author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Terry Dale GILLMAN, Respondent.
    No. 57740.
    Supreme Court of Florida.
    Nov. 6, 1980.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for respondent.
   OVERTON, Justice.

This is a petition for certiorari to review a decision of the Second District Court of Appeal, reported at 373 So.2d 935 (Fla. 2d DCA 1979), in which the court certified the following question to be of great public interest:

WHETHER A PERSON IN POSSESSION OF A LETTER FROM THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES AUTHORIZING HIM TO WORK IN THE CAPACITY OF A CRIMINAL LABORATORY TECHNICIAN IS A DULY LICENSED CRIMINAL LABORATORY TECHNICIAN FOR PURPOSES OF THE REQUIREMENTS OF SECTION 322.-261(2)(b), FLORIDA STATUTES (1977), SO THAT BLOOD ALCOHOL TESTS RESULTS OTHERWISE ADMISSIBLE MAY BE USED IN A CRIMINAL TRIAL.

We have jurisdiction, article V, section 3(b)(3), Florida Constitution (prior to April 1, 1980, amendment), and answer the question in the affirmative, finding that the Department’s letter constituted a temporary license and therefore fulfilled the requirements of section 322.261(2)(b).

Respondent Gillman was the driver of an automobile involved in a two-vehicle collision which killed the second driver. Respondent was taken to a hospital for treatment, and, while there, a hospital employee withdrew a blood specimen at a police officer’s request. Respondent made no objection. A biochemist later determined that the specimen’s alcoholic blood content was .11%, .01% higher than the level of legal intoxication. Moreover, an expert toxicologist approximated respondent’s alcoholic blood content to be .18% at the time of the accident.

The employee withdrawing the blood sample was a medical technician and had worked at the hospital for about ten months. He had completed three years of college, one year of medical school technology, and was licensed by the American Medical Technologists. Although not permanently licensed by the state, the employee had received a letter from the Department of Health and Rehabilitative Services authorizing him to work as a clinical laboratory technologist while completing his one-year hospital internship, the requisite for taking the state examination for permanent certification.

The respondent was charged and convicted of vehicular homicide and of motor vehicle manslaughter by intoxication. On appeal, the district court reversed the conviction and remanded the cause for a new trial, holding that “[t]he state here failed to establish that [the employee] was a member of any of the classes of persons authorized by Section 322.261(2)(b) to withdraw blood samples.” 373 So.2d at 937. We disagree.

This Court recently held in State v. Bender, 382 So.2d 697 (Fla.1980), that when the state presents evidence of motor vehicle driver intoxication which includes an approved alcoholic test method, the test results are admissible only upon compliance with the statutory provisions and the administrative rules enacted thereunder. In so holding, we cited the instant district court decision. We agree with this general principle as expressed by the district court, but disagree with the court’s application of the principle under the facts of this case. Section 322.261(2)(b) provides:

Only a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician, acting at the request of a peace officer, may withdraw blood for the purpose of determining the alcoholic content therein. Such withdrawal of blood shall be performed only at a hospital, clinic, or other medical facility. This limitation shall not apply to the taking of a breath specimen. [Emphasis added.]

We construe this section in light of section 483.141, Florida Statutes (1977):

No person shall conduct a clinical laboratory examination or report the results of such examination unless he is licensed under this part to perform such procedures. However, this provision shall not apply to any practitioner of the healing arts authorized to practice in this state. The Department of Health and Rehabilitative Services may grant temporary licenses to candidates it deems properly qualified for a period not to exceed 6 months and for such additional 6-month periods as it may decide. [Emphasis added.]

The present unrefuted facts reveal that although the hospital employee was not permanently licensed, he was temporarily authorized as a clinical laboratory technologist by HRS letter. We view this letter to be a temporary license in accordance with the provisions of section 483.141, and find that this temporary license complies with the “duly licensed” requirement set forth in section 322.261(2)(b). We conclude, therefore, that the employee was authorized and properly qualified to withdraw specimens for blood alcoholic determination.

As stated in State v. Bender, all motor vehicle drivers impliedly consent, by statute, to chemical blood analysis, and the partial purpose of section 322.261 is to guard the health of those individuals subjected to this analysis. Our holding today in no manner thwarts the section’s purpose or violates any constitutional standard.

Having answered the certified question affirmatively, we quash the district court’s decision on the licensing issue and remand for further proceedings consistent with this opinion. The district court’s decision as to the appropriateness of respondent’s sentence is not before us and consequently is unaffected by this decision.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

      . § 322.262(2)(c), Fla.Stat. (1977).

      . HRS issues such letters authorizing trainees for six-month periods. See § 483.141, Fla.Stat. (1977). This was the employee’s second letter.

      .The district court also vacated the trial court’s sentence because the sentencing judge considered respondent’s election to stand trial rather than plead guilty in imposing a harsher penalty. This issue is not before us.


source: Caselaw Access Project

author: McDONALD, Justice.

license: Public Domain

text:
    FLORIDA WILDLIFE FEDERATION, Appellant, v. STATE DEPARTMENT OF ENVIRONMENTAL REGULATION et al., Appellees.
    No. 58135.
    Supreme Court of Florida.
    Nov. 6, 1980.

      Thomas E. Kingcade and Jack S. Cox of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for appellant.
    William E. Deane and Randall E. Denker, Asst. Gen. Counsels, Tallahassee, for the State of Florida Dept, of Environmental Regulation.
    Robert Grafton, Thomas J. Schwartz, Stephen A. Walker and Irene Kennedy Quin-cey, West Palm Beach, for South Florida Water Management District.
    Philip S. Parsons of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, and Robert M. Rhodes of Thompson, Wadsworth, Messer & Rhodes, Tallahassee, for Florida Sugar Cane League, Inc., Florida Chamber of Commerce, Dairy Farmers, Inc., Florida Agricultural Research Institute, Florida Farm Bureau Federation and Indian River Citrus League, Inc., amici curiae.
   McDONALD, Justice.

This is a direct appeal from a circuit court order dismissing the federation’s complaint and declaring section 403.412(2)(a), Florida Statutes (1977), an impermissible incursion into this Court’s power to adopt rules of practice and procedure. We have jurisdiction and reverse.

In May 1979, the Florida Wildlife Federation (federation) filed suit against the Department of Environmental Regulation (DER) and the South Florida Water Management District (district) pursuant to section 403.412, the Environmental Protection Act (EPA). Alleging pollution of the C-18 canal and surrounding waters by the use, maintenance and operation of the S-46 spillway (located near Jupiter, Palm Beach County), the federation sought mandatory injunctions against the district and DER, attorney’s fees, and money damages. Both DER and the district filed motions to dismiss which were granted with leave to amend.

The federation duly filed an amended complaint which DER answered. The district, however, filed another motion to dismiss, arguing, inter alia, that because the federation failed to allege special injury it did not have standing to bring suit. Agreeing with the district that section 403.-412(2)(a) is an impermissible invasion of this Court’s prerogative to adopt rules of practice and procedure, the trial court dismissed the complaint. Claiming that the order precluded further amendment, the federation requested that the court issue a final order. The court complied, and this appeal followed. (Although a codefendant in the trial court, appellee DER joins the federation in arguing for the constitutionality of the statute in this appeal.)

Over a decade ago, the electors of Florida amended the state constitution to add section 7 to article II of that document. That section states the public’s intent that it “be the policy of the state to conserve and protect its natural resources and scenic beauty.” Section 7 further provides that “[a]de-quate provision shall be made by law for the abatement of air and water pollution.” To help effectuate that policy, the legislature enacted the EPA as section 403.412 in 1971.

While providing that state citizens as well as state agencies may institute suit to compel governmental agencies to perform their duties and to enjoin the violation of laws, rules, and regulations, section 403.412(2) sets out numerous conditions precedent to the bringing of such actions. An interested party must first file a complaint with the appropriate agency. The complaint must set out the facts upon which it is based and the manner in which the complainant is affected. Thereafter, the agency has thirty days in which to act on the complaint. Only after meeting these requirements and giving the agency the opportunity to act may a complainant file suit in a court of law.

The federation followed this procedure and finally filed suit in circuit court. In its complaint, the federation alleged that the S-46 spillway is a present and continuing source of pollution of the Loxahatchee River, that federation members use the waters surrounding the spillway for recreational purposes, and that the federation’s members have been irreparably damaged by the spillway’s operation. The federation contends that its complaint adequately sets forth a cause of action pursuant to 403.-412(2)(a) which should not be disallowed because the legislature saw fit to create a new cause of action by creating capacity in private citizens to enjoin pollution of the state’s natural resources.

The district, on the other hand, claims that the legislature has tried to abrogate this Court’s special injury rule of standing to sue. Thus, the district sees 403.412(2)(a) as a rule of procedure, passage of which was not within the legislature’s power.

Although the trial court agreed with the district, we do not. We hold that by enacting section 403.412 the legislature created a new cause of action, giving the citizens of Florida new substantive rights not previously possessed. This statute sets out an entirely new cause of action. By providing that the manner in which a potential plaintiff is affected must be set out, the statute ensures that the minimum requirements of standing-injury and interest in redress-will be met.

As a new cause of action, the statute is substantive law. Substantive law has been defined as “that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer.” State v. Garcia, 229 So.2d 236, 238 (Fla.1969). By the enactment of section 403.412(2)(a) the citizens of Florida have been given the capacity to protect their rights to a clean environment-a right not previously afforded them directly. This, then, is the difference between the instant case and Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), wherein this Court found that the statute under attack there sought to define proper parties rather than to set out substantive rights. The instant statute, however, does not suffer from the same defect. Section 403.412(2)(a) is not an impermissible incursion into this Court’s power over practice and procedure in the state’s courts.

