author: SHAW, Judge.

text:
    GENERAL DEVELOPMENT UTILITIES, INC., Appellant, v. The FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AE-216.
    District Court of Appeal of Florida, First District.
    July 29, 1982.

      Valerie F. Fravel and Joseph Z. Fleming, Miami, for appellant.
    Charles G. Stephens, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellee.
   SHAW, Judge.

General Development Utilities, Inc. (GDU) appeals from an order of the Department of Environmental Regulation (DER) entered May 19, 1981, denying GDU’s petition for a hearing pursuant to chapter 120.57, Florida Statutes (1981). GDU seeks to challenge the Department’s waste load allocation letter imposing a zero allocation for oxygen-demanding materials on its Port Malabar sewage treatment plant effective upon expiration of its current operation permit which expires in December of 1982.

GDU currently operates a sewage treatment plant at Port Malabar, Florida, which discharges treated oxygen-demanding effluents into Turkey Creek. DER, pursuant to section 403.061, Florida Statutes (1981), has the power and duty to control pollution of air and water in accordance with the laws and regulations adopted and promulgated by it. In furtherance of its regulatory activity, on April 10, 1981, DER notified GDU of its zero waste load allocation and advised GDU to review its options for meeting the limits prior to expiration of its operating permits. In its petition for a formal hearing pursuant to chapter 120, Florida Statutes (1981), GDU asserts that the method used to determine the allocation is arbitrary and capricious and that, as a result of the allocation, it will be forced to find alternative means for disposing of its treated effluents. GDU sought to present data to show that DER’s method of determining the allocation is unreasonable and that a waste load allocation for oxygen-demanding effluents can be established that will not negatively impact upon the waters of the state. DER considered the petition without a hearing and entered its order denying a 120.57 hearing on the grounds that the letter was informational in nature and applicable to GDU only prospectively in relation to an application for a permit not now pending before the Department and that the letter has no legal or practical effect apart from prospective licensing.

The Department’s characterization of its letter as the most preliminary type of communication which the Department could address to GDU cannot minimize the import and finality of the correspondence which reads in part:

Pursuant to the latest waste load allocation water quality studies, the effluent limits defined for your facility are attached and hereby transmitted to you.
You should review your options for compliance with the enclosed and have a schedule proposed for meeting these effluent limits prior to expiration of your operating permits.
If you have any questions about the effluent limits, please contact Mr. Randy Armstrong in our Tallahassee office.

The Department’s order dismissing GDU’s petition finds that:

Inasmuch as the Department communication sought to be reviewed .. . has no legal or practical effect apart from a prospective license proceeding, such communication does not affect petitioner’s substantial interests. Petitioner’s right to submit additional or contrary information addressing those matters set forth in the Department’s letter of April 10, 1981 remains altogether unabridged. Petitioner may likewise petition for an administrative hearing regarding any agency action proposed on a subsequent permit application.

We disagree with the Department’s conclusion that the communication has no legal or practical effect apart from a prospective license proceeding. The letter does two things. It notifies GDU that the Department has conducted water quality studies and adopted the results of those studies. It puts GDU on notice that it has been assigned a zero waste load allocation as a result of the studies and that unless it submits a schedule for meeting these effluent limits prior to the expiration of its current operating permits, it stands in jeopardy of not having its permits renewed. GDU is put in the position of either immediately challenging the allocation or finding optional methods for treating its effluent. The Department has taken a position, reduced it to writing, and disseminated it to the affected party who must now submit a proposed schedule for compliance, or hazard nonrenewal of its permits. Clearly this is a final agency decision affecting the substantial interests of GDU. The fact that the petitioners can submit additional or contrary information on the disputed issues of material fact in hopes that DER will reconsider its position is not a substitute for a 120.57 hearing upon request. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Having determined that the letter is a final agency decision determining the substantial interests of GDU, we are drawn to the conclusion that the Department’s order dismissing its petition was error. We reject the notion that GDU has no redress until such time as it applies for new permits and has its application rejected. The essential ingredients of a 120.57 hearing are present, i.e., final agency action affecting the petitioner’s substantial interests coupled with a disputed issue of material fact. If section 120.57 is to be “the Act’s wider point of entry for those with varied or general complaints concerning agency action: those against whom the agency has instituted adjudicatory proceedings, those whose impending injury is not wholly and precisely traceable to a rule invalidly exercising delegated legislative authority, those whose substantial interests are threatened by several agency causes or simply by agency action which is proceeding arbitrarily, imperiously, or obliviously,” then GDU has presented a compelling case. State ex rel. Department of General Services v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977).

We pointed out in Capeletti Brothers, Inc. v. State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978) that “an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under section 120.57.” Now we find it necessary to add a postscript: simply providing a point of entry is not enough if the point of entry is so remote from the agency action as to be ineffectual as a vehicle for affording a party whose substantial interests are or will be affected by agency action a prompt opportunity to challenge disputed issues of material fact in a 120.57 hearing. The opportunity afforded GDU in this instance does not meet this standard.

REVERSED and REMANDED for a 120.57 hearing.

McCORD and ERVIN, JJ., concur.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    SUWANNEE COUNTY, Florida, Appellant, v. Enoch E. GARRISON, Jr., Sara L. Garrison and Enoch E. Garrison, III, Appellees.
    No. AE-362.
    District Court of Appeal of Florida, First District.
    July 29, 1982.

      C. Dean Lewis, Airth, Sellers & Lewis, Live Oak, and Guyte P. McCord, III, Spec-tor, Tunnicliff & McCord, Tallahassee, for appellant.
    Edwin B. Browning, Jr., Davis, Browning & Hardee, Madison, for appellees.
   LARRY G. SMITH, Judge.

The County appeals an order awarding attorney’s fees to appellees, contending that none of the bases for an award of attorney’s fees was presented by the County’s declaratory judgment action seeking a determination of whether a road across appellees’ property had become vested in the County under the provisions of Section 95.361, Florida Statutes. We agree with the County’s contentions and reverse.

Section 95.361 makes no provision for an award of attorney’s fees in litigation to determine whether a roadway has become dedicated to the public and title vested in a public entity (county, municipality, or state) under its terms. Furthermore, Chapter 86, Florida Statutes (Declaratory Judgments), particularly Section 86.081, providing specifically for the award of costs, makes no provision for, and cannot be expanded to include, attorney’s fees. Hams v. Richard N. Groves Realty, Inc., 315 So.2d 528 (Fla. 4th DCA 1975).

In the final judgment the trial court reserved jurisdiction to award attorney’s fees, “if applicable.” However, neither the final judgment, which was entered pursuant to the jury’s verdict, nor the post-judgment order awarding costs and attorney’s fees, included any finding or reference to the grounds upon which the award of attorney’s fees was based. Appellees assert, however, that attorney’s fees were properly awarded because the sovereign power of eminent domain is implicated by the County’s actions, in that the County had used portions of appellees’ property, and sought by means of the present suit to perfect title to it under Section 95.361. Appellees liken the proceedings below to “inverse condemnation,” citing State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941), and State Road Department v. Lewis, 190 So.2d 598 (Fla. 1st DCA 1966). Assuming, without deciding, that a comparison to these and similar cases may be made under the factual premises urged by appellees, we think such a comparison here is foreclosed for two reasons: First, neither by their answer, nor by their counterclaim or any other pleading filed below, did appellees assert any taking of their property by the County or demand damages for its use; nor did they claim attorney’s fees. Second, the jury verdict (which was in special interrogatory form) conclusively demonstrates that the only issue submitted to and determined by the jury was whether the road was a private road and therefore the property of appel-lees, or was instead a public road. Appel-lees’ contention that other issues were tried by the express or implied consent of the parties is unavailaing in view of the failure to have these issues submitted to the jury. 32 FlaJur. “Trial,” § 258. Whether appel-lees might have been able to make out a case of “taking,” by reason of the County’s trespass upon or damage to their property or otherwise, is now moot.

It appears that the action filed by the County in this instance was more in the nature of a proceeding to determine ownership or the right to public use and possession, rather than to acquire appellees’ property. There would seem to be no more justification for assessment of attorney’s fees against the County for its attempt to clarify the status of the road, in the light of Section 95.361, than there would be to hold that the County must pay attorney’s fees to property owners over whose land a roadway is lawfully acquired pursuant to the statute. As stated by the court in State, Department of Transportation v. Florida East Coast Railway Company, supra (footnote 6), title becomes vested under the statute not by adverse possession, “but by a dedication conclusively presumed by law.” We see a logical inconsistency in the notion that the public, as recipients of a benefit by “dedication” must nevertheless pay for the privilege by assuming the burden of attorney’s fees incurred by those who might contest the dedication. The legislature could, of course, provide for attorney’s fees in connection with Section 95.361 dedications, but it has not done so.

Finally, we have considered appel-lees’ suggestion that the trial judge might have based the award of attorney’s fees on Section 57.105, Florida Statutes. Aside from our natural reluctance to assume that the trial judge would submit to the jury a case having “a complete absence of a justi-ciable issue of either law or fact,” we observe that appellees have pointed to no finding by the trial court to support an award under this statute.

For the foregoing reasons, the order appealed is reversed.

ROBERT P. SMITH, Jr., Chief Judge, and WENTWORTH, J., concur.

