author: ANSTEAD, Judge.

text:
    John William BROD, Appellant, v. STATE of Florida, Appellee. Frederick J. T. BOBIN, III, Appellant, v. STATE of Florida, Appellee. William BATES, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1282, 81-1662 and 81-1781.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant-Brod.
    Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellants-Bobin and Bates.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Russell S. Bohn, and Laura R. Morrison, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

These are three consolidated appeals involving motions for post-conviction relief pursuant to the decision in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980) prohibiting incarceration as a condition of probation or as part of a split sentence unless such incarceration is for less than one year.

We find no error in the denial of appellant Bobin’s motion. Bobin originally received a split sentence pursuant to plea negotiations. While serving the probationary period of that split sentence Bobin was alleged to have violated probation. Again he made a plea agreement with the court and the state and pursuant thereto he was sentenced to a straight term of ten years imprisonment with credit for all time previously served on the original sentence and any other jail time. After the Villery decision was announced Bobin sought to set aside his current sentence on the grounds that his original split sentence had been illegal. We do not think Villery was intended to apply retroactively to factual situations such as involved herein where a defendant had already violated his probation and was no longer serving a split sentence. In addition we think appellant is estopped from challenging his present sentence since it was part of a plea bargain to which he voluntarily agreed and it is not the type of illegal sentence prohibited by Villery.

Appellant Bates was sentenced to a split sentence of three years in prison and twelve years probation for a total of fifteen years. In his motion for post-conviction relief he asked the trial court to reduce that to a straight three year sentence and eliminate the probationary period. The trial court vacated the sentence pursuant to Vil-lery and imposed a straight fifteen year sentence with credit for time served. We have previously interpreted Villery to permit such sentences. See Forbert v. State, 415 So.2d 96 (Fla. 4th DCA, 1982). Adhering to Forbert, we affirm Bates’ sentence.

Appellant Brod was sentenced pursuant to a plea agreement to one year and one day incarceration to be followed by probation for three years and eleven months. Subsequently, citing Villery, Brod asked the trial court to vacate his sentence and give him either straight probation or limit his jail time to less than one year. The trial court vacated his sentence and imposed a straight sentence of four years, eleven months, and one day with credit for time served. As noted, we approved such a sentence in Forbert v. State. Again, we affirm Brod’s sentence on the authority of Forbert.

We are concerned about both the Bates and Brod sentences since they appear to violate the principle announced in the U. S. Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), prohibiting the imposition of greater sentences after a defendant’s original judgment and sentence have been set aside on appeal. However, as we acknowledged in Forbert, Villery, written long after Pearce, specifically appeared to authorize a sentence of imprisonment so long as such sentence does not exceed “a period of time in excess of the original total term of probation.” Villery, supra at 1112. Here, we have two defendants who apparently thought that under Villery they would be entitled to either an order of probation with a maximum period of incarceration of less than one year as a condition thereof or a straight sentence without probation not to exceed the amount of jail time already decreed. Instead, they both received sentences of incarceration far in excess of the original dispositions. This makes no sense. Defendants originally adjudged in need of a limited period of incarceration should not now be subject to the maximum because they have apparently misconstrued the effect of the Villery decision. For instance, Brod has now traded a sentence of one year and one day for a sentence of almost five years, even though the result may be the same if the parole authorities decide to parole Brod after a year and a day. However, he may have to serve much more than the year and a day. The same is true of Bates.

Most of the difficulty courts have had in applying the Villery decision has been in determining what sentences are permitted after vacating a sentence made illegal by Villery, as we have discussed above, and in determining the Supreme Court’s rationale in forbidding genuine split sentences. Because probation and incarceration are essentially different disposition alternatives, prohibiting lengthy terms of incarceration as a condition of probation appears to be eminently sensible. However, the rationale for such prohibition would not appear to apply to legitimate split sentences. First, the legislature by enacting Section 948.01(4), Florida Statutes (1979) appears to have specifically authorized split sentences. This authorization would appear to constitute a proper exercise of the legislature’s broad authority to determine the permissible penalties for crimes. Second, unlike the jurisdictional problem involved when a trial court makes incarceration a condition of probation, it would appear that a defendant given a split sentence is entitled to consideration for parole the same as any other defendant sentenced to a certain term of imprisonment. Third, different policy considerations are involved in the two concepts, incarceration as a condition of probation being considered a valuable rehabilitative device to give the defendant a sufficient taste of prison to encourage rehabilitation, while a term of probation tagged onto a sentence of imprisonment may be deemed necessary to ensure that a defendant remains under the authority and supervision of the court even after a set term of imprisonment is served. The latter alternative may well be imposed more out of considerations of public protection than for the specific rehabilitation of the defendant, although both purposes may be served. In any case it is difficult to understand, given the specific legislative endorsement contained in Section 948.01(4), why split sentences have been placed in the same category with imprisonment as a condition of probation. Unfortunately, the difficulties we have on this score were expressed in the dissenting, rather than majority, opinion of Villery.

Because of the concerns we have with the application of Villery and to preserve these appellants’ rights to further review we adopt by reference and again certify the same questions of public importance set out in our recent decision in Forbert:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of Pearcel
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearcel
4. If the original sentence was imposed pursuant to and as part of a negotiated plea, in resentencing a defendant upon a Villery motion to correct an illegal sentence can the trial court impose a longer sentence of imprisonment than originally imposed without giving the defendant an opportunity to withdraw his negotiated plea?

Having done so, we affirm the orders of the trial courts in all three of the consolidated cases before us.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Section 948.01(4) provides:
      (4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    Mabel LAWHORN, Appellant, v. R. D. MULLINS, D. O. and Fireman's Fund American Insurance, Appellees.
    No. AK-28.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Rehearing Denied Sept. 3, 1982.
    Horace E. Hill, Sr., Daytona Beach, for appellant.
    Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appellees.
   WIGGINTON, Judge.

In this workers’ compensation appeal, the claimant has raised three points for our review. We affirm the deputy commissioner’s order not requiring the employer/carrier to pay for claimant’s medical treatment administered by an unauthorized physician or claimant’s transportation to and from that physician’s office.

Claimant’s remaining issue questions whether the deputy commissioner erred in denying claimant temporary total disability benefits by finding that maximum medical improvement was reached on December 31, 1980, and that claimant’s medical condition had not significantly changed since that date. Our review of the record leads us to the conclusion that the deputy did err.

There is no competent substantial evidence in the record to support a finding that claimant’s status changed from “healing” to “no further improvement reasonably anticipated” on December 31, 1980. Sunland Training Center v. Woods, 413 So.2d 161 (Fla. 1st DCA 1982). On the contrary, two physicians testified as to dates long before the one chosen by the deputy, while two other physicians testified that claimant had not yet reached MMI as of the date of the hearing on January 8, 1982. Interestingly, one of the latter physicians was one ordered by the deputy to treat claimant in order to settle inconsistent medical evidence, and both latter physicians were those on whose testimony the deputy based her finding of MMI.

It would appear from the record that the only significance of the date, December 31, 1980, was that it was the date on which the employer/carrier voluntarily ceased payment of temporary total disability payments to claimant.

We therefore reverse and remand to the deputy to make a redetermination of MMI based on competent substantial evidence. The deputy may take additional evidence to facilitate a proper determination in this regard.

SHIVERS AND SHAW, JJ., concur.


author: PER CURIAM.

text:
    CITY OF CORAL GABLES, a municipal corporation organized and existing under the laws of the State of Florida, and Frank and Juliann Bishop, Appellants, v. Jose PUIGGROS, Appellee.
    No. 81-1260.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Robert D. Zahner, Coral Gables, Po-dhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellants.
    Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Appellant City of Coral Gables, defendant below, and the Bishops, defendants-in-tervenors below, appeal from a final judgment in favor of plaintiff-appellee Puiggros in the latter’s suit contesting the city’s denial of a building permit for a residence on his property.

The facts giving rise to the controversy are fully set forth in a prior appeal in this litigation, City of Coral Gables v. Puiggros, 376 So.2d 281 (Fla. 3d DCA 1979), in which this court reversed a final summary judgment which had been rendered in favor of Puiggros on equitable estoppel grounds, and remanded the case to the trial court, holding that the record below raised certain issues which precluded a finding of equitable estoppel as a matter of law. The issues to be resolved, this court held, were as follows:

(1) whether the structure on Lot 27 which was removed by Puiggros was in fact a part of a building “constructed on a building site containing two or more platted fifty (50) foot lots,” which, under § 8.02 of the city zoning code, prevented a later reduction of that “building site,”
(2) whether the city’s initial decision to grant Puiggros a building permit was based upon a material mistake of fact concerning the existence of the demolished structure on Lots 27 and 28, which would, if known, have justified a different determination as to the applicability of § 8.02, and
(3) whether the city’s initial decision granting the building permit was induced by Puiggros’ own act of withholding information concerning the razing of the former structure — thus, in effect, estop-ping him from claiming the benefit of an estoppel against the city.

Upon remand a comprehensive final judgment was again entered in favor of Puiggros. The trial court held the city equitably estopped to deny Puiggros relief after he purchased the property and later expended funds in reliance upon assurances from the city that a building permit could be issued, and in the alternative, that the pertinent code restriction did not apply to Puiggros’ property or conduct.

