author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. John H. JAMEISON, Jr., Respondent.
    No. 59587.
    Supreme Court of Florida.
    Jan. 13, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Nolan Carter, Orlando, for respondent.
   PER CURIAM.

This lawyer-discipline proceeding is before the Court on the complaint of The Florida Bar, the report of a referee, and the petitions of both parties for review. We have jurisdiction. Art. V, § 15, Fla. Const.

The Bar brought its complaint in six counts. The referee found respondent not guilty on three of the counts, and the Bar has not sought review of those determinations. The remaining three counts, upon which the referee found respondent guilty of misconduct, all arose out of respondent’s relationship with one elderly client. The respondent has petitioned for review of the referee’s findings of fact. The Bar has petitioned for review of the referee’s recommended discipline of one year’s suspension, and recommends that respondent be disbarred.

The referee recommended that respondent be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102, 2-106(A) and (B), 5-104(A), 6-101(A)(3), and 7-101(A)(3), based on the following findings of fact:

1. Respondent, John H. Jameison, Jr., is, and at all times hereinafter mentioned, was, a member of The Florida Bar, subject to the jurisdiction and discipline rules of The Supreme Court of Florida.

2. In the spring of 1978, Mr. Andrew G. Hvolbek attended a Masonic Lodge meeting in Mt. Dora, Florida, where he heard the respondent make a speech. He was very much impressed with respondent’s personality at that time. Mr. Hvolbek was approximately 88 years old. In late 1980, after these proceedings were commenced, Mr. Hvolbek became incompetent and remains so. He had been a Mason for over 60 years and was devoutly committed to the principles of Masonry and its members.

3. Upon hearing the respondent speak so well concerning the teachings of Masonry, Mr. Hvolbek decided he would seek respondent’s services regarding an insurance problem. He wrote to respondent over a period of several weeks seeking his services regarding the insurance problem as well as the dissolution of a trust in a local bank, the making of a new Will, and the distribution of certain gifts of money to various organizations and persons. Finally, the respondent got in touch with Mr. Hvolbek in the early part of August, 1978.

4. Upon the first meeting of the parties, Mr. Hvolbek was so taken with the respondent’s personality he revealed his complete financial picture to the respondent. He had approximately $47,000.00 in a trust account and savings account. Mr. Hvolbek wanted the respondent to run against Richard Kelly in the next election. He offered respoon-dent $25,000 for his campaign if he would run against Kelly and then, later, respondent would become President of the United States. He also wanted to liquidate his trust with a local bank so as to make gifts to Masonic organizations, individuals and relatives.

5. Respondent refused to consider running against Richard Kelly; however, he then told Mr. Hvolbek about a plan respondent and his wife had about wanting to establish a foundation to help youthful offenders. Mr. Hvolbek thought that the plan was a great idea and would fit within the teachings and ideology of Masonry. Respondent suggested Mr. Hvolbek make a gift of $20,000.00 to be used as seed money for the foundation which was done.

6. The evidence reveals at the time the parties met in August, 1978, the respondent was practicing law in Orlando and had, up until recently, been practicing law in Mt. Dora, Florida, for approximately three years and had been quite active in civic affairs in that community. He was married to a professional faith healer. He also conducted a talk show from a radio station in Orlando for several months. The respondent and his wife were living in Orlando, Florida, in the Presidential Suite in a local highrise complex overlooking Lake Eola. He maintained his law office and living quarters in the Presidential Suite. Both husband and wife worked closely together in the conduct of a counseling and faith healing business in the apartment.

7. Immediately after the first conference between Mr. Hvolbek and the respondent, the respondent apparently put everything aside to devote to the wishes and business of Mr. Hvolbek. Many conferences were conducted in the Jameisons’ apartment between the parties. Mr. Hvol-bek was invited from time-to-time to spend the night in the apartment so that details could be worked out concerning the gifts, the making of a new Will and the setting up of the foundation. It is clear from the record and the reasonable inferences to be drawn therefrom, the respondent had the complete trust and confidence of Mr. Hvol-bek from the time he met him until the middle part of February, 1979.

8. In August, 1978, respondent arranged a separate bank account for Mr. Hvolbek to make gifts to several Masonic organizations, other individuals and a foundation to be established by the respondent.

9. On or about August 15, 1978, respondent and Mr. Hvolbek went to The First National Bank of Mt. Dora where they arranged for the revocation of Mr. Hvolbek’s 1973 living trust and for liquidation of all of its assets. The trust’s net proceeds as of the end of August were over $43,000. These assets were subsequently deposited in a special distribution account, number 39-5552, at the same bank. It was a joint account with right of survivorship in the names of the respondent and Mr. Hvolbek.

10. On or about August 18, 1978, Mr. Hvolbek executed a new Last Will and Testament prepared by the respondent as well as a document entitled “Special Distribution Account Instructions for Account No. 39-5552.” Both documents were executed in the office of Charles E. Brooks, III, Trust Officer of The First National Bank of Mt. Dora. Respondent received $975 in legal fees from the special account in August, 1978.

11. Article Y of the new Will referred to the Andrew G. Hvolbek special distribution Account No. 39-5552 which latter document provided for several distributions to Masonic Lodges in New York and Florida as well as disbursement of $20,000 to the respondent to be utilized for humanitarian purposes through an organization yet to be established. The instructions also directed the respondent to distribute to himself such amounts as would compensate him for his professional services.

12. On or about October 17, 1978, Mr. Hvolbek executed a document entitled “First Amended Distribution Instructions for Account No. 39-5552,” which, reduced two gifts and instructed respondent to reduce to a final bill, all past, present, and future professional fees. On or about October 26,1978, Mr. Hvolbek executed a document entitled “Second Amended Distribution Instructions for Account No. 39-5552” which provided for a $5,000 disbursement to the respondent, who had previously received $975 in August, 1978, as compensation for all pa§t, present and future services.

13. On January 22, 1979, Mr. Hvolbek executed a document entitled “Third Amended Distribution Instructions for Account No. 39-5552” which instructed the respondent to invest $10,000 in an interest earning six-month money market certificate to be purchased through a savings and loan association.

14. All of the aforementioned documents were executed in the offices of the trust officer of The First National Bank of Mt. Dora. In each case, respondent advised the trust officer he had instructed Mr. Hvolbek of the documents’ contents. Mr. Hvolbek executed each document in the presence of the trust officer and other witnesses. The evidence is clear that at this time Mr. Hvolbek was suffering from a serious hearing deficiency, but could read without the aid of glasses. There is no evidence that he did not possess testamentary capacity at this time. There is no evidence Mr. Hvolbek read the instruments before executing same.

15. On or about November 1, 1978, the respondent established the “Jameison Foundation” which stated purpose was to “help people help themselves by more effectively utilizing some basic fundamental principles in counseling hyperactive children and helping troubled youth.” The genesis of this foundation occurred during the previous summer at or about the time Mr. Hvolbek determined to place through respondent’s request and urging, the $20,000.00 in paragraph eleven above as seed money which was transferred to respondent’s trust account by check dated September 18,1978.

16. The Jameison Foundation was and is located at respondent’s law office address. The three-member Board of Trustees of the Foundation included both respondent and his wife, Robyn Jameison.

17. The respondent hired an Orlando law firm to draw up the legal papers for the establishment of the foundation. The charter is drawn in such a manner as to give both the respondent and his wife complete control of the foundation including unlimited control of policy making and the spending of funds.

18. During approximately the first year of operations of the Jameison Foundation, substantially all of the money in the foundation was represented by the $20,000 given by Mr. Hvolbek. Several disbursements for operating expenses of the foundation were made during this period of time including travel expenses for the respondent and his wife to the San Francisco area for approximately $1,475. Almost all of Mr. Hvolbek’s “seed money” was expended during the first year of the foundation’s operations.

19. A close analysis of the financial records clearly reveals that the vast majority of the seed money was consumed to further law office expenses as well as the promotional aspects of the faith healing business of the respondent and his wife. A few hundred dollars were spent directly for the benefit of needy youths.

20. The Jameison Foundation had a Board of Directors consisting of the respondent, his wife, and respondent’s secretary. Later the secretary resigned and was replaced by Mr. Arthur Charles Forrester who is a past district grand master and past master of Pine Castle Lodge of F. & A.M. Mr. Forrester testified that he has not attended any meetings of the Board of Directors of the Jameison Foundation. The business of the Board was transacted over the telephone. The foundation is now inactive.

21. During late 1978 and early 1979, the respondent made disbursements required by the special distribution account except instructions for a gift originally to Nicole Priore which was later changed on January 22,1979, in both amount and recipients. He had Mr. Hvolbek pre-sign several of the account checks and took care of the rest. This one has not been funded although more than enough money was transferred into a savings account on January 22,1979. The special account was depleted on February 2, 1979, to purchase the $10,000 certificate of deposit mentioned in paragraph 13 above.

22. It further appears from the record that the respondent withdrew $10,000 from the special account on February 3,1979, and then transferred it ... to his law office trust account, where it remained until a certificate of deposit was purchased on February 21, 1979 from the Dade Federal Savings and Loan Association in Orlando, Florida.

23. It appears from the record that Mr. Hvolbek became alarmed when the certificate of deposit had not been sent to him by the respondent after the elapse of approximately two weeks after January 22, 1979. On February 11, 1979, he sought help from a Mr. James W. Geddes, who was the secretary of the Mt. Dora Masonic Lodge. Mr. Geddes in turn undertook discreetly to inquire into the situation. As a result, Mr. Hvolbek was advised to seek the advice and service of an attorney in Mt. Dora.

