text:
    MT. SINAI MEDICAL CENTER and Argonaut Insurance Company, Appellants, v. Davida LACK, Appellee.
    No. QQ-188.
    District Court of Appeal of Florida, First District.
    March 17, 1980.

      John G. Tomlinson, Jr. of Williams & Tomlinson, Coral Gables, for appellants.
    Martin M. Dernis, Miami, for appellee.
   PER CURIAM.

Appellants, employer/carrier of ap-pellee, workers’ compensation claimant, appeal the judge of industrial claims’ order in his award of temporary total and partial benefits and medical costs. We agree with appellants that there is no competent substantial evidence supportive of the periods for which the temporary disability benefits were awarded. The record shows that the carrier voluntarily paid temporary total benefits from 6/23/73 until 11/10/74, after which it immediately paid temporary partial benefits until 2/9/75, the date it contended the claimant had reached maximum medical improvement. However, in the prehearing stipulation, the claimant incorrectly claimed that payment of benefits for the above periods was at issue. There, she actually claimed less than had already been paid. After 2/9/75, when the carrier began paying permanent disability benefits, the stipulation states that temporary partial benefits were claimed until 4/16/75, a period during which claimant was admittedly working. Thereafter, claimant sought temporary total benefits from 8/13/75 through 8/25/75, when she was in Jackson Memorial Hospital for diagnostic tests. Before 8/13/75, and after 8/25/75, claimant worked full-time until 3/17/76, when she ceased working altogether. On 4/20/76, she was again hospitalized for treatment and surgery, remaining in one or another hospital almost continuously until 5/27/76. In the parties’ stipulation, temporary total benefits were claimed from 3/17/76 until 1/24/77, when the claimant’s treating physician, Dr. Yates, stated she had reached maximum medical improvement, sustaining an 18% permanent anatomical disability. The judge of industrial claims found the claimant was temporarily and totally disabled from 2/9/75 until 1/24/77, when he agreed with Dr. Yates that the claimant had reached maximum medical improvement. This was clearly erroneous. On remand, the judge will award temporary partial and temporary total benefits as supported by the record. This will necessitate a determination of the claimant’s post-injury wage-earning capacity during the periods of temporary partial disability. We note that although claimant stopped working on 3/17/76, the judge made no finding that she was totally disabled from that date until she was admitted to the hospital, on 4/20/76.

We also agree that it was error for the judge to award appellee the bills of Jackson Memorial Hospital, Dr. Reinmuth and Dr. Rosomoff. The record shows that appellee twice requested authorization of Dr. Reinmuth which appellant denied. At that time, she was working full-time and being treated by appellants’ authorized neurosurgeon. On August 13, 1975, she checked into Jackson Memorial Hospital for 12 days of diagnostic testing by Dr. Rein-muth and Dr. Rosomoff, the latter referred by Dr. Reinmuth, after which she was released and returned to work full-time. Ap-pellee did' not see either doctor again, and the appellant’s authorized physician eventually performed a second laminectomy on her in May, 1976, based on his own diagnosis. The judge found that the treatment at Jackson Memorial was “reasonable and necessary” and ordered the bills paid. In an analogous case, Moomaw v. H — Y Fabricators, IRC Order No. 2-3286 (1977), the Commission reversed the judge’s order that the claimant’s bills for treatment at the Mayo Clinic be paid by the carrier:

The employer had not refused or neglected to furnish treatment. Appellant was requesting treatment in addition to that being furnished by Dr. Blumberg. The refusal to authorize treatment at Mayo Clinic was not a refusal of treatment by Dr. Blumberg but was a refusal of treatment to be furnished by a physician other than Dr. Blumberg. This is not the type failure by an employer that permits an employee to unilaterally obtain treatment and then recover amounts found to be reasonably and necessarily expended for such treatment in subsequent proceedings before a Judge of Industrial Claims. Id. at p. 3.