We have reviewed the court’s findings of fact and conclusions of law and hold that the three issues the disposition of which justified remand have now been resolved. The court below found, inter alia, that (1) any mistakes which occurred prior to the September 12, 1977 zoning board decision were caused equally by the city, its zoning officials, Puiggros and Puiggros’ neighbors, all of whom were in a more or less equal position to discover the truth; (2) the relevant zoning provision does not clearly apply to the specific facts of this case; (3) the city’s original grant of the building permit could not be attributed solely to Puiggros’ conduct, but equally to the conduct of its own representatives, and finally; (4) Puig-gros relied to his detriment in acting upon the city’s assurances and decisions, and the city was equitably estopped from changing its position and seeking to withdraw the previously-granted permit.

We have carefully considered these conclusions and find “that they satisfy the doubts expressed in our prior decision. Other issues raised by the appellants need not be reached because, as was stated in our prior decision, judgment for Puiggros is justified on equitable estoppel grounds. Accordingly, the final judgment is

AFFIRMED.


text:
    Kenneth Wayne DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-931.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Kenneth Wayne Davis, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. See § 813.011 Fla.Stat. (1973).


author: DAUKSCH, Judge. ORFINGER, Chief Judge,

text:
    RICKER AGENCY, INC., Appellant, v. Claire HOXIE and Jumping Flea Market, Inc., Appellees.
    No. 81-321.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.

      Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant.
    Frank R. Pound, Jr., of Lovering, Pound & Lober, P. A., Cocoa, for appellees.
   DAUKSCH, Judge.

This is an appeal from a summary judgment in an insurance coverage case. Appel-lees were sued for a slip and fall injury sustained on their premises. They sought insurance coverage for the claim and discovered that their Owner, Landlord and Tenant Liability Policy had expired four months earlier. They filed a third party complaint against the appellant, a general lines insurance agency, for negligent breach of an alleged agreement to continue to provide liability coverage. It was alleged the agency was negligent in failing to forward a renewal certificate received from the insurer and in failing to notify the appellees of the expiration of the policy.

The appellant denied any agreement to provide continuing coverage and denied any negligence on its part. The agency raised the affirmative defense of the negligence of the appellees for their own failure to obtain renewal of coverage when the existing policy had expired. Both parties filed motions for summary judgment and the court entered a Summary Final Judgment on the third party complaint in favor of the appel-lees ordering the appellant to assume the defense of the appellees.

The appellant contends that the trial court erred in granting Summary Judgment. We agree. There appears to be some factual support, at the least an inference, for the allegation that the agency was negligent in failing to comply with the alleged agreement. Of course, this will be a contested point, and comparative negligence may apply. There was some dispute as to whether an agreement to continue to provide coverage existed, and even if there had been no dispute, because conflicting reasonable inferences could be drawn from the admitted facts, the question of negligence was peculiarly one of fact. See Daniels v. Weiss, 385 So.2d 661 (Fla. 3d DCA 1980). Furthermore, due to the appellant’s affirmative defense of comparative negligence, it was incumbent upon the appellees (having sought summary judgment) to establish the non-existence of any genuine issue of material fact. See General Development Utilities, Inc. v. Davis, 375 So.2d 20 (Fla. 2d DCA 1979). In order “to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Bunner v. Florida Coast Bank of Coral Springs, 390 So.2d 126, 127 (Fla. 4th DCA 1980). The appellees did not establish that there was no genuine issue as to their own negligence.

Although the facts demonstrate that there was a custom of sending notice to the insureds, that does not lead to the conclusion that as a matter of law that the agency had a legal duty to notify the insureds. Of course at trial it may be proved that the insurance company or the agency, or both, had the duty but this should not be decided by Summary Judgment. There is case law which holds that “when an insurer uniformly follows the practice of giving notice of payment for such a length of time as leads those insured to believe notice will be given, it cannot declare a forfeiture without giving notice or without previously advising the persons who have relied upon receiving notice that the custom will be or has been discontinued.” Federal Crop Insurance Corporation v. Deerfield Groves Company, 195 So.2d 625, 629 (Fla. 4th DCA 1967).

The Summary Final Judgment in favor of the appellees is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

COBB, J., concurs.

ORFINGER, C. J., concurs specially with opinion.

ORFINGER, Chief Judge,

concurring:

I concur in the result reached here. The third party complaint was framed in negligence, not breach of contract. It alleged a duty on the part of the agency to notify the insured of the potential expiration of the policy and of the availability of renewal coverage, and the negligent breach of that duty.

As with any other negligence action, there must be a showing of a duty and a negligent breach thereof proximately resulting in damage. In the absence of any statute or contract, there is no duty as a matter of law which requires an insurer to notify an insured of the time when a premium comes due. A duty may arise, however, by an oral agreement or by a course of conduct between the parties which gives rise to a reasonable belief that there exists an agreement that renewal notices will be sent. See Lewis State Bank v. Travelers Insurance Company, 356 So.2d 1344 (Fla. 1st DCA 1978); Federal Crop Insurance Corporation v. Deerfield Groves Company, 195 So.2d 625, 629 (Fla. 4th DCA 1967).

Here, the very facts giving rise to the alleged duty were in dispute. Since the action was founded in negligence, the comparative negligence of the plaintiffs was a viable defense, and the non-existence of this defense was not conclusively shown by ap-pellee. Therefore, I agree that summary judgment was improper here.


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

text:
    FLORIDA LAND COMPANY, a Florida corporation, Appellant, v. ORANGE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 81-1090.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.

      Ernest R. Drosdick and Timothy J. Manor of Lowndes, Drosdick, Doster & Kantor, P. A., Orlando, for appellant.
    Philip H. Trees of Gray, Harris & Robinson, P. A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order denying its motion for a temporary injunction to enjoin operation of Orange County’s Ordinance 81-14. The motion for temporary injunction is part of a suit which was brought by appellant challenging the constitutionality of the ordinance.

Appellant owns 4,200 acres of land in Orange County which it began to develop in 1973. Appellant contends that by an agreement entered into in 1973 between itself and the County, the County guaranteed to appellant adequate sewage plant capacity at the Sand Lake Road treatment facility to supply its needs.

In December, 1980, however, the County, in response to a suit by the federal government, entered into a consent decree which permitted the County to increase the available sewage treatment capacity at the Sand Lake plant from 7.5 million to 14 million gallons per day. The County then adopted Ordinance 81-14 to allocate this additional 6.5 million gallons per day of additional sewage capacity to potential customers.

Appellant contends that between 1980 and 1990 it would need approximately 300,-000 to 400,000 gallons per day of additional sewage capacity each year but that under the ordinance it would only be entitled to 100,000 gallons per day of additional capacity (see footnote 1). Appellant sued, alleging, inter alia, that the ordinance unconstitutionally impairs its contract rights and deprives it of a vested property right without due process of law.

The narrow question on this appeal is whether the trial court abused its discretion in denying appellant’s motion for a temporary injunction to enjoin operation of the ordinance pending trial. See Playpen South, Inc. v. City of Oakland Park, 396 So.2d 830 (Fla. 4th DCA 1981); Sadowski v. Shevin, 351 So.2d 44 (Fla. 3d DCA 1976), rev’d on other grounds, 345 So.2d 330 (Fla.1977).

A temporary injunction is an extraordinary and drastic remedy whose purpose is to preserve the status quo pending final hearing. Adoption Hot Line, Inc. v. State, 385 So.2d 682 (Fla. 3d DCA 1980). Appellant, as the party moving for a temporary injunction, was required to establish in this case that:

1) it would suffer irreparable harm unless the status quo is maintained;
2) it has no adequate remedy at law;
3) it has a clear legal right to the relief requested; and
4) considerations of the public interest.

Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975). Playpen South, Inc. v. City of Oakland Park; Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980).

Without reaching any of the other factors, we conclude that appellant has failed to establish that issuance of the temporary injunction will serve the public interest. See Playpen South. Indeed, the record indicates exactly the opposite.

In Sadowski v. Shevin, the Third District Court of Appeal remarked that:

Pi. trial court may properly refuse to grant an injunction when it appears that greater injury and inconvenience would be caused to the defendant by granting the injunction than denying it, or where the granting of an injunction will result in confusion, disorder and injury to the public outweighing any individual right to relief the complainant may have.

351 So.2d at 44.

In Fredericks v. Blake, 382 So.2d 368 (Fla. 3d DCA 1980), the Third District Court of Appeal reiterated that an injunction will not be granted where it is readily apparent that it will result in confusion and disorder and produce an injury to the public that outweighs the individual right of the complainant to have the relief sought. See also Bronson v. Board of Public Instruction, 108 Fla. 1, 145 So. 833 (1933).

The evidence presented below indicates that a temporary injunction directed to the ordinance would have a severe impact on the citizens of Orange County. The director of the County’s Utility Division testified that fees in excess of $1 million dollars had been collected under the ordinance and were being used to increase the amount of sewage treatment capacity available at the Sand Lake Road plant. The director further testified that if the ordinance’s operation was enjoined it:

[W]ould create very, very substantial problems for the County and for the Department and ultimately, for the land developers in the area served by the Sand Lake Road treatment plant. ... It would frustrate very substantially the job that we’re trying to accomplish and that is to provide service for the existing and future needs of the County. I think it would be very chaotic under those circumstances.