      . The award of attorney’s fees is in derogation of the common law, and is authorized where there is a contractual or statutory provision, or where services have been performed by an attorney in creating or bringing into court a fund or other property. Rivera v. Deauville Hotel Employees Service Corporation, 277 So.2d 265 (Fla.1973); Kittel v. Kittel, 210 So.2d 1 (Fla.1967); Polk County v. Deaton, 352 So.2d 571 (Fla. 2nd DCA 1977).

      . Section 95.361 provides that when a road constructed by a county, municipality, or the state, has been maintained or repaired continuously and uninterruptedly for four years by the governmental entity, the road shall be deemed to be dedicated to the public, and title to the road becomes vested in the public entity.

      . Kornbluh v. Lowenberg, 401 So.2d 880 (Fla, 3rd DCA 1981).

      . This court has applied the rule that when attorney’s fees are authorized by a statute, they must be specifically claimed in the pleadings. Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977). Other districts have taken the view that it is not essential, but is the better practice, to specifically plead entitlement to attorney’s fees under a statute. Autorico, Inc. v. Government Employees Insurance Company, 398 So.2d 485 (Fla- 3rd DCA 1981); Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980). As indicated, here there is no specific statutory provision for attorney’s fees.

      . For definition of a “taking” see Poe v. State Road Department, 127 So.2d 898, 900 (Fla. 1st DCA 1961); and for further discussion and application in a particular case (state holding over after expiration of lease), see State, Department of Health and Rehabilitative Services v. Scott,-So.2d-(Fla. 2nd DCA 1982), 7 FLW 1436, opinion filed July 2, 1982.

      . Based upon the circumstances revealed by the County’s complaint and its attachments, it is fair to observe that the action below was taken in response to appellees’ closing of the road, and as an alternative to other action, possibly in the nature of injunctive relief.

        .Cf. State, Department of Transportation v. Florida East Coast Railway Company, 262 So.2d 480 (Fla. 3rd DCA 1972), in which the State, although it claimed a dedication of the right of way sought under Section 337.31 (the predecessor of the present Section 95.361, Florida Statutes), filed a condemnation action, thereby unequivocally invoking the State’s power of eminent domain and incurring liability for the landowner’s attorney’s fees in defending the litigation. See also Estate of Hampton v. Fairchild-Florida Construction Company, 341 So.2d 759 (Fla. 1977), at 761, note 3, pointing out that attorney’s fees are awarded in eminent domain cases, regardless of whether the condemnee’s land is actually taken. Although the Hampton case is distinguishable (involving dispute between private parties), it is interesting to note the opinion, at 761, discussing and rejecting appellees argument therein that proceedings to establish a statutory way of necessity are in reality eminent domain proceedings, and the comment: “The mere fact that statutes alter rights and remedies known at common law obviously affords no basis for the award of attorneys’ fees in actions brought under them.”

      . As already noted, the order awarding attorney’s fees contained no explanation of the grounds for the award. A finding of no justiciable issue is essential to sustain an award under Section 57.105. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 506 (Fla.1982); Autorico, Inc. v. Government Employees Insurance Company, supra (footnote 3), at 488; Allen v. Estate of Dutton, 394 So.2d 132, 134 (Fla. 5th DCA 1980).


author: WIGGINTON, Judge.

text:
    ALACHUA COUNTY, Appellant, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    Nos. AH-452, AJ-139.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Dennis R. Long, Gainesville, for appellant.
    Enoch J. Whitney, Gen. Counsel, and Michael J. Alderman, Tallahassee, for appel-lee.
   WIGGINTON, Judge.

Alachua County presents for our review two department orders, consolidated in this appeal, which summarily dismissed the county’s petitions for relief upon the department’s finding that it “lacks jurisdiction” to consider the petitions. Because of deficiencies in the record and in the orders, we remand.

The subject of this litigation is money collected by the county as “delinquent fees” during the motor vehicle inspection program that was abolished by the Florida legislature in 1981. These funds were apparently sent to the department as required by Section 325.24, Florida Statutes (1979). The county, invoking Section 120.57(1), petitioned the department for a refund. Essentially, the department responded that it did not have jurisdiction because it had already sent the money into the state’s general revenue fund and because there is no statutory authority for the department to make refunds. The orders have impliedly found that the county’s only remedy must lie in the Comptroller’s office pursuant to Chapter 215.

Without belaboring the point, we cannot determine that the department’s position has foundation in the record. The county has convincingly argued that disputed issues of material fact exist, necessitating a hearing. The inadequacy of the record has been demonstrated during this appeal; the department relies heavily on an “appendix” which accompanies its brief but which contains no material that was contained in the record on appeal. See Section 120.57(l)(b)5 and (2)(b); Fla.R.App.P. 9.220.

The protections embodied in the administrative law system are thwarted when, as here, an agency abandons its jurisdictional responsibilities with findings based upon insufficient facts and unexplained legal conclusions.

Accordingly, we remand so the department may have an opportunity to conduct a Section 120.57(1) proceeding, create a proper record, and enter a proper order. We recognize that the county has also sought its refund through the office of the Comptroller and a hearing on the matter is now scheduled in the Department of Administrative Hearings. For the sake of quasi-judicial economy, we suggest that the parties consolidate their dispute so the county may finally have a forum for an airing of the facts and law pertaining to this case.

The order of the Department of Highway Safety and Motor Vehicles is vacated and remanded.

SHIVERS and SHAW, JJ., concur.


author: PER CURIAM.

text:
    E. R. JAHNA INDUSTRIES, INC., Appellant, v. DEPARTMENT OF INSURANCE AND TREASURER, State Fire Marshal, Appellees.
    No. AJ-128.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Jack P. Brandon of Peterson, Myers, Craig, Crews, Brandon & Mann, P. A., Lake Wales, for appellant.
    Daniel Y. Sumner, Dept, of Ins., Tallahassee, for appellees.
   PER CURIAM.

The segment of the Fire Marshal’s final order placing appellant on unsupervised probation for one year is stricken. We have not been made aware of any statutory authorization for such sanctions.

In all other respects the final order is AFFIRMED.

SHIVERS, SHAW and WIGGINTON, JJ., concur.


text:
    BOARD OF COUNTY COMMISSIONERS and Employers Service Corporation, Appellants, v. SPECIAL DISABILITY TRUST FUND, Appellee.
    No. AJ-258.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Rehearing Denied Aug. 31, 1982.
    Keith A. Mann, of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellants.
    G. W. Jacobs, Tallahassee, for appellee.
   PER CURIAM.

The county and its servicing agent contend the deputy commissioner erred in denying their request for reimbursement from the Special Disability Trust Fund. We believe the deputy properly denied reimbursement and affirm the order appealed.

The appellants’ sole point on appeal was: “whether the deputy commissioner erred as a matter of law in holding that appellants’ claim for reimbursement was not timely filed.” In a tortuous approach to this issue, the Fund has argued, and the deputy has agreed, that proof of timeliness in this case depended upon the county proving the date of its first payment of excess compensation. See § 440.49(4)(g), Fla.Stat. (Supp.1974).

We affirm not because of the county’s assertedly untimely filing per se, but because of its failure to prove that any excess compensation has been, or will be, paid. At best, the county proved that the claimant’s disability is attributable, by specific percentages, to her successive injuries; however, as the county acknowledges, this does not prove that a merger has occurred. See Davis v. Conger Life Insurance Company, et al., 201 So.2d 727 (Fla.1967). To establish a merger, there must be evidence that the claimant’s overall disability rating is greater than the sum of her permanent partial disability ratings. Bordo Citrus Products, et al. v. Varnadore, 395 So.2d 260 (Fla. 1st DCA 1981). Without a merger, there can be no “excess compensation” paid within the meaning of the Special Disability Trust Fund act. See § 440.49(2)(a).

Additionally, the county’s evidence on the claimant’s medical condition was unclear and somewhat contradictory, which further supports the deputy’s conclusion that there was a lack of competent evidence regarding the degree of permanent impairment and a concomitant failure of proof on the question of excess compensation.

Accordingly, the deputy commissioner’s order is affirmed.

SHIVERS, SHAW and WIGGINTON, JJ., concur.


text:
    WEST FLORIDA HOSPITAL, Appellant, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES and Lakeview Center, Inc., Appellees.
    No. AM-455.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Barry Silber of Levin, Warfield, Middle-brooks, Mabie & Magie, P. A., Pensacola, for appellant.
    Chester G. Senf, Asst. Gen. Counsel for Dept, of HRS, Tallahassee, for appellee HRS.
    John Radey of Holland & Knight, Tallahassee, for appellee Lakeview.
   PER CURIAM.

The appeal is DISMISSED because review of final agency action will provide an adequate remedy. Section 120.68(1), Florida Statutes (1981).

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Gerald GOLD, Appellant, v. Sarita H. GOLD, Appellee.
    No. 81-2124.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Aug. 30, 1982.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Irwin J. Block and Linda Ann Wells, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The final judgment and the corrected final judgment are, as the wife concedes, in error in the single respect that the award of permanent periodic alimony made therein fails to provide for termination of this alimony award upon the death of the husband. See Plant v. Plant, 320 So.2d 455 (Fla. 3d DCA 1975). The judgments are modified to so provide and in all other respects affirmed.