The district further .contends that approval of the statute should not extend to abrogating the special injury rule in this instance. Again, we disagree because the legislature has manifested its intent that that rule of law not apply to suits brought under the EPA.

This Court originally formulated the special injury rule as a method of forestalling a multiplicity of suits. See Brown v. Florida Chautauqua Ass’n, 59 Fla. 447, 52 So. 802 (1910); Case Comment-Public Nuisance: Standing to Sue without Showing “Special Injury,” 26 F.S.U.L.Rev. 360 (1974). Under the rule, which developed in the area of public nuisance law, an individual could maintain suit to enjoin a nuisance only if that person could show injury different both in kind and degree from that suffered by the public at large. 59 Fla. at 451, 52 So. at 804. The rule has been extended to taxpayer’s suits, Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917), and zoning suits, Boucher v. Novotny, 102 So.2d 132 (Fla.1958). The rule is not absolute, however, and exceptions to it have been carved out by both this Court and the legislature. See State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3d DCA 1974) (individual may bring action, in name of state, to abate public nuisance without necessity of showing special injury); Brown v. Firestone, 382 So.2d 654 (Fla.1980) (taxpayers); Department of Administration v. Horne, 269 So.2d 659 (Fla.1972) (taxpayers); Renard v. Dade County, 261 So.2d 832 (Fla.1972) (zoning); City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1975) (who is an “interested person” for purposes of bringing suit under the Administrative Procedure Act).

If the legislature had meant for the special injury rule to be preserved in the area of environmental protection, it could easily have said so. We presume legislative awareness of the law of public nuisance with its special injury requirement. That the legislature chose to allow citizens to bring an action where an action already existed for those who had special injury persuades us that the legislature did not intend that the special injury rule carry over to suits brought under the EPA.

A reading of the entire EPA further bolsters this conclusion. The act limits private plaintiffs to citizens, thereby countering some of the multiple suit problems by precluding just any person from coming into this state and instituting suit. Also, numerous conditions precedent, as previously discussed, have been set out. Provision has been made to protect those operations conducted under governmental permits. In an obvious effort to limit frivolous suits, the act provides that trial courts may require plaintiffs to post bond. Finally, subsection (3) provides that the trial courts may grant injunctive relief and impose conditions consistent with law, rules, and regulations, thereby preserving the court’s discretion as to whether or not the moving party has stated a case sufficient to motivate granting the requested relief. See North Shore Bank v. Town of Surfside, 72 So.2d 659 (Fla.1954); Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808 (1946).

We hold, therefore, that section 403.412 creates a new cause of action and that private citizens of Florida may institute suit under that statute without a showing of special injury. As far as what showing is necessary to state a cause of action under the EPA, we note that a mere allegation of irreparable injury not sustained by the allegation of facts will not ordinarily warrant the granting of injunctive relief. Brown v. Florida Chautauqua Ass’n. Also, it must appear that the question raised is real and not merely theoretical and that the plaintiff has a bona fide and direct interest in the result. Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194 (1946). Under these guidelines, the federation’s complaint has stated a cause of action.

As a final comment, we address the question of whether the federation is a proper plaintiff. During oral argument, the Court questioned whether the federation, a nonprofit corporation, was a “citizen” within the meaning of section 403.-412(2)(a). Section 617.021, Florida Statutes (1979), states that nonprofit corporations have the power to sue and be sued to the same extent as natural persons. Additionally, most courts which have considered the question have concluded that corporations are citizens for the purpose of pursuing rights granted to citizens. See In re Advisory Opinion to Governor, 243 So.2d 573 (Fla.1971) (discussing the holdings from numerous jurisdictions). We agree with the Fourth District Court of Appeal that, by enacting section 403.412, the legislature has declared the protection of the environment to be a collective responsibility and that to treat corporations as citizens is consistent with that declaration.

Reversed and remanded for further proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.

      . The portion of § 403.412 with which this appeal is concerned reads as follows:
      (2)(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:
      1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations;
      2. Any person, natural or corporate, governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules or regulations for the protection of the air, water, and other natural resources of the state.

      . Art. V, § 3(b)(1), Fla.Const. (1972).

      . We note, however, that § 403.412 does not authorize money damages. That part of plaintiffs prayer for relief seeking such damages, therefore, should be stricken.

      . Orange County Audubon Soc’y, Inc. v. Hold, 276 So.2d 542 (Fla. 4th DCA 1973).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. William T. FUSSELL, Respondent.
    No. 58567.
    Supreme Court of Florida.
    Nov. 6, 1980.
    Stanley A. Spring, Staff Counsel, Tallahassee, Michael C. Whittington, Asst. Staff Counsel, and W. DeHart Ayala, Jr., Chairman, Thirteenth Judicial Circuit Grievance Committee “A”, Tampa, for complainant.
    B. Anderson Mitcham, Tampa, for respondent.
   PER CURIAM.

Following a grievance complaint filed by The Florida Bar, the appointed referee recommended that the respondent be found guilty of a violation of Disciplinary Rule 2-110(A)(3) of the Florida Bar Code of Professional Responsibility.

Mr. Fussell did return unearned fees to his former client, but he was several months late in doing so. For this dereliction of his responsibilities the referee recommended a public reprimand. The record supports the referee’s recommendation and it is adopted.

Unearned fees do not belong to a lawyer when the attorney-client relationship ends. The lawyer has no further custodial rights to these funds. For the welfare of clients, as well as the image of the individual lawyer and of the organized bar, a prompt refund of unearned fees is dictated.

William T. Fussell is hereby publicly reprimanded for his failure to faithfully comply with this responsibility. Costs are assessed against him in the sum of $876.76.

SUNDBERG, C. J., and ADKINS, OVERTON and McDONALD, JJ., concur.

BOYD, J., dissents.

      . D.R. 2-110(A)(3) reads: A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.


author: SUNDBERG, Chief Justice.

text:
    Jeffery A. GILMORE, Appellant, v. STATE of Florida, Appellee.
    No. 58678.
    Supreme Court of Florida.
    Nov. 6, 1980.
    Douglas M. Midgley, Public Defender, and Deborah Studybaker, Asst. Public Defender, Naples, for appellant.
    Jim Smith, Atty. Gen., and Gregory Phillip Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   SUNDBERG, Chief Justice.

Appellant brings this appeal attacking the constitutionality of section 39.04(2)(e)4, Florida Statutes (1979). He argues that the section is unconstitutional in the following respects: (i) the section violates due process; (ii) the section violates equal protection; (iii) the section constitutes an unlawful delegation of legislative authority; and (iv) the section violates the prohibition against ex post facto laws. Additionally, because appellant is a juvenile, he challenges the ability of the criminal division of the circuit court to take jurisdiction of this case. The circuit court upheld the challenged provision, thereby vesting this Court with direct appellate jurisdiction. Art. V, § 3(bXl), Fla.Const. (1972).

In our recent decision of State v. Cain, 381 So.2d 1361 (Fla.1980), we held that section 39.04(2)(e)4 did not unlawfully delegate legislative authority and that the section did not violate the requirements of due process or equal protection. 381 So.2d at 1364-66. We also ruled that the criminal division of the circuit court may properly take jurisdiction in this type of case. 381 So.2d at 1363-64.

Appellant’s remaining contention, that section 39.04(2)(e)4 is an ex post facto law is also without merit. Section 39.04(2Xe)4 says:

The state attorney shall in all such cases, after receiving and considering the recommendation of the intake officer, have the right to take action, regardless of the action or lack of action of the intake officer, and shall determine the action which is in the best interest of the public. The state attorney may:
With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony;

Appellant contends that since the effective date of section 39.04(2)(e)4 was October 1, 1978, and his last involvement with the juvenile court was in 1977, an application of the statute to the appellant would violate the constitutional prohibition against ex post facto laws. The facts indicate that appellant committed the burglary and grand theft on May 7, 1979, several months after the effective date of section 39.-04(2)(e)4. The fact that appellant’s previous criminal acts authorizes the application of section 39.04(2)(e)4 does not by itself make the statute an ex post facto law. Here the application of the statute is not ex post facto because as we said in Cross v. State, 96 Fla. 768, 119 So. 380 (1928):

[T]he increased severity of the punishment for the second or subsequent offense is not a punishment of the person a second time for his former offenses but is a more severe punishment for the last offense, the commission of which is a manifestation of a criminal habit which may be taken into account in determining the adequacy of punishment to be imposed upon habitual offenders for offenses committed subsequent to the enactment of the statute. But for the commission of the subsequent offense, the enhanced penalty would not be imposed. Comm. v. Graves, 155 Mass. 163, 29 N.E. 579, 16 L.R.A. 256; Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18. The statute is not rendered ex post facto by providing enhanced punishments for a subsequent offense because of convictions occurring prior to the passage of the statute.

96 Fla. at 782-83, 119 So. at 385.

We hold that section 39.04(2)(e)4 as applied in this case did not violate the constitutional prohibition against ex post facto laws. See Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed. 2d 894 (1964); Zarsky v. State, 281 So.2d 553, 544 (3d DCA 1973); cf. Greene v. State, 238 So.2d 296, 300-01 (Fla.1970) (quoting this language from Cross, supra, but reaching a different result because in that case both felonies involved were committed before the statute’s effective date).

AFFIRMED.

ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    Gabrielle G. KROMHOUT, Appellant, v. Desire KROMHOUT, Appellee.
    No. 80-79.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Dec. 3, 1980.
    Sherman N. Smith, III, Vero Beach, for appellant.
    Robert L. Pegg of Kramer, Roddenberry, Petersen & Palmer, Vero Beach, for appel-lee.
   PER CURIAM.