Clearly in view of this uncontradicted evidence, the trial judge was justified in refusing to temporarily enjoin operation of the ordinance.

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Under the ordinance, applicants for additional capacity are divided into three categories, Types “A”, “B” and “C.”
      Type “A” applicants include those who either: (1) have a permit issued by the State Department of Environmental Regulation (DER) which authorizes connection to the Sand Lake plant without requiring additional permits; (2) have been mandatorily required by the County to connect to the plant; or (3) possess a valid and correct building permit issued before adoption of the ordinance but who have not as of yet connected to the plant.
      Type “B” applicants include those who are otherwise eligible for a Type “A” permit but who failed to acquire such permit because of insufficient capacity and holders of permits issued by the DER which do not authorize connection to the plant in the absence of additional DER permits.
      Type “C” applicants are those who have a current contract with the County for sewage capacity at the plant. This category includes appellant.
      The additional capacity is allocated first among Types “A” and “C” applicants, with each Type “A” applicant entitled to up to 500,-000 gallons a day and each Type “C” applicant entitled to 100,000 gallons per day. The remaining portion of the additional capacity is allocated among Type “B” applicants, though some of this additional capacity may be available to Type “C” applicants if it is not used by Type “B” permittees.

      . This fourth element has been expressly recognized by the Florida Supreme Court on numerous occasions where the public interest would be affected by the granting or denial of a temporary injunction. See, e.g., Wilson v. Sand-strom, 317 So.2d 732 (Fla.1975); Bronson v. Board of Public Instruction, 108 Fla. 1, 145 So. 833 (1933); Florida East Coast Railway Co. v. Taylor, 56 Fla. 788, 47 So. 345 (1908).


text:
    Joe Benjamin UPCHURCH, Appellant, v. Willadean Claudette UPCHURCH, Appellee.
    No. 81-1312.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.
    Robert G. Murrell and Fred Langford of Sam E. Murrell & Sons, Orlando, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks review of an order of the trial court finding him in contempt for nonpayment of child support and committing him to the county jail. Upon consideration that the order fails to indicate a specific finding of appellant’s ability to comply with the underlying order of support and his willful refusal to do so, it is

ORDERED that the above-styled appeal is hereby remanded to the Circuit Court for Orange County, Florida, with directions to make a finding of appellant’s ability to pay child support, if supported by the record, or to vacate the order of contempt. See Fair-cloth v. Faircloth, 339 So.2d 650 (Fla.1976).

REMANDED WITH INSTRUCTIONS.

ORFINGER, C. J., and SHARP and CO-WART, JJ., concur.


author: COWART, Judge.

text:
    MARK REALTY, INC., Appellant, v. Tilman A. ROGNESS, Appellee.
    No. 81-1605.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.

      Frank Clark III, Melbourne, for appellant.
    Thomas E. Shine, Melbourne, for appel-lee.
   COWART, Judge.

This case involves whether a particular brokerage transaction was “an offer for a unilateral contract subject to revocation by the owner at any time before performance by the broker” or whether the transaction constituted a bilateral contract not subject to revocation during the time provided and, if it was a bilateral contract, whether it created an “exclusive agency to sell” or an “exclusive right to sell.”

Appellee, owner, entered into four separate agreements with appellant real estate broker. The agreements were identical in form and substance except for the dates and time periods and property involved. They were entitled “exclusive right of sale” and gave the broker, for a stated period of time, the exclusive right to sell the property for a certain stated price and on certain terms. The broker sued on the four agreements for brokerage commissions, alleging that during the time provided in the agreements the owner had conveyed the four properties. The owner’s answer contained denials of some of the allegations of the broker’s amended complaint and also alleged affirmative defenses to the effect that the owner had “cancelled, revoked and terminated” the brokerage agreements before the properties were sold and that the broker had never performed under the agreements. It is not clear whether the last defense was meant to allege that under the agreements the broker was not entitled to commissions unless the broker procured the purchasers and that the broker did not, or whether the defense was an inartful allegation that the broker had not performed obligations under the agreement thereby breaching them before the sales by the owner.

Following a non-jury trial, the trial judge found that the deed relied on by the broker as a sale of one of the properties (Lot 4, Ocean Residence North, William C. Irvin, et ux, et al) was, notwithstanding its form, a security arrangement and not a sale within the meaning of the brokerage agreement. Appellant having failed to demonstrate that this finding of fact is not supported by. competent substantial evidence, that portion of the final judgment is affirmed.

However, rather than deciding appellant’s claims for commissions as to the other three transactions on the evidence, the trial judge construed the brokerage agreements to constitute mere offers to enter into unilateral contracts under which the broker would be entitled to a commission only if he performed by “finding a purchaser of the above property.”

The trial court was concerned about the fact that the brokerage agreements were stated in the first person, that the owner was “doing all of the agreeing” and that the broker had signed only under words stating “accepted by.” The trial court (1) noted “there is no covenant or promise by the broker to do anything,” (2) concluded that, since the owner’s agreement was “not supported by a consideration in the form of a promise” by the broker, the document was only a promise of the owner to pay in exchange for performance by the broker finding a purchaser, (3) construed the documents as unilateral contracts, or more particularly, as offers for unilateral contracts subject to withdrawal or revocation by the owner at any time before performance by the broker and (4) found, as a matter of fact, that “the offers were revoked by the owner-defendant prior to performance by the plaintiff.” If the documents in question are merely “offers limited to acceptance by performance only,” the trial judge’s analysis and conclusion would be correct. Because of the onesidedness of this type of contract, we may agree that such a construction might reach a more fair result, but we cannot agree that the documents were only offers for a unilateral contract. The documents illustrate what has been termed “the usual practice” in the making of bargains. One party first indicates what he will do and what he requires in exchange and the other then agrees. These documents, when first executed by the owner and tendered to the broker, constituted offers which, when accepted by the broker by his execution, constituted contracts. While the fact that the document was first prepared by the broker may cause any ambiguities therein to be construed against the drafting broker, the form of the instrument is an offer by the owner which was accepted by the broker. The contract is bilateral because it contains mutual promises made in exchange for each other by each of the two contracting parties.

The most common recurring brokerage transaction is one in which the owner employs a broker to find a purchaser able and willing to buy, on terms stated in advance by the owner, and in which the owner promises to pay a specific commission for the service. Such a transaction as this is an offer by the owner of a unilateral contract, an offered promise to pay by the owner, creating in the broker a power of accepting the offer by actual rendition of the requested service. Here the only contemplated contract between the owner and broker is a unilateral contract — a promise to pay a commission for services rendered. Such an offer of a promise to pay a commission for service rendered is revocable by the owner by notice before the broker has rendered any part of the requested service. The owner’s promise to the broker to pay a commission may itself be conditional, as where he promises to pay “on closing of the deal,” etc. The broker’s right to payment is thus made subject to such an additional express condition.

On the other hand, the transaction between the owner and the broker can be a bilateral contract. An owner who puts his land in the hands of a broker for sale usually clearly promises to pay a commission but the broker rarely promises in return that he will produce a purchaser, although he often promises, expressly or impliedly, that he will make certain efforts to do so. If the parties have thus made mutual promises, the transaction no longer has the status of an unaccepted offer — there is an existing bilateral contract and neither party has a power of revocation. During the term of such a contract the owner may withdraw any power the owner has given the broker to contract with a third party in the owner’s name, but this is not a revocation of the contract between the owner and the broker and normally such action constitutes a breach of the brokerage contract unless the owner reserved a power of termination either by notice or by effecting a sale through other channels. In this case, the broker promised to inspect the property, to list the property with a multiple listing service, to advertise the property in the local newspaper or other media, to furnish information to inquiring cooperating brokers and prospective purchasers, to show the property, to make efforts to find a purchaser, to “make an earnest and continued effort to sell,” and to direct the concentrated efforts of his organization in bringing about a sale. The Florida Supreme Court in Flynn v. McGinty, 61 So.2d 318 (Fla.1952), held that, in a contract similar to the instant contract, a clause that required the broker to “endeavor to procure a purchaser” was sufficient consideration for the brokerage agreement. Id.

Not only are the agreements in this case enforceable bilateral contracts, but a reading of the contracts indicates that they granted the broker an “exclusive right of sale” as opposed to an “exclusive agency of sale.” The controlling determination between an “exclusive right of sale” and an “exclusive agency to sell” was also addressed in Flynn v. McGinty. In quoting favorably from the Texas case of Baker v. Skipworth, 244 S.W.2d 299, 300 (Tex.Civ.App.1951), the court stated:

We are of the opinion that the disposition of this case is controlled by a well settled principle. A clear distinction is drawn between the appointment of a broker as an ‘exclusive agent to sell’; and the granting to him the ‘exclusive right to sell.’ In the former contract, the owner does not surrender his own right to sell the property and in the event he does so, is under no obligation to pay a commission to the broker. In the latter case, the broker is entitled to his commission if owner makes sale during the life of the contract. This distinction seems to be valid, based on sound reasoning and is abundantly supported by the authorities. In fact we find no case asserting a contrary rule.