Affirmed as modified.


author: COBB, Judge.

text:
    Robert C. ALLIE and Rosemary Allie, Appellants, v. Fred IONATA, et ux., et al., Appellees.
    No. 81-1555.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Rehearing Denied Aug. 26, 1982.
    Walter A. Ketcham, Jr. of Walker, Buck-master, Miller &' Ketcham, P. A., Orlando, for appellants.
    Gordon H. Harris and Herbert M. Hill of Gray, Harris & Robinson, P. A., Orlando, for appellees.
   COBB, Judge.

The issue in this case concerns the applicability of the four-year statute of limitations found in section 95.11(3)(7 ), Florida Statutes, pertaining to rescission, to the facts in this case, wherein a trial jury found that there was no fraud. We hold that the trial court was in error, and reverse.

The appellant, Robert C. Allie, a defendant below, was the accountant for Dr. and Mrs. Fred Ionata and Fred Ionata, P. A., plaintiffs below, for approximately twelve years. Sometime prior to 1975 Allie suggested that the Ionatas invest in raw land as a tax shelter, and suggested that they buy some land that he and his family owned in North Carolina and Tennessee. Allie also recommended on several occasions that Dr. Ionata consult others before deciding what to purchase. The Ionatas eventually purchased five parcels of land from Allie. This appeal concerns only the first two purchases, Tract No. 1 in North Carolina, on which a contract was executed on January 1, 1975, and Tract No. 2 in Tennessee, on which a contract was executed on July 2, 1976.

In the summer of 1980, Ionata began going to another accountant, who informed him that the prices paid for Allie’s land were severely overinflated. Acting on this information, the Ionatas filed a complaint in November, 1980, seeking either rescission of the contracts or damages. The complaint had counts against Allie for breach of fiduciary duty, common law fraud and malpractice. The defendants raised the statute of limitations as an affirmative defense in an amended answer. The case proceeded to trial on the causes of action outlined, with the jury entering a special interrogatory verdict. No motions were made for a summary judgment prior to the verdict on the issue of the statute of limitations, since it was up to the jury to first determine the fraud issue. The jury’s verdict found that a fiduciary relationship did exist, that it had been breached, and that Allie did commit malpractice. However, the jury found no fraud committed by the defendant Allie in his dealings with the Ionatas.

Following this verdict, the defendants moved for a judgment notwithstanding the verdict, new trial, and summary judgment, seeking to apply the statute of limitations for rescission (four years) to the action. These motions were denied by the trial court, thus upholding the court’s prior final judgment in favor of the plaintiff. This appeal ensued.

The appellants contend that the Ionatas had to bring suit within four years from the time when the last element constituting the cause of action occurred, which was the execution of the contract. See § 95.031, Florida Statutes. Therefore, both claims would have been barred by November, 1980, the date the action was filed. On the other hand, the appellees contend that section 95.11(3)(j), as modified by section 95.031(2), applies so that the four-year period did not begin to run until the “constructive fraud” (breach of a fiduciary duty) was discovered by the Ionatas, which occurred when they were told by their new accountant that the lands were overpriced.

Given the jury finding that there was no fraud, the appellees argue that breach of a fiduciary duty is a cause of action separate from fraud or rescission (thereby attempting to escape the consequences of section 95.11[3][j3 and [7] and section 95.031), and that it is also a “constructive fraud” (thereby attempting to gain the benefit of section 95.031[2]). This chameleon approach to the characterization of fraud in an attempt to evade the applicable statute of limitations subverts the clear jury verdict negating fraud.

The evidence is clear and uncontroverted that the Ionatas knew the properties belonged to Allie prior to purchase, that they never asked him what he had paid for them, that they never looked at the properties or had them appraised, that they were advised by Allie to consult an attorney before purchase, and that they felt no obligation to buy the properties. There is no evidence in the record that Allie at any time, before or after purchase, did anything to prevent the Ionatas from ascertaining the fair market value of the properties. Apparently, the breach of fiduciary relationship resulted from the fact that Allie sold the properties to the Ionatas without disclosing to them what he had paid for them. If so, this breach occurred at the time the contracts were entered.

Another argument advanced by ap-pellees is that no cause of action could be brought by them until after termination of their professional relationship with Allie and their employment of another accountant, since that relationship itself constituted a continuing concealment of their cause of action. Fraudulent concealment can toll the running of a statute of limitations when it can be shown that the fraud has been perpetrated upon the injured party so as to place him in ignorance of his right to sue. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Alford v. Summerlin, 362 So.2d 103 (Fla. 1st DCA 1978); Buck v. Mouradian, 100 So.2d 70 (Fla. 3d DCA 1958), cert. denied, 104 So.2d 592 (Fla.1958). This argument has two fundamental flaws in the instant case: (1) fraudulent concealment is a form of fraud, and the jury found that fraud was not committed; (2) the uncontro-verted evidence was that the Ionatas, after purchase of the lands, had at least an equal opportunity to discover their true value. Robson Link & Co. v. Leedy Wheeler & Co., 154 Fla. 596, 18 So.2d 523 (1944); Hirschman v. Hodges, O’Hara & Russell Co., 59 Fla. 517, 51 So. 550 (1910).

As we see it, the four-year statute governing a rescission action is applicable, and it cannot be extended by the fraud exception in Chapter 95 because of the jury’s factual determination that there was no fraud. Accordingly, we hold that the trial court erroneously denied the appellants’ motion for a judgment in accordance with the motion for a directed verdict pursuant to Florida Rule of Civil Procedure 1.480(b). We reverse the judgment and remand for entry of judgment for the appellants, defendants below, in regard to the properties herein concerned.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ„ concur.

      . Section 95.11 reads in part as follows:
      Actions other than for recovery of real property shall be commenced as follows:
      (3) WITHIN FOUR YEARS
      (j) A legal or equitable action founded on fraud.
      (J) An action to rescind a contract.


text:
    Ronald BRITT, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AK-228.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Rehearing Denied Aug. 30, 1982.
    Ronald Britt, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

Britt contends the commission violated state and federal constitutional proscriptions against ex post facto laws by applying a matrix time range for his parole release under the rule in effect at the time his presumptive parole release date was set rather than the rule in effect when he committed his crime. We affirm.

In Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982), the appellant had been convicted and was incarcerated at the time the first objective parole guidelines became effective, but was not interviewed until after the first amendments to the guidelines which increased the matrix time range for Lopez’s crime. We held that under those circumstances there was no ex post facto violation in applying the amended guidelines. The circumstances now presented do not require a holding contrary to Lopez.

The objective parole guidelines are the administrative agency’s response to the legislative restraints on the commission's discretion in setting parole under the statutory standard, i.e., when there exists a reasonable probability for law abiding conduct compatible with the welfare of society and the parolee. § 947.165 and § 947.18, Florida Statutes (1979). Section 947.165(2) requires the commission to review its procedures periodically and make any revisions considered necessary “by virtue of experience” in order to achieve the statutory purposes. Thus, the procedure in effect when a presumptive parole release date is set is required to reflect continuing experience in accomplishing the stated objectives. The statute therefore clearly does not contemplate that such rules shall be fixed from the time a prisoner’s crime was committed. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The decision in Lopez is accordingly consistent with the terms of § 947.165(2) in emphasizing the procedural nature of the objective parole guidelines as opposed to the fixed statutory prescription scrutinized in Weaver. Changes in such procedural guidelines have not ordinarily been constrained by the ex post facto clause. Cf., Overfield v. Florida Parole and Probation Commission, 418 So. 2d 321 (Fla. 1st DCA, 1982).

Accordingly, appellant’s presumptive parole release date is affirmed.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    In the Matter of the Application of Robert BERGEN, Appellant, v. Dale CARSON, Sheriff of Duval County, Florida, Appellee.
    No. AM-275.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Rehearing Denied Aug. 30, 1982.

      David U. Tumin and Harold W. Colee, Jr., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant/petitioner appeals an order denying his petition for writ of habeas corpus urging that he is entitled to discharge under 18 U.S.C. § 3182 because thirty days have elapsed since his arrest on a fugitive warrant. The term “arrest” used in 18 U.S.C. § 3182 means the arrest caused by the executive authority of the asylum state (Florida), after formal demand in compliance with the statute has been made by the governor of the state from which the prisoner has fled (New York). People ex rel. Heard v. Babb, 412 Ill. 507, 107 N.E.2d 740 (1952); and Prettyman v. Karnopp, 192 Neb. 451, 222 N.W.2d 362 (1974). Here, the petition failed to allege that thirty days had elapsed since appellant’s arrest on the Florida Governor’s warrant of rendition. Further, the thirty day time period is tolled pending the disposition of this habeas corpus proceeding. Prettyman, supra; Application of Dunster, 131 N.J.Super. 22, 328 A.2d 238 (App.Div.1974); Hill v. Roberts, 359 So.2d 911 (Fla. 2nd DCA 1978).

