text:
    E. M. WATKINS & COMPANY, INC., Appellant, v. BOARD OF REGENTS and Winchester Construction & Engineering, Appellees.
    No. AL-32.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Rehearing Denied June 17, 1982.

      John A. Barley, Tallahassee, for appellant.
    Judith A. Brechner, Gen. Counsel and Herbert D. Sikes, Counsel, State Board of Educ., Tallahassee, for Board of Regents, appellee.
    Gary P. Sams and Frank E. Matthews, of Hopping, Boyd, Green & Sams, Tallahassee, for Winchester Const. & Engineering, ap-pellee.
   PER CURIAM.

E. M. Watkins & Company, Inc. (Watkins) appeals from a final order of the Board of Regents (BOR) awarding the construction contract for the Northwest Regional Data Center (NRDC) at Florida State University to Winchester Construction and Engineering Company, Inc. (Winchester) and finding that Watkins lacked the requisite standing to protest Winchester’s bid. We affirm.

On November 16, 1981, BOR, through its architect/agent, published certain bidding documents to solicit sealed bids for the performance of work required to complete construction on the NRDC. The bidding documents were amended on three occasions by three separate addenda prepared by BOR’s architects. The first, dated December 10, 1981, changed the bid opening date from December 22,1981, to January 12,1982, and contained notice that the pre-bid conference would be conducted on January 4, 1982, in Tallahassee at a place to be announced at a later date. The second addenda, dated December 31, 1981, contained notice that the pre-bid conference would be held in Room 201 of the Westcott Building at FSU. Watkins, however, did not receive the second addendum until January 5th, one day later than the date of the conference. During this pre-bid conference, one of the other contractor’s representatives in attendance suggested that the bidding documents fail to indicate which subcontractors were to be identified in the list to be furnished in response to paragraph B-15 of the bidding document. As a result of this inquiry, the architect issued a third addendum on January 6, 1982. Couched in mandatory language, this addendum informed the contractors that they should list the mechanical, electrical, roofing, masonry, and access flooring subcontractors. Watkins received this addendum prior to submitting its bid on January 12, 1982.

At approximately 2 p. m. on January 12, 1982, twelve sealed bids were received and opened by BOR. When the bids were tabulated, it was determined that Watkins had submitted the apparent low bid and that Winchester had submitted the second low bid. Upon reading Watkins’ list of subcontractors submitted with the bid, it became apparent that Watkins had failed to list three of the five major subcontractors required by the third addendum. Winchester, however, had submitted a complete list of major subcontractors. Watkins’ omission was brought to the attention of the firm by telephone, and by 4 p. m. that same day Watkins supplied a supplemental list of subcontractors. As a result of the post-bid discussion by the staff of BOR, its assistant general counsel directed the architect to inform Watkins that its supplemental list of subcontractors was accepted and that it had received the contract.

The next day, the president of Winchester contacted BOR’s staff and expressed his concern about the staff’s decision to recommend for acceptance a bid which was incomplete at the time of the bid opening. Upon further review, the staff then concluded that the omission of the required subcontractors was material and necessitated the rejection of Watkins’ bid as nonre-sponsive and incomplete. The staff then notified Watkins that the contract would be delivered to Winchester. Acting upon the recommendation of its staff and the submission by Winchester of its evidence to provide a performance and payment bond and a builder’s risk insurance policy, BOR decided to award the contract to Winchester subject to a final determination of any protest filed by Watkins. That same day, January 15, 1982, attorneys for Watkins filed a letter with the staff protesting the rejection of its bid and alleging that Winchester’s bid was defective.

Ten days later, Watkins filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. It listed as disputed issues of material fact the following: (1) Whether the bid submitted by Watkins was responsive and was the lowest and best bid for the construction project; and (2) Whether Winchester’s bid was responsive and was the lowest and best bid for the project. BOR assigned its general counsel to be the hearing officer for this matter. Prior to the hearing on the merits, the hearing officer entered an order denying Watkins’ request for a Section 120.57(1) hearing and granting Winchester’s motion for a 120.57(2) hearing. The order also granted leave to either party to request a Section 120.57(1) hearing during the informal hearing should disputed issues of material fact arise. As a result of the informal hearing held on March 5, 1982, the hearing officer issued an order recommending that the contract be awarded to Winchester because its bid was the lowest complete bid conforming to bid requirements and that Watkins be considered to lack the necessary standing to protest Winchester’s bid because Watkins’ bid was nonconforming. On March 29,1982, prior to the entry of a final order by BOR, Watkins filed its notice of administrative appeal. The final order of BOR was subsequently rendered on April 6, 1982.

In its appeal Watkins raises a multiplicity of issues: (1) Whether its failure to list the major subcontractors was a material variance to the invitation to bid and thus could not be subsequently amended by Watkins; (2) Whether BOR’s policy and practice of requiring contractors to list certain subcontractors is a rule and, as such, is invalid and unenforceable; (3) Whether Section 255.-0515, Florida Statutes (1978) and any agency rule which purports to implement that statute constitutes an unconstitutional impairment of Watkins’ right to contract, and unlawful delegation of legislative authority, or an unconstitutional denial of equal protection under the law; (4) Whether BOR abused its discretion in failing to afford Watkins a formal administrative hearing and in utilizing its general counsel as the hearing officer; and (5) Whether Watkins had the standing to protest the award of the contract to Winchester and, conversely, whether Winchester had standing to contest the bid.

By its first issue on appeal Watkins argues that its failure to list the subcontractors to this contract cannot be deemed a material omission because Florida Administrative Code Rule 6C-14.21(3) allows the submission of such information at the time of the bid opening or within 48 hours thereafter. We disagree. Certainly, the rule, as BOR admits, is rather inartfully drawn. However, to give it the construction sought by Watkins would directly contravene the provisions of Section 255.0515, Florida Statutes, which provides in relevant part that “the contractor shall not remove or replace subcontractors listed in the bid subsequent to the list being made public at the bid opening, except upon good cause shown.” If the rule purports to allow the contractor not to submit a list of subcontractors by the time of the bid opening, then the statute serves no useful purpose and is a nullity. Since agency rules cannot contravene Florida Statutes, such a construction must be rejected. See Seitz v. Duval County School Board, 366 So.2d 119 (Fla. 1st DCA 1979). Further, the transcript of the legislative committee hearings on Section 255.0515 clearly indicates that one of the major purposes of that legislation was to prevent bid shopping by contractors after a bid was awarded. It has long been held that legislative intent is the polestar by which the court should be guided in construing a statute. State v. Webb, 398 So.2d 820, 824 (Fla.1981). One method of ascertaining the legislative intent is by tracing the legislative history of the act, the evil to be corrected, and the purpose of the enactment. State ex rel. Register v. Safer, 368 So.2d 620, 624 (Fla. 1st DCA 1979). Since the legislative history of a statute is strongly indicative of the legislative intent in enacting that statute, Watkins’ proposed construction would also run counter to that intent, i.e., that substituting subcontractors (“bid shopping”) be discouraged by requiring the contractor to list its subcontractors prior to the bid opening. The policy reasons behind requiring a list of subcontractors are evident, as noted by the hearing officer in his order:

The unfair bidding advantage one contractor derives from the failure to list required subcontractors is generally threefold: (1) it provides the precious few minutes which may be saved by failing to provide a name for the appropriate blank on form D-l and matching the name with the price used in the bid computation, (2) it allows the potential for speculation, by use of a phantom price and efforts to shop that item or trade until a subcontractor can be found at the speculative contract price, and (3) it permits a successful bidder to accept additional subcontractor bids after the bid opening, giving the opportunity for undercutting the low subcontractor on whom he relied in formulating his bid.

