text:
    Edward Leonard WHITE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-980, 76-805.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 19, 1977, 348 So.2d 368 (Fla. 3d DCA 1977) affirming the judgment and sentences of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its Opinion and judgment filed September 27, 1979, 377 So.2d 1149, and mandate now lodged in this court, reversed in part, and affirmed in part this court’s judgment and sentences remanded the cause with instructions;

NOW, THEREFORE, It is Ordered that this court’s mandate heretofore issued in this cause on August 14, 1977 is withdrawn, the judgment of this court filed in this cause on July 19,1977, except as is affirmed by the judgment of the Supremé Court dated September 27, 1979, is vacated and the said opinion and judgment of this court. The judgment and sentences appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court to impose an appropriate sentence. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Appellate Procedure Rules).


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    AETNA INSURANCE COMPANY, Appellant, v. Gayle C. HARTER et al., Appellees.
    No. 79-653.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1980.
    James B. Thompson and Mark E. Hun-gate of Fowler, White, Gillen, Boggs, Villa-real & Banker, St. Petersburg, for appellant.
    Rick A. Mattson of Stoneman, Mattson & McGrady, St. Petersburg, for appellees.
   SCHEB, Judge.

Appellant, Aetna Insurance Company, paid workers’ compensation benefits to an injured employee who subsequently recovered damages for her injuries in a suit against third-party tortfeasors. The trial court dismissed a motion for equitable distribution filed under Section 440.39(3), Florida Statutes (1975). Aetna appeals.

The issue we address is whether Aetna’s failure to file and record a notice of lien in the employee’s third-party suit deprived it of its right under Section 440.39(3) to obtain an equitable distribution of the damages recovered by the employee in her third-party action. We hold it did not and reverse.

' On October 7, 1976, Gayle C. Harter was injured in an automobile collision while she was driving a car within the scope of her employment. Harter began receiving workers’ compensation benefits from Aet-na, her employer’s carrier. On September 19, 1977, Aetna furnished the required statutory notice of its subrogation rights. § 440.39(3)(b), Fla.Stat. (1975). On September 23 Harter filed a tort action seeking damages from the driver and the owner of the other vehicle. Subsequently, she accepted $15,000 in settlement of her claims from their insurance company.

Harter then filed a motion in the tort litigation requesting the court to make an equitable distribution of the settlement proceeds between her and Aetna, and served the motion on Aetna. She was still receiving compensation benefits from Aetna at this time. Aetna’s first notice of Harter’s third-party action was the motion. At a hearing on Harter’s request for equitable distribution, Aetna responded that since it was currently making payments to her and would be required to make further payments, it was premature for the court to make a determination on the motion. After several continuances, the court, at Har-ter’s request, dismissed the motion.

Aetna contends the court erred because Section 440.39(3)(b) entitles it to have its subrogation rights determined since it furnished written notice of its rights of subro-gation to the third-party tortfeasors. Har-ter seeks to sustain the trial court’s order on the basis that Aetna did not file and record a notice of payment of compensation in the tort suit as it contends Section 440.-39(3)(a) requires.

Section 440.39(3)(a) allows an employee who receives compensation benefits the exclusive right to bring a third-party action during the first year after an accident occurs. It also provides that the carrier may file and record a notice of payment in any third-party suit. If it does, the notice constitutes a lien on any payments made on behalf of the third-party tortfeasor.

Section 440.39(3)(b) covers the situation where a settlement occurs either before or after suit by an injured employee. It provides for a court determination of the subrogation rights of a compensation carrier which has given notice of its rights to the third-party tortfeasor. Of course, if the carrier proceeds under (3)(b), it does not have the advantage of the lien afforded by the carrier’s compliance under (3)(a). Yet, it is entitled to have its proportionate recovery determined under (3)(a).

Harter seeks to sustain the trial court’s holding on the authority of Alfar Creamery Co. v. Williams, 366 So.2d 458 (Fla. 4th DCA 1979). There the Fourth District Court of Appeal held that a carrier which proceeded under Section 440.39(3)(a) was required to comply with the requirement of filing and recording its notice to be entitled to subrogation under (3)(a). Here the issue is Aetna’s entitlement to subrogation under (3)(b), not (3)(a). To extend the holding in Alfar to (3)(b) is unwarranted.

Aetna gave written notice of its rights of subrogation to the third-party tortfeasors and thereafter Harter and the tortfeasors settled the tort suit. Since Aetna and Har-ter failed to agree on the proportion to be paid to each, the trial court should have determined the amount to be paid to each in accordance with Subsection (3)(a). § 440.39(b), Fla.Stat. (1975).

Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

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

      . Section 440.39(3)(a) and (b), Florida Statutes (1975) provides:
      (a) In all claims or actions at law against a third party tort-feasor, the employee, or his .dependents, or those entitled by law to sue in the event he is deceased, shall sue for the employee individually, and for the use and benefit of the employer if a self-insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff, or, at the option of such plaintiff may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed and notice of payment of compensation benefits shall be served upon the compensation carrier and upon all parties to the suit or their attorneys of record.
      (b) If the employer or insurance carrier has given written notice of his rights of subrogation to the third party tort-feasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third party tort-fea-sor in accordance with the provisions of paragraph (a) above.

      . Harter failed to notify Aetna of her suit against the third-party tortfeasors as required by Section 440.39(3)(a), Florida Statutes (1975).

      . Moreover, we are confident that the Alfar court would not apply its rationale to the facts of the instant case, since here Aetna never knew of the existence of the lawsuit within which to file its claim of lien.


author: BOARDMAN, Judge.

text:
    James Hart SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 79-780.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1980.
    Jeffrey S. Chilldon of John A. Chilldon, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

James Hart Scott appeals convictions and sentences for two counts of battery on a law enforcement officer, two counts of resisting an officer with violence, and escape. The only point which merits discussion is his contention that the convictions and sentences for battery on a law enforcement officer are illegal. We agree and reverse in part.

The information charged, as to the counts of battery on a law enforcement officer, in violation of Section 784.07(2), Florida Statutes (1977), that appellant

actually and intentionally did touch and strike another person, to-wit: [sic] R. Z. Wyatt, [K. H. Hendrix] against the will of the said R. Z. Wyatt [K. H. Hendrix] and the said R. Z. Wyatt [K. H. Hendrix] then and there was a law enforcement officer engaged in the lawful performance of his duties. .

The essential element of knowledge that the victim was a law enforcement officer was not alleged in either battery count.

Omission of the essential element of knowledge renders both of the subject counts of the information insufficient to charge the felony offense of battery on a law enforcement officer. However, both counts are sufficient to charge the first-degree misdemeanor offense of simple battery, proscribed by Section 784.03, Florida Statutes (1977). Englund v. State, 368 So.2d 86 (Fla.2d DCA 1979); Radford v. State, 360 So.2d 1303 (Fla.2d DCA 1978); see also Shanklin v. State, 369 So.2d 620 (Fla.2d DCA 1979).

Accordingly, the portion of the judgment and sentence pertaining to the battery on a law enforcement officer counts is vacated and the cause remanded with instructions to adjudicate appellant guilty of simple battery as to these counts and enter appropriate sentences thereon, which may not exceed one year on each count. §§ 784.03(2), 775.082(4)(a), Fla.Stat. (1977).

The remaining points raised by appellant have been considered and are without merit. The convictions and sentences for escape and resisting an officer with violence are therefore affirmed.

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


author: PER CURIAM.

text:
    William E. JOYNER, Appellant, v. Clinton S. KARSNER et al., Appellees.
    No. PP-22.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.
    Thomas J. Guilday of Akerman, Senter-fitt & Eidson, Tallahassee, for appellant.
    Harry Lewis Michaels and R. Lee Do-rough of Michaels, Sheffield, Perkins, Collins & Vickers, Tallahassee, for appellees.
   PER CURIAM.

The trial court’s amended injunction and final judgment is substantially without error, except in the breadth of paragraph 2, which is amended to read:

2. That the counter-defendant is enjoined to remove the mobile home from Lot 1-A and is enjoined from using Lot 1 — A for any other purpose inconsistent with an easement for ingress and egress from Lake Talquin and incidental purposes.

As amended, the judgment is AFFIRMED.

ROBERT P. SMITH, Jr., SHIVERS and WENTWORTH, JJ., concur.


author: McCORD, Judge.

text:
    Robert Earl GORDON, Appellant, v. STATE of Florida, Appellee.
    No. PP-398.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant seeks review of the trial court’s denial of his motion to correct sentence. We reverse.

On May 1, 1979, while on probation, appellant was jailed on a charge of burglary on which he was subsequently acquitted. On May 26, 1979, while appellant remained in jail on the burglary charge, an affidavit alleging a violation of probation on the basis of the burglary charge was served on appellant. Pursuant to that affidavit, the trial court held a probation revocation hearing on August 17, 1979, at the conclusion of which the court found appellant had violated his probation conditions. Thereupon, the trial court adjudicated appellant guilty of the original charge and sentenced him to five years in prison with credit time given only for 10 months which appellant earlier had spent in jail as a condition of his probation.

In his motion to correct sentence, appellant argued that the trial court had improperly failed to grant him credit for the time he spent in jail after his May 1 arrest on the subsequent burglary charge. We find that the trial court erred in not giving appellant credit for time served from May 1, 1979, to August 17, 1979, in that he was held during that entire time on the charge which prompted the revocation of his probation. § 921.161, Fla.Stat., and Voulo v. Wainwright, 290 So.2d 58 (Fla.1974).