Accordingly, the order denying the petition for writ of habeas corpus is affirmed.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

      .18 U.S.C. § 3182 provides:
      Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

      . In Hill v. Roberts, 359 So.2d 911, 913 (Fla. 2nd DCA 1978), the Second District Court of Appeal stated that Prettyman construed the word “may” in the last sentence of 18 U.S.C. § 3182 to be mandatory. Although we do not rely on this point as dispositive of this appeal, our examination of Prettyman reveals that the Nebraska Supreme Court specifically found that the language “If no such agent appears within thirty days from the time of arrest, the prisoner may be discharged” was permissive rather than mandatory. Prettyman 222 N.W.2d at 365.

      . We affirm upon the grounds stated herein, thus approving the action of the trial judge even though based upon other reasons with which we may not totally agree. In re Estate of Yohn, 238 So.2d 290 (Fla. 1970).


text:
    In the Matter of the Application of Kenneth BERGEN, Appellant, v. Dale CARSON, Sheriff of Duval County, Florida, Appellee.
    No. AM-278.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Rehearing Denied Aug. 30, 1982.

      David U. Tumin and Harold W. Colee, Jr., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant/petitioner appeals an order denying his petition for writ of habeas corpus urging that he is entitled to discharge under 18 U.S.C. § 3182 because thirty days have elapsed since his arrest on a fugitive warrant. The term “arrest” used in 18 U.S.C. § 3182 means the arrest caused by the executive authority of the asylum state (Florida), after formal demand in compliance with the statute has been made by the governor of the state from which the prisoner has fled (New York). People ex rel. Heard v. Babb, 412 Ill. 507, 107 N.E.2d 740 (111.1952); and Prettyman v. Karnopp, 192 Neb. 451, 222 N.W.2d 362 (Neb.1974). Here, the petition failed to allege that thirty days had elapsed since appellant’s arrest on the Florida Governor’s warrant of rendition. Further, the thirty day time period is tolled pending the disposition of this habeas corpus proceeding. Prettyman, supra; Application of Dunster, 131 N.J.Super. 22, 328 A.2d 238 (N.J.Super.App.Div.1974); Hill v. Roberts, 359 So.2d 911 (Fla. 2nd DCA 1978).

Accordingly, the order denying the petition for writ of habeas corpus is affirmed.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

      . 18 U.S.C. § 3182 provides:
      Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

      . In Hill v. Roberts, 359 So.2d 911, 913 (Fla. 2nd DCA 1978), the Second District Court of Appeal stated that Prettyman construed the word “may” in the last sentence of 18 U.S.C. § 3182 to be mandatory. Although we do not rely on this point as dispositive of this appeal, our examination of Prettyman reveals that the Nebraska Supreme Court specifically found that the language “If no such agent appears within thirty days from the time of arrest, the prisoner may be discharged” was permissive rather than mandatory. Prettyman, 222 N.W.2d at 365.

      . We affirm upon the grounds stated herein, thus approving the action of the trial judge even though based upon other reasons with which we may not totally agree. In re Estate of Yohn, 238 So.2d 290 (Fla.1970).


text:
    James McCULLOUGH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2312.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Straight v. State, 397 So.2d 903 (Fla.1981); Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d DCA 1978); Courtney v. State, 358 So.2d 1107 (Fla. 3d DCA 1978); State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977); Dabney v. Yapa, 187 So.2d 381 (Fla. 3d DCA 1966).


text:
    SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Abdul KARIM; Econo Inn, Inc., Miami Airliner Corporation and Liberty Mutual Insurance Company, James Corbett Keene and Lorena Polk Keene, his wife; Robert V. Stephenson and Jacqueline E. Stephenson, his wife; E. J. May and Sally Patricia May, his wife; and Clyde Collins, Appellees.
    Nos. 81-1589, 81-1590.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.

      Smathers & Thompson and Earl D. Wal-din, Jr., Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble; Beckham & McAliley; Podhurst, Orseck, Parks, Josefs-berg, Eaton, Meadow & Olin, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Seaboard, defendant/third party plaintiff below, takes these consolidated appeals from the final judgments entered on its indemnity claims against the third party defendants. The third party action was determined by the court on the basis of the evidence adduced at the jury trial on the issue of liability in the main cause.

Seaboard had a contract with Econo Inn, Inc., d/b/a Runway Inn, whereby Econo provided lodging, and transportation to and from that lodging, for Seaboard employees. Keene, Stephenson, May and Collins were employees of Seaboard, serving as a train crew that “laid over” in Miami. These employees were being transported by van from the Runway Inn to work when the van was involved in an intersectional collision with a Randle-Eastern ambulance. The van was owned by Miami Airliner Corporation (which is wholly owned by Abdul Karim, the sole stockholder of Econo) and was being driven by a Runway Inn employee named Soorty.

The Seaboard employee named Keene filed suit against Randle-Eastern, its’ driver, and its’ insurer for common law negligence and against Seaboard under the FELA. The other Seaboard employees filed a similar action, and Soorty sued Ran-dle-Eastern. Seaboard filed third-party complaints for indemnity against Econo Inn, Miami Airliner Corporation, Abdul Karim, and the insurer of the van.

Upon various motions, the lawsuits of the Seaboard employees and of Soorty were consolidated for trial. Seaboard’s motion for a separate trial on the question of liability was granted. Seaboard and Econo stipulated that the third party claim for indemnity would be withdrawn from the jury’s consideration and decided by the court upon the evidence adduced at trial.

The jury returned its special verdicts, answering “yes” to the following question:

Was there negligence on the part of Seaboard. . . which contributed in whole or in part — even in the slightest — to injury to [plaintiff]?

The jury also found Randle negligent but said there was no negligence on the part of Soorty, which was the legal cause of damage. The jury further determined that Randle was 85% negligent, Seaboard was 15% at fault, and that the Seaboard employees were not guilty of any comparative negligence. .

We affirm. The record supports the findings that there was no negligence on the part of Econo and its’ employees that caused the injuries. It appears from the record that the injuries were caused solely by the negligence of Randle-Eastern, the active tortfeasor, and any indemnity action by the railroad should be against Randle-Eastern.

Therefore the final judgments here under review are affirmed. Gunnell v. Largilliere, 46 Idaho 551, 269 P. 412 (1928); Strickfaden v. Green Creek Highway Dist., 42 Idaho 738, 248 P. 456 (1926).

Affirmed.

      . As to the following authority cited by the appellant, we find they are distinguishable and not applicable: Penn Central Corporation v. Checker Cab Company, 448 F.Supp. 1225 (E.D. Mich.1980) and Ross v. Penn Central Transportation Company, 433 F.Supp. 306 (W.D.N.Y. 1977) were appeals from pretrial rulings (to wit: summary judgment and motion to dismiss respectively) and dealt with the question of whether or not the F. E. L. A. action was barred by the individual states no-fault insurance laws.
      In Benson v. Penn Central Transportation Co., 228 Pa.Super. 45, 323 A.2d 160 (1974) the jury found all three parties liable, namely the railroad, the operator of the vehicle the plaintiffs were riding in, and the third party tort-feasor. The case was reversed and new trial as to liability was granted to the railroad and its agent, Diamond Cab on the basis of an erroneous jury instruction. The jury was instructed that if they found the absence of seat belts was a cause in whole or in part of the plaintiff’s injuries, the railroad would be liable.
      In Leek v. Baltimore & Ohio Railroad Company, 200 F.Supp. 368 (N.D.W.Va.1962), there was no third party tortfeasor. The accident was a single vehicle accident involving the vehicle in which the plaintiffs were riding, which ran off the road. Thus, if there was any negligence, it would have to be on the part of the driver of the agent cab company.


author: NESBITT, Judge.

text:
    Josephine STERN, as Personal Representative of the Estate of Max Josephson, Deceased, and Rose Josephson, individually, Appellants, v. FOUR FREEDOMS NATIONAL MEDICAL SERVICES, CO., Appellee.
    No. 81-1627.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Jerold Hart, North Miami Beach, for appellants. ■
    Mottlau & Wakefield, Daniels & Hicks and Elizabeth K. Clarke, Miami, for appel-lee.
    ' Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

The plaintiffs appeal from an order dismissing the cause following the denial of their motion for continuance on the day of the trial.

This was an action for wrongful death brought by the personal representative of the estate and the decedent’s wife. The case matured on the pleadings and the plaintiffs noticed the case for trial. Counsel for the plaintiffs appeared at the calendar call on June 18, 1981 and announced that he was ready. On the day the case was called for trial, June 22,1981, plaintiffs filed an emergency motion for continuance due to the illness of the decedent’s wife. After a hearing, the trial court denied the motion for continuance. After a hearing, the trial court denied the motion for continuance. Plaintiffs’ counsel refused to proceed to trial and the cause was dismissed. We agree with the trial court’s order and affirm.

The standard of review of an order denying a continuance was stated by this court, in Edwards v. Pratt, 335 So.2d 597, 598 (Fla. 3d DCA 1976), as follows:

The granting or denying of a motion for continuance is within the discretion of the trial judge and a gross or flagrant abuse of this discretion must be demonstrated by the complaining party before this court will substitute its judgment for that of the trial judge.

More specifically, when a continuance is requested because of the absence of a party, granting or refusing the motion is within the discretion of the court. McWhorter v. McWhorter, 122 So.2d 504 (Fla. 2d DCA 1960).

In the present case, the trial court was well within its discretion in denying plaintiffs’ motion for continuance because théy failed to comply with the formal requisites of Florida Rule of Civil Procedure 1.460. That rule states, in pertinent part:

The motion shall state all of the facts that the movant contends entitle him to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available.

