author: BOOTH, Judge.

text:
    GETTY OIL COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF NATURAL RESOURCES; Florida Audubon Society: United Citizens Against Pollution, Citizens Against Pollution, Inc.; and Thomas N. Wallin, Appellees.
    No. AC-296.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.

      William H. Green, Gary P. Sams and Calvin J. Livingston of Hopping, Boyd, Green & Sams, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Thomas R. Tedcastle and Bruce Barkett, Asst. Attys. Gen., for appellee State Dept, of Natural Resources.
    Parker D. Thomson, Richard J. Ovelmen and Douglas M. Halsey of Paul & Thomson, Miami, for appellee Florida Audubon Society-
    James R. Brindell, Miami, for appellee United Citizens Against Pollution, Inc. Thomas N. Wallin, pro se.
   BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Natural Resources denying Getty Oil Company (appellant) a permit to construct a drilling rig or platform within the waters of East Bay, Santa Rosa County, Florida. The issue presented is the interpretation of Florida Statutes, Section 377.242(1), which provides, in pertinent part, as follows:

The Division of Resource Management shall be vested with the power and authority:
(1) to issue permits for the drilling, exploring for, or production of oil, gas, or other petroleum products which are to be extracted from below the surface of the land, including submerged lands, only through the well hole drilled for oil, gas, and other petroleum products. ... No structure intended for the drilling for, or production of. oil, gas, or other petroleum products may be constructed on submerged lands within one mile seaward of the coastline of the state or as otherwise provided in s. 377.24(7). No such structures shall be constructed within one mile of the seaward boundary of any state, local or federal park or aquatic or wildlife preserve or on the surface of freshwater lakes, rivers, and streams. No permit shall be granted within one mile inland from the coastline unless the division is satisfied that the estuaries, beaches and shore areas of the state will be adequately protected in the event of accident, (emphasis added)

At issue is the application of the above underscored language in Section 377.242(1) to the facts here, that is a drill site located more than two miles from any shoreline.

Appellant, the owner of State Drilling Lease No. 2338, originally issued in July of 1968 by the Trustees of the Internal Improvement Fund of the State of Florida, proposes to erect a structure and to drill a vertical, hydrocarbon exploration well at a site located in the approximate center of East Bay. The proposed well site is 2.7 miles from the nearest shoreline and six miles from the Gulf of Mexico. It is conceded that the drill site is not within one mile of any aquatic preserve.

Proceedings below, forming the background for and leading to the order sought to be reviewed, have been extensive. In pertinent part, these proceedings include appellant’s application in October, 1979 for a variance from Rule 17 — 4.28(8)(a), Florida Administrative Code, a dredge and fill permit, and an update of its 1971 application for a drilling permit.

On April 3, 1980, DER issued notices of intent to grant the variance and the dredge and fill permit. On June 16, 1980, DER issued a notice of intent to grant the natural gas flare construction permit.

By letter of June 18,1980, as amended by letter of June 23, 1980, DNR issued an initial notice of intent to recommend denial of the application for a permit to drill in East Bay on the ground that Section 377.-242(1), Florida Statutes, prohibited the construction of a drilling structure on submerged lands within the leased area.

On July 28, 1980, DNR issued a subsequent notice of intent to recommend approval, subject to specified conditions, of the drilling permit application in the event that its interpretation of Section 377.242 was overruled.

Appellant requested an administrative hearing pursuant to Section 120.57, Florida Statutes. Challenges to the proposed DER and DNR actions were filed and consolidated for hearing.

At the commencement of the hearing resulting in the order to be reviewed, the parties announced that they had reached a stipulated settlement on all issues except those pertaining to the interpretation of Section 377.242(1). The stipulation of the parties required appellant to institute extraordinary environmental safeguards. That stipulation was accepted by the hearing officer as sufficiently comprehensive to meet the requirements, including state air and water quality standards, of pertinent statutes and regulations.

As required by Subsection 403.201(2), Florida Statutes, a hearing was held on the application for variance. The hearing culminated in an order of the hearing officer recommending DER accept the parties’ stipulation, issue the permits and grant the variance.

The hearing officer considered each of the three separate provisions of Section 377.242(1), viz:

1. No structure intended for the drilling for, or production of, oil, gas, or other petroleum products may be constructed on submerged lands within 1 mile seaward of the coastline of the state or as otherwise provided in s. 377.-24(7);
2. No such structures shall be constructed within 1 mile of the seaward boundary of any state, local, or federal park or aquatic or wildlife preserve or on the surface of freshwater lakes, rivers, and streams; and
3. No permit shall be granted within 1 mile inland from the coastline unless the division is satisfied that the estuaries, beaches, and shore areas of the state will be adequately protected in the event of accident.

He concluded that the second and third above-stated provisions were factually inapplicable. He further concluded that the disputed statutory prohibition against construction of a drilling structure on submerged lands “within one mile seaward of the coastline of the state” applied only to submerged lands lying within a one-mile zone on the seaward side of the coastline. Since the proposed well site in East Bay would not be within the one-mile zone seaward of the coastline and would not be within any of the other aforementioned areas, the hearing officer recommended approval, subject to the terms of the stipulation, of appellant’s application for a DNR drilling permit.

The Department of Natural Resources adopted the hearing officer’s findings of facts but rejected his conclusion of law. DNR ruled that Section 377.242(1), Florida Statutes, precluded the construction of the drilling rig on the site in question. DNR reasoned that that clause forbidding construction of a structure on submerged lands “within one mile seaward of the coastline of the state,” prohibited the construction on all submerged lands, including bays and estuaries, inward of a point located one mile seaward of the coastline. By this view, the prohibition begins at a point one mile seaward from the coastline and then extends inward to encompass the entire state. Appellant’s application for a drilling permit was, accordingly, denied.

After oral argument and upon consideration of the briefs and record before us, we conclude that the order appealed must be reversed. DNR’s view that the clause “within one mile seaward of the coastline of the state” includes all submerged lands throughout the state and within one mile seaward of the coastline of the state, renders the remainder of the statute meaningless. Such an interpretation is contrary to well-settled rules of statutory construction, such as the plain meaning rule and the rule that a statute should be construed to give meaning to all its provisions. Had the Legislature intended to preclude drilling on all submerged lands within the state, it could have done so. It is presumed that the Legislature intended every part of the statute for a purpose.

There is no showing in the record before us that any laws of the State of Florida relating to the protection of the environment are violated by the project. On the contrary, the parties have stipulated that the project would meet all state air and water quality standards when implemented as set out under the terms of the stipulation. Various appellees urge that there will be adverse aesthetic and/or environmental effects from the project. However, in view of the stipulation and order below, no dis-positive issue is presented as to environmental effects of the proposed project, and the sole issue addressed herein is the interpretation of Section 377.242(1).

We accept, as did DNR, the findings of the hearing officer. We also hold that the hearing officer’s conclusions follow logically from, and are consistent with, the findings. We, therefore, adopt the hearing officer’s conclusions, in pertinent part, as follows:

4. ... [T]he applicant’s and the opposing parties’ versions of the meaning of the statute are in direct conflict. The disputed portion of section 377.242(1) is as follows:
No structure intended for the drilling for, or production of, oil, gas, or other petroleum products may be constructed on submerged lands within 1 mile seaward of the coastline of the state... .
Getty maintains that the prohibition applies only to structures located in a one-mile zone lying on the seaward side of the coastline. The opposing parties contend generally that the prohibition extends to other submerged lands that lie inland from the coastline.
5. ... Although the word “coastline” is not defined in Chapter 377, the parties generally agree that the seaward boundary of Santa Rosa Island constitutes the coastline at the area in question which extends westward across the opening of the bay.... Although the term “submerged lands” is subject to varying interpretations by the parties as to whether the term embraces both public and private areas, the basic meaning of the words is not in dispute and they are uniformly acknowledged to include the submerged land at the proposed well site.
5. ... The key word in controversy is “within” as used in the statute. Getty interprets the word to mean “between,” i.e., between the coastline and a point one mile seaward of the same, whereas the other parties construe the word to mean “inward of,” i.e., inward of a point located one mile seaward of the coastline. When used as a preposition, as here, the word has several varying common meanings and therefore requires construction of the statute to determine the meaning intended by the legislature. The word “within” can be used variously to indicate “enclosure or containment” of a “specified difference or margin,” or “to the inside of.” Webster’s New Collegiate Dictionary (1979 Ed.).
6. Section 253.47, F.S., authorized the Board of Trustees of the Internal Improvement Trust Fund to lease for royalties or other agreed compensation the right to drill wells for the discovery and production of petroleum and natural gas in the bottoms owned by the state in its sovereign capacity of the “bays, lagoons, straits, sounds, gulfs, streams and lakes within the state.” Section 253.60 requires that development of any such lands for the production of oil and gas shall be in accord with state conservation and control law which prevail in the event of conflict.
7. Chapter 377, Part I, deals with the regulation of oil and gas resources and, in Section 377.06 the legislative intent is spelled out pertinently as follows:
377.06 Public policy of state concerning natural resources of oil and gas—
It is hereby declared to be the public policy of the state to conserve and control the natural resources of oil and gas in said state, and the products made therefrom; to prevent waste of said natural resources, to provide for the protection and adjustment of the correlative rights of the owners of the lands wherein said natural resources lie and the owners and producers of oil and gas resources and the products made therefrom and of others interested therein; to encourage and cause the development in said state of said natural resources of oil and gas and the products made therefrom, to encourage the continuous and economic supply of the demand therefor; to safeguard the health, property and public welfare of the citizens of said state and other interested persons and for all purposes indicated by the provisions herein .... (emphasis added)
It thus can be seen that the intent of the legislature in general is to encourage the development of oil and gas resources of the state while concurrently ensuring that the public welfare is protected. Section 377.242(1) is the statutory provision designed to provide such protection and must be construed in its entirety. In keeping with the legislative intent to encourage the development of petroleum products, DNR is vested with the authority to issue drilling permits for petroleum products which are to be extracted from below the surface of the land, including submerged lands. It is therefore apparent that submerged lands are not necessarily excluded as a drilling location.
The various restrictions set forth in subsection 377.242(1) show a statutory scheme to limit the issuance of permits or the construction of structures for drilling only in specified areas. The law includes a prohibition against structures within one mile of the seaward boundary of public parks and aquatic or wildlife preserves, and on the surface of freshwater lakes, rivers and streams. The statutory provision does not allow permits to be granted at locations within one mile inland from the coastline unless DNR determines that the estuaries, beaches and shore areas will be adequately protected in the event of accident.... [T]he common and plain meaning of the word [inland] is “into or toward the interior” and is therefore directional in sense. Webster’s New Collegiate Dictionary (1979 Ed.). The above restrictions therefore must be deemed to cover both uplands and submerged lands located within the first mile landward of the coastline. When these restrictions are viewed in conjunction with the one in dispute, it becomes inescapable ... that the legislature intended to, inter alia, restrict drilling in a two-mile wide band centered over the coastline of Florida. Drilling structures are totally prohibited on submerged lands in the seaward half of the zone, and permits may be denied in the inland half, regardless of whether located in uplands or submerged lands, if the estuaries, beaches and shore areas are not adequately protected in the event of accidents. Getty’s proposed drill site does not lie within the two-mile zone. It is concluded that the restrictions of subsection 377.242(1) are not applicable to the proposed project.

