees.
   PER CURIAM.

The summary final judgment is hereby reversed on the authority of Roach v. Raubar, 362 So.2d 84 (Fla.3d DCA 1978) and Edwards v. Kings Point Housing Corp., 351 So.2d 1073 (Fla. 4th DCA 1977).

ANSTEAD and HERSEY, JJ., concur.

MOORE, J., concurs with opinion.

MOORE, Judge,

specially concurring.

I feel bound to concur with the majority because of our holding in Phillips v. Hartford Cas. Ins. Co., 373 So.2d 415 (Fla. 4th DCA 1979); however, if I were not so bound, I would affirm in accordance with Judge Letts’ dissenting opinion in Phillips with which I agree.


author: PER CURIAM.

text:
    Archie Lee THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 80-625.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED, provided the condition of probation requiring that defendant live honorably is stricken. See Norris v. State, 383 So.2d 691 (Fla.4th DCA 1980).

BERANEK and HERSEY, JJ., and WARREN, LAMAR, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    WORLD JET-AIRCRAFT INDUSTRIES, INC., a Florida Corporation, Appellant, v. ALLRED INTERNATIONAL LTD., a Colorado Corporation, Appellee.
    No. 80-1570.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Rehearing Denied May 26, 1981.
    Warner B. Miller and Ronald P. Gossett of Hodges, Gossett & McDonald, P.A., Hollywood, for appellant.
    Richard Katz of William J. Goldworn & Associates, Coral Gables, for appellee.
   DOWNEY, Judge.

Allred International sued World Jet-Aircraft Industries, Inc., and two other defendants (1) to recover a security deposit and (2) for damages resulting from fraud and deceit. The trial court entered a summary judgment in favor of Allred and against World Jet-Aircraft on Count I of the complaint and a partial summary judgment on liability against World Jet on Count II. From those summary judgments World Jet has perfected this appeal.

We find no error demonstrated in the summary judgment on Count I. Allred furnished a refundable security deposit of $50,000 pending its inspection and determination to buy a 727 jet aircraft. If Allred bought the 727 the refundable deposit was to be carried over and applied to a Bachman 111 aircraft. Allred bought neither aircraft, but World Jet refused to return the deposit. Like the trial court, we hold the contract is unambiguous and there is no genuine issue of material fact involved; Allred is entitled to a return of the deposit.

On the other hand, Count II alleges World Jet represented that: it would hold, subject to inspection, the 727 aircraft upon receipt of a $50,000 refundable security deposit; the 727 would be removed from the market for thirty days; World Jet agreed it would authorize a transfer of the refundable security deposit to a Bachman 111 aircraft; all of those representations were false at the time they were made and World Jet knew they were false when made; they were made with intent to deceive Allred and induce it to enter into 'the contract; and Allred relied on the representation to its detriment. While the parties are not in agreement as to the actual fraudulent acts charged, it appears to us that whatever they may be, the facts are still in controversy and that Count II is not ripe for summary determination.

Accordingly, the judgment appealed from is affirmed as to Count I and reversed as to Count II.

AFFIRMED IN PART; REVERSED IN PART, and remanded.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    In re the ESTATE of John A. SKINNER, Deceased.
    No. 80-1856.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Donald G. Procter, Jr., Pompano Beach, for appellants — Robert M. Skinner and Diane C. Skinner.
    Ronald G. Englert of Peschio, Rockwood, Edelstein & Duffy, Pompano Beach, for ap-pellees — Robert Myers, Mabel Culbertson, Violet Meier, Thomas Myers, Richard Myers, John Myers, Glenn Myers, Benjamin Myers and Hazel Pollit.
   DOWNEY, Judge.

John A. Skinner died leaving a last will and testament which devised his entire estate to his wife, Hazel L. Skinner, if she survived him. If Hazel did not survive John, the will provided that the entire estate would pass to “my beloved foster son, Martin R. Skinner, who was reared by my wife and myself as our own child.” Both Hazel and Martin predeceased John. However, Martin was survived by a wife and two children, Robert and Diane. From an order on a motion to determine heirs and beneficiaries which found that John’s estate passes to John’s nephews and nieces, children of his deceased sister, Robert and Diane have perfected this appeal.

The appellants contend the trial court erred in the order determining heirs and beneficiaries because: a) the provisions of Section 732.611, Florida Statutes (1979), supersede Section 732.603, the anti-lapse statute; b) the finding is contrary to the intent of the testator; c) the rule concerning an incompleted adoption set out in Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417 (1943), should be applied in this case; and d) the court made certain erroneous evidentiary rulings.

Appellees maintain that, since Martin predeceased John and was not a grandparent or a descendant of a grandparent of John, the devise to Martin lapses, since no intention to substitute another in Martin’s place appears in the will.

The trial judge agreed with appellees and found the devise to Martin lapsed. We believe that decision to be correct.

Appellants pose several points for our consideration, none of which indicates the trial judge misconstrued the applicable law. However, we will briefly discuss the first point. Therein appellants argue that Section 732.611, Florida Statutes (1979), which provides “[u]nless the will provides otherwise, all devises shall be per stirpes”, supersedes Section 732.603, the effect of which is that a devise to one who predeceases a testator and who is not a grandparent or descendant of a grandparent of the testator lapses unless the will reflects an intention to substitute another in the place of the named devisee. Therefore, appellants contend, instead of the devise lapsing and the estate devolving upon John’s nephews and nieces, the estate passes under the per stirpes statute (732.611) to Martin’s children, Robert and Diane.

At common law, if a devisee predeceased a testator, the devise lapsed. See Sorrells v. McNally, 89 Fla. 457, 105 So. 106 (1925). In order to more nearly accomplish what was perceived to be the intention of the average testator the Legislature enacted the anti-lapse statute. Thus, to preclude the lapse of a devise to blood relatives, the Legislature provided that if the devise was to a grandparent or lineal descendant of a grandparent, the devise would not lapse. Section 732.603 substantially maintained the statutory law as it existed prior to its enactment relative to a devise to one not within the specified degree of blood relationship.

Section 732.611, first enacted in 1974 as Section 732.610, had the effect of codifying the law as it existed by legislatively recognizing the common law rule that the intention of the testator controls the manner of disposition to beneficiaries, per capita or per stirpes. However, if that intention cannot be gleaned from the instrument or surrounding circumstances, then a per stirpes distribution is favored. 18 Fla.Jur.2d, Decedent’s Property § 409. Appellants contend that codifying Section 732.611 has some superseding effect upon the anti-lapse statute, but we disagree. In fact, in the context of the controversy between the appellants and the appellees the manner of distribution of a devise, per capita or per stirpes, is not relevant. If Martin had been a lineal descendant of one of John’s grandparents, appellants would have divided the estate equally. A per stripes distribution would only have come into play if Martin had been a lineal descendant of one of John’s grandparents and one of appellants predeceased Martin and left living children. The estate would then pass per stirpes, one half of Martin’s surviving child and one half to the living children of Martin’s deceased child. Appellants also maintain that, if the foregoing is correct, there was no reason to enact Section 732.611. We would answer that by pointing out that Section 732.611 applies to all devises while Section 732.603 relates only to those gifts in which the devisee has predeceased the testator.

Finding no error in the judgment appealed, we affirm it.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    John R. KENNEY, Appellant, v. Roy G. KUNNEMAN, etc., et al., Appellees.
    No. 80-1689.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Shepard P. Lesser of Lesser, Lesser & Daniels, P. A., West Palm Beach, for appellant.
    Ronald Sales, West Palm Beach, for ap-pellees.
   PER CURIAM.

We conclude that only one of appellant’s points on appeal has merit. We therefore affirm the order of the trial court with the limited exception that appellant be permitted to amend his complaint to attempt to state a cause of action for wages and benefits, if any, accrued and unpaid at the time of termination of his employment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BERANEK and HERSEY, JJ., and WARREN, LAMAR (Associate Judge), concur.


text:
    Herschel McKINZIE, Jr., a minor by and through his parents and next friends, Herschel McKinzie, Sr. and Marilyn McKinzie and Herschel McKinzie, Sr. and Marilyn McKinzie, individually, Appellants, v. HOLLYWOOD, INC., Appellee.
    No. 80-2128.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Rehearing Denied May 27, 1981.
    Stephen G. Fischer of Fox & Fischer, P. A., Miami, for appellants.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee.
   PER CURIAM.

This interlocutory appeal is from an order setting aside a default entered by the clerk after appellant failed to timely respond to appellants’ complaint. The order may not be the subject of an interlocutory appeal. Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979).

Accordingly, we sua sponte dismiss the appeal.

APPEAL DISMISSED.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


author: BOARDMAN, Judge.