REVERSED and REMANDED for resen-tencing in light of this opinion.

MILLS, C. J., and BOOTH, J., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Paul LaFOND, Appellant, v. PINELLAS COUNTY BOARD OF COMMISSIONERS and Niagara Underwriters Adjusting Company, Appellees.
    No. PP-421.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.

      L. C. Schowe, St. Petersburg, for appellant.
    John S. Smith, of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellees.
   PER CURIAM.

This cause is before us on appeal from an order of the Deputy Commissioner awarding 70 percent permanent partial disability benefits, finding that the claimant had failed to undertake a job search after reaching maximum medical improvement, and allowing the employer/carrier an offset for cost of living increases provided claimant by Social Security. We AFFIRM the Deputy’s award of benefits and his finding that claimant’s job search was undertaken prior to reaching maximum medical improvement. However, as conceded by the employer/carrier, they are not entitled to an offset for Social Security cost of living increases. A. C. Scott Construction & Paving Company, Inc. v. Miller, IRC Order 2-3906 (September 11, 1979). On that point we REVERSE. The petition for attorney fees was not filed with petitioner’s brief and is, therefore, DENIED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

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

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


text:
    The SEASONS FROM SARASOTA (Four Seasons Apts.) and Continental National American Group, Appellants, v. Michael Joseph O’DAY, Sunrise Cove Condominiums and Florida Farm Bureau, Appellees.
    No. QQ-56.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.

      Richard A. Valeri of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Peter W. Martin of Nelson, Hesse, Cyril, Weber, Smith & Widman, and John J. O’Riorden, Sarasota, for appellees.
    Michael Joseph O’Day, pro se.
   PER CURIAM.

The employer/carrier appeals a worker’s compensation order wherein the judge divided the responsibility for medical benefits between two carriers. The claimant had sustained multiple accidents, with different carriers “on risk.” While § 440.-02(18), Fla.Stat., indicates that medical benefits are not apportionable, this provision governs disputes between a claimant and an employer/carrier, and does not apply to disputes between multiple carriers. Rowe and Mitchell v. Rodgers, 378 So.2d 1281 (Fla. 1 DCA 1979). Disputes between carriers are governed by § 440.42(3), Fla.Stat., which empowers the judge to divide medical costs according to each carrier’s responsibility. Id.

In the present case, the judge required the first carrier to pay for medical costs which the record indicates were attributable to the first injury independent of the subsequent injury. Such etiological responsibility comports with Rowe and Mitchell v. Rodgers, supra.

Accordingly, the order appealed is hereby affirmed.

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    DIPLOMAT HOTEL and Cosmopolitan Mutual Insurance Company, Appellants, v. Frank GRIMES, Appellee.
    No. QQ-262.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.
    Albert P. Massey, III of Pyszka, Kessler & Adams, Fort Lauderdale, for appellants.
    Zebedee W. Wright, Fort Lauderdale, for appellee.
   PER CURIAM.

The appellants, Diplomat Hotel and Cosmopolitan Mutual Insurance Company, bring this appeal from a final workers’ compensation order entered January 5, 1979. The order is affirmed, except as to the award of temporary total disability benefits. The award of these benefits exceeds the announced scope of hearing, which was limited to compensability and further medical treatment.

The award of temporary total disability benefits is hereby stricken. The order is otherwise affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellants, v. Doris B. WALKER, Appellee.
    No. QQ-264.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.
    Charles E. Kelly of Pyszka, Kessler & Adams, Miami, for appellants.
    Eugene Williams of Williams & Tomlin-son, Coral Gables, for appellee.
   PER CURIAM.

The carrier in this worker’s compensation case appeals the Judge of Industrial Claim’s Order in its award of temporary total benefits and in its award of permanent partial disability benefits.

The appellee-claimant injured her back while working as a school teacher in March of 1977. The Judge awarded her temporary total disability benefits from that date until May 27, 1977, when she returned to work until school ended for the summer. He ordered further temporary total payments from June 16, 1977 to August 26, 1977, the period of the summer holiday during which appellee was unemployed. Appellee stated she was exhausted after the three weeks of desk work and felt unable to work during the summer term. We agree with the appellant that appellee’s return to work in May, 1977, demonstrated a partial ability to work and that she did not show she was subsequently totally disabled during the period of summer school. See Teleprompter of Florida, Inc. v. Springer, IRC Order No. 2-3439 (1978).

The Judge also found that the ap-pellee had sustained a 30% permanent partial anatomical disability, 20% of which was attributable to a preexisting back condition of which the employer was aware and 10% of which was attributable to the accident in March of 1977. The appellant argues the Judge erred in finding it responsible for benefits based on the 30% rating, rather than on the 10% disability allocable to the accident, solely because of the Judge’s statement that it was responsible for the merged disability because “the employer had knowledge of [the claimant’s] . prior surgery and disability. . . . ” We agree with the appellee that, although an employer’s knowledge of a prior disability is no longer relevant to a determination that a claimant will be compensated for disability due to a prior injury and disability due to the injury at issue, that finding alone does not merit reversal of a case. See Section 21, Chapter 74-197, Laws of Florida and Media General Hospital v. Printing Pressmen and Assistants’ Union, IRC Case No. 2-3468 (1978). Here, there was competent substantial evidence that appellee’s prior condition was asymptomatic before the accident to the extent that it never affected her work, and there was no evidence that the prior disability manifested itself independently of the disability caused solely by the accident in 1977. Apportionment was thus not proper in this case. See Evans v. Florida Industrial Commission, 196 So.2d 748, 752-753 (Fla.1967).

Finally, we agree that the order should be modified to the extent that it appears to order appellant to pay for the unclaimed bill of Dr. Burbacher for his September 26, 1978, examination of the appellee.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Christian LOUIS, Appellant, v. COUNTRY CLUB OF AVENTURA and Liberty Mutual Insurance, Appellees.
    No. QQ-272.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Richard Hodges of Miller &* Hodges, Miami, for appellees.
   PER CURIAM.

Appellant Louis argues the Judge of Industrial Claims erred in failing to award him 100% of his attorney’s fee. Louis was compensably injured after the effective date of Section 10, Ch. 78-300, Laws of Florida, which amended Section 440.34(1). That section, as amended, provides that unless the claimant proves the carrier handled the claim negligently, arbitrarily or capriciously, and where the attorney’s fee is based on benefits other than medical benefits, the claimant will be awarded only 75% of the fee found reasonable for his or her attorney. Here, the Judge found the carrier was overdue in adjusting the rate of temporary total benefits, which were initially based on an incorrect wage statement, and assessed a 20% penalty. He found further that, although the carrier voluntarily accepted the medical rating of the claimant’s permanent partial disability, the delay between the date of maximum medical improvement, and the concurrent cessation of temporary total benefits, and the date the carrier began payment of partial disability benefits was great enough that claimant’s attorney was entitled to a fee based on procurement of the permanent disability benefits. Finally, the Judge was of the opinion that the carrier’s omission in ceasing to pay permanent disability benefits for one month was somehow mitigated by the claimant’s attorney’s failure to immediately notify the carrier of its error. However, even though the late benefits may have been paid sooner upon the attorney’s notification, that possibility does not erase the fact of the carrier’s negligence. Despite the Judge’s numerous findings, only 75% of the attorney’s fee was awarded to Louis on the ground that no showing was made that the carrier handled the claim negligently, capriciously or arbitrarily. This conclusion is in irreconcilable conflict with his prior findings. The omissions and oversights found by the Judge amount to negligence, at the least.

Reversed ‘End remanded for the Judge to award the attorney’s fee in accordance with his findings, and to order payment of interest on the untimely benefits according to Section 440.20(7), Florida Statutes (1977).

The order is otherwise affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: MILLS, Chief Judge.

text:
    In The Interest of E. W., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. OO-336, OO-337.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.
    Michael J. Minerva, Public Defender; Steven H. Parton, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton and A. S. Johnston, Asst. Attys. Gen., for appellee.
   MILLS, Chief Judge.

Delinquency petitions were filed charging E. W., a juvenile, with a burglary, the theft of a calculator, and the theft of a bicycle. We find the challenge to the disposition of the first two charges to be without merit, but we reverse as to the theft of the bicycle.

The evidence established that a bicycle was missing and that the juvenile owner named in the amended petition and his mother identified a bicycle which had been recovered by the police. The evidence also established that E. W. returned home one evening with a bicycle which his mother testified was not his. There was, however, no evidence whatsoever establishing that the specific bicycle found in E. W.’s possession was the bicycle identified by the other boy and his mother. Thus, we agree with appellant’s contention that the judge should have granted the motion for judgment of acquittal as to the theft of the bicycle.

AFFIRMED in part and REVERSED in part.

McCORD and BOOTH, JJ., concur.


text:
    CITY OF HIALEAH, Appellant, v. Richard A. HILYARD, Appellee.
    No. QQ-230.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.
    Douglas A. McDuff of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, for appellee.
   PER CURIAM.

