author: MILLS, Judge. WENTWORTH, Judge,

text:
    Johnnie Robert WIGGINS, Appellant, v. Betty Pauline WIGGINS, n/k/a Betty Pauline Millsaps, Appellee.
    No. AE-464.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Rehearing Denied April 5, 1982.

      William N. DeCarlis, Gainesville, for appellant.
    H. Randolph Fallin, Jacksonville, for ap-pellee.
   MILLS, Judge.

The husband seeks review of an order granting custody of the parties’ minor child, now six years of age, to the wife. We reverse because the trial court abused its discretion in entering the order.

The facts in this case are not disputed. The parties were married in 1974, gave birth to a daughter in 1975, and dissolved the marriage in 1978. In dissolving the marriage, the parties executed a child custody agreement whereby it was stipulated that the wife would have custody of the daughter. During 1979, several motions for change of custody/modification of final judgment/other relief were filed, and the husband was at times granted temporary custody of the child. The husband’s various motions were predicated upon the allegation that the wife was sharing a bedroom with the child while cohabiting with a married man. The wife initially admitted these allegations, then subsequently testified that she had ceased such living arrangements. It was later revealed that the wife had not ceased such living arrangements, and had moved with her cohabiting partner and with the child to Tennessee. Evidence was also presented indicating that police had been called in to calm a domestic disturbance between the wife and her cohabiting partner. The husband subsequently obtained a temporary custody order which he was unable to enforce in Tennessee. A hearing on permanent custody, which the wife declined to attend, was thereafter held in Florida and the husband was granted permanent custody of the child. In January of 1980, the husband traveled to Tennessee and physically obtained actual custody of the child, thereafter returning to Florida.

The wife was subsequently married to her cohabiting partner and, in November of 1980, filed a motion for change of permanent custody. The wife presented testimony that she and her new husband now have a very good relationship, are no longer drinking and have become Christians and begun attending church. The wife also testified that she was not working and did not intend working in order that she might devote full time care to the child, if awarded custody. The wife’s new husband is currently unemployed and employment in the future is not foreseeable due to a disability. A hearing was held and the trial judge ruled that the former circumstances which warranted a change of custody from the wife to the husband had now changed and ceased to exist, in that the wife was now married and in a stable relationship. The judge also expressly noted that “this is a child of tender years,” and awarded a change in permanent custody from the child’s father to her mother, although finding the father to be a fit and good parent.

The evidence adduced by the wife does not support the change of the child’s custody. It is undisputed that the father was a fit and proper parent. It is undisputed that the wife falsely testified at a recent custody hearing; that the wife’s recent lifestyle was one which would not be condoned by Christian or moral persons; that the wife failed to demonstrate how she would provide the child with necessities; and that custody has been changed numerous times during the past several years. Although the wife adduced testimony of herself and her father that she and her present husband had stopped “drinking,” that they were now married, that they had become Christians, and that they now attend church, this is the usual evidence adduced by persons seeking custody of a child or persons convicted of a crime_

Modern society seems to adore a sinner or criminal who claims to be a “born-again Christian,” thus rehabilitated, but ignores the lifetime Christian or law abiding citizen. Although I have a burning desire to discuss this further, suffice it to say that the “born-again Christian” is to be commended, but in child custody cases, a period of time sufficient to test the newly-born Christian should expire before changing custody from an undisputedly fit and proper parent.

Stability is necessary to the proper rearing of a child, to this child. There has been a failure of stability, however, because this child has bounced back and forth between her parents. This should stop somewhere and the time and place is now and here. Custody should remain with the husband whose fatherly credentials have not been questioned or tarnished.

To justify modification, the trial court must find a substantial change in circumstances and detriment to the child if custody is not changed. Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976). Neither evidence nor findings are present in this case to support the order appealed.

In our judgment, the welfare and best interests of this child have been ignored. This is contrary to the law.

Section 61.13(2) provides that “the father of the child shall be given the same consideration as the mother in determining custody.” This language is clear and unambiguous. The intent of the legislature is clear. The trial court in this case failed to give the same consideration to the father as it gave to the mother. It abused its discretion when it held a six-year-old child, because of her age, must be awarded to the mother. In doing this, it failed to comply with Section 61.13(2); it legislated; it failed to exercise judicial restraint.

Reversed and remanded with instructions to vacate the order appealed and to enter an order denying the wife’s motion for change of permanent custody.

THOMPSON, J., concurs,

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully dissent.

Appellee was originally awarded custody of the two-year old child in 1978, in accordance with a settlement agreement executed by the parties and adopted by the lower court in a dissolution decree. Due to subsequent changes in appellee’s moral and emotional lifestyle, custody was thereafter transferred to appellant. However, appel-lee has now presented evidence that she has ceased the conduct which the lower court found offensive, and custody of the minor child (now six-years old) has been returned to the appellee by the order presently on appeal. Since the trial court’s findings and conclusions regarding the welfare of the child are supported by a competent eviden-tiary predicate, I would affirm the order appealed. See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).

Although the present case does not involve any allegation or showing that appellant is an unfit custodian of the child, I would conclude that such a showing is not essential in the circumstances of this case. While Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA 1964), suggests that such a showing may sometimes be necessary to obtain a change of custody, Ritsi is factually dissimilar from the present case, as Ritsi involved only an allegation of the non-custodial parent’s financial superiority. I also note that the order on appeal in the present case furthers stability and permanence in the child’s, environment, in that since the dissolution of the parties’ marriage the child has primarily resided with and remained in the custody of appellee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R. P. HEWITT & ASSOCIATES, Petitioner, v. The Honorable Charles C. HURT, Deputy Commissioner, State of Florida, Department of Labor and Employment Security, Division of Workers’ Compensation, District “F”, Respondent.
    No. AI-431.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Robert C. Barrett, of Cooper & Rissman, P. A., Orlando, for petitioner.
    Charles C. Hurt, pro se.
   PER CURIAM.

Petitioner seeks issuance of a writ of prohibition to prevent respondent from taking further action in a workers compensation claim pending before him.

Pursuant to Florida Rule of Civil Procedure 1.432 and Section 38.10, Florida Statutes (1981), petitioner filed a verified motion to disqualify the deputy commissioner, supported by two affidavits and accompanied by a certificate of counsel. The motion was denied because the movant and affiants were not at the hearing on the motion, which violated a “court rule” established by the deputy.

A party seeking to disqualify a deputy commissioner must comply with the requirements imposed by rule and statute. See Miller & Barton Co. v. Lankford, IRC Order 2-2972 (1976). If the party complies with those requirements and if the documents submitted by the party are legally sufficient, the deputy must disqualify himself. Additional requirements cannot be imposed by “court rule”.

In the instant case, the deputy based the denial of the motion to disqualify solely on the failure of petitioner to comply with the “court rule”. However, in his response to the petition, the deputy did not limit his argument to the propriety of his “court rule” or to the legal sufficiency of the documents. Throughout his response he points out that the facts alleged in the motion and affidavit are not true and that the movant and affiants could not possibly have personal knowledge of the facts. Although the deputy made these statements in conjunction with stating that he had not passed on the truth or falsity of the alleged facts, by his comments he has “. .. attempted to refute the charges of partiality”, and therefore must be disqualified on that basis alone. Bundy v. Rudd, 366 So.2d 440 (Fla.1978).

The petition for writ of prohibition is granted although we assume that formal issuance of the writ will be unnecessary. Respondent shall take no further action in the case styled Katrina Kirkland v. Florida United Presbyterian Home and R. P. Hewitt & Associates, Claim No. [ XXX-XX-XXXX ]. The Chief Commissioner shall assign the claim to another deputy commissioner.

It is so ordered.

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: WENTWORTH, Judge. THOMPSON, Judge,

text:
    Tilus CHRISTOPHER, Appellant, v. DOBBS HOUSES, INC., Appellee.
    No. AB-339.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Rehearing Denied April 7, 1982.
    L. Barry Keyfetz, of Keyfetz & Poses, Miami, for appellant.
    H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellee.
   WENTWORTH, Judge.

Claimant seeks review of a workers’ compensation order which we affirm except as to the denial of a witness fee and the further denial of “all claims .. . which could have been made.... ”

The deputy refused to award as costs a fee for the testimony of claimant’s doctor, reasoning that such a fee was unwarranted “since his testimony was submitted in support of claim for his bill which was denied.” However, claimant did secure an award of temporary disability benefits, and while the doctor’s testimony was propounded primarily in connection with the claim for payment of his medical bill the doctor did also testify regarding claimant’s disability, the course of treatment furnished, and the causal etiology of claimant’s condition. Such testimony was relevant to employer/carrier’s general denial of the claim for temporary benefits. Since claimant prevailed on this issue, and the doctor’s testimony was relevant thereto, a witness fee should have been awarded as costs pursuant to §§ 440.34(2) and 440.31, Florida Statutes, even though the deputy may not have relied on the witness’s testimony. See Stich v. Independent Life & Accident Insurance Co., 139 So.2d 398 (Fla.1962).

Claimant initially presented a claim for wage-loss benefits pursuant to § 440.-15(3)(b). During the course of the hearing the deputy expressly allowed claimant to withdraw this claim “without prejudice.” In these circumstances the deputy may not preclude the resubmission of such a claim by denying “all claims . .. which could have been made. ... ”

The order appealed is affirmed in part and reversed in part, and the cause is remanded. •

MILLS, J., concurs.

THOMPSON, J., dissents and concurs with opinion.

THOMPSON, Judge,

dissenting in part and concurring in part.