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Petitioner, v. Marilyn O’SHEA and the Honorable E. Randolph Bentley, Respondents.
    No. 80-2051.
    District Court of Appeal of Florida, Second District.
    May 6, 1981.
    Bernard H. Dempsey, Jr. and Hal K. Litchford, of Dempsey & Slaughter, P. A., Orlando, for petitioner.
    Jack P. Brandon, Peterson, Myers, Craig, Crews, Brandon & Mann, P. A., Lake Wales, for respondent Marilyn O’Shea.
   BOARDMAN, Judge.

Petitioner seeks a writ of certiorari to review an award of attorney’s fees in the amount of $14,500.00 to counsel for respondent/defendant Marilyn O’Shea in an action arising from the alleged embezzlement of over 3.6 million dollars by the recently deceased Michael K. O’Shea. Petitioner/plaintiff asserts that there is no authority to support the trial court’s order, which effectively compels the receivership estate to underwrite a defendant’s defense in this litigation. We agree, grant the writ and quash the order of the trial court.

Michael K. O’Shea was the accounting manager of General Foods Corporation throughout the time period during which the embezzlement occurred. (Since this lawsuit began, O’Shea has died in Florida State Hospital in Chattahoochee.) On February 20, 1980, after discovery of the embezzlement, General Foods commenced a lawsuit seeking to impose a constructive trust and/or equitable lien on the proceeds of the embezzlement. O’Shea and his purported wife, appellee Marilyn O’Shea, and their two minor children were all named defendants. The trial court issued a temporary injunction freezing all assets of Mrs. and Mrs. O’Shea on the date the suit was filed. On December 18, 1980, the Internal Revenue Service filed in the United States District Court a petition for removal of the state court action to the United States District Court. That action is now pending before the United States District Court, Middle District of Florida, Tampa Division.

On February 29,1980, prior to the removal, upon application of General Foods, the trial court appointed a receiver pendente lite to collect and administer the assets of Michael K. O’Shea, Marilyn O’Shea, and their children. This order directed each of them to surrender all assets and to cooperate with the receiver.

Throughout the period of embezzlement, Marilyn O’Shea and the children were dependent solely on Michael K. O’Shea for their support. Mrs. O’Shea was not employed during this period, nor did she bring anything of value into the purported marriage. Consequently, it was necessary to freeze her assets and to impose a receivership over property commonly held in the names of Marilyn O’Shea and the children in order to effect a complete recovery of the proceeds of the embezzlement.

Marilyn O’Shea and the children received a cash living allowance from the receivership of $1,700.00 per month until October 1, 1980 when it was reduced to $700.00 per month. This allowance is in addition to her rent-free occupancy of the family residence, free use of the 1980 Oldsmobile automobile, and other benefits.

Until April 14, 1980, Mrs. O’Shea was represented by Glen Anderson, a Winter Haven attorney. He had agreed to represent her on a contingency basis. On or about April 14, 1980, however, Mrs. O’Shea terminated the services of Mr. Anderson and employed another attorney, Jack P. Brandon. At that time the injunction had been in effect for almost two months and the receiver had been administering the assets for some six weeks. Marilyn O’Shea voluntarily agreed to compensate her new counsel at the rate of $80.00 per hour. She subsequently petitioned the court for reimbursement of her attorney’s fees and sought recompense directly from the receivership estate for expenses incurred in defending herself from the efforts to impose a constructive trust over assets she had enjoyed throughout her husband’s alleged embezzlement.

On September 26, 1980, an evidentiary hearing on the attorney’s fees was held. Mrs. O’Shea attempted to show that her defense of the cause somehow benefited the receivership estate and the adverse parties. She testified that she had “cooperated” with the FBI and the state prosecutor. She also testified that she had cooperated in disclosing the existence of bank accounts and had otherwise cooperated with the receiver and with General Foods. Finally, she admitted that she had only located one additional asset during the course of the receivership — a gold watch, which she turned over to the receiver prior to retaining Mr. Brandon. She opined that the watch had a value of $5,000.00 or $8,000.00.

After hearing, the trial court awarded Mrs. O’Shea attorney’s fees, payable to Mr. Brandon’s law firm, in the amount of $14,-500.00, and costs of $792.17. The court stated: “I think there has been some benefit to the receivership from Mrs. O’Shea’s cooperation and her counsel’s cooperation. How much cannot be assessed.”

The trial court’s oral rulings were incorporated into a final, written order which was rendered on October 17, 1980.

Florida courts recognize the rule which permits the award of fees “from a fund or estate which has been benefited by the rendering of legal services.” Estate of Hampton, 341 So.2d 759 (Fla.1976). This doctrine is known as the “common fund rule.” The operation of the rule has primarily been premised upon the following prerequisites:

1. The existence of a fund over which the court has jurisdiction and from which fees can be awarded;
2. The commencement of litigation by one party which is terminated successfully;
3. The existence of a class which received, without otherwise contributing to the lawsuit, substantial benefits as a result of the litigation;
4. The creation, preservation, protection or increase of the fund as a direct and proximate result of the efforts of counsel for that party;
5. A reasonable relationship between the benefit established and the fees incurred.

See Dawson, Lawyers and Involuntary Clients: Attorney’s Fees From Funds, 87 Harv.L.Rev. 1597 (1975).

In the instant case, the trial court awarded costs and fees to Marilyn O’Shea during the pendency of the litigation. The court itself stated: “Liability has not yet been determined in this matter. Who is going to win has not yet been decided by the court.” Under the common fund rule, the party requesting fees is seeking a pro rata contribution from other members of the class benefited by the litigation. Here, if Marilyn O’Shea prevails in some sense, she will receive a distribution from the estate. But there is no provision in the trial court’s order that assures the deduction of a proportion of the amount of the cost of litigation from the benefits Marilyn O’Shea may finally obtain. Without this precaution she would be unjustly enriched by receiving “free legal counsel” from the other parties.

Another prerequisite to the operation of the common fund rule is legal causation between services rendered by the attorney and the benefits conferred on the estate or fund. As we noted in State Department of Citrus v. Griffin, 332 So.2d 54 (Fla. 2d DCA 1976), the right to an award of attorney’s fees under the common fund rule is based on the theory that plaintiff’s successful litigation confers on members of a class a substantial benefit in a fund. In Griffin, the plaintiffs argued that it was their litigation that pressured the Department of Citrus to amend a marketing order, thereby preserving a sixteen million dollar fund. This court reversed the trial court’s award of fees, as the litigation did not benefit the class within the rationale of Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942).

Respondent O’Shea correctly states that Securities & Exchange Commission v. Capital Counsellors, Inc., 512 F.2d 654, 658 (2d Cir. 1975), held that the issue of attorney’s fees in a case such as the one at bar should be entrusted to the discretion of the trial judge. However, the court went on to quote from 2 Tardy, Smith on Receivers § 639, at 1779 (2d ed. 1920), as follows: “Ordinarily the services of an attorney employed by defendant to represent him in receivership proceedings are solely for his benefit and are not to be paid for out of funds brought into court for the benefit of plaintiff and other claimants against the defendant.”

Here, there has not been successful litigation conferring on the members of the plaintiff class substantial benefit in a fund. It has not been shown that Marilyn O’Shea’s present counsel has been in any way responsible for benefits accruing to the receivership. The only evidence that arguably shows a benefit to the receivership is that of Mrs. O’Shea’s cooperation before she retained Mr. Brandon.

As Marilyn O'Shea’s actions have not preserved, protected or increased the common fund, we hold that the trial court departed from the essential requirements of the law in awarding interim costs and fees to Marilyn O’Shea’s attorney. We therefore grant the petition for certiorari and quash the trial court’s order of October 17, 1980, providing for interim costs and attorney’s fees for Mrs. O’Shea’s attorney.

SCHEB, C. J., and CAMPBELL, J., concur.

      . It appears that Mr. O’Shea’s marriage to respondent Marilyn O’Shea may have been a bigamous one and therefore invalid, although respondent was apparently completely unaware of this prior to the investigation of Mr. O’Shea’s embezzlement.


text:
    David Mitchell WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-2233.
    District Court of Appeal of Florida, Second District.
    May 6, 1981.
    Jerry Hill, Public Defender, and Richard N. Staten, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was adjudicated guilty on a charge of sale of heroin and sentenced to five years in prison “with credit for the original 29 days given plus all credit earned since date of sentence imposed on February 13, 1980.”

The judgment and sentence in this case are affirmed. However, the orders are remanded so that the trial judge may specifically set forth the period of credit time to be allowed. § 921.161(1), Fla.Stat. (1977); Xiques v. State, 369 So.2d 1007 (Fla.2d DCA 1979).

SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.


author: THOMPSON, Judge.

text:
    SHIP SHAPE and CNA Insurance Company, Appellants, v. Ellis K. TAYLOR, Appellee.
    No. VV-390.
    District Court of Appeal of Florida, First District.
    May 7, 1981.
    Rehearing Denied June 2, 1981.