61 So.2d at 320.

Since the contract before the Flynn court “plainly and unequivocally stated that commission will be earned whether the property was sold ‘by myself, or through your instrumentality or any other person,’ ” the court held the contract plainly granted an exclusive right to sell. Flynn v. McGinty has been consistently followed by Florida appellate courts and where the contract clearly gives up the owner’s right to sell without paying a commission, a broker has been held entitled to his brokerage commission upon sale of the property no matter who procures the purchaser. In the instant case, the contract clearly provided that the brokerage commission would be paid “whether the purchaser be secured by you or me, or by any other person. ...” Thus the contract granted the broker an exclusive right of sale and the trial court erred in construing the agreement as an offer of a unilateral contract revokable at will at any time prior to performance.

Since the trial court ruled that the contracts were unilateral and therefore revokable at will, the trial court never reached the issue of whether appellant broker had breached the brokerage contracts prior to the sale by the owner. The owner should be given an opportunity to have the trial court consider that issue; therefore the final judgment is reversed and this cause is remanded for the trial court to consider that issue as a defense to the broker’s claim for a commission under the three contracts. The trial court may take further testimony as it deems necessary for a fair and proper determination of that issue.

AFFIRMED in part; REVERSED in part; and remanded for further proceedings consistent with this opinion.

ORFINGER, C. J., and COBB, J., concur.

      . See note 12, infra.

      . See Restatement (Second) of Contracts § 45 comment a (1981).

      . See 1 Corbin on Contracts, § 50 at p. 194 (1963).

      . See Restatement (Second) of Contracts § 22 comment a (1981).

      . See Lindquist v. Burklew, 123 So.2d 261 (Fla.2d DCA 1960), where the court thought the brokerage contract was “ambiguous” and that it should be interpreted “against the draftsman” (the broker). This case is cited in 3A Corbin on Contracts, § 768 n.1 (1960).

      . 1 Corbin on Contracts, § 21 at 52 (1963).

      . See 1 Corbin on Contracts, § 50 at pp. 195,199 (1963); 10 Williston on Contracts, § 1287 at p. 957 n.l (3rd ed. 1967).

      . 1 Corbin on Contracts, § 50 at 202 n. 88 (1963).

      . See 1 Corbin on Contracts, § 50 at p. 201 n. 87.15 (1963); 3A Corbin on Contracts, § 768 at p. 548 nn. 99, 1 (1960) (see especially the Florida cases cited in the footnotes); 10 Williston on Contracts, § 1287 at p. 961 n. 9, § 1287A at p. 978 n. 18 (3rd ed. 1967).

      . 10 Williston on Contracts, § 1287 at 962 n. 10, § 1287A at 979 n. 9 (3rd ed. 1967).

      . 1 Corbin on Contracts, § 50, p. 195 & n. 81 (1963).

      . Even if an exclusive right to sell did not expressly contain such a covenant on the part of the broker, one may be implied. See 3 Corbin on Contracts, § 567 at p. 331 & n. 63, § 568 at p. 331 & n. 79 (1960). Of course, the broker’s breach of this promised performance prior to a sale by the owner would defeat the broker’s claim for commission.

      . Since courts are slow to take away the owner’s inherent right to sell his property, these contracts are strictly construed; where the contract does not specifically promise a commission upon sale by the owner, it is construed to be simply an “exclusive agency to sell.” See, e.g., Nicholas v. Bursley, 119 So.2d 722 (Fla.2d DCA 1960); cf. Planck v. Traders Diversified, Inc., 387 So.2d 440 (Fla. 4th DCA 1980), review denied, 394 So.2d 1153 (Fla.1981) (typed-in clause controlled over printed form to turn a purported exclusive right to sell into an exclusive agency to sell).

      . See, e.g., Law Realty, Inc. v. Pagliarulo, 385 So.2d 1093 (Fla. 4th DCA 1980); Community Cable Casting Corp. v. Daniels & Associates, Inc., 215 So.2d 17 (Fla. 1st DCA 1968), cert. denied, 225 So.2d 533 (Fla.1969); Whitehurst v. Erstling, 184 So.2d 233 (Fla.3d DCA 1966); Rubin v. Beville, 132 So.2d 783 (Fla. 1st DCA 1961).

      . A clause identical to the clause in the instant case was construed as granting an exclusive right to sell in Rubin v. Beville, 132 So.2d 783, 785 (Fla. 1st DCA 1961) (“The commission . . . is to be paid whether the purchaser be secured by you or me, or by any other person....”) Clauses substantially similar to the clause in the instant case were likewise construed as granting exclusive rights to sell in Flynn v. McGinty, 61 So.2d 318, 318-19 (Fla.1952) (“and in the event of sale of said property by myself or through your instrumentality or any other person ... I agree ... to pay you a coomission [sic] ....”) and Whitehurst v. Erstling, 184 So.2d 233, 234 (Fla.3d DCA 1966) (“commission was to be paid if a purchaser was secured ... by either the plaintiff or defendant or by any other person.... ”). See also Winter v. Surfview Realty, Inc., 400 So.2d 839 (Fla. 5th DCA 1981).


author: DAUKSCH, Judge.

text:
    ACCREDITED SURETY & CASUALTY COMPANY, INC., Appellant, v. STATE of Florida; Sidney Leonard Jaffe and Putnam County, Florida, Appellees.
    No. 81-1657.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.

      James A. Edwards, of Rumberger, Kirk, Caldwell & Cabaniss, P. A., Orlando, for appellant.
    Ronald E. Clark, Palatka, for appellees.
   DAUKSCH, Judge.

This is an appeal from an order regarding an appearance bond in a criminal case.

Sidney Leonard Jaffe was charged with twenty-eight counts of unlawful land sales practices. Appellant, as surety, filed multiple appearance bonds totalling $137,500 on Jaffe’s behalf. Jaffe’s trial was scheduled to begin on May 18, 1981; however, his surety was never notified of the scheduled trial date. On May 18, 1981, counsel for Jaffe appeared before the court and stated his client was still in Toronto, Canada because he had recently suffered a concussion and it would be medically dangerous to make the trip to Florida. The trial court rejected the excuse and estreated the bond .without notice to the surety. On June 29, 1981 the trial court entered a final judgment in favor of the State of Florida for the use and benefit of Putnam County against appellant on the forfeiture of the appearance bonds in the amount of $137,-500. The first notice that the appellant had of any of this activity was the notice of entry of final judgment against it.

On August 7, 1981 appellant filed a motion to set aside the judgment citing as grounds the absence of pre-forfeiture and post-forfeiture notice and Jaffe’s physical infirmities and requested that the court give appellant some hope that if it produced the defendant the forefeiture would be remitted.

On September 18, 1981 the court vacated the final judgment on the following terms:

(a) That the surety, the Accredited Surety & Casualty Company, pay over to Harry W. Odom of Palatka, Florida, who is hereby designated escrow agent of this court and of the Board of County Commissioners of Putnam County, Florida, the sum of one hundred thirty-seven thousand five hundred dollars ($137,-500.00), to be deposited by the said Harry W. Odom, as escrow agent, in a certificate of deposit or other account, which will produce the greatest practical income for a period of not less ninety (90) days, and thereafter, hold the said one hundred thirty-seven thousand five hundred dollars ($137,500.00) plus income produced thereon to be reinvested or disbursed only upon order of this court or its successors.
(b) That the surety, the Accredited Surety & Casualty Company, produce the defendant, Sidney Leonard Jaffe, before this court within ninety (90) days hereof; and that said surety report to this court at thirty (30) day intervals of the progress made toward producing said defendant.
(c) That by the payment of the said sum, the surety, the Accredited Surety and Casualty Company, waives all exceptions to and rights to appeal from the order of estreature entered herein on May 18, 1981.
(d) That upon final order of disbursement herein, income earned upon said deposit shall be divided proportionately.
2. That the surety, the Accredited Surety and Casualty Company, is given leave hereby to petition the court according to the law for the relief as provided by law.

The hearing which resulted in the agreement recited in the order above was not recorded.

Appellant “paid over” the required sum and returned Jaffe to the Putnam County Jail on September 24, 1981. Jaffe was convicted of the twenty-eight counts previously charged.

On November 16, 1981 appellant filed a motion for remission of forefeiture pursuant to section 903.28, Florida Statutes (1979). At the hearing on the motion the county argued at length that Chapter 903 was not controlling because the parties were here pursuant to a tri-party agreement and the trial court had complete discretion to apportion the bond money as it saw fit. The trial court also apparently believed there was a tri-party agreement among the county, the court and the bonding company waiving all deficiencies prior to the date of the rendition of the order incorporating the agreement.

Appellant’s position was that the parties agreed to vacate the judgment and left everybody in their position as provided by law. The court agreed in that statement; however, the trial court also believed the effect of the order was to leave him with complete discretion.

Following the hearing the trial court entered an order reciting its understanding that Chapter 903 was not controlling in the cause and awarding $37,500 to the appellant plus interest earned thereon and $100,000 plus accrued interest to Putnam County. Appellant brings a timely appeal.