As in Moomaw, and on these facts, the appellee was required to seek authorization for the treatment at Jackson Memorial Hospital before the judge of industrial claims after the appellants refused her request. Compare, Redwing Carriers, Inc. v. Pinto, IRC Order No. 2-3089 (1977). See also Eden Roc Hotel v. Tamarit, IRC Order No. 2-3111 (1977); Baptist Hospital v. Mack, IRC Order No. 2-2961 (1976). It was also error to award the bills of psychiatrist, Dr. Greenberg, and psychologist, Dr. Schaeffer. There is no record of the appellee’s ever requesting authorization for their treatment, of the doctors’ complying with the filing requirements of Section 440.31 or of any excuse for these failures. The bills were not even in evidence.

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

ERVIN, SHIVERS and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wyatt Leonard THOMAS, Appellant, v. R. W. O’BERRY RANCH; Florida Farm Bureau, Appellees.
    No. QQ-208.
    District Court of Appeal of Florida, First District.
    March 17, 1980.

      Richard M. Sauls, Okeechobee, for appellant.
    Robin A. Lloyd, Sr., of Jones, Paine & Foster, Vero Beach, for appellees.
   PER CURIAM.

The claimant suffers from a rare congenital defect. When he was four days old, he underwent surgery to alleviate symptoms of upper intestinal obstruction. This operation was not successful, and follow-up surgery revealed a congenital valve in the claimant’s intestinal tract; causative of the problem from which he was suffering. The surgeon released the valve and, gradually, the claimant recovered, experiencing no ill effects from his condition until his seventeenth year. During that year the claimant secured a summer job as a field worker for the instant employer. He began work on June 9, 1977. As part of his employment duties he loaded bales of cut hay into trailers. The bales were stacked 3-6 feet high, and they weighed 60-80 pounds each.

One day in July, after a heavy rain, the claimant began to feel dizzy while he worked. He continued loading the bales until late in the afternoon when he began to feel “sick to his stomach” and to experience stomach cramps. The evidence reveals that the claimant was attempting to load 12 trailers instead of the usual 8 and, due to moisture, the bales were approximately twice their usual weight.

Two days later the claimant was hospitalized. He underwent three surgical procedures, one of which revealed that his stomach and duodenum were distended. The operating surgeon opined that this factor, coupled with another congenital valve discovered in and removed from the intestinal tract during the third procedure, caused the problem from which the claimant began suffering on July 7th while at work.

The record reveals no cause for the distention other than the claimant’s work activities on July 7th. Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970). In speaking of causality, the surgeon noted that the claimant could lift weights as well as any other man his age and size, but that the additional weight of the bales and the constant additional stress and strain involved in lifting them that day created a balloon-like pressure on the claimant’s duodenum, causing it to distend.

We hold that the foregoing evidence of unusual stress and strain causing internal injury and sudden, unexpected disability, is sufficient to demonstrate a compensable accident under workers’ compensation law. Simons v. City of Coral Gables, 186 So.2d 493 (Fla.1966). Accordingly, we reverse and remand for a new order consistent with this opinion and for further proceedings as necessary to determine issues ripe for adjudication.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Teresita CANTENS, and Gaston Cantens, her husband, Appellants, v. JEFF-SON, INC., a Florida Corporation, Appellee.
    No. 78-1806.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Burns & Arnovitz and Jeffrey W. Samek, Miami, for appellants.
    Jeanne Heyward, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NESBITT, JJ.
   PER CURIAM.

Plaintiffs Teresita Cantens and her husband Gaston appeal a summary judgment in favor of the defendant, Jeff-Son, Inc., in this negligence action.