24. Attorney Del Potter of Mt. Dora was engaged by Mr. Hvolbek to obtain an accounting and recover assets being held by the respondent. Notwithstanding several letters between the new attorney and the respondent, no accounting for Mr. Hvol-bek’s $20,000.00 given to the Jameison Foundation was furnished by the respondent or anyone else from the foundation. Additionally, the respondent refused to discuss any possible reduction of his fees which then totaled $5,975.00. Later respondent prepared a statement of services rendered to Mr. Hvolbek after the August fees showing 131 hours spent at the rate of $150.00 per hour for a total due of $19,650.00. A greater portion of the hours spent by the respondent was to further the interest of the Jameison Foundation in trying to attract more financial support from civic clubs and fraternal organizations and not for the benefit of Mr. Hvolbek.

25. It clearly appears from the record that the last contact the respondent had with Mr. Hvolbek was on January 22, 1979, until his new attorney wrote to respondent during the middle part of April, 1979. In the meantime the respondent waited until February 21, 1979, to purchase a $10,000.00 certificate of deposit from the Dade Federal Savings and Loan Association in Orlando.

26. He purportedly mailed the certificate of deposit by ordinary mail to Mr. Hvolbek the following day together with a signature card to be mailed directly to the bank. The certificate of deposit was titled in the joint names of respondent and Mr. Hvolbek with right of survivorship — not in respondent’s name as trustee or executor.

27. On March 26, 1979, the bank informed the respondent it had not received the signature card from Mr. Hvolbek. Without trying to get in touch with his client respondent went to the bank and executed a lost certificate affidavit without reading the contents. Several weeks elapsed until finally Mr. Del Potter wrote to the respondent asking for an accounting and for the $10,000.00. The respondent wrote back stating a certificate of deposit had been purchased at Dade Federal in the sole name of Mr. Hvolbek and he again purported to enclose the necessary papers for Mr. Hvolbek to sign and send to the bank. The papers were not included in the letter addressed to Mr. Potter.

28. Finally in June, Mr. Potter learned that the certificate of deposit was in joint names of respondent and Mr. Hvolbek instead of the sole name of Mr. Hvolbek. It was about this time when it became known by Mr. Hvolbek and his attorney the original certificate of deposit was purportedly “lost in the mail” or somewhere else. Steps were taken to replace the “lost” certificate of title.

29. During the period of time which immediately preceded the decision by Mr. Hvolbek in August, 1978, to place $20,000 in the as yet unformed foundation, the respondent represented to him that the course of action mentioned in the preceding paragraphs including the establishment of the special distribution account and elimination of his Living Trust would best effectuate his desires with respect to his gifts to the Masonic Lodge and others. In fact, all such disbursements could have been made through the then existing trust.

30. The respondent failed to advise or encourage Mr. Hvolbek to seek out independent counsel prior to his placing $20,000 in September, 1978, into the yet unborn Jam-eison Foundation notwithstanding respondent’s central role in the foundation and as attorney for the major benefactor.

31. Respondent’s primary purpose was to acquire substantial amounts of seed money to effectuate his own personal foundation and did not meet the fiduciary responsibilities he owed to his client, Mr. Hvolbek.

32. The respondent is guilty of gross neglect in the manner in which he conducted himself concerning the handling of his client’s affairs in the purchasing of the certificate of deposit and the withholding of information from his client concerning the lost certificate until forced to do so.

COUNT IV (09B79C74)

1.For his services in August, 1978, the respondent received two checks totaling $975 from the special account.

2. Pursuant to the Second Amended Instructions executed on October 26, 1978, respondent was to be paid $5,000 as compensation for all past, present and future services for Mr. Hvolbek. This money was paid to him by a check dated October 27, 1978, from the special distribution account with the notation “life retainer fee.”

3. After Mr. Hvolbek became disenchanted in 1979 and sought independent counsel, the latter requested respondent make a reduction in the fee paid to him. Respondent refused. At some time subsequent to 1979, respondent prepared a statement of services rendered showing 131 hours spent after the August 1978 payments at the rate of $150.00 per hour. This appears to have been a showing to Mr. Hvolbek that respondent had furnished services the value of which was far in excess of the $5,000.00 life retainer.

4. After a careful review of the evidence it is found that respondent’s value of his services at the rate of $150.00 per hour is clearly unconscionable and excessive. The quality of work performed by him as exhibited by the legal papers drawn, the amount of monies involved and the number of gifts clearly reveal the fees collected are far in excess of the reasonable value of like legal services in the community. The services rendered in connection with the foundation should not be charged to Mr. Hvol-bek.

Having considered the arguments of both parties regarding the recommended findings of fact and recommended discipline, we approve the referee’s findings of misconduct.

However, we conclude from the record that respondent’s actions were not committed with criminal mens rea or corrupt motive, but rather resulted from failure to foresee the potential conflict of interest, a lack of properly strict record keeping, and failure to act promptly in response to the client’s wishes.

Based upon such misconduct, we impose discipline as follows. The respondent is suspended from the practice of law for ninety-days. As a condition of reinstatement, respondent will be required to successfully complete the Multistate Professional Responsibility Examination by attaining a scaled score of 70 or better on such examination. See Art. VI, Fla.Sup.Ct. Bar Ad-miss. Rule. Following reinstatement respondent will be on probation for a period of one year. As a further condition of reinstatement, respondent will pay The Florida Bar’s costs in these proceedings.

The suspension shall be effective February 14, 1983, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Costs in the amount of $665.17 are hereby taxed against the respondent.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD and EHRLICH, JJ., concur.

BOYD, J., dissents with an opinion with which ADKINS, J., concurs.

BOYD, Justice,

dissenting.

I dissent to the majority opinion finding misconduct and imposing discipline because I believe a proper review of the record reveals that there was no clear and convincing evidence of ethical violations. I would dismiss the Florida Bar’s complaint.

The evidence showed that respondent was an idealistic young lawyer who was very active in community affairs. As a member of the Sertoma Club, respondent worked on community service projects. He was also the moderator of a radio panel discussion or “talk show.” Prior to entering the practice of law, respondent studied psychology and operated an aid center for troubled people in Washington, D.C.

Respondent’s wife was a psychologist and worked as a professional counselor. Respondent and his wife lived in an apartment on the top floor of an old hotel in the inner-city area of Orlando (or, as the referee put it, “the Presidential Suite in a local highrise complex overlooking Lake Eola”). This hotel suite also housed the offices of respondent’s law practice and his wife’s counseling practice. The couple seem to have shared a deep interest in spirituality and its potential for helping people solve their personal problems and achieve goals in life.

In the spring of 1978, Andrew G. Hvol-bek, of Mt. Dora, attended a Masonic Lodge meeting in that city, where he heard respondent speak. Mr. Hvolbek had also heard respondent speak on the radio. Mr. Hvolbek was favorably impressed with respondent’s personality and speaking ability. Mr. Hvolbek was in his late eighties at the time. He was competent and, some witnesses said, mentally astute. He had been a Mason for over sixty years and was attracted to the idealistic younger Mason, the respondent.

At considerable effort, Mr. Hvolbek eventually got in touch with respondent. Being of the opinion that a political career would be the best natural outlet for a person of respondent’s talents, Mr. Hvolbek offered to contribute $30,000 to help finance a campaign if respondent would attempt to unseat then-incumbent Representative Richard Kelly. Respondent declined the opportunity to seek elective office, but gradually learned that Mr. Hvolbek was anxious to find causes worthy of his financial support.

In August, 1978, Mr. Hvolbek retained respondent to help him change the arrangements by which some of his personal wealth was held. The purpose was to get his assets liquidated and to facilitate the making of gifts to various individuals and organizations. Respondent arranged a new separate bank checking account for Mr. Hvolbek to make contributions from.

Aware of Mr. Hvolbek’s desire to contribute to worthy causes, respondent told the older man about a plan he and his wife had to establish a foundation to support their efforts at helping, wayward young people to improve their lives. Mr. Hvolbek greatly liked the idea and thought that it would well carry out the principles and teachings of Masonry. Mr. Hvolbek agreed to contribute $20,000 for the purpose of getting the foundation started.

Also in August, 1978, respondent prepared a new will for Mr. Hvolbek. Mr. Hvol-bek executed the new will in the office of the trust official of his bank. The will made reference to the newly established “special distribution account” from which there were to be made several gifts to Masonic Lodges. On September 18, 1978, Mr. Hvolbek authorized a disbursement of $20,000 to respondent for the purpose of establishing a foundation for humanitarian purposes. The instructions executed by Mr. Hvolbek also directed respondent to pay himself a fee for his professional services. Respondent received a fee of $975 at this time.

In October, 1978, Mr. Hvolbek amended his instructions pertaining to the special distribution account. He also instructed respondent to reduce to a fixed amount the fee for all his professional services thus far provided and yet to be provided. Shortly thereafter, Mr. Hvolbek authorized a payment of $5,000 to respondent for this “life retainer fee.”

In November, 1978, respondent, through separate legal counsel, established the Jam-eison Foundation for the purpose of supporting efforts to guide, counsel, and otherwise aid troubled young people. The foundation was to be directed by a board of three trustees. Initially, respondent and his wife were both trustees of the foundation.

The referee found that Mr. Hvolbek’s contribution to the foundation was used mostly for operating expenses and promotion, and that during the period of the foundation’s active existence, only a few hundred dollars were expended directly for the benefit of persons in need. The referee also concluded that some of the promotional activities respondent and his wife engaged in were for the benefit of Mrs. Jameison’s counseling practice.

In January, 1979, Mr. Hvolbek again amended the instructions regarding his special distribution account. At this time Mr. Hvolbek decided to remove some of his money from the gift-making account. He instructed respondent to withdraw $10,000 and invest it in the form of an interest-bearing certificate of deposit.