I would affirm the deputy commissioner’s denial of a witness fee to Dr. Turke.

The testimony of Dr. Turke neither could nor did affect the issue of whether the claimant was entitled to additional temporary total disability (TTD) benefits. At or before the initial hearing held December 23, 1980, the parties stipulated that the claimant reached maximum medical improvement (MMI) on December 24, 1979. Therefore, when Dr. Turke testified at the second hearing on February 3, 1981, the issues as to the MMI date and the period for which TTD benefits were due had already been resolved by agreement of the parties.

Even if the parties had not previously resolved this issue by stipulation, there is substantial competent evidence to support the deputy’s finding that Dr. Turke’s testimony related solely to the proof of his bill, which bill had been denied as unauthorized. There were 11 pages of testimony by Dr. Turke and the testimony on only one of these pages could conceivably relate to the claimant’s disability. Dr. Turke was asked: What kind of treatment had he furnished the claimant? Was the treatment related to the accident the claimant sustained? Did he actively treat the claimant from September 24 through September 28? Did he recommend that the claimant refrain from working during the period he treated the claimant? The doctor testified that his treatment consisted primarily of physiotherapy to the claimant’s ankle and back. He answered “yes” to the remaining leading questions although his bill reflects that he treated the claimant through December 28, not September 28. Before a doctor is entitled to recover a bill for his services rendered to a claimant, the evidence must show: (1) that he treated the claimant for injuries received as a result of the industrial accident; (2) the period of time during which he treated claimant; and (3) that the curative treatment was given prior to MMI. The questions propounded to the doctor related solely to matters necessary to prove entitlement to payment of his bill. Dr. Turke was not asked if he had an opinion as to when the claimant reached MMI, whether the claimant sustained any permanent partial disability or any other questions relating to any issues pending before the deputy commissioner.


text:
    William R. WILLIAMSON, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. AI-400.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    William R. Williamson, pro se.

      General Counsel, Dept, of Corrections, for appellee.
   PER CURIAM.

The petition for writ of mandamus has been treated as an appeal of final agency action. The decision of the Secretary’s representative is affirmed. See Knuck v. Department of Corrections, 409 So.2d 1224 (Fla. 1st DCA 1982).

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Steve Gregory BAILEY and Gale Twain Perry, Appellants, v. STATE of Florida, Appellee.
    No. 80-1420.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    Rehearing Denied April 7, 1982.
    R. Jerry Randolph, Jr., and Robert J. Randolph, Stuart, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Lawson, 394 So.2d 1139 (Fla. 4th DCA 1981), and State v. Oliver, 368 So.2d 1331 (Fla.3d DCA 1979).

AFFIRMED.

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


author: McCORD, Judge.

text:
    INSURANCE COMMISSIONER OF the STATE OF CALIFORNIA, as Domiciliary Liquidator of Imperial Insurance Company, Appellant, v. STATE of Florida, ex rel. the DEPARTMENT OF INSURANCE OF the STATE of Florida, Appellee.
    No. ZZ-162.
    District Court of Appeal of Florida, First District.
    March 11, 1982.

      Carl R. Pennington, Jr., and Russell D. Gautier of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellant.
    Charles J. Grimsley, Tallahassee, for ap-pellee Dept, of Ins.
    John M. McNatt, Jr., and J. Stephen O’Hara, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee Florida Ins. Guaranty Ass’n.
   McCORD, Judge.

This appeal is from a final order approving and directing payment of certain funds by The Florida Department of Insurance as ancillary receiver of Imperial Insurance Company to the Florida Insurance Guaranty Association. We affirm.

In 1975, appellant, Insurance Commissioner. of the State of California (hereafter referred to as domiciliary receiver) was appointed by the Superior Court of Los Ange-les County, California, as conservator of Imperial Insurance Company (hereafter referred to as Imperial) for rehabilitation purposes. Immediately following this appointment, the Florida Department of Insurance (hereafter referred to as ancillary receiver) was appointed by the court below as the ancillary receiver of Imperial and was directed to take possession of all property and assets of Imperial located in Florida. The court below further enjoined all persons from, among other things, maintaining or instituting any action against Imperial.

The ancillary receiver, pursuant to the lower court’s order, came into control of certain premium money located in Florida which had been previously paid by insureds to Imperial’s general agent in Florida. In an effort to obtain equitable treatment for all insureds and claimants, wherever located, and in an effort to foster the rehabilitation of Imperial, the domiciliary receiver and the ancillary receiver entered into an agreement whereby the ancillary receiver agreed to cause premium money to be remitted to the domiciliary receiver. We note that the agreement did not contain a time certain for the remittance. In return, the domiciliary receiver agreed that Florida policy holders, claimants and creditors would be treated equally with all other policy holders, claimants and creditors and that it would handle, defend and pay all proper Florida claims in the regular course of business without preference to anyone else. In addition, the agreement contained the following clause:

In the event the present conservatorship status of Imperial/Signal is changed either in California or in Florida to one involving liquidation of the company due to insolvency, this agreement will be automatically terminated and dissolved without the necessity of further action by either party hereto.

Both the court below and the California court approved this agreement, and the court below modified its order appointing ancillary receiver to permit Florida agents to remit premium money to the domiciliary receiver. Then, on instructions of the ancillary receiver, the managing general agent of Imperial for Florida, on March 19, 1976, issued and mailed to the domiciliary receiver a check in the amount of $1,322,934.67, which consisted of all premium funds held in Florida. Shortly thereafter, the domiciliary receiver advised the ancillary receiver that “there has been no progress in attempts to rehabilitate the companies,” that “[a]ll indications point to the companies being in worse condition than they [formerly] appeared to be,” and that it may be “eventually necessary to liquidate these companies.” The ancillary receiver, fearing that Imperial was headed for liquidation and that, if such occurred, Florida claims against Imperial under California statutes would be given unequal treatment with California claims, had payment stopped on the check.

It later developed that the ancillary receiver’s fears of liquidation, which had been engendered by the aforesaid letter from the domiciliary receiver, were justified. In January 1978 the receivers were appointed domiciliary and ancillary receivers of Imperial for purposes of liquidation.

This appeal arose from the domiciliary receiver’s opposition to ancillary receiver’s motion to the trial court for authority to use the aforesaid money over which it had control to reimburse the Florida Insurance Guaranty Association (hereinafter referred to as FIGA) for claims-handling expenses incurred during the ancillary liquidation proceedings.

FIGA is an organization created under Part II, Chapter 631, Florida Statutes, whose members consist of all persons, with some exceptions, who write insurance and are licensed to transact business in Florida. The purpose of Part II, Chapter 631, Florida Statutes, is in part to provide a mechanism for payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policy holders because of the insolvency of a member insurer. See § 631.51, Florida Statutes. FIGA was created in order to accomplish this purpose and to protect policy holders of solvent insurers from higher rates by providing for the payment of FIGA’s claims-handling expenses, on a priority basis, from the insolvent insurer’s Florida assets. §§ 631.271 and 631.397, Florida Statutes (1979).

The domiciliary receiver’s opposition to payment of FIGA’s claims-handling expense from the premium monies held in Florida is predicated upon its view that such payment will constitute preferential treatment of FIGA’s claim as opposed to other claims against Imperial. It appears that these funds are primarily, if not entirely, the funds covered by the aforesaid check upon which payment was stopped. The domiciliary receiver contends that these funds should have been sent to it pursuant to the foregoing agreement and that, therefore, they should not now be paid to FIGA on its claim but should be transmitted to the domiciliary receiver for disbursement by it according to the California statutes; that the trial court’s order authorizing payment of FIGA’s claims-handling expenses “condones and approves an intentional and willful breach” of the agreement. The agreement, however, was predicated upon a representation of the domiciliary receiver which was placed in one of the agreement’s “whereas” clauses as follows:

[T]he California Conservator [Domiciliary Receiver] has determined that liquidation of [Imperial] is not indicated and that the company has assets sufficient to be operated under a long-term conservator-ship. . . . (Emphasis supplied.)

Thus, it appears that the agreement was predicated on a mistake of fact which was indicated when, immediately after sending the remittance, the domiciliary receiver advised the ancillary receiver of the poor financial condition of Imperial and the possibility of liquidation and was confirmed when liquidation subsequently occurred. Therefore, the trial court was correct in directing that FIGA’s claims-handling expenses be reimbursed from Florida premium funds of Imperial which were mar-shalled by the Florida ancillary receiver pursuant to orders of the court. In Clark v. Williard, 294 U.S. 211, 55 S.Ct. 356, 79 L.Ed. 865 (1935), the Supreme Court said:

Every state has jurisdiction to determine for itself the liability of property within its territorial limits to seizure and sale under the process of its courts.... All that Montana does by the decree under review is to impose upon such ownership the lien of judgments and executions in conformity with local law. In this there is no denial to the statutes of Iowa or to its judicial proceedings of the faith and credit owing to them under the Constitution of the United States.
Choice is uncontrolled, as between one policy and the other, so far as the Constitution of the Nation has any voice upon the subject. Iowa may say that one who is a liquidator with title, appointed by her statutes, shall be so recognized in Montana with whatever rights and privileges accompany such recognition according to Montana law. For failure to give adherence to that principle, we reversed and remanded when the case was last before us. Iowa may not say, however, that a liquidator with title who goes into Montana may set at naught Montana law as to the distribution of Montana assets and carry over into another state the rule of distribution prescribed by the statutes of the domicile. (Emphasis supplied.)