The applicable sections of Florida Statutes are recited below: Section 903.27, Florida Statutes (1979) states:

(1) If the forfeiture is not paid or discharged within 30 days and the bond is secured other than by money and bonds authorized in s. 903.16, the state attorney shall file a certified copy of the order of forfeiture with the Clerk of the Circuit Court for the county where the order was made. The clerk shall enter a judgment against the surety for the amount of the penalty and issue execution. The clerk shall furnish the surety company at its home office a certified copy of the judgment within 10 days. If the judgment is not paid within 60 days, the clerk shall furnish the Department of Insurance two certified copies of the judgment and a certificate stating that the judgment remains unsatisfied.
(2) After notice of judgment against the surety given by the clerk of the circuit court, the surety or bail bondsman may within 45 days file a motion to set aside the judgment. The court entering the judgment may at any time set aside the judgment in whole or in part for reasonable cause shown. During the pendency of such motion the court may stay execution on judgment or other process.

and section 903.28, Florida Statutes (1979) states:

(1) Within 1 year after forfeiture, the court may direct a partial or complete remission for reasonable cause. On application within 1 year from forfeiture, the court shall order remission if it determines that there was no breach of the bond. If the surety apprehends and surrenders the defendant within 1 year from forfeiture, the court shall order the forfeiture remitted unless the delay has thwarted the proper prosecution of the defendant.
(2) Application for remission must be accompanied by affidavits setting forth the facts on which it is founded. The State Attorney must be given 5 days notice before a hearing on an application and be furnished copies of all papers. Remission shall be granted on the condition of payment of costs unless the ground for remission is that there was no breach of the bond.

Appellant argues persuasively that the first judgment was wholly void or at least voidable because of a lack of both pre-forfeiture and postforfeiture notice. Because of the lack of pre-forfeiture notice the trial court was duty bound to vacate the judgment when the appellant made a timely motion. In Re: Estate of Maltie v. State, 404 So.2d 384 (Fla. 4th DCA 1981) (Order and forfeiture judgment reversed when no notice of scheduled appearance given); Weaver v. State, 370 So.2d 1236 (Fla. 2d DCA 1979) (Failure to give post-forfeiture notice can constitute good cause to remit a forfeiture); Schaefer v. State, 369 So.2d 443 (Fla. 3d DCA 1979) (Order and judgment reversed for lack of pre-for-feiture notice); Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976) (Order of forfeiture and judgment reversed for lack of pre-for-feiture notice); Resolute Insurance Company v. State, 269 So.2d 770 (Fla. 3d DCA 1972) (Order denying appellant’s Motion to Set Aside Judgment and Discharge surety on grounds of lack of notice reversed);

In Ryan v. State, 380 So.2d 539 (Fla. 5th DCA 1980) this court held that lack of post-forfeiture notice does not require that an order of estreature be set aside; however, this court’s decision in Ryan was predicated on the fact that Ryan had pre-forfeiture notice of the defendant’s scheduled appearance.

Appellant argues that the effect of vacating the judgment was to reinstate the appellant’s right pursuant to section 903.28 to have the forfeiture remitted by apprehending and surrendering the principal which appellant did. Subsection 903.28(1) states in part “if the surety apprehends and surrenders the defendant within 1 year from forfeiture, the court shall order the forfeiture remitted unless the delay has thwarted the proper prosecution of the defendant.” (Emphasis added). Appellees never made an attempt to show that the delay thwarted the proper prosecution of Jaffe.

Vacating the judgment was crucial to the appellant’s claimed right to remission pursuant to section 903.28 because a sister court has held that once a forfeiture judgment is rendered only section 903.27 dealing with setting aside the judgment is operative. Resolute Insurance Company v. State, 289 So.2d 456 (Fla. 3d DCA 1974). However, in Resolute the time for filing a motion to set aside the judgment pursuant to section 903.27 (45 days) had already run. Thus, the court was not confronted with the situation before this court. Once a judgment has been vacated pursuant to subsection 903.27(2) or Florida Rule of Civil Procedure 1.540(b) are appellant’s rights pursuant to 903.28 reborn if the one year time limit has not run? United Bonding Insurance Company v. State, 242 So.2d 140 (Fla. 1st DCA 1970) indicates that those rights are in fact reborn if the whole judgment is set aside. In United Bonding the court held that a judgment entered after a forfeiture was paid was void under section 903.27 and section 903.28 applied to the facts in that case. Logically, because forfeiture statutes are to be strictly construed, Ferlita v. State, 380 So.2d 1118 (Fla.2d DCA 1980), failure to give the statutorily required pre-forfeiture and post-forfeiture notice would also make the subsequent judgment void or at least voidable upon notice of judgment and entitle appellant to the rights afforded it under 903.28.

Appellant did return the principal, Sidney Jaffe, within one year of forfeiture and should be entitled to a complete remission less costs. The trial court and the appellees were under the impression that the trial court’s order vacating the judgment incorporated an agreement between the parties which takes the case outside the parameters of Chapter 903 and makes the trial court’s decision regarding apportionment of the “res” wholly discretionary. Even if appellee’s interpretation of the agreement between the parties and the court is correct, as appellant points out “judicial discretion” does not permit the trial court to act out of whim or caprice without regard to what is right and just under the circumstances. Bryan v. State, 156 So.2d 885 (Fla. 2d DCA 1963). There is not a case in this state dealing with substantially similar facts; however, at least one federal court has held that the remission of only $75,000 of a $100,000 bond was an abuse of discretion when the defendant’s failure to appear resulted in a government search and subsequent apprehension after only four hours. The Eighth Circuit held that the trial court should have remitted $99,000 of the $100,000 bond. Appearance Bond Surety v. United States, 622 F.2d 334 (8th Cir. 1980).

Appellant construes “costs” in section 903.28(2) to mean the costs incurred as a result of the failure of the defendant to appear and/or costs incurred in obtaining his return. There are apparently no cases construing what is meant by costs in subsection 903.28(2); however, appellant’s construction is logical. In the case at bar the only evidence of costs incurred by the State. is an unsigned affidavit detailing costs which may have been incurred as a result of the delay but which may also include, improperly, the cost of prosecuting defendant Jaffe. Additionally, the record contains an unverified bill in the amount of $2,000 by counsel for the county for legal fees in this matter.

We reverse the order appealed and remand this case to the trial court to determine the actual costs expended, if any, by the county as a direct result of the non-appearance of Jaffe. In this case, these costs shall not include any attorney’s fees for the county attorney and this court will not award fees to the appellant, although we have been requested to do so.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: BERANEK, Judge.

text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. Gary GONSIOROWSKI, Appellee.
    No. 81-406.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 1982.
    Rehearing Denied Sept. 10, 1982.

      Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, P. A., Miami, for appellant.
    Mark S. London, Hollywood, Simons & Schlesinger, P. A., Fort Lauderdale, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P. A., Miami, for appellee.
   BERANEK, Judge.

This is an action for personal injury sustained by plaintiff, Gary Gonsiorowski, when he was struck by a diesel locomotive operated by defendant, Florida East Coast Railway Company. The accident occurred on the evening of September 6, 1977, in Hollywood.

Plaintiff, who had been drinking, attempted to cross the railroad tracks at night at a place which was not a designated crossing but was often used as such by numerous persons. Plaintiff tripped over a pile of railroad spikes in an area adjacent to the track and struck his head on one of the rails. Plaintiff sustained a skull fracture, which rendered him unconscious. At this time defendant’s train was proceeding south at 25 miles per hour, blowing its whistle. Still unconscious, plaintiff did not react. Although the engineer saw an object on the track much earlier it was not until the train was 150 feet away that the engineer realized a man was lying on the track and applied the emergency brakes. The train was unable to stop and plaintiff’s legs were severed. There was evidence of faulty brakes on the train. At the conclusion of an extensive trial, the jury rendered a special verdict finding defendant 25% negligent, plaintiff 75% negligent, and assessing damages at $2,000,000. The trial court reduced this amount in accordance with plaintiff’s comparative negligence and issued a final judgment in plaintiff’s favor for $500,000.

The defendant railroad raises two points on appeal, both relating to the issue of plaintiff’s status on the property. Initially, defendant contends the trial court erred in failing to direct a verdict on the grounds that plaintiff was either a trespasser or uninvited licensee as a matter of law, and that the railroad violated no duty to plaintiff as one in this classification. Next, defendant contends that, having failed to direct a verdict, the trial court erred in failing to instruct the jury on the various classifications of persons on the land of another, and the duty owed by the landowner to such persons. Plaintiff urges that the trial court’s instructions were correct and in any event his status was irrelevant to the case.

Taking defendant’s first point, we find no error in the trial court’s refusal to direct a verdict in its favor. Plaintiff suffered two distinct injuries. When plaintiff tripped over the spikes and fell on the track, he was either an undiscovered trespasser or an uninvited licensee. A landowner owes the undiscovered trespasser a duty only to avoid wanton and willful harm to him; he owes an uninvited licensee the additional duty of warning him of any known dangers not open to ordinary observation. Wood v. Camp, 284 So.2d 691 (Fla.1973). If the only evidence offered at trial was that the spikes were in plain and open view, a directed verdict may have been proper. However, there was evidence here that the defendant was on notice that the area was used as a walkway and that the spikes were located in weeds and grass. There was also evidence that the railroad had a program or policy under which such spikes were to be picked up. This presented a jury question on negligence and whether the danger was open to ordinary observation. As to the second injury, which occurred when plaintiff was struck by the train, the trial court quite properly denied a directed verdict. Plaintiff’s status on the property was irrelevant with respect to this injury as it was not caused by the condition of the premises but rather by the operation of the train. See Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967 (Fla.1977); Hix v. Billen, 284 So.2d 209 (Fla.1973). Where the liability of a landowner to a person injured on his property is unrelated to any defective condition of the premises, the standard of reasonable care under the circumstances as set forth in Hix governs. Maldonado, supra. We note that in their briefs the parties distinguish the two injuries and discuss the two incidents separately; however, the trial was not handled in this manner. Even if we were to agree with defendant, at the very most, it was entitled to a partial directed verdict on the first injury alone. A review of the record demonstrates that defendant did not move for a directed verdict on each injury separately. Rather, it requested that a verdict be directed on the entire case. As the trial court correctly denied the motion for directed verdict on the entire case based on the second injury, we find no error. See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977).