In deciding upon the sufficiency of a motion for continuance, no presumption favorable to the applicant is to be indulged. Hall v. Florida State Drainage Land Co., 89 Fla. 312, 103 So. 828 (1925).

In the support of the motion for continuance, plaintiffs’ counsel alleged:

1. The Plaintiff, ROSE JOSEPHSON, is presently hospitalized as an in-patient at Westchester General Hospital under the care of Dr. Jeffrey Fox for treatment of Angina, Congestive Heart Failure, Lung Disease, Diabetes and Dermititis.
2. Said Plaintiff, who is 81 years of age, is unable to go to trial during said trial period due to said hospitalization and severe state of health.
3. The continuance of the trial of this cause is not sought for any purpose of hindrance or delay but rather so that the ends of justice might properly be met. There has been no prior Motions for Continuance of Trial filed in this cause.

These allegations failed to describe the subject matter of the plaintiff’s testimony so that the court could determine whether the plaintiffs’ case would be prejudiced by the absence of such evidence. See Fuller v. Rinebolt, 382 So.2d 1239 (Fla. 4th DCA 1980). Furthermore, the motion was deficient in that there was no statement as to when the plaintiff might be available for trial. See McKesson & Robbins v. Barwick, 95 So.2d 601 (Fla.1957). Because of plaintiffs’ failure to satisfy the requirements of Rule 1.460, the trial court was within its discretion in denying the motion for a continuance.

Despite this, we might have reversed the trial court’s dismissal of this cause insofar as it is an extremely drastic remedy to visit on a party, but for the fact that it was plaintiffs’ attorney who refused to proceed to trial. This left the court no alternative but to dismiss the case., In addition to refusing to go to trial, the attorney failed to seek a rehearing or attempt to file affidavits in support of his motion. To countenance the practice in the present case would, in effect, defeat the purpose of motions for continuance and allow delays as a matter of right. Trial judges have a right to ensure the orderly progress of trial litigation and counsel have a concomitant duty to aid the court and to protect their clients in the discharge of that responsibility.

For the foregoing reasons, the order dismissing the cause is affirmed.

      . Failure to provide such information is especially prejudicial to the defendant in the present case where the plaintiff is elderly and in poor health. The defendant may wish to obtain the plaintiffs deposition if it is learned that she may be unavailable for a long period of time or that her prognosis for recovery is unfavorable.

      . Were we to overlook the form of the motion, we would still be required to affirm based upon the rationale expressed in the trial judge’s order. His stated reason was that plaintiff was hospitalized prior to the June 18, 1981 calendar call when plaintiffs’ attorney announced that they were ready for trial. Counsel’s contention that he was unaware of his client’s hospitalization until June 22, 1981 is unavailing where he should have known of her illness. We do not find it to be an onerous burden to expect an attorney to inquire into the health of his eighty-one-year-old client prior to representing to the court that his client is ready for trial.

      . Thus, this case is distinguishable from the decisions under Florida Rule of Civil Procedure 1.380 where the court has alternatives to the ultimate sanction of dismissal. See e.g. Suntuoso v. McGrath & Associates, 385 So.2d 112 (Fla. 3d DCA 1980).

      . The rationale behind proceeding to trial is apparent. Because a motion to continue is temporal in nature, conditions may change during the trial so as to justify the grant or denial of the motion to continue. The presentation of the case and proffer of the absent party’s testimony may indicate to the trial judge the necessity of granting a continuance or mistrial, or may indicate to the appellate court that the trial judge abused its discretion in denying the motion to continue. Of course, it is possible that the plaintiff will obtain a favorable judgment without the party’s presence, obviating appellate review.


text:
    John BERRYMAN, Appellant, v. Rea BERRYMAN, Appellee.
    No. 81-1760.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.

      Robert Craig, Miami, Papy, Poole, Weis-senborn & Papy, Coral Gables, and Sheridan K. Weissenborn, Miami, for appellant.
    Malspeis, Lococo, Brown & Schwartz and Ronald G. Klein, North Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Appellant-husband seeks review of an order denying a motion to terminate alimony payments to his former wife.

The parties were married in 1945. At the time of the 1970 divorce, the husband was earning $18,000.00 annually. The property settlement agreement gave the wife the marital residence in fee simple as well as support for two minor children and alimony payments. Subsequently, the wife found employment while the appellant was forced to take early retirement by his employer, Pan American Airlines. The court reduced his alimony and support payments in 1977 from $360.00 per month to $260.00, one child still being a minor. The evidence shows that appellant was living on a modest pension and selling his assets in order to meet these alimony and support payments. In 1979, after the last child became emancipated, the court terminated the support obligation but found the wife still needed $200.00 per month. Husband appealed.

On these facts where the assets and earning capacity of the former husband have substantially diminished while, at the same time, the former wife has become self-supporting to the point of now being in a better financial position than appellant, it was an abuse of discretion not to terminate the husband’s alimony obligations. Vilas v. Vilas, 153 Fla. 102, 13 So.2d 807 (Fla.1943); Goldin v. Goldin, 346 So.2d 107 (Fla. 3d DCA 1977); Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976).

Reversed and remanded.


text:
    Robert RUSSELL, Jr., Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-1774 to 81-1785, 81-1831 and 81-1933.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Bennett H. Brummer, Public Defender, and Sheldon R. Schwartz and Alvin E. En-tin, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Caudillo v. State, 400 So.2d 122 (Fla. 4th DCA 1981); Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980); Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980); Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1979); Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).


author: HENDRY, Judge.

text:
    Morton J. SCHOMER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Appellee.
    No. 81-1805.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Michael B. Udell, North Miami Beach, for appellant.
    Salvatore A. Carpino, Tallahassee, for ap-pellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   HENDRY, Judge.

Appellant Morton Schomer seeks review of a final order of the Board of Optometry suspending his license for three months for violations of Chapter 463, Florida Statutes, and rules pursuant thereto. The only question presented which merits discussion is whether the Board’s final order, adopting the recommended order of the hearing officer, departed from statutory requirements by failing to include individually stated findings of fact and conclusions of law, and failing to explicitly rule on each proposed finding of fact submitted by appellant pursuant to section 120.57(l)(b)4, Florida Statutes (1979).

Prior to the formal administrative hearing in this case, appellant filed proposed findings of fact and conclusions of law. Subsequent to the hearing a recommended order was entered, to which appellant filed exceptions. In a two paragraph final order, the Board adopted and incorporated by reference the findings of fact and conclusions of law contained in the hearing officer’s recommended order.

Appellant’s argument centers upon the following two provisions of section 120.59 of the Florida Administrative Procedure Act, Florida Statutes (1979), which state in relevant part:

(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated.. . .
(2) If, in accordance with agency rules, a party submitted proposed findings of fact. .. the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.

We find that the Board’s final order does not violate the requirement of section 120.59(1) that findings of fact and conclusions of law be separately stated. The Board’s order specifically adopted the findings of fact and conclusions of law of the hearing officer who submitted a detailed report and recommended order separately stating his. findings, conclusions, and recommendations. Section 120.57(l)(b)9, Florida Statutes, clearly permits an agency to adopt the recommended order as the agency’s final order or to reject or modify the conclusions of law. City of Panama City v. Florida Public Employees Relations Commission, 364 So.2d 109 (Fla. 1st DCA 1978); Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). Since incorporation by reference of a hearing officer’s report in an agency order is sufficiently expositive to satisfy statutory requirements, City of Orlando v. International Association of Fire Fighters, Local, 384 So.2d 941 (Fla. 5th DCA 1980); Gentry v. Department of Professional and Occupational Regulations, 283 So.2d 386 (Fla. 1st DCA 1973), the only remaining question is whether the hearing officer’s disposition of appellant’s proposed findings satisfied the statute.

The basis for the requirement in section 120.59(2) that an administrative party’s proposed findings of fact be ruled upon is that without a fairly distinct treatment of the proposed findings the reviewing court must go through the entire record to determine whether the order corresponds to the evidence. This provision thus requires the agency to, on the record, discuss, treat and dispose of the major factual issues in the case.

As with all such rules, however, the courts will not elevate form over substance, and accordingly, the agency need not independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been considered and ruled upon and not overlooked or concealed.

In the present case, appellant proposed thirty-three findings of fact. The hearing officer set out findings of fact which do not correspond numerically to those proposed by appellant. However, this court has carefully scrutinized the recommended order and compared the appellant’s proposed findings with the findings of fact and conclude that no proposed finding of fact was completely disregarded or overlooked by the agency. Rather, the agency adopted the appellant’s proposed findings in many instances, entered findings of fact which were contrary to appellant’s proposed findings in others, and in the remaining instances specifically stated that:

To the extent that the following Findings of Fact do not contain the proposed findings, they have been rejected as not being relevant to the issues or not being based upon evidence adduced at the hearing, or as being inconsistent with evidence which the Hearing Officer deems more credible.

