text:
    Miguel Junior HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-287.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 15, 1982.
    Michael Salnick and Robert Springer of Kohl, Springer, Springer, Varner, Mighdoll & Salnick, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. However, we remand for correction of the order revoking the appellant’s probation. The written order of revocation must conform to the court’s oral pronouncement. Burton v. State, 382 So.2d 835 (Fla. 4th DCA 1980); Towson v. State, 382 So.2d 870 (Fla. 4th DCA 1980).

Affirmed and Remanded with directions.

BERANEK and WALDEN, JJ., and OWEN, WILLIAM G, Jr., (Retired) Associate Judge, concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Robert E. HESSON and Virginia C. Hesson, husband and wife, Appellants, v. WALMSLEY CONSTRUCTION COMPANY, a Florida corporation, Walmsley Homes, Inc., a Florida Corporation, Thomas Walmsley, Thomas B. Walmsley, Robert Walmsley and Gareth Walmsley, jointly and severally, Appellees.
    No. 81-1906.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 3, 1982.
    Robert C. Hesson, of Hazen & Morris, P.A., Venice, for appellants.
    W. Russell Snyder, Venice, for appellees.
   SCHEB, Judge.

In this opinion we discuss the applicability of the doctrine of implied warranty of habitability to the sale of a new house and lot by a builder-vendor to an original purchaser.

In 1975 appellants purchased a house and lot from appellees. The house was new, having just been completed by appellees, the builders, who selected the lot and sold the house and lot as a package. A year or so later, cracks developed in the house, presumably from the house settling on the lot. Appellants sued appellees on four theories: breach of contract, fraud, negligence, and breach of implied warranty of habitability. The trial court directed a verdict in favor of appellees on the contract and fraud counts,- and the case went to the jury on the counts alleging negligence and breach of implied warranty. The jury returned its verdict in favor of appellees, and the trial court entered final judgment thereon. This appeal ensued.

Appellants challenge several of the trial court’s instructions to the jury. The only point that merits discussion is their contention that the court erred in declining to give their requested instruction that the test for breach of implied warranty of habitability is whether the premises met ordinary, normal standards reasonably expected of living quarters of comparable kind. We reject the other points raised by appellants.

Contrary to appellants’ requested instruction, the court instructed the jury that if no substantial defects existed in the construction of the house and the settlement was caused by subsurface conditions of the land, then the jury’s verdict should be for the appellees. Therefore, we focus on the issue of whether the trial judge erred in not instructing the jury that the implied warranty of habitability extended to the entire package, i.e., the house and lot sold by the builder-vendor appellees.

Prior to the 1960’s the rule in most states with regard to the sale of new homes was that unless there was an express warranty, absent fraud, caveat emptor applied. Caveat emptor has largely disappeared in respect to many transactions involving sales of personal property, yet the doctrines of real property law have tended to inhibit the application of implied warranties in respect to real estate transactions. See Fegeas v. Sherill, 218 Md. 472, 147 A.2d 223 (1958); 7 S. Williston, A Treatise on the Law of Contracts §§ 926, 926A (3d ed.1963). In recent years, however, there has been a tendency for courts to hold developers who sell real property responsible for the quality of their products. See generally Note, Liability of the Builder-Vendor Under the Implied Warranty of Habitability — Where Does It End?, 13 Creighton L.Rev. 593 (1979); Note, Housing Defects: Homeowners’ Remedies — A Time for Legislative Action, 21 Washburn L.J. 72 (1981).

A number of states now hqld that implied warranties of fitness and habitability arise from the sale of new homes.' See generally Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971); Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Conyers v. Molloy, 50 Ill.App.3d 17, 7 Ill.Dec. 695, 364 N.E.2d 986 (1977); Theis v. Heuer, 264 Ind. 1, 280 N.E.2d 300 (1972); Loch Hill Construction Co. v. Fricke, 284 Md. 708, 399 A.2d 883 (1979); Banville v. Huckins, 407 A.2d 294 (Me.1979); Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974); McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979); Lyon v. Ward, 28 N.C.App. 446, 221 S.E.2d 727 (1976); Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974); Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 (1975); Tavares v. Horstman, 542 P.2d 1275 (Wyo.1975). However, a few states still refuse to decide that there are implied warranties of fitness in the sale of a new home. See P.B.R. Enterprises, Inc. v. Perren, 243 Ga. 280, 253 S.E.2d 765 (1979); Bruce Farms, Inc. v. Coupe, 219 Va. 287, 247 S.E.2d 400 (1978). Since adoption of the modern rule by an increasing number of states, the doctrine of implied warranty has been one of continuing development.

In Gable v. Silver, 264 So.2d 418 (Fla.1972), the Florida Supreme Court held that implied warranties of fitness and merchantability extend to the purchase of new homes or condominiums from builders. Whether the warranty extended to subsurface conditions was not an issue in Gable. The following year, in Burger v. Hector, 278 So.2d 636 (Fla. 1st DCA 1973), the First District refused to extend the doctrine of implied warranty to a builder where damage to a new house was caused by the subsoil condition on the lot purchased separately by the owner.

In recent years it has become more common for purchasers of new homes to buy a package, i.e., a house and lot, from a builder rather than merely to select a lot and have a house constructed thereon. As courts have recognized this trend, many have concluded that the implied warranty of habitability is breached not only because of structural defects, but also because of the unsuitable nature of the site on which the house was built.

In House v. Thornton, 76 Wash.2d 428, 457 P.2d 199 (1969), the Washington Supreme Court held that a builder-vendor who sells a new house impliedly warrants that the foundations supporting it are firm and secure, and that the house is structurally safe for the purchaser’s intended purpose of living in it. This, the court noted, applied whether subsequent damage came from instability of the land, or from defects in the foundation’s design or installation. The court opined:

As between vendor and purchaser, the builder-vendors, even though exercising reasonable care to construct a sound building, had by far the better opportunity to examine the stability of the site and to determine the kind of foundation to install .... [TJheir position throughout the process of selection, planning and construction was markedly superior to that of their first purchaser-occupant .... [0]f the innocent parties who suffered, it was the builder-vendor who made the harm possible.

457 P.2d at 204. See also Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 154 N.W.2d 803 (1967); Mulhern v. Hederich, 163 Colo. 275, 430 P.2d 469 (1967); Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963).

In holding that the implied warranty of habitability required the builder-vendor to supply potable water from a private well, the court in Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), also commented that a developer has the better opportunity to examine the suitability of the home site and to determine what measures should be taken to provide a home fit for habitation. Continuing, the Pennsylvania Supreme Court stated:

As between the builder-vendor and the vendee, the position of the former, even though he exercises reasonable care, dictates that he bear the risk that a home which he has built will be functional and habitable in accordance with contemporary community standards.

288 A.2d at 776, 777.

We agree with the rationale of these decisions extending the doctrine of implied warranty to a builder-vendor of a new house and lot sold as a package to the original purchaser. As noted, the builder-vendor is in a better position than the buyer to investigate the quality of the land to support the house. In most instances the builder is the professional, the buyer the amateur. Moreover, we believe that by placing the risk of furnishing the buyer a functional home on the builder-vendor, the builder will be encouraged to exercise greater care in selection of building sites. From an economic standpoint the builder-vendor can more readily handle the risk of subsurface defects and can more effectively cover these risks at a lesser cost than a purchaser.

In fairness to the trial court, we note that there were previously no Florida decisions which focused directly on the scope of implied warranties within the context of this case. Nevertheless, we have concluded that the trial court erred in failing to instruct the jury that the implied warranty of habitability extends to the entire package offered by the builder-vendor, including the house and lot.

The test for a breach of implied warranty is whether the premises meet ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality. Putnam v. Roudebush, 352 So.2d 908 (Fla.2d DCA 1977). We hold there is an implied warranty of habitability in the package sale of a new house and lot by a builder-vendor to an original purchaser. Of course, the implied warranty extends only to conditions in existence at the time of sale, as it would be unfair to hold a builder-vendor liable for defects caused by conditions occurring subsequent to sale, e.g., natural catastrophies, such as earth tremors and sink holes. Further, this holding does not extend to lots owned by the purchaser on which the builder constructs a house, i.e., Burger v. Hector, or to the sale of used homes. Strathmore Riverside Villas Condominium Association v. Paver Development Corp., 369 So.2d 971 (Fla.2d DCA 1979).

One final point should be mentioned. Disclaimers under the Uniform Commercial Code cannot apply here since the seller is not a “merchant,” and the house and lot are not “goods” within sections 672.104 and .105, Florida Statutes (1981). See Gable v. Silver. However, we know of no reason why parties to a contract cannot mutually agree on the reallocation of risks such as subsurface conditions if the disclaimer is in clear and unambiguous language and clearly reflects both parties’ expectations as to what items are not warranted. See Sloat v. Matheny, 625 P.2d 1031 (Colo.1981); Note, Housing Defects: Homeowners Remedies — A Time for Legislative Action, at 88.

We reverse the judgment for the appel-lees on the breach of implied warranty count; otherwise, we affirm. We remand for a new trial on the issue of implied warranty consistent with the views expressed in this opinion.

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


author: PER CURIAM.

text:
    CONSHOR, INC. and Liberty Mutual Insurance Company, Appellants, v. Donald BARNHART, Appellee.
    No. ZZ-242.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 9, 1982.
    Albert M. Frierson, Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Richard I. Cervelli, Naples, for appellee.
   PER CURIAM.

The claimant in this worker’s compensation proceeding was awarded 100% wage loss benefits based upon the deputy commissioner’s finding of one percent (1%) permanent partial disability of the body as a whole. We reverse the award of wage loss benefits because the evidence presented by the claimant fails to meet the minimum standards required for an adequate work search.