Florida policy with regard to insolvent foreign corporations generally is stated in Southern Colonization Co. v. Parten, 83 Fla. 300, 91 So. 263 (1922), to the effect that creditors of an insolvent foreign corporation may seek protection for their claims through the appointment of an ancillary Florida receiver to marshall and distribute the corporation’s Florida assets under the Florida Insurance Code. Comity and equity with other states, however, is not overlooked. The Florida legislature adopted, as a part of the Florida Insurance Code, the Uniform Insurers Liquidation Act (UILA), which was designed to remedy problems associated with insolvencies of insurers operating in multiple states. One of these problems was the diversity of state laws concerning preferences. Uniform Insurer’s Liquidation Act (13 U.L.A. 430-31) (West 1980). UILA is designed to accomplish reciprocity. Florida, the ancillary state here, has adopted it. §§ 631.011(12) and 631.211, Fla.Stat. (1979). California, the domiciliary state, has not. Had California adopted this act, we would have no problem. Its priorities for payments of claims against insolvent insurers would be identical to Florida’s, and FIGA would be on a par with California’s own guaranty association, CIGA, in payment by the domiciliary receiver of claims-handling expenses. When the California court adjudicated Imperial insolvent and ordered its liquidation on January 10, 1978, however, the California statutes gave CIGA a priority status superior to that given to FIGA and all other guaranty associations. Cal.Ins.Code § 1033 (West 1972). There was evidence before the trial court that application of this California statute, by giving preference to CIGA, would take substantially all of Imperial’s assets available for payment of claims. Thus, the court below was confronted with the proposition that, if it ordered that these Florida marshalled funds of the insolvent insurer be sent to the domiciliary receiver in California, they would be swallowed up by the claim of CIGA to the exclusion of FIGA.

The domiciliary receiver relates that the above-cited statute was amended in 1979 to provide that guaranty associations in all states be treated equally. Cal.Ins.Code § 1033 (West Supp.1981). The statute, however, does not provide for retroactive application, and the question of whether or not it will be given retroactive application by the courts of California is undetermined.

A second preference created by the California statutes grants CIGA the benefit of reinsurance proceeds generated on claims paid by it. Cal.Ins.Code § 1063.2(d) (West 1972). A similar preference is not given to FIGA or any other guaranty association. The domiciliary receiver expresses doubt as to the validity of this preference and asserts the possibility that the reinsurance provision will be construed by the California courts as giving an unlawful preference to CIGA. We do not have such a construction at this time, however.

Since the Florida Department of Insurance was justified under the circumstances in withholding the money in question and since California has not adopted the Uniform Insurance Liquidation Act and is, therefore, not a reciprocal state with Florida under this act and its laws, at best, are uncertain as to whether or not the claim of FIGA would be given equal priority for payment with the claim of CIGA if the Florida-generated funds were sent to the domiciliary receiver, we find no error in the ruling of the lower court.

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.


text:
    Edward A. McCORVEY and Peacho McCorvey, Appellants, v. Zac Steven SMITH, State Farm Mutual Automobile Insurance Company and Joe Morris Funeral Home, Appellees.
    No. AD-71.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Rehearing Denied April 6, 1982.
    Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellants.
    Donald H. Partington of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for appellees.
   McCORD, Judge.

Appellants appeal the trial court’s order and final judgment dismissing his amended complaint against appellee Joe Morris Funeral Home. The complaint was dismissed with prejudice because appellants informed the trial court that they had no further amendments to make. We affirm.

The amended complaint alleged as follows: On June 29, 1979, appellee was conducting and leading a funeral procession on Chase Street, near its intersection with Davis Street, in Pensacola, Florida. Appellant Edward McCorvey was driving his car in the procession. Agents of appellee funeral home organized the procession and instructed drivers to turn on their lights. The procession was led by two vehicles operated by agents of appellee which other vehicles in the procession were to follow. As the procession approached Davis Street, the driver of the lead vehicle, an agent of ap-pellee, eased his vehicle out onto Davis Street and motioned for vehicles traveling north on Davis Street to stop. After several vehicles on Davis Street had stopped, the lead car proceeded across Davis Street, and other cars in the funeral procession followed. Appellant observed the agent of appellee actively engaged in the act of directing or controlling the traffic on Davis Street. After stopping the vehicles on Davis Street and proceeding across it, appel-lee’s agent left the intersection unprotected. Appellant relied upon appellee to conduct the funeral possession in a safe and proper manner, and he was led to believe that it was safe to proceed behind the lead vehicle. Appellee owed a duty of reasonable care to participants in the funeral procession to provide for their safety. By engaging in the act of directing or controlling northbound traffic on Davis Street, appellee assumed a duty to use reasonable care to the participants in the procession. Appellee breached its duty of reasonable care by failing to provide adequate protection for the participants and by failing to advise the participants that it would not continue to direct the traffic on Davis Street. As a result of appellee’s negligence, a vehicle traveling on Davis Street collided with appellants’ vehicle at the intersection.

The trial court was correct in dismissing the amended complaint. It did not state a cause of action against appellee funeral home. Florida law does not impose upon a funeral director the duty of care alleged by appellants. Section 316.1974, Florida Statutes, provides in pertinent part:

(2) Pedestrians and the operators of all vehicles, except emergency vehicles, shall yield the right of way to each vehicle which is a part of a funeral procession. Whenever the lead vehicle in a funeral procession lawfully enters an intersection, the remainder of the vehicles in such procession may continue to follow the lead vehicle through the intersection notwithstanding any traffic control device or right of way provisions prescribed by statute or local ordinance, provided the operator of each vehicle exercises due care to avoid colliding with any other vehicle or pedestrian upon the roadway. (Emphasis supplied.)

Here, the funeral director in the lead car merely undertook to get the procession started through the Davis Street intersection. This action on his part did not impose a duty upon him to see that all cars following him in the procession crossed the intersection safely. The above statute imposes a duty to exercise due care to avoid a collision upon the operator of each vehicle following the lead car. It does not purport to extend that duty to the funeral director.

AFFIRMED.

ERVIN and SHAW, JJ., concur.


text:
    Leo Frank EDWARDS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AF-100.
    District Court of Appeal of Florida, First District.
    March 11, 1982.

      Michael Allen, Public Defender, and Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals the trial court’s modification of his probation upon it finding that he had violated two conditions thereof by:

Violating Condition (4) in that on May 2, 1981, the aforesaid was in possession of a firearm, to wit: a Remington 1100 shotgun.
Violating Condition (5) in that the aforesaid violated the law by his arrest on May 22, 1981, for the offense of grand theft.

The evidence is insufficient to support a modification based on a violation of Condition (5). However, there is sufficient evidence to modify on the basis of a violation of Condition (4). Therefore, we affirm the modification on that ground.

AFFIRMED.

McCORD, ERVIN and SHAW, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    John Stacy NALLEY, Appellant, v. Victoria Eve NALLEY, Appellee.
    No. WW-322.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Carolyn S. Zisser, Neptune Beach, for appellant.
    Dale G. Westling of Persons, Flowers & Westling, Jacksonville, for appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

This matter has been considered on appel-lee’s motion for clarification. This court’s opinion of December 8, 1981, 406 So.2d 1240 (Fla.App.), is clarified as follows. The final judgment as it relates to dissolution of marriage, child custody, distribution of home furnishings, attorney’s fee, and restraining the parties from molesting, harming, har-anging, assaulting and harassing the other is affirmed. These matters were not raised as error by appellant. As indicated in a prior opinion herein, the final judgment is reversed inasmuch as it grants relief not specifically pleaded. Other than as indicated above, all requests for rehearing and clarification are denied.

McCORD and SHIVERS, JJ., concur.

BOOTH, J., dissents with written opinion.

BOOTH, Judge,

dissenting:

I remain of the view that the judgment below should be affirmed in its entirety.


author: HENDRY, Judge.

text:
    LASH, INC., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, Division of Alcoholic Beverages and Tobacco, Appellee.
    Nos. 81-214, 81-1398.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied April 13, 1982.
    Lane Abraham, Miami, for appellant.
    Janice G. Scott and William A. Hatch, Tallahassee, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   HENDRY, Judge.

Lash, Incorporated, through its sole stockholder, Richard Breder, appeals from an order of the Division of Alcoholic Beverages & Tobacco revoking its license. We affirm.

The license revocation stemmed from narcotics violations on appellant’s premises. The evidence established that on five occasions over a period of a week, undercover beverage agents purchased controlled substances from two of appellant’s employees. As a result of the violations, the Division issued an emergency order suspending appellant’s license. Appellant sought review of the suspension in this court and we entered a stay.

Pursuant to a “show cause” notice, a formal administrative hearing was conducted on April 9, 1981 in accordance with the provisions of Section 120.57, Florida Statutes, before a hearing examiner from the Division of Administrative Hearings. The hearing examiner then filed a recommended order setting out findings of fact, conclusions of law, and recommending that appellant’s license be suspended for thirty days. On June 23,1981, Mr. Charles Nuzum, head of the agency, entered a final order partially adopting the recommended order, modifying some of the findings and conclusions, and increasing the penalty to full license revocation. At that time Mr. Nuzum also denied a motion previously filed by the appellant seeking to disqualify him from further participation in the case on grounds of bias and prejudice.

Appellant raises three issues for our review: (1) the head of the agency erred in failing to disqualify himself from determination of the case; (2) the agency abused its discretion in ordering revocation of the license when the record did not contain substantial competent evidence to support the penalty; and (3) the agency head lacked authority to increase a recommended penalty without a complete review of the record.