In February, 1979, pursuant to Mr. Hvol-bek’s instructions, respondent withdrew $10,000 from the special distribution account and placed it in respondent’s law office trust account. Three weeks later, respondent purchased the requested certificate of deposit. Respondent testified that he mailed the certificate to Mr. Hvolbek along with a signature card to be returned to the bank. Respondent said he later learned from the institution that issued the certificate that Mr. Hvolbek’s signature card had not been received. Respondent concluded that the certificate of deposit had been lost in the mail, and took steps to replace it. Meanwhile, Mr. Hvolbek became concerned about not receiving his certificate of deposit and retained another attorney to inquire into the matter.

The referee concluded that respondent failed to advise Mr. Hvolbek that his desire to make charitable gifts could be effectuated without changing the financial arrangement by which the money was held and that it was unnecessary to establish the special distribution account over which respondent had signatory power. The referee also concluded that respondent, by way of his personal relationship with his client, induced Mr. Hvolbek to give $20,000 to establish a foundation without advising him to seek other legal advice and knowing that the money would be used to further respondent’s personal objectives. The referee concluded that respondent purchased the certificate of deposit with the thought in mind that if Mr. Hvolbek died while both names appeared as signatories, the money would pass to respondent as surviving signatory.

Following Mr. Hvolbek’s employment of a new attorney in the spring of 1979, the new attorney approached respondent concerning the $5,000 “life retainer fee” paid by Mr. Hvolbek. The new attorney wanted part of the fee returned on the ground that it was unearned. Respondent disagreed and refused. In response to a request for documentation of the services respondent provided pursuant to the “life retainer fee” agreement, respondent submitted a statement of services rendered and hours spent subsequent to the payment of the $975.00 fee in August, 1978. The statement showed 131 hours spent and evaluated the services to be worth $150 per hour. The amount of fees thus computed was approximately $19,-000. The referee apparently viewed this accounting as a bill for approximately $14,-000 after crediting the earlier $5,000 payment.

Count I of the Bar’s complaint charged improper conduct in the obtaining of the $20,000 gift to the Jameison Foundation. The referee found respondent guilty of misconduct, concluding that he induced the gift through personal influence, violated his fiduciary responsibility, and used the money to promote his personal ends. The referee found respondent guilty of violating the Code of Professional Responsibility, Disciplinary Rules 1-102(A)(4), 5-104(A), and 7-101(A)(3).

Count II of the Bar’s complaint charged misconduct in connection with respondent’s purchase of the $10,000 certificate of deposit on behalf of Mr. Hvolbek. The referee concluded that the purchase of the certificate in the joint names of the lawyer and client was not necessary to respondent’s role as trustee, and that it was done so that respondent might benefit in the event of Mr. Hvolbek’s death. The referee found that respondent violated Disciplinary Rules 1-102(A)(4), 5-104(A), and 6-101(A)(3).

Count IV of the Bar’s complaint pertained to the statement respondent submitted after being asked about a possible refund of any unearned portion of the previously paid $5,000 legal fee. The Bar alleged that the statement was a bill for a balance due of $14,650, and that it was improper in view of respondent’s previous agreement to serve for a total fee of $5,000. The referee found respondent guilty of violating Disciplinary Rules 2-106(A) and 2-106(B).

Respondent argues that the referee could not reasonably have found that the allegations against him were proved by clear and convincing evidence. With regard to the first count, respondent argues that misconduct was not proved and that the referee ignored evidence: (1) that Mr. Hvolbeck was competent and mentally astute at the time he decided to give $20,000 to respondent for charitable purposes; (2) that respondent fully advised Mr. Hvolbeck of the purposes of the foundation; (3) that Mr. Hvolbeck knowingly declined to consult legal counsel other than respondent.

In view of the conflicting evidence which respondent points out, I am unable to conclude that the misconduct found on count one was proved by clear and convincing evidence.

With regard to count two, respondent argues that the Bar wholly failed to prove any wrongful intent on respondent’s part and that the referee’s conclusions are unsupported by evidence. I would find that the facts shown by the evidence are insufficient to prove guilt by clear and convincing evidence. Mr. Hvolbeck gave respondent signatory power over his money because he trusted him and the Bar has failed to prove that respondent violated that trust. Nor is there any proof that respondent failed to act with reasonable promptness on any of his client’s legal business.

With regard to the third count upon which misconduct was found, respondent argues that there was no evidence that respondent attempted to collect any fee payment from Mr. Hvolbeck beyond the $5,000 already paid. The evidence is clear that the statement in question was sent as justification for respondent’s refusal to refund any of the $5,000 and was not a bill for a balance due of $14,000. The referee made no finding to the effect that the $5,000 itself was an illegal or clearly excessive fee under Disciplinary Rule 2-106(B).

In summary, I would conclude that there was not clear and convincing evidence sufficient to support the referee’s findings, of misconduct. We should therefore reject the referee’s recommended findings of guilt and find that no misconduct was proved. Accordingly, I respectfully dissent.

ADKINS, J., concurs.

      . Disciplinary Rule 1-102(A)(4) provides: “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
      Rule 5-104(A) provides:
      A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.
      Rule 7-101(A)(3) provides: “A lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).

      . Rule 6-101(A)(3) provides: “A lawyer shall not neglect a legal matter entrusted to him.”

      . Rules 2-106(A) and (B) provide:
      (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
      (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    In re Forfeiture of the Following Described Property: 1975 Ford: North Carolina Tag No. WEX 580; Vin. 5U65S182931. Gerald A. COLEMAN, Sheriff of Pinellas County, Florida, Appellant, v. Dewitt Marion BRANDON, III, Appellee.
    No. 82-868.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1982.
    Rehearing Denied Jan. 27, 1983.
    Andrew J. Rodnite, Largo, for appellant.
    Martin Errol Rice of Skelton, Willis & Rice, St. Petersburg, for appellee.
   SCHEB, Judge.

We hold that the Florida Contraband Forfeiture Act does not provide for forfeiture of a motor vehicle when only an attempt is made to use the vehicle for transportation of contraband.

DeWitt Brandon exited a motel with several bags of contraband. He placed the bags on the ground next to the open trunk of his car, apparently intending to put them in the trunk. Brandon was arrested before he could do so. The trial court dismissed the sheriff’s petition for forfeiture, holding that the evidence was insufficient to show that the vehicle was being used in violation of section 932.702, Florida Statutes (1981).

Subsection (3) of section 932.702 makes it unlawful:

(3) To use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

Section 932.703(1) provides for forfeiture of any motor vehicle “which has been or is being used in violation of” section 932.702.

Forfeiture statutes are strictly construed. Estate of Maltie v. State, 404 So.2d 384 (Fla. 4th DCA 1981); Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976). Here, the plain language of the statute refers to actual use of a vehicle to transport contraband articles. The legislature did not include either attempts or intended uses. We must not broaden the scope of legislative enactments where the language of the statute is clear. See Thayer v. State, 335 So.2d 815 (Fla.1976).

The legislature, of course, may revisit the language of the statute as it did after the supreme court in Griffis v. State, 356 So.2d 297 (Fla.1978), concluded that chapter 932 as then enacted did not provide for forfeiture for mere possession of controlled substances by the occupant of a vehicle. As a result, the 1980 legislature expanded the grounds for forfeiture by enacting the present section 932.702(4). See State v. Peters, 401 So.2d 838 (Fla. 2d DCA 1981).

The trial court was correct in dismissing the petition for forfeiture.

Affirmed.

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


author: PER CURIAM.

text:
    The TRIBUNE COMPANY, a corporation, Paul Hogan, Managing Editor, Joseph Registrato, City Desk Editor, and William Sloat, Appellants/Cross-Appellees, v. Leonard D. LEVIN, General Energy Devices, Inc., Appellees/Cross-Appellants.
    No. 81-1361.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Rehearings Denied Jan. 24, 1983.
    T. Paine Kelly, Jr., W.S. Rodgers, Jr., and Ted R. Maney, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants/cross-appellees.
    0. Stephen Thacker, Clearwater, John R. Ferguson of Peabody, Lambert & Meyers, Washington, D.C., C. Michael Deese of Webster, Chamberlain & Bean, Washington, D.C., for appellees/cross-appellants.
   PER CURIAM.

A jury awarded plaintiffs/appellees compensatory and punitive damages for appellants’ publication of defamatory newspaper articles concerning appellees’ business and personal activities. After a poll of the jury disclosed that not all the jurors were in agreement on the award of punitive damages, the trial court struck that portion of the verdict. The trial court entered judgment accordingly.

Appellants seek reversal of the judgment for compensatory damages on several grounds, and appellees seek to reinstate the award of punitive damages. We have examined each of the points on the appeal and cross-appeal and find no reversible error; however, one point urged by appellants merits discussion.

The trial court determined that appellees, who were in the business of manufacturing and selling solar energy devices, were not public figures. From our review of the record, we think the court was correct. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir.1980). But cf. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.1980). Having determined that appel-lees were not public figures, the trial court refused appellants’ request to instruct the jury that it was necessary for appellees to establish that the alleged defamatory statements sued upon were published with “actual malice,” that is, either with knowledge of their falsity, or with reckless disregard of their truth or falsity, as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Instead, the court instructed the jury that appellees could recover compensatory damages by proving that appellants published the alleged defamatory statements with negligence. Again, we think the trial court ruled correctly.

We agree with the majority opinion by Chief Judge Hubbart in Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA, 1982) (Hendry, J., dissenting). There, the Third District Court of Appeal rejected the newspaper’s contention that a private plaintiff must establish that the defamatory statement was published with actual malice. Instead, the court held that Florida follows the federal law and applies negligence as the standard for recovery of compensatory damages by a private plaintiff who is neither a public official nor a public figure in a defamation suit. See Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc.; Karp v. Miami Herald Publishing Co., 359 So.2d 580 (Fla. 3d DCA), appeal dismissed, 365 So.2d 712 (Fla.1978); Helton v. United Press International, 303 So.2d 650 (Fla. 1st DCA 1974).