The 28 year old claimant has a high school education and one semester of college. When questioned regarding his work search he was unable to identify the specific businesses or enterprises at which he had submitted an application for employment. Although he indicated that he had personally sought work at a McDonald’s to do cleanup work, he admitted that he told the prospective employer that he couldn’t do that work. He applied for a job with a pool company cleaning pools, and also filled out an application with an auto wrecking company. However, he declared at the hearing that he knew he could not do either of these jobs. He told the pool company that his back hurt, and that he was in pain. There is no indication that he represented himself to either employer as a likely prospect for employment. In fact, all indications from his testimony are that he made his complaints of pain quite obvious, yet he had “no idea” why no job was offered.

The claimant’s testimony further reveals that although he made some telephone inquiries, without success, he failed to even register with the Florida Employment Service, and made no effort to seek vocational rehabilitation or counselling.

To the extent that the deputy commissioner’s approval of the work search evidence in this case might have been influenced by the assumption that less effort to find work is imposed on a claimant seeking wage loss benefits under the new act, we hasten to reject this notion. A recent decision of this court has altered the consequences of an inadequate work search or insufficient evidence of the search. Another recent decision has dealt with the effect, on entitlement to wage loss benefits, of conditions beyond the control of the claimant. However, the requirement of an adequate and good faith work search has not been relaxed, nor has the necessity for production of competent substantial evidence to prove compliance with that requirement. See, e.g., Pan Am Tobacco Corporation v. Brown, 416 So.2d 1211 (Fla. 1st DCA 1982). It is evident — as the deputy commissioner here recognized in his order —that the new act has significantly enhanced the E/C’s burdens with respect to rehabilitation and reemployment of the injured worker. See, Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982); Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA 1982); Viking Sprinkler Co. v. Thomas, 413 So.2d 816 (Fla. 1st DCA 1982). It is also true, however, that the claimant must cross the work search threshold when required by the facts of the particular case.

Because the finding of an adequate work search is not supported by competent substantial evidence, we are compelled to reverse the order awarding 100% wage loss benefits. •

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

      . This deficiency alone demonstrates the claimant’s failure to meet even minimum evidentiary standards for proof of an adequate and good faith work search. See, Regency Inn v. Johnson, 422 So.2d 870, 872 (Fla. 1st DCA 1982), citing Milex Southern Medical Inc. v. Osuna, IRC Order 2-3763 (1979), cert. den. 383 So.2d 1200 (Fla.1980), for the statement that work search evidence should include the names of the businesses contacted, the type of work sought, the number of contacts made, and the time frame within which work was sought.

      . Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), inadequate work search not res judicata.

      . Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), inability to find employment because of economic conditions does not bar recovery of wage loss benefits.

      .The deputy commissioner’s order provided, in part: “The policy of the present workers’ compensation act imposes squarely upon the employer and its carrier the duty to rehabilitate and reemploy a claimant who has suffered an industrial injury. It is now, therefore, up to the employer and the carrier to meet its burden, or, in the alternative, to continue to pay wage loss as may be appropriate until the Claimant, through his own initiative, finds suitable employment. Thus, there is a continuing obligation on both claimant and Employer/Carrier to work together jointly to explore and ultimately reenter the open labor market.”


author: WIGGINTON, Judge.

text:
    PENNINGTON GRAIN AND SEED, INC., a Georgia corporation, Appellant, v. Edward Howard TUTEN and Producers Corporation of Madison, a Florida corporation, and John L. Tippette and Producers Corporation of Madison, a Florida corporation, Appellees.
    Nos. AD-323, AD-324.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 16, 1982.
    George D. Gabel, Jr., Russell W. La Peer and James J. Taylor, Jr., of Wahl & Gabel, Jacksonville, and Clark C. King, Jr., of Lord, Bissell & Brook, Chicago, Ill., for appellant.
    Ernest A. Sellers and Andrew J. Decker, III, of Airth, Sellers & Lewis, Live Oak, and Edwin P. Browning, Jr., Madison, for Tuten and Tippette, appellees.
    Thomas E. Stone, Madison, for Producers Corp., appellee.

      John P. Manwell of Kirkland & Ellis, Washington, D.C., for American Seed Trade Ass’n, amicus curiae.
    W. Ross Foote of Trimble, Randow, Percy, Smith, Wilson & Foote, Alexandria, La., for Southern Seedsman Ass’n, amicus curiae.
   ON MOTION FOR REHEARING

WIGGINTON, Judge.

Having considered Appellees’ Motion for Rehearing, we grant the motion and withdraw the opinion previously filed in this cause, substituting the following decision and opinion in lieu thereof.

This is a consolidated appeal by Pennington Grain and Seed, Inc., of Madison, Georgia, from judgments based on special jury verdicts finding the corporation negligent and liable for breach of both express and implied warranties pertaining to the sale of soybean seeds. We have jurisdiction of this cause pursuant to Section 48.193, Florida Statutes (1981). See generally, Pennington Grain & Seed, Inc. v. Murrow Brothers Seed Co., Inc., 400 So.2d 157 (Fla. 1st DCA 1981).

The record in this cause is voluminous but the pertinent facts are relatively simple. Appellees Edward Howard Tuten and John L. Tippette are farmers living in Madison County, Florida. In February, 1977, at Tip-pette’s farm, they contracted to purchase 600 bushels of soybean seed from appellee Producers Corporation of Madison, Florida, a local warehouse-retailer of grain and seed, expressly specifying to the salesman that the seed be certified Bragg variety and have an 80% germination rate. In April of 1977, Tuten and Tippette went to Producers and paid for the seed. After payment, they were led into the warehouse to where the seed was stored in order to determine their location and to check the tags. Their 600 bushels were part of 700 bushels of soybean seed which were sold to Producers by Pennington Grain and Seed, Inc. of Vidalia, Georgia.

In January of that year, Pennington of Madison entered into a contract with Murrow Brothers Seed Company, Inc., a Georgia producer and processor of seeds, to purchase 10,000 bushels of Georgia certified Bragg soybeans. In March, 1977, Pennington of Madison assigned 700 bushels of that contract to Pennington of Vidalia. Murrow Brothers, as directed by Pennington of Madison, shipped the seed directly to Producers who in turn paid Pennington of Madison (hereinafter Pennington).

Portions of three different lots of the Bragg seed, lots PB76-182, PB76-184 and PB76-188, were those purchased by Tuten and Tippette in April. Each seed bag bore a tag reflecting a germination rate of 80%, as required by Sections 578.09(2) and 578.-13(l)(b), Florida Statutes (1977), and a “warranty” stating:

PENNINGTON SEED, INC. (Pennington) warrants to the extent of the purchase price only, that the seed in this container are as described on the label within recognized tolerances. Should this not be the case and proof is given, Pennington’s extent of liability shall be limited to the purchase price only.
PENNINGTON MAKES NO OTHER OR FURTHER WARRANTY EITHER EXPRESS OR IMPLIED AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SEED IN THIS CONTAINER. Pennington shall not be liable for damages as a result of the use of these seed, either through direct or consequential damages or crop failure.
DO NOT PLANT THESE SEED SHOULD THIS WARRANTY BE UNACCEPTABLE, BUT RATHER RETURN THE SEED TO PENNINGTON WITHIN 10 DAYS OF PURCHASE FOR A REFUND OF THE PURCHASE PRICE.

Following sound and accepted agricultural practices, Tuten and Tippette planted the Pennington seed in irrigated systems in May. After each planted his first 160 acres both observed a poor crop stand with most of the seed failing to germinate, sprout or grow out of the ground as normal seedlings. Both farmers planted a second system, eliminating possible causes of the failure to obtain a first stand, which system also failed to produce a crop stand.

Tuten subsequently planted 30 acres of non-Pennington soybean seed purchased from Cherry Farms on his mother’s land, following the same agricultural practices used on his initial 160-acre system. The first few rows planted with this seed produced a good crop stand. The remaining rows of the second system planted with Pennington seed again failed to produce a crop stand. Tuten harvested only 10 bushels per acre off the Pennington field; he harvested 30 bushels per acre off his mother’s non-Pennington field.

Tippette also changed his agricultural program by planting 40 acres of non-Pennington seed on a neighboring farmer’s field without irrigation. This field likewise produced a good crop stand and yield. The Pennington seed resulted in a yield of five bushels per acre while carry over seed from 1976 that had also been planted resulted in a yield of 20 to 25 bushels per acre.

A neighboring farmer, concerned by the poor crop stand he observed on Tuten’s and Tippette’s land, dug into the ground and observed that the seeds were simply not sprouting. Tuten and Tippette brought their complaints before the Florida Seed Arbitration Counsel. Subsequent germination tests performed by the Florida Seed Laboratory on Lot PB76-182 showed the germination rate had dropped to 69%.

Tuten and Tippette thereafter brought this suit alleging damages for the loss of their 1977 soybean crops as a result of alleged defective seed sold and furnished by Pennington and its Florida dealer, Producers. Their actions were grounded on theories of negligence, breach of implied warranties and breach of an express warranty. Judgments were entered against Pennington and Producers upon jury verdicts for appellee Tuten in the amount of $69,044.16 and for appellee Tippette in the amount of $92,050.40. Judgment was also entered for Producers against Pennington on Producer’s cross-claim for indemnity. Pennington’s subsequent motions for a directed verdict, or in the alternative, for a new trial were denied. This appeal followed.