These policy reasons, implicit in Section 255.0515, thus prevent competitive advantage, insure the quality of the subcontractors, insure public confidence in the bidding process, and encourage future competition. See, e.g., Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931); Baxter’s Asphalt and Concrete, Inc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla.2d DCA 1977); City of Opa Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So.2d 29 (Fla.3d DCA 1966). Accord LeCesse Brothers Contracting, Inc. v. Town of Williamson, 62 A.D.2d 28, 403 N.Y.S.2d 950 (1978); Matter of Bayonne Park, 168 N.J.Super. 33, 401 A.2d 705 (1979).

By its second issue Watkins urges that this policy and practice of requiring a list of major subcontractors constitutes an invalid rule and, as such, is unenforceable against Watkins. Again, we disagree. To the extent an agency may intend in its final order to rely upon or refer to policy not recorded in rules for discoverable precedents, that policy must be established by expert testimony, documentary opinion, or other evidence appropriate to the nature of the issues involved and the agency must expose and elucidate its reasons for its discretionary action. Florida Cities Water Co. v. Public Service Commission, 384 So.2d 1280 (Fla.1980); Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). We find that BOR has followed these principles in both the evidentiary support for and explanation of its reasons for requiring a list of subcontractors. This practice is supported by a showing, among other things, of 20 years of consistent state policy regarding public contracts, the legislative history of Section 255.0515 (discussed above), and the factors underlying such a policy: the prevention of bid shopping, protection of subcontractors, insuring future competitive practices, eliminating the advantage of late submission, insuring the integrity of the subcontractors’ work, etc. The hearing officer’s recommended order, which was adopted in toto by BOR, discusses these considerations in detailed and articulate fashion. Hence, we find no impermissible imposition of agency action pursuant to Chapter 120, Florida Statutes. Even assuming, arguendo, that this agency practice does deviate from Rule 6C-14.21(3), we still find no error. Administrative agencies are not foreclosed from deviating from their own rules, but they must adequately explain their deviation in their order. § 120.68(12)(b); Allis-Chalmers Credit Corp. v. Dept. of Revenue, 408 So.2d 703 (Fla. 1st DCA 1982). Considering the evidentiary support for and the order’s justification of this policy, we believe that BOR has adequately explained its deviation, if any, from the cited rule.

By its third issue Watkins makes a multi-pronged attack upon the constitutionality of Section 255.0515. First, it argues that the statute constitutes an invalid delegation of legislative authority because the legislature attached no standards to the phrase “for good cause.” For one, Watkins does not have standing to raise this particular sort of constitutional challenge. A person may not raise an objection to a part of a statute unless his rights are in some way injuriously and directly affected. Henderson v. Antonacci, 62 So.2d 5 (Fla.1952). Watkins could only be adversely affected by the phrase “for good cause” if it tried to substitute a subcontractor and BOR failed to allow it to do so. Even if it does possess the requisite standing to make this attack, we still will not find this statute to constitute an invalid delegation of legislative authority. The legislature may enact a law complete in itself, which leaves some discretion in the operation and enforcement of the law with an administrative official. Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970). The distinction to be made is between the “delegation of the power to make the law, which necessarily involves a discretion as to what the law shall be, and the conferring of authority or discretion in executing the law pursuant to and within the confines of the law itself.” Connor v. Joe Hatton, Inc., 216 So.2d 209, 211 (Fla.1968).

The general rule, which requires an express standard to guide the exercise of discretion is also subject to the exception that where it is impracticable to lay down a definite comprehensive rule, such, as where regulation turns upon the question of personal fitness, or where the act relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated in the legislation. In such situations the courts will infer that the standard of reasonableness is to be applied.

North Broward Hospital District v. Mizell, 148 So.2d 1, 4, f.11 (Fla.1962). Here, “good cause” for substituting subcontractors is not subject to a single comprehensive rule, for each project has different problems which demand different considerations and different requirements. It is a matter which turns not only on “personal fitness” of the contractor and subcontractors, but also insures and protects the general welfare and safety of the public.

We find no merit in Watkins’ contentions that the statute offends the constitutional provision against impairing contracts or equal protection under the law. Further, we cannot agree that the legislature has not enacted any statute delegating authority to BOR to require the listing of subcontractors. Any fair and reasonable reading of Section 255.0515 implicitly authorizes that agency to do so. Additionally, as noted above, this statutory authorization is buttressed by the legislative history of the act.

Watkins has also argued that BOR abused its discretion in appointing its general counsel to be the hearing officer and in failing to afford to Watkins a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Addressing the latter question first, we find that there are no disputed issues of material fact in this cause. There is no dispute as to the scenario of events and circumstances that led to this dispute. The bidding process and the parties’ respective activities, as well as BOR’s, are well documented and uncontested. The crux of this dispute really involves legal constructions and interpretations applied to the undisputed facts. While these legal issues, i.e., the materiality of the omissions to Watkins’ bid and the propriety of BOR’s rejection of it and the award of the contract to Winchester, may require evidence of agency policy and procedure, these issues are appropriate to a Section 120.57(2) hearing. See United States Service Industries-Florida v. Dept. of Health and Rehabilitative Services, 385 So.2d 1147 (Fla. 1st DCA 1980). There being no disputed issues of material fact, there is inherently no problem with the use of the agency’s general counsel as the hearing officer. Bias cannot be presumed merely because of his prior association with the agency, Meyer v. State, Dept. of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d 527 (Fla. 3d DCA 1981), and we are unable to identify any specific incidents of bias on his part.

We have considered Watkins’ argument that Winchester lacks standing and find it to be without merit. Our resolution of this and the other issues disposes of our need to address the question of whether Watkins itself had standing to contest BOR’s award of the contract.

AFFIRMED.

McCORD, MILLS and SHIVERS, JJ, concur.

      . B-15 Listing of Subcontractors

      In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project each Bidder shall submit with his Proposal a list of the subcontractors who will perform the work for each Division of the Specifications as indicated by the “List of Subcontractors” form contained in these specifications. The Bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this Agreement and is qualified both technically and financially to perform that pertinent phase of this work for which he is listed. Only one subcontractor shall be listed for each phase of the work.
      The applicable subcontractor license-registration or certification number must be noted on the bid opposite his name, and in the event that the subcontractor is a corporation, his State Corporate Charter Number shall also be noted. If the subcontractor is an out of state firm, their Charter Number with the Secretary of State to do business in the State of Florida should also be noted.
      After public opening and reading of proposals, the listing of subcontractors submitted by the apparent low Bidder will be read publicly. The listings of other bidders will be returned.
      No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner.

      . Watkins’ notice of appeal was prematurely filed. However, as of the date of rendition of BOR’s final order, the notice of appeal matured and vested jurisdiction in this court. Williams v. State, 324 So.2d 74, 79 (Fla.1975).