Teresita Cantens, plaintiff-appellant, was a registered guest at the Jefferson Hotel owned by the defendant Jeff-Son, Inc. and located on Miami Beach. She slipped on a broken area of the city\s sidewalk located in the front of the hotel, fell and as a result sustained serious injuries. Mrs. Cantens and her husband filed the instant action against Jeff-Son, Inc., as owner of the Jefferson Hotel, its liability insurer, Consolidated Mutual Insurance Co., and the City of Miami Beach. She alleged that Jeff-Son, Inc. was negligent in maintaining the sidewalk area in front of the hotel where she slipped and in the alternative that the City of Miami Beach was also negligent in maintaining the subject sidewalk. Pre-trial discovery ensued and Jeff-Son moved for summary judgment on the ground that the slip and fall occurred on the street and not on the hotel’s property. Mrs. Cantens filed an affidavit in opposition to the motion for summary judgment along with three photographs of the scene of the accident. After hearing argument of counsel, the trial court entered final summary judgment for Jeff-Son. This appeal followed.

The record evidences that the accident occurred on the public sidewalk. Jeff-Son, as owner of the Jefferson Hotel, had no duty to maintain the public sidewalk where Mrs. Cantens fell. Beattie v. City of Coral Gables, 358 So.2d 1131 (Fla.3d DCA 1978). Accordingly, the summary judgment is affirmed.

Affirmed.

      . The action against the City of Miami Beach was voluntarily dismissed.


author: HUBBART, Judge.

text:
    Robert L. BLUE, a/k/a R. L. Blue, a/k/a Bob Blue, R. L. Blue & Co., Inc., a Florida Corporation, and Blue, Lovett, Keys & Co., Inc., a Florida Corporation, Appellants, v. Alice W. WEINSTEIN, Z. T. Walker, R. L. Walker, F. J. Walker, W. H. Walker, III, J. H. Walker, R. V. Walker and W. H. Walker, Jr., Partners d/b/a “Home Underwriters”, Appellees.
    No. 79-329.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Prunty, Ross & Olsen and John W. Prunty, Miami, for appellants.
    Kelly, Black, Black, Wright & Earle and Brian P. Patchen, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   HUBBART, Judge.

This is a counterclaim for abuse of process which was dismissed by the trial court without prejudice to file a separate action upon termination of the main suit herein. The counterclaimant appeals.

The central issue presented for review is whether a cause of action for abuse of process may be maintained as a counterclaim when directed against process served in the pending main action. We hold that such a cause of action may be maintained as a permissive counterclaim and, accordingly, reverse the order of dismissal under review.

I

The facts of this case as they pertain to the above issue are as follows. The plaintiffs [Alice W. Weinstein, Z. T. Walker, R. L. Walker, F. J. Walker, W. H. Walker, III, J. H. Walker, R. V. Walker and W. H. Walker, Jr., partners d/b/a Home Underwriters] filed a third amended complaint in six counts against the defendants [Robert L. Blue, a/k/a R. L. Blue a/k/a Bob Blue, R. L. Blue & Co., Inc. and Blue, Lovett, Keyes & Co., Inc.] in the Dade County Circuit Court. Count VI of the complaint alleged a larceny of certain items of property by the defendants and sought a civil remedy under Section 812.035, Florida Statutes (1979); count VII of the complaint alleged an unlawful conspiracy by the defendants for violation of Florida Anti-Racketeering Act, § 943.462(2), Fla.Stat. (1979). Process was duly served upon the defendants with reference to this complaint. Upon proper defense motion, the trial court dismissed counts V-VII of the complaint, but allowed the remaining counts in the complaint to stand.

The defendants answered the complaint and also filed a second counterclaim charging the tort of malicious prosecution relating to the plaintiffs’ filing of counts VI and VII of the third amended complaint herein. Upon proper motion by the plaintiffs, the trial court dismissed this counterclaim without prejudice to the defendants to file an independent action of malicious prosecution at the termination of the main claim in this action. No appeal has been taken from this order. '

The defendants thereafter filed a third counterclaim charging the plaintiffs with abuse of process in the serving of process relating to counts VI and VII of the plaintiff’s third amended complaint. Aside from the change in the names of the tort, the facts underlying the abuse of process claim were basically the same facts as alleged in the malicious prosecution counterclaim. Upon proper motion by the plaintiffs, the trial court dismissed the abuse of process counterclaim without prejudice to the defendants to file an independent action for abuse of process upon the termination of the main claim in this action. The defendants appeal from this order. We have jurisdiction to entertain this appeal as an appeal from a final order.