Accordingly, the order of DNR is reversed and this cause remanded to DNR with directions to enter an order consistent herewith.

ERVIN and THOMPSON, JJ., concur.

      . It was also contended that application of Section 377.242(1), Florida Statutes, so as to prohibit Getty'from conducting the proposed drilling on the submerged lands located in East Bay is unconstitutional. In view of our disposition of this case on statutory ground, the constitutional issues raised on appeal need not be addressed.

      . The lease provides that the State, through its Trustees,
      . . . demise, grant, lease and let exclusively unto the said Lessee the said land . . . for the purpose of investigating, exploring, prospecting, drilling of bore-holes for the discovery and production of oil, gas, sulfer, salt and/or other brines from the leased premises and for the laying of pipelines, building roads, tanks . .. and other structures and equipment needed to produce, save, take care of, treat, transport and own said products and, if the lands covered by this lease exceed 640 acres, to house its employees engaged in operations for drilling and/or production and handling.

      . United Citizens Against Pollution, Inc., et at, Florida Audobon Society, Francis M. Weston Audobon Society, Thomas N. Wallin, Richard D. Radford, and Northwest Florida Sierra Club filed petitions against the Department of Environmental Regulation and Getty Oil Company. Richard D. Radford and Getty Oil Company filed petitions against the Department of Natural Resources. Florida Audobon Society, Thomas N. Wallin and United Citizens Against Pollution, Inc. filed petitions against Department of Natural Resources and Getty Oil Company.

      . The variance was granted. A dredge and fill permit, number 57-24854-1E, was issued February 16, 1981. A construction permit, number AC57-31442, for a natural gas elevated flare was issued February 26, 1981.


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    WESTCHESTER GENERAL HOSPITAL, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AD-72.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.

      Paul Watson Lambert, of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellant.
    Donna 'H. Stinson, Gen. Counsel, Dept, of Health and Rehabilitative Services, for ap-pellee.
   SHIVERS, Judge.

Appellant Westchester General Hospital (Westchester) appeals from final order of Department of Health and Rehabilitative Services (HRS) finding that Westchester forfeited its grandfather exemption from having to obtain a certificate of need to construct a replacement hospital. The Hospital asserts seven points on appeal. We reverse on the basis of the first three points but conclude HRS was correct on the points Westchester raised on its remaining points on appeal.

Appellant is a 100-bed osteopathic hospital in Miami which planned to build a 212-bed replacement hospital at a site across the street. Westchester began preliminary steps toward construction in 1972.

Also in 1972 the Legislature enacted the Health Facilities Planning Act (Sections 381.493-.497, Fla.Stat. (Supp.1972)) requiring proposed replacement hospitals to first obtain an HRS certificate of need. Section 381.497 specifically exempted (grandfathered) projects where land had been acquired and preliminary construction plans were filed prior to July 1, 1973.

Although the record is not clear whether Westchester met the exemption requirement, it is clear HRS treated Westchester as a grandfathered project on numerous occasions between 1974 and 1978. HRS now concedes that Westchester was grandfathered prior to July 1, 1979.

In 1978, by s. 3, Chapter 78-194, the Legislature repealed the grandfather exemption effective July 1, 1979. The Legislature directed HRS to provide notice to grandfathered hospitals by July 15, 1978, and stated that if HRS had previously provided written notification to projects that were exempt, such evidence would be considered “as valid evidence of inapplicability” of the Act. However, HRS failed to give notice to Westchester that it would be treated as an exempt facility until October 28, 1978. In its notice HRS advised West-chester that as of July 1, 1979, its project must be under then undefined “physical and continuous construction” in order to preserve its exemption. (The “physical and continuous construction” requirement does not appear in the statute but is an HRS interpretation.) HRS did not define the term “construction” when it provided statutory notice to the grandfathered projects.

Between 1972 and 1979, on the basis of its grandfathered status, Westchester acquired land, incurred expenses, entered contracts, and made commitments in connection with constructing its replacement hospital. In November 1979, Westchester CPAs reported that $2,810,000 had been expended in preparation for and construction of the new hospital. During 1979 Westchester experienced permitting difficulties both from Dade County authorities and HRS. In April 1979, Westchester submitted final construction plans to HRS. Although HRS issued a “foundation only” building permit on June 25, 1979, the final HRS approval of construction plans did not come until September 18, 1979, preventing commencement of foundation work until after the latter time. Westchester began site preparation on June 29, 1979.

In December 1979, after discussions with Westchester, HRS issued an administrative complaint asserting that Westchester had forfeited its exemption by failing to be under physical and continuous construction by July 1,1979. At that time Westchester’s construction had not gone beyond site preparation. The complaint was treated as a license revocation proceeding under Section 120.60(6), Fla.Stat. (1979). After a hearing, the hearing officer found that although Westchester had failed to meet the requirements for preserving its exemption, HRS was equitably estopped from revoking Westchester’s exemption and that West-chester should be given six months to comply with the requirements for preserving the exemption. HRS then entered the final order, ruling that Westchester had forfeited its exemption from having to obtain a certificate of need.

The first point for determination is whether HRS erred in modifying the findings of fact in the hearing officer’s recommended order. HRS maintains that modification of the hearing officer’s findings of fact is within the discretion of the agency, that deference to agency discretion must exist so that the Administrative Procedure Act does not compromise an agency’s ultimate authority over matters within its regulatory power. The issue on this first point is governed by two statutes and the case law which interprets them. Section 120-57(l)(b)9, Fla.Stat. (1979) provides that an agency (such as HRS) may not reject or modify the findings of fact of the hearing officer unless the agency first determines from a review of the complete record, and states with particularity, that the hearing officer’s findings of fact are not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.68(10), Fla.Stat. (1979) provides that a reviewing court shall not substitute its judgment for that of the agency as to the weight of evidence on a disputed finding of fact unless the fact is not supported by competent, substantial evidence. The seminal case of McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), explains the correct interpretation of these statutes. Where the question is the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, then the hearing officer’s findings of fact must prevail if supported by competent, substantial evidence. If, on the other hand, the ultimate facts are opinions infused with policy insights for which the agency has special responsibility, then the agency should prevail if its findings are supported by competent, substantial evidence. Id. at 579.

The case sub judice is almost directly on point with the case of Samson v. Bureau of Community Medical Facilities Planning of Department of Health & Rehabilitative Services, 363 So.2d 412 (Fla. 1st DCA 1978). In Samson, HRS denied a certificate of need after rejecting a hearing officer’s findings of fact and conclusions of law. This court determined that the factual issues involved in Samson were susceptible of ordinary methods of proof and, therefore, reversed with directions that the hearing officer’s recommended order be entered in lieu of HRS’s order. A review of the record sub judice reveals that although HRS’s findings are based on competent, substantial evidence, so are those of the hearing officer. Furthermore, the factual issues involved are susceptible of ordinary methods of proof, e.g., the cause of delays in Westchester’s construction project and whether Westchester was reasonably diligent in its construction efforts.

The second and third points for determination are (2) whether HRS erred in rejecting the conclusions of law in the hearing officer’s report; and (3) whether HRS erred in reversing the hearing officer’s recommended penalty and substituting the penalty of forfeiture. HRS argues that Section 120.57(l)(b)9 gives the agency unqualified power to reject or modify the hearing officer’s conclusions. HRS further contends that the purpose of the legislative repeal of the grandfather exemption was to ensure that a project would either be built or not, so that accurate health planning could be achieved. It points out that West-chester was not held to the strict letter of the rule, that though HRS did not give final approval until September 1979, Westchester did not begin construction then. The HRS position is flawed by its ad hoc modification of the facts. The facts as found by the hearing officer will not support the HRS conclusions. Further, HRS was under an affirmative statutory duty to provide notice to Westchester by July 15, 1978, and failed in that duty. When HRS did provide notice on October 28, 1978, it did not advise West-chester of its ultimate position of requiring construction “beyond site preparation.” Westchester relied to its detriment on HRS’s October 28, 1978, position and, we conclude, HRS is equitably estopped from applying its rules against Westchester to revoke or forfeit the exemption. See, State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.1981).

We conclude that the final order of HRS should be reversed and the hearing officer’s recommended order be entered in lieu of the HRS order, except for remand to determine a reasonable time for compliance, not less than six months or greater than one year.