      . Fla.Admin.Code Rule 6C-14.21(3) states, in relevant part, that: “.... Each firm notified of its eligibility may submit a proposal at the time and place specified. All bidders must submit proof of insurance in effect as required under paragraph (2)(c)2. of 6C-14.21, a letter of intent to provide performance and payment bonds as required under paragraph (2)(c)l. of 6C-14.21, and any other provisions required under paragraph (2)(c)3. of 6C-14.21 as specified in the “Instructions to Bidders” section of the project’s specification with their bid proposal or within 48 hours after the bid opening.”

      . Watkins’ claim of lack of notice as to this requirement seems a bit ingenuous. The language of the third addendum was couched in mandatory terms and clearly requires the listing of the major subcontractors. The mere fact that Watkins did not receive timely notification of the exact location for the pre-bid conference is of no avail, for Watkins already knew that the conference was to take place on that date, January 4, 1982, and could have easily learned of the location by a telephone call.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, Judge, specially concurring:

license: Public Domain

text:
    RANN CORPORATION, Appellant, v. INTERNATIONAL FACTORY DISTRIBUTORS, INC., and Aaron Kellner, et al., Appellees.
    No. 81-1310.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied June 9, 1982.
    Robert F. Jordan of Conrad, Scherer & James, Fort Lauderdale, for appellant.
    Jonathan L. Gaines and E. Bruce Johnson of Fleming, O’Bryan & Fleming, Fort Laud-erdale, for appellee International Factory Distributors, Inc.
   PER CURIAM.

AFFIRMED.

HERSEY and DELL, JJ., concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

Although the allegations of the appellee’s complaint are not a model of clarity insofar as justifying substituted service of process on the appellant foreign corporation, I believe they are adequate, especially in view of the trial court’s finding to that effect and the appellant’s failure to assert any factual challenge to those allegations.


author: PER CURIAM.

text:
    Victor E. WOODMAN, as Personal Representative of the Estate of Joseph E. Woodman, Appellant, v. Linda SAVAGE, Appellee.
    No. AJ-141.
    District Court of Appeal of Florida, First District.
    May 14, 1982.
    Rehearing Denied June 22, 1982.
    Frederic B. O’Neal of Winderweedle, Haines, Ward & Woodman, Winter Park, for appellant.
    Kent R. Spuhler of Jacksonville Area Legal Aid, Inc., and E. Dale Joyner of Toole, Taylor, Moseley & Joyner, Jacksonville, for appellee.
   PER CURIAM.

Appellant correctly contends that the trial court erred in setting aside a default judgment entered in his favor, where appel-lee’s motion for relief failed to allege facts demonstrating the existence of a meritorious defense. Accordingly, we reverse and remand to the trial court with directions that appellee be permitted to make such amendments to her motion for relief as are necessary to conform to the law stated in Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976), and Bay Convalescent Center, Inc. v. Carroll, 352 So.2d 900 (Fla. 1st DCA 1977).

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


text:
    Thomas A. and Sarah S. MORRILL, Appellants, v. RECREATIONAL DEVELOPMENT, INC., Appellee.
    No. AH-105.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    Rehearing Denied June 22, 1982.

      Thomas A. Morrill, in proper person.
    James J. Richardson, Tallahassee, of counsel, Roberts, Baggett, LaFace, Richard & Wiser, P. A., Tallahassee, for appellee.
   PER CURIAM.

The Morrills contend that appellee developer, who concedes their claim to an implied right-of-way across the developer’s land under section 704.01(1), Florida Statutes (1981), has a duty to keep a portion of this right-of-way usable at all times. For purposes of this appeal, it is undisputed that the only possible location for this right-of-way is on land subject to periodic flooding. However, it is the long-established rule that the duty to improve or maintain an implied right-of-way or other easement rests on the owner of the easement, the Morrills in this case. 2 Thompson on Real Property § 428 at 666-68, 672 (1980).

Accordingly, the order of the trial court granting summary judgment for the developer on this count of appellants’ complaint is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATIONS, STATE OF FLORIDA, Appellant, v. G. F. K. ENTERPRISES, INC. d/b/a Bottoms Up Pub, Appellee.
    No. 81-2028.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    William A. Hatch, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings consistent with this court’s opinions in 2829 Corporation v. Division of Alcoholic Beverages and Tobacco, 410 So.2d 539 (Fla. 4th DCA, rehearing denied March 19, 1982) and 19838 NW, Inc. v. Division of Alcoholic Beverages and Tobacco, 410 So.2d 967 (Fla. 4th DCA, rehearing denied March 30, 1982).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Willie Gene SWEET, Appellant, v. STATE of Florida, Appellee.
    No. 81-724.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Leonard R. Ross, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
    Willie Gene Sweet, pro se.
   PER CURIAM.

AFFIRMED.

See Brewer v. State, 413 So.2d 1217, No. 81-528 (Fla. 5th DCA 1982).

ORFINGER, COBB and SHARP, JJ., concur.


text:
    Donnie DICKERSON, Appellant, v. Louis L. WAINWRIGHT, Appellee.
    No. AL-150.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Donnie Dickerson, pro se.
    No appearance for appellee.
   PER CURIAM.

The petition for writ of mandamus has been treated as an appeal of final agency action. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), and Morris v. Wainwright, 409 So.2d 1161 (Fla. 1st DCA 1982). The action of Malcolm Teddis, Inmate Grievance Administrator, Florida Department of Corrections, is affirmed.

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


text:
    Charles JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-906.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Bennett H. Brummer, Public Defender and Gregory P. Borgognoni, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); Lutz v. State, 354 So.2d 141 (Fla. 1st DCA 1978).


text:
    Tyrone MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-589.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Tyrone Morgan, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

A criminal defendant does not have the option of withdrawing his uncoerced plea of guilty because the sentence fails to conform to what he was led by his attorney to expect. Manning v. State, 203 So.2d 360 (Fla. 2d DCA 1967); Pitts v. State, 181 So.2d 739 (Fla. 1st DCA 1966).

Affirmed.


author: SHAW, Judge.

text:
    Mary Lou DAVIS, Appellant, v. Joe STUART and Billy F. Bryant d/b/a Biff-Burger and Travelers Insurance Company, Appellees.
    No. AF-42.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    Howard B. Emory of Law Offices of David H. Zoberg, Miami, for appellant.

      David A. Danielson of Brennan, McAliley, Hayskar & McAliley, P.A., West Palm Beach, for appellees.
   SHAW, Judge.

This appeal, by a workers’ compensation claimant, challenges the deputy commissioner’s order denying her health care benefits from February of 1978 to June of 1980, limiting health care benefits commencing June 29,1980, to $80.00 per week and denying her request for penalties.

In December of 1973, the claimant suffered a compensable injury that required surgery for removal of a disc. Recovery was unremarkable, and she still experiences back pain that radiates into both lower extremities, neck pain that radiates down the arms, a persistent rash, and carpal tunnel syndrome in both hands.

The deputy commissioner, on January 12, 1977, entered an order finding the claimant permanently totally disabled with a maximum medical improvement date of May 21, 1976. Penalties were assessed on late paid temporary total compensation benefits and for failure to comply with a September 26, 1975, order.