Subordinate, cumulative, immaterial or unnecessary proposed facts in administrative proceedings may properly be rejected by a simple statement that they are immaterial or irrelevant, Wong v. Career Service Commission, 371 So.2d 530 (Fla. 1st DCA 1979); Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979), and no substantive proposed finding is unaddressed by the agency’s order in this case. Accordingly, any departure from the statute did not materially impair the fairness or correctness of the proceedings, see Adult World, Inc. v. State, Division of Alcoholic Beverages and Tobacco, 408 So.2d 605 (Fla. 5th DCA 1981); Parekh v. Career Service Commission, 346 So.2d 145 (Fla. 1st DCA 1977); sec. 120.-68(8), Fla.Stat. (1979), and is not contrary to the letter or spirit of section 120.59, Florida Statutes (1979).

Affirmed.

      . Although we decline to hold that such a form is required by section 120.59, it would be helpful in the future for agencies to specifically set out proposed findings of fact and responses thereto in order to aid the reviewing court and protect the rights of parties affected by administrative action,


text:
    Lynell VAIL, a minor, By and Through his mother and next friend, Annie Vail JONES, and Annie Vail Jones, individually, Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 81-1851.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Horton, Perse & Ginsberg and Arnold Ginsberg; Yanks & Turner, Miami, for appellants.
    Robert A. Ginsburg, County Atty., and Craig H. Coller, Asst. County Atty., for appellee.
    Before HENDRY and NESBITT, JJ. and OWEN, WILLIAM G, Jr., (Ret.) Associate Judge.
   PER CURIAM.

Affirmed. Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980); Relyea v. State of Florida, 385 So.2d 1378 (Fla. 4th DCA 1980).


text:
    Bobby NAIRN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2103.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender and Kathleen Mahoney, Certified Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The sentence which is under review by this appeal is reversed and the cause is remanded to the trial court for resentencing under Chapter 958, Florida Statutes (1981) (The Youthful Offender Act). The trial court erroneously ordered that the defendant Bobby Nairn not be eligible for parole for three (3) years under the adult sentencing statute, Section 775.-087(2), Florida Statutes (1981). We have held that this statute [§ 775.087(2), Fla. Stat. (1981) ] is inapplicable when a defendant, as here, is sentenced as a youthful offender under Chapter 958, Florida Statutes (1981). Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981) (decided subsequent to the sentencing in this cause). We, accordingly, have no alternative but to reverse and remand for resentencing under Chapter 958, Florida Statutes (1981).

The judgment of conviction, however, which is also under review by this appeal is affirmed. The prosecuting attorney’s comment to the jury attacked on this appeal, although technically improper, had no impact whatever, in our view, on the outcome of this case, and, accordingly, presents no reversible error. § 924.33, Fla. Stat. (1981).

Affirmed in part; reversed in part and remanded.


author: BASKIN, Judge.

text:
    The DEPARTMENT OF TRANSPORTATION, Appellant, v. The CITY OF MIAMI, Appellee.
    Nos. 81-2224, 81-2754.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.

      Margaret-Ray Kemper and Jay 0. Barber and John H. Beck and Mark A. Linsky, Tallahassee, for appellant.
    Jose R. Garcia-Pedrosa, City Atty., and Mikele S. Carter, Asst. City Atty., for ap-pellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We reverse the final judgment entered by the trial court following its dismissal of appellant’s complaint for failure to state a cause of action. The dismissal was improperly predicated upon affirmative defenses which may not be asserted in a motion to dismiss. Hough v. Menses, 95 So.2d 410 (Fla.1957); Vaswani v. Ganobsek, 402 So.2d 1350 (Fla. 4th DCA 1981); Sproul v. McDonald’s Systems, 397 So.2d 462 (Fla. 4th DCA 1981); In re Estate of Donner, 364 So.2d 757 (Fla. 3d DCA 1978); Fontaine-bleau Hotel Gorp. v. Forty-Five Twenty-Five, Inc., 172 So.2d 248 (Fla. 3d DCA 1965); Moskovits v. Moskovits, 112 So.2d 875 (Fla. 1st DCA 1959); Fla.R.Civ.P. 1.110(d).

Reversed and remanded for further proceedings.


text:
    Ann Lynn GORDON, Appellant, v. Michael GORDON, a/k/a Mike Gordon, Appellee.
    No. 81-2438.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Abrams & Abrams and Brenda Abrams and Carol R. Gersten, Miami, for appellant.
    Lawrence E. Hoffman, Miami Beach, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court’s order denying the wife’s petition to modify child support is affirmed. The order on the wife’s motion to reduce alimony arrearages to final judgment, which finds that the husband is indebted to the wife in the amount of $17,011.72 on account of lump sum alimony, past due under the parties’ property settlement agreement, is affirmed with directions to enter final judgment for the wife in that amount.

Affirmed as modified.


text:
    Mary CAMINA and Leo Camina, her husband, Appellants, v. PARLIAMENT INSURANCE COMPANY, a foreign corporation, and Classic Fashions, Inc., a Florida corporation, Appellees.
    No. 81-2751.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appellants.
    Underwood, Gillis, Karcher, Reinert & Valle and Stephen E. Tunstall, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the trial court’s order directing a verdict for the defendant upon a holding that notwithstanding the plaintiff’s inability to elicit direct testimony as to the length of time that the thawed ice cream upon which she slipped and fell had been on the floor of the entranceway to the defendant’s store, an area which a storekeeper has a duty to maintain with the exercise of ordinary and reasonable care, Burmeister v. American Motorists Insurance Co., 403 So.2d 541 (Fla. 4th DCA 1981); circumstantial evidence is sufficient to show that a dangerous condition existed for such a length of time so as to charge the storeowner with constructive notice, Schmidt v. Bowl American Florida, Inc., 358 So.2d 1385 (Fla. 4th DCA 1978); Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla. 3d DCA 1972); and the evidence here that, inter alia, the ice cream was thawed, dirty and splattered, although susceptible of the inference that the plaintiff’s slip and fall had created the condition, was equally susceptible of the inference that the condition existed beforehand, Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973); Bur-meister v. American Motorists Insurance Co., supra; Grizzard v. Colonial Stores, Inc., 330 So.2d 768 (Fla. 1st DCA 1976); Lee v. Southland Corporation, 253 So.2d 268 (Fla. 2d DCA 1971), so as to make the issue of the defendant’s constructive notice of the condition one to be resolved by a jury, Montgomery v. Florida Jitney Jungle Stores, Inc., supra.

Reversed and remanded.


text:
    Manley E. GETTYS, Appellant, v. Gloria BROWNING, et vir., Appellees.
    No. 82-345.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.

      Salley, Barns, Pajón, Guttman & Del Valle and Deborah S. Chames and Paul D. Barns, Jr., Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the trial judge’s order refusing to vacate and set aside a final judgment entered after default. The proof presented below to overcome the presumptive correctness of the return, Vellanti v. Piper Aircraft Corp., 394 So.2d 1063 (Fla. 3d DCA 1981), which reflected that Gettys was personally served was neither undisputed nor so clear and convincing as to require that the default be set aside. The record evidence and the reasonable inferences to be drawn therefrom support the trial judge’s conclusion, and we cannot substitute our judgment for his. Compare Winky’s, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1970), with McIntosh v. Wibbeler, 106 So.2d 195 (Fla.1958).

Affirmed.


text:
    S. J. RUDOLPH, Trustee, Appellant, v. Thelma R. UNGER and Victoria Richard, Appellees.
    No. 82-1045.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.

      Myers, Kaplan, Levinson, Kenin & Richards and Bruce J. Berman and William M. Grodnick, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.

       Although Judge Hendry participated in the decision he did not hear oral argument.

   PER CURIAM.

We hold that the trial court properly denied attorney’s fees to a mortgagor upon the release of a part of the real property included in a lien created by a 1974 mortgage. The mortgagor claimed fees pursuant to Section 701.04 of the Florida Statutes as amended in 1980.

First, the statute creating the right to recover fees was adopted after the execution of the contract and does not have retroactive effect. Tuggle v. Government Employees Insurance Company, 220 So.2d 355 (Fla.1969); McCord v. Smith, 43 So.2d 704 (Fla.1950); Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977). Secondly, a partial release of certain lands encumbered by mortgage is not a satisfaction. The statute is in derogation of the common law and should be strictly construed. Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977); Board of Regents of the State of Florida v. Coffey, 378 So.2d 52 (Fla. 1st DCA 1979); Stone v. Town of Mexico Beach, supra; Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960).

Attorney’s fees are only recoverable under this statute when the lein created by the mortgage is “fully paid”. Then a successful mortgagor who brings a legal proceeding is entitled to fees.

Therefore the order under review is affirmed.

Affirmed.

      . 701.04 Cancellation of mortgages, liens, and judgments. Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien or judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment: In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney's fees and costs.


text:
    Herman WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1472.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Herman Williams, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    STATE of Florida, Appellant, v. Amos JACKSON, Jr., Appellee.
    No. 81-114.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Sydney H. McKenzie, III, Chief Trial Counsel, Dept, of Legal Affairs, Tallahassee, for appellant.
    Richard Seay, Fort Lauderdale, for appel-lee.
   MINER, CHARLES E., Jr., Associate Judge.

The State of Florida appeals an order of the Broward County Court finding the enhanced penalty provisions of Section 318.-18(3), F.S., 1980 to be unconstitutional.

Appellee, Amos Jackson, Jr., was issued a traffic citation for driving at a speed of 82 mph where the posted speed limit was 55 mph. He originally entered a plea of not guilty but later changed his plea to no contest and moved for reduction of penalty by asserting that Section 318.18(3) was unconstitutional.