Affirmed.

MOORE, HERSEY and HURLEY, JJ„ concur.


author: SCHEB, Chief Judge.

text:
    UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Appellant, v. TOWN AND COUNTRY HOSPITAL, INC., Appellee.
    No. 79-22.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1980.
    As Amended Nov. 19, 1980.

      Harold G. Melville of Morgan, Lewis & Bockius, Miami, for appellant.
    John W. Puffer, III, Francis H. Cobb and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   SCHEB, Chief Judge.

Town and Country Hospital, Inc. (Town & Country) sued United States Life Insurance Company in the City of New York (U.S. Life), claiming that U.S. Life breached its loan commitment contract. The jury returned a verdict for U.S. Life and Town & Country moved for a new trial. The trial court concluded that its failure to give one of Town & Country’s requested jury instructions on waiver was prejudicial error, and granted a new trial. We reverse.

Town & Country obtained a six million dollar construction loan commitment to finance construction of a hospital. The commitment conditioned closing of the construction loan on Town & Country’s obtaining a satisfactory commitment for permanent financing. U.S. Life subsequently offered Town & Country a permanent loan commitment. When Town & Country executed the commitment documents, it attached a letter amendment requiring U.S. Life’s commitment to be satisfactory to the construction lender. If not, the amendment required U.S. Life to return the $60,000 Town & Country had paid as the initial portion of the commitment fee. On October 11, 1973, U.S. Life executed both the commitment and the letter amendment, and the commitment became valid for six months.

U.S. Life’s permanent loan commitment required Town & County to obtain a building permit within sixty days of the date of the commitment and to complete the footings and foundation of the hospital within six months. Town & Country, however, did not meet these deadlines. In the meantime a new lender assumed Town & Country’s original construction lender’s obligations. On April 25, 1974, fourteen days after the termination of U.S. Life’s commitment, Town & Country requested U.S. Life to waive these two existing defaults and to make a number of modifications in the commitment to satisfy the demands of Town & Country’s new construction lender. U.S. Life notified Town & Country on May 24 that it would consider making some of the modifications. It refused, however, to waive the defaults at that time. As a consequence Town & Country’s construction lender refused to close the construction loan and, on August 6, Town & Country demanded the return of its $60,000. U.S. Life refused to return the money and Town & Country sued for breach of contract.

At trial Town & Country introduced evidence of written and verbal contacts between it and U.S. Life. This evidence indicated that Town & Country and U.S. Life had discussed whether U.S. Life would extend its commitment, modify portions of the commitment, and waive the defaults as to the time requirements for Town & Country’s obtaining a building permit and completing the footings and foundation of the hospital. Therefore, there was a sufficient predicate requiring the court to instruct the jury on the issue of waiver as related to these defaults.

U.S. Life requested two instructions on waiver:

Number 6
When a party to a contract has failed to perform some act required by the contract, and the second party to the contract, by its acts and conduct, treats the contract as continuing, the second party can neither refuse to continue its own performance under the contract or raise the failure of the first party to perform as a defense.
Number 12
I instruct you that in an action for breach of contract containing no provision making time of the essence for performance, it may become of the essence if the party not in default gives notice that performance shall be required within a reasonable time. The failure to perform on time pursuant to the terms of the contract may be waived if neither party has treated time as being of the essence in their dealings with respect to the contract.

The trial court gave number 12, but did not give number 6. The jury then returned a verdict for U.S. Life.

Subsequently, Town & Country moved for a new trial. The trial court granted the motion because it concluded that, by not giving requested instruction 6, it had failed to adequately instruct on the issue of waiver as to the two defaults.

U.S. Life filed this appeal contending that there was no evidence to justify any instruction on waiver. But, it argues, assuming that there was sufficient evidence, instruction number 12 adequately covered the only aspect of waiver which could have been involved here. We agree with U.S. Life’s latter contention.

Evidence on the issue of waiver centered on Town & Country’s defaults in not timely obtaining the building permit and completing the footings and foundation. U.S. Life points out that its loan obligation under its commitment expired on April 11, 1974. Contacts with Town & Country after April 11, it argues, were simply good faith actions on its part to give Town & Country an opportunity to revive the commitment. The evidence on waiver included letters exchanged by the parties after April 11, which referred to U.S. Life’s waiving Town & Country’s time defaults. For example, on May 24, 1974, house counsel for U.S. Life responded to a letter from Town & Country regarding waiver of the defaults. Counsel’s letter stated:

(d) As this particular point, we are not prepared to waive this default [the failure to timely obtain a building permit].
(g) However, at this time, we are not prepared to waive the default under the “Construction and Completion of Improvements” [referring to default in failure to timely complete the footings and foundation].

Obtaining a building permit and completing the footings and foundation were conditions to be met by Town & Country before U.S. Life was obligated to close the permanent loan. Town & Country defaulted when it failed to timely perform these acts. Consequently, it was essential that the court adequately instruct the jury on the issue of U.S. Life’s alleged waiver of these defaults.

We think that in giving requested instruction 12, the court adequately covered this issue. The language of the instruction sufficiently embraced Town & Country’s contention that U.S. Life had waived its failure to timely perform the conditions of the commitment by not treating time as being of the essence. While the court could also have given instruction 6, its failure to do so was not error since instruction 12 adequately covered the subject. Black v. Heininger, 163 So.2d 3 (Fla. 2d DCA 1964).

Nevertheless, Town & Country seeks to sustain the trial court’s grant of a new trial on the authority of Cloud v. Fallis, 110 So.2d 669 (Fla.1959), and Castlewood International Corp. v. La Fleur, 322 So.2d 520 (Fla.1975). In Cloud the supreme court held that a trial court’s discretion to grant a new trial is “of such firmness that it would not be disturbed except on clear showing of abuse . . . 110 So.2d at 672. Cloud, however, concerns the grant of a new trial when the verdict fails to comport with the manifest weight of the evidence and holds that in such an instance, the trial court has broad discretion. Here, the question concerns not the weight of the evidence but whether the trial court committed an error of law in failing to give instruction number 6. Consequently, Cloud does not control this appeal. As stated in City of Hollywood v. Jarksey, “Where it is apparent from the grounds stated in granting a new trial that the trial judge is acting under an erroneous legal assumption, then it is not a question of discretion but a question of the legal sufficiency of the ground or reason given.” 343 So.2d 886, 887-88 (Fla. 4th DCA 1977); accord, Motor Transit Co. v. Studstill, 129 Fla. 769, 176 So. 769 (1947). In Castlewood, 322 So.2d at 520, the trial court had concluded that the jury had been confused by its having given an unnecessary instruction and the court exercised its discretion by awarding a new trial. The Third District Court of Appeal reversed stating that it did not believe the jury was confused. The supreme court quashed the Third District’s decision. There, the trial court was in a better position to determine whether the jury was confused than the Third District. The present case, however, does not present a question of jury confusion by the giving of an unnecessary instruction. Rather, it presents the question of law of whether the instruction given adequately covered the issue of waiver. Since appellate courts may properly review decisions of law made by trial courts, Castlewood is distinguishable and, like Cloud, is not controlling in this appeal.

Our disposition of this appeal precludes the need to dispose of the other points raised by U.S. Life. Finally, we have examined the points raised by Town & Country in its cross-appeal, and find them to be without merit.

Accordingly, we vacate the order of the trial court granting a new trial, reinstate the jury verdict, and remand for further proceedings consistent with this opinion.

HOBSON and GRIMES, JJ., concur.


text:
    WINN-DIXIE STORES, INC., Appellant, v. Lillian CODOMO et al., Appellees.
    Nos. 79-608, 79-462.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Vernis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Coconut Grove, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Cohen, Logan & Kandell, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Schmidt v. Bowl America Florida, Inc., 358 So.2d 1385 (Fla.4th DCA 1978); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla.3d DCA 1978); Sabugo v. GDS Drugs, Inc., 350 So.2d 22 (Fla.3d DCA 1977).


author: ORFINGER, Judge.

text:
    NORTH INDIALANTIC HOMEOWNERS ASSOCIATION, INC., a Florida Corporation, Hoyland M. Simison, and Barbara Bednar, Appellants, v. Charles B. BOGUE, Alfred Seegers and Mary Seegers, his wife, Frank W. Griffith and Stanford Wells Griffith, Appellees.
    No. 80-62.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.

      Burton J. Green, Cocoa Beach, for appellants.
    Joseph S. Gillin, Jr., Storms, Krasny, Nor-mile, Dettmer & Gillin, P.A., Melbourne, for appellee Bogue.
   ON MOTION TO DISMISS APPEAL

ORFINGER, Judge.

Appellant’s amended complaint consisted of two counts. The first count alleged that a six foot walkway extending from State Road A1A to the Atlantic Ocean beach had been dedicated to public use on the plat where it is shown, and that the dedication had been accepted and not revoked or abandoned. Count II, relying on the same basic facts, alleges that even if the dedication of the walkway was not accomplished, plaintiffs and other property owners in the subject subdivision have continuously and without interruption used the walkway for more than 20 years predicated on their belief that they had a legal right to use said walkway under the terms of the dedication.

On motion, the trial court dismissed with prejudice Count I and those portions of Count II based on theory of dedication and plaintiff appealed that order. Appellee moves to dismiss the appeal on the ground that the order appealed from is non-final and is not within the category of appealable non-final orders described in Rule 9.130(a) Florida Rules of Appellate Procedure. Appellant agrees that the instant order cannot be appealed as a non-final order, but contends that it is a final order and appealable as such.