On February 13, 1978, and July 3, 1980, claims were filed for home health care, failure of the employer/carrier to pay permanent total disability benefits at the rate determined by the January 12, 1977, order, and the improper taking of a social security offset. These claims resulted in the order now being reviewed. The carrier agrees that it failed to pay compensation at the rate ordered by the deputy and failed to offset the correct social security benefits. These issues are resolved in favor of the claimant.

Points I and II relate to the award of home health care benefits. In a letter dated September 25,1980, the carrier voluntarily agreed to pay for attendant care at the rate of $80.00 per week, computed as follows: an unskilled person capable of assisting the claimant, working in the home for a total of four hours per day at the rate of $4.00 per hour, would earn $16.00 per day or $80.00 for a five-day week. The carrier picked up payment for the care as of June 25, 1980, the date the treating physician’s office notes first suggested the need for such care. The deputy commissioner determined that the carrier’s payments of $80.00 per week were adequate compensation for the type of services being rendered and that there was no entitlement to home health care benefits between February 13, 1978, and June 25, 1980. We disagree on both counts. The record does not support the $80.00 per week figure. The only credible evidence on this issue was the testimony of Faye Wertz, who testified that she provided unskilled home health care services to the claimant and was paid $164.00 per week plus room and board. She opined that the room was worth at least $135.00 per month and board at least $6.00 per day. Even so, she left for higher wages.

We turn our attention next to the commencement of the award, and here again the deputy’s findings are not borne out by the record. He finds a lack of adequate medical support upon which to predicate an award of health care services during the period between February 13, 1978, and June 25, 1980. Evaluating the claimant on the two dates, Dr. George L. Ford opined that her condition was fairly stationary, “maybe a little worse than she had been.” When questioned relative to the claimant’s need for home health care, the doctor gave the following response:

Q Do you feel that a practical nurse is necessary at this time for aiding and assisting Mary Davis?
A No.
Q What would you describe as the kind of service that she needs at this time?
A Well, I think that Mary needs to have somebody at home to do her housework and her type of cleaning of the house, making the beds, vacuuming, perhaps even making meals or assisting her in her ability to perform her chores which are part of being a housewife and in the mornings, probably helping her get her lower extremity garments on.
Also, to put her in traction in the morning, things of that nature when there is nobody else at home.
I think she can get into her cervical traction but I don’t think she can get into her pelvic traction without somebody else giving her help.
Q When you mentioned cooking and chores, is this also cooking for herself?
A Yes. I think that cooking for herself, I think it’s a psychological problem with Mary in that she has a situation where she is not able to perform household chores and this has become a depressing situation for her.
I think if she had — was able to substitute this type of — or was actually able to perform this work even though she was not doing it, she was performing it, I think this would be a great thing for her.
I don’t think she is able to stand up and cook for some period of time. If someone was able to do that during the day that would benefit her physically by helping her with meals and also benefit her psychologically by being able to produce and do the household work which she has always done over the years.
Q As far as the psychological aspect of it, is it your opinion that that may aid her in taking to the pain that she is experiencing from her injuries?
A I think anytime you have pain, you have a psychological problem. Of course, the pain is aggravated and if you are in a better condition you can tolerate pain better and I think that this inability to perform at home has gotten to the point where it does depress her and depresses her more and more and I think this — and of course lowers her ability to tolerate pain.
Q These services which you feel are necessary for Mary, do you feel they are needed as a result of her inability now to be able to perform those because of injuries sustained from the accident in 1973?
A Yes.
Q How often do you feel these services are needed for Mary; on a daily basis?
A Yes. I would think on a daily basis.
Q Do you have any idea of, as far as the timing of saying whether or not she needs it for any specific length of time during the day?
A Well, I think that depends on the size of her home and what has to be done and the efficiency of that help she has but I would think three or four hours a day.

We find Dr. Ford’s testimony incompatible with the deputy’s finding that there is a lack of adequate medical support upon which to award home health care between February 13, 1978, and June 25, 1980. It is readily gleaned from the doctor’s testimony that the need for home health care service is twofold: the manual assistance needed by the claimant and the psychological benefits that would accrue to her. An additional reason given by the deputy for denying home health care benefits during the disputed period was the fact that “the services performed during that period of time were done by family members and were of an unskilled nature.” This is no doubt true, but the fact that family members are providing services that are statutorily placed upon the employer does not shift the employer’s responsibility to the shoulders of the family members.

Again, based upon the record, we are unable to concur in the deputy’s denial of penalties based upon his determination that the carrier acted in good faith. When we view the handling of this claim in its totality, we find that the carrier failed to pay temporary total compensation benefits outlined, failed to comply with the September 26,1975, order, failed to pay permanent total disability benefits at the rate determined by the deputy, and failed to compute correctly the social security offset. When the claimant requested home care services, the carrier, instead of attempting to determine whether a need for the services existed, waited a period of two years before commencing to provide the care. Any doubt as to the good faith efforts of the carrier are completely removed by the claims supervisor’s deposition, which evidences a nearly total contempt for the workers’ compensation process. During the course of the deposition he was persistently unresponsive to germane questions, refused to answer certain questions by invoking the fifth amendment, threatened to leave the deposition at the end of his work day, and refused to look at matters in his file; when pressed to answer certain questions, he complained of eye problems, and left the deposition to throw up. During the course of the deposition he referred to the claimant’s attorney as a “jackass” and threatened physical violence. This antagonistic attitude may well explain why the 1978 claim was not investigated, why the deputy commissioner's orders were not complied with, why the social security offset was not properly taken, and why benefits were not paid on time. We have seldom encountered such blatant bad faith by a claims supervisor. The deputy’s finding of good faith is accordingly reversed.

REVERSED and REMANDED to the deputy for reconsideration consistent with this opinion. If, in order to comply with this opinion, the deputy finds it necessary to take additional evidence, he is authorized to do so.

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


text:
    Charles R. BISHOP, Appellant, v. PINELLAS FRAMING & FINISHING and Liberty Mutual Insurance Co. (1) and Current Builders, Inc., and Fireman’s Fund Insurance Co. (2), Appellees.
    No. AF-402.
    District Court of Appeal of Florida, First District.
    May 26, 1982.

      Peter H. Dubbeld of Watson, Goldstein, Earle, Douglass & Dubbeld, P.A., St. Pe-tersburg, for appellant.
    Susan R. Whaley and Richard D. Senty of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellees Pinellas Framing and Liberty Mut. Ins. Co.
    Robert M. Todd of Lyle & Skipper, P.A., St. Petersburg, for appellees Current Builders, Inc. and Fireman’s Fund Ins. Co.
   PER CURIAM.

Claimant suffered compensable industrial injuries on October 17, 1969, and October 10,1977. On August 27,1980, an order was entered by the deputy commissioner awarding permanent partial disability benefits for a 30% disability to the body as a whole. Although claimant had been treated for psychiatric problems prior to the hearing, no claim was made that the problems were caused by the industrial accidents, and the issue was not addressed by the deputy in his order. In January of 1981 the claimant began seeing Dr. Fireman, and for the first time became aware that his psychiatric problems might be attributable to his industrial accidents. On January 5,1981, he filed a claim for psychiatric treatment. The employer/carrier defended on the ground that the claim for psychiatric attention filed subsequent to the 1980 order must be brought by way of a petition to modify pursuant to section 440.28, Florida Statutes (1977).