Addressing appellant’s first issue, we find the contention that the agency head should have disqualified himself from this case pursuant to Section 120.71(1), Florida Statutes, without merit. Basically, appellant argues that since the director issued the emergency suspension order in which he entered findings of fact and conclusions of law, as required by statute, he was necessarily biased against any later recommendations made by a hearing officer.

The argument advanced is tantamount to saying that a trial judge who enters a temporary restraining order should thereafter be precluded from entering a final order because he would be unable to fairly evaluate the case having made a preliminary ruling. This argument is spurious. Just as a judge’s legal and factual rulings do not form a basis for disqualification, neither does an agency head’s entry of an emergency order. Accepting appellant’s contention would lead to the conclusion that the mere initiation of administrative charges against a licensee would automatically result in the agency head’s disqualification. Other than entry of the emergency order, appellant has alleged absolutely no facts to support a well-founded fear that the director would not act in a proper and objective manner. The allegation proves nothing more than the fact that the agency, in accordance with its statutory duties, instituted administrative proceedings against appellant. Moreover, the fact that certain recitations made in the emergency order were amended or omitted from the recommended and final orders belies the fact that the agency head was bound to his original determination. We are thus unable to accept the contention raised and conclude that the agency head properly denied appellant’s motion to disqualify.

Appellant next argues that the record did not contain sufficient competent evidence to support the revocation.

Florida Statute 561.29(1) grants the Division authority to revoke or suspend a beverage license when the Division finds that either the licensee or his agents have violated certain laws of the state on the licensed premises. While conceding that the penalty imposed falls within the permissible range of statutory law, thus precluding this court’s review of the sanction, Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978), appellant nonetheless challenges the revocation on the grounds that the agency (a) erroneously found that the licensee was culpably responsible for the illegal acts since he was allegedly neither involved nor aware of the drug activities; (b) used the wrong standard in reviewing the evidence; and (c) implemented new policy relative to the degree of care that should be exercised by licensees in maintaining their businesses free from narcotic activity.

Appellant misinterprets the proper standard for revocation or suspension of a beverage license. Under Section 561.-29(1), where the unlawful activity is committed by the licensee’s agent, simple negligence is sufficient for revocation. Admittedly, the courts have refused to uphold revocations when the evidence showed only that on one occasion the licensee’s employees violated the laws, and that the licensee otherwise took measures to comply with them. See, e.g., G & B of Jacksonville, Inc. v. State of Florida, Dept. of Business Regulation, 366 So.2d 877 (Fla. 1st DCA 1979) (single violation by employee); Woodbury v. State Beverage Dept., 219 So.2d 47 (Fla. 1st DCA 1969) (same); Taylor v. State Beverage Dept., 194 So.2d 321 (Fla.2d DCA), cert. denied, 201 So.2d 464 (Fla.1967) (same). Where, however, the laws are repeatedly and flagrantly violated by the employees, an inference arises leading to the conclusion that such violations are either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises when the violations occur. Pauline v. Lee, 147 So.2d 359, 364 (Fla.2d DCA 1962), cert. denied, 156 So.2d 389 (Fla.1963). Consequently, if the evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or the supervision of his employees, he can be found negligent and his license revoked. See Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979).

Where the violations are, as here, committed in a persistent and recurring manner consisting of more than one isolated incident, the courts have not hesitated to find that such violations were either fostered, condoned, or negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such. Golden Dolphin No. 2, Inc. v. State of Florida, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981) (lewd and lascivious dancing by female employees on several occasions); G & B of Jacksonville v. State of Florida, Dept. of Business Regulation, 371 So.2d 139 (Fla. 1st DCA 1979) (employees engaged in open and lewd acts with several patrons on two different days); Pauline v. Lee, supra, (female employees of licensee offered to commit prostitution with agents at various times over a three-day period). In the present case, the recurring sales were made possible by appellant’s failure to supervise the premises and his employees in a reasonably diligent manner, properly leading to the license revocation.

We also conclude that the order is supported by competent, substantial evidence. Appellant’s primary argument on this issue is that a sliding scale with respect to the quantum of evidence required should have been employed. Appellant reasons that since revocation of a license is much harsher than suspension, the same evidence which is substantial enough to support suspension may not support revocation. Appellant overlooks the fact that the evidence found sufficient to support a thirty-day suspension is, under the applicable statute [Sec. 561.29, Fla.Stat.] and case law, also sufficient to support revocation. We will not, as urged by appellant, substitute our judgment for that of the agency below on an issue of discretion. See Sec. 120.68(12), Fla.Stat.

Appellant also submits that the final order promulgates new agency policy and as such, the agency was required to explain its position and address countervailing arguments. This contention is totally without merit. There was no departure from existing agency policy. Unlike Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981), cited by appellant, the discipline imposed in the instant case was for violation of an explicit statute or rule. There can be no doubt that Florida law expressly prohibits possession, use and sale of drugs, and Section 561.29(1) provides for license suspension or revocation upon violation of any law of the state on the licensed premises.

Finally, appellant alleges that the order is fatally deficient for failure to recite that the Director made a review of the complete record prior to increasing the recommended penalty. Section 120.57(l)(b)9, does indeed require the agency to review the entire record prior to increasing the recommended penalty, but does not require the agency to explain its rationale for so doing. Florida Real Estate v. Webb, supra. Emphasis is placed on whether the entire record is before the agency, not on whether the final order recites that a review of the complete record was made. Here, the final order makes several references to the record, indicating that the transcript of the proceedings and all documents contained in the record on appeal were before the director and demonstrating that he made the requisite review.

The order revoking appellant’s license is hereby

AFFIRMED.

      . The stay entered in case number 81-214 effectively held the suspension order in abeyance until final hearing. Since the emergency order of suspension has merged with the final revocation order, we need not reach appellant’s procedural and other challenges to the previous order. We do note, however, that there is no statutory requirement for formal hearing of any kind prior to entry of emergency orders temporarily suspending a license. See Lerro v. Dept. of Professional Regulation, 388 So.2d 47 (Fla.2d DCA 1980). But see Aurora Enterprises, Inc. v. State of Florida, Dept. of Business Regulation, 395 So.2d 604 (Fla.3d DCA 1981), for a comprehensive discussion of due process requirements following temporary suspension.

      . See Meyer v. State, Dept. of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d 527 (Fla.3d DCA 1981), and cases cited.


text:
    Arthur WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-2209.
    District Court of Appeal of Florida, Fourth District.
    March 17, 1982.
    Rehearing Denied April 14, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. We hold that the trial court did not err in refusing to instruct the jury on the penalties for lesser included offenses. Renaud v. State, 408 So.2d 1059 (Fla. 4th DCA 1981). However, this cause is remanded to the trial court with instructions to strike the assessment of costs, Cox v. State, 334 So.2d 568 (Fla.1976).

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


author: ERVIN, Judge.

text:
    George William BOLES and Elizabeth Ann Boles, Appellants/Cross-Appellees, v. Don Andrew BRACKIN, Sidney Gottlieb, individually, and d/b/a Oakfield Union 76 Station, Appellees/Cross-Appellants.
    No. ZZ-212.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    W. H. F. Wiltshire and James M. Wilson of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellants/cross-appellees.
    W. Christopher Hart and Donald H. Part-ington of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellees/cross-appellants.
   ERVIN, Judge.

In this personal injury action, Boles, the plaintiff/appellant, contests two evidentia-ry rulings made by the trial court at the jury trial and the cross-appellant/defendant contests yet another ruling. We reverse as to the appellants’ first point and affirm on both the second point as well as the point on cross-appeal.

The appellants first argue that the trial court erred in excluding evidence revealing that the appellee had a learner’s permit or restricted license at the time the two-car vehicular accident occurred and that the appellee was driving in violation of specific restrictions placed on him as a holder of such a permit by Florida law. See Section 322.16, Florida Statutes (1979).

The appellee counters by arguing that the trial court was correct in rejecting the proffered evidence because the violation of the license restrictions could not be causally connected to the traffic accident, citing to a trio of cases from the Third District Court of Appeal: Goldner v. Lentin, 96 So.2d 553 (Fla. 3d DCA 1957); Dorsett v. Dion, 347 So.2d 826 (Fla. 3d DCA 1977); Corbett v. Seaboard Coastline Railroad Co., 375 So.2d 34 (Fla. 3d DCA 1979).

We do not need to reach the issue whether the record supports such a causal connection as we feel the causation predicate established by the Third District Court of Appeal directly conflicts with de Jesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973). de Jesus discusses the eviden-tiary value of violations of criminal statutes in civil cases and divides those violations into three categories. The first category consists of “strict liability” statutes which are “designed to protect a particular class of persons from their inability to protect themselves .. . . ” 281 So.2d at 201. The court held that a violation of this type of statute was negligence per se.

The second category consists of “violation[s] of any other statute which establishes a duty to take precautions to protect a particular class of persons from a particular type of injury.” Id. The court held that a violation of this type of statute was also negligence per se but it did “not necessarily mean that there [was] actionable negligence.” Id. (Emphasis in original.) The court also required a plaintiff to establish that he is of the class the statute was designed to protect, and that the violation of the statute was the proximate cause of his injury. Id.