Appellees’ claims of negligence were twofold. First, they claimed Pennington was negligent in failing to have the soybean seed “vigor” tested in addition to the germination tests that were performed in accordance with the Florida Seed Law. Second, they claimed Pennington was negligent in failing to warn or in some other way correct improper storage conditions in the warehouse owned and operated by Producers, which conditions allegedly contributed to a deterioration of the seed. Regarding this latter claim, we find the complaints have failed to state a cause of action. Pennington had no duty to warn of the alleged improper storage conditions because there is no such duty with respect to a product, such as soybean seed, which is, as a matter of fact, not dangerous. See generally 63 Am. Jur.2d, Products Liability, § 50.

As to the first claim, the record evidence fails to establish a duty on the part of Pennington to vigor test the soybean seed. Presently, the only test required of seed companies on either the state or federal level is the germination test. In this regard, the Florida Seed Law, Section 578.09 et seq. (1981), provides that each container of agricultural seed sold in this state shall bear a label containing requisite information including the germination rate. The Florida Department of Agriculture and Consumer Services has set the acceptable germination rate at 80% and does not require that a vigor test be performed; nor is there positive evidence in the record establishing a custom in the seed industry of vigor testing. Indeed, the evidence shows that vigor tests vary widely in type and result.

It is not within the province of the courts to legislate new standards in the industry. Considering the dearth of evidence as to an allegedly entrenched industry custom of vigor testing seed, we cannot say that Pennington was required by law to perform such tests. Absent such a duty, we find Pennington was not negligent in failing to vigor test the seed, however, our conclusion on that singular point is not dispositive of this appeal.

Appellees’ claim against Pennington based on breach of warranties is also twofold. First, appellees argue that Pennington breached its implied warranties of merchantability and fitness. Second, appellees contend that the seed tag bearing a germination rate of 80% created an express warranty, also breached by Pennington. We agree that Pennington breached the implied warranties.

Soybean seed that is incapable of producing healthy plants is not fit for its intended use, and the record evidence in this case supports the jury’s verdict that the seed was defective. Therefore, it is immaterial whether the seed tags may have created an express warranty, because Pennington breached its implied warranties of merchantability and fitness.

We reject Pennington’s theory based on Sections 672.316 and 672.719, that the “warranty” printed on each bag disclaimed any implied warranties or limited the recoverable damages to the value of the seeds. We find the disclaimer ineffective under the circumstances of this case because it amounted to a post-contract, unbargained-for unilateral attempt to limit Pennington’s obligations under the contract. We agree in principle with the Kansas Supreme Court which, upon examining that state’s statute similar to Florida’s Section 672.316, stated:

The very purpose of the statutory requirement is that any limitation be brought to the attention of the buyer at the time the contract is made. An attempted limitation at the time of delivery long after a contract of purchase is signed does not accomplish this purpose, being a unilateral attempt of a party to limit its obligations.

Christopher and Son, Inc. v. Kansas Paint & Color Company, Inc., 523 P.2d 709, 215 Kan. 185 (1974). See Mack Trucks of Arkansas, Inc., et al. v. Jet Asphalt & Rock Company, 246 Ark. 101, 437 S.W.2d 459 (1969). See also, Knipp v. Weinbaum, 351 So.2d 1081, 1084-85 (Fla. 3d DCA 1977).

We would nevertheless recognize the disclaimer of other warranties as effective had the farmers assented to it, Pfizer Genetics, Inc. v. Williams Management Co., 204 Neb. 151, 281 N.W.2d 536 (1979), or if the farmers knew of such non-warranty at the time the sale was made, with proof of knowledge being either direct or indirect through evidence of trade custom or course of dealing. See Klein, et al. v. Asgrow Seed Company, et al., 246 Cal.App.2d 87, 54 Cal.Rptr. 609 (3d DCA 1966); Section 672.316(3)(d). Similarly, we would agree with Pennington that Section 672.719(l)(b) permits a limitation of damages if such limitation was part of the “agreement” and had been “expressly agreed to be exclusive,” as provided in that section.

Here, however, when Pennington requested the jury be instructed that liability and damages should be limited by the terms of the “warranty” attached to the bags, the judge properly rejected that instruction because it was not predicated upon the jury finding the farmers had knowledge of the disclaimer of warranty or that they had expressly agreed to the limitation of damages. Without a finding of knowledge or express agreement Pennington did not establish that its label effectively disclaimed implied warranties or limited damages to less than that provided by the Uniform Commercial Code in Sections 672.714 or 672.715.

Because the appellant has not demonstrated that the jury’s assessment of damages deviated from those statutes or that the finding of liability was erroneous, the verdict and judgment will remain undisturbed.

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

      . The trial court properly granted appellees’ motion for directed verdict against Pennington’s fourth affirmative defense setting forth the disclaimer, as there was no showing made by Pennington that selling seed in Florida and Georgia subject to a disclaimer was a custom in the trade, so that the appellees might be charged with constructive knowledge of it.

      . It is not contested in the record that Producer’s seed salesman had no knowledge of Pennington’s disclaimer and limitation of liability that appears on the seed bags. There was no testimony establishing that Pennington required its dealers to notify the purchaser of the printed “warranty.” Consequently, he had never brought that condition to the attention of these appellees or his other customers and it did not appear on the purchase documents at the time of the sale or thereafter. Cf. Bickett v. W.R. Grace & Co., 12 UCC 629 (W.D.Ky.1972) (in which implied warranties were limited through trade custom and the parties’ course of dealing); and also, Billings v. Joseph Harris Co., Inc., 290 N.C. 502, 226 S.E.2d 321 (1976) (in which the farmers signed the contract containing the limitation.) We do not now reach the issue of whether Pennington’s attempted disclaimer and limitation of remedies would have been valid had the farmers seen the “warranty” after purchase, for there is also no evidence in the record clearly establishing that the farmers were ever aware of the “warranty,” either before or after they purchased the seed.


text:
    Robert COLLINS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-151.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 7, 1982.
    Robert Collins, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Collins appeals from the Florida Parole and Probation Commission’s establishment of his presumptive parole release date. He argues the commission erred in its designation of his present offense of conviction. We affirm.

In 1964, Collins was sentenced to life for murder in the first degree. He was initially released on parole in December, 1970, which parole was revoked in February, 1974. Collins was again paroled in 1978. In 1979, however, he was convicted in North Carolina on three separate counts of assault, receiving suspended sentences in two instances and serving nine days in the third. Consequently, he was returned to Florida in May, 1980, and his parole was revoked.

Collins was interviewed on May 13, 1981, and a PPRD was set for October 18, 1994. As his present offense of conviction, the commission utilized the murder conviction. Although it considered the circumstances of his present parole violation, i.e., the assault convictions, the commission did not use those circumstances for aggravation purposes.

Collins argues that the commission was required to consider the North Carolina convictions as his present offense of conviction. Rules 23-19.02(2)(a) and (b), Florida Administrative Code, cited by Collins and followed by the commission, do not support Collins’ position. Those rules provide:

Persons whose parole is revoked after conviction for a new felony [or misdemeanor] offense, and who are committed to the Department of Corrections will be considered under these guidelines as a new admission. The Commission will consider the person’s previous convictions in computing the risk level of the inmate. The Commission will recalculate the guidelines matrix based on the new offense of conviction and using a new salient factor score, (emphasis added)

The problem here is simply that Collins’ new offenses, for which his parole was revoked, did not result in his commitment to the Department of Corrections. Rather, his murder conviction, from which he was on parole, necessitated his return to the department’s control. The commission therefore had no other choice than to treat Collins as a “new admission” on that basis and recalculate his PPRD utilizing the murder conviction as his present offense of conviction.

Collins’ ex post facto challenge is without merit. Lopez v. FPPC, 410 So.2d 1354 (Fla. 1st DCA 1982).

The commission’s action is affirmed.

MILLS and ERVIN, JJ., concur.


text:
    Douglas L. ADAMS, Daniel P. Hull, Seimore Keith, Ronnie McKane, Appellants, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-252.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 14, 1982.
    Douglas L. Adams, Daniel P. Hull, Sei-more Keith and Ronnie McKane, pro se.
    Jim Smith, Atty. Gen., and Joseph Lewis, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellants, inmates housed at Polk Correctional Institution, appeal the dismissal of their § 120.56, Fla.Stat. (1981), action challenging the Florida Parole and Probation Commission’s rules which became effective on September 10, 1981. We affirm the order of the Department of Administration’s hearing officer.

However, one issue raised warrants discussion. Appellants claim that the Commission provided inadequate notice of the proposed rules to the class of persons to whom the intended action was directed. See § 120.54(l)(a), Fla.Stat. (1981). The record reveals that copies of the first set of proposed rules were sent to over 300 governmental entities which work in criminal law, including the superintendents of each of the correctional institutions. Thereafter, five workshops were conducted throughout the state, notices of which were published in the Florida Administrative Weekly. The second set of proposed rules was drafted in large part in response to the information derived from the workshops. Notice of the proposed rulemaking, was published in the Florida Administrative Weekly and in five newspapers of broad circulation. A hearing was requested and conducted on the date, at the time, and in the place designated in the notice. Copies of the proposed rules were sent to all persons who requested them from the Commission, pursuant to the notice. Inmates from other correctional institutions sought and received copies of the proposed rules prior to their adoption.

However, appellants contend that Polk Correctional Institution does not receive the Florida Administrative Weekly and does not subscribe to any of the newspapers in which the notice was published. They argue that § 120.54 requires the Commission to post notice in the correctional institutions, as § 120.54(l)(a)3 requires of educational units. The applicable statement in the statute is:

The agency shall also give such notice as is prescribed by rule to those particular classes of persons to whom the intended action is directed.