The employer/carrier seeks review of the order of the judge of industrial claims contending that the judge erred 1) in ordering the appellant to pay future temporary total disability benefits, to provide future medical treatment and to reimburse prescription and transportation costs when these were not in issue and 2) in finding that appellee was not timely paid his compensation benefits when the appellant was paying him full wages, and in awarding penalties and an attorney’s fee.

Appellant is correct in his contention that the judge of industrial claims should not have entered an order on the question of future compensation, medical benefits and the drug and transportation costs. Since the employer/carrier was not opposing payment of these benefits the judge of industrial claims ruled on a matter not in controversy. This was error. School Board of Pinellas County v. Mauri, IRC Order 2-3330 (1978). That portion of his order is reversed.

We find no merit in appellant’s second point. The record contains competent substantial evidence to support the judge’s finding that the payments were not timely and Section 440.20(5) Florida Statutes (1977) provides for the assessment of penalties in such circumstances. The portion of the order assessing these penalties and awarding attorney’s fees is affirmed.

Affirmed in part, reversed in part and remanded for entry of an order consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

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

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


text:
    Patricia Ann LEGGETT, Appellant, v. STATE of Florida, Appellee.
    No. 79-1662.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1980.
    Jack O. Johnson, Public Defender, and Judith L. James, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The revocation of appellant’s probation is affirmed, but we remand with directions that the finding of violations of the conditions requiring payments to the Fine and Forfeiture Fund and of the costs of supervision be deleted from the order of revocation. Appellant did not admit this violation, there was no evidence to show that appellant was able to pay the costs, and the trial judge announced at the conclusion of the revocation hearing that he would not revoke probation on those grounds. See Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

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


author: MILLS, Chief Judge. BOOTH, Judge,

text:
    BREVARD BOARD OF COUNTY COMMISSIONERS and U. S. Fidelity and Guaranty Company, Appellants, v. Billie E. CALDWELL, Appellee.
    No. QQ-221.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    John R. Gierach of Gierach & Ewald, Orlando, for appellants.
    Robert G. Ferrell, III, of Ferrell & Jaco-bus, Melbourne, for appellee.
   MILLS, Chief Judge.

In the initial order entered in this case, the Judge of Industrial Claims set forth extensive findings of fact and ruled that the claimant had suffered permanent total disability. The Industrial Relations Commission reversed on appeal, holding that the claimant had not undertaken a sincere and thorough work search. IRC Order 2-3313 (January 10, 1978), cert. denied at 364 So.2d 882 (Fla.1978). On remand, the Judge simply adopted and incorporated the findings of his previous order except the finding of permanent total disability and entered a finding of 70 percent permanent partial disability based on loss of wage earning capacity. We reverse.

A finding of permanent partial disability based on the loss of wage earning capacity requires that there be a bona fide work search. Since the earlier order by the Industrial Relations Commission was res ju-dicata as to the adequacy of the work search, the Judge of Industrial Claims was bound by it and was limited on remand to entry of an order based on anatomical impairment. See Florida Parole and Probation Commission v. Fry, IRC Order 2-2864 (October 30, 1975).

Two other issues were raised in this appeal: that it was error to award further remedial care and treatment while simultaneously finding maximum medical improvement and that it was error to order payment of outstanding medical bills when no medical bills were introduced into evidence. The record shows that these awards were included in the original order and were not challenged in the earlier appeal to the Industrial Relations Commission. For this reason, we now affirm.

Since we are reversing the award of benefits, attorney’s fees must also be reversed and remanded for reconsideration.

REVERSED and REMANDED for entry of an order consistent with this opinion.

McCORD, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

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

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


text:
    WESTINGHOUSE ELECTRIC CORP. (Self-Insured), Appellant/Cross-Appellee, v. Willie WILLIAMS, Appellee/Cross-Appellant.
    No. QQ-224.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    B. C. Pyle of Whittaker, Pyle, Stump & Webster, P. A., Orlando, for appellant/cross-appellee.
    Bruce R. Raster of Pattillo, MacKay & McKeever, P. A., Ocala, for appellee/cross-appellant.
   PER CURIAM.

The record reveals that the claimant worked for one week in one construction job, and for nine weeks in another construction job during the time he was found to be temporarily totally disabled. The deputy commissioner failed to take cognizance of this evidence in ordering the carrier to:

[Rjeclassify all permanent partial disability benefits paid prior to August 30, 1977, as temporary total disability benefits, . pay to the claimant temporary total disability benefits from the date permanent partial disability benefits terminated until August 30, 1977, .

The order, otherwise affirmed, is reversed as to this award, and the cause is remanded to the deputy commissioner for a new order consistent with this opinion. See MJM Construction Co. v. Roberts, IRC Order 2-3387 (March 31, 1978); Purcell v. Douglas, 8 FCR 375 (1974), cert. denied, 302 So.2d 762 (Fla. 1974).

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Charles J. DANIEL, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent.
    No. SS-464.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    Charles J. Daniel, pro se.
    Michael H. Davidson, Gainesville, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus, the response to the order to show cause and petitioner’s rebuttal thereto having been considered, the order to show cause is discharged and the petition for writ of habeas corpus is denied.

MILLS, C. J., and SHAW and WENT-WORTH, JJ., concur.


text:
    Lydia Dianne VAUGHAN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1431.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Raymond E. Badini, Miami, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Castor v. State, 365 So.2d 701 (Fla.1978); Beasley v. State, 354 So.2d 934 (Fla.2d DCA 1978); State v. Smail, 337 So.2d 421 (Fla.2d DCA 1976); English v. State, 301 So.2d 813 (Fla.2d DCA 1974).


author: HENDRY, Judge.

text:
    NATIONAL AIRLINES, INC., Appellant, v. DIVISION OF EMPLOYMENT SECURITY OF FLORIDA DEPARTMENT OF COMMERCE; Sara G. Ware, Appellees.
    No. 79-595.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Steel, Hector & Davis and John M. Bark-ett, Miami, for appellant.
    James R. Parks and Harden King, Jr., Tallahassee, Lawrence Kanzer, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   HENDRY, Judge.

Petitioner, National Airlines, Inc., seeks review of the order holding that the claimant, Sara G. Ware, a National Airlines employee is qualified to receive unemployment compensation benefits. Petitioner maintains that the Unemployment Appeals Commission erred in entering its order which affirmed the findings of fact and conclusions of law reached by the appeals referee. Specifically, National contends that the claimant is not entitled to receive benefits under Chapter 443, Florida Statutes, and even assuming arguendo that Ware is qualified to receive benefits, she is, nevertheless, ineligible because she was not “available for work” pursuant to Section 443.05(l)(c)(l), Florida Statutes, which recites the statutory conditions for eligibility.

Ware has been a flight attendant with National Airlines since 1962; in July of 1978 she was suspended for failing to comply with National’s weight program — that is, she had gained I6I/2 pounds over her allowed weight. Under the conditions of the suspension, Ware was required to comply with the height-weight limitation by October of 1978, she did so and returned to work in September of 1978. Respondent had filed a claim for unemployment compensation benefits two days after having been suspended in July. It is, therefore, that interim duration of time between suspension and return to work duties, a period of approximately six (6) weeks, for which Ware sought unemployment benefits.

Of paramount importance in resolving the issues in this case is the determination of whether under Florida law a suspension is equivalent to the phrase used in the statute defining those who are automatically “disqualified” from benefits (Section 443.-06(1), Florida Statutes); to wit, “discharged for misconduct connected with his work.”

Initially, the claims examiner disqualified Ware from receiving benefits. Respondent timely appealed. A hearing was had beforé the appeals referee after which a recommended order was entered. The order was later adopted by the Unemployment Appeals Commission. It states in pertinent part:

“The Florida Unemployment Compensation Law provides that an individual shall be disqualified from receiving benefits for having voluntarily left his employment without good cause attributable to the employer, or if it is found that he had been discharged by his employer for misconduct connected with his work.
“The record and evidence in the instant case clearly show that the claimant was not discharged by the employer, and that she did not quit her job. Testimony and evidence presented by both the claimant and the employer attest to these facts, and no evidence of probative value has been presented to show that there was a discharge or quit. In fact, testimony and evidence presented by both the claimant and the employer shows that neither considered that there had been a quit or a discharge. Testimony and evidence presented does show, however, that the claimant was not allowed to continue working for the employer because she failed to meet certain physical fitness requirements, and that she was placed on leave without pay for an indefinite period of time up to approximately 11 weeks until she did meet the requirements. Thus, the claimant was on a leave of absence, and no disqualification should apply. However, it is well settled that an individual may be unemployed without the necessity of a total and absolute severance of the employment relationship. The question of whether the claimant was unemployed is not within the jurisdiction of this Referee, because no determination regarding this has been made or appealed. Under the circumstances presented, it must be held that since no separation occurred within the meaning of the law, no disqualification is in order.”

Clearly, the appeals referee and the Commission have interpreted the statutory provision to exclude suspension as a disqualifying factor. See Section 443.06, Florida Statutes. It is well recognized that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that such construction is wrong. See 30 Fla.Jur., Statutes § 109. Further, it is not a judicial function to add words to statutory language; had our Legislature intended that suspensions be included in the disqualifying provisions it would have stated such.