The court lumped the remaining statutory violations together, stating that such violations “may be considered only as prima facie evidence of negligence.” Id. It observed that violations of traffic regulations fall within this category. Finally, the court drew a distinction between actual negligence and other elements of actionable negligence, observing: “Proof of a violation of a traffic ordinance is prima facie evidence only of ‘negligence’; proximate cause and other elements of actionable negligence must be proven independently.” Id. (e. s.) Thus, the causation predicate imposed by Goldner, Dorsett and Corbett have absolutely nothing to do with the issue of admissibility of the violation of Section 322.16(4), which only goes to the issue of actual negligence, including only the elements of duty and breach of duty. Prosser, Law of Torts, § 30, p. 144 (4th ed. 1971). Of course, the plaintiff would still be required at trial to establish independently causation and damages with other evidence.

Perhaps part of the confusion in the law stems from the fact that prior to de Jesus, the negligence per se doctrine was confused with actionable negligence. See 23 FlaJur., Negligence, § 69 (1959). Nevertheless, the question of admissibility of the evidence to prove a prima facie case of “negligence” is a separate issue from the jury question as to whether causation or actionable negligence actually exists. As we stated in Love v. Adams, 194 So.2d 55, 58 (Fla. 1st DCA 1967):

[PJrima facie evidence of negligence arising from the violation of a statute or ordinance may be overcome by proof of showing the violator to be free of negligence. Furthermore, such negligence arising from the violation of the city ordinance would be wholly immaterial unless it was found by the jury to be proximate or contributing cause of the plaintiff’s injuries.

(e. s.) Accord, Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977).

As to the first point, we hold that the trial court erred in refusing to admit evidence concerning the appellee’s violations of the license restrictions. Because the case was tried under a theory of comparative negligence, we conclude that the error was harmful.

As to the second point, we agree that the trial court was within its discretion in refusing to allow the appellant to give a lay opinion on the rate of speed appellee’s vehicle was traveling. See Hill v. Sadler, 186 So.2d 52 (Fla. 2d DCA 1966).

The point raised on cross-appeal is controlled by State v. Mitchell, 245 So.2d 618 (Fla.1971) and Elder v. Ackerman, 362 So.2d 999 (Fla. 4th DCA 1978).

Reversed and remanded for a new trial.

WENTWORTH and JOANOS, JJ., concur.

      . That section provides:
      (l)(a) The department, upon issuing an operator’s or chauffeur’s license, shall have authority whenever good cause appears, to impose restrictions suitable to the licensee’s driving ability with respect to the type or special mechanical control devices required
      on a motor vehicle which the licensee may operate, or such other restrictions applicable to the licensee as the department may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee.

        (4) It is a misdemeanor of the second degree, punishable as provided in S. 775.082 or S. 775.083, for any person to operate a motor vehicle in any manner in violation of the restrictions imposed in a restricted license issued to him.

      . We consider that section a type of traffic regulation.

      . A great deal of confusion surrounds the meaning of the word “negligence.” As Prosser points out, negligence is simply a type of conduct, “[b]ut a cause of action founded upon negligence, from which liability will follow, requires more than conduct.” Prosser, Law of Torts, § 30, p. 144 (4th ed. 1971). “Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.” Id. Prosser also notes that the effect of the negligence per se rule “is to stamp the defendant’s conduct as negligence, with all of the effects of common law negligence, but with no greater effect. There will still remain open such questions as the causal relation between the violation and the harm to the plaintiff.” Id. § 36, pp. 200, 201.


text:
    The CASTAWAY LOUNGE OF BAY COUNTY, INC., Appellant, v. Phillip REID, d/b/a The Castaway Lounge, Appellee.
    No. AC-420.
    District Court of Appeal of Florida, First District.
    March 18, 1982.

      Richard C. Trollope of Fitzpatrick, Sy-frett & Hutto, Panama City, for appellant.
    James B. Fensom of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellee.
   PER CURIAM.

The appellant, defendant in the action below, contends the trial court erred in imposing an attorney’s fee pursuant to Section 57.105, Florida Statutes (1979). We affirm.

Reid, owner of the Castaway Lounge in Panama City, filed suit for temporary and permanent injunctions to prevent defendant, The Castaway Lounge of Bay County, Inc., from opening and doing business under an identical name. The complaint, which also requested costs and attorney’s fees, was filed September 12, 1980, and the temporary injunction issued that day. Defendant failed to answer or file any responsive pleadings, so a default was entered on October 20,1980, followed by the order granting permanent injunction dated October 22, 1980. Then upon plaintiff’s motion on November 5, 1980, the judge issued to defendant a show cause order for failure to comply with the permanent injunction.

This finally caused defendant to respond on November 25, 1980, when he served interrogatories on plaintiff, seeking information as to the nature of each violation of the injunction and to list each witness to the violations and their anticipated testimony.

Following the show cause hearing on December 1, 1980, the judge entered an order specifying four requirements for the defendant to comply with the injunction. Defendant was directed to write each of his suppliers and distributors enclosing a copy of the permanent injunction, informing them he was no longer doing business as “The Castaway Lounge of Bay County.” He was to notify the State Beverage Department and other state or local licensing authorities, and he was required to contact the telephone company to discontinue his listing as “Castaway Lounge” and to disconnect the current number. Finally, he was required to file with the court copies of all these letters.

The judge scheduled a further hearing in the matter for January 5, 1981, at which time plaintiff could present other evidence as to noncompliance with the order, if such existed. On that date, evidence was presented and the judge found defendant in contempt because he had not changed the lounge’s telephone number as required in the order of December 3, 1980. The judge scheduled another hearing for January 16, 1981, to consider remedial aetion taken by defendant, the imposition of the sentence for contempt, and assessment of fees to plaintiff’s attorney pursuant to Section 57.-105. Each side filed a memorandum of law and plaintiff filed an affidavit alleging twenty-six and one-half hours of attorney time, including therein a detailed list of the hours spent. The judge awarded a $1,000 fee.

We find that the record supports the judge’s conclusion, expressed in his order, that “there was a complete absence of a justiciable issue of either law or fact raised by the defendant at each stage of the litigation.” Therefore, the judge properly assessed a fee against defendant pursuant to Section 57.105, which provides in its entirety:

The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

Appellant argues that fees may never be assessed against a defendant in default because the statute is intended to penalize only those parties who “raise” a nonjusticiable issue. We find that contention without merit. We believe the statute speaks for itself. We interpret the statute as requiring that a prevailing party’s fees be paid when he is impelled, by the losing party, to waste judicial resources and needlessly expend his own time and money. This can occur when a losing party raises issues that are not justiciable, and it can occur when, as here, the losing party has forced the plaintiff to resort to the courts even though there are no justiciable issues that can be raised in defense.

We believe this case to be factually distinguishable and not inconsistent with our sister court’s opinion in Sachs v. Hoglund, 397 So.2d 447 (Fla.3d DCA 1981), which affirmed the denial of fees against a defendant who failed to appear or file pleadings. Sachs was a suit on a promissory note; the defendant’s participation was not necessary for the court to enforce the plaintiff’s requested relief. Here, plaintiff was unable to prevent defendant’s use of plaintiff’s name without litigation. Defendant ignored the complaint, the temporary injunction, the permanent injunction, and two court orders on the rule to show cause. Defendant could have avoided needless litigation and expense by complying with the original order, or better yet, by not using the name “Castaway Lounge” in the first place as he had contractually agreed.

As stated in the recent Florida Supreme Court case of Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 7 FLW 89 (Fla. February 18, 1982):

The purpose of Section 57.105 is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorney’s fee awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants. At 505.

We believe the statute was intended to penalize stonewallers and foot-draggers alike.

The appellant also argues that the order was improper insofar as it awarded attorney’s fees regarding the contempt order. We reject that argument because the fee was reasonable, based on the hours the plaintiff’s attorney spent in seeking and enforcing the injunction, and because Section 57.105 applies to “any civil action” without excluding contempt.

Potential litigants and their counsel must realize that serious thought should precede the pursuit of what later may be deemed to be an irresponsible and frivolous claim. Conversely, those parties who ignore their responsibilities toward others with whom they have relations must bear the financial burden when provoking, by action or inaction, unjustified litigation. This we recognize to be the public policy enunciated by the legislature. The policy is not to cast a chilling effect upon use of the court system but only to discourage unwarranted controversy.

Under our interpretation of the statute there are, we believe, some potentials for abuse which, although not requiring consideration in the case before us, nevertheless warrant mention.

Complaining parties are not to assume from our decision that a rush to the courthouse should be the first order of business, where no defense is expected, on the theory that nothing will be lost by it, that is, that the expense of the lawsuit will be shifted to the other party. It is conceivable that the statute could be viewed as providing a deterrent to unwarranted, precipitous litigation, undertaken by a complaining party without reasonable notice or demand to the offending party, or without consideration of reasonable alternatives to litigation, where the circumstances would permit these steps without risk of loss or disadvantage to the complaining party. Such unwarranted action, in our opinion, might very well justify assessment of attorney’s fees for the opposing party if, for example, that party is driven to consult an attorney and appear in the case, even for the limited purpose of defending against the assessment of attorney’s fees.

Looking at the statute as we have interpreted it, from yet another vantage point, a party sued should not be tempted to offer a defense where otherwise one would not be appropriate, on the theory that since attorney’s fees can be assessed whether the case is defended or not, nothing will be lost by presenting a defense, however lacking in merit it might be.

These possible abuses represent, to be sure, extreme and irresponsible actions. Our construction of the statute should not, and is intended not to encourage or sanction such conduct. Not every plaintiff who obtains a default judgment should recover attorney’s fees. Not every defendant who offers no defense should escape an assessment of attorney’s fees. Not every party who unsuccessfully maintains a claim or defense should suffer an assessment of attorney’s fees.