II

This court has held in a line of cases that the tort of abuse of process may not be brought as a counterclaim when directed against process served in the pending main action on the ground that termination of such action in favor of the counterelaimant is an essential precondition to the bringing of such claim. So long as the main action remains pending, it was our conclusion that the abuse of process counterclaim is premature and may only be brought as an independent action at the termination of the main action. The trial court undoubtedly relied on these cases in dismissing without prejudice the defendants’ abuse of process counterclaim herein. Bieley v. duPont, Glore, Forgan, Inc., 316 So.2d 66 (Fla. 3d DCA 1975); American Salvage & Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla. 3d DCA 1974); Marcoux v. Davis, 230 So.2d 485 (Fla. 3d DCA 1970).

This court has also held, in conflict with the above line of cases, that termination of the action in favor of the person against which process is served is not an essential element of the tort of abuse of process. In Cline v. Flagler Sales Corp., 207 So.2d 709, 711 (Fla. 3d DCA 1968), this court stated;

“In an action for abuse of process it is not essential to show a termination of the proceeding in favor of the person against whom the process was issued and used, or to show want of probable cause or malice. The cause of action consists of the willful or intentional misuse of process; a willful and intentional misuse of it for some wrongful and unlawful object, or ulterior purpose not intended by the law to effect, [citations omitted].”

The holding in Cline, has been followed in this state by the First District Court of Appeal, Bradley v. Peaden, 347 So.2d 455 (Fla. 1st DCA 1977), and is in accord with the overwhelming weight of authority in the country. Prosser on Torts 856-857 (4th ed. 1971); 1 Harper & James, The Law of Torts 330 (1956); Annot., 80 A.L.R. 580 (1932).

We must resolve the above conflict in our decisions and we do so by adhering to the rule announced in Cline and by receding from the above-stated rule announced in Bieley, American Salvage and Marcoux. An abuse of process claim may henceforth be brought as a counterclaim when directed against process served in the pending main action because, in accord with Cline, abuse of process does not require as one of its essential elements a termination of the action in favor of the person against which process was issued. This result is in accord with the rule followed in California. White Lighting Co. v. Wolfson, 68 Cal.2d 336, 438 P.2d 345, 352, 66 Cal.Rptr. 697 (1968). In addition, our review of Nash v. Walker, 78 So.2d 685 (Fla.1955), and Jones-Mahoney Corp. v. C. A. Fielland, Inc., 114 So.2d 18, 20 (Fla. 2d DCA 1959), convinces us that the Florida Supreme Court has given its tacit, although not explicit, approval to the bringing of such an abuse of process action as a counterclaim.

A different rule properly prevails with reference to the tort of malicious prosecution as termination of the action in favor of the plaintiff is an essential element of that tort. As such, our decisions holding that malicious prosecution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending main action are sound and are herein re-affirmed. Bieley v. du-Pont, Glore, Porgan, Inc., 316 So.2d 66 (Fla. 3d DCA 1975); American Salvage & Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla. 3d DCA 1974). Our error has been in treating the torts of malicious prosecution and abuse of process as interchangeable. They clearly are not.

Finally, a strong basis in fundamental fairness supports the result which we reach in this case. A cause of action for abuse of process accrues and the statute of limitations begins to run from the termination of the acts which constitute the abuse complained of and not from the termination of the action in which process issued. Annot., 1 A.L.R.3d 953, 953-954 (1965); 1 Am. Jur.2d, “Abuse of Process” § 24 (1962). As such, our four year statute of limitations on abuse of process will in all likelihood begin to run, and, indeed, may very well expire before the main action herein is terminated. § 95.11(3)(o), Fla.Stat. (1979); see Moore v. Michigan National Bank, 368 Mich. 71, 117 N.W.2d 105 (1962). To avoid this possible anomaly and fully assure the defendants their right of access to the courts, it seems only fair to allow them to bring their abuse of process action as a counterclaim herein; an opposite result may leave them without legal remedy.