      Mark A. Olewinski and Edward H. Hurt of Hurt & Parrish, P. A., Orlando, for appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   THOMPSON, Judge.

While we affirm the Deputy Commissioner’s Order, we note that the successful claimant in this appeal filed a motion for attorney’s fees which did not “state the grounds for which recovery is sought” Fla. R.App. P. 9.400(b). Therefore, we ordered supplemental legal memoranda on the entitlement to such attorney’s fees. We have determined that in the present case, this court has no authority or jurisdiction to award attorney’s fees to be paid by the employer/carrier.

The claimant’s accident occurred after the effective date of the 1979 amendments to § 440.34, Fla.Stat. Prior to those amendments, the authority for appellate awards of attorney’s fees was the following statutory language: “If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct.” § 440.34(3), Fla.Stat. (Supp.1978). This language was deleted entirely by the 1979 amendments to § 440.34, Fla.Stat.

Section 440.34(2), Fla.Stat. (1979), states that “[a] claimant shall be responsible for the payment of his own attorney’s fees.... ” There are three exceptions to this statutory pronouncement, see § 440.-34(2)(a)-(c), Fla.Stat. (1979), and we recognize that if one of those exceptions is applicable at the trial (i. e., hearing) level, and the claimant prevails on such an exception at the appellate level, then this court would be authorized to award appellate attorney’s fees. See § 59.46(1), Fla.Stat. (1979). However, we have determined, and the parties have agreed, that none of these conditions exist herein.

The claimant points out that § 440.34(5), Fla.Stat. (Supp.1980), effective July 1,1980, permits this court to assess appellate attorney’s fees against an employer/carrier. Therefore, the claimant argues that since this statute was in effect during the time of the appellate disposition of this cause, this court may award attorney’s fees herein. As support for his argument, the claimant cites Florida Glass & Mirror Co. v. Economy King Equipment Co., 353 So.2d 596 (Fla. 4th DCA 1977). However, that case is clearly not controlling.

In Florida Glass, the court first noted that § 713.29, Fla.Stat. (1975), authorized the award of attorney’s fees to the prevailing party at the trial level. The court then observed that under § 59.46, Fla.Stat. (1977), “any provision of a statute ... providing for the payment of attorney’s fees to the prevailing party ... shall be construed to include the payment of attorney’s fees to the prevailing party ... on appeal.” Thus, the Florida Glass decision held that “Section 713.29 when construed in the light of Section 59.46 now permits recovery of attorney’s fees by the prevailing party on appeal.” 353 So.2d at 597. After so holding, the court parenthetically stated that since its determination of the appeal took place after the effective date of § 59.46, Fla. Stat., that statute was properly used to award appellate attorney’s fees, because “[t]he law in effect at the time of appellate disposition is to be applied.” 353 So.2d at 597.

Outside of the obvious factual dissimilarities between Florida Glass and the instant case, Florida Glass appears to be inconsistent with the decision in Tuggle v. Government Employees Ins. Co., 220 So.2d 355 (Fla.1969), where the Florida Supreme Court examined a situation almost identical to the one in Florida Glass, yet reached an entirely different result. In Tuggle, the Supreme Court observed that a certain statute authorized the award of attorney’s fees for services at the trial level. In 1967, the statute was amended to allow for attorney’s fees for services at both the appellate and trial levels. In contrast to the decision in Florida Glass, where the court observed that the law in effect at the time of appellate disposition is controlling, the Florida Supreme Court stated that

[w]e do not agree with the contention of petitioners that, in awarding fees the trial court may include services in this case in either the District Court of Appeal or in this court. The 1967 amendment ... was not retroactive and there existed no statutory basis for [an] award of fees for services performed in appellate proceedings instituted prior to its effective date.

220 So.2d at 356 (emphasis supplied).

In light of the supreme court’s decision in Tuggle, it is clear that at least as far as a statutory basis for an award of appellate attorney’s fees is concerned, the critical initial inquiry is whether the appeal was instituted prior to the effective date of the statute — not whether the statute was in effect at the time of the appellate disposition of the cause. In the present case, the appeal was instituted prior to the effective date of § 440.34(5), Fla.Stat. (Supp.1980), and therefore, that statute does not apply to this cause.

Even if this appeal had been instituted after the effective date of § 440.34(5), Fla.Stat. (Supp.1980), the claimant would not be entitled to an award of appellate attorney’s fees payable by the employer/carrier. Section 440.34(5), Fla.Stat. (Supp.1980), would still be inapplicable because of considerations regarding the retroactive application of statutes that are enacted after the date whereby a cause of action accrues. Within the specific context of Workers’ Compensation Law, the supreme court, in Sullivan v. Mayo, 121 So.2d 424, 429 (Fla.1960), has observed that “[i]t is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee.” (emphasis supplied) In the case at bar, the claimant’s injury occurred in August, 1979, and at that time, there was no applicable statute which could have been used to award appellate attorney’s fees, to be paid by the employer/carrier. While § 440.34(5), Fla.Stat. (Supp.1980), now allows for such fees, this provision, which became effective after the claimant’s injury, cannot be used herein. Where a statute affects substantive rights by substantially changing the liability of the employer/carrier from what it was when the injury occurred, such a statute may not be applied retroactively. See Sullivan, 121 So.2d at 428-29. This rule applies to statutes that substantially change the liability of the employer/carrier as to awards of attorney’s fees, see Duff Hotel Co. v. Ficara, 9 So.2d 360 (Fla.1942); Hardware Mut. Cas. Co. v. Carlton, 151 Fla. 238, 9 So.2d 359 (Fla.1942); and § 440.34(5), Fla.Stat. (Supp.1980), is such a statute. This conclusion is fully supported by the supreme court’s decision in Carlton.

In Carlton, the claimant had requested appellate attorney's fees to be paid by the carrier. At the time of the claimant’s injury, Ch. 17481, § 34, 1935 Fla.Laws 1481-82, did not allow for the assessment of attorney’s fees against the employer/carrier. While the claimant’s case was pending, the legislature enacted ch. 20672, § 11, 1941 Fla.Laws 1713, which allowed a reviewing court to assess attorney’s fees against an employer/carrier. The Florida Supreme Court pointed out that the substantive rights of the parties were governed by the law in effect at the time of the claimant’s injury, and thus, the claimant’s request for attorney’s fees was denied. 9 So.2d at 359-60.

Here, just as in Carlton, at the time of the claimant’s injury, there was no basis for an award of attorney’s fees against the employer/carrier. While this situation has been changed with the addition of § 440.-34(5), Fla.Stat. (Supp.1980), this statute, just as in the 1941 statute in Carlton, “substantially changed the liability of the employer and the insurance carrier from what it was when the injury occurred.” 9 So.2d at 359. Therefore, this court could not retroactively apply § 440.34(5) (Supp.1980) to cases where the injuries occurred before the statute’s effective date.

The claimant in this case is not entitled to an award of attorney’s fees to be paid by the employer/carrier. However, we point out that our decision is without prejudice to the claimant’s attorneys’ right to a fee, to be paid by the claimant, for services rendered on appeal, after the Deputy Commissioner has approved the reasonableness of the fee. See § 440.34(1) and (2), Fla.Stat. (1979).

SHIVERS and SHAW, JJ., concur.

      This law, which was codified at § 440.34, Fla. Stat. (1941), provided in part that “[i]f any proceedings are had for review of any claim, award or compensation order before any Court, the Court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the Court may direct.” This language is virtually identical to § 440.-34(5), Fla.Stat. (Supp.1980).


author: THOMPSON, Judge. LARRY G. SMITH, Judge,

text:
    LEHIGH CORPORATION and U. S. Fidelity & Guaranty Company v. James C. BYRD, Appellee.
    No. XX-337.
    District Court of Appeal of Florida, First District.
    May 7, 1981.

      John R. Gierach of Gierach & Ewald, Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney & Adler, Orlando, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) erred by awarding the appellee (“the claimant”) temporary total disability (“TTD”) benefits. We agree in part and reverse.

The claimant was involved in a compen-sable' accident on December 20, 1979. Shortly thereafter, he saw Dr. Kim, who testified that the claimant was unable to work from January 3, 1980 to February 8, 1980, when he was released to return to work with no restrictions. The appellants paid the appropriate TTD benefits from December 28, 1979 to February 11, 1980, when the claimant returned to work. He worked until February 23, 1980, when his employment was terminated.

The claimant saw Dr. Kim again on March 18, 1980, and continued to see him until early May 1980. Dr. Kim did not release the claimant to return to work during this period, and due to inconclusive findings, he was referred to Dr. Uricchio, who examined the claimant on May 15, 1980. The doctor testified that there were no objective clinical findings of any physical problems, and there was no orthopedic reason to impose any job restrictions upon the claimant. Dr. Urrichio also noted that as of May 15,1980, the claimant was fit for many physically light work activities, even in view of his subjective complaints. In this regard, the claimant noted that he had employment experience in sales and communications.