The relevant portion of our statute, Section 443.06(l)(b), states clearly and unambiguously:

“An individual shall be disqualified for benefits:
“(1) For the week in which he has voluntarily left his employment without good cause attributable to his employer or in which he has been discharged by his employing unit for misconduct connected with his work, if so found by the division. . .
“(b) Disqualification for being discharged for misconduct connected with his work shall continue for the full period of unemployment next ensuing after having been discharged and until such individual has become reemployed and has earned wages not less than 10 times his weekly benefit amount and for not more than 52 weeks which immediately follow such week, as determined by the division in each case according to the circumstances in each case or the seriousness of the misconduct, pursuant to rules of the division enacted for determinations of disqualifications [for] benefits for misconduct.”

Respondent Commission has drawn and cogently discussed the analogy between the facts and prevailing statutory language

entailed in an Hawaii Supreme Court holding, Matson Terminals, Inc. v. Hasegawa, 512 P.2d 1 (Ha.1973), wherein the court stated at 2:

“The sole question before this court is the construction of HRS § 383 — 30(2), specifically the word ‘discharged’ as provided therein:
“§ 383-30 Disqualification for benefits. An individual shall be disqualified for benefits:
“(2) Discharge for misconduct. For the week in which he has been discharged for misconduct connected with his work and for not less than two or more than seven consecutive weeks of unemployment which immediately follow such week, as determined in each case in accordance with the seriousness of the misconduct.”
“The court cannot ‘question the probable legislative intent and construe the statute,’ which is clear on its face,-and insert a meaning that the court, itself, believes is logical .
“A well established statutory rule of construction is: Where the language of a statute is plain and unambiguous there is no occasion for construction and the statute must be given effect according to its plain and obvious meaning.”

Returning to the case before us, we are of the opinion that the subject statute is clear and unambiguous and the Commission properly ruled. Accordingly, petitioner’s first point has been considered and found not to demonstrate error on the part of the Commission.

However, petitioner’s second point, regarding the statutory conditions for eligibility, has merit. The record is essentially silent on the question of whether Ware had complied with Section 443.05(l)(c)(l), that she be “available for work.” Thus, on this matter we remand in order to conduct further proceedings to determine if, in fact, the claimant had met the condition for eligibility.

The order finding the respondent Ware qualified to receive benefits is affirmed; but we are compelled to reverse and remand due to the want of evidence on the required showing of the claimant’s availability for work.

Affirmed in part and reversed and remanded in part.

      . For a discussion of National’s height-weight program and rationale, see In Re National Airlines, Inc. (Leonard v. National Airlines), 434 F.Supp. 268 (S.D.Fla.1977).

      . The statutes of Massachusetts, Oregon and Pennsylvania are examples of jurisdictions where the respective legislatures have explicitly included suspension for misconduct as a disqualifying factor in their unemployment compensation statutes. See appropriate commonwealth and state statutes, §§ 151A:25(f), 657.176(b) and 802(e), respectively.


author: PEARSON, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. COLONIAL PENN INSURANCE COMPANY, Theodore Lawrence, Appellees.
    No. 79-759.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Horton, Perse & Ginsberg and Edward A. Perse, Stone, Sostchin & Gonzalez, Miami, for appellees.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PEARSON, Judge.

This appeal, between two insurance companies, concerns underinsured motorist coverage growing out of an automobile personal injury action. Appellee Theodore Lawrence was an employee of Robbins Uniform Center and was in the course and scope of his employment at the time of his injury in an automobile accident with an insured tortfeasor. He was operating an automobile owned by his employer, which was insured under a $100,000.00 policy issued by appellant State Farm, with Robbins Uniform Center as an additional insured. Ap-pellee Colonial Penn Insurance Company issued an automobile policy to Lawrence which afforded him an uninsured motorist .limit of $250,000.00. The tortfeasor was insured under a policy with bodily injury liability limits of $15,000.00.

The material facts of the present case are uncontroverted and were set forth during the opening statements at trial.

As related to the present appeal, Colonial Penn asserts that underinsured motorist benefits are due from State Farm and that an “other insurance” clause in the Colonial Penn policy requires that benefits from State Farm be primary and benefits, if any, from Colonial Penn be excess. State Farm asserts that Lawrence is not entitled to underinsured motorist benefits from State Farm and, in the alternative, that if any benefits are due, then such benefits would be on a pro rata basis with Colonial Penn rather than on a primary excess basis, as asserted by Colonial Penn. The trial court found (1) that Lawrence was entitled to underinsured motorist coverage from State Farm on the policy applicable to the vehicle he was operating at the time he was injured, with limits of $100,000.00; (2) that Lawrence was entitled to underinsured motorist coverage under the Colonial Penn policy with limits of $250,000.00 per person; and (3) that the uninsured motorist coverage afforded Lawrence by State Farm was primary and the coverage afforded by Colonial Penn was excess.

We are presented with two points on this appeal. The first urges that an employee is not entitled to underinsured motorist benefits from the insurance carrier of his employer. The second urges that when two insurance companies each have “other insurance” clauses, neither is primary and the companies are liable on a pro rata basis.

Under the first point presented, the appellant recognizes the decision in the case of United States Fidelity & Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979), in which this court held that the employee of the lessee of the vehicle who was involved in an accident while in the course of his employment and while operating a vehicle owned by the lessor was entitled to stack underinsured motorist benefits provided by both his own personal automobile liability policy and the policy issued to the lessor-owner of the vehicle. However, it is argued that we should reconsider this opinion in light of the decision of the Florida First District Court of Appeal in Government Employees Insurance Company v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977), as explained and modified in Main Insurance Company v. Wiggins, 349 So.2d 638 (Fla. 1st DCA 1977). We have carefully considered these cases, but respectfully adhere to our decision in United States Fidelity & Guaranty Company v. Curry, supra. We hold that no error has been made to appear under the first point.

In argument upon the second point, the appellant stated that the Supreme Court of Florida has effectively invalidated “other insurance” clauses in the uninsured motorist context in the case of Sellers v. United States Fidelity & Guaranty Company, 185 So.2d 689 (Fla.1966). In Sellers, the Supreme Court held that an insured may not be deprived of the protection of multiple policies containing uninsured motorist provisions by the insertion of “other insurance” provisions. In the present instance, the question is not whether Lawrence is deprived of coverage but the priorities which shall be determined as between two insurance companies, each liable and each with a policy containing an “other insurance” clause. Under this situation, the proper rule is that the two insurance companies are liable pro rata. See State Fire & Casualty Company v. National Indemnity Company, 225 So.2d 570 (Fla. 3d DCA 1969).

Accordingly, the judgment appealed is affirmed in part and reversed in part to the extent of the provision in paragraph 7 thereof that “ . . . STATE FARM INSURANCE COMPANY shall be'primary and that afforded by COLONIAL PENN INSURANCE COMPANY shall be excess.” The cause is remanded with directions to enter an amended final judgment in conformity with the views herein expressed.

Affirmed in part, reversed in part and remanded.

      . See also Cox v. State Farm Mutual Insurance Company, 378 So.2d 330 (Fla. 2d DCA 1980).


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Julio C. ANTA and Maria Anta, his wife, United States Fidelity & Guaranty Company, Gladys Lamelas and Mel Lamelas, Appellees.
    No. 79-892.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Leo B. West, Miami, for appellees.
    Before HUBBART and NESBITT, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Government Employees Insurance Company (herein referred to as GEICO) appeals from the order by which its complaint for declaratory judgment was dismissed. We hold the dismissal was error, and reverse.

The complaint disclosed the following. The defendant Maria Anta and the defendant Mel Lamelas, driving separate vehicles, were involved in an accident in which Maria Anta received personal injuries. The defendant Julio C. Anta held an automobile liability insurance policy issued by GEICO, covering him and his family, with uninsured motorist coverage ($50,000.00). The defendants Mel Lamelas and his wife Gladys held a policy of automobile liability insurance with total available coverage in the amount of $10,000.00, issued by the defendant United States Fidelity & Guaranty Company (USF&G). For a consideration of $10,000.00 the Antas gave a release to the Lamelas and all other persons, firms and corporations for all demands or claims relating to said accident.

The Antas made underinsured motorist liability claim of $40,000.00 against their insurer, GEICO. GEICO then rejected the Antas’ claim against it on the ground that the said release given by the Antas had released it therefrom. Thereafter an agreement to void the release was entered into by the Antas (through their attorney Leo West as their representative) and the Lamelas and the latter’s insurer USF&G through its representative Cliff Leonard. Therein it was stipulated by those parties that the release had been entered into by mistake as to its effect upon the Antas’ underinsured motorist insurance claim against GEICO. It was recited therein that the $10,000.00 previously paid by the Lame-las to the Antas had been returned to the former, and that the release was “declared null and void, because of mutual mistake.” In its complaint GEICO claimed doubt as to the validity or legal effect of those instruments, on the basis of which its rights or obligations could be affected, and sought declaratory judgment accordingly, upon joining all the interested parties as defendants.