111

Although the trial court erred in dismissing the defendants’ abuse of process counterclaim as being only cognizable as an independent action and not as a counterclaim, it does not follow that the defendants’ counterclaim should be reinstated as stating a valid cause of action. Our review of the counterclaim herein convinces us that the plaintiffs are entirely right in their contention that this counterclaim fails to state a cause of action for the tort of abuse of process. Indeed, it is little more than a repeat of the allegations in the counterclaim charging malicious prosecution which was properly dismissed by the trial court. The only change is that the defendants now allege that the process was employed unlawfully because it was allegedly used as a means of forcing the defendants to accede to the allegations and demands of the plaintiffs as contained in counts I through IV of their third amended complaint. Even if true, such allegations do not constitute the tort of abuse of process as the gravaman of the action is, in our view, still directed against portions of an alleged baseless complaint and is fundamentally unrelated to the process served thereunder; indeed, no abuse of the process apart from the complaint is pled and the effort to do so amounts to nothing more than a thinly disguised malicious prosecution claim. See Prosser on Torts 856-858 (4th ed. 1971); 1 Harper & James, The Law of Torts 330-332 (1956).

Still, the trial court erred in dismissing the complaint without giving the defendants leave to amend and by doing so committed reversible error. The defendants were entitled to at least one opportunity to amend and replead their claim. Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla. 4th DCA 1967); Richards v. West, 110 So.2d 698 (Fla. 1st DCA 1959); Fouts v. Margules, 98 So.2d 394 (Fla. 3d DC A 1957). We should note, however, that the error committed was understandable in view of the unfortunate conflict in our decisions. We hope we have eliminated this conflict for the future guidance of the bench and bar.

IV

The order of dismissal under review is reversed and the cause remanded to the trial court with directions to dismiss the defendants’ abuse of process counterclaim with leave to amend same within a period of time to be set by the trial court.

      . The appeal herein seeks review of an order dismissing a permissive counterclaim which attempts to plead a separate cause of action not interdependent with the other pleaded claims and counterclaims in this action. As the subject counterclaim cannot again be refiled by amendment in the pending lawsuit, the order under review is a final order which, in our view, is appealable to this court under Article V, Section 4(b)(1) of the Florida Constitution. Mendez v. West Flagler Family Ass'n, 303 So.2d 1 (Fla.1974); Cordell v. World Insurance Co., 352 So.2d 108 (Fla. 1st DCA 1977); Taussig v. Insurance Co. of North America, 301 So.2d 21 (Fla. 2d DCA 1974). A different result would obtain, however, if the counterclaim herein had been a compulsory counterclaim as it would then be considered inseparable from the main claim and an order dismissing such a compulsory counterclaim would not be final. S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 179 So.2d 414 (Fla. 3d DCA 1965).

      . In the event the defendants plead a proper cause of action for abuse of process by amendment upon remand, it should be noted that the trial court may, in its discretion, sever the abuse of process counterclaim from the main action for trial purposes. Fla.R.Civ.P. 1.270(b). Indeed, it may be compelled to do so if a joint trial of the counterclaim and main action would otherwise unduly complicate the case. Nash v. Walker, 78 So.2d 685 (Fla.1955).


author: EZELL, Associate Judge.

text:
    Margaret M. DENNIS, a widow, Melvin A. Fisher, Estelle W. Slater, Alvin De-Lones, Fred Slagel, and Charles Walker, Appellants, v. The CITY OF KEY WEST, Florida, a Municipal Corporation and the Key West Port and Transit Authority, a Board established by the City of Key West, Florida, Appellees.
    No. 79-738.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Edward B. Johnson, Jr., Key West, for appellants.
    Feldman, Eden & Allen and Joseph B. Allen III, Key West, for appellees.
    Before PEARSON and SCHWARTZ, JJ. and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   EZELL, Associate Judge.