The claimant, who had not worked since February 23, 1980, began to look for work on June 15, 1980 and he started new employment on June 27, 1980. The Deputy subsequently entered an Order awarding the claimant TTD benefits from February 23, 1980 to June 27, 1980.

As for the period of time from February 23 to March 17, 1980, the Deputy’s award of TTD benefits must be reversed. TTD is the healing period during which a claimant is unable to work, due to his injury. Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979). During the time in question, the claimant did not work because his employment was terminated. Nothing in the record indicates that he was unable to work as a result of his injury. In fact, Dr. Kim had released the claimant to return to work with no restrictions. Thus, the claimant was required to make a conscientious effort to return to work before he could establish that he was in fact unable to work. Walter Glades Condominium v. Morris, 393 So.2d 664, 665 (Fla. 1st DCA 1981). No such effort was made.

We recognize that the claimant was discharged from employment as of February 23, 1980, and thus, he could not have returned to his former job. However, when a claimant’s job is no longer available, and there is no medical evidence that he is unable to work, the claimant is first required to seek work in order to establish TTD. See, e. g., Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). Additionally, the claimant must show that his work search was successful, but that he was unable to perform the work. Alternatively, he would have to show that his work search was unsuccessful due to his disability (rather than unavailability of work). See Teleprompter, Inc. v. Springer, IRC Order 2-3439 (May 19,1978); Westco Aluminum, Inc. v. Johnson, 8 FCR 170, 171-72 (1973), cert. den. 289 So.2d 738 (Fla.1974). The claimant in this case has completely failed to establish any of the preceding elements.

As for the period of time from March 18 to May 15, 1980, there was competent substantial evidence to support the Deputy’s award of TTD benefits. Dr. Kim, who treated the claimant until early May, testified that he did not release the claimant to return to work during this period, and in fact, Dr. Kim stated that the claimant was incapable of working.

As for the period of time from May 16 to June 27, 1980, the Deputy’s award of TTD benefits must be reversed. Dr. Urrichio’s testimony clearly established that as of May 16, 1980, the claimant was able to work. Consequently, as noted earlier, the claimant was obligated to make a conscientious effort to seek work, which he failed to do until June 15. Thus, he was not entitled to TTD benefits during this time. Also, from June 15 to June 27, the claimant did not establish that his work search was unsuccessful due to his disability. Accordingly, TTD benefits were improperly awarded.

We have considered the remaining points raised by the appellants and find them both to be without merit. Finally, we note that the claimant has timely petitioned this court for an award of attorney’s fees for appellate representation. That petition must be denied, because this court has no authority or jurisdiction to award such fees herein, since the claimant’s accident occurred after the effective date of the 1979 amendments to § 440.34, Fla.Stat. Prior to those amendments, the authority for appellate awards of attorney’s fees was the following statutory language: “If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct.” § 440.34(3), Fla.Stat. (Supp.1978). This language was deleted entirely by the 1979 amendments to § 440.34, Fla.Stat.

Section 440.34(2), Fla.Stat. (1979), states that “[a] claimant shall be responsible for the payment of his own attorney’s fees.... ” There are three exceptions to this statutory pronouncement, see § 440.-34(2)(a)-(c), Fla.Stat. (1979), and we recognize that if one of those exceptions is applicable at the trial (i. e., hearing) level, and the claimant prevails on such an exception at the appellate level, then this court would be authorized to award appellate attorney’s fees. See § 59.46(1), Fla.Stat. (1979): However, we have determined that none of these conditions exist herein. Furthermore, the claimant’s petition for attorney’s fees does not refer this court to any authority for an award of attorney’s fees.

This case presents a good example of why compliance with the appellate rules is not simply a matter of form. Fla.R.App.P. 9.400(b) explicitly states that a motion for attorney’s fees “shall state the grounds upon which recovery is sought.” This rule is applicable to workers’ compensation proceedings before this court, see Brannon v. Marion County Sheriff’s Office, 391 So.2d 253 (Fla. 1st DCA 1980), and in this instance, compliance with the rule would have greatly facilitated the court’s consideration of the claimant’s request.

There should be compliance with all rules governing proceedings before this court, including Fla.R.App.P. 9.400(b). Accordingly, in the future, an attorney who presents this court with a motion for attorney’s fees should state the grounds for the motion. If a statutory ground exists, the motion should refer to the statute, as well as specifying the appropriate sections and subsections of the statute, along with the year of the statute. The failure to comply with this procedure can result in appropriate action being taken as to future motions for attorney’s fees. See, e. g., Dooley v. Culver, 370 So.2d 1154, 1155 (Fla. 4th DCA 1978).

The Deputy’s award of TTD benefits is reversed, insofar as such benefits were awarded from February 23, 1980 to March 17, 1980, and from May 16,1980 to June 27, 1980. This cause is also remanded for proceedings consistent with this opinion.

BOOTH, J., concurs.

LARRY G. SMITH, J., concurs in part and dissents in part with opinion.

LARRY G. SMITH, Judge,

concurring in part and dissenting in part.

I concur in the opinion and decision except that portion reversing the award of temporary total disability from May 16 to June 15, 1980. As to the award for that period of time I would defer to the judgment of the Deputy Commissioner in view of his superior vantage point for evaluation of all the evidence, including that evidence pointing to the fact that claimant was still undergoing treatment of sorts during a substantial portion of that time.

       While this language was essentially reinserted into the statutes, via § 440.34(5), Fla.Stat. (Supp.1980), the claimant’s injury occurred before the effective date of the 1980 amendments. See Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981).


text:
    Horace PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. WW-175.
    District Court of Appeal of Florida, First District.
    May 7, 1981.

      Joseph L. Hammons, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Miguel Olivel-la, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of a judgment of conviction and sentence entered upon a charge of possession of a firearm by a convicted felon. We affirm the order appealed.

Among other contentions, appellant argues that tape recordings of appellant’s conversation with an informant should not have been admitted into evidence. The tape recordings were of conversation which occurred in a restaurant, in appellant’s truck, and at an outdoor rural setting. The tape recordings were obtained under the direction of law enforcement personnel, to obtain evidence of criminal activity, and with the prior consent of a participant to the conversation (the informant, who wore a “body bug”) who testified at the trial. Section 934.03(2)(e), Florida Statutes, thus authorized the warrantless interception, by tape, of the subject conversations, and the tapes were properly admitted into evidence. See State v. Shaktman, 389 So.2d 1045 (Fla. 3d DCA 1980); cert. denied, 397 So.2d 779 (Fla. 1981); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); cert. denied, 397 So.2d 778 (Fla. 1981); State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980). The present case is unlike State v. Sarmiento, 397 So.2d 643, 1981 F.L.W. 85 (Fla. 1981), petition for rehearing filed January 29, 1981, in that Sarmiento involved testimony by persons not a party to the conversation which occurred in the home of Sarmiento.

The order appealed is affirmed.

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: WENTWORTH, Judge.

text:
    SECURITY INSURANCE CO., Appellant, v. ESTATE of Jerry E. STILLSON, Appellee.
    No. WW-436.
    District Court of Appeal of Florida, First District.
    May 7, 1981.

      Roger W. Rizk, of Howell, Howell, Liles, Braddoek & Milton, Jacksonville, for appellant.
    David H. Booher, III, James V. Facciolo, Jacksonville, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order denying the parties’ joint motion to authorize a compromise and settlement of estate claims; we affirm the order appealed.

Section 733.708, Florida Statutes, is the applicable statute relating to compromise of estate claims, and provides that:

... [T]he court may enter an order authorizing the compromise if satisfied the compromise will be for the best interest of the beneficiaries. The order shall relieve the personal representative of liability or responsibility for the compromise. ...

The personal representative may thus avoid liability for a compromise by obtaining the statutory order of authorization. The failure to secure such an order does not preclude a compromise however, the personal representative remains subject to the possibility of liability. See Evans v. Tucker, 101 Fla. 688, 135 So. 305 (1931). The statute vests the trial court with discretion, and we conclude that in the circumstances of the present ease the court did not abuse its discretion in refusing to authorize the proposed compromise and settlement. We also note that while the judge orally advised the parties regarding his view of the course of action which they should take, this advice was not incorporated into the order and is not properly a matter for appellate review.

The order appealed is affirmed.

SHIVERS, J., and LILES, WOODIE A. (Ret.), Associate Judge, concur.


text:
    AMERICANA HOTEL and Travelers Insurance Company, Appellants, v. Maria ANTELO, Appellee.
    No. WW-495.
    District Court of Appeal of Florida, First District.
    May 7, 1981.
    Ronnie K. Witlin of Law Offices of Jerry V. Wilkey, Coral Gables, for appellants.
    Jay M. Levy of Silver & Levy, Miami, for appellee.
   PER CURIAM.