The hearing officer found that the Commission does not have rules governing how notice is to be given to inmates, who are indeed the particular class of persons to whom the action at issue is directed, and that the notice given exceeded statutory requirements.

The record shows that inmates at Polk Correctional Institution, including Adams, had notice in fact of the proposed rules and, had they exercised proper diligence, could have obtained notice of each of the proceedings and copies of the proposed rules. Under these circumstances, we agree with the hearing officer’s finding that, absent a rule prescribing more, the notice provided by the Commission went beyond the requirements of § 120.54. However, our opinion should not be construed as approving the Commission’s failure to adopt a rule which provides for notice to the affected class of persons, pursuant to § 120.54(l)(a).

The order appealed is affirmed.

MILLS,v ERVIN and WIGGINTON, JJ., concur.

      . See Douglas L. Adams, Daniel P. Hull, Seimore Keith, Ronnie McKane v. Florida Parole and Probation Commission, 4 FALR 219-A (Case No. 81-2498R, final order of the Division of Administrative Hearings, February 8, 1982).

      . The Commission maintains a mailing list of people who have requested notification of proposed rule changes.

      . For example, the Department of Corrections has an excellent rule which accomplishes the purpose of notice. Fla.Admin.Code Rule 33-12.01(3)(d) requires:
      (3) Notice to those directly affected by a proposed rule shall be by ... (d) posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative, or close management confinement areas of all facilities.


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

text:
    EXXON OFFICE SYSTEMS CO., QWIP DIVISION and Petroleum Casualty Co., Appellants, v. Dorothy M. LEWIS, Appellee.
    No. AK-249.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 8, 1982.
    Jeffrey A. Cramer and Suzanne R. Armstrong, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellants.
    J. Davis Parrish, of Hurt and Parrish, Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The serial hearing before the deputy, with belated depositions shifting the issues tried, resulted in an order crediting the opinion of an osteopathic physician who did not see claimant until six months after the end of her treatment by two orthopedists who declared her fit in July 1980 and by a chiropractor who thought she was nearly so. The osteopath opined that claimant was temporarily and totally disabled at the time of his examination, in January 1981. We confirm the deputy’s entitlement to credit the osteopathic opinion, and so affirm the benefits awarded from January 1981 onward, but there is no evidence whatever that between July 1980 and January 1981 claimant, who conducted no employment search, was totally impaired. E.g., Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). The deputy’s finding of total disability in that period was not a legitimate inference, given the antecedent medical opinions which the deputy neither rejected nor reconciled to his findings, but was instead arbitrary speculation. Cf. Oriente Express Inn v. Rodriguez, 406 So.2d 55 (Fla. 1st DCA 1981).

We find no error in the award of chiropractic fees. The deputy’s award of attorney’s fees was wholly unwarranted, there being no claim and no evidence of bad faith handling of the claim by the carrier. Nor was there any other basis for a fee award under section 440.34(2), Florida Statutes (1979).

The award for total disability in the time-frame of July 1980 to January 1981 is REVERSED. The award of attorney’s fee is REVERSED and that claim, or potential claim, is dismissed with prejudice. The award is otherwise AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.


author: THOMPSON, Judge.

text:
    Ronnie Edward BRUNSON, Appellant, v. STATE of Florida, Appellee.
    No. AK-442.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 7, 1982.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

In this appeal we must decide whether a continuance granted by the trial judge upon motion of the state was sufficient under Fla.R.Crim.P. 3.191 to constitute an order extending the speedy trial period. We conclude that it was not, and reverse.

On August 4, 1981, appellant was arrested for the crime of burglary, but for reasons which do not appear on the record no information was filed charging him with that crime until October 20, 1981. Discovery was thereafter conducted, and trial was set for January 5,1982. When the case was announced for trial on that date the prosecutor orally requested a continuance on grounds that a necessary state’s witness was out of the country and therefore unavailable. The prosecutor informed the trial judge that the witness would not return until after the speedy trial period had run, but urged that the witness’s absence amounted to an exceptional circumstance since the witness had chosen to adhere to his previously made travel plans rather than honor his subpoena. The public defender objected to the granting of a continuance, and asserted that she was prepared to go ahead with the trial. After a brief colloquy concerning the reasons for the witness’s absence and the date when the prosecutor learned of the witness’s intention not to honor his subpoena, the court granted the motion for continuance and set a new trial date which was outside the speedy trial period. Although he was aware of the speedy trial problem, the judge did not expressly extend the speedy trial period, nor did he make any express finding that exceptional circumstances existed.

The speedy trial period ran on January 31, 1982, and on February 8, 1982, appellant’s counsel filed her motion for discharge, asserting that the state had failed to comply with Fla.R.Crim.P. 3.191. The trial judge thereafter denied the motion for discharge, whereupon the appellant entered a plea of nolo contendere, reserving his right to appeal the denial of the motion for discharge. We find that the motion should have been granted. As we held in the recent case of Durrance v. Rudd, 398 So.2d 1012, 1016 (Fla. 1st DCA 1981):

[W]e conclude that a continuance alone does not toll the speedy trial time. What is required is an order entered before the time limit expires, specifically extending or tolling the speedy trial requirements, (footnote omitted) (emphasis in original)

Here, the trial judge neither specifically ordered an extension of the speedy trial period, nor made any express finding that exceptional circumstances existed which would justify entry of such an order. Furthermore, it is doubtful whether a finding of exceptional circumstances could properly have been made in this case. The record reveals that the prosecutor knew some three weeks prior to trial, and some two weeks prior to the witness’s departure, that the witness intended to disregard his subpoena and that the witness would not return from his trip until after the speedy trial period had run. It further appears that notwithstanding this knowledge, the prosecutor made no effort to obtain an earlier trial date, or to encourage the witness to alter his travel plans and obey his subpoena. Rule 3.191(f) expressly provides that absence of a witness will constitute an exceptional circumstance only when the absence is unforeseeable and unavoidable, or is due to unexpected illness or incapacity. The rule further provides that exceptional circumstances shall not include avoidable or foreseeable delays, or lack of diligent preparation. In our view, the state was not diligent in its preparation and prosecution of this ease, and we accordingly reverse the judgment of guilt and order that the appellant be discharged.

REVERSED.

ROBERT P. SMITH, Jr., C.J., and SHIVERS, J., concur.


author: JORGENSON, Judge.

text:
    Donald PERRY and Walter Sellers, Appellants, v. The STATE of Florida, Appellee.
    Nos. 81-2136, 81-2518.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 15, 1982.

      Eimers & Patton, Miami, John P. Rotolo, Key West, for appellants.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   JORGENSON, Judge.

Donald Perry and Walter Sellers appeal the denial of their motion to suppress which resulted in their conviction and sentence for the possession of cannabis in excess of one hundred pounds in violation of Section 893.-13, Florida Statutes (1979). We affirm.

The relevant facts revealed during the motion to suppress are as follows. Donald Perry rented a 1980 Ford LTD from a Key West dealer and listed Walter Sellers as an additional driver. Perry and Sellers packed two hundred sixteen pounds of marijuana into thirteen opaque, air-tight commercial garbage bags and loaded them into the trunk of the car. Thereafter, they commenced their trip north on the Overseas Highway.

Coincident with Perry and Sellers’ beginning their journey north, officers of the Monroe County Sheriff’s Department learned of the escape of three felons from the Key West jail. In accordance with departmental procedures, a roadblock was established at Knight’s Key (the southern approach to the Seven Mile Bridge). As Perry and Sellers approached the roadblock, they were directed by one of the deputies to pull off the road. The driver (Perry) made a turning movement towards the side of the road but then accelerated in a northerly direction. The car was closely pursued by Deputy Hockett, of the Monroe County Sheriff’s Office. The deputy observed the defendant’s car make a high-speed turn down a side street and, shortly thereafter, discovered the vehicle behind a gas station, with both doors open and the keys in the ignition. The deputy first searched the immediate area and found no one. Thereafter, he removed the ignition keys and unlocked the trunk, revealing the thirteen garbage bags. Deputy Hockett testified that, when he approached the vehicle, he was under the impression that one or more of the escaped felons could be in the trunk since there was insufficient time for someone to remove the keys from the ignition, unlock the trunk, and then replace the keys prior to his arrival.

It is on the foregoing facts that Perry and Sellers allege their Fourth Amendment interests were violated. They first contend that under Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the action of the Monroe County Sheriff’s Office in establishing the roadblock was unwarranted or, in the alternative, unlawful as applied to them because the officers were not stopping every car. We reject those contentions as being devoid of merit. A court must balance the “intrusion on the individual’s Fourth Amendment interests against [a particular law enforcement practice in] promotion of legitimate governmental interests.” Delaware v. Prouse, supra, at 654, 99 S.Ct. at 1396. The state’s interest in recapturing felony escapees is substantial. See, e.g., § 843.04, Fla. Stat. (1981). The trial court found, and we agree, that the actions of the Monroe County Sheriff’s Office in establishing the roadblock were reasonable. Franklin v. State, 374 So,2d 1151 (Fla. 3d DCA 1979); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). Given the unique geography of Monroe County and the fact that the Overseas Highway is the only means of egress from Key West, the establishment of a roadblock following a jailbreak seems to us to be a de minimus intrusion upon the rights of the travelling public. Delaware v. Prouse, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Deputy Hock-ett’s lawful order to the defendants to pull their vehicle to the side of the road was likewise reasonable. See Franklin v. State, supra, at 1153, and cases cited therein.