Section 318.18(3) provides a basic civil penalty for moving traffic violations which do not require a mandatory court appearance. This section further provides for additional fines when the lawful speed limit is 55 mph and establishes categories of additional fines based upon the amount by which the speed limit is exceeded. Since Mr. Jackson was cited for exceeding the posted speed limit by 27 mph, his fine could have been the maximum amount established by Section 318.18(3). The trial court agreed with appellee’s assertion and found Section 318.18(3) to be unconstitutional, basing its decision on similar findings by other trial courts. From this finding the State filed a timely appeal.

Jackson first argues that the State of Florida has waived the right to appeal by failing to appear in the trial court to argue the constitutionality of the statute. We find this contention to be without merit. State v. Johnson, 345 So.2d 1069 (Fla.1977).

We note that the trial judge did not specify in the order appealed from the reasons for finding Section 318.18(3) unconstitutional. The opinions in the footnoted cases and cited in his order appear to be couched in terms of the equal protection clauses of the United States Constitution and the Florida Constitution. Additionally, the memorandum submitted to the trial court by the defendant-appellee asserted that the surcharges established by Section 318.18(3) violated the constitutional prohibition against excessive fines. Since we cannot be certain of the grounds upon which the trial court ruled, we shall address both issues.

It is long established that an act of the Legislature carries with it a presumption of constitutional validity, and doubts must be resolved in favor of the will of the Legislature. State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905); State ex rel. West v. Butler, 70 Fla. 102, 69 So. 771 (1914). When the Legislature creates specific classifications within the scheme of a statute, those classifications will be upheld where the distinction rests upon some “. .. real and practical basis in relation to the purpose of the legislation.” Gluesenkamp v. State, 391 So.2d 192, 200 (Fla.1980).

In this regard, we adopt the reasoning of our sister court in the Second District in State v. Garner, 402 So.2d 1333 (Fla. 2d DCA 1981). We find that the Legislature could reasonably determine that highways with 55 mph speed limits required special attention to protect the safety of our citizens. Since the classifications created by Section 318.18(3) rests upon a real and practical basis in promoting highway safety, they are constitutionally sound.

With respect to appellee’s excessive fine argument, the standard to be applied was enunciated by the Florida Supreme Court in Amos v. Gunn, 84 Fla. 285, 94 So. 615, 641 (1922). There the Court stated “. .. the courts will not declare a statutory fine to be excessive in violation of the Constitution unless it is plainly and undoubtedly in excess of any reasonable requirements for redressing the wrong.” This standard was later clarified in State v. Champe, 373 So.2d 874, 879 (Fla.1978) wherein the Court stated, “. . . the Legislature is free to set civil fines and penalties in amounts which are not so excessive as to be cruel or unusual ... . ” We find that the enhanced civil fines of $25 or of $50 are not so excessive as to be cruel or unusual. Nor are they in excess of reasonable requirements to redress the wrong of excessive automobile speeds on the state’s highways.

Accordingly we find Section 318.18(3), F.S. to be a valid exercise of the state’s police powers.

The Order of the Broward County Court dated December 19, 1980, and the Amended Order of that same court dated January 7, 1981 are hereby REVERSED, and the cause is REMANDED to the trial court for entry of a final order consistent with this opinion.

ANSTEAD and HURLEY, JJ., concur.

      . State v. Garner, 80-7474-TB-C (Fla. 12th Cir. Ct., 1980); State v. Schwartzfelder, 80-108242-TT-A02 (Fla. Palm Beach Co. Ct., 1980); State v. Best, 80-108183-TT-A02 (Fla. Palm Beach Co. Ct., 1980).


author: DOWNEY, Judge.

text:
    Jimmy Michael McCLELLAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-2298.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.

      Richard L. Jorandby, Public Defender, Charles Peters, Asst. Public Defender, and Edward Malavenda, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Prior to voir dire examination of the jury, appellant moved the court in limine to prohibit the State from using appellant’s prior conviction of petty theft for impeachment purposes. Appellant contended that petty theft may or may not involve dishonesty or false statements; if it does not, then it can not be used at trial to impeach defendant. The trial judge concluded that the proper procedure to impeach a witness based on prior convictions is for the prosecutor to ask the witness if he had ever been convicted of a crime. If the witness answers yes, the prosecutor may then ask how many times. If the response is correct, the inquiry ends. The court ruled it was not necessary for the court to inquire about the nature of the crimes nor to determine whether dishonesty or a false statement was involved in appellant’s conviction of petty theft.

During the trial, appellant was asked by his counsel on direct examination whether he had ever been convicted of a crime. He acknowledged that he had. When asked how many times, he answered, “Just twice.” Appellant’s argument on appeal contends that the trial judge’s ruling in limine forced appellant to bring out the convictions on his direct examination as a matter of trial tactics. The State, on the other hand, argues that it never attempted to impeach appellant, but that the incriminating evidence was adduced by appellant during his own direct examination.

We hold that the trial judge was wrong in his conclusion about the proper procedure to be followed in' impeaching a witness under Section 90.610(1), Florida Statutes (1981). However, he did not have the benefit of our opinion in Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), wherein this court held that such impeachment should be commenced by asking two questions, “Have you ever been convicted of a felony?” and “Have you been convicted of a crime involving dishonesty or false statement?” Then, of course, the number of convictions would be an appropriate inquiry. Cummings also notes that it may be appropriate for the court, out of the presence of the jury, to instruct the witness as to the types of crime involving dishonesty or false statement.

Although the trial judge erred in his ruling regarding the impeachment procedure, we hold the error to be harmless because appellant adduced the impeachment evidence himself. In Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA 1982), the trial court’s in limine ruling caused the defendant not to take the witness stand. Being forced into waiving that important right precluded the appellate court from finding harmless error. In the present case, the court’s ruling may have influenced appellant to present the second conviction as a tactical move rather than allow the State to expose appellant’s criminal record on cross-examination. Regardless, under these circumstances, we be-Heve the trial court’s error was harmless. Bracey v. Reynolds, 414 So.2d 1081 (Fla. 4th DCA 1982).

We have considered appellant’s other point and find no error there. Accordingly the judgment appealed from is affirmed.

BERANEK and HURLEY, JJ., concur.


text:
    PALM BEACH NEWSPAPERS, INC., WTWV, Inc., d/b/a WTVX-34, and News and Sun-Sentinel Company, a Delaware corporation, d/b/a Fort Lauderdale News and Sun-Sentinel, Petitioners, v. The Honorable Carl H. HARPER, Respondent.
    No. 82-942.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Florence Beth Snyder, West Palm Beach, for Petitioners-Palm Beach Newspapers, Inc., and WTVX-34, and Wilton L. Strickland of Ferrero, Middlebrooks & Strickland, P. A., Fort Lauderdale, for Petitioner-News and Sun-Sentinel Co.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
    Robert T. Scott, of Gunster, Yoakley, Criser & Stewart, P. A., Palm Beach, for Herbert Pulitzer, Jr., amicus curiae.
   PER CURIAM.

Petitioners, two newspaper publishers and a television station, filed a petition, pursuant to Florida Rule of Appellate Procedure 9.100(d), to review the trial court action that, petitioners contend, excluded the press and public from access to a judicial proceeding.

We have considered the petition and responses and have read the transcript of the chambers conference from which the press was excluded. It is our considered judgment that the conference between the judge and counsel was not a judicial proceeding at which the press and public were entitled to be present. The purpose of the conference was to enable the judge to apprise counsel of the fact that his secretary had received an anonymous telephone call criticizing one of the parties and suggesting that the court file in the pending case should not be sealed. The judge’s action in advising counsel of the anonymous call was ethically appropriate. To require that the statement of an anonymous caller denigrat-

ing one of the parties be made public would serve no useful purpose. We would categorize the subject of this conference as being within the purview of those chambers matters referred to in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), wherein it is stated:

Thus, when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle. Nor does this opinion intimate that the judges are restricted in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings. 448 U.S. 555, 100 S.Ct. 2814, at 2839, n.23, 65 L.Ed.2d 973.

Notice and a hearing are only required when the court decides to close a proceeding at which the press is entitled to be present. This is hot one of those proceedings.

Although all the parties discuss an additional question involving the requested sealing of the wife’s deposition without the McIntosh due process procedures, petitioners contend that they are not requesting review of that motion, which the court has not yet acted upon. Accordingly, we will treat only the single question presented by petitioners.

Accordingly, the petition is DENIED.

DOWNEY, DELL and WALDEN, JJ., concur.


text:
    TELEPROMPTER SOUTHEAST, INC., Appellant, v. Marian BARNETT, etc., Appellees.
    No. 81-2274.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Sidney A. Stubbs, Jr. of Jones & Foster and Larry Klein, West Palm Beach, for appellant.
    Paul Rampell of Barnett & Alagia, Palm Beach, for appellees.
   PER CURIAM.

We dismiss this appeal on the authority of National Lake Developments, Inc. v. Lake Tippecanoe Owners Assn., 417 So.2d 655 (Fla.1982).