The defendants Anta moved to dismiss, on the ground that the complaint filed by GEICO did not state a complaint for declaratory relief. The order for dismissal did not state the ground upon which it was entered. Presumably the dismissal was grounded on a conclusion by the court that a cause of action for declaratory judgment was not presented, as was contended in the motion to dismiss. If so, the dismissal was error, for the reasons stated below in this opinion. However, in response to plaintiff’s appeal, it was argued by the appellees that the dismissal was grounded upon and represented a ruling of the court on the merits against the plaintiff. If that is so, then the dismissal on motion, prior to the filing of answer and trial, was premature. See Mills v. Ball, 344 So.2d 635, 638 (Fla. 1st DCA 1977), where the court said:

“Unlike other actions, a motion to dismiss a petition for declaratory judgment does not go to the merits but goes only to the question of whether or not the plaintiff is entitled to a declaration of rights — not to whether or not he is entitled to a declaration in his favor. See Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.1952); and Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass’n Inc., 210 So.2d 750 (Fla. 4 DCA 1968). In spite of the fact that appellant, in his motion to dismiss, raised an issue on the merits, a ruling by the trial court on the merits at that time was premature. A ruling on the merits should not be made until after final hearing where the parties have full opportunity to present evidence in support of their respective positions.”

We hold the court was in error in concluding that the complaint failed to state a cause for relief by declaratory judgment. The matter presented by GEICO’s complaint was within the scope and purpose of the declaratory judgment act, Chapter 86, Florida Statutes (1977).

Section 86.021 of said Chapter 86 provides, among other things, that any person whose rights, status or other equitable or legal relations are affected by a contract or other instrument in writing may have determined any question of construction or validity arising thereunder, “and obtain a declaration of rights, status or other equitable or legal relations thereunder.”

Clearly a determination of the validity or effectiveness vel non of the release and of the subsequent agreement to void the release would affect the “rights or legal relations” of GEICO bearing on its liability or non-liability to its insureds on their under-insured motorist insurance claim against GEICO.

In Hildebrandt v. Department of Nt. Res., Div. of I. R., 313 So.2d 73 (Fla. 3d DCA 1975), this court, upon citing and following Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.1952), said:

“Dismissal of a declaratory judgment action, on a defendant’s motion to dismiss, is proper where it is made to appear that the complaint or petition does not present a matter for which determination by declaratory judgment is provided for in Chapter 86, or where for some other reason the resort to declaratory judgment is legally inappropriate. However, where, as in this case, the declaratory judgment act was properly invoked for a determination of the rights, status or equitable or legal relations of a party or parties under a statute or rule promulgated thereunder, then by the nature and purpose of the declaratory judgment act, and in fact by its express wording the plaintiff or petitioner was entitled to have the same determined by a declaratory judgment.”

For the reasons stated, the order of dismissal is reversed and the cause is remanded for further proceedings culminating in a declaratory judgment.


text:
    Frank FREEMAN, Appellant, v. Urban L. DREW, Appellee.
    No. 79-1294.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Marc N. Linowitz, Miami, for appellant.
    Martin Levinson, Miami, for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971); Firestone Tire and Rubber Company v. Thompson Aircraft Tire Corporation, 353 So.2d 137 (Fla. 3d DCA 1977); Section 673.3-403(2)(a), Florida Statutes (1975).


text:
    FRATES, FLOYD, PEARSON, STEWART, RICHMAN & GREER, P.A., Appellant, v. Ronald A. LIPTON, Appellee.
    No. 79-1300.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Bruce A. Christensen, Miami, for appellant.
    Koeppel, Stark & Newmark and Robert A. Gellman, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Speer v. Friedland, 276 So.2d 84 (Fla.2d DCA 1973).


text:
    NICO MEMBIELA SUPPER CLUB, INC., Appellant, v. LANIER, CHAPLEAU & JONES, INC., Appellee.
    No. 79-1334.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Robert W. Stern, Miami, for appellant.
    Rohan & Rohan, Miami, for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Wright v. Cade, 349 So.2d 833 (Fla. 1st DCA 1977); Harnish v. Carbonell, 328 So.2d 489 (Fla. 3d DCA 1976).


text:
    INTERNATIONAL CLOTHING OF FLORIDA, INC., a Florida Corporation, Appellant, v. MIAMI ELEGANTE, a Florida Corporation, Appellee.
    No. 79-1792.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Ralph F. Miles, Hialeah, for appellant.
    Levine, Reckson, Reed & Geiger, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Weimar v. Yacht Club Point Estates, Inc., 223 So.2d 100 (Fla. 4th DCA 1969); David’s Sandwich Shop, Inc. v. Wometco Vending of South Florida, Inc., 220 So.2d 639 (Fla. 3d DCA 1969); and Fla.R.Civ.P. 1.110(b).


text:
    Jerome HENKIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2689.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1980.
    David R. Damore of Aiken & Damore, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant contends that his sentence was in excess of that agreed to by the court in accepting his plea of guilty and that the trial court erred in refusing to grant a motion to withdraw the plea. We find no error in the trial court’s refusal to set aside appellant’s plea, but we find that the trial court erred in placing the appellant on probation for a period of two years in excess of that agreed to when appellant’s guilty plea was accepted. Accordingly, this cause is hereby remanded to the trial court with directions that the three year probationary term imposed with reference to Count IV be reduced to one year.

DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.


author: BERANEK, Judge.

text:
    Dorothy PHILLIPS, Appellant, v. JOHN JOCHEM CHEVROLET, Appellee.
    No. 79-1220.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1980.

      Willie E. Gary, Stuart, for appellant.
    No appearance by appellee.
   BERANEK, Judge.

Plaintiff sued defendant asserting she bought a used car from defendant and that defendant breached an express warranty regarding repair of defects in the car. At the conclusion of the plaintiffs evidence, defendant moved for a directed verdict because plaintiff’s evidence failed to show damages of an amount in excess of the jurisdictional limit of the circuit court. The trial judge indicated he would grant the directed verdict but in later discussions with counsel indicated that he would simply dismiss the case or a portion thereof without prejudice. No further order of any nature was ever entered. No final judgment was requested nor entered. Under these circumstances, we have no jurisdiction to entertain this appeal and same is hereby dismissed sua sponte.

DOWNEY, C. J., and ANSTEAD, J., concur.


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

text:
    Robert James HUNSUCKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. OO-424.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

An appeal from a judgment of guilt for possession of marijuana exceeding five grams. The trial court erred in denying appellant’s motion to suppress the incriminating evidence found in appellant’s home when officers executed a search warrant for drugs. The first officer to enter explained that he did not knock and announce his authority and purpose because of the possibility that the evidence he sought would be destroyed by the occupants. The officer estimated that evidence had been destroyed in half the instances in which he complied with Section 933.09, Florida Statutes (1979), before entering. The officer also thought that persons standing in the yard might alert those inside, although they did not. The entry was unlawful and the motion to suppress should have been granted. Kistner v. State, 379 So.2d 128 (Fla. 1st DCA 1979); Benefield v. State, 160 So.2d 706 (Fla.1964); Earman v. State, 265 So.2d 695 (Fla.1972); Berryman v. State, 368 So.2d 893 (Fla. 4th DCA 1979). Even if there were articulable reasons to believe that the occupants were disposed to destroy contraband in such circumstances, the officer had no knowledge of the amount of contraband he was to search for and seize. His fear that the contraband would be. destroyed in the time required to knock and announce was uninformed and therefore unjustified.

REVERSED.

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


text:
    Woodrow DIGGS, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. PP-255.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Woodrow Diggs, pro se.
    Michael H. Davidson, Tallahassee, for ap-pellee.
   PER CURIAM.

The petition for mandamus or prohibition is DENIED for petitioner’s failure to allege exhaustion of his administrative remedies. Houston v. Florida Parole and Probation Commission, 377 So.2d 34 (Fla. 1st DCA 1979).

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


text:
    Winston O. SALMON, Appellant, v. ELECTRO-PHOS CORPORATION and Fidelity & Casualty Company, Appellees.
    No. QQ-81.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.

      Craig M. Spanjers of Stanley, Wines, Williams & Smith, P.A., Auburndale, for appellant.
    Dennis R. Ferguson of Holland & Knight, Lakeland, for appellees.
   PER CURIAM.

Appellant raises five points on appeal from an order of the judge of industrial claims denying and dismissing the claim with prejudice. After a careful examination of the record and briefs in this case, we find that the appellant has failed to demonstrate reversible error as to the first three points on appeal and, accordingly, we affirm. As to the remaining two points on appeal, we reverse.

The appellant alleges error in denial of the claimant’s entitlement to additional temporary and permanent disability benefits along with penalties and interest due when the weekly compensation rate was increased. The compensation order found that all temporary and permanent disability benefits had been timely paid.' However, it also noted that claimant’s weekly compensation rate had been increased.

The record supports denial of additional disability benefits as a result of an increase in the compensation rate. The increase in the compensation rate was included in a previous order entered on August 2, 1978, and was paid by the appellees prior to the hearing resulting in the March 16, 1979 order now on appeal.

We conclude there was error in failure to adjudicate appellant’s claim for penalties and interest allegedly due as a result of the appellees’ late payment of benefits resulting from the increase in the claimant’s compensation rate, and in denial of appellant’s claim for costs and a reasonable attorney’s fee, in light of the additional benefits obtained from the increased weekly compensation rate.

We therefore direct modification of the decretal portion of the March 16, 1979 order to give effect to the increase in appellant’s weekly compensation rate. We also reverse and remand this cause for further proceedings to determine whether appellant is entitled to penalties and costs for the appellees’ alleged late payment of the increase in the compensation rate, and to determine a reasonable attorney’s fee due as a result of the additional benefits obtained through the increase in the weekly compensation rate.