Piecemeal appeals are not permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974). An order dismissing one of several counts all arising out of the same factual circumstances is not an appealable final order. Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980). The only exception to this rule is found where the count dismissed constitutes a separate and distinct cause of action which is not interdependent with other pleaded claims. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

Although the count dismissed here is based on a different legal theory than is the count which remains, it is based on the same factual background, and as such is not the type of appealable final order within the principles of Mendez, supra. The issues involved in both counts are clearly interrelated, they involve the same basic factual situation and the parties are the same. Under these circumstances, the order dismissing one count is not a final order and is not appealable. Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (1976); Agriesti v. Clevetrust Realty Investors, 381 So.2d 753 (Fla. 4th DCA 1980).

Appeal DISMISSED, without prejudice to an appeal following final judgment.

DAUKSCH, C. J., and SHARP, J., concur.


author: SCHWARTZ, Judge.

text:
    Edward KOBETITSCH, Appellant, v. AMERICAN MANUFACTURERS’ MUTUAL INSURANCE COMPANY, Appellee.
    No. 80-275.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Franklin, Entin, Kimler & Marks and Lewis S. Kimler, North Miami Beach, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and David S. Currie, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

Kobetitsch seeks review of a summary declaratory judgment which determined that he was not entitled to the uninsured motorist benefits of an American Manufacturers’ insurance policy issued to his employer, the Atlantic Barber & Beauty Supply Company. The UM endorsement defined an insured as “any ... person occupying an insured highway vehicle,” but provided that “the term ‘insured highway vehicle’ shall not include a vehicle being used without the permission of the owner.” Since Kobetitsch was injured by an uninsured motorist while driving a van leased by Atlantic which was otherwise covered by the policy, the case turns on whether he was using it with his employer’s “permission” when the accident occurred. We hold that the carrier was not entitled to judgment as a matter of law on this issue and therefore reverse the judgment below.

The record shows that Atlantic’s van drivers, including Kobetitsch, were granted permission to drive their vehicles to their homes after they finished work for the day and keep them there overnight. Kobetitsch lived in Dade County but his route for Atlantic covered Fort Lauderdale and Pompano Beach. On the day of the accident, he apparently finished work at 6:00 P.M. in Broward County. At about 10:00 P.M.-the record is silent as to his whereabouts in the meantime-after having picked up a passenger in contravention of company rules, he secured fuel for the van at a company-approved gas station in North Miami Beach. He pulled out of the station, intending, he said, to drop the rider off at his home and then head directly to Kobetitsch’s own residence. The record presented to us does not disclose whether or not the passenger’s house was on the way from the station to the appellant’s home. A short distance from the station, the van was rear-ended by an uninsured driver and Kobetitsch was seriously hurt.

On this rather skimpy record, both parties in the declaratory judgment action brought by American Manufacturers moved for summary judgment. The insurance company argued that Kobetitsch’s use of the van was not with his employer’s permission because of the four-hour delay after he left work; the fact that he was carrying a passenger; and his plans to drop the rider off, rather than merely to drive the vehicle to his own residence. In the trial court, the appellant did not really take issue with these contentions. He asserted, however, that the definition of “permission” under the policy is equivalent to the standard applied in imposing liability under the Florida dangerous instrumentality doctrine; that is, that when one initially entrusts a motor vehicle to another, he is liable for its negligent operation “no matter where the driver goes, stops or starts.” Boggs v. Butler, 129 Fla. 324, 176 So. 174, 176 (1937). Chase & Co. v. Benefield, 64 So.2d 922 (Fla.1953), and Ivey v. National Fisheries Inc., 215 So.2d 74 (Fla. 3d DCA 1968) were cited both below and in this court for the proposition that even the most extreme violations by an employee of his employer’s instructions concerning the use of its vehicle will not relieve it of responsibility to injured third persons. Thus, Kobetitsch contended that Atlantic’s admitted initial permission to use the van was all that was required to render him an insured under the policy, no matter what happened thereafter. In resolving this issue, as it was thus framed for decision, against the appellant, the trial judge was plainly right. As clearly revealed by the dissenting opinion (which cites the Chase & Co. case), this court held in Ball v. Inland Mutual Ins. Co., 121 So.2d 470 (Fla. 3d DCA 1960), cert. discharged, 128 So.2d 130 (Fla.1961), that an original entrustment which would impose tort liability on the employer, does not-as a matter either of public policy or of the proper construction of the clause in question-alone constitute the “permission” to operate required by the insurance policy. In so doing, we implicitly rejected the authorities, many of which were cited in the dissent in Ball, which apply the so-called “first instance permission” or “liberal” rule of the interpretation of this very common policy language. See, cases collected, Annot., Automobile liability insurance: permission or consent to employee’s use of car within meaning of omnibus coverage clause, 5 A.L.R.2d 600, 629-636 (1949); 1-6 A.L.R.2d, Later Case Service, at 661-63 (1971). In Winters v. Phillips, 234 So.2d 716 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 424 (Fla.1970), it was similarly held that the “implied consent” tort doctrine was not applicable to the interpretation of a clause almost identical to the one now before us. But see, Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973), cert. denied, 280 So.2d 685 (Fla.1973).

The fact that Kobetitsch was therefore not entitled to summary judgment in his favor does not result in an affirmance of the summary judgment entered against him. See, Spear v. Martin, 330 So.2d 543 (Fla. 4th DCA 1976); Mullen v. Mullen, 184 So.2d 917, 919 (Fla. 2d DCA 1966). This is so because, unlike the factual situation in Ball (as well as those in Chase & Co. and Ivey), the record does not support the conclusion that Kobetitsch’s use of the van was not with Atlantic’s permission, as a matter of law. At the time of the accident, he had just gassed Atlantic’s vehicle as he was authorized and indeed directed to do. Moreover, he was operating the vehicle on a course between his job in Bro-ward County and his home in Dade which was in accordance with the specific permission Atlantic had granted him. Under these circumstances, the facts that several hours had elapsed after the end of the work day, and that he intended to drop off his rider before going home, raise, at the most, factual questions-which could not properly be resolved by summary judgment -as to whether there was in fact a deviation from his employer’s authorization and, if so, whether the deviation was so consequential and substantial as to result in a denial of coverage. See generally, Bekaert v. State Farm Mut. Auto. Ins. Co., 230 F.2d 127 (8th Cir. 1956); Gulla v. Reynolds, 82 Ohio App. 243, 81 N.E.2d 406 (1948). In stating the pertinent issue in this way, we expressly adopt the “moderate” or “minor deviation” rule as to the construction of a permissive use clause. See cases collected, Annot., supra, 5 A.L.R.2d at 636-43; 1-6 A.L.R.2d, Later Case Service at 663-64 (1971); 7 Am.Jur.2d Automobile Insurance § 266 (1980). This doctrine, which has been accepted by the clear majority of the courts which have considered the question, occupies an appropriate middle ground between the harsh “strict conversion” rule, see, Annot., supra, 5 A.L.R.2d at 626-29; 1-6 A.L. R.2d, Later Case Service at 661 (1971), under which even the slightest departure from the scope of permission granted to the employee will obviate coverage, and the “initial permission” rule, which we have already declined to follow in the Ball case. See, Employers Mutual Casualty Co. v. Poe, 191 So.2d 541 (Miss.1966). While it is impossible to articulate the exact parameters of the “minor deviation rule,” it may be generally said that:

if the use made by employee is not a gross violation of the terms of the bailment, even though it may have amounted to a deviation, protection is still afforded such employee. 5 A.L.R.2d at 636.

The precise circumstances of the individual case are of course all-important in determining the result of the application of this rule. Compare, e. g., Ball v. Inland Mutual Ins. Co., supra, with e. g., State Farm Mutual Auto. Ins. Co. v. Birmingham Electric Co., 254 Ala. 256, 48 So.2d 41 (1950) and Phoenix Ins. Co. v. Bently, 126 Ga.App. 857, 191 S.E.2d 887 (1972). Because of the legal posture in which this cause was presented below, these facts have not yet been fully developed; it is therefore inappropriate to speculate further about the eventual outcome of the case at bar.

For the reasons stated, the judgment below is reversed and the cause remanded for proceedings consistent herewith.

Reversed and remanded.

      . Although the liability portion of the policy was not made a part of the record, we assume from the fact that Kobetitsch does not claim to the contrary that its definition of “insured” is no broader than the UM coverage. While UM need not be provided to those who are not insured for liability purposes, Southeast Title & Insurance Co. v. Thompson, 231 So.2d 201 (Fla.1970); France v. Liberty Mutual Ins. Co., 380 So.2d 1155 (Fla. 3d DCA 1980), it is conversely the case that liability insureds may not be excluded from UM coverage. Salas v. Liberty Mutual Fire Ins. Co., 272 So.2d 1 (Fla.1972); Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971); § 627.727(1), Fla.Stat. (1977) (Precluding issuance of auto liability policy unless UM coverage provided “for the protection of persons insured, thereunder.”)

      . We ascribe no significance to the fact that the policy involved in Ball referred to the “actual use” of the vehicle. See, Annot., Automobile Insurance-Coverage, 5 A.L.R.2d 600, 607 (1949).

      . The mere violation of a “no-riders” policy does not render the “use” of the vehicle beyond the permission of the employer. Hawley v. Indemnity Ins. Co. of North America, 257 N.C. 381, 126 S.E.2d 161 (1962); Annot., supra, at 5 A.L.R.2d 654-56.

      . Holl v. Talcott, 191 So.2d 40 (Fla.1966).