The defendants’ actions thereafter, i.e., bolting the roadblock and the subsequent high-speed chase, coupled with the unusual condition of the vehicle upon Deputy Hock-ett’s arrival, furnished abundant justification for the subsequent search for an escapee. United States v. Ross,-U.S.-, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974); Stevens, supra, at 1247.

The judgments and sentences are, accordingly, affirmed.

      . The State conceded the standing of defendant ' Perry but asserts that the defendant Sellers is without standing to litigate his Fourth Amendment claim. We hold that the trial court correctly granted standing to Sellers. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). See also, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

      . Deputy Hockett was not present at the roadblock at all times. Thus, he could not testily with specificity what activity other officers were engaged in during the roadblock. Hock-ett’s orders to pull the defendants’ vehicle out of line came from a superior officer.

      . In view of our result, we do not reach the abandonment issue raised by the defendants. Cf., Gissendanner v. State, 373 So.2d 898 (Fla.1979) (abandonment, a question of fact, may not be reserved upon a plea of no contest). For a definitive treatment of the abandonment issue, see O’Shaughnessy v. State, 420 So.2d 377 (Fla. 3d DCA 1982).


text:
    Vernon B. WOODCOCK, Appellant/cross-appellee, v. MOTORS INSURANCE CORPORATION, Appellee/cross-appellant.
    No. 82-240.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 13, 1982.
    Hubert G. Roberts, Hialeah, for appellant/cross-appellee.
    Kurzban, Kurzban & Weinger, and Steven M. Weinger, Miami, for appellee/cross-appellant.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Where insurer established by competent evidence that a notice of policy cancellation was mailed pursuant to Section 627.-728, Florida Statutes (1977), the insured’s evidence of nonreceipt of the notice was irrelevant. See Difalco v. Industrial Fire & Casualty Insurance Company, 400 So.2d 1057 (Fla. 3d DCA 1981) and cases collected therein. The trial court correctly entered judgment for the insurer on the policy cancellation issue.

On the cross-appeal we reverse the order denying the insurer’s motion to tax costs. The insurer twice sought to have a New York commissioner appointed to depose a key witness who resided in that state. Woodcock objected and insisted that the insurer take to New York a Florida court reporter selected by Woodcock. The trial court granted Woodcock’s request on the condition that:

“[Motors] shall initially pay the court reporter’s travel expense and those expenses shall be taxed as costs at the conclusion of the case”..

As the expenses of the deposition including the court reporter’s travel expenses were, in this case, legitimate costs it was error to not assess them against Woodcock.

We affirm on the appeal, reverse on the cross-appeal and remand for further consistent proceedings.

      . § 627.728(5), Fla.Stat. (1977):
      Proof of mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.


author: DOWNEY, Judge. PER CURIAM. LETTS, Chief Judge,

text:
    Eva H. MARTYN, Appellant, v. Charles P. MARTYN, Appellee.
    Nos. 81-970, 81-1809.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearings Denied Dec. 22, 1982.

      Edward C. Vining, Jr., Miami, for appellant.
    James J. Butler, Stuart, and Ronald Sales of Sales & Weissman, P.A., West Palm Beach, for appellee.
   DOWNEY, Judge.

The wife in this domestic relations case contends that she was short-changed by the judgment of dissolution entered by the trial court. That pithy characterization, borrowed from Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), is not totally off the mark in our view.

The parties were married for seventeen years; they lived together for only five years and have been separated the remaining twelve. The wife was approximately twenty-seven years old when they married and the husband was fifty-three. At the time of dissolution, she was forty-four and he was seventy, partially blind, and in failing health. It appears he was worth in excess of $3,000,000, while her estate was valued at approximately $27,000, not including the value of the gift the court adjudicated in her favor. The wife was unemployed during the marriage and throughout the twelve year separation the husband supported her in a comfortable style, the last year being to the tune of $22,000. Finally, it should be noted that earlier in the marriage, the husband had made a gift to the wife of a one-half interest in corporate stock, which interest, upon sale thereof by the husband, was worth in excess of $108,-000.

In the final judgment the trial court gave the wife a judgment for the value of the interest in the aforementioned stock, and ordered him to pay her $3,774.24 in delinquent temporary alimony. Although the wife had prayed for alimony in all of its forms, the trial court completely denied that prayer as well as her request for attorney’s fees and suit money. We hold that judicial act to be an abuse of discretion under the facts of this case and, on remand, direct the trial court to award the wife lump sum alimony, reasonable attorney’s fees, and suit money. We suggest the award of lump sum alimony should be an amount that, when coupled with the value of her present estate of $135,000, would, upon prudent investment, return approximately the income she had been accustomed to when married.

We have considered appellant’s other points on appeal and find them either moot or without merit.

Accordingly, the judgment appealed from is affirmed in all respects except as to the denial of alimony, attorney’s fees, and suit money. On remand, the trial court is directed to award the wife lump sum alimony in accordance with this opinion, reasonable attorney’s fees, and suit money.

AFFIRMED IN PART AND REVERSED IN PART, and remanded with directions.

LETTS, C.J., and WALDEN, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The petition for rehearing filed by appel-lee is hereby denied.

DOWNEY and WALDEN, J., concur.

LETTS, C.J., dissents with opinion.

LETTS, Chief Judge,

dissenting.

Upon reconsideration, it is my view that the decision of the trial court should be affirmed in all respects.


text:
    Harold Cleveland BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1927.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 16, 1982.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Harold Cleveland Bain was tried by jury on charges of (1) murder in the first degree and (2) attempted murder in the first degree. He claimed self defense and took the stand in his own behalf. During direct examination, Bain had testified that he informed the victims that he did not want any trouble because he was on life-time parole. On cross, the prosecutor asked Bain, “[w]hat crime were you on life-time parole for?” Defense counsel objected but on proffer of the answer out of the jury’s presence the objection was overruled. Upon the jury’s return, Bain’s answer then disclosed to them his prior conviction for murder. His timely motion for mistrial was denied, the only error he asserts on appeal from conviction on both offenses. We reverse.

The prosecutor’s question introduced evidence of the specific offense for which appellant had been convicted. It was not relevant to any issue. The matter elicited by the improper question served only to establish the appellant’s criminal propensity. While the fact that a defendant has previously been convicted of a crime is relevant, once the witness has answered truthfully about the existence and the number of his prior convictions, it is improper to permit the prosecutor to inquire into the nature of those offenses. Whitehead v. State, 279 So.2d 99 (Fla.1973); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981); Goodman v. State, 418 So.2d 308 (Fla. 1st DCA 1982). The error cannot be said to be harmless considering the fact that Bain’s credibility was necessarily a critical factor in the jury’s consideration of the case.

The judgment is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.

      . Appellee contends that since Bain testified as to his state of mind, i.e., concern for the consequences of a violation of life-time parole, the nature of the crime for which he was on parole was relevant to his state of mind. We think that argument is not sound.


text:
    Virgil R. STEFFENS, Appellant, v. Juliette A. STEFFENS, Appellee.
    No. 81-2073.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 16, 1982.
    J. Stockton Bryan, Stuart, for appellant.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, and Wack-een & DeBerard, P.A., Stuart, for appellee.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

The final judgment from which this appeal has been taken dissolved the marriage and, pursuant to the provisions of an ante-nuptial agreement which the appellee wife sought to have enforced, awarded the wife lump sum and periodic rehabilitative alimony. She was also awarded certain personal property and attorneys’ fees. Appellant husband contends that the court erred (1) in refusing to admit proffered evidence in support of the husband’s counter-petition for reformation of the rehabilitative alimony provision of the agreement, and (2) in awarding relief to the wife not provided for her in the agreement. Appellant’s first point is well taken, requiring us to reverse that part of the judgment awarding rehabilitative alimony and remand for further proceedings.

The counter-petition for reformation of the agreement was based upon an alleged mutual mistake of the parties because of a scrivener’s error. The wife denied that there had been a mutual mistake. The proffered testimony (the credibility of which we do not assess) tended to prove that due to typographical or clerical error, certain limiting language, intended by the parties and approved by them in preliminary drafts, had been inadvertently omitted from the final draft of the agreement. When an instrument is drawn and executed which is intended to carry into execution an agreement but which by mistake of the draftsman violates or does not fulfill that intention, equity will reform the instrument so as to conform to the intent of the parties. Relief should be given where, through a mistake of the scrivener, the instrument contains a clerical error or fails to define the terms as agreed on by the parties. Jacobs v. Parodi, 50 Fla. 541, 39 So. 833 (1905); Gennaro v. Leeper, 313 So.2d 70 (Fla. 2d DCA 1975). It was harmful error for the trial court to have excluded from evidence the proffered testimony relevant to the issue made in the counter-petition for reformation.

We also note that in the final judgment, the trial court stated that it had the authority to modify the alimony provisions of the antenuptial agreement, a position advanced by appellee before this court. While the trial court does have such authority, granted by Section 61.14, Florida Statutes (1981), it is conditioned upon a showing that “the circumstances or the financial ability of either party has changed .. . since the execution of such agreement .... ” When a court relies on this statutory authority, it should make a finding of a change of circumstances or financial ability, supported by the record. While the final judgment does not contain such a finding, we do not preclude, upon remand and further proceedings, a finding in this respect if appropriate.

The other relief granted to the wife by the final judgment has not been shown to have been precluded by the antenuptial agreement nor to have been an abuse of the trial court’s discretion, and thus, in all other respects the judgment is affirmed.

Affirmed in part, Reversed in part, and Remanded for further proceedings to determine the issue made by the counter-petition for reformation and by supplemental judgment to award to appellee wife rehabilitative alimony in such amount and form (i.e., lump sum, periodic or both) as the court in its discretion may deem proper consistent with the antenuptial agreement of the parties.