The Third District Court of Appeal concluded that the issue is one of “great public importance” and certified its decision to the supreme court so as to permit further review under Article V, section 3(b)(4) of the Florida Constitution.

Appellants herein should have the same opportunity; accordingly, we certify to the supreme court that our decision approving that same standard of negligence as a basis for recovery by private individuals in defamation actions is an issue of “great public importance.”

OTT, C.J., and SCHEB and SCHOON-OVER, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert James FRASER, Appellee.
    No. 81-1284.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    Rehearing Denied Feb. 7, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Kirk N. Kirkconnell and Warren W. Lindsey of Muller & Kirkconnell, P.A., Winter Park, for appellee.
    Russell Troutman of Troutman, Parrish & Williams, P.A., Winter Park, for amicus curiae Elena Reis.
   ORFINGER, Chief Judge.

We are again confronted with a troublesome problem involving the interpretation of the speedy trial rule. The trial court determined that appellee’s rights under the rule had been violated and that he was entitled to discharge. We disagree and reverse.

Appellee, Robert J. Fraser, was arrested on April 2,1981, for driving under the influence of an alcoholic beverage and driving with an unlawful blood alcohol level in violation of sections 316.193(1) and (3), Florida Statutes (1979), as a result of an accident in which he was involved and in which three people were killed. The next day, the State filed a no information notice. Appellee was rearrested on April 21, 1981, for driving while intoxicated in violation of section 860.01(1), because of the same incident, and another no information was filed by the State. On June 22,1981, a felony information was filed charging appellee with three counts of manslaughter in violation of section 860.01(2), Florida Statutes (1979), and three counts of vehicular homicide in violation of section 782.071. A capias was issued and appellee was rearrested on these new charges on August 25,1981. Appellee was arraigned and trial was set for September 14,1981. For reasons which are not clear in the record, but which we will not attribute to appellee, trial was reset for September 28, 1981. Both parties agree that this date was within speedy trial time.

After his last arrest and arraignment, appellee filed a motion for discovery, to which the State responded on September 4, 1981, listing twenty one witnesses known to the prosecutor as having information relevant to the offenses charged. Of these persons, three were state troopers, three were doctors, and two were members of the Sheriff’s breathalyzer unit. The State supplemented the response on September 14, adding four additional names, and further supplemented the response on September 24, adding one more name.

Appellee scheduled a series of depositions for September 23, 24, and 25th, and subpoenaed the witnesses. Most of those scheduled appeared. Troopers Boyette and Anderson did not appear, nor did witnesses Julia and Roger Gilstrap. Boyette did not appear because he was undergoing heart surgery. Anderson had only taken a statement from the Gilstraps, and otherwise had no knowledge of the case. The State did not intend to use him at the trial. Several of the witnesses were not scheduled for depositions, nor were they subpoenaed, and no depositions were scheduled at all after September 25th. On September 28, appel-lee appeared and moved for a dismissal for violation of his speedy trial rights (although the time had not run) or for a rescheduling of the trial, the extended time to be charged to the State. Appellee asserted that he was not ready for trial, and that his lack of readiness was due to the unexplained delay of the State in charging him, leaving him with little time to prepare. The trial court denied the motion to dismiss, but extended the trial date to a time more than 180 days from the date of the original arrest, and later granted the motion for discharge from which this appeal follows.

Appellee relies on dictum in Sumbry v. State, 310 So.2d 445 (Fla. 2d DCA 1975), as authority for the proposition that a trial judge has the right, when he thinks that the spirit of the speedy trial rule has been violated (if not the letter) to set the trial date beyond 180 days and thereafter discharge a defendant upon his motion.

In Sumbry, the State did not file an information until 171 days after the defendant was arrested. The case was set for trial on the 178th day, and it was conducted on that day over objection of the defendant that he did not have sufficient time to prepare (although he refused to move for a continuance). On appeal from the conviction, the District Court held that appellant’s due process rights required that he be given adequate time to prepare. The court recognized, however, that

Notwithstanding, while appellant may have been denied due process as we view it now in its post-trial posture, we must add that the 171-day delay in filing the information cannot operate of itself to deny the state the right to go to trial within 180 days if the trial calendar permits. ...

Id. at 447. (emphasis added).

Despite its own dictum, and notwithstanding the fact that the defendant had been given only seven days to prepare for trial after the information was filed, the Sumbry court reversed for a new trial, not for discharge.

Appellee also relies on State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975) and Mulryan v. Judge, Division “C” Circuit Court of Okaloosa County, 350 So.2d 784 (Fla. 1st DCA 1977). Both cases, by the same court, stated the proposition that a defendant should not be required to choose between his (due process) right to a fair trial and his speedy trial rights, and although in both cases the court ordered the defendants discharged, no sufficient explanation appears for the holding.

It should be noted that both Wright and Mulryan were decided under speedy trial language that has since been amended. The rule, as it existed then, although requiring “availability for trial” as a condition to discharge, did not define “availability.” Thus, the term was left to interpretation by the courts, which in the cases cited, determined that the defendants were available for trial, even though not prepare^ on the trial date. The 1980 amendment to the rule, which controls here, has made the cited cases no longer supportive of appel-lee’s position.

A motion for discharge under the Rule should not be granted if a defendant has been unavailable for trial. Fla.R. Crim.P. 3.191(d)(3). A person is unavailable for trial if ... (2) the person or his counsel is not ready for trial on the date trial is scheduled. Rule 3.191(e). Thus, a defendant’s speedy trial rights are not violated if his case is set for trial within the time required by the rule. At that time, if defendant is not ready for trial, while due process rights may be implicated if the scheduled trial date is one on which defendant could not reasonably be expected to be prepared, defendant’s speedy trial rights under the rule have been observed. A defendant who is compelled to go to trial unprepared may raise his due process rights in the trial court and on appeal, where each case will be determined on its own facts.

Here, at least part of the reason for defendant’s unpreparedness on the trial date was the fact that his counsel took no more depositions after the morning of September 25th. Counsel candidly advised the court that he scheduled no further depositions after that date because he did not want to demonstrate “unavailability” by ongoing discovery proceedings. See Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1964). However, this maneuver has been criticized as a “gotcha” tactic. State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980).

We hold that defendant’s speedy trial rights under Rule 3.191 were not violated in this case when trial was scheduled within the time limitations of the rule and defendant advised the court he was not prepared for trial. The order discharging defendant is reversed, and the ease is remanded for further proceedings.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . There is no suggestion that the delay in rearresting appellee on the felony charges was in any way attributable to appellee. The State simply cannot explain the delay, although there is no suggestion in the record that the delay was a deliberate or calculated move.

      . After each earlier arrest, appellee had filed motions for discovery, but since these charges were dismissed almost immediately after they had been filed, no responses were filed.

      .Boyette was the homicide investigator who was at the scene of the accident and who conducted the subsequent investigation. His name was known to appellee from the start and there was no attempt made by appellee to explain his reason for not deposing Boyette before the surgery. The State could not locate the Gilstraps, who apparently gave a false address, so they would not have been available for the trial.

      . In the case before the court, the felony information was filed 98 days before speedy trial would run, and defendant was taken into custody on the felony charge 33 days before speedy trial time expired.

      . In Wright, the case had never been set for trial within 180 days, so this may justify the result, although it does not appear to be the reason for the holding.

      .The committee notes following the rule indicate that “availability for trial is now defined solely in terms of required attendance and readiness for trial.” Notes, Rule 3.191(e).

      . It is argued that a literal interpretation of the rule would permit the State to abuse it by deliberately withholding charges until just before speedy trial time runs. In reply to this argument, we note that it has not been demonstrated that the State acted in bad faith here, nor did the trial court so find. Thus, we leave for another day and another case any question of the applicability of this decision to circumstances where the State’s bad faith has been demonstrated by the facts and found to exist by the trial court.


author: BOARDMAN, Acting Chief Judge.

text:
    RIDGEWOOD UTILITIES CORPORATION, Appellant/Cross-Appellee, v. R.L. KING, Appellee/Cross-Appellant.
    Nos. 82-572, 82-840.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 28, 1983.

      Granville H. Crabtree, Jr. and Michael M. Ingram of Crabtree, Dumbaugh, Sanchez, Parker & Ingram, Sarasota, for appellant/cross-appellee.
    M. Joseph Lieb, Jr. and Jim Syprett of Syprett, Meshad, Resnick & Lieb, Sarasota, for appellee/cross-appellant.
   BOARDMAN, Acting Chief Judge.

Defendant Ridgewood Utilities Corporation appeals a final judgment ordering it to specifically perform a contract for sale of land to plaintiff/appellee R.L. King, including furnishing a quit claim deed without reservation from a third party, and appellee cross-appeals, inter alia, the portion of the final judgment awarding costs and fees to appellant for slander of title. We affirm on the appeal, but reverse in part on the cross-appeal.

Appellant’s counterclaim for slander of title was predicated on appellee’s recording of an unacknowledged copy of the contract after the originally scheduled closing did not take place. Because Section 696.01, Florida Statutes (1981), requires that such a contract be acknowledged by the vendor, the contract was not entitled to be recorded. However, recovery in an action for slander of title requires proof that a false and malicious statement was made in disparagement of the plaintiff’s title to the property in question and caused him/her/it damage. Old Plantation Corp. v. Maule Industries, Inc., 68 So.2d 180 (Fla.1953); Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981); McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA), appeal dismissed, 411 So.2d 380 (Fla.1981). Here there was no showing that the contract as recorded was false. Moreover, appellant suffered no damages as a result of the recording, since appellee was not deterred from purchasing the property as a result of the alleged slander. See Atkinson v. Fundaro.