The statute represents an effort on the part of the legislature to help stem the tide of excessive and often completely unnecessary litigation, and it matters not whether the complaining or defending party is the one responsible for it. In both instances the effect is the same: the courts are encumbered with frivolous and unnecessary litigation, at great cost to the public and the individual litigants, both monetarily and in terms of a lessening of respect for and confidence in the entire judicial system. It seems almost axiomatic that the time and resources of the judicial system consumed in processing unnecessary lawsuits, or completely unmeritorious defenses, can be more profitably spent in dealing with some of the more pressing issues that come before the courts — whether these issues involve only the immediate parties, or substantial segments of our society.

This statute has been invoked sparingly by the trial courts, and in our opinion, it should remain so. But the statute is not a panacea for the problem of excessive litigation, the causes for which are and have been endlessly debated and discussed, with only modest unanimity of opinion among those within or without the legal profession. It can, however, be useful as a means of lessening the burden on the individual litigant in a given case, and to a lesser extent, for combatting the ever-growing problem of needless litigation.

Accordingly, the trial court’s order is affirmed.

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

      . Although we find the statute unambiguous, necessitating no further inquiry into legislative intent, State v. Egan, 287 So.2d 1 (Fla.1973), our position is supported by the title of the provision, Ch. 78-275, which states it is an act . providing that the court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justicia-ble issue of either law or fact.” We would give due weight to the title of this section. See Berger v. Jackson, 156 Fla. 251, 256, 23 So.2d 265, 267 (1945).

      . The law favors the peaceful resolution of controversies, without necessity for resorting to the courts for solution, if at all possible. Ball v. Mills, 376 So.2d 1174 (Fla. 1st DCA 1979).

      . Cf. Mac Bain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979), and Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978).

      . As our sister court of the Fifth District put it: “Merely losing, either on the pleadings or by summary judgment, is not enough to invoke the operation of the statute.” Allen v. Estate of Dutton, 384 So.2d 171, 173 (Fla. 5th DCA 1980).

      . A “sue now — talk later” approach is in many instances just as deplorable (and often self-defeating) as a baseless “Sue me!” attitude. A noted professor of law offers the following approach to the problem: “We must design and utilize improved means of communication, within and without the courts. We must find better ways than the do-it-or-else approach to inducing desired behavior. Wiser use of incentives and more informative ways of communicating what the law expects of laymen, lawyers, jurors, and judges are approaches that deserve careful attention.” Rosenberg, New Challenges And Responses In Resolving Civil Disputes, Volume 1972, Arizona State University Law Journal, Number Three, page 359, at 371.

      . The infrequent use of the statute probably reflects a commendable degree of adherence by lawyers, generally, to the enjoinder found in the Oath of Admission to the Bar: “I will not counsel or maintain any suit or proceeding which shall appear to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land.” As a practical matter, however, such restraints as may be imposed by professional or ethical considerations may well have less significance than we would like to think, considering the complexities of modern life and the laws we have erected in an attempt to control and govern it. Given present-day conditions, a “justiciable issue” can often quite literally be found in the very air we breathe.

      . Most observers can, however, probably agree that at least one reason why suing has become a national pastime is summed up in the words of a Florida lawyer-educator: “. . . [T]oo many people view law as omnipotent because it is the principal agent for regulating behavior. We too often look for a legal solution even when a legal solution is inappropriate or non-existent.” Bruce W. Flower, in University of Florida College of Law Law Center News, Summer 1978, p. 6.


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

text:
    Wilbur WILLIAMSON, Appellant, v. Houston STEPHENS and Houston’s H & W Meats, Inc., Appellees.
    No. AD-135.
    District Court of Appeal of Florida, First District.
    March 18, 1982.

      Daniel A. Naughton, Jacksonville, for appellant.
    Aaron K. Bowden, Jacksonville, for ap-pellees.
   WIGGINTON, Judge.

Williamson filed an action in Circuit Court to rescind a partnership dissolution agreement with Stephens. He also sought a “re-dissolution” by the court, and he asked for an accounting of partnership assets. Williamson now appeals the trial court’s dismissal, with prejudice, of his third amended complaint. We affirm.

The appellant argues, among other things, that without the relief sought he has no adequate remedy at law to rectify Stephens’ alleged breach of the partnership dissolution agreement. We disagree because of the availability of an action for breach of contract and concomitant damages. Cf. Rentz v. Granger & Lewis, 64 Fla. 445, 60 So. 221 (1912).

Cancellation or rescission will not be granted for breach of contract in the absence of some independent ground for equitable interference. Richard Bertram and Company v. Barrett, 155 So.2d 409 (Fla. 1st DCA 1963). We find no merit in Williamson’s contention that his allegations of fraud established this independent ground. The facts contained in the third amended complaint alleged, without the specificity required by Fla.R.Civ.P. 1.120(b), that Stephens committed a fraud when he breached the dissolution agreement. Under the circumstances of this case, that allegation is not an independent ground for rescission. See generally, Crown Ice Machine Leasing Company v. Sam Senter Farms, Inc., 174 So.2d 614 (Fla.2d DCA 1965). Therefore, we conclude that Williamson failed to state a cause of action for rescission.

We cannot construe the pleading as stating a cause of action for breach of contract and money damages because Williamson does not wish enforcement of any contract. To the contrary, he disclaims the existing agreement and instead seeks rescission. Although in his prayer for relief Williamson has requested “the balance found due and owing,” this refers to money or property found “owing” after his requested court-ordered statutory dissolution, and not from any breach of an existing contract.

Williamson also argues that he was entitled to an accounting pursuant to Section 620.725, Florida Statutes (1979). Without commenting on the applicability of Section 620.725, we reject this argument because the complaint requested an accounting by invoking Section 620.66(1), which is inapplicable to the facts as alleged.

Accordingly, the order of the trial court is affirmed.

ROBERT P. SMITH, Jr., C. J., concurs.

LARRY G. SMITH, J., dissents with written opinion.

LARRY G. SMITH, Judge,

dissenting with opinion.

I would hold that plaintiff’s complaint states a basis for equitable relief in that it alleges, with sufficient specificity, that his agreement to relinquish his one-half interest in the partnership assets was conditioned upon the performance, by defendant Stephens, of his agreement to retain possession of the partnership assets, continue the business, and to pay to plaintiff each week one-half of the net profits until such time as plaintiff’s one-half interest in the partnership assets was fully paid.

There is authority, not referred to in the majority opinion, that where there has been “a settlement and a balance struck between the parties,” a court of equity ordinarily will not disturb the private settlement. 8 Fla.Jur.2d, “Business Relationships,” § 593. See also Durham v. Edwards, 50 Fla. 495, 38 So. 926 (1905). That a “complete private settlement” has been made may well be raised in defense here, and if proven, then of course plaintiff would have no option but to sue for the balance due him under the settlement agreement. However, the plaintiff’s pleading does not, in my opinion, require or permit the inference that there has been a “complete settlement” — in the sense considered by these authorities — so as to operate as a defense to an equitable action by one partner against another. The complaint specifically alleges the conditional nature of plaintiff’s agreement to relinquish his partnership interest, and this circumstance, particularly in the light of other allegations of the complaint, would be sufficient to allow plaintiff to proceed for equitable relief.

I think it is clear that plaintiff is entitled to seek the intervention of a court of equity to relieve him from the strictures of the dissolution arrangement whereby he agreed to accept one-half of the net profits of the business weekly over a period of time, since it is clearly alleged in the complaint that the continuing partner has totally disregarded the agreement from its inception. By virtue of his agreement, the plaintiff relinquished extensive statutory rights to have the assets of the partnership mar-shalled and preserved, by court action, if necessary, for the winding up of the business of the partnership and distribution of remaining assets among the two partners, as their interests may appear. See Sections 620.74 and 620.77, Florida Statutes. The law is clear, under the Uniform Partnership Act, that upon dissolution the partnership is not terminated, but continues until the winding up of the partnership affairs is completed. Section 620.705, Florida Statutes. Although the rights and obligations of partners are modified after a dissolution, Sections 620.72-620.74, Florida Statutes, it is clear that a retiring partner may have continuing rights with respect to the disposition of partnership assets.

Unless otherwise agreed, a retiring partner “may have the partnership property applied to discharge its liabilities and the surplus applied to pay in cash the net amount owing to the respective partners.” Section 620.745, Florida Statutes. Unless otherwise agreed, where there has been no settlement of accounts between the partners, a retiring partner “may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest . . . . ” Section 620.765, in conjunction with Section 620.76(2), Florida Statutes.

In my view, since plaintiff has alleged that his agreement to relinquish his partnership interest was conditioned upon performance by the defendant, which never occurred, plaintiff cannot be held to have “otherwise agreed” so as to waive, in perpetuity, his rights under the statute. Furthermore, this court has recognized the proposition that if a surviving or remaining partner continues the partnership business with the partnership assets, the remaining partner is required to account to the withdrawing partner. Hilgendorf v. Denson, 341 So.2d 549 (Fla. 1st DCA 1977); Biers v. Sammons, 242 So.2d 158 (Fla. 3rd DCA 1970). By continuing the business of the partnership, a partner acts as a trustee for the withdrawing or deceased partner. Biers v. Sammons, supra, 242 So.2d at 161.

Although the third amended complaint is not a model of pleading, it is apparent that in seeking a court order setting aside the “oral agreement for dissolution of partnership” plaintiff is asking to be restored to his rights as a retiring partner under the statutory and case law of this state. By seeking an order “dissolving” the partnership, plaintiff is obviously asserting his right to a court-ordered “winding up” as provided by statute. Sections 620.74, 620.77, Florida Statutes.