      . We recognize the accuracy of the comment in American Fidelity Co. v. North British & Merc. Ins. Co., 124 Vt. 271, 204 A.2d 110, 112 (1964) that “[t]he minor deviation rule is troublesome because there is so little of a rule about it.” We think it nonetheless useful to characterize our views as involving the adoption of a particular “rule”-although the “rule” involves, as this one does, an assessment of a host of factual variables-if only to differentiate it from the competing litmus-paper type doctrines which we reject.

      . The adoption of this rule would be in obvious contravention of the manner in which Florida courts must interpret the terms of insurance policies in general and UM coverage in particular. See, Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975); Mullis v. State Farm Mutual Automobile Ins. Co., supra; Continental Casualty Co. v. Borthwick, 177 So.2d 687 (Fla. 1st DCA 1965).

      . See note 5, supra.


text:
    STATE of Florida, Appellant, v. Robert Paul KIMBALL, Appellee.
    No. 80-272.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    Rehearing Denied Nov. 26, 1980.
    Michael J. Satz, State’s Atty., and Teresa Beazley Widmer, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Maurice Graham of Brimmell & Graham, P.A., Fort Launderdale, for appellee.
   PER CURIAM.

We reverse the trial court’s dismissal of the information in this case since the State filed a traverse which placed material facts in issue. See State v. Sanders, 380 So.2d 1126 (Fla. 2d DCA 1980).

The cause is REVERSED and REMANDED for further proceedings consistent with this opinion.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: GRIMES, Judge.

text:
    Melvin B. SMITH, Tax Collector of Hillsborough County, Florida, Appellant, v. UNIVERSITY PRESBYTERIAN HOMES, INC., Appellee.
    No. 79-2326.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1980.
    Rehearing Denied Nov. 24, 1980.
    David M. Mechanik, Asst. County Atty., Tampa, for appellant.
    Francis H. Cobb and John W. Puffer, III, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee.
   GRIMES, Judge.

This appeal involves the question of whether a court may award prejudgment interest when it orders the refund of ad valorem taxes. We answer the question in the negative.

University Presbyterian Homes, Inc. filed a complaint against the Hillsborough County Tax Collector seeking a refund of the 1974 ad valorem taxes it paid on a certain parcel of real property. It alleged that as of January 1, 1974, it had not completed improvements located on the property and that therefore those improvements should not have been included in the assessed value of the property for 1974. After hearing the matter, the trial court entered judgment in favor of University Presbyterian Homes in the amount of $80,503.54 plus interest of $13.01 per day after October 31, 1979. The $80,503.54 figure was the sum of $59,380.40 (89% of the taxes actually paid to the tax collector) and the interest on that amount from May 21, 1975 to October 31, 1979, at the rate of 8% per year. The tax collector challenges only the award of interest from May 1975 to October 1979.

The tax collector argues that the court erred in awarded prejudgment interest because in Florida a governmental body is not liable for interest unless expressly authorized by statute or contract and because there is no Florida statute authorizing prejudgment interest on ad valorem tax refunds. We agree. State v. Dickinson, 322 So.2d 525 (Fla.1975); Mailman v. Green, 111 So.2d 267 (Fla.1959); Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980); Hansen v. Port Everglades Steel Corp., 155 So.2d 387 (Fla.2d DCA 1963). The Goembel and Hansen cases are directly on point. The two supreme court cases did not involve the refund of ad valorem taxes, but they did deal with the refund of some type of tax.

In its brief, University Presbyterian Homes cites several cases to support its position that it was entitled to prejudgment interest. Simpson v. Merrill, 234 So.2d 350 (Fla.1970); Florida Livestock Board v. Gladden, 86 So.2d 812 (Fla.1956); Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935); City of Opa—Locka v. Buckress Land Co., 247 So.2d 339 (Fla.3d DCA 1971). The three supreme court cases are distinguishable. Simpson v. Merrill only dealt with a party’s right to recover costs against a state agency as contrasted to interest, and while the Florida Livestock and Treadway cases did allow prejudgment interest, they dealt not with tax refunds but with suits on contracts. The supreme court found there an implied statutory allowance for interest in the legislature’s decision to allow certain state agencies to be sued in contract. The limited scope of these rulings was expressed in Treadway when the court said:

Where there is statutory authority to sue, not the state generally for matters affecting its sovereign governmental functions, but upon “any claim arising under contract for work done” for a state agency having specific statutory authority to contract for the construction of highways for the state and to pay for the work when done under contract, and there are no pertinent limitations contained in the authority to sue or in other statutes controlling the subject as to payment of interest on debts due on contracts made for the state by its authorized agency, the general principles of liability for interest may be applied in proper cases of contract obligation, where to do so comports with the statutory authority to sue and will do justice in the case consonant with law and equity and the dignity and honor of the sovereign.

117 Fla. at 855, 158 So. at 518. We do not find the City of Opa-Locka case to be persuasive authority because it relied without analysis solely upon Treadway, Florida Livestock Board, and Simpson, which, as we have noted, are distinguishable from the present case.

The suggestion that it is inequitable to charge the taxpayer interest on an underpayment and yet deny him interest on a refund loses much of its force when examined in light of Section 194.171(3), Florida Statutes (1979), which permits a contesting taxpayer to pay only those taxes which he admits in good faith to be owing. In any event, there was no showing of the extraordinary inequity which some of the cases have indicated might authorize the payment of prejudgment interest on the refund. See Lewis v. Andersen, 382 So.2d 1343 (Fla. 5th DCA 1980); Mailman v. Green.

University Presbyterian Homes makes an additional argument which is not addressed in the other decisions. It contends that the following portion of Florida Administrative Code Rule 12D-12.47, dealing with tax refunds, requires the payment of prejudgment interest:

When money is held by the tax collector, clerk of the court, or board of county commissioners for a taxpayer pursuant to Section 197.186 or Section 197.291, Florida Statutes, the county shall not be liable for interest or to pay interest that could have accrued while the money was in possession of the county, regardless of the reason the money was paid to the county, unless ordered by the courts.
The amount to be refunded shall be based upon the original distribution by the tax collector to the taxing authority plus interest, if any.

We need not pass on whether the Department of Revenue exceeded its legislative authority to issue such a rule because we construe those provisions to require the payment of interest on refunds only in situations where there is statutory authority for the payment of such interest. Here there was no statutory authority for the court’s award of interest.

We reverse that part of the judgment which awards prejudgment interest to University Presbyterian Homes and remand the case for redetermination of the amount of the final judgment in a manner consistent with this opinion.

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

      . These statutes are inapplicable to the present case, so the argument goes that by specifying two exemptions this is a further indication that the Department of Revenue intended for prejudgment interest to be paid on all other refunds pursuant to the succeeding paragraph of the regulation.

      . One example of an instance where interest on refunds is specifically authorized by statute is found in Section 197.116(8), Florida Statutes (1979).


author: BASKIN, Judge.

text:
    Jack E. DOMINIK, Appellant, v. Rolla E, DOMINIK, Appellee.
    No. 79-1498.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Dec. 8, 1980.

      John E. Kearns, Miami, Fla., for appellant.
    Gold & Fox and Myron M. Gold, Coral Gables, for appellee.
    Before HUBBART, C. J., BASKIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

In this appeal from a final judgment dissolving their marriage, the husband contests the award of rehabilitative alimony, attorney’s fees and the use of the marital residence to the wife. The wife cross-appeals provisions of the final judgment pertaining to interest on mortgage payments, sale of the home and cessation of alimony. We agree with the contentions advanced by the wife.

Rolla Dominik, a forty year old college educated Canadian citizen, sought a dissolution of her marriage to a fifty-five year old patent attorney. Their thirteen year marriage produced three children. The wife, a homemaker, assisted her husband in his law office as a bookkeeper and receptionist and was an officer in his professional association. The husband is a patent attorney, and at the time of the dissolution, his net worth exceeded $400,000 from his law practice, stock, and properties. The gross annual income of his law practice was about $250,-000. The wife’s assets exceeded $100,000 consisting of cash, real estate, and securities largely supplied by her husband.

The judgment granting dissolution ordered the husband to pay his wife rehabilitative alimony of $1,500 per month until June 30, 1981, and $1,200 per month until June 1,1989. This obligation was to terminate if the wife cohabited with another adult. The court found the wife to be “presently employable,” except for the limitations upon her activities imposed by her caring for her children, and found that she could become fully employed when her youngest child reached school age. The husband was ordered to pay monthly child support payments of $300 per child and the wife was awarded use of the marital home during her children’s minority. The marital home was ordered to be sold when the youngest child reached majority, or if the wife remarried, or if the home were occupied by a person other than the wife and children, with the wife to receive credit for half the mortgage principal payments, taxes and insurance. Major repairs on the home were to be the husband’s obligation.

The court later determined that a reasonable fee for the wife’s attorney was $10,000 of which the husband was ordered to contribute $5,000.

The first objection by the husband is to the determination by the trial court that the wife was entitled to periodic, rehabilitative alimony for a period of ten years. The husband claims that since the trial court found that the wife would become fully employable and capable of earning $800 per month when her youngest child reached school age (an event which occurred about six months after entry of final judgment), an award of rehabilitative alimony was inappropriate. The trial court also found, however, that “due to the age of her children, [the wife] could not reasonably be expected to maintain a full-time job” and that the wife is “presently employable but for the limitations imposed by caring for her children.” For these reasons, and despite the husband’s objections, we find no abuse of discretion on the part of the trial court.

It appears from the final judgment that the trial judge determined that the wife was discharging her responsibilities as a mother and that those responsibilities prevented her from seeking employment outside the home. The need for rehabilitative alimony in such situations is well recognized, and the courts generally agree that the period for payment of this type of alimony may encompass a protracted length of time. Hall v. Hall, 363 So.2d 137 (Fla. 2d DCA 1978); Smithwick v. Smithwick, 353 So.2d 572 (Fla. 1st DCA 1977); and Manning v. Manning, 353 So.2d 103 (Fla. 1st DCA 1977). See Robinson v. Robinson, 366 So.2d 1210 (Fla. 1st DCA 1979).