Margaret M. Dennis and several others, who all lived aboard vessels moored the Key West shoreline, appeal the final declaratory judgment wherein the trial court held a series of ordinances to be valid and determined that, pursuant to these ordinances, the Key West Port and Transit Authority could require the appellants herein to remove their houseboats. Preliminarily we note that jurisdiction to review decisions concerning the validity of ordinances is properly vested in this court, Armstrong v. City of Tampa, 106 So.2d 407 (Fla.1958), and we reverse.

Since 1957, Margaret Dennis has lived aboard her houseboat off the coast of Key West. The boat, as are those of the other appellants who have become Mrs. Dennis’ neighbors, are moored to pilings driven into the sea bottom and tied up to a bulkhead which was built in the tidal waters to protect the beaches from erosion due to wave action. The boats of Mrs. Dennis and her neighbors are supplied with electricity by the City Electric Company and with water by the Florida Aqueduct Authority. It is these boats which the Key West Port and Transit Authority is attempting to have removed.

Until 1970, the territorial and jurisdictional limits of the City of Key West were formed by the physical boundaries of the island itself. Those waters and submerged lands encircling the key were considered the territory of the State of Florida. In that year, however, the Florida legislature passed a special act [“authorizing the City of Key West] to exercise its police powers and jurisdiction extending three hundred (300) feet into the tidal waters adjacent to its corporate limits . . .” Ch. 70-762, § 2, Laws of Fla. These powers were extended only for purposes of the prevention of crime, the abatement of nuisances, the regulation of zoning and the enforcement of sanitation laws and regulations. Ch. 70-762, § 2, Laws of Fla. Thus, in 1970, the City of Key West acquired the right to exercise its police powers over those tidal waters where Dennis and her neighbors had tied up their boats.

The City then passed an ordinance creating the Key West Transit Authority and vested it with the “full power and authority to operate, control and manage any and all transportation and port systems and facilities acquired by the City”. Key West, Florida, Ordinance 72-23 (June 5, 1972). A second ordinance, passed the following year, gave the Authority the power to control all watercraft within the jurisdiction of the City. Key West, Florida, Ordinance 73 — 19 (June 18, 1972). Two particular sections of this ordinance were of special consequence in the trial court. The first of these provisions, Ord. 73-19, § 8-9d, made it a violation to moor or dock any watercraft without a permit; the second made it “unlawful for any person or persons to sleep or live aboard watercraft docked or moored within the jurisdiction . . . except watercraft equipped with marine sanitation devices that meet State and Federal waste facility requirements . . .” (Emphasis supplied). Ord. 73-19, § 8-12. Under the auspices of this ordinance, the Authority served Mrs. Dennis and her neighbors with notices to remove their vessels.

Mrs. Dennis and the others challenged these efforts by an action for declaratory and injunctive relief. Although the previously discussed ordinances were very much in contention in the trial court and were, in fact, briefed for the benefit of this court, the parties have conceded that, if the Port and Transit Authority does have the ability to order the removal of the houseboats, it must flow from Ordinance 75-8 and the ability of the Authority to enforce such a regulation. Key West, Florida, Ordinance 75-8 (May 5, 1975) provides in pertinent part:

“Section 1. No house car, camp car, vehicle or vessel or part of vehicle or vessel used for a residence, live aboard facility, live aboard vessel, or for human habitation by whatever name known . shall be kept on public or private property within the jurisdictional limits of the City or within Three Hundred (300) feet of the corporate limits of the City while being used as a residence, live aboard facility, live aboard vessel or for human habitation except if kept within a licensed trailer park or other area which has been designated by the City .
“Section 2. It shall be unlawful for any private or public utility, person or corporation to furnish water, electricity or other services to any house car, camp car, camper or vessel which is being used in violation of this Ordinance.
“Section 3. It shall be unlawful and under no circumstances shall any vehicle or vessel described in Section 1 of this Ordinance be used a living or sleeping quarters within the jurisdictional limits of the City of Key West or within Three Hundred (300) feet of the corporate limits, except as provided herein.
“Section 4. All vessels used for live aboard or for human habitation shall be equipped with an approved marine sanitation device as provided herein. .
“Section 5. This Ordinance shall not apply to any vessel which is kept within or tied up to private property and does not constitute a navigational hazard and has an approved Marine Sanitation Device as provided herein.
“Section 6. Any vessel which is connected to an approved sewer system shall be exempt from the provisions contained in Section 4 herein.
“Section 7. The following areas are designated as live aboard areas as provided hereinabove:
Key West Yacht Club
Berths at the City-owned docks located
at Garrison Bight.
“Section 8. Should any person, firm or corporation, their agents, servants or employees, violate the terms and provisions of this Ordinance, such person, firm or corporation shall be deemed guilty of a misdemeanor and upon conviction thereof by a Court of competent jurisdiction, shall be fined in any sum not less than One Hundred Dollars nor more than Two Hundred Fifty Dollars.
“Section 9. Should any section, paragraph, clause or provision of this Ordinance be declared unconstitutional and void by a Court of competent jurisdiction, such decision shall in no wise affect the validity of the remaining parts save the part held unconstitutional and void and is inseparable from and indispensable to the operation of the remaining part.”

We are not unmindful of the presumptions in favor of ordinances passed under the police powers of a jurisdiction; nor do we disparage the principle that the burden of overcoming this presumption falls heavily on the challenge, State v. Sawyer, 346 So.2d 1071 (Fla.3d DCA 1977), and the authority cited therein. Moreover, courts will not substitute their judgment as to the reasonableness of a particular rule or regulation where the reasonableness is “fairly debatable”. See Lester v. City of St. Petersburg, 183 So.2d 589 (Fla.2d DCA 1966). However, where there has been an obvious abuse of police power and where the ordinance clearly appears to have no foundation in reason or necessity, the courts will provide a remedy. City of Clearwater v. College Properties, Inc., 239 So.2d 515 (Fla.2d DCA 1970).

In this case, the ordinance makes it illegal to live aboard any vessel unless such vessel is moored or docked within the Key West Yacht Club or Garrison Bight, the public dock. There is no discernible relationship between this regulation and the health, welfare, or safety of the general populace. Therefore, the provisions of this, statute which are unreasonable must be quashed. Because Sections 4 and 6 of the ordinance, which mandate that all vessels used for human habitation be equipped with an approved marine sanitation device, are distinct and severable from the remainder of the ordinance and because these two sections have separate and valid purposes, they retain their viability under the principles of Dade County v. Keyes, 141 So.2d 819 (Fla.3d DCA 1962) and in the spirit of the savings clause of the ordinance.

In light of our foregoing disposition of the issue concerning the validity of the ordinance, we need not reach the question of whether the trial court abused its discretion in directing verdicts against two of the plaintiffs who failed to appear for trial. The effect of any such verdict is mooted by our quashal of the ordinance.

Therefore, the ordinance is quashed in part, the judgment is reversed, and the constitutional stay writ previously entered is hereby dissolved.

      . There were two separate but consolidated lawsuits below with several plaintiffs in each case. The plaintiffs who sought relief in Circuit Court Case No. 77-234-CA-17 are not parties to this appeal.

      . When the Key West Port and Transit Authority was first created by Ordinance 72-23, it was known as the Key West Transit Authority. Its title was subsequently changed by Ordinance 74-24.


text:
    John Michael BUSH, Appellant, v. Burt BELENKE, Appellee.
    No. 79-1174.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Bryson & Berman, Flynn, Rubio & Tar-koff, Miami, for appellant.
    Orr, Nathan & Williams, Miami, for ap-pellee.
    Before HAVERFIELD, C. J., and NES-BITT and BASKIN, JJ.
   PER CURIAM.