SHAW and WENTWORTH, JJ., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

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

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


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Loretta Ann JACKSON, Appellee.
    No. QQ-155.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.

      Bernard J. Zimmerman and Robert C. Barrett, of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    John Marshall Kest, of Billings, Frederick, Wooten & Honeywell, for appellee.
   PER CURIAM.

The only issue before the Judge of Industrial Claims in this case was whether the employer/carrier was entitled to take the social security off-set in Section 440.15(10), Florida Statutes (1977), in paying benefits to the claimant for permanent partial disability. The Judge held that Section 440.-15(10)(c) is ambiguous and that the off-set did not apply to benefits other than those for total disability, whether temporary or permanent. We agree with the appellant that the set-off is applicable to all weekly benefits, whether permanent, temporary, total or partial. The federal statute is clear. Where there is no set-off in the worker’s compensation law, an “individual . entitled . . . under a workman’s compensation law ... to periodic benefits for a total or partial disability . ” will be subject to the social security set-off. 42 U.S.C. § 424a(a)(2). That statute has been interpreted to require the social security set-off where, under the Michigan statute, the claimant was not compensated for actual disability, but in an “arbitrarily determined [amount] paid for the loss of a specific portion of the body.” Grant v. Weinberger, 482 F.2d 1290, 1292 (6th Cir. 1973). Accord, Ladner v. Secretary of Health, Education and Welfare, 304 F.Supp. 474 (S.D.Miss.1969). In Graves v. Richardson, 358 F.Supp. 1310, 1312 (W.D.Va.1973), the plaintiff’s lump sum and settlement of a contested worker’s compensation claim was set off, the court agreeing with the administrative finding that the payment was a “workman’s compensation benefit payable in a lump sum as a substitute for periodic payments . . . .”

Here, the Judge based his interpretation of the Florida statute on one sentence in Section 440.15(10)(c): “Neither the division nor the employer or carrier shall make any payment of benefits for total disability . for any period during which the employee willfully fails or refuses to authorize the release of information in the manner . . . prescribed by said rules.” He reasoned that, since the penalty applied only to those compensated for total disability, the set-off is only applicable to benefits for total disability. That belies the statement in Section 440.15(10)(a), that the set-off applies to “[wjeekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. § 423 . . . .” In Capitol Lincoln Mercury, Inc. v. Knowles, IRC Order 2-3756 (1979) and Hernandez v. Seabird Industries, Inc., IRC Order 2-3117 (1977), cert. den. 355 So.2d 514 (Fla.1978), the set-off was applied to partial disability benefits. We believe a fair construction of the statute allows the set-off in this case. In any event, the Judge’s interpretation would leave the federal agency free to set off social security benefits where Florida’s law did not.

The order of the Judge of Industrial Claims is reversed as to the substantive issue and insofar as it awards attorney’s fees to the appellee.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    PLANNING RESEARCH COMPANY and Hartford Insurance Group, Appellants, v. Jesse E. SHY, Appellee.
    No. QQ-299.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Richard H. Weisberg, of Cooper & Riss-man, P.A., Orlando, for appellants.
    Frank Henry Molica, P.A., Merritt Island, for appellee.
   PER CURIAM.

AFFIRMED.

This is a case of first impression which squarely poses the issue of whether, under appropriate circumstances, treatment at a pain clinic constitutes remedial treatment pursuant to § 440.13(1), Florida Statutes. We hold that it does. Cf. Goldsmith v. Buena Vista Construction Co., 304 So.2d 110 (Fla.1974).

ERVIN, SHIVERS and SHAW; JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    John E. PANZAVECCHIA, Petitioner, v. Maurice CROCKETT, Chairperson, Florida Parole and Probation Commission; The Florida Parole and Probation Commission; The State of Florida et al., Respondents.
    No. TT-264.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.

      John E. Panzavecchia, pro se.
    Jim Smith, Atty. Gen., Michael Davidson, Gainesville, for respondents.
   LARRY G. SMITH, Judge.

Petitioner seeks to invoke the original jurisdiction of this court by petition for writ of mandamus. This court has examined the petition, pursuant to Rule 9.100(f), Florida Rules of Appellate Procedure, to determine whether it demonstrates a preliminary basis for relief. Petitioner complains that respondents have refused to review petitioner’s notice of appeal filed under Section 947.173, Florida Statutes (1978), and that respondents by letter have stated that no action would be taken with respect to his presumptive parole release date of June 13, 1988, until petitioner complies with the requirements of Section 944.-485(l)(a), Florida Statutes (1978). Each prisoner in the state correctional system, under subparagraph (l)(a) of the statute,

“(a) Shall disclose all revenue or assets as a condition of parole eligibility.”

Petitioner alleges that he has and does object to the disclosure of his assets, grounding his objection upon his claim of prejudice under the First and Fifth Amendment guarantees of the United States Constitution. We find no merit in these assertions. Parole in Florida is granted by the sovereign as a matter of grace rather than of right, and the State may offer such grace under and subject to such conditions as it may consider most conducive to accomplish the desired purpose. Dear v. Mayo, 153 Fla. 164, 14 So.2d 267 (Fla.1943); Harris v. Wainwright, 376 So.2d 855 (Fla.1979). On a closely analogous issue, it has been held that a probationer’s Fifth Amendment privilege against self-incrimination is not infringed upon by requiring him, as a condition of his probation, to provide specific information needed for his supervision, and to explain his non-criminal conduct, State v. Heath, 343 So.2d 13 (Fla.1977). And in State v. Mangam, 343 So.2d 599 (Fla.1977), the Supreme Court of Florida ruled that the trial judge did not abridge a petitioner’s Fifth Amendment rights, in a revocation proceeding, by penalizing him for refusing to testify in response to requests by the court to explain his leaving a residential probation program which he had been ordered to attend as a condition -of probation.

The statute itself discloses legitimate needs for information concerning an inmate’s financial resources. Such disclosures would aid in determination of the inmate’s ability to pay all or a portion of his daily subsistence costs while in the correctional system, and would be of additional value in enforcing the requirement that the inmate pay the liability or potential liability of the inmate to the victim of his crime (Section 944.485(l)(b), Florida Statutes (1978)). See also Section 947.181, Florida Statutes (1977) (victim restitution); Section 945.30, Florida Statutes (1977) (payment for costs of supervision and rehabilitation); and Section 960.-17, Florida Statutes (1977) (award of victim compensation constitutes debt owed by inmate to the State).

We hold that the petition fails to demonstrate a preliminary basis for relief, and the same is hereby denied.

McCORD and SHIVERS, JJ., concur.


text:
    Hinton Roy JOHNSON, Jr. and Doris L. Johnson, d/b/a Farmer’s Exchange, Appellants, v. LASHER MILLING COMPANY, INC., Appellee.
    No. LL-323.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.

      Guyte McCord, III, of Spector & Tunni-cliff, Tallahassee, for appellants.
    W. Roderick Bowdoin, of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   LARRY G. SMITH, Judge.

The Johnsons appeal a final judgment awarding compensatory and punitive damages to appellee, Lasher Milling Company, Inc. Appellants contend that the trial judge erred: (1) in failing to instruct the jury that punitive damages could be awarded only under Count I of appellee’s counterclaim; and (2) in allowing the jury to use general verdict forms, making it impossible to determine whether the jury’s verdict was based on Count I, or Count II. We affirm because the jury instructions were not objected to at trial, and there was no “fundamental error” requiring reversal; and because the evidence supports a verdict for appellee under either Count I or Count II, and there was ample evidence of fraud justifying the award of punitive damages.

Count I of appellee’s amended counterclaim alleged that appellants knowingly and intentionally misrepresented the weight of numerous loads of corn sold to appellee by appellants, resulting in appellee paying for corn not received. Appellee further alleged that such misrepresentations were made with intention to induce appellee to rely and act upon said misrepresentations; that appellee did rely and act upon them; that appellee has suffered great losses as a result of paying for corn not received; and that the actions of appellants were intentional, willful, wanton, and with disregard for the rights of appellee. Both compensatory and punitive damages were sought as to Count I. Count II incorporated all allegations of Count I by reference, with exception of the allegations alleging intentional misrepresentation. Count II stated a cause of action for “restitution” to appellee of monies received by appellants to which they were not entitled by virtue of the overcharges made for shipments of corn not actually delivered.

Appellants contend that the trial court committed error in giving the punitive damage instruction without informing the jury that punitive damages were awardable only in event they found a cause of action under Count I, the fraud count, but not as to Count II, the restitution count. See Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla.3rd DCA 1969).

In our view the trial judge did not affirmatively instruct the jury that punitive damages were awardable under both counts. On the other hand, it is true that the judge failed to specifically point out to the jury that consideration of punitive damages should be confined to the cause of action under Count I. Notwithstanding this deficiency, we are not persuaded that reversible error is presented. The trial judge fully and adequately instructed the jury upon the elements necessary to be proved under Count I in order for appellee to recover for actionable fraud based upon false representations. The instructions used were, with minor modifications, those submitted by appellants. The court also instructed the jury on the requirements necessary for recovery by appellee under the second count, for restitution of monies paid for corn not delivered. The judge then instructed on punitive damages. There was no objection to these instructions at the trial, and there is no contention here that they erroneously stated the applicable law. Therefore, even though as indicated in Associated Heavy Equipment Schools, Inc. v. Masieilo, supra, the jury should have been instructed to limit their consideration of punitive damages to the fraud count, no reversible error can be shown in the absence of objection, Rule 1.470(b), Florida Rules of Civil Procedure, or unless, as appellants contend, the error was of such fundamental proportions as to make objection unnecessary. Morrison v. Hansen, 213 So.2d 306 (Fla.1st DCA 1968); Painter v. Town of Groveland, 79 So.2d 765 (Fla.1955); Jefferson v. City of West Palm Beach, 233 So.2d 206 (Fla.4th DCA 1970); Yacker v. Teitch, 330 So.2d 828 (Fla.3rd DCA 1976); Winthrop v. Carinhas, 142 Fla. 588, 195 So. 399 (1940).