We affirm the remaining points on appeal. On the fourth point, we conclude HRS did not improperly rule upon Westchester’s exceptions to the recommended order. HRS dealt explicitly with Westchester’s exceptions. On the fifth point, HRS did not err in modifying the recommended order when HRS did not file exceptions to it. Agency power to modify and reject flows from the statute and is not dependent on the filing of exceptions.

On the sixth point, it was not required that the Secretary of HRS and the Administrator of the Office of Community Medical Facilities personally sign the administrative complaint. Those who signed had the authority to do so.

On the seventh and last point, assuming, arguendo, that license revocation procedure Section 120.60(6), Fla.Stat. (1979) applies, there is evidence to support the hearing officer’s conclusion that Section 120.60(6) was followed.

REVERSED and REMANDED.

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

      . On June 5, 1979, HRS adopted formal rules implementing s. 3, Chapter 78-194. These rules included the physical and continuous construction requirement for continued exemption but the rules, for the first time, defined “construction” as meaning construction “beyond site preparation.” Rules 10-502(21) and 10-505(2), Florida Administrative Code. The rules were subsequently declared by the hearing officer to be invalid exercises of legislative power and we affirmed. Westchester General Hospital and Sylvia Urlich v. State of Florida, Department of Health & Rehabilitative Services, 417 So.2d 261 (Fla. 1st DCA 1982). However, since the HRS position at the 120.56 hearing was also based on incipient non-rule policy it was not mooted by the declaration of invalidity.

      . The hearing officer found that by defining “construction” to mean commencement of and continuous activities “beyond site preparation,” HRS promulgated a different and more restrictive definition than the one generally utilized on the construction industry. As used by professionals in that industry, “construction” may commence prior to site preparation; indicators of commencement of construction include the execution of a construction contract with the general contractor, the obtaining of a building or foundation permit, the ordering of building materials, or the signing of contracts with subcontractors. Any of these events may occur before clearing and preparing the site, the first on-site indicator of construction.


text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, a corporation, Appellant, v. Michael L. EVANS, Appellee.
    No. AD-249.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 7, 1982.
    Milton H. Baxley, II, of Baxley & Jones, Gainesville, for appellant.
    James L. Tomlinson and J. Randall Hooper, of Scruggs & Carmichael, Gainesville, for appellee.
   SHIVERS, Judge.

Appellant carrier appeals final judgment awarding appellee insured $15,000 in compensatory damages on simple breach of contract count. The carrier, Florida Farm Bureau Casualty Insurance Company (Farm Bureau), contends the trial court erred: a) by denying Farm Bureau’s motion for directed verdict on this count, and b) by denying Farm Bureau’s motion for judgment in accordance with such motion for directed verdict. We affirm.

On July 13, 1975, appellee Evans was involved in an automobile accident when his car was struck from the rear by a car driven by Margaret Glenn and was injured as the proximate result of Glenn’s negligence. At the time of the accident, Glenn was insured by Government Employees Insurance Company (GEICO) in the amount of $10,000. Evans was insured by Farm Bureau with, among other things, $25,000 in uninsured motorist coverage.

On March 1, 1977, Evans filed suit against Farm Bureau, claiming uninsured motorist benefits and alleging simple breach of contract and tortious breach of contract. Evans alleged that Farm Bureau had breached the insurance contract by unreasonably withholding its consent to allow Evans to either settle or proceed to judgment against Glenn and GEICO. Under the terms of the policy, the insured forfeited the uninsured motorist benefits if he either settled or proceeded to judgment without Farm Bureau’s written consent.

After two interim appeals by appellee [Evans v. Florida Farm Bureau Casualty Insurance Company, 355 So.2d 149 (Fla. 1st DCA 1978) and 384 So.2d 959 (Fla. 1st DCA 1980) ] and a summary judgment in his favor on his uninsured motorist claim for $9,216.63 ($25,000 underinsured motorist benefits minus: $10,000 from GEICO, $5,000 PIP payments and $783.37 medical expenses payments), a jury trial was held on the issue of breach of contract and tor-tious breach of contract. Farm Bureau moved for a directed verdict at the close of Evans’ case and again at the close of all evidence, both of which were denied by the trial court. On December 4, 1980, the jury returned a verdict in favor of Evans for $15,000 in damages on the simple breach of contract claim and a verdict in favor of Farm Bureau on the tortious breach of contract claim. On December 11, 1980, Farm Bureau moved for judgment in accordance with its motion for directed verdict which was denied by the trial court. Final judgment was entered on April 29, 1981.

There is ample evidence supporting the trial court’s denial of the carrier’s motion for directed verdict. As we noted in a prior appeal of this case, appellant Farm Bureau had a duty to act reasonably with appellee Evans regarding the issue of consent. Evans v. Florida Farm Bureau, 384 So.2d 959 (Fla. 1st DCA 1980). A perusal of the record manifests that Farm Bureau unreasonably or arbitrarily withheld its consent.

We further affirm the award of compensatory damages.

Although the jury did not err in awarding some compensatory damages to the appellee, e.g., the loss of use of the money for approximately four years, the question of the excessiveness of the jury verdict was never brought to the attention of the court.

In its Motion for Judgment in Accordance with the Motion for Directed Verdict, appellant alleged in part: “Plaintiff failed to present any evidence whatsoever which is legally sufficient to show that he sustained any compensatory damages, the nature of any damages, or to establish a causal connection between the alleged breach of contract and any compensatory damages.” This motion was entirely consistent with appellant’s prior motion for directed verdict, sought first at the conclusion of plaintiff’s case, and renewed at the conclusion of all the evidence, in which appellant merely asserted that the case should not go to the jury because plaintiff had failed to demonstrate any damages. The court’s order was a simple denial of the renewed motion for directed verdict.

The principles that govern the granting of a motion for directed verdict are of course altogether dissimilar from those relating to the granting of a motion for new trial. As to the former, the motion should be allowed only if the evidence would not be legally sufficient to sustain a verdict for the opposite party; however, a new trial may be granted on evidence which is contrary to the manifest weight of the evidence. Aberson v. Atlantic Coast Line Railroad Co., 68 Fla. 196, 67 So. 44 (1914). This distinction is important. Here there was some evidence of damages that was legally sufficient to take the case to the jury. If the verdict was contrary to the weight of the evidence, a motion for new trial is the proper vehicle by which the question of the excessiveness of the jury’s verdict should have been brought to the trial court’s attention. Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927); Staib v. Ferrari, Inc., 391 So.2d 295 (Fla. 3d DCA 1980). Had such issue been appropriately presented to the trier of fact, the lower court might conceivably, within an exercise of its discretion, have ordered either a remittitur or a new trial on the issue of damages only. Yet, it was never furnished this opportunity — as indeed it could not have by motion for directed verdict before the entry of the verdict.

The cases are legion which hold that in order to obtain a review on appeal on the question of the adequacy or excessiveness of a verdict, the question must be presented to the trial court by a motion for new trial, a ruling must be entered adverse to the movant, and a point raised on appeal directed to the court’s action in denying a motion for new trial on such ground. See, e.g., Guarria v. State Road Dept., 117 So.2d 5 (Fla. 3d DCA 1960); Fendrick v. Faeges, 117 So.2d 858 (Fla. 3d DCA 1960), cert. denied, 123 So.2d 350 (Fla.1960); Tampa Transit Lines, Inc. v. Smith, 155 So.2d 557 (Fla. 2d DCA 1963).

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    STANDARD INDUSTRIAL LINEN COMPANY and Liberty Mutual Insurance Company, Appellants, v. Russell E. FREEMAN, Appellee.
    No. AH-422.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 7, 1982.

      Thomas A. Moore, Pitts, Eubanks & Ross, Orlando, for appellants.
    Thomas E. Thoburn, Cocoa, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier present several issues for review, only two of which merit discussion and require reversal. First, we agree that the deputy erred in awarding temporary total disability benefits to claimant for a period of time in which claimant was disabled due to a condition unrelated to the industrial accident. Second, we agree the deputy erred in his award of temporary partial disability benefits after April 21, 1979, because the claimant did not adequately test his employability and therefore failed to establish a loss of wage earning capacity.

Claimant, who is 67 years old, sustained an industrial accident when he fell from the back of a delivery truck on January 18, 1978. Dr. Storey, his family physician, diagnosed an acute lumbar strain and treated claimant conservatively. Claimant continued to work throughout 1978, but then terminated his employment early in 1979 complaining of difficulties with his back. Shortly thereafter, he was hospitalized for unrelated gallbladder surgery. Then in April, 1979, claimant obtained a part-time job as a security guard working, two days a week. He declined full-time employment because he did not feél up to it. Because claimant’s back pain continued, Dr. Storey referred claimant to another physician who eventually diagnosed a herniated nucleus pulposus. At the time of the hearing in June, 1981, claimant was still undergoing conservative treatment for his back. The deputy awarded claimant temporary total disability benefits from December 31, 1978 to April 20, 1979 at which time temporary partial disability benefits in the amount of $84.00 a week were ordered to be commenced, continuing until claimant was no longer temporarily partially disabled.

With respect to the period for which temporary total disability benefits were awarded, there is absolutely no medical evidence that claimant was unable to work due to his industrial accident nor was there evidence that claimant made a conscientious effort to return to work and was unable to. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). Instead, the evidence shows claimant was unable to work during this period because of unrelated gallbladder surgery. Under such circumstances the award of temporary benefits was error. Walker Imperial, Inc. v. Stidhim, 407 So.2d 1029 (Fla. 1st DCA 1981); Fisher v. Carroll Daniel Fisher Construction Company, 212 So.2d 289 (Fla.1969); Riverside Baptist Church v. O’Hara, IRC Order 2-2727 (1975); Reedy Creek Improvement District Fire Department v. LaCorte, IRC Order 2-3696 (1979); Harris Semiconductor v. Ellis, IRC Order 2-2936 (1976).