GLICKSTEIN and HURLEY, JJ., concur.

      . While the record is not entirely clear as to the basis upon which the trial court refused to admit the proffered evidence, it appears that the court felt, that as a matter of law, there could be no mutual mistake absent agreement by both parties that, in fact, there had been a mutual mistake. Clearly, the issue of mutual mistake arises only when alleged by one party and denied by the other. Agreement on the matter would eliminate it as an issue to be tried.


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

text:
    COMMISSION ON HUMAN RELATIONS, Petitioner, v. Chris H. BENTLEY and the Division of Administrative Hearings, Respondent.
    Nos. AH-322, AI-57.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1982.

      Aurelio Durana and Dana Baird, Asst. Gen. Counsels for Commission on Human Relations, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Bruce A. Min-nick, Asst. Atty. Gen., for respondents.
   ROBERT P. SMITH, Jr., Chief Judge.

The Commission on Human Relations, chapter 23, part IX, Florida Statutes (1981), appeals from an order of the Division of Administrative Hearings declining the Commission’s request for a DOAH hearing officer to conduct section 120.57(1) proceedings leading to a recommended order, section 120.57(l)(b)8, determining the substantial interests of a party. Alternatively the Commission seeks a writ of mandamus compelling DOAH to proceed as requested pursuant to section 120.57(1).

The narrow issue is whether the proceedings envisioned by the Commission will determine the substantial interests of a party, culminating in a DOAH recommended order and a Commission order pursuant to section 120.59. The proceedings requested by the Commission are to redetermine, as contemplated by the Commission’s Rule 9D-9.07, Fla.Admin.Code, “whether there is reasonable cause to believe that an unlawful employment practice has occurred” in a certain matter before the Commission, its executive director having initially determined that there is no reasonable cause for that belief in the pending matter. The complainant’s redetermination petition operates, under the Commission’s Rule 9D-8.-16, to reopen and review the executive director’s initial decision, and if granted the redetermination petition would then lead to conciliation efforts, Rule 9D-9.05, or that failing to further Commission action upon a petition for relief filed by complainant under Rule 9D-9.08.

Section 120.57 agency proceedings to determine a party’s substantial interests are inextricably linked to the agency’s final order conforming to sections 120.57(l)(b)9 and 120.59, which is appealable as of right pursuant to section 120.68. In explicit terms, section 120.57 “shall not apply to agency investigations preliminary to agency action,” meaning “agency action” as thus defined. Section 120.57(4), Fla.Stat. (1981). Thus a petition to redetermine the executive director’s finding of no “reasonable cause to believe that an unlawful employment practice has occurred” does not embark the Commission upon proceedings necessarily determining the substantial interests of a party by order of the Commission. Significant intervening events may preclude the entry of a Commission “final order in a proceeding which affects substantial interests,” section 120.59(1), appealable as of right under section 120.68. For instance, a Commission decision in redetermi-nation proceedings finding “reasonable cause” may result in successful conciliation, ending the matter. Further Commission action triggered by the filing of a petition for relief, is necessary to engage proceedings “in which the substantial interests of a party are determined by an agency.” Section 120.57, Fla.Stat. (1981).

That being so, section 120.57 disciplines upon agency action are not applicable by force of a statute in the Commission’s rede-termination proceedings. It follows that section 120.57 does not require that a DOAH hearing officer conduct such proceedings when the agency head “or a member thereof other than the agency head” is unavailable.

DOAH is therefore not required to provide a hearing officer to conduct the proceedings requested. Whether DOAH may do so is another question, which we do not reach. Certainly chapter 120 does not deter the Commission from itself conducting re-determination proceedings according to section 120.57 disciplines; though section 120.-57 does not require it, that may be a commendable elaboration of the Commission’s investigation preliminary to agency action.

The order appealed is AFFIRMED. The alternative petition for mandamus is DENIED.

McCORD, J., concurs.

BOOTH, J., specially concurs, with written opinion.

BOOTH, Judge,

specially concurring:

I agree with the result of the majority opinion for the reasons stated in the order of the DOAH hearing officer that petitioner’s Rule 9D-8.16(1), F.A.C., notwithstanding, petitioner’s statutory investigative duties leading to a probable cause determination be completed before proceeding under Section 120.57.

      . Cf. J.A. Jones Construction Company v. State, Department of General Services, 356 So.2d 863, 864 (Fla. 1st DCA 1978) (“Proceedings complying with Section 120.57 and' an order complying with Section 120.59 [are] essential to any lawful action by the agency .... ”); McDonald v. Department of Banking and Finance, 346 So.2d 569, 583, appeal after remand, 361 So.2d 199 (Fla. 1st DCA 1978) (the § 120.-59 agency final order must address all arguments in the record and findings by the hearing officer during the section 120.57 hearing, so a court may review the final order under section 120.68); Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119, 120 (Fla. 1st DCA 1976) [deciding whether the agency’s final order adopting the hearing officer’s recommended order, see section 120.-57(l)(b)8, departed from section 120.59’s requirements by failing to include explicit rulings on each proposed finding of fact submitted pursuant to the section 120.57 hearing.]

      . The DOAH order denying assignment is, in pertinent part, as follows:
      The Determination of Reasonable Cause provided for in Rule 9D-9.04, F.A.C., is in the nature of a probable cause determination based upon a review of an investigation done by the staff of the Human Relations Commission.
      Rule 9D-8.16(1), F.A.C., purports to allow the chairman of a panel of the Human Relations Commission, at his discretion, to refer a Petition for Redetermination to the Division of Administrative Hearings for the assignment of a Hearing Officer. Such a rule does not bind the Division of Administrative Hearings and require the assignment of a Hearing Officer when the request for assignment involves a matter not yet ripe for a 120.57(1), Florida Statutes, hearing. Such a hearing is not designed for the purpose of determining that probable cause exists to propose agency action which would then, again, entitle the parties to a 120.57(1) hearing on the same subject matter. As provided by the rules of the Human Relations Commission, specifically Rule 9D-8.16(1), F.A.C., a panel of the Human Relations Commission can hear a Petition for Redetermination and thereby reconsider the decision of the Executive Director. Thus ample and fair opportunity exists for the complainant to have the decision of the Executive Director reconsidered and reversed. Involvement of the Division of Administrative Hearings is neither necessary nor appropriate at this stage of the proceeding.


text:
    Martin R. WALSH, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-404.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 8, 1982.
    Martin R. Walsh, pro se, appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant, Walsh, challenges the decision of the Florida Parole and Probation Commission establishing his PPRD of December 2, 1986.

We have considered the issues raised by appellant and find that the commission erred in characterizing appellant’s offense severity. We also note that the commission considered three aggravating factors in extending appellant’s PPRD outside the matrix time range, two of which factors are not supported by the record.

Appellant was convicted of the crime of arson in the second degree on October 1, 1980, and was sentenced to a term of incarceration of fifteen years. In establishing his PPRD, the commission determined that appellant’s present offense of conviction, second degree arson, should be characterized as having an offense severity of “High.” Although the rules utilized at the time of appellant’s interview denominate two offense severity characteristics for arson, “simple arson” (Low Moderate) and “aggravated arson” (High), the commission chose aggravated arson because of its misapprehension of the directive embodied in Florida Administrative Code Rule 23-19.01(4). Rule 23-19.01(4) states:

If the present offense of conviction ... can be classified in more than one severity category, the more serious category shall be used.

The offense characteristic must reflect the offense for which appellant was convicted. McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). Appellant’s present offense of conviction is second degree arson which can not “be classified in more than one severity category.” The correct category is simple arson, having a corresponding matrix time range of 14 — 25 months.

We can only conclude that the commission’s error in characterizing the offense as aggravated arson was in taking notice of the pecuniary loss resulting from what must have been an immense conflagration. However, the commission also used the loss as an aggravating factor. Fla.Admin.Code Rule 23-19.03(l)(a)2. The commission was limited by Rule 23-19.01(1) to utilizing the pecuniary loss as an aggravating factor because it is not an element of second degree arson and therefore does not properly reflect the present offense of conviction.

The commission also considered two other aggravating factors, insurance loss and threats of violence, in adding thirty-nine months onto appellant’s matrix range. Although the commission’s explanation pointed to these factors as being contained in the presentence investigation report, the PSI report included in the record reflects neither factor.

Accordingly, we reverse and remand with instructions for the commission to correct the offense characteristic to reflect simple arson and reestablish appellant’s PPRD disregarding the improperly considered aggravating factors.

MILLS and ERVIN, JJ., concur.


text:
    Virginia Louise PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. AK-160.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Rehearing Denied Dec. 22, 1982.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

In this prosecution for appellant’s battery upon a police officer, aggravated battery, and resisting arrest with violence, the trial court did not err in excluding proffered expert testimony concerning the mental condition of an alcoholic in a “black-out” state due to intoxication. The admissibility of such evidence absent an insanity plea is doubtful, Zeigler v. State, 402 So.2d 365 (Fla.1981). But at any rate, the proffered witness, Allen, did not opine that appellant was incapable of forming a specific intent to assault the officer; his testimony was to the contrary. His opinion, and that of the other witness whose expertise was not demonstrated was, therefore, not probative. Appellant’s other point is without merit.

AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.


author: MILLS, Judge. ERVIN, Judge,

text:
    John Ted BAREFIELD and Robbie N. Barefield, Petitioners, v. LAFAYETTE OAKS HOMES ASSOCIATION, INC., Respondent.
    No. AO-174.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Rehearing Denied Dec. 16, 1982.
    Douglas A. Daniels and F. Alan Cummings of Holland & Knight, Tallahassee, for petitioners.
    Melvin R. Horne of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for respondent.
   MILLS, Judge.