We find no merit in appellants’ contention that the instructions constituted a “misapplication of the law”. We find it necessary, however, to consider whether the failure of the trial court to clearly restrict the punitive damage instruction to Count I “could reasonably have misled the jury to [appellants’] detriment”. Jefferson v. City of West Palm Beach, supra.

Appellants argue that because the court submitted the case to the jury on general verdict forms, and denied appellants’ request for use of special verdict forms, it is impossible to determine whether the jury awarded punitive damages as an incident to recovery under Count I, which was permissible, or upon Count II, which was not. Appellants rely upon Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977), for reversal. We find no error based upon the Colonial Stores case. In that case the plaintiff pleaded alternatively or cumulatively a cause of action for both false imprisonment and malicious prosecution. The jury returned a general verdict for the plaintiff. The District Court held (Colonial Stores, Inc. v. Scarbrough, 338 So.2d 1119 (Fla.1st DCA 1976), affirmed by the Florida Supreme Court, Colonial Stores, Inc. v. Scarbrough, supra), that the general verdict could be upheld because the court found the evidence sufficient to sustain recovery under the count for malicious prosecution, thus making it unnecessary to decide whether the verdict would be sustainable under the alternative or cumulative theory of false imprisonment. The Supreme Court affirmed the decision as being in accord with what is known as the “two issue” rule, which holds that reversal is improper where no error is found as to one of the issues, as in that event appellant is unable to establish that he has been prejudiced. In further elaborating upon its adoption of the “two issue” rule, and its applicability to the case, the Supreme Court stated:

“Had [the] petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts.”

As noted, appellants here requested the use of special verdict forms as to each count. Assuming the sufficiency of the objection to the general verdict form which arises by implication from the fact that appellants requested special verdict forms, we have applied the rule as stated by the Supreme Court in the above quoted language; that is, we have examined the evidence to determine whether there was sufficient evidence to sustain recovery under both counts of the amended counterclaim. We find from the record ample evidence to support a finding of intentional and fraudulent misrepresentation of the weight of sevéral loads of corn sold by appellants to appellee, and such evidence would support a verdict for appel-lee under Count I or Count II. We thus find that the evidence fully meets the test required by the Colonial Stores case. All evidence presented was applicable to both counts, with exception of the evidence establishing the additional element of intentional misrepresentation, which was required for recovery only as' to Count I. Proof of this one additional element, intentional misrepresentation, coincidentally proves the case as alleged under Count I and justifies the award of punitive damages. The award of punitive damages is thus consistent with a verdict for appellee under Count I, and inconsistent with appellants’ contention that the jury found for appellee only under Count II. Under the circumstances, we must conclude that appellants have not shown that they were prejudiced by the use of general verdict forms.

Appellants argue that punitive damages are never allowable in Florida in a cause of action for restitution, regardless of the evidence presented. We do not find that to be the rule of law in Florida. The rule is correctly stated in Charter Air Center, Inc. v. Miller, 348 So.2d 614, 616 (Fla.2nd DCA 1977), as follows:

“Punitive damages are not a proper item of damages for breach of contract unless the act complained of constitutes a tort which was willfully and wantonly committed or was attempted by fraud, malice, or gross negligence. E. g. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); Moore v. Southern Bell Telephone and Telegraph Co., 176 So.2d 558 (Fla.2d DCA 1965).”

In Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957), the court stated the general rule as follows:

“The general rule is that punitive damages are not recoverable for breach of contract, irrespective of the motive of defendant. But where the acts constituting a breach of contract also amount to a cause of action in tort there may be a recovery of exemplary damages upon proper allegations and proof. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort. 25 C.J.S. Damages, § 120, pp. 716-717.”

The willful tort of fraudulent misrepresentation was properly pled and proved in this case, providing adequate basis for award of punitive damages. See Gottsch v. Walker, 360 So.2d 1252 (Fla.1st DCA 1979); Greer et al. v. Williams, 375 So.2d 333 (Fla.3rd DCA 1979); Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla.3rd DCA 1979); UShop Rite, Inc. v. Richard’s Paint Mfg. Co., 369 So.2d 1033 (Fla.4th DCA 1979).

Since we find no error, the judgment appealed from is affirmed.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.


text:
    Clyde W. SMITH, Appellant, v. Myra MORGAN, Appellee.
    No. PP-85.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.
    Michael L. Bryant, of Birr, Bryant & Saier, P.A., Gainesville, for appellant.
    Kenneth Davis, Gainesville, for appellee.
   PER CURIAM.

Appellant contends the circuit court is without jurisdiction to punish through contempt the failure to pay child support ar-rearages for a minor child for whom the husband’s obligation for current support has been abated. We agree.

In a final decree entered on October 28, 1963, appellant was ordered to pay $25.00 per week for child support until the child reached the age of 21. On May 23, 1979, the circuit court entered an order abating the child support obligation effective April 24, 1979, because the 17 year old son was now residing with appellant.

On the same day, the circuit court entered an order finding appellant in arrears of his support payments as of December 31, 1978. Appellant was held in contempt of court and sentenced to five months and 29 days in jail. The sentence was suspended upon condition that appellant pay $55.00 every two weeks towards the arrearage.

The circuit court is empowered to utilize its contempt power to demand the payment of child support whenever the minor child continues to need support, whether it be for past or present support. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). The extraordinary remedy of contempt is applicable to divorce judgments for child support because of the public necessity for insuring the support of minor children. When the public necessity is no longer present, the purpose and justification for the extraordinary remedy of contempt expires.

By analogy, the circuit court has no jurisdiction to use its power of contempt to enforce payment of child support arrearag-es on accrued, unpaid installments after the child has reached majority. Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970). In Wilkes, after the children had reached majority, the wife initiated contempt proceedings against her former husband for child support arrearages which had accrued when the children were still minors. This court held the extraordinary remedy of contempt could not be utilized to collect past due installments of child support under such circumstances because the purpose and justification for the use of contempt expired when the children reached majority.

The rationale in Wilkes, supra, applies to the present case. Here, the father’s obligation for child support was abated by the circuit court when the child began residing with the father. The order of abatement eliminated the public necessity for the extraordinary remedy of contempt since the father is now supporting the child directly.

Consequently, we hold the trial court was without jurisdiction to punish appellant by contempt for failure to pay child support arrearages for the minor child for whom appellant’s obligation for current support has been abated. In child support eases, the remedy of contempt should only be used when necessary to insure the support of minor children. Contempt is not an appropriate remedy to aid in the collection of money judgments. The wife’s remedy for recovery of the child support arrearages is now limited to a judgment enforceable by ordinary civil proceedings. Moreland v. Moreland, 358 So.2d 907 (Fla. 1st DCA 1978). Accordingly, the order is reversed.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    PACIFIC INTERMOUNTAIN EXPRESS and Truck Insurance Exchange, Appellants, v. Earl WISENER, Appellee.
    No. QQ-185.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.

      Ira J. Druckman, Miami, for appellants.
    Anthony Reinert, of Underwood, Gillis, Karcher, Reinert & Valle, P. A., Miami, for appellee.
   PER CURIAM.

This appeal from an order of the judge of industrial claims presents four issues. After careful consideration of the briefs and record in this case, we affirm the order to the extent that it requires the appellant to pay the outstanding medical bills, attorney’s fees, and costs, and further affirm the award to the claimant of a five percent permanent partial disability of the body as a whole. However, we reverse the order to the extent that it found the claimant to be temporarily and totally disabled for a specific period of time but failed to order compensation for such period.

The record indicates temporary disability benefits were claimed, included in the application for hearing and the pre-trial stipulation, and presented for adjudication below. The order indicates the judge found the claimant was temporarily, totally disabled but failed to order compensation in the decretal portion of the order. The judge had a duty to adjudicate the issue of appel-lee’s entitlement to temporary disability benefits since it was properly presented and ripe for disposition. Deauville Hotel v. Weaver, 8 FCR 87, cert. denied, 283 So.2d 565 (Fla.1973). Moreover, since the order made a finding of fact that the appellee was entitled to temporary, total disability benefits, the judge should have awarded appropriate compensation.

Accordingly, the order is affirmed in part and reversed in part and remanded for a reconsideration on the record below of the issue of claimant’s entitlement to compensation for temporary disability.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Gershon MILLER and Chubb Group of Insurance Companies, Appellants, v. Mynn GILBERT, Appellee.
    No. QQ-308.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.

      H. George Kagan, of Miller & Hodges, Miami, for appellants.
    Peter S. Schwedock, of Pelzner, Schwe-dock & Finkelstein, Miami, for appellee.
   PER CURIAM.