DOWNEY, HERSEY and WALDEN, JJ., concur.


text:
    GREAT HORIZONS DEVELOPMENT, INC., Robert Bakerman, as Trustee, and Wasil Horty, Appellants, v. SUN BANK OF WILTON MANORS, N. A., Appellee.
    No. 82-72.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.

      Brad June of Law Office of Robert Bak-erman, Miami, for appellants.
    No appearance for appellee.
   PER CURIAM.

We agree with appellants that the appellee is entitled to a personal judgment and execution thereon against appellants for appellate attorney’s fees only upon a demonstration of the same factors that would entitle the appellee to a deficiency decree against appellants. No such showing was made below. We reject the contention of appellant, Great Horizons Development, Inc., that it can not be held responsible for attorney’s fees because it was not an original party to the mortgage. This court’s determination of appellee’s entitlement to fees in an earlier appeal precludes our consideration of that issue now.

Accordingly, we reverse the order of the trial court and remand without prejudice to the right of the appellee to seek a personal judgment for attorney’s fees in accord with this opinion.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: HERSEY, Judge.

text:
    U-HAUL COMPANY OF NORTHERN FLORIDA, INC., Appellant, v. Henry FULLER, Appellee.
    No. 81-2200.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Paul Richard Bloomquist of Haddad & Josephs, Miami, for appellant.
    Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellee.
   HERSEY, Judge.

This appeal from a non-final order denying a motion to dismiss or to transfer based upon improper venue is controlled by Section 47.051, Florida Statutes (1981). Suit was filed in Broward County to recover damages for a tort committed in Duval County (in addition to tortious conduct occurring in the State of Georgia). Venue was asserted by appellee to be in Broward County on the theory that because a U-Haul trailer leased from U-Haul Company of Northern Florida, Inc., could be delivered to U-Haul Company of Central Florida, Inc. (by virtue of an arrangement existing among U-Haul companies nationwide) the latter company constituted an agent of the former company for venue purposes. The trial court agreed; we do not.

There are five separate and distinct corporations doing business in Florida under the U-Haul name and logo. The stock of all five corporations is owned by one individual. The various U-Haul companies work under an arrangement whereby a trailer leased from one corporation may, by prior written agreement, be returned to a different corporation in another city or state.

Venue of an action against a domestic corporation is properly laid “. .. in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” Section 47.051, Florida Statutes (1981); Walt Disney World Company v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975); Gaboury v. Flagler Hospital, Inc., 316 So.2d 462 (Fla. 4th DCA 1975).

The causes of action stated in the complaint are not based upon contract or even tortious breach of contract. The plaintiff (appellee here) does not allege the leasing of a trailer and no lease was involved in this case. The action does not involve real or personal property so that only the first two factors set out by the statute have application here.

The record indicates that U-Haul Company of Northern Florida, Inc., has its main office in Jacksonville and that the cause of action arose in Duval County. Even if it be assumed that the nexus alleged by appellee to exist supports a finding that the corporation located in Broward County is the agent (for some purposes) of the corporation located in Duval County, it does not follow and indeed the record contains no support for the proposition that the Duval County corporation has an office in Broward County “for transaction of its customary business.” Doing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic, as opposed to a foreign, corporation. Rodin v. Auto-Train Corp., 377 So.2d 810 (Fla. 3d DCA 1979).

On remand appellee should be permitted to transfer this cause to Duval County, failing which, the complaint will be dismissed.

REVERSED AND REMANDED.

BERANEK and WALDEN, JJ., concur.


text:
    In the Interest of R. T., a child.
    No. 80-1851.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We dismiss this appeal from a non-final order of the circuit court, juvenile division, waiving jurisdiction over the minor child, R. T. and certifying him for trial as an adult, on the authority of R. J. B., a child v. State, 408 So.2d 1048 (Fla.1982).

APPEAL DISMISSED.

LETTS, C. J., BERANEK, J. and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


text:
    STATE of Florida, Appellant, v. Raymond C. VANYO, Appellee.
    No. 82-279.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Diane R. Tolbert, Key West, for appellee.
   DOWNEY, Judge.

The State seeks reversal of a trial court order suppressing tape recorded conversations obtained without a warrant. The tapes in question involve a personal conversation between appellee and undercover agents at a restaurant and telephone conversations between appellee in his home and agents outside the home. To establish the geographical and factual setting, we set out a portion of the State’s statement of the case and facts:

The Defendant filed a motion to suppress certain evidence, which was tape recordings of intercepted wire or oral communications (S). On January 11, 1982, the trial court conducted a pretrial motion hearing and heard the motion to suppress. The State and the Defense stipulated to the evidentiary basis for the motion. There was no search warrant obtained for any of the interceptions (T.42). All of the communications, which were telephone conversations and one face to face meeting, were recorded with the consent of the undercover law enforcement officers involved, who were parties to the conversations (R 42 — 43). The recording was not done in the Defendant’s home; although telephone conversations with the Defendant when he was in his home were recorded, the recording device was on the other end, outside his home (R.43). The taped face to face meeting occurred in a public restaurant at a Holiday Inn (T.42). The trial court accepted this stipulated statement as true (T.44). (Footnote omitted. Emphasis added.)

With regard to the telephone conversations involving appellee in his home, appel-lee contends that State v. Sarmiento, 397 So.2d 643 (Fla.1981), and Odom v. State, 403 So.2d 936 (Fla.1981), require their suppression because no warrant was obtained. The trial court granted the motion to suppress on authority of Odom, supra.

We hold that the tapes of the conversations held in the public restaurant were not subject to suppression because they complied with the provision of Section 934.-03(2)(c), Florida Statutes (1981). The tapes of the telephone conversations are a little more troublesome because they involve ap-pellee in his home. However, they do not involve a conversation between two or more people all of whom were in appellee’s home as in Sarmiento and Odom, supra. Instead, they involve a conversation between appel-lee in his home and the undercover agent outside the home being recorded outside the home. This type of interception was held to be lawful in Miller v. State, 411 So.2d 944 (Fla. 4th DCA 1982).

In relying upon Odom, the trial judge did not have the benefit of the Supreme Court’s decision in Hill v. State, Case No. 60,144, Opinion filed July 15, 1982; 7 Fla.L.W. 324, wherein the Supreme Court made it clear that the taped conversations in Odom took place in Odom’s home. Thus, Odom is simply a confirmation of the holding in Sarmiento and not authority for suppression of the tapes in this case.

Accordingly, the order suppressing the tapes in question is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED with directions.

BERANEK and HURLEY, JJ., concur.


text:
    R. L. H., Jr., a child, Appellant, v. STATE of Florida, Appellee.
    No. 81-1808.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We are asked to decide which of two triggering events — one specified in Rule 8.110(e), Fla.R.Juv.P., and another set forth in Section 39.05(6), Florida Statutes (Supp. 1980) — should be used to compute the forty-five day time period for filing a delinquency petition. Because Section 39.05(6), Florida Statutes (Supp.1980), grants substantive rights, we hold that it supersedes Rule 8.110(e), Fla.R.Juv.P., to the extent that they conflict.

Both the statute and the rule establish a forty-five day period for filing a delinquency petition. The statute, however, utilizes the date a child is taken into custody as the triggering date while the rule uses the date a complaint is referred to the intake office. The history behind this discrepancy was recounted in appellee’s brief in this manner:

Effective June 9, 1980 Fla.RJuv.P. 8.110(e) was amended by the Florida Supreme Court to conform with § 39.05(6), Fla.Stat. (1979) so that both would specify a forty-five day period from the date the complaint was referred to the intake office for the filing of the petition. In § 7 of Chapter 80-290, Laws of Florida, § 39.05(6) was amended so that the forty-five day period in the statute would begin to run from the date on which the child was taken into custody, and the amendment was effective on July 1, 1980. Thus, the rule and statute coincided for a mere twenty-one days ....

In the case at bar, the trial court denied a motion to dismiss one count in a delinquency petition and held that the rule controlled. We are compelled to disagree. The Florida Supreme Court has established that the statutory period for filing a delinquency petition prevails over the analogous court rule whenever the two conflict. L. H. v. State, 408 So.2d 1039 (Fla.1982); S. R. v. State, 346 So.2d 1018 (Fla.1977). Consequently, the trial court should have dismissed count I because the state failed to file the petition within forty-five days from the date the child was taken into custody as required by the statute, notwithstanding that the state filed the petition within forty-five days from the date the complaint was referred to the intake office as required by the rule.

Accordingly, the appellant’s conviction on the trespassing count is reversed.

DOWNEY, HERSEY and HURLEY, JJ., concur.

      . The relevant versions of rule and statute are as follows:
      Fla.R.Juv.P. 8.110(e):

        Prompt Filing. On motion by or in behalf of a child a petition alleging delinquency shall be dismissed with prejudice if it was not filed within forty-five (45) days from the date the complaint was referred to the intake office. However, the court may grant an extension of time not to exceed an additional fifteen (15) days upon motion therefor by the state attorney when, in the opinion of the court, such additional time is justified because of exceptional circumstances.
      (Emphasis supplied.)
      Section 39.05(6), Florida Statutes (Supp.1980):
      On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody. The court may grant an extension of time, not to exceed an additional 15 days, upon such motion by the state attorney when, in the opinion of the court, such additional time is justified because of exceptional circumstances.
      (Emphasis supplied.)