We note that when the August 27, 1980, order was entered the claimant was suffering from a psychiatric disability for which he chose not to make a claim. It is his position that, until he visited Dr. Fireman in January of 1981, he had no basis upon which to associate his psychiatric disabilities with his industrial accident. Upon being informed by Dr. Fireman that there was a causal connection between the accidents and the psychiatric problems, the claimant made his initial claim for psychiatric treatment. The claimant’s argument has a degree of logic, but it runs counter to the basic legal concept that the law frowns upon piecemeal litigation. Hunt v. International Minerals and Chemical Corp., 410 So.2d 640 (Fla. 1st DCA 1982). We recognize that in workers’ compensation cases rules are relaxed. Nevertheless, we agree with the deputy commissioner that when a date of maximum medical improvement has been established and permanent disability awarded, additional claims for benefits and medical attention must be made by way of a 440.28 petition for modification. The statute allows the previous order to be modified upon the initiative of the deputy commissioner or upon the petition of any interested party, provided the deputy finds that there has been a change of condition or a mistake of fact. Relief should not be denied because the petition is mislabeled as a claim or does not take a given form. If it is clear from either the petition, or the evidence adduced at the hearing, that the claim for additional benefits is the proper subject for a modification hearing, and the employer/carrier is not prejudiced by the mislabeling, the deputy should upon his own initiative treat the hearing as one for modification. However, even according this claimant such latitude, the deputy properly denied the request for additional medical attention. The letter asserts neither a change of condition nor a mistake of fact, and the proof adduced by the claimant established neither. Claimant was having psychiatric problems both prior to and after the August 27, 1980, order. The only difference is that the psychiatrist who was treating him prior to the order failed to establish the causal connection with the injury that the second psychiatrist found. We conclude that the deputy commissioner correctly denied the new claim for additional benefits and that claimant’s proof failed to establish a basis for modification.

AFFIRMED.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


text:
    James J. MANNION, Appellant, v. Betty Jean MANNION, Appellee.
    No. AG-88.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    George E. Day, Fort Walton Beach, for appellant.
    James W. Grimsley of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellee.
   PER CURIAM.

Husband’s voluntary dismissal of his suit for marriage dissolution deprived the trial court of power subsequently to order his payment of the wife’s attorney’s fees. Knight v. County of Alachua, 396 So.2d 846 (Fla. 1st DCA 1981). Accordingly, the order is

REVERSED.

ROBERT P. SMITH, Jr., C.J., and ERVIN and SHAW, JJ., concur.


text:
    Charles F. JACQUES and Rosemary Jacques, Appellants, v. STATE of Florida, Appellee.
    No. AH-238, AH-262.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We find no error in the trial court’s denial of appellants’ motion to suppress. However, we conclude that it was error for the trial court to impose a single general term of probation upon each appellant for three offenses. Dorfman v. State, 351 So.2d 954 (Fla.1977); Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979); Price v. State, 393 So.2d 69 (Fla. 5th DCA 1981).

Accordingly, this cause is remanded to the trial court with directions to enter separate probation orders for each offense committed by each appellant.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: WIGGINTON, Judge.

text:
    M. V. D., A Child, Appellant, v. STATE of Florida, Appellee.
    No. AH-346.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee.
   WIGGINTON, Judge.

This is an appeal from the order of the trial court adjudging appellant delinquent, committing him to the Department of Health and Rehabilitative Services, and ordering him to make restitution in the amount of one hundred dollars. We affirm in part and reverse in part.

The trial court did not err in denying appellant’s motions for judgment of acquittal. There was sufficient evidence in the record to establish both possession and felonious intent. Accordingly, we affirm the trial court’s judgment as to those points.

However, the trial court did err by committing appellant to the Department of Health and Rehabilitative Services for a determinate period of time and in ordering restitution to be made. Section 39.11(3), Florida Statutes (1981) mandates that “[a]ny commitment of a delinquent child to the department shall be for an indeterminate period of time ...” See also R. J. K. v. State, 375 So.2d 871 (Fla. 1st DCA 1979). Additionally, Section 39.11(l)(a) allows for imposition of a penalty in the nature of restitution, but only if the child has been placed in a community control program. Section 39.11(l)(c), allowing for the child’s commitment to the department, contains no similar provision.

Consequently, as to those points, we reverse, and remand this cause to the trial court for entry of a commitment order consistent with this opinion and chapter 39.

BOOTH and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Milton ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. AI-65.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    Michael E. Allen, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal has been conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

After examining the record, we find no error and affirm.

McCORD and SHIVERS, JJ., concur.


text:
    Dale ZYGADLO, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. UU-75.
    District Court of Appeal of Florida, First District.
    May 28, 1982.

      Ronald D. Combs of Florida Institutional Legal Services, Inc., Orlando, for petitioner.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for Florida Parole and Probation Com’n.
   PER CURIAM.

This cause is before us on review from a final order of the Florida Parole and Probation Commission (Commission) setting petitioner’s presumptive parole release date (PPRD) at February 29, 2000. That date is the same date previously set by the Commission on May 9, 1979. Subsequently, petitioner filed for and received a review under Section 947.173(1), Florida Statutes (1979), which resulted in the Commission lowering his salient factor score and changing his offense characteristic from kidnapping to false imprisonment. This resulted in a reduction of the matrix time range applicable to petitioner from 192-244 months to 24-39 months. However, in order to more accurately reflect the severity of petitioner’s offenses resulting in his present confinement, the Commission added aggravations, thereby increasing the length of time that petitioner would have to remain in prison before being paroled and ultimately resulting in no change in the PPRD originally set.

Petitioner contends that the Commission’s action violated Section 947.172(3), Florida Statutes, and McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). We find this contention to be without merit. The aggravations to petitioner’s PPRD were added prior to this court’s review of the Commission action to correct what the Commission acknowledged to be error. Unlike McKahn, these changes are not contrary to any order of this court entered in this case.

In addition, we find that the Commission had good cause to add the aggravations. Petitioner’s career in the penal institutions of this state begins of record in 1972, when petitioner pleaded guilty to third degree murder and was placed in the custody of the Department of Youth Services. He was 16 years old at the time. In April of 1975, petitioner and another juvenile ran away from the Putnam County START Center, by shooting the director and taking a portion of his gun collection and his automobile. They then robbed, at gunpoint, some people in their home and abducted a young man. Next, they rode a bus to Chicago, where they robbed a cab driver and were arrested. Finally, after being returned to Florida to answer the charges lodged against him, while being held at the Putnam County jail in May of 1976, petitioner escaped from that facility. He received sentences totaling 100 years for the above crimes.

However, we find that the Commission erred in: (1) considering a conviction which was later vacated in setting the PPRD; and (2) failing to use the armed robbery conviction in setting the severity level, contrary to Section 947.165(1), Florida Statutes (1979), and Florida Administrative Code Rule 23-19.01(5).

Accordingly, the Commission is ordered to review petitioner’s file and establish a PPRD using the guidelines in effect at petitioner’s Section 947.173(2) review, which need not be the same as the PPRD previously established.

BOOTH, SHIVERS and JOANOS, JJ., concur.

      . Petition, filed prior to our decision in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), is reviewable as petition for writ of mandamus.