Employer/carrier appeal a worker’s compensation order raising six points for review. Only one issue requires discussion. The deputy commissioner awarded temporary total disability benefits to claimant for five distinct periods of time. We find there is no competent substantial evidence in the record to support the award of temporary total disability benefits for the period of May 9, 1977 to October 1, 1977. The medical report of Dr. Cava, dated September 29, 1977, suggests that claimant may not have been totally disabled during this period of time. The award of temporary total disability benefits from May 9,1977 to October 1, 1977 is reversed and the cause remanded to the deputy commissioner for reconsideration, based on the existing record, of what benefits, if any, are due claimant for this period of time. In all other respects the order is affirmed.

MILLS, C. J., SHAW, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


text:
    Harold HART, Appellant, v. COLONIAL PENN INSURANCE COMPANY, Appellee.
    No. XX-225.
    District Court of Appeal of Florida, First District.
    May 7, 1981.
    David R. Lewis, Jacksonville, for appellant.
    C. T. Boyd, Jr., Jacksonville, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

We affirm the trial court’s summary final judgment in this insurance dispute on the authority of Section 627.728(4)(a), Florida Statutes:

No insurer shall fail to renew a policy unless it shall mail by registered mail or certified mail, or deliver to the named insured, at the address shown in the policy, and to the named insured’s insurance agent at his business address, at least 45 days advance notice of its intention not to renew, and the reasons for refusal to renew must accompany such notice. The requirement for mailing notice by registered mail or certified mail shall not apply to an agent that has agreed to represent exclusively one insurer or a group of insurers under common management. This subsection shall not apply:
1. If the insurer has manifested its willingness to renew; or
2. In case of nonpayment of premium. Notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other automobile liability insurance policy procured by the insured with respect to any automobile designated in both policies. * * * (emphasis supplied)

Here, the record affirmatively demonstrates that the plaintiff had procured a new automobile insurance policy from another company, State Farm Mutual Automobile Insurance Company, with an effective date of September 22, 1979. Therefore, the trial court was eminently correct in finding that the defendant insurance company was relieved of its contractual obligations under its automobile insurance policy when the insured submitted to it proof of coverage by another insurer for the date of the accident, September 23, 1979. Inasmuch as this finding is affirmatively supported by the record and has not been contested on appeal by the insured, we have no alternative but to affirm the trial court’s judgment. However, we note with disfavor the defendant insurance company’s filing of the supporting affidavit for its motion for summary judgment a mere two days before the hearing on the motion. While this Court has not yet expressly considered the issue of when supporting affidavits for motions for summary judgment are to be filed, the better weight of authority indicates that any affidavits with which the moving party plans to support his summary claim should be presented at least twenty days prior to the hearing on the motion. See Coastal Caribbean Corporation v. Rawlings, 361 So.2d 719 (Fla. 4th DCA 1978); Trawick, Florida Practice and Procedure, § 25-8, p. 367. Viewed in the circumstances of this case, however, we can only conclude that the defendant insurance company’s belated filing was harmless error. Therefore, the summary final judgment of the trial court is

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


text:
    Charles Kenneth STEELE, as personal representative of the estate of Kevin Kenneth Steele, Appellant, v. SOUTHERN TRUCK BODY CORPORATION, Avis Rent-A-Car System, Inc., d/b/a Avis Truck Rental and/or d/b/a Avis Leasing Corporation, First State Insurance Company, American Foreign Insurance Company, Liberty Mutual Insurance Company, and Columbia Casualty Insurance Company, Appellees.
    No. 80-633.
    District Court of Appeal of Florida, Second District.
    May 8, 1981.

      Joel D. Eaton and Joel S. Perwin of Pod-hurst, Orseck & Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Simons & Schlesinger, Fort Lauderdale, for appellant.
    James A. Edwards of Rumberger, Kirk, Caldwell & Cabaniss, Orlando, for appellees Southern Body Corporation and American & Foreign Insurance Co.
    David J. Kadyk and Ted R. Manry, III, of Macfarlane,. Ferguson, Allison & Kelly, Tampa, for appellees Avis Rent-A-Car and Liberty Mutual Insurance Co.
   BOARDMAN, Judge.

Charles Kenneth Steele, plaintiff below, appeals a final summary judgment entered in favor of appellees/defendants Southern Truck Body Corporation and Avis Rent-A-Car System, Inc., and their insurers following the trial court’s ruling that Florida law, rather than the law of West Virginia, the state where the accident involved here occurred, was the applicable law on the issue of damages. We disagree with this ruling and therefore reverse.

Appellant brought this action for the wrongful death of his eighteen-year-old son Kevin, which occurred when the refrigerated van portion of a refrigerated van truck separated from the truck bed, slicing off the top of Kevin’s automobile and killing Kevin instantly. Kevin was a resident of Huntington, West Virginia, and the accident occurred there on November 15, 1976. Kevin had no dependents at the time of his death. Prior to filing the instant lawsuit, appellant had sued for wrongful death in West Virginia, joining as defendants the driver of the van, its owner (both of Kentucky), and Southern, a Florida corporation, which had designed and manufactured the van body. Southern had been dismissed as a party defendant due to insufficient minimum contacts with West Virginia under the law of that state; the claims against the owner and driver had subsequently been settled for $40,000.

Following the filing of the instant complaint, appellee/defendant Avis raised the issue of which state’s Wrongful Death Act would apply, Florida’s — which at the time of Kevin’s death allowed only recovery of funeral expenses, or West Virginia’s— which also allowed recovery to Kevin’s estate for the loss of net accumulations and to Kevin’s parents for the loss of Kevin’s society and services and for their pain and anguish due to Kevin’s death. After hearing, the trial court ruled that Florida law applied, and subsequently entered final summary judgment in favor of appellees on the basis of appellant’s statement that, as a result of this ruling, there were no damages that could be proved under Florida law. This appeal followed and is concerned solely with the choice of law issue.

At the time of Kevin’s death, the time of the trial court’s ruling, and the time of the entry of summary final judgment, Florida law followed the léx loci delicti doctrine and required application of West Virginia law to the instant case. Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743 (Fla.1967); Olsen v. State Farm Automobile Insurance Co., 386 So.2d 600 (Fla. 5th DCA 1980).

Subsequently, in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980), the Florida Supreme Court rejected strict application of the lex loci delicti doctrine in favor of the “significant relationships test” set forth in the Restatement (Second), Conflict of Laws, §§ 145-146 (1971). However, the “significant relationships test” also requires application of West Virginia law to the instant case.

Kevin was a resident of West Virginia at the time of his death. His estate had been opened in West Virginia with a West Virginia resident as personal representative. Kevin’s parents, his beneficiaries under the West Virginia Wrongful Death Act, are West Virginia residents. The accident occurred in West Virginia and was investigated in West Virginia by West Virginia authorities, and all of the witnesses to the accident reside in West Virginia. Avis is a Delaware corporation with its principal place of business in New York; its only contact with Florida in this litigation is that it purchased the defective van in Florida and later resold it. The only significant relationship this case has with Florida is that Southern is a Florida corporation with its principal place of business in Tampa, and its van was allegedly negligently and defectively designed, manufactured, and sold into the stream of national commerce in Florida.

The “significant relationships test” reads as follows:

§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Our supreme court explained this test as follows:

The conflicts theory set out in the Restatement does not reject the “place of injury” rule completely. The state where the injury occurred would, under most circumstances, be the decisive consideration in determining the applicable choice of law. Indeed, the rationale for a strict lex loci delicti rule is also reflected in the same Restatement’s section 6, where “certainty, predictability and uniformity of result,” and “ease in the determination and application of the law to be applied” are cited as major factors in determining the proper choice of law. In contrast to the inflexible place of injury rule, however, the Restatement rule recognizes that the state where the injury occurred may have little actual significance for the cause of action. Other factors may combine to outweigh the place of injury as a controlling consideration, making the determination of applicable law a less mechanical, and more rational, process. (Emphasis supplied, footnote omitted.)

Bishop, supra, at 1001.

The relevant provisions of the Restatement which elaborated on the “significant relationships test” are §§ 146 and 175. Section 146 provides:

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

The language of § 175 is identical except that it applies to wrongful death actions.