Although as a general rule, recission will not be granted for failure to perform a covenant or promise to do an act in the future, the rule is not applicable if the covenant or agreement breached is a dependent one. Steak House v. Barnett, 65 So.2d 736 (Fla.1953); Mease v. Warm Mineral Springs, Inc., 128 So.2d 174 (Fla. 2nd DCA 1961). Conditions or covenants in a contract are classed as dependent or independent from a consideration of the intention and understanding of the parties as shown by the whole contract. Steak House v. Barnett, supra, 65 So.2d at 737.

A covenant is dependent where it goes to the whole consideration of the contract; where it is such an essential part of the bargain that the failure of it must be considered as destroying the entire contract; or where it is such an indispensable part of what both parties intended that the contract would not have been made with the covenant omitted.

Steak House v. Barnett, supra, 65 So.2d at 738. A breach of such a covenant amounts to a breach of the entire contract, and it gives to the injured party the right to sue at law for damages, or, a court of equity may grant recission if the remedy at law will not be full and adequate. Id. 65 So.2d at 738.

The complaint should not be dismissed unless there is no theory upon which plaintiff would be entitled to relief. Under the above authorities, I believe plaintiff has alleged sufficient facts which would allow him to maintain that he would never have relinquished his rights to an accounting and a court winding up of partnership affairs absent defendant Stephens agreement to account for and promptly pay and distribute to him his interest in the assets out of profits of the business. This, according to the allegations of the complaint, Stephens has clearly failed to do. Not only has he failed to make the payments as agreed, but according to the allegations of the complaint he has misrepresented and concealed from the plaintiff the status of business profits derived from the use of partnership assets, and has misappropriated those assets and profits for the benefit of himself and the defendant corporation which, according to the complaint, now holds the assets of the partnership. The complaint contains allegations of over-reaching, misrepresentations, and resulting injury to the plaintiff in the settlement of partnership affairs, and accounting as to partnership affairs. It therefore states a cause of action for equitable relief. Rentz v. Granger & Lewis, 64 Fla. 445, 60 So. 221 (1912).

I think the majority has improperly applied the parties’ abortive, wholly executo-ry, incomplete dissolution agreement as a bar to plaintiff’s assertion of his statutory and equitable rights to a court-ordered accounting and winding up of the partnership affairs.

Aside from plaintiff’s entitlement to equitable relief, in my judgment the complaint is sufficient to allow plaintiff to proceed as in an action at law for damages, since he clearly alleges a debt due and owing to him, which has been unpaid, and his prayer for relief seeks a judgment ordering the defendants to pay the sums found due and owing to him, plus interest.

I would hold that it was error to dismiss the complaint for failure to state a cause of action.

      . It is noted from the complaint that the assets were “estimated” to be valued “in excess of $300,000.00.” Whether the parties agreed that plaintiffs share amounted to $150,000.00 is not entirely clear from the pleading. Even assuming this agreement established or “settled” the amount plaintiff was entitled to receive, the very terms of the agreement itself, calling for weekly payments of one-half of the net profit, makes its enforcement by an ordinary action at law a rather unsatisfactory remedy. Enforcement of such a settlement agreement from its inception would of necessity have entailed a multiplicity of suits. It is not at all clear, from the allegation that performance was “expected” within a year, that any provision was made for plaintiff’s protection in the event the weekly profits proved non-existent or insufficient to complete the agreement.
      There is no allegation that the oral agreement contained any provision restricting plaintiff to an action at law for a money judgment in event of non-payment or untimely payment by defendant Stephens, and I see no basis for finding one by implication, or as a matter of law. Furthermore, if the well-pleaded allegations of the complaint be accepted as true, there could be no defense of “complete private settlement,” since according to the complaint defendant Stephens has yet to take the first step in that direction, but in fact has repudiated any such agreement. Nonetheless, the existence and terms of any complete settlement agreement sufficient to bar plaintiffs equitable remedies is not disclosed, in my opinion, on the face of the complaint.

      . I disagree, however, that the action for damages is an adequate remedy under the circumstances alleged.


text:
    SMYRNA BAPTIST CHURCH and New Hampshire Insurance Co., Appellants, v. Yvonne MAHAN and Steven Mahan, her husband, Appellees.
    No. AG-46.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    William L. Lee of Shell, Fleming, Davis & Menge, Pensacola, for appellants.
    Robert D. Bell of Fisher, Bell, Hahn, Winn & Schuster, Pensacola, for appellees.
   PER CURIAM.

AFFIRMED. See Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla.2d DCA 1959); Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla.3d DCA 1975).

McCORD, ERVIN and SHAW, JJ., concur.


author: JOANOS, Judge.

text:
    Charles Robert MILLER, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-52.
    District Court of Appeal of Florida, First District.
    March 22, 1982.

      Michael E. Allen, Public Defender, and Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

We affirm Miller’s sentences on charges of grand theft and escape. However, we write this opinion to make clear that our affirmance does not preclude the trial court from reducing or modifying the sentences pursuant to Fla.R.Crim.P. 3.800 to treat Miller as a youthful offender on both convictions.

Miller was first sentenced as a youthful offender on the grand theft charge. Moments later, the trial judge pronounced a consecutive, adult sentence for escape. The record reflects that at the time, the sentencing judge, apparently believed that he was required by the language of Section 944.40, Florida Statutes (1979) to deliver consecutive sentences. That section states that sentencing for escape “shall run consecutive to any former sentence imposed upon any prisoner.”

Without deciding whether Miller’s sentence for grand theft qualifies as a “former sentence” for purposes of the statute, we hold that the appellant may nevertheless be sentenced as a youthful offender. Section 958.05 Fla.Stat. (1979) provides that youthful offender sentencing may be used “in lieu of other criminal penalties authorized by law.” The 1979 provisions of the Florida Youthful Offender Act do not indicate that sentences for escape should be excluded from the purview of the Act. Cf. Whitlock v. State, 404 So.2d 795 (Fla. 3rd DCA 1981); Patterson v. State (Fla. 2nd DCA 1981) [1981 FLW 124],

We also find that under the circumstances presented here, Miller was not precluded from youthful offender treatment on each sentence despite language in the Act that a defendant is ineligible if he has “previously been classified a youthful offender under the provisions of this act.” Section 958.04(l)(c) Fla.Stat. (1979). The question presented is: Does simultaneous sentencing (sentencing for two or more crimes at one hearing) preclude a defendant from being treated, under the judge’s discretion, as a youthful offender on the theory that once the judge delivers a youthful offender sentence on the first charge, the defendant has “previously been classified a youthful offender” for purposes of the second charge? The Florida Supreme Court in State v. Goodson, 403 So.2d 1337, 1340 (Fla.1981) spoke to this when they said:

[T]he existence of two or more contemporaneous felony convictions does not preclude a defendant from being classified as a youthful offender, it merely excludes him from mandatory classification as such. See Sec. 958.04(3) F.S. (Supp.1978).

We believe this to be the reasonable interpretation of the law in carrying out the intention of the legislature, which was to prevent novice criminals from becoming expert by being thrown in with more experienced felons during imprisonment. See Section 958.021. In our view, the 1979 Act placed the decision of whether or not to sentence Miller as a youthful offender on the escape charge in the sound discretion of the trial judge.

Accordingly, judgment of the trial court is AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


author: WIGGINTON, Judge.

text:
    James V. McELHINEY, Appellant, v. ASH PROPERTIES, INC., a corporation, Appellee.
    No. AC-113.
    District Court of Appeal of Florida, First District.
    March 22, 1982.

      David R. Lewis of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellant.
    Harry L. Shorstein of Shorstein & Roma-nello, Jacksonville, for appellee.
   WIGGINTON, Judge.

This is an appeal from a final judgment, entered pursuant to a voluntary dismissal of appellant’s cause of action, finding appellant to be in civil contempt and awarding costs and attorney’s fees. We affirm the finding of contempt and award of attorney’s fees, as costs, to appellee, but reverse as to the award of costs made payable to the Clerk of the Circuit Court and also as to the award of prospective attorney’s fees to appellee.

First, the trial court erred in imposing upon appellant a fine payable to the Clerk of the Circuit Court as punishment for his contempt. The procedure followed here was for civil contempt and contemplates that the remedy belongs to the party wronged. Griffin v. Griffin, 375 So.2d 1086 (Fla.1st DCA 1979).

Second, the trial court erred in ordering appellant to pay appellee’s attorney’s fees through the presentation of the evidence should appellant refile his suit. Attorney’s fees may be awarded only under three circumstances, viz: “(1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Miller v. Colonial Baking Co. of Alabama, 402 So.2d 1365 (Fla.lst DCA 1981). None of the above circumstances is present here.

Accordingly, the judgment is affirmed in part and reversed in part.

JOANOS and THOMPSON, JJ., concur.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    GENERAL ELECTRIC COMPANY, and Electric Mutual Liability Insurance Company, Appellants, v. Drew L. HOPKINS, Appellee.
    No. AC-475.
    District Court of Appeal of Florida, First District.
    March 22, 1982.
    Rehearing Denied April 6, 1982.

      John P. Brooks of Jones & Langdon, P. A., Gainesville, for appellants.
    S. David Cox of Barton, Cox & Davis, Gainesville, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred in awarding temporary total disability (TTD) benefits for the period from September 18, 1980 to October 2, 1980, and in awarding penalties and interest, and attorney’s fees thereon, for TTD benefits voluntarily but untimely paid for the period from October 2, 1980 to November 26, 1980. We affirm both awards.