Defendant’s second point regarding the court’s failure to instruct the jury on status falls along similar lines. We agree with defendant only so far as to say that the trial court should have instructed the jury on the various classifications of persons on the land and the duty owed to them with respect to first injury only. We agree with plaintiff that his status on the property is irrelevant with respect to the second injury only. Neither party, however, requested the trial court to instruct the jury separately on each injury. Further, the parties agreed to a verdict form which did not differentiate between the two injuries. As the trial court properly instructed the jury as to the second injury and it is impossible to ascertain from the verdict on which injury the jury based its verdict, defendant is unable to establish it has been prejudiced. Under the “two-issue” rule where one of the issues submitted to the jury is free from prejudicial error, it will be presumed that all issues were decided in favor of the prevailing party and a judgment will be affirmed. See Colonial Stores, Inc. v. Scarbrough, supra, and Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla.1980). Had defendant wished to preserve this issue a special verdict form distinguishing the two injuries should have been submitted.

In summary, the case was not presented to the trial court or the jury on the basis of two separate injuries involving distinct theories of liability as to each injury. It is too late to now divide the case accordingly.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


text:
    Arthur ESCALA, Appellant, v. STATE of Florida, Appellee.
    No. 81-1886.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 1982.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s probation revocation but remand for correction. At the conclusion of the probation revocation hearing, the trial court found appellant guilty of trespass. The order of revocation, however, reads guilty of attempted burglary. The State concedes that the written order must be corrected to conform to the trial court’s oral pronouncement. We, therefore, remand this matter to the trial court for correction.

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    In re ESTATE OF Bruno L. BURKHARDT, Deceased.
    No. 82-322.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 1982.
    Thomas A. Groendyke of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Mark S. Roth, Hollywood, for appellee.
   PER CURIAM.

Appellee has filed a confession of error in this court. Accordingly, the order on appeal is reversed and the cause is remanded for further proceedings consistent with this opinion.

LETTS, C. J., and GLICKSTEIN and HURLEY, JJ., concur.


author: BOOTH, Judge.

text:
    STATE of Florida, Appellant, v. Donald Robert BOOTH and Bertram Mark Schwartz, Appellees.
    No. AF-23.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.

      Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellant.
    John D. O’Brien, Panama City, for appel-lee Booth.
    John Steven Berk, Fort Lauderdale, for appellee Schwartz.
   BOOTH, Judge.

The State appeals an order dismissing informations filed against appellees Booth and Schwartz on grounds prosecution on such charges would violate the Florida and United States Constitutional prohibitions against double jeopardy. See U.S.Const. Amend. V; Fla.Const. Art. I § 9. Both the United States and the State of Florida filed charges against appellees after they landed an aircraft loaded with marijuana in excess of 1,000 pounds at Pensacola Airport. The federal indictment contained four counts: Counts I and II alleged conspiracy to possess marijuana in excess of 1,000 pounds and possession with the intent to distribute same, in violation of Title 21, United States Code, Sections 841(a)(1) and 846, and Title 18, United States Code, Section 2; and Counts III and IV alleged conspiracy to import marijuana in excess of 1,000 pounds and importation of same, in violation of Title 21, United States Code, Sections 952 and 963, and Title 18, United States Code, Section 2. The maximum penalty for such offenses was 40 years imprisonment and a fine of up to $125,000. Title 21, United States Code, Section 841(b)(1)(B). Appel-lees were subsequently tried and adjudicated guilty as charged on all four counts in United States District Court. Appellee Booth was sentenced to two twelve-year and two five-year terms of imprisonment, all to run concurrently, and fined $75,000. Appellee Schwartz was sentenced to two fifteen-year and two five-year terms of imprisonment, all to run concurrently, and fined $100,000.

The state information contained three counts: Count I alleged possession of more than 20 grams of cannabis, and Count II, possession with intent to sell same, in violation of Sections 893.13(1)(a) and (e), Florida Statutes; and Count III alleged importation of in excess of 100 pounds of cannabis, in violation of Section 893.135(1)(a). The maximum penalty under Florida law was 40 years imprisonment and a $25,000 fine. Appellees’ motion to dismiss the state information on double jeopardy grounds was granted by the trial court, who found that the interests to be protected and the penalties to be imposed in the state and federal proceedings were substantially similar.

The general rule under the doctrine of “dual sovereignty” is that a defendant may constitutionally be tried for violations of state and federal laws arising from the same criminal episode. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). However, a number of states, while recognizing the continued validity of this doctrine, have declined to permit state prosecution following federal prosecution for the same offense where the interests of both sovereigns are substantially similar. Annotation, “Conviction or Acquittal in Federal Court as Bar to Prosecution in State Court for State Offense Based on Same Facts—Modern View,” 6 A.L.R. 4th 802; Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638, 643 (1971); People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1975).

We adhere to the settled doctrine of dual sovereignty and hold no violations of defendants’ constitutional guarantees against double jeopardy have occurred in this case. The order granting appellees’ motions to dismiss is reversed. The following question is certified to the Florida Supreme Court:

ARE SUCCESSIVE PROSECUTIONS IN FEDERAL AND FLORIDA COURTS ON CHARGES ARISING OUT OF THE SAME TRANSACTION INVOLVING VIOLATIONS OF DRUG LAWS OF BOTH SOVEREIGNS BARRED BY DOUBLE JEOPARDY?

REVERSED and REMANDED.

SHIVERS and JOANOS, JJ., concur.

      . Cf. Hernandez v. State, 397 So.2d 715 (Fla. 1st DCA 1981).


author: THOMPSON, Judge.

text:
    W I T ASSOCIATES and Zurich Insurance Company, Appellants, v. Thomas G. CHISHOLM, Appellee.
    No. AH-413.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    Robert C. Barrett of Cooper & Rissman, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order finding that claimant sustained a compensable injury and awarding claimant temporary total disability (TTD) benefits, reimbursement of taxable costs, and a reasonable attorney’s fee, among other things. We affirm in part and reverse in part.

There is competent substantial evidence that claimant sustained an industrial accident or injury arising out of and in the course of his employment under the repeated trauma theory as enunciated in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA), pet. for rev. den. 388 So.2d 1119 (Fla.1980). Accordingly, we affirm on the compensability issue raised by the E/C.

The deputy commissioner (deputy) awarded claimant TTD benefits from February 28, 1981 to the date of the hearing, continuing for so long as claimant remains TTD. Except for the period of time that Dr. Kleinigger instructed claimant to remain in bed, there is no competent substantial evidence that claimant was TTD. Claimant readily admitted that he did not conduct a job search. His testimony that he was unable to work due to pain and inability to walk properly is not a proper basis upon which to award TTD benefits. See Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). Although Dr. Bilotta and Dr. Shea indicated that claimant was not able to perform his janitorial duties as of certain dates, they did not indicate that claimant was totally unable to perform some other type of work. Additionally, we note that claimant is well educated, as he has his Bachelors, Masters, and Doctorate in Theology, and a diploma in Biblical Languages, and that he has various prior job experiences. Accordingly, we reverse the award of TTD benefits except for the period of bed rest that was prescribed by Dr. Kleinigger and a reasonable time thereafter to conduct a job search. This finding requires that the award of attorney’s fees be remanded for recalculation. See Brevard County Clerk oí Court v. Winslow, 399 So.2d 111 (Fla. 1st DCA 1981).

The order appealed is reversed in part, affirmed in part, and remanded for proceedings consistent with this opinion.

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


author: WENTWORTH, Judge.

text:
    Charles POLK, Appellant, v. STATE of Florida, Appellee.
    No. AH-478.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

After appellant’s probation was revoked, he was sentenced to two years’ imprisonment. The only error raised in this appeal is the failure of the trial judge to allow 87 days of credit for time already spent in jail as required by § 921.161, Florida Statutes. The state does not contest the fact of the alleged error, only the method by which it is raised.

Although a sentencing error may be remedied by the trial court pursuant to a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, it may also be raised by way of direct appeal. See Calhoun v. State, 403 So.2d 1082 (Fla. 1st DCA 1981); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). Therefore, the cause is remanded with directions that the trial court give appellant the appropriate jail time credit on his sentence.

BOOTH and WIGGINTON, JJ., concur.


author: ERVIN, Judge.

text:
    SANLANDO UTILITY CORPORATION and U. S. Fidelity & Guaranty Company, Appellants, v. William T. MORRIS, Appellee.
    No. AI-2.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.

      John R. Gierach of Gierach & Ewald, P.A., Orlando, for appellants.
    J. Michael Matthews of Fisher & Matthews, P.A., Altamonte Springs, for appel-lee.
   ERVIN, Judge.