Barefield petitions for a writ of common law certiorari to review an appellate decision by the Circuit Court. We grant the petition and reverse the Circuit Court’s af-firmance of the County Court.

The Marts, residents of the Lafayette Oaks subdivision, began construction of a horse pen at their residence near the Bare-field residence. The plans were submitted to the Lafayette Oaks Homes Association’s Architectural Control Committee. The committee rejected the plans twice, finding them violative of the covenants controlling the subdivision. Construction continued. The Association did not take any action to prevent the construction although clearly authorized and funded to do so.

Barefield then brought an action which resulted in an order requiring the pen to be torn down.

Barefield next brought suit against the Association seeking damages. He alleged that the covenants, articles, and bylaws of the Association imposed a contractual duty on it to enforce the covenants. Its breaching this duty forced Barefield to enforce the covenants himself. His damages would be the expenses of litigation, i.e., costs and attorney’s fees.

The County Court dismissed the claim ruling that there was no duty imposed on the Association and that there was no right of attorney’s fees in the original action. The Circuit Court, as an appellate court, affirmed without an opinion. .

To dismiss, the trial court must have interpreted the contract, as evidenced by the covenants, articles, and bylaws, as unambiguously not imposing a duty on the Association to enforce its covenants. Virtually identical covenants have been interpreted as imposing a requirement of reasonableness on a homeowners’ association in its decision to waive subdivision restrictions. Nelle v. Loch Haven, 413 So.2d 28 (Fla.1982). At the very least, Barefield has alleged unreasonable behavior by the Association. There is no reason not to enforce the Association’s duty of reasonableness by contract. Furthermore, the contract does not seem to us to clearly impose no duty on the Association. Barefield should have been allowed to produce evidence as to the interpretation of the contract.

The County Court erred in dismissing the Barefield’s complaint and the Circuit Court erred in affirming this dismissal. In so erring, the Circuit Court has denied the Barefields their opportunity to prove their case. This denial of their day in court is a departure from the essential requirements of law. Compare State v. Live Oak, Perry & Gulf B.R., 70 Fla. 564, 70 So. 550 (1915).

The petition is granted, the order of the Circuit Court is quashed, and the cause is remanded with instructions to remand to the County Court for proceedings consistent with this opinion.

WIGGINTON, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent. In granting the respondent’s motion to dismiss, the county court interpreted the applicable provisions of the declaration of covenants and restrictions of the Lafayette Oaks Homes Association, Inc., as follows:

The covenants and restrictions run with the Plaintiff’s land and leave descretion [sic] in the Defendant to enforce the covenants should the Defendant so choose. If the Defendant declines to enforce or waive the covenants and restrictions then the individual property owners may do so at their own expense.

By dismissing the complaint, the court was necessarily required to interpret certain provisions of the covenants and restrictions which were attached to the complaint. Among other things, article three, section 3 of the covenants provides:

Enforcement of these covenants and restrictions shall be by an appropriate civil proceeding against any person or persons violating or attempting to violate, any covenant or restriction, either to restrain violation or to recover damages, and against the land to enforce any lien created by these covenants; and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

Additionally, article four vests in the developer “the sole right ... to release any building lot from any part of the covenants and restrictions which have been violated ... if the Developer, in its sole judgment, determines such violation to be a minor or insubstantial violation.” Finally, article seven waives enforcement of the covenants and restrictions should the architectural committee fail to approve or disapprove plans and specifications within 30 days after the plans have been submitted to it or no suit is commenced to enjoin construction prior to completion of construction. The trial court, in interpreting these provisions, held that the petitioner was not entitled to the litigation expenses which he incurred in the suit brought against the Marts to enforce the covenants. This ruling was affirmed on direct appeal to the circuit court, acting in its appellate capacity.

I do not think it necessary to address any question in a petition for common law cer-tiorari as to whether or not the trial court’s interpretation was erroneous or correct. We are asked only whether the judgment, and hence the interpretation, exceeded the essential requirements of the law. In my opinion it did not. Were this a direct appeal from the trial court’s judgment, I might agree with the majority that the trial court’s interpretation was arguably at variance with the language employed in the covenants. This, however, is not our function in determining whether extraordinary relief should be granted. The rule is well recognized that “the mere fact that a Circuit Court in its appellate capacity errs ... does not necessarily mean that it has either exceeded its jurisdiction or departed from the essential requirements of the law.” Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131, 1132 (Fla. 1st DCA 1977). Nor will the writ generally issue to correct an erroneous application of the law. City of Winter Park v. Jones, 392 So.2d 568, 570 (Fla. 5th DCA 1980). By granting the writ, the majority has in essence permitted a second appeal, thereby distorting the purpose of certiorari review.


text:
    Louis MOSSI and Mary Pearl Mossi, his wife, and Franco Ruocco and Alice Ruocco, his wife, Appellants, v. Fernando FUENZALIDA and Adriana Fuenzalida, his wife, Appellees.
    No. 82-373.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Dec. 15, 1982.
    A.N. Spence, Coral Gables, for appellants.
    Martin Lemlich, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This appeal is from a judgment for the defendants in a foreclosure action.

If the record contains any competent and substantial evidence which will support the trial judge’s conclusion, that conclusion will not be disturbed on appeal. Camacho Enterprises, Inc. v. Better Construction, Inc., 343 So.2d 1296 (Fla. 3d DCA 1977); Peacock v. Carver, 315 So.2d 214 (Fla. 1st DCA 1975). If the trial court chose to believe the mortgagors’ testimony that they attempted to make a timely payment of interest on the mortgage but were thwarted by the mortgagee, then, applying equity principles, the court could have refused to foreclose the mortgage on an accelerated basis. Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).

Affirmed.


author: ANSTEAD, Judge.

text:
    James BERGMANN, Appellant, v. SENTRY INSURANCE, a mutual company, Appellee.
    No. 81-1607.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 22, 1982.
    Michael R. Macairog of Grevior & Prince, Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order determining the amount of insurance benefits the appellee insurance company was allowed to set-off from the arbitration award on appellant’s uninsured motorist claim pursuant to Section 627.727(1), Florida Statutes (1977).

After being paid wage losses and medical expenses under his workmen’s compensation and personal injury protection coverages, the appellant sought to recover the same expenses during arbitration proceedings on his uninsured motorist coverage with the appellee. There was no issue of liability. The parties stipulated during the arbitration proceedings that the arbitrators were to allow the appellant his complete damages, including wage losses and medical expenses, without deducting any amounts that may have already been paid under other coverages. There was $50,000.00 available under the uninsured motorist coverage and the arbitrators awarded appellant $25,000.00. The trial court entered an order allowing the appellee to set-off from the arbitration award all of the amounts previously paid to the appellee under the workmen’s compensation and personal injury protection coverages. These amounts to-talled some $28,388.09, thereby having the effect of denying the appellant any amount of uninsured motorist benefits.

The appellant claims on appeal that the trial court erred because the appellee’s proof failed to establish that the arbitrators actually awarded appellant the amounts he requested for medical expenses and wage losses. He asserts that, absent an itemized award, it cannot be determined whether the arbitrators allowed his claims for these items.

Section 627.727(1) provides:

The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expenses coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

This statute has been construed to mean that the insured is not entitled to recover payment for the same item of damage arising out of an accident under more than one of his available coverages. For example, he is not entitled to be reimbursed for payment of a single medical bill from both his medical payments coverage and his uninsured motorist coverage. To do so would result in the duplication of benefits prohibited by the statute. Hartford Ace. & Indem. Co. v. Lackore, 408 So.2d 1040 (Fla.1982). In Lackore, the Supreme Court approved a decision of this court which held that an insurance company is not entitled to a set-off if the insured makes no claim under the uninsured motorist coverage for the same expenses he has already been paid under other coverages.

The appellant cites Lobry v. State Farm Mut. Auto Ins. Co., 398 So.2d 877 (Fla. 5th DCA 1981) as authority for the proposition that absent an itemized arbitration award the court cannot determine whether an insured has received duplicate benefits. In Lobry there was an itemized award which reflected that the insured was not awarded certain medical expenses. Notwithstanding that specific demonstration that the insured had received no duplicate medical benefits, the trial court reduced the award by the amount of medical benefits paid under the other coverages. The Fifth District appropriately reversed this determination since it was obvious that the insured had made no double recovery.

In this case the appellee took the position at the arbitration hearing that the appellant was not entitled to recover all of his alleged lost wages and medical expenses because those damages were not all caused by the accident in question. The appellee contended that most of appellant’s damages were related to appellant’s excessive consumption of alcoholic beverages rather than the accident. On the other hand, the appellant claimed that all of his expenses were related to the accident and his attorney maintained the total damages easily exceeded $100,000.00. Appellee suggested that an arbitration award of $20,000.00 would be generous. The arbitrators awarded a lump sum of $25,000.00.

We do not believe that these circumstances demonstrate that appellant’s receipt of the $25,000.00 arbitration award constituted a duplication of benefits already received. It is simply impossible to determine on this record whether the arbitrators awarded the entire $25,000.00 for pain and suffering and allowed nothing for lost wages and medical expenses or otherwise apportioned their award. In order to be entitled to a set-off the burden was upon the appellee to demonstrate that the award constituted a duplication of benefits received. The proof submitted reflected that' appellant made a claim for these benefits but such proof did not demonstrate that such benefits were included in the arbitration award. To the contrary, if appellee’s arguments at the arbitration hearing were accepted by the arbitrators, as it appears they were, at least in part, it would appear that many of such benefits were not included in the award.