      . Petitioner was convicted under § 805.01, Fla. Stat. (1973), which did not differentiate between false imprisonment and kidnapping; both were second degree felonies. Section 805.02 defined kidnapping for ransom, a first degree felony. The Commission’s guidelines differentiated radically between kidnapping and false imprisonment. See Fla.Admin.Code Rule 23-19.05. Therefore, the Commission action changing petitioner’s crime from kidnapping to false imprisonment is consistent with the statutes and the guidelines in effect at the time of the commission of the crime and at the review of petitioner’s PPRD.

        .Wickham v. Florida Parole and Probation Commission, 410 So.2d 989 (Fla. 1st DCA 1982):
      In McKahn this court ordered the Commission to reduce prisoner’s offense characteristic and to reduce the erroneous PPRD previously assigned to the prisoner. Instead of complying with this court’s order, however, the Commission in McKahn added an aggravating factor and awarded the same PPRD as the Commission had previously set.

      . Petitioner pleaded guilty to the robbery in Chicago receiving a four-year sentence. He will be returned to Illinois to serve the balance of his conviction for acts committed in Chicago upon his release from the custody of the Florida Department of Corrections.

      . The original judgment and sentence totaled 105 years; but, in Zygadlo v. State, 341 So.2d 1053 (Fla. 1st DCA 1977); the five-year conviction for use of a firearm in the commission of felonies was vacated. It is notable that, although petitioner has made the Commission aware of this, the Commission action sheet continues to reflect the vacated conviction as an aggravating factor.

      . The Commission may not use invalid convictions when establishing a PPRD. See Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974). However, aggravating a prisoner’s PPRD for use of a firearm during the commission of a crime is legal. Fla.Admin. Code Rule 23-19.03(l)(a)-1, and Wickham v. Florida Parole and Probation Commission, 410 So.2d 989 (Fla. 1st DCA 1982).

      . Section 947.165(1), Fla.Stat. (1979), provides: “The objective parole guidelines shall be ... based on the seriousness of offense and the likelihood of favorable parole outcome.”
      Fla.Admin.Code Rule 23-19.01(5) provides: “If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors.” Although the Commission is not required to consider the sentences imposed by the trial judge, it is notable in this case that petitioner received a 75-year sentence for the first degree felony conviction for armed robbery and only a 15-year sentence for the second degree felony conviction for kidnapping/false imprisonment. When the Commission changed the style of petitioner’s offense from kidnapping to false imprisonment, it was error not to utilize the armed robbery conviction as the offense characteristic. Under Fla.Admin.Code Rule 23-19.05, armed robbery with petitioner’s salient factor score of seven, carries a matrix time range of 32-57 months, a potential increase of 18 months more than the matrix time range for false imprisonment.

      .The reestablishment of petitioner’s PPRD may be extended or reduced, but no effect upon the Commission’s action at petitioner’s biennial review, where his PPRD was reduced 12 months based upon his good institutional conduct, is intended hereby.


author: BOOTH, Judge.

text:
    WALT DISNEY WORLD COMPANY, Appellant, v. Sandra SCHIEBEL, Appellee.
    No. AE-327.
    District Court of Appeal of Florida, First District.
    May 28, 1982.

      Lee G. Schmudde, Lake Buena Vista, for appellant.
    Thomas Mooney, Orlando, for appellee.
   BOOTH, Judge.

The employer appeals a workers’ compensation order excusing the failure of the claimant and of her chiropractor, Dr. Bartlett, to file timely medical reports as required by Florida Statutes, Section 440.-13(1). In Walt Disney World Company v. Schiebel, 397 So.2d 1004 (Fla. 1st DCA 1981), this court previously reversed the award of payment of the unauthorized and unreported medical bills, holding that the notice of controversy did not in itself excuse the failure to file reports. See St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753 (Fla.1966); Hood’s Dairy v. Severino, 178 So.2d 588 (Fla.1965). The cause was remanded for a specific finding as to whether good cause existed for the failure to comply with Section 440.13(1). On remand, without taking additional evidence or hearing argument of counsel, the Deputy Commissioner found that “Dr. Bartlett did have good cause to be excused from timely filing his medical reports under Workmen’s Compensation inasmuch as the claimant, Sandra Schiebel, informed him that Walt Disney World Workmen’s Compensation would not pay his bill ... and also that they had controverted the case in its entirety.”

We agree with the employer that such a finding is clearly insufficient, as “an employer’s refusal to provide medical services is not good cause which excuses the failure to timely submit the required reports, ... nor does the fact that a claim is being contested constitute such good cause.” Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117, 1120 (Fla. 1st DCA 1981). The rationale for requiring reports under such circumstances is that the employer’s receipt of prompt and accurate medical information is necessary to avoid the risk of inflated medical bills and dupli-cative treatment, as well as to facilitate any decision by the employer to rescind a previous denial of benefits. Torres v. Eden Roc Hotel, 238 So.2d 639, 643 (Fla.1970). Therefore, untimely medical reports have been excused for good cause only where, for example, the employer waives the requirements of Section 440.13(1) with actual knowledge, see Torres v. Eden Roc Hotel, supra at 642, or where a confused legal situation or particularly complex facts exist. E.g., Exxon Company, U.S.A. v. Rodriquez, 410 So.2d 571 (Fla. 1st DCA 1982); Joy Footwear Corporation v. Folgueral, 409 So.2d 188 (Fla. 1st DCA 1982). Since no such legally sufficient good cause was found here, the award of Dr. Bartlett’s medical bills is REVERSED.

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

      . Claimant had been receiving authorized care at the employer’s medical facility since the date of the accident. However, she unilaterally chose to seek treatment by Dr. Bartlett on July 18, 1979, without notifying the employer. Dr. Bartlett filed no workers’ compensation medical reports within the statutory ten-day period. The record in fact does not reveal that such reports were ever filed. Although Dr. Bartlett did send a private insurance form to claimant’s personal group carrier on August 4, 1979, this form indicated that claimant’s condition was not related to her employment.


text:
    SECURITY TITLE & ABSTRACT, INC., Appellant, v. FIRST AMERICAN TITLE INSURANCE COMPANY and Julian H. Boos, Appellees.
    No. AE-404.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Robert L. Hinkle, of Hinkle & Battaglia, Tallahassee, for appellant.
    Cathi C. O’Halloran and Ben H. Wilkinson, of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellees.
   WIGGINTON, Judge.

Security Title, plaintiff in this multi-count lawsuit, appeals from the trial court’s order of summary judgment which dismissed defendants First American and Julian Boos from the continuing action below. We reverse.

Preparation of this case has resulted in a voluminous record on appeal revealing allegations, facts and concomitant nuances too numerous to fully recount. In brief, First American and T & T Holding Company were two prospective purchasers of Security Title, Inc. in late summer 1979. T & T eventually purchased the corporation for approximately $1.7 million. Nevertheless, according to Security Title’s complaint, within just a few months and at a fraction of that cost, First American in effect acquired the assets of Security Title’s principal income producer, the Tallahassee Title Company. In this action Security Title asserts that First American and its agent, Boos, committed tortious acts to achieve this coup.