Accordingly, paragraph seven of the final judgment, which awards appellant fees and costs for slander of title, is reversed and the cause remanded with directions to strike that provision from the final judgment. There being no merit to the remaining points raised on either the appeal or the cross-appeal, the final judgment is otherwise affirmed.

CAMPBELL and SCHOONOVER, JJ., concur.


author: SCHEB, Acting Chief Judge.

text:
    HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY, d/b/a Lee Memorial Hospital, Appellant, v. Robert T. DURKIS, Sheriff of Hendry County, Appellee.
    No. 82-487.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 4, 1983.

      Robert C. McCurdy, Fort Myers, for appellant.
    E.G. Couse, Fort Myers, for appellee.
   SCHEB, Acting Chief Judge.

The trial court held that a public hospital could not recover from a sheriff for charges for medical services rendered to the sheriff’s prisoner. The hospital appeals; we reverse.

Kevin Lansing, Jr., received a gunshot wound while being apprehended on January 16, 1979, in Glades County by deputy sheriffs from Glades and Hendry Counties. He was immediately transported by ambulance to Lee Memorial Hospital where he was admitted as a patient. His admission form showed beside his name “unable to sign.” He was discharged on March 7 into the custody of the Hendry County Sheriff’s Department. A deputy from that department took him directly to Hendry County Jail where he was confined awaiting trial.

On March 26 Lansing’s condition worsened and the Sheriff of Hendry County had him returned to Lee Memorial for further treatment. This time Lansing signed himself into the hospital and also signed a contract agreeing to pay his hospital bill. On April 9 he was again discharged into the custody of a deputy from the Hendry County Sheriff’s Department. Lansing was subsequently convicted and sentenced for armed robbery committed in Hendry County. The bill for both of Lansing’s hospitalizations remained unpaid.

The Hospital Board of Directors of Lee County brought this action against the Sheriff of Hendry County to collect the hospital charges for Lansing’s medical care. The trial judge considered the legal issues at pretrial conference and entered summary final judgment in favor of the sheriff. The court held that inasmuch as Lee Memorial was a public hospital, and since there was no prior contract or arrangement between it and the Sheriff of Hendry County relating to Lansing’s treatment, the hospital could not recover. This appeal by the hospital ensued.

At the outset we note that section 951.-23(2), Florida Statutes (1979), directs the Department of Corrections to establish rules and regulations with reference to furnishing medical attention to county prisoners. Pursuant to this section the Department has adopted Florida Administrative Code Rule 33-8.07, which‘provides that a sheriff must furnish medical care for his prisoners. However, there is no general statutory duty imposed on public hospitals to render free services to county prisoners. Nor does the Special Act creating Lee Memorial impose such a burden. See Ch. 63-1552, Laws of Florida, as amended.

In view of the above, we think the hospital could assume that since a sheriff has a legal duty to provide medical services for prisoners, he has authority to contract or make arrangements for hospitalization of a prisoner. Indeed, Florida Administrative Code Rule 33-8.07(1) authorizes a sheriff to “execute an agreement in writing, if at all possible, for appropriate care” of his prisoners. Admittedly, a more orderly arrangement would be for a sheriff to obtain a standing contract with a hospital for care of his prisoners. However, lack of such an arrangement is not fatal to the hospital recovering for the services it renders.

Here, Lansing needed emergency medical care and the hospital was not in a position to deny such treatment. § 401.45, Fla.Stat. (1979). We hold that a sheriff who has custody of such a prisoner is responsible for his immediate medical needs and impliedly agrees to pay the necessary and reasonable hospital charges when a prisoner in his custody must be hospitalized. Therefore, a hospital which admits the prisoner is entitled to rely upon the fact that a sheriff is authorized to contract or incur a debt for such reasonable and necessary medical treatment as is required.

In passing, we note the attorney general has interpreted section 951.23 and its accompanying rules and regulations to impose a duty on a sheriff to provide medical care to any prisoner in his custody. In some instances the attorney general has urged that sufficient funds should be budgeted to cover the cost of providing such care to any prisoner in need. See 1972 Op.Att’y.Gen. Fla. 072-346 (October 11, 1972); 1975 Op. Atfy.Gen.Fla. 075-35 (February 17, 1975); 1975 Op.Atfy.Gen.Fla. 075-194 (July 8, 1975).

The trial court entered summary final judgment on the basis of Lee Memorial being a public hospital and the absence of a contract with the Hendry County Sheriff. Therefore, the court did not find it necessary to address any further issues in this litigation. Significantly, the issue of who had custody of Lansing at the time of his first admittance remains to be resolved. While the Hendry County Sheriff concedes he had custody of Lansing during his second hospitalization, there is a fact issue as to whether he or the Glades County Sheriff’s Department had custody during Lansing’s initial hospitalization. Moreover, there remains the issue of the reasonableness of the amount of the hospital bill as the appellee Sheriff has denied the hospital’s allegations concerning the necessity and reasonableness of the bill. Therefore, on remand the trial court must adjudicate these and any other issues which remain.

Accordingly, we vacate the trial court’s judgment and remand for further proceedings consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.


author: JOANOS, Judge.

text:
    The CITIZENS BANK OF PERRY, a banking corporation organized and existing under the laws of the State of Florida, Appellant, v. HARLIE LYNCH CONSTRUCTION COMPANY, INC., Appellee.
    No. AN-82.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 22, 1983.

      Michael F. Coppins of Douglass, Davey & Cooper, Tallahassee, for appellant.
    John E. Norris of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee.
   JOANOS, Judge.

This is an appeal pursuant to Fla.R. App.P. 9.130(a)(3)(C)(iv), of an order granting summary judgment as to liability on Lynch’s complaint for breach of contract. We affirm.

The undisputed facts are that The Citizens Bank of Perry (“Bank”), on December 31, 1980, sent invitations to bid on the construction of a proposed branch facility to several contractors including Harlie Lynch Construction Company, Inc. (“Lynch”). Lynch submitted a bid which was accepted by the board of'directors in January, 1981. Bank President Moore orally notified Lynch that its bid had been accepted. The architect for the project was directed by letter to prepare a written contract to be executed by the parties. The written Owner-Contractor Agreement was not executed because at a meeting held in February, 1981, a new board of directors decided the proposed building was too large and too expensive.

Bidders were provided detailed Bidding and Contract Documents, which included “Instructions to Bidders” and “General Conditions of the Contract for Construction.” The “Instructions to Bidders” included a provision for bid security “pledging that the Bidder will enter into a Contract with the Owner on the terms stated in his bid and will, if required, furnish bonds as described hereunder .... Should the Bidder refuse to enter into such Contract or fail to furnish such bonds, if required, the amount of the bid security shall be forfeited to the Owner as liquidated damages, not as penalty.” Lynch’s bid was accompanied by a 5% bid bond.

Lynch sued the Bank, alleging that its bid had been accepted and the Bank had directed that a formal contract be drawn up in accordance with the invitation to bid and the plans and specifications; Lynch had been notified of acceptance of its bid; more than thirty-one days after notification and acceptance, the Bank notified Lynch it would not allow it to perform the contract; the Bank never returned Lynch’s bid bond which had been submitted along with the bid and accepted by the Bank; the Bank refused to allow Lynch to perform the contract even though it was ready, willing and able to perform as agreed.

Both Lynch and the Bank moved for summary judgment. The allegations in Lynch’s motion for summary judgment were substantially the same as set forth above. The Bank, in its motion, alleged the undisputed facts showed that a formal contract was contemplated, but never executed, that all terms and conditions of the anticipated contract were not settled, and that negotiations never reached the stage where no further additions or changes were anticipated by either party.

The Court granted summary judgment in favor of Lynch, finding that the Bank had invited Lynch to bid according to the plans and specifications; the invitation to bid set forth in detail the Bank’s requirements for a contract with the successful bidder; in accordance with all the terms and conditions, Lynch offered a bid accompanied by a bid bond conditioned on the payment of 5% as liquidated damages should it fail to strictly perform, as set forth in detail in the invitation to bid; the board of directors of the Bank accepted Lynch’s bid as submitted and notified Lynch of this acceptance; the terms defined by Bank in the invitation, offered by Lynch, and accepted by the Bank were sufficiently definite and certain so that each party knew what was required of it by the offer and acceptance; after notifying Lynch of acceptance of the bid, and after a change in the constituency of the board of directors, the Bank failed to allow Lynch to perform even though Lynch was ready, willing, and able to perform as agreed; a contract existed and the Bank's conduct constituted a breach.

“A summary judgment is rendered upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). Summary judgment procedure may not be used as a substitute for trial, and “[t]he burden of the movant in a motion for summary judgment is not simply to show that the facts support his own theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail.” Burkett v. Parker, 410 So.2d 947 (Fla. 1st DCA 1982).

Appellant argues that the granting of summary judgment was error because genuine issues of material fact existed as to the parties’ intent that their negotiations be reduced to a formal writing, and as to essential contract terms which remained open for consideration. However, a review of the record reflects that as to the essential terms of the contract, the trial court correctly determined that the terms specified in the invitation, offer, and acceptance were sufficiently definite and certain so that each party knew what was required of it by the offer and acceptance, and no essential terms remained open for negotiation.