Claimant suffered a compensable low back injury on December 6, 1977, and has received TTD benefits intermittently since that date. On September 18, 1980 claimant’s treating physician released him to return to work, whereupon claimant immediately reported to the employer. However, the company doctor was absent that day and the employer refused to permit claimant to return to work until his return had been approved by the company doctor. The claimant testified that during the evening of September 18, 1980 he suffered an exacerbation of his low back injury, and that when he reported to work on September 19 the company doctor would not allow him to resume his duties. Claimant was unable to obtain a return appointment with his treating physician until October 2, on which date the treating physician found him to be again disabled. Under these circumstances, and in the absence of a specific and timely objection to claimant’s testimony, we deem the claimant’s testimony that the company doctor would not let him work to be competent substantial evidence that he was TTD after September 18, 1980.

On November 26, 1980 the E/C accepted the claim for TTD benefits and voluntarily paid the benefits due for the period from October 2 to November 26. We agree with the E/C’s contention that at least a portion of the benefits due for this period was timely paid and that the deputy’s award of penalties, interest, and attorney’s fees on the entire amount was erroneous. However, this error could and should have been corrected by timely application to the deputy before the order became final. Accordingly, we deem the error inconsequential and affirm on the authority of and for the reasons expressed in Acosta Roofing Company v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

AFFIRMED.

MILLS, J., concurs.

WENTWORTH, J., concurs with written opinion.

WENTWORTH, Judge,

concurring.

In addition to the circumstances recited by the majority, I would affirm because of the well established sufficiency of lay testimony, including claimant’s, to prove temporary medical incapacity of a simple nature subject to the usual standards of logic, reason, and credibility, before or after a physician’s discharge or release for return to work.


text:
    DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, DIVISION OF WORKERS’ COMPENSATION, Appellant, v. Curtis VAUGHAN, Lotspeich Interior Contractors and Crum & Forester Insurance Co., Appellees.
    No. AD-497.
    District Court of Appeal of Florida, First District.
    March 22, 1982.
    Michael J. Rudicell, Tallahassee, for appellant.

      Stephen L. Rosen of Morris & Rosen, Tampa, for appellees.
   PER CURIAM.

We reverse the deputy’s 1981 order awarding interest at six per cent per annum on payments due but unpaid claimant since 1978 from the Workers’ Compensation Trust Fund pursuant to section 440.-15(l)(e), Florida Statutes (1981). To partially offset the effects of inflation since the award of compensation benefits in earlier years, that statute directs the Fund to supplement the compensation still to be paid under such an award by adding five percent times the number of years since the date of injury. Tardiness of payment from the Fund cancels to a degree the beneficial purposes of the statute, which the deputy’s order attempts to remedy through an additional award of interest. While the purpose may be commended to the legislature, we are bound by the general rule that the State is not liable for interest on its debts unless consented to by act of the legislature or by lawful contract of its executive officers. Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935); Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980). To characterize the provisions of chapter 440 as for some purposes a “contract” between the employee, employer, and carrier, Sullivan v. Mayo, 121 So.2d 424 (Fla.1960), does not impose contractual obligations on the Division of Workers’ Compensation or on the Fund which it administers. Cf. Division of Labor v. Taylor, IRC Order 2-3189 (1977), cert. den., 358 So.2d 135 (Fla.1978).

REVERSED.

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


text:
    Sonya A. MOYER, Appellant/Cross-Appellee, v. AETNA LIFE INSURANCE COMPANY and Brandon Eugene Paul Moyer, Appellees/Cross-Appellants.
    No. AE-168.
    District Court of Appeal of Florida, First District.
    March 22, 1982.
    Appeal from Circuit Court, Okaloosa County; Erwin Fleet, Judge.
    F. Lloyd Blue and J. LaDon Dewrell of Dewrell, Blue & Brannon, Fort Walton Beach, for appellant/cross-appellee.
    John F. Windham of Beggs & Lane, Pensacola, for Aetna Life Ins. Co., and Gregory Anchors, Niceville, for Brandon Eugene Paul Moyer, appellees/cross-appellants.
   PER CURIAM.

We AFFIRM the appeal presented by appellant Sonya A. Moyer and approve the parties’ stipulation to dismiss the cross-appeal presented by Aetna Life Insurance Company.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    STATE of Florida, Appellant, v. Rod Wayne LEVASSEUR, Appellee.
    No. AE-213.
    District Court of Appeal of Florida, First District.
    March 22, 1982.

      Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellant.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellee.
   PER CURIAM.

The State appeals an order of the Circuit Court of Alachua County which granted appellee’s motion to suppress certain evidence. We reverse.

Officer Jempson assisted other officers in the execution of a search warrant of a residence. Appellee was one of the people in the house when the officers entered it. The officers determined that appellee and others did not reside at the residence and were going to allow them to leave. At that point, appellee asked to go into the back bedroom to get his shoes, and Jempson accompanied him. Appellee put on his shoes and then grabbed a blue windbreaker jacket off the bed. As he did so, Jempson noticed that there was a bulge in the jacket and it swayed as if weighted down. Jemp-son took the jacket from appellee, fearing that there was a weapon in it, and felt it for a weapon. He felt no weapon but felt tablets that appeared to be some kind of drug tablets and asked appellee to remove the package from the jacket. When appel-lee did so, Jempson saw tablets, which, based on his experience, appeared to be quaaludes. Appellant contends the search was pursuant to a valid search warrant. Appellee raises no question as to the validity of the warrant but contends Jempson had no authority to search the jacket. We disagree.

The search warrant directs the search of the residence and curtilage thereof for methaqualone. The jacket, which was lying on the bed before appellant picked it up, was an article in the residence which was subject to search pursuant to the warrant. The quaaludes (methaqualone) were validly seized pursuant to the warrant.

REVERSED.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    Harry Clarence JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1422.
    District Court of Appeal of Florida, Third District.
    March 28, 1982.
    Bennett H. Brummer, Public Defender and Lawrence Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.

      Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Boshears v. State, 371 So.2d 725 (Fla. 1st DCA 1979); Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974); Maycock v. State, 284 So.2d 411 (Fla. 3d DCA 1973).


text:
    Luis Migel RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1987.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Bennett H. Brummer, Public Defender, and Robert C. Gross, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. In the Interest of M. E., 370 So.2d 795 (Fla.1979); Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977), cert. denied, 365 So.2d 709 (Fla. 1978).


text:
    Freddie LONDON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-784.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son and John F. Robenalt, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., BASKIN, J., and BERANEK, JOHN R., Associate Judge.
   PER CURIAM.

Affirmed. Studnick v. State, 341 So.2d 808 (Fla. 3d DCA), cert. denied, 348 So.2d 954 (Fla.1977).


author: FERGUSON, Judge.

text:
    David PRESTON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1332.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      Bennett H. Brummer, Public Defender and Deborah Whisnant and Elliot H. Scherker, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.) Associate Judge.
   FERGUSON, Judge.

David Preston appeals from a court order denying his motion to correct the sentence imposed pursuant to a determination of probation violation. Preston claims that because he was originally entitled to designation as a youthful offender, he must be sentenced in accordance with the provisions of the Youthful Offender Act, Section 958.-05, Florida Statutes (1979) upon revocation of probation imposed in adult court. We disagree.

After being transferred from juvenile court to circuit court, Preston pled guilty to the charge of robbery with use of a deadly weapon. During the plea colloquy, the trial court emphasized to Preston that it was giving him a second chance and that if Preston violated his probation, he would be sent away for a long time, possibly for life. In addition, the court requested Preston’s mother to impress on Preston that if he violated probation he could be sentenced for life.

The Court: I’m trying to tell you in no uncertain terms that I mean business. This is not the juvenile court remember that. . ..
I have no hesitation in sentencing him. I have sentenced the young people to the state penitentiary before, and I’ll do it again. I take no pleasure, but it’s my job, and I will do it.
I just sent a fifteen-year-old girl over for life imprisonment on a murder charge. I sentenced a fourteen-year-old boy for life imprisonment. I don’t want to do it in your case. Don’t make me.

Preston’s argument on appeal is essentially that because he met the requirements entitling him to be designated as a youthful offender and because sentencing under the Youthful Offender Act is mandatory if a defendant meets the requirements of Section 958.04(1), Florida Statutes (1979), State v. Goodson, 403 So.2d 1337 (Fla.1981), the rule that a youthful offender who has violated probation may only be sentenced within the limitations of the Youthful Offender Act, Brandle v. State, 406 So.2d 1221 (Fla. 4th DCA 1981); Greene v. State, 398 So.2d 1011 (Fla. 1st DCA 1981), should apply to him. Where, however, a defendant never sought designation as a youthful offender and was not sentenced to a period of incarceration, but was placed on probation, the terms of which he fully accepted, we hold that the defendant has waived his right to question the legality of a probation which he has enjoyed and violated. King v. State, 373 So.2d 78 (Fla. 3d DCA 1979).

Accordingly the order of the trial court is affirmed.


author: PER CURIAM. FERGUSON, Judge

text:
    Sullivan VACCARO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1744.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Jerome Bill Ullman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981); Shapiro v. State, 390 So.2d 344 (Fla.1980).

FERGUSON, Judge

(dissenting).

See dissent in Laurenzano v. State, 402 So.2d 1304 (Fla. 3d DCA 1981).