In its complaint, Security Title alleged that Tallahassee Title manager Michael Conway and other trusted employees, with assistance from First American and Boos, formed a competing title company (“Professional Title Group”) by tortiously pirating away most of Tallahassee Title’s valued employees and valuable customers, and by surreptitiously photocopying Tallahassee Title records. It is undisputed that First American provided financial backing and exercised some control in the newly-formed Professional Title Group. However, the trial judge, who denied summary judgment for Conway, granted summary judgment for First American and Boos upon a finding that the evidence did not show they participated in the allegedly tortious acts. The judge expressed concern that “[b]y simply characterizing an agreement to enter into a business competing with the plaintiff as a ‘conspiracy,’ plaintiff seeks to convert perfectly lawful acts into unlawful conduct."

While we agree with the trial court that in the spirit of free enterprise (see Section 542.16, Florida Statutes (1980 Supp.)) a new business should be encouraged to germinate and blossom, a jury could reasonably infer that tortious acts had been committed. For example, deposition testimony indicates that First American required Conway and the new company to acquire certain “title plant” records that might be expected to cost $100,000, yet the final start-up budget that was approved by First American did not allocate funds for the required records. From this and from other evidence in the record a jury might reasonably infer that First American had agreed with Conway that the records could be compiled more cheaply by taking them from Conway’s employer, Tallahassee Title.

Further, the record contains evidence that Boos, acting for First American, conspired with Conway to breach his fiduciary duty to Tallahassee Title by soliciting Tallahassee Title employees. See Fish v. Adams, 401 So.2d 843 (Fla. 5th DCA 1981); Insurance Field Services, Inc., et a 1. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980); Kilgore Ace Hardware, Inc. v. Newsome, et al., 352 So.2d 918 (Fla. 2d DCA 1977). We cannot subscribe to appellees’ theory that because First American owed no duty to Tallahassee Title, it could not be liable for a civil conspiracy that had as its goal the unlawful breach of fiduciary duty by Conway toward Tallahassee Title. See Kilgore Ace Hardware, 352 So.2d at 920.

In short, genuine issues of material fact exist regarding the knowledge and participation of First American and Boos in the allegedly tortious activities in this case, Accordingly, the trial court’s order of summary judgment is REVERSED.

BOOTH and JOANOS, JJ., concur.


text:
    Randy Frank CARNLEY, Appellant, v. STATE of Florida, Appellee.
    No. AF-292.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal was conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

After reviewing the record, we find no error and affirm.

McCORD, J„ and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


text:
    STOCKTON, WHATLEY, DAVIN & COMPANY, Appellant, v. C. I. T. CORPORATION and Roger E. Powell, Receiver and Cross Appellant, Appellees.
    No. AG-223.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Alan Thompson, of Sale, Bryant, Thompson & Kurvin, Panama City, for appellant.
    George L. Hudspeth, of Mahoney, Had-low & Adams, Jacksonville, for appellee C. I. T. Corp.
    Les W. Burke and Nevin J. Zimmerman, of Spear, Bennett, Logue, Burke & Blue, P.A., Panama City, for appellee Roger E. Powell.
   WIGGINTON, Judge.

Pinnacle Construction, Inc. was a developer in Bay County, Florida that included in its projects a residential subdivision known as Town and Country Lake Estates. As a part of that development Pinnacle constructed a sewage collection system consisting of various sewage collection lines, lift stations and pumps, and a sewage treatment plant and filter system. Pinnacle owned the real property being developed, the property upon which the sewerage system was constructed and capital assets constituting properties and equipment necessary to operate the system.

Beginning in June, 1976, and continuing through August 15, 1978, C.I.T. financed various property acquisitions for Pinnacle including this sewage treatment plant and filtering system. To secure those advances, C.I.T. obtained security agreements and a mortgage from Pinnacle. The mortgage included the specific real property upon which the plant was to be located while the lien on the sewage treatment plant and filter system included:

[A] security interest in accounts receivables [sic] owed to the undersigned and arising from monthly sewer fees heretofore or hereafter charged to various homeowners to whom the undersigned furnishes sewer treatment services through the equipment and facilities described in the security agreement and mortgage deed described above.

Pinnacle’s improvement and development of the properties as well as its future financing and sale was contingent upon insuring the mortgage loans by the Federal Housing Administration and upon obtaining a guarantee from the Veterans Administration. To secure acceptance of such financing by these federal agencies, it is necessary to assure them that there will be a continuous and satisfactory operation of the privately owned sewerage system. This assurance is traditionally manifested by the developers’ transfer of the capital assets of the sewerage system to a nominee trustee who upon default of the developer will assume the responsibility for continuing the operation and maintenance of the sewerage system. This financing requirement was effected by a Trust Deed dated November 30, 1976, granting to Bay County Land & Abstract Co., Inc. the real property upon which the plant was situated as well as:

the sewage collection system including all appurtenances such as manholes, pumping stations, etc., and the sewage treatment plant, including effluent line to point of final disposal, heretofore constructed or to be constructed, including all easements incident to the ownership and operation of said sewage system.

This grant to the trustee by Pinnacle was subject to the financing statement to C.I.T. Corporation.

Stockton financed the development of a portion of Town and Country Lake Estates in which the sewerage system was located. Stockton was secured by a first mortgage from Pinnacle on thirty-three lots located in that subdivision, and a second mortgage on twenty-nine of those lots. Pinnacle was unable to pay the indebtedness and after foreclosure proceedings had been filed by Stockton, Pinnacle and Stockton negotiated a settlement wherein Pinnacle conveyed twenty-nine developed residential lots to Stockton. The agreement between those parties provided that:

Pinnacle further covenants and represents that all sewer tap fees relating to said property being conveyed have been paid for in full and that Stockton will be provided full service without further payment.

In consideration of the transfer of title to the twenty-nine lots that included prepayment of the sewerage connection fees for those lots, Stockton paid to Pinnacle $10,000 cash, cancelled Pinnacle’s indebtedness of some $155,000 and dismissed the foreclosure proceeding. The parties’ agreement was consummated by the payment of monies and transfer of title to the several lots by warranty deed dated July 8, 1980, and recorded in the Public Records of Bay County.

During this same period of time wherein Pinnacle had fallen victim to adverse economic factors causing its inability to meet its obligations to Stockton, the sewage treatment plant devolved into a state of disrepair. Pinnacle’s president and chief operating officer, James Barr, sometime after settlement with Stockton left the development, the company and the state. The abstract company, as trustee, was not called upon by Pinnacle to assume the responsibilities of maintenance and operation of the sewerage system.

On September 25, 1980, Bay County filed suit against Pinnacle pursuant to Section 367.165, Florida Statutes (1979), for appointment of a receiver to operate and maintain the sewerage system. Ap-pellee/cross appellant, Roger E. Powell, was appointed receiver in that proceeding and continues to serve. On the same day, C.I.T. filed suit against Pinnacle to foreclose its mortgage and security agreement. Those two cases were consolidated. The right of Stockton to obtain connections to the sewerage system for its twenty-nine lots was questioned. Stockton was allowed to intervene in the consolidated proceeding for the limited purpose of determining its rights to tap onto the system according to its complaint for declaratory judgment.

Final judgment was entered in favor of C.I.T. foreclosing assets including Stockton’s alleged rights to certain connections without further payment of fees. The trial court dismissed with prejudice Stockton’s complaint for declaratory relief finding that C.I.T.’s security interest and mortgage had priority over Stockton’s claim, and that Stockton must pay to the receiver a $500 connection fee for each house it wished to tie onto the system. Stockton filed its notice of appeal from both judgments followed by the cross appeal of receiver Powell. The foreclosure sale established by the court was continued due to lack of a purchaser and the receiver continues to operate the system and collect all revenues therefrom.