Under the 1979 workers’ compensation law, claimant and appellee, William T. Morris was awarded temporary total disability (TTD) benefits, remedial care, and attorney’s fees pursuant to Section 440.34(2)(c), Florida Statutes (1979). Because all of the doctors who rated the claimant found him to have achieved maximum medical improvement (MMI) or implicitly so found by rating him as permanently and partially disabled (PPD), we find that, as a matter of law, a TTD award was not proper based on the facts of this case. We reverse on all four points raised by the appellants and remand.

The claimant, a pipeline inspector, was injured while lifting a piece of asphalt on May 15, 1980. He was treated almost exclusively by Dr. Urbach until September 2, 1980, which was the point in time Urbach assigned as the date of MMI. The employer/carrier (e/c), appellants herein, paid medical and temporary disability benefits until this time, but upon receiving Urbach’s medical report determining that the claimant was MMI, these benefits were terminated.

The claimant continued to have residual pains. During October, 1980 he saw Dr. Richards who rated the claimant as PPD. A February, 1981 visit to Dr. Blumen resulted in Blumen’s diagnosis that the claimant had reached MMI at sometime prior to that date. Dr. Dewitt Stanford examined the claimant in late March, 1981 and found him to be PPD. Seven visits with Dr. Lindsey during the summer of 1981 afforded the claimant some relief from his pain. Although Dr. Lindsey did not rate the claimant as temporarily or permanently disabled, he did give him some injections to deaden his pains and decrease inflammation of his joints.

A claim for continued TTD benefits and remedial care was filed. The deputy commissioner rejected much of the foregoing medical testimony in awarding TTD benefits from December 15, 1980 and continuing for so long as the claimant remains in that condition. The deputy gave significant weight to Dr. Lindsey’s report that he was able to improve claimant’s condition, which we find to be in error, since Lindsey’s care was merely palliative rather than remedial in nature. The deputy also judicially noticed that the Social Security Administration had accepted the claimant as “totally disabled” based on a report by a Dr. Kim. Unfortunately, neither the medical report of Dr. Kim nor the letter from the Social Security Administration was placed into evidence.

Without these documents or testimony by Dr. Kim, it is impossible to determine whether the Social Security’s acceptance of the claimant as totally disabled meant its intention to accept him as permanently or temporarily so disabled. Moreover, it was prejudicial error to base an order on reports and papers not placed into evidence. We recognize that we found harmless error in a deputy commissioner’s consideration of a medical report not in evidence in Oriente Express Inn v. Rodriguez, 406 So.2d 55, 56 (Fla. 1st DCA 1981). That case is easily distinguished, because the erroneously considered report had no “significant bearing on the deputy’s conclusions.” Considering that Dr. Kim’s medical report and the Social Security acceptance of the claimant as “totally disabled” are the only pieces of evidence that might medically refute the fact that the claimant has reached MMI, we find that “but for the error complained of, a different result would have been reached at the” hearing. Wallace v. Rashkow, 270 So.2d 743, 745 (Fla. 3d DCA 1972). Consequently, consideration of these documents cannot be said to have been harmless error and was improper.

The deputy commissioner was confronted on one hand with the claimant’s bare complaints of pain, claimed inability to work, and the foregoing erroneously considered evidence, as the basis for finding that the claimant had not reached MMI. On the other hand, a phalanx of competent, expert medical opinion asserted that the claimant had achieved MMI. We recognize that in determining whether a claimant is temporarily disabled and what degree of disability he has, a deputy may in some instances credit lay testimony and reject contradicting medical opinion. See Square G. Construction Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982). However, this case does not present a question of whether a claimant may have sustained a temporary disability or indeed any degree of disability. Square G. is distinguishable, because the case before us presents a question as to whether the claimant could even be temporarily disabled when all of the competent medical evidence indicates that he has reached MMI.

We noted in Ardmore Farms v. Squires, 395 So.2d 268, 270 (Fla. 1st DCA 1981), that as to whether one has reached MMI, “A claimant’s testimony may be considered on the question, but it cannot replace the treating physician’s expert opinion as to when temporary disability ends and permanent disability begins.” This is because the question of whether a claimant has reached MMI is essentially a medical question that is most persuasively answered by medical experts. Id.

Excluding consideration of the improperly considered medical reports, the essence of the deputy commissioner’s determination was that the claimant had not reached MMI based upon the claimant’s bare complaints of pain and assertions of inability to work in total derogation of the abundant expert medical opinion to the contrary. Clearly, the claimant’s testimony in this case was not competent to sustain a finding that he was not yet MMI. In the face of substantial competent evidence, we recognize that factual determinations by a deputy commissioner are normally not to be reweighed by an appellate tribunal even though substantial evidence may be mar-shalled to counter the deputy’s determinations. Redding v. Cobia Boat Co., 389 So.2d 1003, 1004 (Fla.1980); Croft v. Pinkerton-Hayes Lumber Co., 386 So.2d 535, 536-537 (Fla.1980). However, this rule evaporates when, as here, there is no competent evidence to support a deputy’s conclusions.

We think this case is factually similar to Gilbarco, Inc. v. LeRoux, 411 So.2d 1031 (Fla. 1st DCA 1982) in which a deputy was found to have erred in accepting a claimant’s testimony that she was not MMI in the face of overwhelming medical evidence to the contrary. Consequently, we reverse the deputy commissioner’s determination that the claimant became TTD on December 15, 1980, because the medical evidence indicates that he had reached MMI. Although the doctors agree that the claimant had achieved MMI, there are conflicting factual inferences as to the exact date of MMI. Therefore, remand is necessary for the purpose of ascertaining the precise date of MMI.

In passing, we note that even if the claimant had prevailed in showing that he was not yet MMI, but was temporarily disabled, he would still fail to recover benefits. Without medical testimony that he was unable to work, he would have been required to conduct a search for employment, which he failed to do. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275, 276 (Fla. 1st DCA 1981) (TTD); Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982) (temporary partial disability). Since it is apparent that the claimant is no longer temporarily disabled, the award of remedial care must also be reversed. See Lake County Commissioners v. Walburn, 409 So.2d 153, 155 (Fla. 1st DCA 1982); Killebrew Manufacturing Co. v. Dawson, 401 So.2d 876, 877 (Fla. 1st DCA 1981).

The claimant also sought attorney’s fees pursuant to Sections 440.34(2)(a), (b), (c), Florida Statutes (1979). The deputy commissioner did not rule on the possibility of a fee award based on the first and second sub-sections, because he found that a fee award was justified pursuant to Section 440.34(2)(c). This award stemmed from the e/c’s controversion of the claimant’s right to any benefits after September 2, 1980. However, the judicial gloss placed upon this particular statutory sub-section permits a claimant to recover fees, only if the e/c has paid no medical or disability benefits. Bill Watson’s International Inn v. Claiborne, 409 So.2d 1208 (Fla. 1st DCA 1982); Four Quar ters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981); Walt Disney World Co. v. May, 397 So.2d 1003 (Fla. 1st DCA 1981); Ardmore Farms, supra, at 270.

The e/c, having paid medical and temporary benefits until September 2, 1980, has obviously removed itself from the type of situation allowing the imposition of sanctions implicit in the award of Section 440.-34(2)(c) fees. The fee award is reversed. However, we remand this case so that the deputy may address the issue of the propriety of a fee award based on Sections 440.-34(2)(a), (b), and for the determination of the precise date of MMI. Our remand is without prejudice to the claimant’s right to establish an entitlement to an award of permanent disability benefits.

Reversed and remanded for further consistent proceedings.

McCORD and JOANOS, JJ., concur.

      . Case authority suggests that when all the evidence on a particular point is in deposition form certain limited situations do permit an appellate tribunal to reweigh the evidence in the workers’ compensation setting. See Kelly v. Florida Atlantic University, 413 So.2d 833 (Fla. 1st DCA 1982); Haga v. Clay Hyder Trucking Lines, 397 So.2d 428, 431 (Fla. 1st DCA 1981), rev. denied, 402 So.2d 609 (Fla.1981); Morrison Merchandising Corp. v. Rambeau, 377 So.2d 234, 236 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 640 (Fla.1980).

      . As a general rule for TTD purposes, bare complaints of pain will not excuse a search for employment, Lindsley Home Care Centers v. Fuster, 413 So.2d 810 (Fla. 1st DCA 1982), especially in the face of medical testimony as to a claimant’s ability to work. Forming Contractors v. Barry, 413 So.2d 132 (Fla. 1st DCA 1982). Further, this case does not fall within the narrow situation excusing a work search noted in Square G. Construction, supra, at 399-400 at n. 4, wherein a claimant sought TTD benefits for a very limited six-week period without a medical opinion that he could not work. Claimant’s comprehensive testimony was confirmed by the deputy who personally observed the claimant at the end of the period of requested benefits, and there was only one medical expert’s testimony presented that was contrary to the claimant’s testimony.