The husband belatedly asserts that the awards of alimony and child support exceed the amount listed as necessary on the wife’s financial statement. Even if this issue were properly before the court, we would find no error since there has been no showing that the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Next, the husband challenges the trial court’s order that determined that a reasonable fee for the wife’s counsel was $10,000 and ordered the husband to contribute $5,000 toward that sum. The husband argues first that the wife was capable of paying her own fees and next that the lower court erred in setting the fee at $10,-000 when the bill, under the fee agreement between the wife and her counsel, sought only $5,300.

In response to the first argument propounded, we find no abuse of discretion even though the wife has displayed some ability to pay. “[T]he purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel.... It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees.” Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1978).

Turning to the husband’s second argument, we find no error in the amount of fees awarded. The record on appeal originally lacked a transcript of the hearing concerning attorney’s fees, but was supplemented pursuant to this court’s direction and Florida Rule of Appellate Procedure 9.200(f). The record supports the award as within the discretion of the trial court. Dash v. Dash, 363 So.2d 48 (Fla. 3d DCA 1978).

The question concerning the length of time the wife was entitled to possession of the marital residence was addressed by the court in Duncan v. Duncan, 379 So.2d 949 (Fla.1980). In that case, the court decided that a grant of exclusive possession of property must serve a special purpose and that aid to a spouse with custody of minor children was a proper example of a special purpose. The court expressly rejected the limitation of terminating the award when all children reached their majority. The court noted, however, that an award of exclusive use of the property “must be determined by the equity of the cause and should be for a specified period. It is always subject to modification whenever there is a change of circumstances.” Based on the foregoing decision, we find that the award of exclusive possession of the residence, considered with other support provisions, was within the discretion of the trial court as were the rulings concerning repairs. The court properly permitted the wife credit for half the mortgage principal payments, taxes, and insurance upon sale of the residence, but we construe the court’s ruling to include credit to the wife for half the interest paid as well and to credit the husband for repairs to the home upon sale. Rutkin v. Rutkin, 345 So.2d 400 (Fla. 3d DCA 1977); Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976); and Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975).

On her cross-appeal, the wife alleges the court erred in requiring the marital residence to be sold if it were occupied “on a permanent basis by any person other than the wife and the minor children.” We find this provision to be vague and ambiguous since it is impossible to determine whether it applies when the wife moves out or only when another person moves in. As the provision now stands, it would exclude residence by a housekeeper or relative. We, therefore, reverse this ruling and remand for further expression by the court. Accord Whiteley v. Whiteley, supra.

We also find error in the court relieving the husband of his obligation to pay rehabilitative alimony upon “cohabitation of the wife with another adult.” Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3d DCA 1975).

For these reasons, the decision of the trial court is affirmed in part and reversed in part, and the cause is remanded for further proceedings in accordance with this opinion.

      . The trial court did not abuse its discretion in awarding rehabilitative alimony instead of permanent alimony even though it appears from the record that the wife may be incapable of ever maintaining herself at the standard of living to which she had become accustomed. If time reveals this to be the situation, the wife has the option of seeking an appropriate, timely modification. Markgraf v. Markgraf, 320 So.2d 27 (Fla. 2d DCA 1975).


text:
    FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, and Sam Clark & Associates, Inc., a Florida Corporation, Appellants, v. MISSISSIPPI VALLEY EQUIPMENT CO., a Missouri Corporation, Appellee.
    Nos. 80-207, 80-264.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 24, 1980.
    Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Miami, Glass, Schultz, Weinstein & Moss and Jeffrey Allen Hirsch, Coral Gables, for appellants.
    Therrel, Baisden, Stanton, Wood & Setlin and Howard A. Setlin, Miami Beach, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Travelers Indemnity Company v. Housing Authority of the City of Miami, 256 So.2d 230 (Fla.3d DCA 1972).


text:
    Ramon PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-319.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Dec. 4, 1980.
    Mishkin & Febles, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and BASKIN, JJ., and LILES, WOODIE A. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

At a non-jury trial, Perez was convicted of attempted robbery, obviously on the theory that he had aided and abetted the commission of the crime. The only evidence against him was that he assisted the actual robber, one Lara, to escape from his pursuers by pulling him into a moving car and driving from the vicinity of an aborted purse-snatch. There was no direct proof that Perez had been waiting for Lara, much less that he had a prior intention to participate in the offense itself, as is indispensable to conviction. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933); Williams v. State, 206 So.2d 446 (Fla.4th DCA 1968). Pack v. State, 381 So.2d 1199 (Fla.2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla.4th DCA 1972); and Douglas v. State, 214 So.2d 653 (Fla.3d DCA 1968), establish that merely driving the perpetrator from the scene is insufficient circumstantial evidence of this requisite intent-even, though, unlike this case, it is also shown that the defendant had driven him to the area or was present while the crime was taking place. A fortio-ri, these decisions require that Perez be discharged. Accord, e. g., J. O. v. State, 384 So.2d 966 (Fla.3d DCA 1980); J. H. v. State, 370 So.2d 1219 (Fla.3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980).

Reversed.


text:
    GITTLIN COMPANIES, INC., Appellant, v. DAVID & DASH, INC., Appellee.
    No. 80-672.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Dec. 8, 1980.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan Langbein and Alan E. Greenfield, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and LILES, WOODIE A. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Purportedly because the appellee David & Dash’s employees made $597.08 in direct sales of wallpaper, in violation of the exclusive distribution provision of the parties’ agreement, the appellant, Gittlin, repudiated the entire contract, and thus refused to honor its undertaking to purchase well over $100,000 of the material from the appellee. On cross-motions for summary judgment, the trial court held that David & Dash’s breach was not a material or substantial one and therefore did not justify the recission of the contract by the appellant. See Hyman v. Cohen, 73 So.2d 393, 397 (Fla.1954); Steak House, Inc. v. Barnett, 65 So.2d 736 (Fla.1953); Beefy Trail, Inc. v. Beefy King International, Inc., 267 So.2d 853, 857-58 (Fla. 4th DCA 1972); 17 Am. Jur.2d, Contracts § 504 (1964); 12 Williston, Contracts § 1455 (3d ed. Jaeger 1970). We entirely agree with that determination. Cincinnati Siemens-Lungren Gas Illuminating Co. v. Western Siemens-Lungren Co., 152 U.S. 200, 14 S.Ct. 523, 38 L.Ed. 411 (1894); McAlpine v. AAMCO Automatic Transmissions, Inc., 461 F.Supp. 1232 (E.D.Mich.1978). Accordingly, the order granting summary judgment on the issue of liability for breach of contract in favor of David & Dash, now under review pursuant to Fla.R.App.P. 9.130(a)(3)(C)(iv), is

Affirmed.


text:
    Alphonse DELLA-DONNA, Appellant, v. GORE NEWSPAPER COMPANY, a Delaware Corporation authorized to do business in the State of Florida; and Hamilton C. Forman, Appellees.
    Nos. 80-789, 80-1045.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Dec. 8, 1980.
    Frates, Jacobs & Farrar and Terry S. Bienstock, Kreeger & Kreeger, Miami, for appellant.
    Joe N. Unger, Pomeroy, Betts, Pomeroy, Moses & Pomeroy, Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for appellees.
    Before HUBBART, C. J., SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The plaintiff-appellant, a lawyer who lives and practices in Broward County, brought a defamation action against the publisher of the Fort Lauderdale News and a commentator on a Fort Lauderdale radio station. Since some copies of the News circulated, and the station’s range extended into Dade County, venue was initially properly laid here, as one of the counties in which the cause of action accrued. First-america Development Corp. v. Daytona Beach News-Journal Corp., 196 So.2d 97 (Fla.1966). In the order on appeal, however, the trial court transferred the case to Broward County under the forum non con-veniens statute. Sec. 47.122, Fla.Stat. (1979). Since Broward is where all the parties reside, where the alleged wrongs were committed, and where the predominant adverse impact of those wrongs took place, we find no abuse of discretion in that ruling. Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978); Hertz Corp. v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); Peterson, Howell & Heather v. O'Neill, 314 So.2d 808 (Fla. 3d DCA 1975); England v. Cook, 256 So.2d 403 (Fla. 3d DCA 1972); see, McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1937); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975); Florida East Coast R. Co. v. Hardee, 167 So.2d 68 (Fla. 3d DCA 1964); compare, Houchins v. Florida East Coast R. Co., 388 So.2d 1287 (Fla. 3d DCA 1980) (Case no. 80-390, opinion filed, September 30, 1980); Bassett v. Talquin Electric Cooperative, Inc., 362 So.2d 357 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979). “In sum, this is a [Broward County] case,” which belongs in Broward County.

Affirmed.

      . Fla.R.App.P. 9.130(a)(3)(A).

      . We read the Bassett opinion as one which simply determines that the movant failed to make the required showing that a transfer was appropriate “for the convenience of the parties or witnesses or in the interest of justice.” § 47.122. If, however, it holds that § 47.122 may not be utilized to deprive the plaintiff of his choice of forum if the transferor and transferee counties are adjacent and are connected by convenient means of transportation, we simply disagree with that conclusion. Banachowski v. Atlantic Refining Co., 84 F.Supp. 444 (S.D.N.Y.1949) (“[I]f we were to so hold residents of Jersey City, Hoboken and neighbour-ing cities would all find it more convenient to sue in this court [in Manhattan] instead of in the District Court of New Jersey.”) Accord, Haase v. Mallenkrodt, Inc., 415 F.Supp. 889 (S.D.N.Y.1976) (transfer from Manhattan to Jersey City appropriate); Bridgeman v. Bradshaw, 405 F.Supp. 1004 (D.S.C.1975).