We also reject the argument that a genuine issue existed as to the parties’ intent to be bound before executing a written contract. We have not overlooked the guidelines set forth in Owens v. MacKenzie, 103 So.2d 677 (Fla. 1st DCA 1958), which appellant cites as authority, regarding the use of summary judgments when the parties’ intent is alleged to be involved, or the statements in Ocala Cooperage Co. v. Florida Cooperage Co., 59 Fla. 390, 52 So. 13 (1910) and Mann v. Thompson, 100 So.2d 634 (Fla. 1st DCA 1958), for which the Ocala opinion provides authority, that “[w]hen the parties intend that their negotiations be reduced to a formal writing, there is no binding contract until the writing is executed.” However, the detailed bidding and contract documents do not appear to contain language which expresses an intent not to be bound, regardless of an oral agreement, until a formal written instrument had been signed. On the contrary, these documents clearly provided that should Lynch fail to execute the formal written agreement after acceptance of his bid, he would forfeit his 5% bid bond as liquidated damages. In other words, as there appear to be no conflicting legal inferences that could be drawn regarding the expressed intent of the parties so as to alter the legal effect of the undisputed facts of offer, acceptance, and communication of that acceptance to Lynch, the summary final judgment as to liability is AFFIRMED.

SHAW and WIGGINTON, JJ, concur.

      . “Where the essential inquiry is concerned with one’s intent, although the evidentiary facts may not be in dispute, and such intent can better be arrived at by a consideration of all the facts and circumstances, it is error to utilize the summary procedure until there has been a proper development in the record of such facts and circumstances. The traditional mode of accomplishing this in a law action is through a trial by jury.” 103 So.2d at 679.

      . Of particular interest is the following quotation from Ocala Cooperage which appellant included in its brief, although with emphasis on the latter part of the sentence:
      While it is true that where parties orally agree upon the terms of a contract, and there is a final assent thereto, so that no variation can be introduced into the writing except by mutual consent, the mere suggestion or intention to put the agreement in writing at a subsequent time is not, of itself, sufficient to show that the parties did not intend the parol contract to be regarded as complete and binding without being put in writing; but where it appears that the parties, or either of them, intended that the contract should be reduced to writing, so that its terms would be fully understood and definitely stated in the writing, the contract will not be regarded as complete or binding until it is reduced to writing and acquiesced in by both parties, (emphasis supplied)


author: RYDER, Judge.

text:
    NORTHSIDE FIRE EXTINGUISHER SERVICE AND WELDING SUPPLIES, INC., a corporation and Thomas J. Needham, Individually, Appellants, v. WILSON DAVIS FORD, INC., a corporation and Ford Motor Credit Company, a corporation, Appellees.
    No. 82-1107.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1983.
    Rehearings Denied Feb. 7, 1983.
    Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, and Edward J. Hunter, Tampa, for appellants.
    Gary W. Nicholson of Carson & Guem-mer, Tampa, for appellee Wilson Davis Ford, Inc.
    Michael A. Fogarty and Timothy C. Conley of Holland & Knight, Tampa, for appel-lee Ford Motor Credit Co.
   RYDER, Judge.

Northside Fire Extinguisher Service and Welding Supplies, Inc. and Thomas J. Need-ham appeal from the grant of summary judgment adverse to their actions for defamation. We reverse.

Appellant Northside’s complaint alleged in the first two counts breach of contract and implied warranty for a truck purchased from appellee Wilson Davis. Count III was an action by both appellants against both appellees alleging defamation by false reports to credit bureaus that the vehicle in question had been repossessed. Following discovery, Ford and Wilson Davis moved for summary judgment on the third count.

The facts show that appellants purchased a specially fabricated truck frame, cab and motor from Wilson Davis, whose finance agreement was then assigned to Ford Motor Credit. Appellants added a van body, bed and lift gate to the frame. The first time the truck was used in service, the frame bent. Appellants’ witnesses testified that the frame bent because it was improperly fabricated. Deposition testimony favorable to appellees indicated that improper addition of the van body and bed caused the problem. The testimony was also in dispute as to whether appellants had told Wilson Davis of all the equipment the truck must carry. Appellants notified appellees of the problems and asked that they be corrected. Appellees took no remedial action. After a time, Needham, as president of Northside, returned the vehicle to Wilson Davis and gave them the keys to the truck. Up and until that time, appellants had made timely payments on the note. In subsequent conversations with representatives of Ford Motor Credit, appellants said that they would not make further payments until the situation was straightened out. A few weeks later, Ford Motor Credit sent notices to three credit bureaus on both appellants, listing the account as an 1-8 or repossession. The “voluntary return” and “disputed account” boxes were checked. Under “details,” the following was noted: “Cust repaired UNT by Welding + consequently bent frame — now doesn’t want unit.” Needham testified that prior to the dispute he and his business were never denied credit, but they were denied credit subsequent to the dispute.

The court below entered an order granting the motions of both appellees for summary judgment. We hold that disputed issues of material fact remain as to both appellees, and thus the lower court erred in entering summary judgment. See Davis v. Hathaway, 408 So.2d 688 (Fla. 2d DCA 1982). Taking the facts most favorable to appellants, as we must do in reviewing a grant of summary judgment to appellees, the following occurred. Appellee Wilson Davis sold a defective truck to appellants which failed the first time it was used for its ultimate purpose. Appellants timely revoked their acceptance of the goods delivered upon discovery of the defect. See section 672.608, Florida Statutes (1981). Appellees then stood in breach of the sales contract and appellant Northside had all the remedies provided by section 672.711, Florida Statutes (1981). Under these facts and legal conclusions, the dissemination by Ford Motor Credit of report that the vehicle had been repossessed, with the obvious connotation of serious delinquency of payment by appellants, was defamatory. The report resulted in proven damage to the reputation and business of appellants. Summary judgment was thus improper as to Ford Motor Credit.

Wilson Davis, whose counsel did not appear for oral argument, apparently provided the version of events disseminated by Ford Motor Credit. Additionally, one document entitled “repossession trust receipt” was signed in one place by an officer of Wilson Davis, although the form was filled out by a representative of Ford Motor Credit. We hold disputed issues of material fact remained as to Wilson Davis in whether the version of events given by them to Ford Motor Credit was defamatory and whether Wilson Davis actually characterized to Ford Motor Credit the return of the vehicle as a repossession.

The summary judgment below is REVERSED and the case REMANDED for further proceedings.

SCHEB, A.C.J., and SCHOONOVER, J., concur.


text:
    SHARED SERVICES, INC., Appellant, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AI-453.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Rehearing Denied Feb. 17, 1983.

      Charles B. Carter of Jones & Langdon, Gainesville, for appellant.
    Eric Haugdahl, Asst. Gen. Counsel for Department of Health and Rehabilitative Services, Tallahassee, for appellee.
   JOANOS, Judge.

In this appeal from a final order of the Department of Health and Rehabilitative Services (“HRS”), Shared Services, Inc. (“Shared Services”) contends HRS erred in determining that it lacked standing to request a formal hearing on the application of Shands Teaching Hospital (“Shands”) for licensure to operate an air ambulance service and certification of Shands as an advanced life support provider. Shared Services also asserts HRS erred in stating, in the final order, that the issue of duplication of services had been resolved through Shands obtaining certificates of public convenience and a certificate of need.

Shared Services petitioned HRS for a formal administrative hearing to review the licensure of Shands to operate an air ambulance service and the certification of Shands as an advanced life support (ALS) provider. In the petition it was alleged that Shared Services was already licensed to operate a rescue helicopter with ALS certification in some 12 counties and that Shands proposed to operate its service in these counties in direct competition with Shared Services, thus Shared Services’ substantial interests would be affected by the granting of Shands’ application for licensure and certification. Shared Services further alleged that disputed issues of fact existed as to whether the new service would unnecessarily duplicate the existing service; that both operations were based in Gainesville, Florida; that operation of such services is expensive, and only by maximum utilization can costs and charges to patients be kept reasonable, and quality of services maintained; projections showed more than one helicopter service would have negative impact on financial feasibility and quality of care; duplication would result in operating deficits and increased user fees; and competition might prevent emergency victims from receiving care in the most appropiiate facility. In the petition for hearing Shared Services requested a determination of the duplication of services issue.

In the final order HRS concluded, among other things that the basic thrust of Shared Services’ petition was that approval of Shands’ application would result in economic injury to it, but competitive economic injury alone is insufficient to afford standing to request a formal hearing under Section 120.57, Florida Statutes, as there is no statutory authority for making competitive economic injury a concern in the issuance of licenses and certifications under Chapter 401, citing Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), and ASI, Inc. v. Public Service Commission, 384 So.2d 594 (Fla.1976).

Shared Services argues that it has standing to request a Section 120.57 formal hearing on Shands’ application, because it has a substantial interest that is within the ambit of Chapter 401. Shared Services contends that a legislative concern with duplication of services is evident in Sections 401.113, 401.117, 401.24, and 401.25(2), Florida Statutes, and in Rule 10D-66.41(d), Fla.Admin. Code. In summary, Shared Services argues the statutory provisions and the rule indicate that competitive economic interests, as they relate to the issues of duplication of services, quality of services, and coordination of emergency services, are within the zone of interests protected by Chapter 401, thus they have standing under the test set forth in Agrico for ascertaining whether a party has a substantial interest entitling them to a hearing. Shared Services asserts that, as in Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977), HRS made duplication of services an issue by its own Rule 10D-66.41(d).

Shared Services also asserts errors in the other portions of the order dealing with the substantive aspect of the duplication issue, however, we need only focus on the standing question in order to conclude this appeal.

Appellees argue that Shared Services has no standing to raise an issue of potential injury on behalf of prospective patients, that economic injury alone is not within the protection of Chapter 401, and that once the required information has been filed, HRS’s function in granting a license is merely ministerial. Appellees point out that the parties are involved in separate proceedings challenging the issuance of a certificate of need to Shands, and that the interests allegedly involved here are protected by the statutory scheme for issuance of that certificate, Sections 381.493 — 381.499, Florida Statutes. HRS stated that even though issuance of a license under Chapter 401 is not conditioned on Shands obtaining a certificate of need, if the certificate were revoked in the separate proceedings, HRS could halt operation of Shands’ service.