Next, we consider the employer/carrier’s contention that the deputy, in making the award of temporary partial disability benefits, failed to make a determination of claimant’s post-injury wage earning capacity in accordance with Section 440.15(4), Florida Statutes (Supp.1978) and instead automatically applied the 60% differential provided for in the statute to the difference between the claimant’s pre-injury wges. Specifically, the employer/carrier complain that the deputy simply accepted the wages earned by claimant in his part-time capacity as the equivalent of claimant’s post-injury wage earning capacity without consideration of the other requisite factors. Walker v. Electronic Products and Engineering Company, 248 So.2d 161 (Fla.1971). Among those factors which the deputy must consider before making a determination concerning claimant’s post-injury wage earning capacity, is the adequacy of claimant’s work search. The record is devoid of evidence establishing that claimant sufficiently tested his employability after April 21, 1979, thus we are required to reverse the deputy’s award of temporary partial disability benefits based on loss of wage earning capacity.

The record contains no medical evidence indicating claimant cannot work more than two days a week. Indeed, the evidence shows claimant was offered more work but turned it down because of complaints that his back bothered him. However, this court has repeatedly refused to sustain awards of benefits which are based only on subjective but medically unverified claims of inability to work. Holiday Care Center v. Seriven, 418 So.2d 322 (Fla. 1st DCA 1982); Jandy, Inc. v. Mosley, 413 So.2d 837 (Fla. 1st DCA 1982) and cases cited therein; Jamar Sportswear v. Miller, 413 So. Newspapers, Inc. v. Rosten, 404 So.2d 174 (Fla. 1st DCA 1981). Cf. Square G. Construction Company v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982).

Accordingly, the deputy’s order awarding temporary benefits is REVERSED.

JOANOS and THOMPSON, JJ., concur.

      . This statute provides for the determination of temporary partial disability benefits as follows:
      In case of temporary partial disability resulting in decrease of earning capacity the compensation shall be 60 percent of the difference between the injured employee’s average weekly wages before the injury and his wage-earning capacity after the injury in the same or other employment, to be paid during the continuance of such disability, but shall not be paid for a period exceeding 5 years.

      . The deputy’s order is susceptible to the interpretation that the deputy felt claimant’s post-injury wages equaled his post-injury wage earning capacity. In the future, we should not be left to guess concerning the deputy’s determination of the claimant’s wage earning capacity after injury. It is the deputy’s responsibility to enter an order specifying the claimant’s average weekly wage before the injury, his wage earning capacity after the injury and the temporary partial disability benefits due in accord-anee with those findings and the statutory formula. B. F. Diamond Construction Company v. Harrell, 400 So.2d 20 (Fla. 1st DCA 1981).


text:
    Charles T. SCOTT, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    Nos. AI-147 and AJ-15.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 5, 1982.
    Charles T. Scott, pro se.
    Malcolm S. Greenfield, Gen. Counsel for Florida Parole and Probation Com’n, Tallahassee, for appellee.
   SHIVERS, Judge.

Scott raises eleven points for our consideration in his appeal of a Department of Administrative Hearings final order denying his challenge to various Florida Parole and Probation Commission rules and his appeal of the Commission’s order establishing a March 4, 2092, presumptive parole release date. We affirm the final order upholding the Commission’s rules and establishing the presumptive parole release date.

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    FLORIDA INSTITUTIONAL LEGAL SERVICES, INC., Appellant, v. PAROLE AND PROBATION COMMISSION QUALIFICATIONS COMMITTEE, Appellee.
    No. AJ-444.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 4, 1982.
    Richard A. Belz, Gainesville, for appellant.
    Betty J. Steffens, Gen. Counsel to the Governor, and Arthur R. Wiedinger, Jr., Asst. Gen. Counsel, Tallahassee, for appel-lee.
   PER CURIAM.

This cause is before us on administrative appeal pursuant to Section 120.68, Florida Statutes, and grounded upon the failure of appellee Parole and Probation Commission Qualifications Committee to provide minimum public information pursuant to Sections 120.53 and 120.54(5), Florida Statutes, or a hearing on this issue as required by Section 120.57, Florida Statutes. Appellee filed a motion to dismiss the appeal, contending the Parole and Probation Commission Qualifications Committee was not an “agency” as defined by Section 120.52(1), Florida Statutes, and therefore was not subject to the minimum public information requirements specified in Section 120.54(5). We agree and dismiss the appeal.

Section 947.02(1), Florida Statutes, provides for the creation of appellee Parole and Probation Commission Qualifications Committee “[wjhenever there is an appointment of a member of the [Parole and Probation Commission] to be made or a vacancy to be filled.” This section authorizes no exercise of executive power by the committee; the committee is instead an advisory body to the appointment power vested with the Governor and Cabinet pursuant to Section 947.02(1). Section 120.52(1), Florida Statutes, defines “agency” for purposes of Chapter 120 as follows:

(1) “Agency” means:
(a) The Governor in the exercise of all executive powers other than those derived from the Constitution.
(b) Each other state officer and each state department, departmental unit described in s. 20.04, commission, regional planning agency, board, district, and authority, including, but not limited to, those described in Chapters 160, 163, 298, 373, 380, and 582, except any legal entity or agency created in whole or in part pursuant to Chapter 361, Part II.
(c) Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions. A deputy commissioner shall not, in the adjudication of workers’ compensation claims, be considered an agency or part of an agency for purposes of this act.

We hold that appellee Parole and Probation Commission Qualifications Committee is not an agency as defined by this section and is therefore not subject to the minimum information requirements of Section 120.53 and 120.54(5). Szkolny v. State Awards Committee, 395 So.2d 1290 (Fla. 1st DCA 1981), cited by appellant, is distinguishable, as the agency in that case, the State Awards Committee, was empowered to exercise final action for the Department of Administration, Division of Personnel.

Accordingly, the appeal of appellant, Florida Institutional Legal Services, Inc., is hereby dismissed.

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


text:
    Alfred L. WILLIAMS and Joanne M. Williams, his wife; and Safeco Title Insurance Company, Appellants, v. David NUSSBAUM, Sr.; David Nussbaum, Jr.; Lacy Mahon, Jr.; George R. Register, Jr.; and Graham-Jones Paper Company, a division of the Mead Corporation, formerly Graham-Jones Paper Co., a Florida corporation, Appellees.
    No. AG-448.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Rehearing Denied Oct. 7, 1982.

      Dennis E. Hayes and Sharon S. Roberts, Martin, Ade, Birchfield & Johnson, Jacksonville, for appellants.
    William Nussbaum, Nussbaum, Nuss-baum, Mahon & Register, Jacksonville, for appellees.
   PER CURIAM.

We reverse the amended summary final judgment dated September 4, 1981, and that portion of the order denying appellants’ motion to set aside or stay the amended summary final judgment and foreclosure sale.

The original summary final judgment of foreclosure dated July 23, 1981 provided in paragraph 7 that appellees’ judgment-creditors’ liens against the undivided one-half interest of Joseph Gardener Sams, Jr. in the foreclosed real property would be paid under the following conditions:

Should the sale ordered hereby result in an excess of funds above the sums adjudicated to be due plaintiff, any interest in said sums of the defendant, Joseph Gardener Sams, Jr., as later determined by the court, shall be divided pro rata between Nussbaum and Graham-Jones, based upon the above total amount of their respective judgments with interest, and any excess above the amounts due those defendants shall be paid to the defendant, Joseph Gardener Sams, Jr. (emphasis supplied)

Jurisdiction was retained by the court to enter “further orders as are proper .... ”

Although appellees were clearly entitled to notice of the foreclosure plaintiffs’ post-judgment application to another circuit judge to set aside the judgment and dismiss the foreclosure action, their remedy was to promptly move for a rehearing, or to set aside the order entered without notice, and to have the original final judgment reinstated. Instead, without additional pleadings, notice, or process, appellees applied to yet another circuit judge for entry of a new and different summary final judgment in their favor. Furthermore, although appel-lees’ motion for an amended summary final judgment requested a judgment “making the same determinations” as contained in paragraph 7 of the original judgment, the judgment they prepared and submitted to the court departed substantially from the original. The amended summary final judgment omitted any requirement that any excess remaining from the proceeds of the foreclosure sale be held, pending a determination by the court of the interest of appellees’ judgment-debtor, Sams, and instead, placed appellees in the position of foreclosing mortgagees with respect to an undivided one-half interest in the property itself, with no provision for determination by the court of the amount, if any, representing the interest of Sams in the sales proceeds. The new judgment also provided that appellees could become bidders and receive credit on their bids based on the amount of their liens, contrary to the original judgment.

We note that the personal representative of the Chavis estate, from which Sams derived any interest he might then or later have in the property, moved for rehearing as to the amended summary final judgment, pointing out that appellees had obtained a judgment that gave appellees rights superior to those acquired under the original foreclosure judgment. Notwithstanding this, the motion for rehearing was denied. This was error. The personal representative of the estate had standing, under the original judgment, to have the court determine the disposition of the proceeds of the foreclosure sale, so long as the property or the funds derived from the sale remained within the control of the court. Indeed, by the express wording of the original foreclosure judgment, the interest of Sams in the proceeds of sale was a matter to be determined by the court after the sale, and the Clerk of the court was specifically ordered by that judgment to retain any amount remaining (after payment of the costs and the judgment of the plaintiffs) “pending further order of this court.”

The intervenors’ motion sets forth circumstances sufficient to warrant their entry into this litigation. The motion alleges, among other things, that subsequent to the original final judgment, but prior to entry of the amended final judgment, yet another circuit judge, of the Probate Division, had approved a sale by the Chavis estate to the intervenors, Williams. Copies of purported orders from the Probate Division approving and confirming the sale were attached to the motion. The interve-nors requested a stay of the impending foreclosure sale under the amended summary final judgment. This was denied. However, the motion to intervene was granted, and the intervenors were authorized to pursue such appeals as might be necessary to protect their interests.