Appellants raise three issues from an order of the judge of industrial claims. After careful consideration of the record and briefs in this case, we find there is competent, substantial evidence to support the judge’s finding that the appellee’s inflammatory arthritic condition was causally related to her industrial accident. To this extent, the order is affirmed.

However, we conclude the judge did err in the calculation and award of permanent partial disability benefits and in the award of unspecified costs.

As a result of the trauma to appel-lee’s leg caused by her industrial accident, she has suffered pain and loss of efficiency in her other leg and both arms. In the compensation order, the judge awarded the appellee a twenty percent impairment of each leg and a thirty-three percent impairment of each arm. The judge erred by not transforming this impairment of functions into a disability calculated as to the body as a whole under § 440.15(3)(u), Florida Statutes (1976).

When a claimant sustains a scheduled injury and suffers a loss of efficiéncy or pain in some other part of the body, not included in the specific schedule, then the disability or incapacity produced by the condition in such other part of the body cannot be said to be within the ambit of the scheduled injury under § 440, Florida Statutes (1976). The amount allowed for the scheduled injury then ceases to be exclusive, and it becomes the responsibility of the judge of industrial claims to fix the extent of disability produced by the unscheduled injury. Kashin v. Food Fair, Inc., 97 So.2d 609 (Fla.1957).

As to the award of $198 to appellee’s attorney for unspecified costs and $98 for deposition costs, we find the record contains no evidence to support such an award. The judge was therefore in error in awarding these costs designated in the order. B & D Electrodyne v. Mears, IRC Order 2-3436 (1978).

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

ERVIN, SHIVERS and SHAW, JJ., concur.


author:
DENNIS, Justice.
     BLANCHE, Justice

text:
    Etienne J. CAIRE, II v. John A. STASSI d/b/a John A. Stassi Real Estate.
    No. 64949.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.
    Stephen J. Caire, New Orleans, for plaintiff-applicant.
    Robert G. Stassi, Brian, Simon, Peragine, Smith & Redfearn, New Orleans, for defendant-respondent.
   DENNIS, Justice.

This case presents the question of whether Article 5, § 10 of the Louisiana Constitution of 1974 affords a civil litigant an appeal to the court of appeal, regardless of a statute vesting appellate jurisdiction of his case in the district court.

Plaintiff, Etienne Caire, II, sued defendant, John A. Stassi, d/b/a John A. Stassi Real Estate, in the First City Court of New Orleans for the return of his $600 deposit after Caire failed to perform an agreement to purchase a hardware store. When the city court rejected his demand, Caire appealed unsuccessfully to the district court and then to the court of appeal, which dismissed his appeal for lack of jurisdiction. Caire v. Stassi, 371 So.2d 1302 (La.App. 4th Cir. 1979). At the time of Caire’s appeal former Article 4833(B) of the Code of Civil Procedure provided that an appeal from a .city court when the amount in contest is $1,000 or less shall be to the district court. We granted certiorari to determine whether appellate jurisdiction of this case remains in the court of appeal by constitutional mandate despite the existence of a statute vesting appellate jurisdiction in the district court.

The judgment of the court of appeal is affirmed. Article 5, § 16 of the 1974 Louisiana Constitution, which authorizes the legislature to vest appellate jurisdiction in the district courts, also authorizes the lawmakers to divest the courts of appeal of any civil appellate jurisdiction that is vested in the district courts. Since former Article 4833(B) of the Code of Civil Procedure, which was in effect at the time of the present case, provided for a single appeal to the district court in city court contests involving $1,000 or less, the court of appeal correctly dismissed Caire’s attempt to prosecute a second appeal in the intermediate court.

The Louisiana Constitution of 1974 does not give the courts of appeal appellate jurisdiction in all civil matters, for Section 10 of the Judiciary Article states that a court of appeal has jurisdiction in all civil matters decided within its circuit “[ejxcept in cases appealable to the supreme court and except as otherwise provided by this constitution.” Art. 5, § 10, La.Const.1974. Section 16 of the Judiciary Article authorizes the legislature to invest the district courts with appellate jurisdiction: “A district court shall have appellate jurisdiction as provided by law.” Art. 5, § 16(B), La.Const.1974. The instant case raises the question of whether the legislature, in vesting appellate jurisdiction in the district court, may thereby divest the court of appeal of such jurisdiction.

An analysis of the constitutional interplay between Sections 10 and 16 of the Judiciary Article reveals that when the legislature empowers the district courts to hear civil appeals, it may at the same time remove appellate jurisdiction of these cases from the courts of appeal. Had it been intended that the legislature could place preliminary, but not final, appellate jurisdiction in the district courts, there would have been no necessity to qualify Section 10’s basic grant of civil appellate jurisdiction to the courts of appeal by adding “except as otherwise provided by this constitution.” Section 16’s grant of legislative authority to vest appellate jurisdiction in the district courts is the primary provision in the constitution to which the exception clause of Section 10 applies. As Professor Hargrave, coordinator of legal research for the Constitutional Convention of 1973, observes:

“ * * * Since it is clear that district courts can be granted some appellate jurisdiction by law, and since it would have been unnecessary to include the exception clause in Section 10 if that appellate jurisdiction were to be concurrent, it would appear implicit that the legislature can divest the courts of appeal of the appellate jurisdiction that it vests in district courts. This would promote efficiency, and would be consistent with the background upon which these sections were drafted. * * *” [footnote omitted] Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L. Rev. 765, 805 (1977). Accord: Crain v. Dearmond’s, 369 So.2d 1171 (La.App. 1st Cir. 1979); Hibernia Bank in New Orleans v. DeGraauw, 351 So.2d 1223 (La. App. 4th Cir. 1977) (comments as to appellate jurisdiction only); Cox v. Kiefer, 311 So.2d 596 (La.App. 1st Cir. 1975).

The legislature divested the court of appeal of appellate jurisdiction of the present case and vested it in the district court. Former Article 4833(B) divided appeals from the city court judgments into two classes: those in which the contested/ amount was $1,000 or less; and those in which the amount disputed exceeded $1,000. The smaller appeals were sent to the district court and the larger to the court of appeal. The article expressed the dichotomy as follows:

“B. The appeal from a city court when the amount in contest is one thousand dollars or less exclusive of interest, shall be returnable to the district court of the district in which the city is located.
“The appeal from a city court when the amount in contest exceeds one thousand dollars, exclusive of interest, shall be returnable to the court of appeal of the circuit in which the city is located.
“ * * La.C.C.P. art. 4833(B).

The legislature clearly intended to reduce the court of appeal’s appellate caseload by providing a single appeal of right in the district court from the smaller city court contests. Relator suggests that Article 4833(B) may be construed nevertheless to allow a second appeal from the district court in suits involving $1,000 or less. His strained interpretation reads into the statute words neither stated nor intended, however, and would thwart the constitutional purpose authorizing the legislature to vest appellate jurisdiction in the district courts, i. e., promotion of judicial efficiency by reducing intermediate appellate caseload and providing a speedy, inexpensive remedy, for small claims at the local level.

The relator argues that the effect of the court of appeal decision, and ours in affirming the court of appeal, is to destroy a litigant’s right to a trial de novo in the district court as provided by Article 4921 of the Code of Civil Procedure. By its own terms, however, Article 4921 applies only to appeals from New Orleans city courts when the principal amount in contest is $300 or less. Article 4921 does not apply in this case because the total amount in controversy is $600.

AFFIRMED.

MARCUS, J., dissents.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The majority states that Art. 5, § 16 of the 1974 Constitution authorizes the legislature to divest the courts of appeal of any civil appellate jurisdiction that is vested, in the district courts. I disagree. Article 5, § 16 provides as follows:

“(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.”

Thus, Art. 5, § 16 simply empowers the legislature to vest appellate jurisdiction in the district court. Nowhere does the provision empower the legislature to divest the courts of appeal of their appellate jurisdiction by simply passing a statute. Article 5, § 10 establishes the appellate jurisdiction of the courts of appeal as follows:

“Section 10. (A) Jurisdiction. Except in cases appealable to the supreme court and except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of all (1) civil matters decided within its circuit and (2) matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles.”

In this writer’s opinion, Art. 5, § 16 does not otherwise provide for appellate jurisdiction in the district courts rather than in the court of appeal. It only permits the legislature to authorize the district courts to exercise some appellate jurisdiction in addition to that exercised by the courts of appeal.

       The Honorable Jesse N. Stone, Jr. participated in this decision as an Associate Justice Ad Hoc.

      . Effective January 1, 1980, an appeal from a judgment rendered by a parish court or by a city court shall be taken to the court of appeal. See La.C.C.P. art. 5001 (Act 46 of 1979).

      . The exception clause may also refer to the assessment review procedure contemplated by Article 7, § 18E. On the other hand, there are constitutional provisions which augment the potential appellate jurisdiction of the courts of appeal, but which do not represent exceptions to, or provide otherwise than, Article 5, § 10’s grant to a court of appeal of appellate jurisdiction of all civil matters decided within its circuit. Article 5, § 5E authorizes the legislature to provide by law for an appeal or review in all criminal cases not appealable to the supreme court. Article 10, § 12 provides that the decision of a civil service commission shall be subject to review on any question of law or act upon appeal to the court of appeal wherein the commission is located.