In the instant case, the decedent was a resident of West Virginia, and his death occurred in West Virginia. The only relationship Florida has to the litigation is that the conduct of appellees which allegedly caused his death occurred in Florida. Comment f to § 175 makes it clear that West Virginia law is to be applied in such a situation. Comment f states in pertinent part:

f. When conduct and injury occur in different states. On occasion, conduct and injury will occur in different states. In such instances, the local law of the state of injury will usually be applied to determine most issues involving the tort (see § 145, Comments d-e and §§ 156-166 and 172).
The local law of. the state where the injury occurred is most likely to be applied when the decedent had a settled relationship to that state, either because he was domiciled or resided there or because he did business there. When, however, the decedent was domiciled or resided or did business in the state where the conduct occurred, this state is more likely to be the state of most significant relationship and therefore the state of the applicable law with respect to issues that would usually be determined by the local law of the state of injury. The same may be true when the injury occurred in the course of an activity or of a relationship which was centered in the state where the conduct occurred and when the decedent had no settled relationship to the state where the injury occurred.
The state where the conduct occurred is even more likely to be the state of most significant relationship when these two elements are combined, that is to say, when, in addition to the decedent’s having been domiciled or having resided or having done business in the state, the injury occurred in the course of an activity or of a relationship which was centered there.

Other decisions rendered under the “significant relationships test” of the Restatement involving facts similar to those in the instant case conclude that the law of the state in which the death or injury occurred governs this type of case. Suchomajcz v. Hummel Chemical Co., 524 F.2d 19 (3d Cir. 1975); Masera v. Trans World Airlines, Inc., 492 F.Supp. 950 (S.D.N.Y.1980).

We conclude that the significant relationships test compels the application of West Virginia law to this case. Accordingly, the order of final summary judgment is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, JJ., concur.


author: SCHEB, Chief Judge.

text:
    William H. HILL and Mary L. Hill, Appellants, v. W. R. BRIDGERS, Maxine Bridgers, and Owler Realty, Appellees.
    No. 80-1190.
    District Court of Appeal of Florida, Second District.
    May 8, 1981.

      Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, and Law Offices of Bruce L. Schemer, Fort Myers, for appellants.
    Lynn Gerald, Jr. of Alderman, Tamino-sian & Gerald, Fort Myers, for appel-lees/Bridgers.
    James H. Seals of Moorey, Seals & Gar-vin, Fort Myers, for appellee/Owler Realty.
   SCHEB, Chief Judge.

William H. Hill and Mary L. Hill challenge the trial court’s judgment that W. R. Bridgers and Maxine Bridgers, as sellers, were entitled to retain the earnest money the Hills had deposited under a contract to purchase residential real property. We reverse.

In September 1978 the Hills and Bridgers executed a contract prepared by Owler Realty for the purchase of residential real property owned by the Bridgers, and the Hills deposited earnest money which Owler Realty held. The contract, the basic form of which both the Florida Bar and Florida Association of Realtors have approved, provided that the Bridgers would convey a marketable title and the Hills would take title subject to “[rjestrictions and matters appearing on the- plat or otherwise common to the subdivision.... ” In November the Bridgers provided the Hills with an abstract of title which reflected a reservation in previous owners of an undivided one-half interest in the oil, gas and minerals in the property. The Hills’ counsel sent the Bridgers a letter demanding that they cure this defect in the title and stating that the failure to cure it would require refund of their earnest money deposit. The Bridgers refused, and the transaction did not close.

On December 27 Owler Realty filed a bill interpleading the Hills and the Bridgers to determine who was entitled to the earnest money deposit. The Hills cross-claimed against the Bridgers alleging that the reservation regarding oil, gas and mineral rights rendered the title defective. They sought rescission of the contract and a return of their deposit.

Following a nonjury trial the trial court correctly concluded in its final judgment that the Bridgers could not have conveyed a marketable title because of the oil, gas and mineral rights reservation. Brent v. Corbin, 252 Miss. 464, 173 So.2d 430 (1965); 33 Fla.Jur. Vendor & Purchaser § 75 (1960). The court continued, however:

C. The obvious reason for the clause [that the buyer would take title subject to “restrictions and matters appearing on the plat or otherwise common to the (subdivision)”] is to charge the prospective purchaser with notice of such things as subdivision restrictions which limit the use of all the property in the subdivision. Obviously the reason for such a clause is to require the purchaser to investigate such matters prior to entering into the contract and to satisfy himself as to whether they affect his decision to purchase the property.
D. The outstanding interest dealt with here differs somewhat from a subdivision restriction since it is an outstanding part of the title proper (an interest in land) as opposed to a limitation as to use of land. The Court finds that the intent, however, is the same in either case. The only purpose for such a clause is to require a prospective purchaser to investigate those matters which are uniform throughout the subdivision and affect the use of the property or its title.

Consequently, the court concluded that by agreeing to take title subject to “restrictions and matters appearing on the plat or otherwise common to the subdivision,” the Hills had to accept a title with mineral rights outstanding in favor of a third party. We disagree.

Subdivision restrictions commonly affect the character of land use, prescribe building requirements and establish setback lines, while “matters appearing on the plat” commonly involve easements and set backs. The Florida Bar, Florida Real Property Sales Transactions § 9.17 (1978). See The Florida Bar, Florida Real Property Practice I §§ 13.7 — .13 (2d ed. 1971). These differ significantly from a reservation of minerals of any other interest in the land. See The Florida Bar, Florida Real Property Practice II §§ 9.27 — .28 (2d ed. 1975).

Restrictions and easements common to a subdivision are generally imposed for the benefit of the surface owner. On the other hand, reservations of interest such as the mineral rights reserved here benefit only their owners and may be detrimental to the surface owners. For example, an owner of an interest in minerals is entitled to enter the land and explore for minerals without liability to the surface owner as long as injury to the surface is reasonable. P & N Investment v. Florida Ranchettes, Inc., 220 So.2d 451 (Fla. 1st DCA 1969). Cf. § 715.06, Fla.Stat. (1979).

Moreover, a prospective purchaser can more readily determine the existence of restrictions and easements than the existence of title reservations. The contract clause at issue here requires a prospective purchaser to reasonably investigate permitted land uses, restrictions and easements appearing on the plat which are common to the subdivision. This type of investigation may be within the capacity of the average prudent person. To construe the clause to also require a prospective purchaser to investigate reservations of outstanding title interests, even if common to the subdivision, however, would impose an unreasonable burden. Accordingly, we hold the clause refers only to restrictions and easements but not to title interests.

We have examined and reject the other points raised by the Hills.

We reverse the trial court’s judgment allowing the Bridgers to retain the Hills’ deposit and its award of attorney’s fees for services of their counsel. We affirm Owler Realty’s entitlement to a reasonable attorney’s fee chargeable to the deposit for its having interpleaded the conflicting claims of the parties. We remand for further proceedings consistent with this opinion.

HOBSON and CAMPBELL, JJ., concur.


text:
    Kevin M. MEEHAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-2330.
    District Court of Appeal of Florida, Second District.
    May 8, 1981.

      Jerry Hill, Public Defender, and William C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

The state filed six informations, each charging Kevin M. Meehan with burglary of a dwelling. The state gave Meehan notice that it would seek to have him sentenced as a habitual offender under section 775.084, Florida Statutes (1979). Meehan pled nolo contendere to each charge. At the sentencing hearing, the state, relying on two previous convictions to activate the habitual offender statute, requested that the trial court enhance Meehan’s sentence. Meehan’s first alleged conviction was in 1972 and, under section 775.084(l)(a)2, could not be used for enhancement purposes since it had occurred more than five years prior to the commission of the felonies involved here. Meehan’s second alleged conviction occurred in 1977, but the judgment did not include any fingerprints to connect it to Meehan as required by section 921.241. We note, however, that the state could still have sought enhancement if it could have connected the conviction to Meehan by competent evidence other than the judgment.

After the trial court became aware of these problems, it placed Meehan under oath and asked him if he had been convicted in 1977. On the advice of his counsel, Mee-han invoked the fifth amendment to the United States Constitution and refused to answer. The court repeated the question advising Meehan that it would hold him in contempt if he refused to answer. Once again, Meehan refused. The court adjudged Meehan in contempt and sentenced him to 179 days incarceration.

Meehan contends that the trial court’s finding of contempt for his refusal to testify about his alleged former conviction violated his constitutional right against self-incrimination. We agree and reverse.

First, we note that by testifying Meehan would have subjected himself to a longer imprisonment. The maximum penalty he could have received on each burglary charge without enhancement was fifteen years. §§ 775.082(3)(c), 810.02, Fla. Stat. (1979). If the state had established that Meehan was a habitual offender, however, the court could have sentenced him to thirty years on each charge. § 775.084, id. Thus, Meehan argues that his right against self-incrimination continued to apply after his conviction.

The right against self-incrimination does not terminate on conviction. A person who has been convicted but whose appeal is pending retains that right if called to testify in a trial of other individuals. King v. State, 353 So.2d 180 (Fla. 3d DCA 1977). It also continues to apply after a person has been convicted but before he is sentenced. Mills v. United States, 281 F.2d 736 (4th Cir. 1960); Steinberger v. District Court, Colo., 596 P.2d 755 (1979); People v. Brennan, 229 App.Div. 378, 242 N.Y.S. 692 (1930). In each of these cases, the court’s rationale was that the person asserting self-inerimi-nation protection would be subject to a greater sentence if forced to testify. This rationale applied here since Meehan had been convicted and was subject to an enhanced sentence if he testified.