Accordingly, we reverse the judgment of the trial court and remand with directions for further proceedings consistent herewith.

DOWNEY and BERANEK, JJ., concur.

      . In addition to having the arbitrators itemize their award to facilitate resolution of the set-off issue, it would appear that the insurer could secure a stipulation from the claimant that the arbitrators should not award damages for expenses already paid under other coverages. Absent a stipulation the insurer may have no alternative other than to bring a declaratory action and ask the court to supervise the arbitration and determine coverage in accord with Section 627.727(1). At the very least the insurer should establish at the arbitration hearing the benefits already paid under other coverages and be certain that the arbitrators are aware of the provision of Section 627.727(1). In the present case the arbitrators were specifically instructed to ignore the provisions of Section 627.727(1) so that it is possible, indeed probable, that some duplication of benefits may have been awarded. But it is impossible on the existing record to determine the extent of any duplication.


text:
    Brines STRONG, Jim Graham and Jim Graham, Inc., Appellants, v. Colbert M. CHISOLM and Elizabeth K. Chisolm, his wife, Appellees.
    No. 81-2403.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 16, 1982.
    Jack M. Coe of Lee, Schulte, Murphy & Coe, P.A., Miami, for appellants.
    Henry P. Trawick, Jr. of Trawick & Grif-fis/P. A., Sarasota, for appellees.
   PER CURIAM.

This is an. appeal from a judgment granting appellants’ specific performance of a land sales contract and a broker’s commission upon specified conditions. Upon review of the record we find that there is substantial competent evidence to support the judgment of the trial court as to the conditions of the decree. Under such circumstances we are bound to uphold the court’s resolution of the factual issues resolved by the judgment. Mori v. Matsushita Elec. Corp. of America, 380 So.2d 461 (Fla. 3d DCA 1980); Coble v. Agnew, 128 So.2d 158 (Fla. 2d DCA 1961). We also conclude that the trial court acted properly in resolving those issues relating to the authority of the broker and the broker’s entitlement to a commission. See e.g. Whitson v. Owens, 94 Fla. 1201, 115 So. 512 (1927); Black v. Clifton, 284 So.2d 465 (Fla. 4th DCA 1973); and Delucca v. Flamingo Corp., 121 So.2d 803 (Fla. 3d DCA 1960).

Accordingly, the judgment of the trial court is affirmed.

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


author: BERANEK, Judge.

text:
    Joseph W. LAVELY, Appellant, v. STATE of Florida, Appellee.
    No. 82-725.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 15, 1982.
    H. Dohn Williams, Jr., of Varón & Stahl, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

After denial of his pretrial motion to suppress, appellant was tried and convicted of trafficking in marijuana. He was sentenced to a term of imprisonment of five years, and was ordered to pay a fine of $25,000. We reverse.

On May 16, 1980, United States Customs Patrol Officers Hill and MeGinty were on patrol in the Intercoastal Waterway north of Port Everglades, Florida. They were operating a 27-foot unmarked, ocean racing type vessel. Shortly before noon they observed a 42-foot Chris Craft Sport Fisherman, named “DARLING,” heading north in the Intercoastal Waterway in the vicinity of the Las Olas Bridge. Officer Hill observed that the boat was plowing in the water, there was salt spray all over the boat, the curtain windows of the cabin were closed, the door to the cabin was closed, and the water line was just about even with the water. There were two men on the vessel, both dressed in an attire common for yachtsmen or boating people, and there was fishing gear on board the boat. The Pompano Beach Fish Rodeo was being held on that date, and there were approximately 300 boats in the area, the vast majority of which were sport fishing type boats. Officer Hill ran a computer check on the boat, which came back negative, indicating the vessel was not suspected of being involved in smuggling. Nevertheless, federal officers Hill and McGinty passed the boat and waited for it north of the Sunrise Bridge, about two miles north of where the boat was first observed. When the vessel went underneath the Sunrise Bridge, they pulled up along side the boat and advised that they were Customs Officers. They instructed appellant, who was the captain of the boat, to put the boat in neutral. Officer Hill asked appellant where he had come from and he responded that he had come from out in the ocean. Appellant was then asked who owned the boat, to which he replied he did not know. Officer Hill then boarded the boat for the purpose of a document check of the vessel and a search. After boarding the vessel, he smelled the odor of marijuana. He immediately went to the cabin, opened the door, and observed bales. Appellant was placed under arrest for possession of contraband. For reasons unknown to us, appellant and his companion were turned over to the Fort Lauder-dale Police for prosecution by the State rather than by the Federal Government.

After the hearing on the motion to suppress, the trial court ruled initially that appellant did not have standing to contest the search and seizure. The trial court further concluded that based upon all the circumstances, Officer Hill had reasonable suspicion to make a stop and his entry onto the boat was not illegal. The first issue to be dealt with is standing, because if we determine that appellant lacked standing, his other arguments become moot. Appellant contends that the trial court erred in its determination of no standing in that he, as captain, had a legitimate expectation of privacy on the vessel. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980). We agree. The facts show that at the time the Customs Officers stopped the boat, appellant was one of two persons aboard. Appellant was the captain of the boat and was operating it at the time it was stopped. All evidence subsequently elicited showed he had total control and dominion over the boat.

Having determined that appellant had standing to contest the search and seizure, we turn to the question of whether the stop was justified. Officers of the United States Customs Service may stop a vessel on one of two principles, either a border search or a limited investigatory stop based upon a reasonable suspicion of a violation of the law. 19 U.S.C. Section 1581(a); United States v. D’Antignac, 628 F.2d 428 (5th Cir.1980). To meet the requirements of a border search, the official must show with some degree of probability that a vessel recently crossed an international border. United States v. Whitmire, 595 F.2d 1303 (5th Cir.1979). The question is thus whether the United States Customs Officers had sufficient reason to believe that appellant’s boat had recently crossed an international border of the United States. Simply put, was there evidence that the boat had just been in the ocean beyond the three mile limit?

In United States v. Whitmire, supra, two customs officers were on routine patrol in the Intercoastal Waterway in Dade County, Florida, at approximately 8:00 a.m. They observed a 25 foot Nova Boat speeding at an estimated 40 to 45 miles per hour through an inlet connecting the ocean to the inland waterway. The boat was coming from the ocean side but was already inside the shore line when the officers first sighted it. The day was unpleasant for boating; it was overcast, cold, and windy, and the water was choppy. The speeding boat was producing a heavy wake, and each time it came down it threw a large bow spray higher than the boat top. Two males were observed on board and no fishing gear was visible. The boat turned north into the inland waterway and continued on at high speeds past a customs inspection station and sped through a “no wake” zone. The officers observed that the boat was encrusted with salt crystals such as might have formed during an extensive ocean voyage. They noticed that the occupants were wearing brand new orange sweat shirts with “BIMINI” printed across the chest. The Fifth Circuit held:

The instant facts do not fit a border search analysis neatly, since we have consistently required some degree of probability that the vehicle/vessel has crossed the border. In water cases, the true border is an imaginary line three miles off shore. ' Though we have not required the coast guard or customs officers to observe the vessel as it crosses this imaginary line, our precedent generally has required that the officials have articulable facts from which they may reasonably infer that the boat has come from international waters. On our facts, the boat was first sighted inside the coast line and, for all the customs people actually knew, might have been on an early morning cruise up and down the intercoastal canal or outer coast line. At 1307.

Certainly the facts in the Whitmire case are much stronger than those in the present situation. Indeed, in the instant case, the Customs Officers had only two factors indicating possible crossing of an international border: (1) salt spray all over the boat and (2) appellant’s statement that he had been in the ocean. These facts are simply insufficient to support a conclusion that the boat had crossed the three-mile line under the federal precedent cited above. One wonders if evidence was not readily available that 42 foot sport fisherman boats generally fish beyond the three mile limit and that salt spray on the flying bridge of a 42 foot boat would indicate a voyage in open and heavy seas. There was, surprisingly, no attempt to produce such evidence and in view of United States v. Whitemire, supra, and similar precedent we are not prone to judicially notice these facts. We hold that the demonstrated facts possessed by the United States Customs Officers were insufficient to conclude that the boat had recently crossed an international border of the United States. We therefore, hold the stopping and boarding of appellant’s vessel cannot be justified as a valid border search.

We now look to whether the stopping and boarding of appellant’s vessel was based on a showing of articulable suspicion of criminal activity. Here, we have a boat traveling north on the Intercoastal Waterway at 11:00 a.m. on the day of the Pompano Beach Fish Rodeo. The two occupants on board were dressed in boating attire and fishing gear was evident. Consistent with the operation of the cabin air conditioning, the cabin curtains and cabin door were closed. Although slightly bow heavy, the waterline was just about even with the water. The boat had salt spray on it. The boat did not violate any navigational rules and a computer cheek proved negative. These facts simply do not demonstrate a founded suspicion that criminal activity was afoot. See Cacace v. State, 379 So.2d 1306 (Fla. 4th DCA 1980).

Having fulfilled neither of the requirements of 19 U.S.C. Section 1581(a), the stop was not justified. Accordingly, the trial court erred in denying appellant’s motion to suppress. We caution that this decision is not applicable to Florida State authorities. This was a stop by federal officials under federal statutes. Further we conclude that we are bound by the specifically cited federal decisions herein. If we had a free hand we would not so rule.

REVERSED.

WALDEN, J„ and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . It should be noted that these officers were not U.S. Coast Guard personnel and were not involved in a Coast Guard documents check.