        Square G. properly recognizes that lay testimony as to temporary medical or functional disability is competent evidence for a deputy to consider. See, e.g., Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240, 243-244 (Fla.1959); 3 Larson, Workmen’s Compensation § 79.52 (1976). This is because, as noted by Professor Larson in his treatise, supra, at § 79.53, lay testimony is of probative value in establishing matters such as the existence and location of pain, as well as the sequence of events leading to the compensable condition and the inability of a claimant to perform certain work. Accord, Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Further, deputy commissioners generally become expert in analyzing medical facts and lay testimony as to a compensable condition. Accord Magic City Bottle, supra, at 243. These considerations are particularly relevant to ascertaining the presence and degree of temporary disability, cf. Ardmore Farms, supra, at 270, because “disability is not a purely medical question: It is a hybrid quasi-medical concept, in which are commingled in many complex combinations the inability to perform, and the inability to get, suitable work,” Larson, supra, § 79.53 at 15-271.
      We point out that, as Professor Larson states and Square G. implicitly recognizes, as the period of claimed temporary disability lengthens, as the attendant medical facts become more complicated, when the deputy’s personal observations of the claimant take place at a time other than during the claimed period of temporary disability, and as the number of medical experts testifying counter to the claimant’s position (unsupported by medical opinion) grows, the value of lay testimony as to temporary or functional disability, or inability to work decreases. See generally, Larson, supra, at §§ 79.52-79.54.


text:
    DADE PROPERTY MANAGEMENT, INC. and Chubb Group of Insurance Companies, Appellants, v. Orestes LAZO and Division of Workers' Compensation, Appellees.
    No. AI-24.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.

      H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Williams & Zientz, P.A., Coral Gables and Joseph C. Segor, Miami, for appellees.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending, inter alia, that the deputy commissioner (deputy) erred in finding that claimant’s pre-existing coronary artery disease was aggravated by unusual stress not routine to his job, and in finding a causal connection between the aggravation of the pre-existing disease and the necessity for subsequent coronary bypass surgery. We reverse.

On October 6, 1979, the claimant carried two mattresses from a storeroom in an apartment complex to the apartment of one of the employer’s tenants. The claimant testified that while he was in the process of moving the second mattress, he experienced an episode of severe chest pain which lasted for approximately half an hour. According to the claimant, he immediately sought treatment from Dr. Lazo, who told him that his condition would require hospitalization. However, Dr. Lazo’s records show that claimant was seen on October 5, 1979, the day before the alleged industrial accident, and include no indication that claimant was seen on October 6. In any event, it is uncontradicted that claimant did not enter American Hospital until October 8, and that he was completely asymptomatic when admitted. On October 11, 1979 claimant underwent a coronary angiogram, which resulted in a diagnosis of severe coronary arteriosclerosis and a recommendation that bypass surgery be performed. Claimant was admitted to Mt. Sinai Hospital on October 22 for aortocoronary bypass surgery which was performed on October 24. The claimant remained pain free and asymptomatic at the time of his admission to Mt. Sinai.

Although the claimant testified both on deposition and at the hearing that he had been in perfect health prior to October 6, 1979; and had never before experienced chest pains or other symptoms of heart disease, this testimony was conclusively refuted by medical records indicating that claimant had a long history of chest pain and other anginal symptoms. Claimant’s treating cardiologists found evidence that he had suffered a small myocardial infarction, but determined that the infarction had occurred prior to the date of the alleged accident. The only medical evidence tending to establish that there was any relationship between the alleged industrial accident and the necessity for bypass surgery was the testimony of Dr. Gilbert, who was not a cardiologist, and who saw claimant on only one occasion some 11 months after the alleged accident. Dr. Gilbert’s opinion as to causation was based on a hypothetical question which included “facts” which have no support in the record. Accordingly, his opinion does not constitute substantial, competent evidence as to causation and the deputy erred in relying thereon. D’Avila, Inc. v. Mesa, 381 So.2d 1172 (Fla. 1st DCA 1980); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275, 276 (Fla. 1st DCA 1981). The competent medical evidence in this case clearly demonstrates that claimant’s bypass surgery and disability related thereto were caused by pre-existing severe and symptomatic congestive heart disease, and that claimant’s October 6, 1979 angina was nothing more than a transitory manifestation of the underlying disease, which resolved itself without residual effect on claimant’s heart condition. Here, unlike the situation presented in Nationwide Utilities, Inc. v. Hord, IRC Order 2-3746 (March 23, 1979), cert. den. 381 So.2d 768 (Fla.1980), there was no evidence that claimant’s heart condition was rendered unstable or was otherwise aggravated by the angina.

We are aware that under the rule of Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), a simple anginal episode without sequelae will nevertheless be compensable if the anginal episode itself causes disability or necessitates medical treatment. Sears Roebuck & Co. v. Weston, IRC Order 2-3730 (March 8, 1979). Here, the evidence shows that claimant entered American Hospital for diagnostic studies based on his doctor’s recommendation made prior to the date of the alleged industrial accident. Under these circumstances, it cannot be said that the medical treatment and disability which commenced on October 8, 1979 resulted from the anginal episode of October 6, 1979. The order is REVERSED.

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


text:
    AMOCO CONTAINER COMPANY and Amoco Oil Company, Appellants, v. Mohabeer SINGH, Appellee.
    No. AI-81.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    No appearance for appellee.
   PER CURIAM.

The employer/carrier appeals a workers’ compensation order awarding claimant “an examination, evaluation and treatment, if necessary, by an orthopedic surgeon in New York City.” We reverse. All three of the treating physicians testified that claimant had reached maximum medical improvement with no permanent impairment or restrictions. Absent a conflict in the medical evidence, the employer/carrier may not be required to bear the expense of an evaluation by an additional physician based merely on claimant’s assertions of continued pain. K-Mart Corporation v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979); Lu-Mar Enterprises, Inc. v. Mazur, 8 FCR 248 (1974). Instead, claimant must demonstrate that such further medical evaluation and/or treatment is reasonably required by the nature of the injury or the process of recovery. Bryant v. Elberta Crate & Box Company, 156 So.2d 844 (Fla.1963). Since no such showing was made in this case, the award of an additional evaluation by an orthopedic surgeon in New York City was erroneous.

REVERSED.

MILLS, BOOTH and THOMPSON, JJ., concur.


text:
    HARPER PLUMBING & HEATING and Hewitt, Coleman & Associates, Inc., Appellants, v. Thomas BOYD, Appellee.
    No. AI-421.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    Robert C. Barrett of Cooper & Rissman, Orlando, for appellants.
    J. David Parrish of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding temporary partial and total disability benefits resulting from an industrial accident of June 20, 1980, and finding claimant entitled to a reasonable attorney’s fee and costs. The employer/carrier contends that the deputy’s finding that claimant did not voluntarily limit his income pursuant to Section 440.15(4)(b), Florida Statutes, is not supported by competent substantial evidence, and that the deputy further erred in finding claimant’s attorney entitled to a fee. We reverse.

The deputy may rely on the claimant’s account of his ability to work when this issue “does not require medical expertise but rather lies within the actual knowledge of the claimant or is readily observable by lay people.” However, a claimant’s “bare complaints of continued pain so that the claimant feels unable to work is not the sort of injury that is so observable” and is insufficient in itself. Lindsley Homecare Centers v. Fuster, 413 So.2d 810, 811 (Fla. 1st DCA 1982). See also Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981). Here, as the claimed inability to work was not readily observable, claimant’s testimony that he did not feel capable of working his scheduled hours was insufficient. The order failed to specify any reason for rejecting the uncontroverted testimony of claimant’s physicians that he was “more than capable” of performing light work as a night watchman. Therefore, the deputy’s finding that claimant did not voluntarily limit his income pursuant to Section 440.-15(4)(b), Florida Statutes, is not supported by competent substantial evidence and must be reversed. The cause is remanded for a determination of claimant’s temporary partial disability benefits based on the wages he would have earned as a night watchman had he not voluntarily limited the hours he worked.

The deputy’s finding that the employer/carrier acted in bad faith in computing claimant’s temporary partial disability benefits is also unsupported by competent substantial evidence. The servicing agent’s conclusion that claimant was voluntarily limiting his income by working fewer hours was reasonable under the circumstances of this case. Where reasonable excuse exists for the nonpayment of benefits, an award of attorney’s fees on the basis of bad faith is not proper simply because the deputy disagrees with the employer/carrier’s assessment of claimant’s condition and later determines that benefits should have been paid. Walt Disney World Company v. May, 397 So.2d 1003 (Fla. 1st DCA 1981). Therefore, the deputy’s finding of bad faith and of the claimant’s entitlement to an attorney’s fee is reversed.

REVERSED and REMANDED for proceedings in accordance with this opinion.

MILLS, BOOTH and THOMPSON, JJ., concur.

      . The employer/carrier obtained the job as a night watchman for claimant, paying $5.00 per hour. The position required an average of approximately 30 hours work per week and involved no climbing, lifting, bending, or walking over rough terrain. The claimant’s duty was to walk around property the approximate size of a football field at irregular intervals and to punch in on two clocks. When not walking, he remained in an enclosure which was lighted and heated, and was provided with a chair to enable him to sit or stand as he desired. Dr. madison, claimant’s treating orthopedic surgeon, stated that claimant was “more than capable” of performing this job, and there is no medical evidence whatsoever that the position exceeded claimant’s physical restrictions. Nevertheless, after approximately one month on the job, claimant began to miss work, and conceded that he sometimes left the premises unsecured without contacting supervisors to advise he was leaving. After repeated warnings, claimant was eventually terminated for excessive absenteeism.