Further, two courts have recognized the applicability of a defendant’s constitutional right against self-incrimination at enhancement proceedings. In In re Yurko, 10 Cal.3d 857, 519 P.2d 561, 112 Cal.Rptr. 513 (1974). the California Supreme Court concluded that a convicted person defending a charge of being a habitual criminal had the same constitutional rights, including the right against self-incrimination, as he had in the guilt determination. The court stated:

Because of the significant rights at stake in obtaining an admission of the truth of allegations of prior convictions, which rights are often of the same magnitude as in the case of a plea of guilty, courts must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions.

Id. at 863, 519 P.2d at 565, 112 Cal.Rptr. at 517.

In People v. Brennan, 242 N.Y.S. at 692, the New York Supreme Court concluded that a sentence enhancement proceeding was as criminal in its nature as the original trial. It stated, “The fundamental question is the same, and the rights of the defendant are entitled to the same protection in the one case as in the other.” Id. at 695. Cf. Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975) (a probation revocation proceeding is not criminal; therefore, the right against self-incrimination does not apply).

On the other hand, the Florida Supreme Court has stated that a convicted person is not entitled to the full panoply of constitutional rights at a habitual offender proceeding. Eutsey v. State, 383 So.2d 219 (Fla.1980). In Eutsey the court rejected the defendant’s contention that he had a right to a jury trial and that the standard of proof was beyond a reasonable doubt in establishing that enhancement of his sentence was necessary for the protection of the public. § 775.084(3), Fla.Stat. (1979). The court, however, was not concerned with “those basic safeguards which are fundamental rights and essential to a fair trial,” including the right to confront and cross-examine witnesses. Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967). The basic safeguard against self-incrimination historically has protected an accused from judicial inquisition. Like the right to confront and cross-examine witnesses, we think it essential to a fair trial that the state be required to independently establish the prior convictions it relies upon to enhance a defendant’s sentence.

We hold that Meehan retained his right against self-incrimination during the habitual offender sentencing proceeding and that the trial court erred when it found him in contempt for exercising that right. We reverse and remand for further proceedings consistent with this opinion. The trial court shall give Meehan credit for the time incarcerated under the contempt order in any future sentence on the burglary conviction.

OTT and CAMPBELL, JJ., concur.


author: RYDER, Judge.

text:
    Jerry R. GEISLER, Appellant, v. Sheila Sue GEISLER, now known as Sheila Sue Newcomb, Appellee.
    No. 81-33.
    District Court of Appeal of Florida, Second District.
    May 8, 1981.

      Clifford M. Abies, III, of Hancock & Abies, P. A., Sebring, for appellant.
    No appearance for appellee.
   RYDER, Judge.

Jerry R. Geisler appeals the order granting immediate custody of the parties’ minor children to appellee Sheila Sue Geisler. We reverse.

Appellee moved on December 15,1980 for enforcement of the terms of an Ohio divorce decree. The motion alleged that a copy of the decree awarding appellee custody of the parties’ children had been filed with the Thirteenth Judicial Circuit Court Clerk, that appellant had physical possession of the children and that appellant had refused to deliver them to appellee. Appel-lee alleged that she was entitled to have the foreign decree enforced under the provisions of section 61.1332, Florida Statutes (1979).

On December 15, 1980, the judge below entered an order giving full force and effect to the Ohio decree, directing that custody be delivered to appellee, and ordering all sheriffs to assist appellee in execution. No notice was given to appellant. The order was signed on the same day the motion was filed and the certificate of service on the motion indicated service to appellant by mail.

Section 61.131, Florida Statutes (1979), provides that “before a decree is made under this act, reasonable notice and opportunity to be heard shall be given to the contestants.... ” Section 61.1306(4) defines “decree” as “a custody determination contained in a judicial decree or order made in a custody proceeding....” After studying the record and brief of appellant, we hold that the order below directing delivery of custody to appellee was a decree and that reasonable notice to appellant was required before entry. See Alarcon v. Alarcon, 370 So.2d 105 (Fla. 3d DCA 1979).

We reverse the order below and remand for a full hearing with proper notice to appellant. Until that hearing is held, we direct that the parties be returned to their prior position so that appellant has physical custody of the minor children.

OTT, Acting C. J., and CAMPBELL, J., concurs.

      . We note with disdain that appellee failed to file a brief in this proceeding. Failure to file a brief places an undue burden on the appellate court and reflects an omission of appellee’s responsibility to support the trial court. If the ruling of the trial court is not worthy of support, then appellee ought to confess error and join with the appellant in seeking a reversal.


author: McCORD, Judge.

text:
    Danny Roy MALLOY, Appellant, v. STATE of Florida, Appellee.
    No. SS-281.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from appellant’s conviction of grand theft for which he was sentenced to six years in prison. Appellant contends that the trial court erred in denying his motion for judgment of acquittal at the close of the state’s case.

The subject of the theft was a broken wooden mantle clock owned by Lena Buchanan. Ms. Buchanan testified that she had bought the clock in 1915 and that it had been passed around in her family for many years. The only evidence as to value of the clock was Ms. Buchanan’s testimony that she “wouldn’t take $200 for it.” Appellant contends that the state failed to prove that the value of the clock was more than $100 and, therefore, his motion for judgment of acquittal of grand theft should have been granted.

The criterion for value in prosecutions for larceny (theft) is the market value of the property at the time of the theft. Lambert v. State, 111 So.2d 68 (Fla. 1st DCA 1959); Suarez v. State, 136 So.2d 367 (Fla. 2d DCA 1962). Testimony of the owner as to what he would take for the stolen property is insufficient evidence to support a conviction for grand theft. Hicks v. State, 127 Fla. 669, 173 So. 815 (1937).

Reversed and remanded with instructions to enter judgment of conviction on lesser included offense of petit theft.

MILLS, C. J., and THOMPSON, J., concur.


author: BOOTH, Judge.

text:
    Andre Lestella HARMON, Appellant, v. STATE of Florida, Appellee.
    No. TT-1.
    District Court of Appeal of Florida, First District.
    May 11, 1981.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from two consecutive sentences imposed upon the appellant, Andre Lestella Harmon, under the Youthful Offender Act, Florida Statutes, Section 958.04 et seq. (1979). Harmon was transferred for adult prosecution after being charged with one count each of armed burglary and sexual battery, which arose out of the same criminal episode. Harmon entered a plea of nolo contendere to each count, and the parties stipulated that he would be sentenced as a youthful offender on each count consecutively. The trial court adjudicated Harmon guilty of armed burglary under the first count and sentenced him to six years imprisonment, with a one-year minimum mandatory sentence and the specification that, after four years imprisonment, he be placed in a community control center for two years. See Florida Statutes, Section 958.05 (1979). Under the second count, sexual battery, the court imposed an identical sentence, except that it made the sentence on the second count consecutive to the sentence imposed on the first count.

On appeal, Harmon urges that the imposition of consecutive sentences under the Youthful Offender Act was illegal, as a proper construction of Section 958.05(2) (1979) would limit the total sentence imposed to six years. We reject this contention and affirm the sentences imposed below. A defendant may be sentenced consecutively or concurrently whenever separate sentences may be imposed for two or more offenses. Florida Statutes, Section 775.021(4) (1979); State v. Bay, 331 So.2d 316 (Fla.1976). Application of a different rule to. youthful offenders would be contrary to the intent of the Youthful Offender Act, which is to provide the court with a sentencing tool enabling it to impose the most appropriate sentence in each particular case. Florida Statutes, Section 958.021 (1979); Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980). Here, while Harmon clearly met the criteria for sentencing as a youthful offender, Florida Statutes, Section 958.-04 (1979), the trial court properly found that the seriousness of his offenses required consecutive sentences for the protection of society.

Although the State has conceded that Harmon was properly sentenced as a youthful offender on both counts, nonetheless we have examined the facts of this case in light of our recent decision in Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), decided subsequent to the proceedings below. In Goodson, we held that application of the Youthful Offender Act was mandated as to the defendant’s first felony but not as to his second, where the second conviction occurred prior to sentencing. We find no conflict with that opinion. Goodson does not preclude a court from exercising its discretion to sentence a defendant who has been adjudicated guilty of a second felony as a youthful offender. Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980).

Affirmed.

JOANOS, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.