As a general rule, it is too late to apply for intervention after a final decree has been entered. However, intervention should be permitted at such a time if the interests of justice require it. Wags Transportation Systems, Inc. v. City of Miami Beach, 88 So.2d 751 (Fla.1956); Tallentire v. Burkhart, 150 Fla. 137, 7 So.2d 326 (1942); F.R.C.P. 1.230. The trial court was correct in granting the motion to intervene.

We reverse the amended summary final judgment, the order denying the motion to stay that judgment, and the foreclosure sale ordered pursuant to that judgment. On remand the intervenors shall be entitled to have their interests fully determined. For the guidance of the trial court, appellees, as personal creditors of Sams, are entitled to no interest in the property or the proceeds of sale thereof, superior to that which Sams is entitled to as a beneficiary of the Chavis estate. In adjudicating such interest, the court shall take into account the requirements of the probate laws, as well as those pertaining to the rights of the parties as between themselves.

REVERSED AND REMANDED.

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

      . See, Miracle House Corporation v. Haige, 96 So.2d 417 (Fla.1957); and Singletary v. Mann, 157 Fla. 37, 24 So.2d 718 (1946). In Singletary, the court quoted the rule as stated in 39 Am. Jur. p. 950, § 79:
      Frequently the statutes and rules of practice governing intervention expressly stipulate that intervention shall be in subordination to and in recognition of the propriety of the main proceeding, but aside from any such express declaration the rule is stated to be that one who intervenes in a pending action ordinarily must come into the case as it exists and conform to the pleadings as he finds them or that he must take the case as he finds it. By this it is generally meant that he cannot avail himself of or urge mere irregularities in the proceeding which the original parties have expressly or impliedly waived, or of defenses which are personal to them.
      We conceive this to mean that the intervenor may not assert matters extraneous to his own interests, but that he may avail himself of any and all arguments which relate to derivation and extent of his own interests, whether or not these matters have been previously asserted by one of the original parties.


author: THOMPSON, Judge.

text:
    W. D. LEE, individually, and City of Jacksonville, a municipal corporation, Appellants, v. Ralph P. GEIGER, Appellee.
    No. AG-306.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Rehearing Denied Oct. 6, 1982.

      Dawson A. McQuaig, Gen. Counsel, William Lee Allen, and Grady W. Martin, Asst. Counsels, Jacksonville, for appellants.
    Fred T. Stapp of Williams & Stapp, Jacksonville, for appellee.
   THOMPSON, Judge.

This is an appeal from a judgment entered upon a jury verdict for malicious prosecution and false imprisonment. The appellants, defendants below, contend that the trial judge erred in failing to direct a verdict for them at the close of all the evidence in both the malicious prosecution and false arrest actions. We agree and reverse.

The appellee was arrested by appellant, Detective Lee of the Jacksonville Sheriff’s Office, and was subsequently charged by information with burglary and attempted sexual battery.

Appellee then filed a complaint against Detective Lee and the City of Jacksonville (the City) for malicious prosecution and false imprisonment, alleging that Lee and the City failed to properly investigate the charge and arrested appellee without probable cause.

The alleged victim of the attempted sexual battery was a 15-year-old who was living at home with her mother at the time of the incident. She testified that she woke up about 3:00 a. m. when she realized there was a man lying on top of her and fondling her breasts. She stated that the episode took five minutes at the most and that she was hysterical. Although she never saw the assailant’s face, she recognized the man’s voice as being that of the appellee. She had previously worked as a babysitter for appellee and had gone to his place of business once. She was very certain about the voice identification.

The police were called and an investigation and report were made by the investigating police officer. Two days later when Detective Lee went to the alleged victim’s house, she made an absolute identification of the appellee as being the person in her bedroom. The next day Detective Lee arrested appellee and placed him in jail. The following day the appellee appeared before Judge Giles P. Lewis at a hearing for a determination of probable cause. On January 10, 1979, Judge Lewis entered an order finding that there was probable cause to detain the appellee pending further proceedings. The charges against appellee were dropped when the victim later found out she was pregnant by her boyfriend and apparently refused to testify.

Appellee contends there áre a number of things which Detective Lee could have done and should have done, including investigating his alibi and accepting his offer to take a polygraph test which would have shown no probable cause to arrest or detain. Although appellee offered an alibi for his whereabouts at 3:00 a. m., the arrest report reflected the assault took place at 4:00 a. m. Detective Lee admitted appellee volunteered to take a polygraph examination but said that he gave appellee his card and told appellee to call him when he was ready to take the examination but never heard from him. It is obvious from the record in this case that the investigation performed was not a textbook example of proper investigation of a crime. However, an imperfect criminal investigation is not a sufficient basis for a recovery in a malicious prosecution or false arrest action. In a malicious prosecution action, a party must show an absence of probable cause for the prosecution before he is entitled to recover. See K-Mart Corp. v. Sellars, 387 So.2d 552 (Fla. 1st DCA 1980). In a false arrest action, the defendant must establish the presence of probable cause. See Toomey v. Tolin, 311 So.2d 678 (Fla. 4th DCA 1975), cert. dismissed, 336 So.2d 604 (Fla.1976). It is not necessary that the arresting officer know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged. Probable cause is much less than that. Probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged. See Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). In many, if not most, sexual battery or sexual assault cases the victim is the sole witness as to the identity of her attacker and as to the facts and circumstances of the assault. The facts as furnished both the investigating officer and Detective Lee by the victim in this case were the same and the identification was the same. Based on these facts and identification a magistrate made a finding that probable cause to detain the appellee existed. Although this was a non-adyersary proceeding, Fla.R.Crim.P. 3.131 provides for nonadversary proceedings to determine if probable cause for detention exists. Investigation or police procedure can be so inadequate as to constitute lack of probable cause. See generally Garris v. Rowland, 678 F.2d 1264 (5th Cir. 1982). However, the facts in this case show that at most Detective Lee was guilty of poor judgment in conducting his investigation and that such action does not constitute legal malice. It is not even contended that Detective Lee acted with ill motive or actual malice.

For the foregoing reasons, we hold that there was probable cause for the arrest and subsequent charges. The appellants’ motions for directed verdict should therefore have been granted.

REVERSED.

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


text:
    CITY OF COCOA and Continental Insurance Company, Appellants, v. Ruby L. ADAMS, Appellee.
    No. AJ-155.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Rehearing Denied Oct. 6, 1982.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Gabriel H. Blumenthal of Blumenthal, Schwartz & Riley, Titusville, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending, inter alia, that the deputy commissioner (deputy) erred in awarding temporary total disability (TTD) benefits and wage loss benefits, and in finding that the E/C exhibited bad faith in its handling of the claim, and was therefore obligated to pay claimant’s attorney’s fees pursuant to § 440.34(3)(b), Fla.Stat. We agree and reverse as to these issues, but we conclude that the E/C’s remaining contentions are without merit.

The claimant is a 33-year-old woman who sustained a compensable back injury on March 20, 1980, while working as a garbage collector for the employer. She sought treatment from Dr. Appen, a family practitioner who saw her on three occasions after the accident. Dr. Appen found no objective signs of injury, and he released claimant as having reached maximum medical improvement (MMI) and as being able to return to work as of April 7, 1980. However, Dr. Appen recommended to the employer that claimant be given a new job assignment, since he was of the opinion that she would be unable to continue to perform the heavy lifting tasks of a garbage collector without re-injuring her back. The employer thereafter offered claimant less strenuous work as a groundskeeper, but claimant refused to accept the position and her employment was then terminated.

On August 14, 1980 claimant sought treatment from Dr. Maxwell, an orthopedic surgeon. Dr. Maxwell diagnosed chronic lumbar sprain superimposed upon congenital scoliosis, and prescribed a course of physical therapy. On November 14, 1980; Dr. Maxwell discharged claimant as having reached MMI with a 25% permanent impairment of the body as a whole. Dr. Maxwell placed restrictions on claimant’s activities with respect to heavy lifting, repetitive bending, and working from ladders or scaffolds. Dr. Maxwell testified that during the period when he was treating the claimant she was disabled from performing strenuous manual labor, but that she was capable of performing work of a light and sedentary nature. Because the medical evidence showed that the claimant was not totally disabled, and because the claimant admitted that she made no work search until sometime after February 19, 1981, the award of TTD benefits for the entire period from the date of the accident to the date of MMI was erroneous, and is reversed. Similarly, the award of wage loss benefits must be reversed insofar as it requires payment of benefits based on total wage loss for the period subsequent to MMI but prior to the date claimant began actively seeking appropriate employment. On remand, the deputy should determine whether claimant is entitled to temporary partial disability benefits, and should reconsider claimant’s entitlement to wage loss benefits. With respect to these determinations, the deputy should consider the provisions of § 440.-15(3)(b)2 and § 440.15(4)(b), Fla.Stat., relating to voluntary limitation of income by a claimant. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Duro Paperbag Mfg. Co. v. Graham, 415 So.2d 809 (Fla. 1st DCA 1982).

In his order, the deputy found that the E/C had “committed bad faith in the handling of this case, under § 440.34(2)(b) of the Florida Statutes ... ”, and based on this finding reserved jurisdiction to award attorney’s fees. This finding was premature. Although we have previously held that a deputy need not in all cases hold an entirely separate hearing on the question of bad faith, Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981), both the statute and our prior rulings on the issue make it abundantly clear that a deputy cannot decide the issue of bad faith unless the issue is separately and specifically litigated and unless factual evidence is presented which goes directly to the issue. Embry-Riddle, supra; Silver Springs, Inc. v. Scardo, 408 So.2d 844 (Fla. 1st DCA 1982). The record in this case reveals that the issue of bad faith on the part of the E/C was not specifically litigated, and, accordingly, we strike that portion of the order finding bad faith.