      . Leinberger v. Webster, 66 F.R.D. 28, 35 (E.D.N.Y.1975).


text:
    Carmine VILLORIN, a minor, by and through her father and next friend Antonio De J. Villorin, and Antonio De J. Villorin, individually, and Morris Galler and Government Employees Insurance Company and Josephine Villorin, Appellants, v. METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, Dade County School Board and North Miami Beach, Appellees.
    Nos. 79-2025, 79-2032 and 80-827.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Dec. 4, 1980.
    Simons & Schlesinger and Jack H. Vital, III, Fort Lauderdale, Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Carol A. Fennello, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before HUBBART, C. J., SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); A. L. Lewis Elementary School v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3d DCA 1979); Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980).


text:
    Herbert STEWART, Appellant, v. Donald Lawrence SCRIBNER and Key West Electrical Repair and Supply Company, Inc., Appellees.
    No. 79-1032.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Dec. 8, 1980.

      Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and W. Sam Holland, Miami, for appellant.
    Neblett & Sauer and C. Kent Miller, Key West, for appellees.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

Herbert Stewart, plaintiff in the personal injury action below, appeals an adverse final judgment which was entered in favor of the defendants, Donald Scribner and Key West Electrical Repair and Supply company, Inc. We hold that the trial court should have directed a verdict for plaintiff Stewart on the issue of liability. We also hold that the verdict was ambiguous necessitating a new trial on the issue of damages.

This action was instituted following an automobile accident which involved vehicles driven by appellant Stewart and appellee Scribner. Scribner’s vehicle, a pick-up truck, was owned by Scribner’s employer, Key West Electrical Repair and Supply Company, Inc., and insured under a policy with United States Fidelity & Guaranty Company. Stewart filed a complaint for damages incurred as a result of the accident, naming Scribner, Key West Electrical, and United States Fidelity & Guaranty as defendants.

As the case progressed, a motion to strike any reference to the insurance company and a motion to dismiss the insurer as a defendant were filed. The motion to dismiss was based on Section 627.7262, Florida Statutes (1977). An agreed order was entered dismissing United States Fidelity & Guaranty Company, and the parties prepared for trial. Stewart requested the trial court to reinstate USF&G in light of the decision of the supreme court in Markert v. Johnston, 367 So.2d 1003 (Fla.1979), holding Section 627.7262, Florida Statutes (1977) unconstitutional. The motion to reinstate was denied and the case proceeded to trial.

During the trial, both Stewart and Scribner described the events surrounding the accident. According to the testimony, Stewart was proceeding south on a two lane road in bumper-to-bumper traffic. It was a clear, sunny afternoon. Scribner occupied the vehicle directly behind Stewart. According to Stewart, he had been stopped in traffic, proceeded forward, and stopped again. He was then struck from the rear by Scribner’s vehicle. There was no testimony to dispute this description of the events. Stewart also presented evidence of medical bills allegedly incurred as a result of the accident as well as evidence concerning lost wages.

At the close of the evidence, Stewart moved for a directed verdict on the issue of liability. The court reserved ruling on this motion and allowed the case to go tp the jury. Despite Stewart’s objections, the jury was given a verdict form which read:

Was there negligence on the part of the defendant, Donald Lawrence Scribner, which was a legal cause of damages to plaintiff, Herbert E. Stewart?
Yes_ No_

The jury answered this question in the negative. Stewart filed a motion for judgment in accordance with the motion for directed verdict and a motion for new trial. The trial court denied both motions and entered judgment in favor of the defendants, Scribner and Key West Electrical. Stewart appealed.

One of the errors claimed by Stewart is the trial court’s failure to enter a directed verdict on the issue of liability. Stewart argues, and Scribner concedes, that the facts of this case raised a presumption that Scribner was negligent. Since Stewart’s vehicle was lawfully occupying the roadway when it was struck from the rear, a rebuttable presumption that Scribner was negligent was created. Gulle v. Boggs, 174 So.2d 26 (Fla.1965); McNulty v. Cusack, 104 So.2d 785 (Fla.2d DCA 1958). Since the presumption was unrebutted, the lower court should have directed a verdict on the issue of liability. Cowart v. Barnes, 370 So.2d 103 (Fla.lst DCA 1979); Sawyer v. Dawson, 215 So.2d 764 (Fla.3d DCA 1968).

Because the verdict form was ambiguous, we are unable to determine whether the jury decided that Stewart failed to incur damages or whether the jury concluded that Scribner was not negligent. Accord, Variety Children’s Hospital Inc. v. Perkins, 382 So.2d 331 (Fla.3d DCA 1980). We, therefore, hold that there must be a new trial, but only as to the issue of damages. Parks v. Ralston Construction Co., 338 So.2d 65 (Fla.3d DCA 1976).

Upon remand, Stewart should be permitted to reinstate the defendant UAF&G for purposes of the new trial on damages. Markert v. Johnston, supra; Marion v. Cissell, 376 So.2d 871 (Fla.2d DCA 1979). Stewart’s earlier participation in an agreed order to dismiss USF&G from the suit was clearly predicated upon Section 627.7262, Florida Statutes (1977), subsequently held unconstitutional. Under these circumstances Stewart is not barred from including USF&G. See Ingerson v. State Farm Mutual Automobile Insurance Co., 272 So.2d 862 (Fla.3d DCA 1973).

For the foregoing reasons, the judgment is reversed and the cause is remanded for proceedings in accordance with this opinion.


author: DANIEL S. PEARSON, Judge.

text:
    The AMERICAN OIL COMPANY, a/k/a Amoco Oil Company, Appellant, v. Gerald ROSS and Anna Mae Ross, his wife, Appellees.
    No. 80-36.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Dec. 8, 1980.

      Freeman, Richardson, Watson, Slade, Kelly & Livermore and Judson Freeman, Jacksonville, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1970, the Rosses leased until 1982 certain property to The American Oil Company (Amoco), upon which property Amoco thereafter constructed and maintained a gasoline service station. The lease contained no purchase options. In 1972, the parties entered into a supplemental agreement which, inter alia, reversed the method of rent payments from a percentage of gasoline sold to a fixed dollar rental, and, pertinent here, gave lessee two different options to purchase the property. The first of these, the fixed price option, provided:

“Lessee shall have . . . the option of purchasing said demised premises for the sum of $150,000.00 ... any time during the above term as extended or any extension or renewal thereof.”

The second option (the first purchase option) provided:

“Should Lessor ... receive an offer to purchase the demised premises ... the Lessor shall give the Lessee 90 days notice of such offer in writing ... and Lessee shall have the first option to purchase the premises ... at the same price and on the same terms as any such offer, it being understood that in the event Lessee does not ... exercise said option ... this lease and all its terms and conditions shall nevertheless remain in full force and Lessor and any purchaser ... shall be bound thereby.” (emphasis supplied).

In 1978, the Rosses received an offer to purchase the premises for $285,000. As required, they notified Amoco, which, as expected, declined to exercise the first purchase option. Amoco, however, notified the Rosses that all of the terms and conditions of the lease, including its fixed price option, would remain in effect. The proposed purchase was postponed while the Rosses brought the present litigation to have their rights under the lease declared.

The lower court declared that Amoco’s fixed price option terminated as a matter of law with its refusal to exercise its first purchase option. We disagree and reverse.

The fixed price option and the first purchase option contained in the supplemental agreement between the parties are separate and distinct. Amoco’s refusal to exercise the latter did not serve to extinguish its future right to exercise the fixed price option or, for that matter, its future right to exercise the first purchase option vis-a-vis any new owner of the premises. Conroy v. Amoco Oil Company, 374 So.2d 561 (Fla.1st DCA 1979); 1A Corbin, Contracts, § 261B, n. 24.5. The supplemental agreement clearly and unambiguously provides “that in the event the lessee does not exercise [the first purchase option] . .. this lease and all its terms and conditions shall nevertheless remain in full force and Lessor and any purchaser ... shall be bound thereby.” This language preserved both options during the term of the lease. While the Rosses suggest that we construe this clause, because of its location in the supplemental agreement, as preserving only the first purchase option, the suggested construction ignores the plain and unambiguous statement that the “lease and all its terms and conditions ... remain in full force.” Moreover, the suggestion overlooks the final provision of the supplemental agreement, paragraph 5, which says, in pertinent part:

“Except as herein changed, all the terms, provisions, conditions, options and agreements contained in said lease .. . dated the 13th day of April 1970, .. . are hereby ratified and confirmed.”

One of the clauses of the 1970 lease provides:

“No assignment or change of interest by Lessor in the premises hereby demised, ... [shall] ... affect this lease or the renewal or purchase option rights of the Lessee hereunder.” (emphasis supplied).

Construing, as we must, the lease and supplemental agreement together, see J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So.2d 38 (Fla.3d DCA 1978); Canal Lumber Co. v. Florida Naval Stores & Mfg. Co., 83 Fla. 501, 92 So. 279 (1922), we conclude that the supplemental agreement not only preserved the fixed price option by virtue of keeping it, as a “term” of the agreement, in “full force,” but, additionally, preserved this option by specifically confirming the “terms” of the earlier lease.

Accordingly, we reverse the judgment of the trial court with directions that upon remand it enter judgment in favor of Amoco in accordance with this opinion.