Growing out of this not uncommon scenario is Stockton’s primary issue of whether it is entitled to have its twenty-nine lots connect onto the sewerage system free of charge because of its prior purchase of those rights from Pinnacle. The receiver objects to such entitlement because, he alleges the Florida Public Service Commission requires that $500 be paid for each connection. C.I.T.’s objection is to the effect that Stockton did not obtain such right from its agreement with Pinnacle, due to an alleged lack of consideration, and because the connection fees are accounts receivable that were already assigned to C.I.T. for security.

The two points upon which Stockton’s claim rests are whether connection fees are included within “accounts receivable” that Pinnacle pledged to C.I.T. and whether Pinnacle retained the ownership of and rights to the connection fees so as to sell them to Stockton. The distinction between the connection and monthly sewer fees is that a connection fee is an aid in construction to offset the costs of installing the system and tapping onto the trunk line by the property owner, while monthly sewer fees are those charged to the various home owners to whom the developer furnishes sewer treatment services.

C.I.T. can prevail only if it is determined that its security agreement expressly includes in Pinnacle’s grant the connection fees or that such fees are within the definition of accounts receivable. On its face, the instrument clearly grants a security interest in accounts receivable owed to Pinnacle arising from monthly sewer fees both present and in the future. Despite C.I.T.’s desires, the language of the lien and attached exhibit do not include connection fees. C.I.T. could have properly protected itself by more artfully drafting its document to include connection fees, but having failed to do so, it cannot now claim such an interest.

We next focus on whether connection fees are accounts receivable. Section 679.-106, Florida Statutes (1975) defines an “account” as any right to payment for goods or services already obtained by the account debtor. It contemplates a transaction that creates a debt owed to the account holder. The consideration Stockton gave for the acquisition of the twenty-nine developed lots with the right to tie them onto the sewerage system was given at the time the transaction was consummated and no debt or account due Stockton was created in connection therewith. Testimony by the representative of the Public Service Commission was to the effect that it is quite common to have advanced payment of connection fees before homes are built so that future service will be assured.

Having found that C.I.T. cannot prevail on its theory, it must be determined whether Pinnacle had conveyed its interest in the connection fees to Bay County Land & Abstract Company by the trust indenture of November 30, 1976. A close review of that trust deed discloses no mention of connection fees. We find no legal basis or justification in the record for the trial judge to interpret the “etc.” reference in the deed to include connection fees.

By the trust indenture, Pinnacle conveyed to the trustee the capital assets relating to the sewerage system. Pinnacle retained the right and responsibility to maintain the sewerage system at all times in good order and repair so that satisfactory service would be supplied to each of the properties in the subdivision. Pinnacle did not include in the grant to the trustee its rights to the connection fees and thus retained them for future income or bargaining.

Pinnacle, having absolute ownership rights to the connection fees and legal title to certain properties in its development, approached Stockton in an attempt to avert the foreclosure action. Stockton negotiated its deal with Pinnacle and along with other quid pro quo agreed to take a deed to twenty-nine lots that included prepaid connection fees relating to those lots, and the payment of $10,000, in lieu of foreclosure. The appellees have not directed us to any PSC requirement that would prohibit such an agreement. These connection rights were bargained for by Stockton, paid for in cash, and received.

Consequently, we disagree with the trial court’s conclusion and reverse with directions that the lower court enter final judgment for Stockton on its complaint for declaratory judgment.

Stockton’s other point on appeal is whether the trial court erred in including in the final judgment of foreclosure assets which were not described in C.I.T.’s mortgage and security agreement and in foreclosing Stockton’s rights therein. Because of our holding that Stockton owns the right to sewerage connections to the twenty-nine lots, these must be excluded from the properties included in the judgment of foreclosure and sale. However, as to the remaining properties described in the final judgment, the trial court did not err, for Stockton has no standing to challenge other than its right to tap onto the sewerage system.

Several contentions are raised in Powell’s cross appeal. He argues that since the receiver was obliged to employ legal counsel in connection with his receivership duties, those charges should constitute a lien against the property when sold at the foreclosure sale. The trial court evaluated the legal services rendered the receiver and awarded an attorney’s fee of $3,000. His order provided that the fees should be paid from income funds available to the receiver but would neither be a lien against the property that was to be sold at the foreclosure sale nor become an obligation to the successful purchaser of the property at the foreclosure sale.

We affirm the trial court’s fee award as reasonable and proper. We agree with the lower court that pursuant to Section 679.301(l)(b), Florida Statutes (1979), a receiver might take priority over an unsecured creditor, but not a secured creditor such as C.I.T. Zirot v. Gilmer, 336 So.2d 680 (Fla. 4th DCA 1976).

Finally, Powell alleges error on the part of the trial court for its failure in not specifically allowing the receiver the right to additional attorney’s fees for services rendered after the date of the final judgment. We see no merit in this claim as the trial judge has specifically provided in his order appointing the receiver that fees of counsel in connection with the receiver’s duties would be paid from operational income. If additional legal services have been rendered the receiver, counsel may seek a grant of attorney’s fees by filing a motion with the proper court.

This cause is reversed in part and remanded to the trial judge for: (1) modification of the Pinal Judgment of Foreclosure consistent with the opinions and conclusions expressed herein; (2) reversal of the Final Judgment as to the Complaint for Declaratory Judgment and entry of Final Judgment for Stockton declaring its entitlement to sewerage connections to the twenty-nine lots in Town and Country Lake Estates under its agreement with Pinnacle without further fees.

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


author: JOANOS, Judge.

text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellants, v. George R. FLECK, Appellee.
    Nos. AI-54, AI-232.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Rehearing Denied June 22, 1982.
    William A. Frieder, Asst. Div. Atty., Tallahassee, for appellants.
    Fernando M. Palacios, Melbourne, for ap-pellee.
   JOANOS, Judge.

In these consolidated appeals, we find merit only in the challenge to the authority of the Retirement Commission to amend its order under the circumstances. The record shows that the original order was rendered on November 4, 1981, and the Notice of Appeal from that order was filed on November 25, 1981. On November 17, 1981, the Retirement Commission discussed and voted upon an amendment to the original order, but the subsequent order expressing that action was not rendered until after November 25, 1981. The filing of the Notice of Appeal served to divest the Commission of jurisdiction over the previous order. Mills v. Laris Painting Company, 125 So.2d 745 (Fla.1961). Thus, the attempted amendment is null and void.

We find no reversible error, however, in the original order. Accordingly, the original order, case number AI-54, is AFFIRMED, and the amended order, case number AI-232, is hereby VACATED.

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


text:
    Clarence JONES, Appellant, v. STATE of Florida, Appellee.
    No. AK-483.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Clarence Jones, pro se.
    . No appearance for appellee.
   MILLS, Judge.

Jones appeals denial of his petition for post-conviction relief. We affirm.

Jones’ trial counsel was sufficient. Taking notice of our file on Jones’ direct appeal, it is clear that the complained of errors never occurred.

The claim of denial of right to appeal was not made with specificity.

The sentence does not exceed the maximum.

McCORD, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.