Under the test set forth in Agrico, Shared Services lacked standing to obtain a Section 120.57 hearing on Shands’ application for licensure and certification. Separate statutory provisions cover licensure as an emergency medical transportation service and certification as an advanced life support provider. Sections 401.113 and 401.117 relate to grant disbursement, a subject entirely unrelated to Shands’ present licensure and certification. In addition we do not interpret Section 401.24, requiring a comprehensive state plan for emergency and nonemergency medical transportation services, or Section 401.25(2), as authorizing inquiry into competitive economic injury to an existing service. Section 401.25(2) merely lists the contents required in an application for an emergency or nonemergency medical transportation service license, and upon compliance with that section and the requirements of Section 401.25(3), “[t]he department shall issue a license for operation within 60 days .... ” Rule 10D-66.41(d), Fla.Admin.Code, relating to ALS certification, does mention unnecessary duplication of services, however it does not specifically purport to protect competitors from economic injury. Although other manifestations of unnecessary duplication are asserted, such as a negative impact on potential care recipients, Shared Services’ particular interest has not been shown to be other than an economic one. The construction placed upon Rule 10D-66.41(d) by HRS excluding consideration of competitive economic injury to providers is a reasonable one since there is no statutory language to the contrary. Absent clear authority for the insertion of competitive economic consideration into the licensing and certification procedures involved here, the final order determining Shared Services is not entitled to a Section 120.57 hearing regarding Shands’ licensure and certification is AFFIRMED.

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

      . Under Agrico, the criteria for ascertaining whether a party has a substantial interest entitling them to a hearing are: (1) the party will suffer injury in fact; (2) the substantial injury is of a type or nature which the proceeding is designed to protect. 406 So.2d at 482.

      . We have been informed through a notice of supplemental authority that Rule 10D-66.41 Fla.Admin.Code has been repealed effective November 29, 1982. Appellant in its response to the notice of supplemental authority, stated it is challenging the authority of the agency to repeal that rule.

      .Rule 10D-66.41(d), Fla.Admin.Code provided: Each ALS provider shall provide documentation that its service will not represent unnecessary duplication of services offered by other ALS providers.


text:
    STRATTON OF FLORIDA, INC. and St. Paul Fire and Marine Insurance Company, Appellants, v. Eugene CERASOLI, Appellee.
    No. 82-958.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1983.
    Rehearing Denied Feb. 7, 1983.
    Dale W. Yash of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants.
    James L. Goetz of Goetz & Hartman, Fort Myers, for appellee.
   RYDER, Judge.

Stratton of Florida, Inc. and its surety, St. Paul Fire and Marine Insurance Company, appeal from the final judgment awarding damages to appellee Cerasoli. We reverse.

The facts adduced below show that in July of 1980, appellant Stratton entered into a general contract with the owner of realty in Hendry County for construction of a project known as Port LaBelle Inn and Country Club. In February 1981, appellant Stratton entered into a subcontract with Kent Associates, Inc., whereby Kent was to perform certain stud, wallboard, lath and stucco work. Kent Associates subcontracted a portion of the stud, wallboard and stucco work to appellee Cerasoli. In connection with the general contract, Stratton posted a payment bond for the project with appellant St. Paul, pursuant to section 713.-23, Florida Statutes (1981).

Appellee Cerasoli began work on the contract on May 14, 1981. Appellee’s services were terminated by Kent Associates on July 8, 1981, and appellee mailed notices to contractor and notices of nonpayment to appellant Stratton on July 8, 1981. The notices were delivered on July 17, 1981.

Appellee filed a complaint seeking damages against Stratton and St. Paul, and appellants’ answer set forth defenses including that appellee failed to comply with the forty-five day notice to contractor provision of section 713.23, Florida Statutes (1981). Following a bench trial, the court found for appellee, ordering appellants to pay the amount owed of $14,761.50.

On appeal, appellants argue that in order to recover from a general contractor or its surety not in privity, a sub-subcontractor must serve a written notice to contractor within forty-five days after first beginning to furnish labor, materials or supplies. We agree. Section 713.23(l)(d), Florida Statutes (1980 Supp.), provides that notice must be given. Section 713.23(l)(f) provides that “no action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given.” It is undisputed below that appellee did not serve the notice required by section 713.-23(l)(d) within forty-five days after beginning to furnish labor, materials or supplies. Thus, the action by appellee below is precluded by the statute.

We acknowledge that prior to the 1977 legislative amendments to the mechanic’s lien law, a lienor failing to serve timely notice could still recover from the owner as a nonpriority lienor. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). That recovery was based on the former requirement that the contractor’s final payment affidavit had to list outstanding bills regardless of whether notice was given. Crane Co. v. Fine, supra; section 84.061(3)(d), Florida Statutes (1965). The current statutes specifically state the opposite:

No person furnishing labor or material, or both, who is required to serve a notice under paragraph (2)(a) and who did not serve the notice and whose time for service has expired shall be entitled to be paid by the owner because he is listed in an affidavit furnished by the contractor under subparagraph (c)l.

Section 713.06(3)(c)(4), Florida Statutes (1980 Supp.). Thus, the Crane case cannot be applied to permit recovery on a statutory lien below.

The final judgment below is REVERSED and the case REMANDED for entry of the judgment for appellants.

GRIMES, A.C.J., and SCHEB, J., concur.


text:
    David M. WILSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-119.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1983.
    Rehearing Denied Feb. 16, 1983.
    David M. Wilson, pro se.

      Enoch J. Whitney, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Wilson appeals from a final order of the Florida Parole and Probation Commission (Commission) establishing his presumptive parole release date (PPRD). Appellant argues that the Commission should have established his severity of offense behavior as a felony of the second degree (burglary of a dwelling), instead of a felony of the first degree (burglary of a dwelling while armed with a dangerous weapon). The Commission argues that there is record support for its conclusion that appellant pled guilty to burglary of a dwelling while armed with a dangerous weapon. We agree with appellant that the Commission erroneously established his severity of offense behavior.

After a thorough review of the record on appeal, we note that although there are several places in the record that arguably indicate appellant pled guilty to burglary of a dwelling while armed with a knife, there are also several places in the record that arguably indicate appellant pled guilty to burglary of a dwelling. However, in the Judgment and Sentence appellant pled guilty to “Burglary (Dwelling)” and he was found guilty and sentenced on that charge. There is no indication on the face of the Judgment and Sentence that appellant pled guilty to burglary of a dwelling while armed with a dangerous weapon. Accordingly, it was error for the Commission to establish appellant’s severity of offense behavior as a first degree felony. We therefore reverse the Commission’s establishment of appellant’s severity of offense behavior and remand to the Commission for the establishment of an appropriate PPRD in accordance with this opinion. This decision does not preclude the Commission, on remand, from considering the propriety of aggravating appellant for possession of a knife during the burglary. See generally, Wickham v. Florida Parole and Probation Commission, 410 So.2d 989 (Fla. 1st DCA 1982).

REVERSED AND REMANDED for proceedings consistent with this opinion.

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


author: HURLEY, Judge.

text:
    Sidney LEVENSON and Sally Levenson, his wife, Appellants, v. BRIGHTSIDE LIMITED, a Florida limited partnership and Gigliotti Corporation, a Florida corporation, Appellees.
    No. 82-433.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Rehearing Denied Feb. 25, 1983.

      Steven W. Effman, Lauderhill, for appellants.
    Brian B. Joslyn of DeSantis, Cook, Gaskill & Silverman, North Palm Beach, for appel-lees.
   HURLEY, Judge.

The trial court applied the rule from the Harry Pepper case and dismissed the plaintiff’s complaint with prejudice. We hold that the rule in Harry Pepper is inapposite to the case at bar and, consequently, we reverse.

Harry Pepper and Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971), announced the rule that if

[tjhere is an inconsistency between the general allegations of material facts in the ... complaint and the specific facts revealed by the exhibit ... [attached or referred to in the complaint] ... they have the effect of neutralizing each other, thus rendering the pleading objectionable.

Id., at 736-37. The plaintiffs, Mr. and Mrs. Levenson, filed a two count complaint alleging fraud and misrepresentation. Essentially, they claimed that the defendant, who was the developer of a project known as Banyan Springs, made certain fraudulent misrepresentations in the course of selling a residential unit. A copy of the purchase agreement, signed by the Levensons and a representative of Brightside, Ltd., was attached as an exhibit to the complaint. The first page contains the following statement, set forth in bold print:

ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE DEVELOPER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS FURNISHED BY A DEVELOPER TO PURCHASER.

On the basis of the above clause, and relying on Harry Pepper, the trial court dismissed the complaint with prejudice. We respectfully disagree.

In our view, Harry Pepper does not apply to the case at bar. First, the contract which was attached as an exhibit to the complaint merely substantiated the complaint’s allegations about the relationship between the parties. It did not establish as a factual certainty that there was no fraud in the inducement. In other words, this is not an action upon a contract in which the complaint alleges facts contrary to those contained in the contract. Rather plaintiffs alleged that the defendant tortiously and fraudulently induced them to sign the contract. Therefore, the language of the contract itself cannot be scrutinized to determine whether the contract was made as the result of fraud.

Accordingly, the order of dismissal is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DELL, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Billy D. CONEY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-215.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.

      Billy D. Coney, pro se.
    John C. Courtney, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

There is no merit in Coney’s appeal from Commission action. Britt v. Florida Parole & Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Lambeth v. Florida Parole & Probation Commission, 411 So.2d 956 (Fla. 1st DCA 1982). On Coney’s appeal the order is therefore AFFIRMED. But because the Commission fixed Coney’s offense severity as for a third degree felony, when in fact his offense was a second degree felony, the matter is REMANDED to the Commission to correct that error.