Reversed and remanded.,

      . We agree with the Rosses that the trial court had jurisdiction to grant declaratory relief under Section 86.021, Florida Statutes (1979). See Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808 (1946); Trafalgar Developers, Ltd. v. Morley, 305 So.2d 274 (Fla.3d DCA 1975); Tulip Realty Co. of Florida v. Fuhrer, 155 So.2d 637 (Fla.2d DCA 1963); Platt v. General Development Corporation, 122 So.2d 48 (Fla.2d DCA 1960).

      . The Rosses contend that since no options came into existence until the supplemental agreement, paragraph 5 of that agreement is a nullity insofar as preserving options. While it is true that no option of the earlier lease could have been preserved by this language, what was preserved was the provision that any sale by the lessor would not affect option rights of the lessee, whenever they arose.


text:
    The STATE of Florida, Appellant, v. Errol HENRY, Appellee.
    No. 79-1387.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Dec. 8, 1980.

      Janet Reno, State’s Atty., for appellant.
    Cease & Cease and Allan A. Cease, Miami, for appellee.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the State of an order granting the defendant’s motion to suppress evidence. The defendant purchased a ticket at the Miami International Airport for transportation to Los Angeles, California. Shortly thereafter two police officers approached him for questioning and subsequently searched his suitcase in which they found marijuana. Defendant’s motion to suppress the marijuana was granted. The State appeals the suppression order. We reverse upon a holding that the order was error under the law as applied in Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979), and authorities cited therein.

The distinctive factor in this case is that at the suppression hearing the testimony of the two police officers as to the occurrences prior to, and at the time of, the search was uncontroverted. A great deal of argument is presented upon the question of whether the defendant was lawfully stopped and questioned. As we understand the issue here involved, the question of the stop and questioning is not relevant to our decision because it is the undisputed testimony of the police officers that the defendant freely and voluntarily consented to a search of his luggage after having been advised of his right to refuse permission for the search. See, State v. Parsons, 389 So.2d 1207 (Fla.3d DCA 1980); State v. Champion, 383 So.2d 984 (Fla. 4th DCA 1980); compare, Royer v. State, 389 So.2d 1007 (Fla.3d DCA 1980).

There is no evidentiary basis for the trial judge’s finding that the search was unlawful, and we must conclude that he applied an erroneous rule of law. Therefore, the order granting defendant’s motion to quash the fruits of the search must be reversed.

Reversed and remanded.

      . The appeal is authorized by Section 924.-071(1), Florida Statutes (1979), and Fla.R. App.P. 9.140(c)(1)(B).

      . Only the officers testified at the hearing.


text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. Dawn S. ROLLINS, Appellee.
    No. RR-83.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.

      Michael R. Jenks of Walton, Lantaff, Schroeder & Carson, Miami, for appellant.
    Jerold Feuer of Freed & Feuer, Miami, for appellee.
   PER CURIAM.

This is an appeal from a workers’ compensation order which finds claimant permanently and totally disabled. Appellant raises several issues, only some of which require discussion.

We find no error with regard to the testimony accepted by the Judge of Industrial Claims, the failure to apportion as to a pre-existing condition, the adequacy or ex-cusal of the work search, the psychiatric or orthopedic medical treatment ordered, or the payment of expert witness fees, and affirm. Appellee waives any right to penalties and we reverse on this point.

The order finds claimant is PTD due to her orthopedic and psychiatric problems resulting from the accident, and that claimant reached MMI orthopedically and psychiat-rically as of 10/4/77. This latter finding is based on a pre-trial stipulation to which the employer had added “Per Dr. Lehrman”. Dr. Lehrman was the treating orthopedist and we construe the employer’s notation to mean that the stipulated date related only to claimant’s orthopedic condition.

There is no competent substantial evidence indicating claimant was psychiat-rically MMI as of 10/4/77. In his deposition of February 1978, Dr. Stillman, an examining psychiatrist discussed the possibility of psychiatric improvement; Dr. Reichter, the treating psychologist, testified that claimant reached psychiatric MMI between April 1978 and June 1978. After Dr. Stillman examined claimant in May 1979, he thought she would not improve but required palliative care just to remain stable. Based on this evidence the date of 10/4/77 cannot be accepted for psychiatric MMI. Although there is extensive testimony providing competent substantial evidence for the finding that claimant is permanently and totally disabled, it is improper to begin payment of permanent benefits without a determination of the date of total MMI. Thompson v. Arnold Cellophane Corp., IRC Order 2-3029 (1976); South Carolina Ins. Co. v. Blackman, 380 So.2d 1144 (Fla. 1st DCA 1980). Accordingly, we remand on this point to allow a determination of the date of psychiatric MMI on this record.

The order requires the employer to pay for medical treatment of claimant’s obesity which has been exacerbated by the accident. The employer argues it was not given adequate notice that this treatment was being claimed and the treatment was never in issue. We agree.

The claim requested “All compensation benefits to which she may be entitled”; neither the notice of hearing nor the pretrial stipulation contained any mention of a weight problem. Although Dr. Miller, the family physician was questioned regarding this problem during his deposition, the questions were not sufficient to put the employer on notice that it must defend against such a claim. In United States Steel Corp.v. Green, 353 So.2d 86 (Fla.1977) the claimant was awarded PTD on a claim that requested only PPD, TTD and “all other benefits available under the Workmen’s Compensation Act.” The court found this insufficient to put the employer on notice that PTD was an issue. The same is true here. The claim did not give the employer adequate notice and the question directed to Dr. Miller did not overcome the deficiency.

The order also finds that claimant’s attorney is entitled to a fee and that the parties have stipulated to the application of the numerical schedule in Section 440.34, Fla.Stat. (1977), the only issue remaining being the numerical value of the benefits obtained and the application of the schedule thereto. Appellant urges this constitutes a contingency fee and is erroneous. We agree. Although the Judge of Industrial Claims has not yet entered his award of attorney’s fees based on the stipulation it appears he intends to do so. In order to avoid a further appeal on this point, we indicate our interpretation of the law as it applies to the stipulation.

In the absence of a stipulation fixing a dollar amount, the moving party must prove the value of his services by affidavit or other appropriate evidence. Lee Engineering and Construction Company v. Fellows, 209 So.2d 454 (Fla.1968). Although it can be argued that application of the statutory formula results in an actual dollar amount and therefore the stipulation may be so construed, the strict use of the formula is comparable to the use of minimum fee schedules condemned as contingency fees in Heavy Constructors, Inc. v. Dericho, 259 So.2d 489 (Fla.1972) and Galarneau v. Caroly of Miami, 299 So.2d 579 (Fla.1974). Section 440.34(1) Fla.Stat. (1977) after setting out the mathematical formula states:

However, the Judge of Industrial Claims shall consider the following factors in each case and may increase or decrease the attorney’s fee if in his judgment the circumstances of a particular case warrant such action: [e. s.]

The application of the statute may in some instances result in a percentage fee award however, the Judge of Industrial Claims must indicate in his order that he has considered the criteria established in Lee Engineering, supra and codified by this section.

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

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


text:
    Willie Allen GARRETT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1098.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.

      Terry L. DeMeo, Miami, Louis R. Beller, Miami Beach, Bruce J. Winick, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.

       Judge Hubbart participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Appellant was arrested on May 23, 1970, and charged with first-degree murder of a police officer, and arson in the second degree. Trial by jury was waived. At his arraignment on July 9 of that year, the issue of his competency was first raised. Three psychiatrists were appointed at that juncture to assess Garrett’s ability to participate meaningfully in his defense. After receiving the evaluation reports of the three experts, the court found Garrett incompetent to stand trial. He was placed into the custody of the state’s Division of Mental Health, Department of HRS, and admitted into Florida State Hospital at Chattahoochee for restoration to competency. There he was treated with psychotropic medication, and his symptomatology entered a period of remission. On October 14, •1971, the Clinical Director of that institution informed the court that appellant had been turned over to the Dade County Sheriff’s Office for further disposition, i. e. to stand trial.

Thereafter, the court ordered Garrett removed from all medication, to assess the change, if any, in his faculties. Garrett soon relapsed into his earlier psychotic state, and was thereupon returned to Chattahoochee.

This process of remission and relapse occurred repeatedly over the next six years, until Garrett was finally positively evaluated for competency while under medication pursuant to Section 918.15(4)(a), Florida Statutes (1977). He entered a nolo plea, reserving right of appeal to this court.

We reverse the judgment of the court below on the basis that, under the holding of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), he should never have been brought to trial.

Jackson was a twenty-seven-year-old deaf-mute of pre-school mentality arrested for two robberies netting him a total of nine dollars. Obviously unable to assist in his own defense, he was committed to the Indiana equivalent of Chattahoochee, until such time as he should be ready to stand trial. After a period of years, his incarceration was challenged on due process and equal protection grounds. After state court avenues of relief had been exhausted, his case was heard by the Supreme Court, which held, inter alia, that

a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.- If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.

406 U.S. at 738, 92 S.Ct. at 1858, 32 L.Ed.2d at 451.

On these facts, we find Garrett to have been held more than a “reasonable period” without the requisite determination of the likelihood of his eventual ability to stand trial. Moreover, since it appears that the trial court was of the opinion that Garrett was per se incompetent while under the influence of his medication-a belief not legally untenable until 1977 (when Section 918.15(4)(a), supra, was passed), it is clear that had the court held the hearing mandated by Jackson, at any time prior to 1977, it would necessarily have found Garrett permanently incompetent. Under Jackson, the trial court should have entertained civil commitment proceedings by the state, or released him.

We reverse and order that the court below discharge Garrett unless the state shall elect to commence civil proceedings within thirty days from the issuance of our mandate.