      . Florida Statutes, § 958.05 (1979) provides in relevant part:

        Judicial disposition of youthful offenders. If the court classifies a person a youthful offender, in lieu of other criminal penalties authorized by law, the court shall dispose of the criminal case as follows:
      (1) The court may place the youthful offender on probation in a community control program, with or without an adjudication of guilt, for a period not to exceed 2 years or extend beyond the 23rd birthday of the defendant.
      (2) The court may commit the youthful offender to the custody of the department for a period not to exceed 6 years. The sentence of the court shall specify a period of not more than the first 4 years to be served by imprisonment and a period of not more than 2 years to be served in a community control program. The defendant shall serve the sentence of the court unless sooner released as provided by law. (emphasis supplied)


text:
    Johnel McCRAY, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. TT-214.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    Johnel McCray, pro. per.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant petitioned the Circuit Court for a Writ of Habeas Corpus. In denying the Writ, that Court rejected appellant’s constitutional claim that retroactive application of the amended “gain time” statute [Section 944.27, Florida Statutes (1978)] was unconstitutional as an ex post facto law in that it reduced the gain time with which appellate was credited under the statute in effect at the date of his sentence. The United States Supreme Court has since accepted appellant’s argument. Weaver v. Graham, - U.S. -, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

Reversed and remanded for reconsideration in light of Weaver v. Graham, supra, and a determination whether appellant is entitled to release. Hawthorne v. Wainwright, 396 So.2d 724 (1st DCA 1981).

BOOTH and JOANOS, JJ., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


text:
    CITY OF TAMPA, Appellant, v. Kimbell SCOTT, Appellee.
    No. TT-371.
    District Court of Appeal of Florida, First District.
    May 11, 1981.

      Joseph G. Spicola, Jr., and James A. Shee-han, Tampa, for appellant.
    Bruce A. Campbell of Melendi & Campbell and John A. Williamson of Barrs, Williamson & Levens, Tampa, for appellee.
   McCORD, Judge.

Appellant, employer, appeals from the deputy commissioner’s finding that appellee Scott’s death by suicide entitled Scott’s widow to workers’ compensation death benefits. We affirm.

On February 28, 1978, Scott injured his back in a work-related accident while employed by appellant as a firefighter. On March 2, Scott informed his employer of his back injury and was then seen by two doctors, one of whom diagnosed a minor lumbar strain and the other diagnosed an acute lumbar strain. On March 5, Scott was admitted to a veteran’s hospital under the Baker Act because he had been exhibiting violent behavior at home since the injury. From that date forward, he was treated at the hospital for psychiatric problems. Both parties admit that Scott had pre-existing psychiatric problems. However, prior to his back injury, he had been able to maintain his demanding job. On June 27,1978, Scott committed suicide. His widow filed this claim for death benefits, asserting that the back injury triggered the psychiatric reaction that caused Scott to commit suicide.

Because of his mental problems, Scott had been evaluated by several doctors. Dr. Coffer, a private psychiatrist who saw Scott in June 1978, felt that the back injury did trigger the mental condition which resulted in suicide and that Scott suffered a depressive neurosis directly related to the back injury. Dr. Benovitz, Scott’s main treating physician at the veteran’s hospital, stated that he realized Scott’s back condition was minor but that the injury was the precipitating stress which initiated the manifestation of the underlying mental condition; that while the back injury was not the direct cause of the suicide, it triggered the underlying anxiety neurosis which Scott had prior to the accident. Other doctors testified that, in their opinions, the back injury did not contribute to the underlying mental condition and subsequent suicide.

Scott left a four-page suicide note in which he stated that his “mind snapped at the fire station in February of this year and it hasn’t — and it will not come back.”

The deputy commissioner found a causal relationship between the back injury and the suicide. He found that Scott came under psychiatric care as a result of the back injury. He specifically accepted Dr. Coffer’s testimony as establishing that the back injury was a factor in Scott’s acute psychotic episodes and depressive neurosis. He found that the evidence and the circumstances further established that Scott’s suicide was directly caused by the severe psychiatric disturbance which was precipitated by the injury. He found that, as in Jones v. Leon County Health Department, 335 So.2d 269 (Fla. 1976), the evidence shows that, at the time of the suicide, Scott was so devoid of normal judgment as to negate a willful intent to kill himself, thus making Section 440.09(3), Florida Statutes, inapplicable to this case. He further found that Scott’s pre-existing condition was a significant factor causing his death and that there was no precise evidence as to the degree of contribution. He concluded:

Based upon the evidence available, I find the employee’s death resulted equally from the pre-existing condition and the injury of February 28, 1978.

He thereupon found employer liable for one-half of the awardable benefits.

Appellant asserts that Section 440.09(3), Florida Statutes, precludes recovery when a decedent intentionally kills himself. Case law, however, has created an exception to that rule when a decedent’s injury caused him so much distress that he became devoid of normal judgment prior to committing suicide. Compare Whitehead v. Keene Roofing Co., 43 So.2d 464 (Fla. 1949), and Jones v. Leon County Health Department, supra. Appellant contends that the exception to § 440.09(3) does not apply in this case since the injury is not severe enough to have caused Scott to become so devoid of normal judgment that he would commit suicide.

Competent substantial evidence supports the deputy commissioner’s finding that the injury, while not the direct cause of the suicide, was the triggering factor. There is competent substantial evidence that because of his neurosis, which was aggravated by his back injury, Scott did not form a willful intent to take his own life. Therefore, under the facts of this case, Section 440.09(3), Florida Statutes, does not preclude recovery.

AFFIRMED.

SHIVERS and JOANOS, JJ., concur.


text:
    Dale NUTE, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    Nos. AB-189, AB-174.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    David P. Hopstetter of Akerman, Senter-fitt & Eidson, Orlando, for appellant.
    Janet E. Ferris, Tallahassee, for appellee.
   McCORD, Judge.

This is a consolidated appeal from an order of the Florida Department of Law Enforcement (FDLE) involuntarily transferring appellant from Tallahassee to Tampa (Case. No. AB-189) and an order of the circuit court denying appellant’s request for a temporary injunction to prevent FDLE from effectuating the transfer (Case No. AB-174). We dismiss the appeal from the Department of Law Enforcement and affirm the order of the circuit court.

Appellant, a Crime Laboratory Supervisor I with FDLE in the Tallahassee Regional Crime Laboratory, pursuant to FDLE Departmental Directive 200.13, appealed his transfer to the Tampa Regional Crime Laboratory to the Commissioner of the Department. He was allowed to present in person his reasons why he should not be transferred but was advised that no evidence would be taken, no witnesses presented, and no court reporter would be allowed although his attorney could attend. Through his attorney, he contended that he was entitled to a hearing pursuant to the provisions of Chapter 120, Florida Statutes (1979), but was advised by the Department that he was not entitled to such a hearing; that his only rights were those set forth in Departmental Directive 200.13. He contended before the Commissioner that his transfer was for disciplinary reasons rather than because of a need for his services in Tampa. Following the conference, the Commissioner denied that the transfer was disciplinary and declined to rescind the transfer. Appellant then filed a suit for temporary and permanent injunction in the circuit court seeking to enjoin the transfer. He also appealed the FDLE’s order of transfer to this Court and moved to stay the transfer pending the appeal. The motion to stay was denied, and the circuit court denied the temporary injunction. The order denying temporary injunction was then appealed to this Court.

In the administrative appeal, appellant contends that he was wrongfully denied a hearing pursuant to the provisions of § 120.57(1), Florida Statutes. Under § 110.-205, all positions in state government are under Career Service unless specifically exempted. Pursuant to § 110.227, Florida Statutes, suspensions, dismissals, reductions in pay, demotions, lay-offs and transfers are appealable to the Career Service Commission but § 110.205(3) provides that, “Employees of the Department of Law Enforcement shall be subject to the provisions of § 110.227 except in matters relating to transfer.” (Emphasis supplied.)

Appellant contends that since employees of FDLE are denied the right to appeal orders of transfer to the Career Service Commission, they have the right to a hearing before the agency pursuant to § 120.57 (The Administrative Procedure Act) and to thereafter appeal an adverse order of the agency to this Court pursuant to § 120.68. We disagree. The obvious legislative intent in exempting FDLE employees from the provisions of § 110.227, in matters relating to transfer was to exempt transfers from review and leave FDLE free to transfer its personnel at will without the restraints of review. Had the legislature not intended this result, it would not have exempted only FDLE transfers from review by the Career Service Commission. It is illogical to conclude that the legislature, by declaring this exemption, intended to thereby bring transfers by this agency under Chapter 120 (The Administrative Procedure Act).

Appellant further contends that § 110.-205(3), Florida Statutes (1979), is unconstitutional because it violates his right to equal protection under the law. Ruling as we do that the FDLE order transferring appellant is not subject to review under Chapter 120, Florida Statutes, we do not reach this issue. The record before us from the circuit court does not contain a copy of appellant’s complaint, but appellant’s counsel advised the court at oral argument that to raise a constitutional issue in the circuit court action, appellant would need to amend his complaint.

The appeal in Case No. AB-189 from the FDLE is dismissed, it not being an appeal from a reviewable order, and the appeal of the circuit court’s order denying temporary injunction in Case No. AB-174 is affirmed.

ROBERT P. SMITH and ERVIN, JJ., concur.