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


text:
    In re The ESTATE OF Lee Wyley HARRELL, Sr., Deceased. John F. SPROULL, Appellant, v. ESTATE OF Lee Wyley HARRELL, Sr., Deceased, Appellee.
    No. 82-445.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1983.
    John F. Sproull, Palatka, in pro. per.
    Kate L. Walton of Walton & Townsend, Palatka, for appellees Katy Steinkamp and Dianne H. Moore.
   JOHNSON, CLARENCE T., Jr., Associate Judge.

Appellant, attorney for the co-personal representatives, appeals the amount of attorney fees awarded to him by the trial court.

Appellant had no fee agreement with his clients and kept no time records. He filed an affidavit reflecting the services he had performed and estimated they amounted to over 450 hours. This total included “innumerable hours” going through personal papers and effects, “numerous hours” devising the appropriate division of decedent’s coin and money collection, and “in excess of 150 hours” discussing various aspects of the estate proceedings with one of the co-personal representatives, at appellant’s home.

The trial court, after hearing testimony of appellant, the two co-personal representatives, and two attorneys called as experts, agreed with appellant that $85.00 per hour was reasonable, but found “that 250 hours would have been a reasonable time to have devoted to the work of this estate.”

Appellant argues that since the attorneys called as experts supported his estimated hours, the trial court was required to accept that testimony as conclusive and find the 450 hours reasonable. Such is not the law. While the opinion of an expert witness testifying on attorney’s fees is persuasive, it is not binding on the court in the determination of a reasonable fee. Such testimony is to be weighed with the other evidence in the case bearing upon the value of the services.

No error having been demonstrated, the order appealed from is

AFFIRMED.

COBB and COWART, JJ., concur.

      . See, e.g., Ruwitch v. First National Bank of Miami, 327 So.2d 833 (Fla. 3d DCA 1976); Manatee County v. Harbor Ventures, Inc., 305 So.2d 299 (Fla. 2d DCA 1975).

      . Romy v. Dade County, 114 So.2d 8, 9 (Fla. 3d DCA 1959).


author: SHARP, Judge.

text:
    Julie Jolin CURRY, as Personal Representative of the Estate of Henry A. John, Appellant, v. CAPE CANAVERAL HOSPITAL and William F. Addington, M.D., Appellees.
    No. 82-457.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1983.
    James O. Driscoll, of Driscoll, Langston & Kane, P.A., Orlando, for appellant.
    Robert K. Rouse, Jr., of Smith, Schoder & Rouse, P.A., Daytona Beach, for appellee, William F. Addington, M.D.

      G. Bruce Hill, of Adams, Hill & Fulford, Orlando, for appellee, Cape Canaveral Hosp.
   SHARP, Judge.

Curry appeals from the trial court’s final summary judgments denying her claims against appellees Cape Canaveral Hospital and Dr. William Addington, an emergency room physician. On behalf of her brother’s estate, she sought both punitive and compensatory damages for Dr. Addington’s failure to diagnose and treat her brother’s ruptured esophagus, which resulted in his death.

We affirm the summary judgments as to their denial of punitive damages because the record contains no basis to conclude Dr. Addington or the hospital acted with malice, gross negligence or fraud. See Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Otey v. Florida Power and Light Company, 400 So.2d 1289 (Fla. 5th DCA 1981).

However, we reverse the summary judgments as to their dismissal of Curry’s claims for compensatory damages. The affidavit of Dr. Rein, offered by Curry in opposition to summary judgment, creates a question of fact regarding negligence and malpractice on the part of Dr. Addington and the hospital. Addington was allegedly either an agent or employee of the hospital. Further, the record did not conclusively show that the hospital had not independently breached its duty of care to the decedent.

The appellees argue that Dr. Rein’s affidavit should not have been considered because it did not establish he was a health care provider similar to Dr. Addington. However, the key question here is whether or not Dr. Rein is qualified to offer an opinion regarding the standard of care for health care providers similar to Dr. Adding-ton. Mitchell v. Angulo, 416 So.2d 910 (Fla. 5th DCA 1982). Appellees failed to establish this fact, one way or the other. Because the movants for summary judgment must show they are entitled to prevail on all points as a matter of fact and law, these summary judgments cannot stand. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

AFFIRMED IN PART; REVERSED IN PART.

DAUKSCH, J., and BROWNLEE, JACKSON 0., Associate Judge, concur.

      . § 768.45, Fla.Stat. (1981).


text:
    David PINZL and Diana Pinzl, Appellants, v. Donald LAPOINTE and Deliah Lapointe, Appellees.
    No. 82-658.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1983.

      Edward A. Broyles, Forest City, for appellants.
    Mark 0. Cooper of Bornstein, Petree, Brooks, Cooper & Marks, Orlando, for ap-pellees.
   SHARP, Judge.

We reverse this judgment which dismissed appellants’ amended complaint for failure to state a cause of action in fraud or misrepresentation. The lower court ruled that, because the complaint alleged the appellants knew of a discrepancy between the accountant’s figures on gross income and the appellees’ figures, as a matter of law they waived their claim against appellees. Reliance on misrepresentations and a duty to inquire are usually determinations for the trier of fact. Here the complaint further alleged that the appellants were repeatedly assured that the ap-pellees’ figures on gross income were correct — not the accountant’s. Accordingly, the judgment is reversed and this cause remanded.

REVERSED AND REMANDED.

DAUKSCH, J., and BROWNLEE, JACKSON 0., Associate Judge, concur.

      . See, e.g., Regnvall v. Sayle, 45 So.2d 674 (Fla.1950); Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977); Cath-Art Products Co., Inc. v. Bornman, 260 So.2d 885 (Fla. 3d DCA 1972); Gonzalez v. Patane, 234 So.2d 8 (Fla. 3d DCA 1970); Warner v. Harris Miami Beach, Inc., 219 So.2d 93 (Fla. 3d DCA 1969).


author: WIGGINTON, Judge. ERVIN, Judge,

text:
    Leo WOULARD, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-225.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1983.
    Leo Woulard, pro. per.

      Malcolm H. Greenfield, Gen. Counsel, and John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Woulard appeals from an order of the Florida Parole and Probation Commission (FPPC) establishing a presumptive parole release date (PPRD). He raises two issues: (1) whether the PPRD so established violates ex post facto considerations by setting a date in accordance with parole guidelines adopted subsequent to the date of the offense, and (2) whether the FPPC violated the due process clause of the Florida and United States constitutions by not giving him prior notice of the guidelines before they were adopted. We affirm the commission’s order.

This Court has previously rejected appellant’s initial contention and approved such a procedure for establishing a PPRD. See Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982) and May v. Florida Parole and Probation Commission, 424 So.2d 122 [8 FLW 73] (Fla. 1st DCA 1982).

Woulard is also in error as to the second issue he raises. It appears there is no general constitutional right to notice of a rule change. See Hunter v. Florida Parole and Probation Commission, 674 F.2d 847, 848 (11th Cir.1982); Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir.1982), cert. denied, 456 U.S. 909, 102 S.Ct. 1757, 72 L.Ed.2d 166 (1982). Moreover, there has been no violation of the notice requirements of Section 120.54(l)(a), Florida Statutes (1981). See Adams, et al. v. Florida Parole and Probation Commission, 422 So.2d 953 (Fla. 1st DCA 1982).

AFFIRMED.

MILLS, J., concurs.

ERVIN, J., concurs in part and dissents in part with written opinion.

ERVIN, Judge,

concurring and dissenting.

I agree with the majority that the circumstances of this case do not violate due process protections as they relate to the failure to give Woulard notice of the proposed rule change. I would, however, reverse the presumptive parole release date (PPRD), because, in my judgment, the Commission’s reliance on guidelines adopted after the date of the crime in setting the PPRD is contrary to the constitutional proscription against ex post facto laws. Without belaboring the point, I would adopt the well-reasoned dissent of my Brother Shivers in May v. Florida Parole & Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982). Judge Shivers’ dissent relied primarily upon the opinions of Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), and of Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 235,74 L.Ed.2d 186 (1982). I would add as further support for my position the cases of Marshall v. Garrison, 659 F.2d 440, 445 (4th Cir.1981), and Geraghty v. U.S. Parole Commission, 579 F.2d 238, 266 (3d Cir.1978), vacated and remanded on other grounds, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). I consider those four cases form the view that parole guidelines are subject to ex post facto prohibitions. Like Judge Shivers, I would therefore recede from pri- or opinions of this court holding that a change in the matrix rule is not subject to ex post facto considerations, specifically, Overfield v. Florida Parole & Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982), and Hurst v. Florida Parole and Probation Commission, 418 So.2d 444 (Fla. 1st DCA 1982). At the very minimum, I think the question before us is one that deserves to be certified to the Florida Supreme Court as passing upon a question of great public importance, as was done by the majority in May.


author: MILLS, Judge.

text:
    Norman Max COLE, Appellant, v. Joyce Louise Irwin COLE, Appellee.
    No. AK-469.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1983.
    Anderson E. Hatfield, Gainesville, for appellant.
    No appearance for appellee.
   MILLS, Judge.

The ex-husband appeals an order modifying child custody and child support but continuing periodic alimony unchanged. We affirm.

The ex-husband argues that it was an abuse of discretion not to require the ex-wife to pay child support. The record supports a finding that she is unable to pay child support, while he is capable of supporting the children without her contribution.

We do not find error in the trial court’s refusal to modify the periodic alimony. While the resolution of this issue would have been made substantially easier by the provision of a complete record, or even a stipulated and approved statement, pursuant to Rule of Appellate Procedure 9.200(a)(3), the record does include the financial affidavits of the parties. The financial information does not reveal an abuse of discretion by the trial court in continuing periodic alimony unchanged.

AFFIRMED.

ERVIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.