AFFIRMED in part, REVERSED in part and REMANDED.

MILLS and BOOTH, JJ., concur.


text:
    Bobby Gene BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. AD-95.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.

      Everett P. Anderson, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ON PETITION FOR REHEARING GRANTED

PER CURIAM.

By opinion filed June 11, 1982, we affirmed appellant’s conviction of first degree murder, but upon consideration of appellant’s timely filed petition for rehearing, we conclude that our prior decision was incorrect and that one of the errors argued by appellant, i.e., the admission, over objection, of prejudicial hearsay testimony, has merit and requires that we reverse the judgment and remand this cause for a new trial.

The State, as part of its case in chief, introduced over objection the testimony of two witnesses, each of whom testified as to statements made to him by the victim, each of which statement was offered to prove the truth of the matter asserted. The statements were hearsay by definition, § 90.801, Fla.Stat., but the trial court felt them to be admissible under the exceptions contained in § 90.803(3), Fla.Stat. as a statement of declarant’s then existing state of mind. It is clear from the record, however, that the statements were not offered to prove the declarant’s state of mind (such state of mind not being an issue in the action), nor were the statements offered to prove or explain acts of subsequent conduct of the declarant. To the contrary, such statements were quite obviously offered to prove the state of mind or motive of the defendant, a purpose for which the hearsay exception created by § 90.803(3)(a), Fla. Stat. (1981) does not apply. Kennedy v. State, 385 So.2d 1020 (Fla. 5th DCA 1980); Van Zant v. State, 372 So.2d 502 (Fla. 1st DCA 1979).

The state’s evidence was almost wholly circumstantial, but at least marginally sufficient to go to the jury. Thus, while we find no error in denying appellant’s motion for judgment of acquittal and motion for new trial, nor an abuse of discretion in permitting the introduction of certain photographs of the deceased, we conclude that the improperly admitted hearsay statements of the deceased victim, which statements tended to establish a motive for appellant to have committed the homicide, cannot be deemed harmless error under the circumstances of this case. Consequently, the judgment and sentence are severally reversed and this cause remanded with instructions that appellant be granted a new trial.

REVERSED and REMANDED.

THOMPSON and WIGGINTON, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: SHARP, Judge.

text:
    Florence A. WEEKS, Appellant, v. Barbara Jo RANSON and General Accident Fire and Life Assurance Company, Appellees.
    No. 81-232.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1982.

      Leslie King O’Neal, of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P.A., Orlando, for appellant.
    J. Scott Kirk, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Orlando, for appellees.
   SHARP, Judge.

Weeks appeals from a final judgment after a jury trial in which the jury found no negligence or liability on the part of Ran-son, the defendant below. Weeks argues that an instruction given by the court based on sections 316.122 and 316.075(l)(b), Florida Statutes (1981), was contradictory and confusing. She also argues that the court erred in not giving an instruction based on Dade County Metropolitan Transit Authority v. Even, 262 So.2d 685 (Fla. 3d DCA 1972). We affirm the final judgment because we find no error in the court’s instructions.

The testimony at trial given by Weeks was that she had stopped at the intersection of State Road 436 and University Boulevard in Winter Park, Florida, heading south on 436. It is a divided four-lane highway which is heavily travelled. At that intersection there are left-turn lanes for both pairs of lanes, and a complex traffic light control system. A traffic engineer testified that if cars are in the south-bound left-turn lane when the light is red, as Weeks testified she was, the left-turn green arrow will stay on seven seconds, followed by three seconds of yellow before the lights for the north-bound lane will turn to green.

Weeks testified she began her turn with the green arrow, pulled out to the left-turn lane for the north-bound lanes, but was forced to stop because a north-bound white station wagon almost hit her. She continued her turn, but stopped again just before the defendant, who was following the white station wagon, hit her. She testified she saw Ranson, but thought Ranson saw her and would stop.

Ranson testified she and the white station wagon had the green light. She saw Weeks creeping out in front of them. The station wagon swerved to miss her. Ranson thought Weeks had stopped, but just as her car entered the intersection, Weeks moved out in front of her.

The instructions, based on the statutes, appear to be a fair statement of the law. Section 316.122, Florida Statutes (1981), provides:

The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

Section 316.075(l)(b), Florida Statutes (1981), provides:

Vehicular traffic facing a green arrow signal, shown alone or in combination with another indication, as directed by the manual, may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.

The testimony at trial established that Weeks was hit while trying to complete her turn against a green light for on-coming traffic. She testified she began her turn with the green arrow, but pulled beyond it so she could not see it when the accident happened. Ranson testified her light was green. Therefore, under these facts, the two statutes are the same. A vehicle turning left shall yield to on-coming traffic close enough to constitute a hazard (section 316.122) and it shall yield to oncoming traffic entering with the green light (section 316.075(l)(b)) even if the turn was begun with a green arrow.

At best, left-turning vehicles moving with a green arrow must exercise caution and good judgment § 316.075(l)(b), Fla. Stat. (1981). Green arrows are no insurers of a turning vehicle’s safety. A driver cannot pull out into the path of an on-coming car when he or she could have avoided the accident by not making the turn. Homburg v. Knipmeyer, 388 So.2d 602 (Fla. 4th DCA 1980); U. S. Fire Insurance Company v. Progressive Casualty Insurance Co., 362 So.2d 414 (Fla. 2d DCA 1978). In any event, there was no evidence Weeks had a green arrow and Ranson a red light at the time of the accident.

Weeks argues the court should have instructed the jury that:

When a vehicle enters an intersection with a favorable traffic signal, it has the right of way even if the signal subsequently changes before the vehicle leaves the intersection.

This instruction is based on Dade County Metropolitan Transit Authority v. Even, 262 So.2d 685 (Fla. 3d DCA 1972), which we believe is distinguishable from this case. In Dade County, a bus had pulled into the middle of an intersection and was stranded there when the light changed. A vehicle pulled into the intersection, hitting the bus before it had a chance to move forward or backwards. However, in this case, Weeks created her own peril. She failed to complete her turn with the green arrow, and after having lost it, she pulled forward in the face of on-coming traffic. Weeks could have remained in the safety of the left-turn lanes. Had she been hit there, the Dade County instruction might have been appropriate. However, she testified she pulled out, expecting the on-coming traffic to stop for her.

It defies common sense to argue that, because a driver begins a left turn with a green arrow, he has the right thereafter to force his way across two or three lanes of traffic. Such a rule of law would put “right” on the side of the movers and pushers rather than the stoppers and lookers, and it would make driving through crowded intersections more hazardous than it is now.

The judgment below is

AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . Crosby v. Stubblebine, 142 So.2d 358 (Fla. 2d DCA 1962).

      . See Sirmons v. Pittman, 138 So.2d 765 (Fla. 1st DCA 1962).


author: ORFINGER, Chief Judge.

text:
    Estella BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1123.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1982.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Chief Judge.

In an Anders brief, the appellant asks us to determine if the trial court erred in accepting a plea of guilty to a charge of battery on a law enforcement officer.

The appeal is dismissed because no appeal lies from a plea of guilty except in very limited circumstances. Fla.R.App.P. 9.140(b), Robinson v. State, 373 So.2d 898 (Fla.1979). Any question of the voluntary and intelligent character of the plea should first be presented to the trial court in a motion to withdraw the plea. Graff v. State, 389 So.2d 333 (Fla. 5th DCA 1980); Fick v. State, 388 So.2d 1352 (Fla. 5th DCA 1980); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

The appeal is dismissed without prejudice to the right of appellant to seek collateral relief in the trial court. The motion of the public defender to withdraw is granted.

Appeal DISMISSED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: FRANK D. UPCHURCH, Judge. SHARP, Judge,

text:
    The COLONIES CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, Petitioner, v. CLAIRVIEW HOLDINGS, INC., a Florida corporation, Clairview Holdings, a Florida general partnership, and Jack L. Butcher, Respondents.
    No. 82-81.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1982.

      Michael J. Jahn, of Peirsol, Boroughs, Grimm & Bennett, Professional Ass’n, Orlando, for petitioner.
    Thomas F. Lang of Swann & Haddock, P.A., Orlando, for respondents.
   FRANK D. UPCHURCH, Judge.

Petitioner, the Condominium Association, seeks a writ of certiorari to quash a protective order. The order provided “that without further order of this court, [respondents] do not have to produce ... any records or documents relating to that period of time subsequent to the ‘turn-over’ of the Condominium Association.... ”

Petitioner filed suit against respondents (the developer and former director of the Association) for fraudulent misrepresentations and various breaches of fiduciary duties. The complaint was in seven counts, two of which specifically demanded an accounting. The documents sought are financial records related directly to the accounting counts.

Generally, a party must show that he is entitled, at least preliminarily, to the accounting before he is entitled to discovery of financial records. Charles Sales Corp. v. Bovenger, 88 So.2d 551 (Fla.1956); Bartolucci v. Bartolucci, 399 So.2d 448 (Fla. 5th DCA 1981); Giammaresi v. Parker, 326 So.2d 243 (Fla. 4th DCA 1976).

Here, the records denied by the court can have relevance only to the accounting and not to petitioner’s right to an accounting. In these circumstances, the court’s refusal to order discovery was not a departure from the essential requirements of law and we therefore DENY the petition for writ of certiorari.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I would issue a Writ of Certiorari and quash the trial court’s protective order for the reasons discussed below.

Petitioner, the Condominium Association, sued the developer and former director of the Association for fraudulent misrepresentation and various breaches of fiduciary duties. During the course of discovery petitioner served a request to product certain financial documents. The respondents complied and the documents were in fact inspected by the petitioner. Because photocopying services were not available where the deposition was taken, petitioner marked the items that it desired to have copied, and counsel for respondents agreed to provide petitioner with copies. A month later respondents refused to furnish the copies. When petitioner sought to compel production the respondents obtained a protective order barring the discovery. The order sought to be reviewed holds that the respondents do not have to produce any of their financial records relating to that period of time subsequent to the turnover of the Condominium Association to petitioner.

The discovery in this case is not a “fishing expedition.” Petitioner requested that the respondents produce financial documents only for the year preceding and the year following the takeover of the Association by petitioner. Those documents were in fact produced and inspected. Having actually seen the documents, petitioner determined that certain items were relevant to this cause of action.

The cause of action in this case requires proof of fraudulent misrepresentations and breach of fiduciary duties. This is not an easy task at best. The scope of discovery should be more generous, not less, than usual. Here respondent does not claim privilege or undue hardship. Its sole reason for limiting discovery is that the year after the transfer is not relevant as a matter of law. Fla.R.Civ.P. 1.280(e) (1982). However, records relating to transactions after the transfer could well lead to discovery of misappropriations of assets wrongfully retained or disposed of by the fiduciary, which is the proper scope of discovery under Florida Rule of Civil Procedure 1.280(b) (1982). In so restricting the scope of discovery, the trial court clearly erred.

Denying petitioner the opportunity to prove its case by comparing pre-turnover and post-turnover financial documents could make proof of petitioner’s cause of action difficult if not impossible. Appeal is not a realistic remedy under these circumstances because a petitioner can rarely show that this error caused it to lose its suit. See Travelers Indemnity Company v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980). In most cases, a plaintiff has no idea what it might have learned, had inquiry been allowed pursuant to the Rules. Here petitioner has seen the document it needs to prove its case, and will not now obtain them. Barring discovery in this case (in my judgment) constitutes a departure from the essential requirements of law. Young, Stern & Tannenbaum, P.A. v. Smith, 416 So.2d 4 (Fla. 3d DCA 1982); Colonial Penn Insurance Company v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980); Springer v. Greer, 341 So.2d 212 (Fla. 4th DCA 1976); Reynolds v. Hofmann, 305 So.2d 294 (Fla. 3d DCA 1974); Brennan v. Board of Public Instruction, 244 So.2d 463 (Fla. 4th DCA 1971); Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964).

The majority opinion misses the point in this case. Petitioner alleged that respondent failed to account for assets and did not turn over the documents and funds required by section 718.301, Florida Statutes (1981). Proof that a year after the turnover respondent had these assets in its possession would be highly relevant and persuasive. Section 718.301(4), Florida Statutes (1981), provides a list of items that a developer who is relinquishing control of the association must deliver to the association, if applicable, including “[t]he financial records, including financial statements of the association, and source documents since the date of incorporation of the association through the date of turnover.” § 718.301(4)(c), Fla. Stat. (1981). The language of the statute, however, clearly states that the list is not exclusive. Accordingly, petitioner was entitled to an accounting, based on the record in this case. The existence of the respondent’s prior fiduciary relationship vis-a-vis petitioner was not disputed or controverted by respondents.

      . Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903); see Adams v. Royal Exchange Assur., 62 So.2d 591 (Fla.1953).

      . When the documents were originally produced, respondent failed to file any objections to the discovery, although it now claims it would violate respondent’s privacy and be inflammatory. In any event, these objections came too late. See Insurance Co. of N. Am. v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981).


text:
    Bruce Allen DAVIDSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2299.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1982.
    Jerry Hill, Public Defender, and Bryan E. Hopkins, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   CLARKE, THOMAS L., Jr., Associate Judge.

After pleading guilty to uttering a forged instrument, Bruce A. Davidson was placed on probation for three years. As a condition of probation the court ordered him to successfully complete the Teen Challenge Program. After being enrolled in the program for several months, Davidson was suspended for thirty days for leaving the premises where the program was located. After his suspension ended he returned, and the program supervisor asked him whether he wanted to be there or not. Davidson advised that he did not want to be there, whereupon on October 2, 1981, the program supervisor, with the approval of Davidson’s probation officer, told him to go home. A travel permit was issued by the probation officer permitting Davidson to go to Georgia to live with his parents. He thereafter obtained employment and maintained contact with his probation officer as required. Upon making a required call to his probation officer on October 16, 1981, Davidson was advised that the sentencing judge had directed that a violation of probation charge be filed due to Davidson’s failure to successfully complete the Teen Challenge Program. A warrant charging the violation was executed on October 26, 1981, and a hearing followed on November 2, 1981. At the hearing it was clearly established that Davidson had not completed the program; however, Davidson himself offered the only direct testimony concerning his termination. The trial judge found Davidson guilty of violating the condition of his probation regarding the Teen Challenge Program, revoked his probation, and sentenced him (pursuant to the Youthful Offender Act) to four years in prison followed by one year on probation.

Davidson contends that since his termination was with the consent and approval of the program supervisor and his probation officer, it did not constitute a violation of probation. He notes that he continued to comply with the other conditions of his probation (reporting, restitution, etc.). The record reflects that it was on October 16, 1981, when Davidson first realized that his termination of the program might result in a violation of probation charge.

The violation triggering a revocation of probation must be willful and substantial. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978). Before one’s probation may be revoked for failure to continue a program which is a condition thereof, the probationer must be in some way responsible for his failure. Curry v. State, 379 So.2d 140 (Fla. 4th DCA 1980). While it could arguably be said that Davidson was responsible for his failure to complete the program by advising the supervisor that he did not want to be there, it must be recognized that a probationer’s desires may often be inconsistent with his willingness to comply with a condition of his probation. Davidson testified at the hearing on November 2, 1981, that he honestly did not want to be in the program; he preferred being at home, employed, and restructuring his life. That may have also been his desire before he entered the program, but he entered it anyway. He appeared to be available and willing to continue the program when asked about his desire. After expressing his desire he was released. It appears reasonable for Davidson to have assumed that being given an opportunity to express his desire and being provided with a permit to go home and there being no suggestion he was jeopardizing his probation, that he left the program with the approval of those in authority. There was no testimony reflecting a willful intention by Davidson to contravene the conditions of his probation. Such must be shown before a revocation is in order.

The decision of the trial court revoking Davidson’s probation is reversed, and the cause is remanded for reinstatement of the order placing him on probation.

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


author: ANSTEAD, Judge.

text:
    SOUTHERN ATLANTIC CONSTRUCTION CORPORATION, Appellant, v. FIRST CORPORATION OF DESOTO COUNTY, a Florida corporation, et al., Appellees.
    No. 82-600.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.

      Charles A. Goff of Casoria, Goff & Friedman, P. A., Fort Lauderdale, for appellant.
    Julian Clarkson of Holland & Knight, Tampa, for appellees, First Corp. of DeSoto County.
   OPINION ON REHEARING

ANSTEAD, Judge.

The court previously granted a motion to dismiss this appeal which alleged that the appeal was untimely because its timeliness was predicated on an untimely served motion for rehearing in the trial court. Florida Rule of Civil Procedure 1.530(b) provides that a motion for rehearing shall be served not later than ten days after entry of judgment in a non-jury action. The final summary judgment to which appellant’s motion for rehearing was directed was signed and filed on December 7, 1981. It is undisputed that appellant filed his motion for rehearing in the trial court on December 17, 1981, and served it on appellee on December 18. Initially, it appeared that the motion was untimely and that dismissal was justified under the holding of Behm v. Division of Administration, 288 So.2d 476, 478 (Fla.1974), citing Miami Transit Company v. Ford, 155 So.2d 360, 372 (Fla.1963), that service of the motion is the critical act which must be done within a specific time.

However, in Casto v. Casto, 404 So.2d 1046 (Fla.1981), reversing the opinion of this court at 388 So.2d 1 (Fla. 4th DCA 1980), the Supreme Court interpreted “entry of judgment” under Florida Rule of Civil Procedure 1.530(b) as occurring with the recording of the judgment. Although signed and filed on December 7, 1981, it appears that the judgment in this case was not recorded until December 9, making service of the motion for rehearing on December 18 timely. Accordingly, the appeal should not have been dismissed and should now be reinstated.

APPEAL REINSTATED.

BERANEK and HERSEY, JJ., concur.


text:
    David S. PARKER, as Administrator of the Estate of Ava Aycock Parker, Deceased, Appellant, v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, a national banking association, and Dorothy DeShong Aycock, as personal representative of the Estate of Thomas J. Aycock, Jr., Deceased, Thomas J. Aycock, III, Judy Aycock, Cherye Aycock, Jeremy Chamberlain, and Christopher Neale, Appellees.
    No. AE-406.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.
    Rehearing Denied Oct. 6, 1982.
    See also, Fla., 389 So.2d 1113, Fla.App., 386 So.2d 326.

      Michael J. Korn of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellant Parker.
    Paul P. Sanford of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee Florida First Nat. Bank of Jacksonville.
    Terrance E. Schmidt of Bledsoe & Schmidt, P. A., Jacksonville, for appel-lee/cross-appellant Dorothy DeShong Ay-cock.
    Edward A. Booth of Arnold, Stratford & Booth, P. A., Jacksonville, for appel-lee/cross-appellee Chamberlain.
    Bruce Brashear of Watson, Folds, Stead-ham, Sproull, Christmann & Brashear, Gainesville, for appellee/cross-appellee Neale.
   THOMPSON, Judge.

This is an appeal and a cross-appeal from a final judgment taxing costs and awarding attorney’s fees. We reverse in part.

Appellant is the administrator of his deceased wife’s estate. Appellant’s wife, Ava Aycock Parker, was the life income beneficiary of Aycock Trust # 2 (Trust # 2). Appellees Jeremy Chamberlain and Christopher Neale were the remaindermen beneficiaries of Trust # 2. Thomas J. Aycock, Jr. was the life income beneficiary of Ay-cock Trust # 1 (Trust # 1). Thomas J. Aycock, III, Judy Aycock, and Cherye Ay-cock were the remaindermen beneficiaries of Trust # 1. Prior to their deaths, Ava and Thomas, Jr. were co-trustees with the Florida First National Bank of Jacksonville (the Bank) of the trusts. The Bank became the sole trustee of Trust # 1 upon Thomas, Jr.’s death and the sole trustee of Trust # 2 upon Ava’s death. Following Ava’s death, appellant, individually and as administrator of Ava’s estate, filed a complaint seeking an accounting of Trusts # 1 and # 2, removal of the Bank as trustee, damages in excess of $1,000,000, and invalidation of the trusts. The lower court dismissed appellant individually and dismissed with prejudice all of the counts, except those for an accounting and for damages, which were dismissed with leave to amend. Appellant, as administrator of Ava’s estate, subsequently filed an amended complaint. Eventually only the count requesting an accounting remained. A final judgment was subsequently entered in favor of the Bank and Dorothy DeShong Aycock, the personal representative of the estate of Thomas J. Aycock, Jr., deceased, and against appellant. This judgment, which also reserved jurisdiction to assess fees and costs, was affirmed by this court. Parker v. Florida First National Bank, 386 So.2d 326 (Fla. 1st DCA), pet. for rev. dism., 389 So.2d 1113 (Fla.1980). The Bank and Dorothy DeShong Aycock filed a motion to tax costs and a motion for attorney’s fees. The re-maindermen beneficiaries of Trust # 1 were allowed to intervene for the purpose of determining costs and attorney’s fees. Jeremy Chamberlain, one of the remainder-men beneficiaries of Trust # 2, filed a memorandum below as an additional party, opposing an award of fees and costs against Trust # 2. After a hearing on these motions, the lower court entered a final judgment awarding costs and attorney’s fees. The trial court found that appellant, individually and as administrator of Ava’s estate, and Trusts # 1 and # 2 were jointly and severally liable for the payment of the attorney’s fees in the amount of $67,500. The trial court further established the order of liability of the parties, as among themselves for the attorney’s fees as follows: (I) appellant as administrator of Ava’s estate; (II) appellant individually; and (III) Trusts # 1 and # 2. Appellant alleges that the trial court erred in assessing attorney’s fees against him individually and erred in establishing a priority against whom the judgment is to be assessed. The personal representative of Thomas J. Aycock, Jr.’s estate and the remaindermen beneficiaries of Trust # 1 cross-appeal, alleging that the trial court erred in assessing attorney’s fees against Trust # 1. We reverse as to the issues raised by appellant and affirm as to the issue raised by the cross-appellants.

The award of attorney’s fees is in derogation of the common law and is generally only allowed in Florida when provided by statute or by contract. Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973). Although the Bank may be entitled to reimbursement for attorney’s fees which were incurred in defending the trust property, see generally Ball v. Mills, 376 So.2d 1174 (Fla. 1st DCA 1979), cert. den. 388 So.2d 1116 (Fla.1980), there is no basis herein for assessing attorney’s fees against appellant individually. Appellees Dorothy DeShong Aycock, as personal representative of the Estate of Thomas J. Aycock, Jr., deceased, and the remaindermen beneficiaries of Trust # 1, have cited cases from foreign jurisdictions which indicate that attorney’s fees may be assessed against a personal representative, individually, where the representative brings an action in bad faith or when the action is groundless. See Bernstein v. Brenner, 320 F.Supp. 1080 (D.D.C.1970); In re Butler, 20 F.Supp. 995 (W.D.Va.1937). We are not bound by the holdings in those cases, but even they would not support an award of attorney’s fees against appellant individually in the instant case since the action was not brought in bad faith. Although the trial court found that the appellant acted in bad faith, this finding is not supported by the record. In addition, during oral arguments, the Bank admitted that the litigation served a useful purpose. See also Johnson v. Taylor, 116 So.2d 480 (Fla. 3d DCA 1959). Accordingly, the trial court erred in holding appellant individually liable for attorney’s fees. We therefore reverse that portion of the order imposing personal liability on appellant for attorney’s fees.

Furthermore, the trial court erred in establishing an order of liability, among the parties themselves, for the attorney’s fees. The parties have not cited us to any authority allowing such an order of liability in the specific context of the instant case and we have not found any authority in support thereof. Accordingly, that portion of the trial court’s order establishing an order of liability, among the parties themselves, for the attorney’s fees, is reversed.

We find no error in that portion of the order finding Trust # 1 liable for the attorney’s fees since it appears that Trust # 1 benefited from the litigation. See generally Johnson v. Taylor, 116 So.2d 480 (Fla. 3d DCA 1959).

In conclusion, we reverse those portions of the order finding appellant individually liable for attorney’s fees and establishing an order of liability, among the parties themselves, for the attorney’s fees. We affirm the assessment of costs against Trust # 1.

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


author: PER CURIAM

text:
    STATE WIDE COLLECTION CORP., Appellant, v. Larry Lee CULLER and Valerie A. Culler, his wife, Appellees.
    No. AI-276.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.

      Leo 0. Myers, Jacksonville, for appellant,
    No appearance for appellees.
   PER CURIAM

AFFIRMED. Hutchinson Shoe Co. v. Turner, 100 Fla. 1120, 130 So. 623 (1930).

ROBERT P. SMITH, Jr., C. J., and SHIVERS and THOMPSON, JJ., concur. ‘


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

text:
    STAFFORD ELECTRIC CO. and State Automobile Mutual Insurance Co., Appellants, v. Darwin J. FEDDER, Appellee.
    No. AI-443.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.
    John R. Gierach of Gierach & Ewald, P. A., Orlando, for appellants.
    j Michael Matthews, Altamonte Springs, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

We affirm the deputy’s order finding that Fedder’s injury on April 14, 1981, is compensable and that he is entitled to temporary total disability benefits payable “at the appropriate compensation rate.”

The carrier contends that, despite the pre-hearing stipulation outlining several issues ripe for determination, counsel stipulated orally before the deputy that only compensability would be determined at the hearing here reviewed. There was indeed some conversation to that effect before the deputy, but claimant’s counsel went beyond any self-imposed restriction, inquiring of witnesses without objection into claimant’s medical care and his recent work history. The deputy’s order for payment of temporary total disability benefits, in an amount to be determined by the parties independently or by the deputy in a later hearing, was responsive to that evidence.

Were we now to sustain the carrier’s view that the hearing was limited to the compensability issue, we should now be obliged, after reviewing the evidence on that issue, to dismiss the appeal as interlocutory. We decline to waste the judicial labor already invested in reviewing the carrier’s appeal, by taking a restricted view of the hearing which the carrier did not protect during the hearing and did not attempt to enforce, through application to the deputy for correction of a claimed oversight, after the order was entered. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); Genuine Parts Co. v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981). Nor has the carrier alleged on appeal any prejudice as a result of the deputy’s actions.

AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Arthur FULMER-ORLANDO and Kent Insurance Co., Appellants, v. Ernest L. TAYLOR, Appellee.
    No. AJ-75.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.
    Bruce R. Raster, of McClellan, Raster & Vostrejs, Ocala, for appellants.
    J\ W. Chalkley, III, Ocala, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order awarding temporary total disability benefits from October 1980 to May 1981, based on a hearing completed in December 1981. We affirm.

In July 1980 claimant sustained an industrial accident resulting in a low back injury when he fell while carrying heavy upholstery material. Claimant’s treating physician determined that he was temporarily totally disabled, and benefits were paid until October 1980. Claimant did not attain maximum medical improvement until May 1981, following hospitalization for myelog-raphy in March 1981. Employer/carrier contend that work search deficiencies preclude the award of temporary total disability benefits between October 1980 and May 1981.

Claimant’s treating physician testified that, while he had concluded that claimant could not return to the employment in which the injury occurred, he had “probably encouraged” claimant to find light work in October. Although claimant’s employment history was varied and the circumstances would ordinarily dictate diligent attempts at other work if he had been so advised, neither the doctor’s office notes nor any other part of the record to which we are referred indicates that claimant was released or informed that he could return to work until May of 1981. The equivocal nature of the doctor’s quoted testimony does not, in the context of this record, require that the deputy find otherwise. Even assuming direct retrospective testimony that claimant was able to undertake some light employment as early as October of 1980, a reversal of benefits here cannot logically rest on his failure to seek work in the absence of any evidence that he knew or should have known that he was released for that purpose.

In addition, claimant described his condition during this period as one of constant severe pain in his low back and buttocks, with numbness in his lower legs. Claimant further testified without medical contradiction that he could not walk any considerable distance without pain,, could not sit for prolonged periods, was not able to lift, to bend repetitively, and was generally unable to function normally. Refusing to accept this as a permanent condition, claimant underwent a myelogram in March of 1981. Although the record supports the determination of MMI on May 13, 1981, the date to which temporary benefits were awarded, we note the fact of continued medical care including strongly recommended psychiatric evaluation.

Employer/carrier also challenge the sufficiency of the evidence to support the deputy’s finding of a permanent impairment. However, the order states that the issue of wage loss was not presented and awards no permanent compensation benefits. The order on this point is therefore not subject to review in this appeal of the award of temporary disability compensation. The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982).

Affirmed.

BOOTH and WIGGINTON, JJ„ concur.


text:
    Carlos R. POWELL and Averil Powell, Appellants, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-447.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.
    Carlos R. Powell and Averil Powell, pro so, appellants.
    John C. Courtney, Asst. General Counsel, Tallahassee, for appellee.
   PER CURIAM.

The caption of the case is amended to read as above. The action of the lower court is affirmed.

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