In this replevin action, John Bush, the plaintiff, appeals the entry of a summary final judgment for the defendant Burt Be-lenke.

John Bush filed the instant action for return of an emerald ring or, in the alternative, for damages. He alleged that he had given the ring to Burt Belenke to sell on a commission basis. Subsequently, Bush demanded return of the ring from Belenke who was unable to sell it, but refused to return it. In his answer, Belenke alleged that he never was personally in possession of the ring. He further alleged that the ring was in the possession of Belenke Co., Inc., d/b/a the House of Diamonds, of which he is a shareholder and corporate officer. Thereafter, on this ground Belenke moved for summary judgment. Bush filed an affidavit in opposition to the motion for summary judgment and stated that he dealt with Belenke as an individual who at no time represented himself to be acting on behalf of a corporation but rather made it a point that he (Bush) was dealing with him (Belenke) personally. After hearing argument of counsel, the trial judge entered summary final judgment for Belenke and Bush perfected this appeal.

A review of the record reflects that there remains genuine issues of material facts which necessitate a reversal. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). For example, an issue exists as to whether Bush dealt with Belenke as an .individual or as an agent for the House of Diamonds (Belenke Co., Inc.) when he gave Belenke the ring. Further, individual officers and agents of a corporation are personally liable to any third person even if such acts are performed within the scope of their employment or as corporate officers or agents. See Dade Roofing and Insulation Corp. v. Torres, 369 So.2d 98 (Fla.3d DCA 1979). In addition, in a replevin action, although possession by the defendant of the subject property is essential, actual manual possession is not necessary. It is sufficient if a defendant has constructive possession, that is has such control over the property that he may deliver the possession of it, if he so desires, as for example, where an agent holds property for his principal. See Miller v. Townhouse Development Corp., 178 So.2d 730 (Fla.2d DCA 1965); 66 Am.Jur.2d Replevin § 26 (1973). Although Belenke alleges he was acting as an agent for the House of Diamonds (Belenke Co., Inc.), an issue exists as to whether he has constructive possession of the ring which would preclude the entry of summary judgment.

Accordingly, the summary judgment entered for Belenke is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Chaim GROSZ, Appellant, v. STATE of Florida, City of Miami Beach, a Municipal Corporation, et al., Appellees.
    No. 79-1506.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Rehearing Denied April 11, 1980.

      Chaim Grosz, in pro. per. .
    Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., John A. Ritter, City Atty., and Beth Ellen Spiegel, Asst. City Atty., for appellees.
    Before HENDRY and NESBITT, JJ., and CHARLES A CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. There is competent substantial evidence to support the conviction of appellant for violation of the zoning ordinance which makes no provisions for the operation/maintenance of a church or synagogue in an RS-4 District; that is, a neighborhood that consists of single-family detached dwelling units. See Town v. State, 377 So.2d 648 (Fla.1979); Pylant v. Orange County, 328 So.2d 199 (Fla.1976); Smith v. City of Miami Beach, 213 So.2d 281 (Fla.3d DCA 1968), cert. discharged, 220 So.2d 624 (Fla.1969); City of Miami Beach v. Greater Miami Hebrew Academy, 108 So.2d 50 (Fla.3d DCA 1959), cert. denied, 113 So.2d 229 (Fla.1959); Miami Beach United Lutheran Church of the Epiphany v. City of Miami Beach, 82 So.2d 880 (Fla.1955); Sections 6-1A, 6-1B 1 and 14-1(d) of the City of Miami Beach Zoning Ordinance No. 1891.


text:
    CITY OF HOLLYWOOD, Appellant, v. Joseph DeLILLO, Florence Mistier, Angelo D’Allessandro, Terry D’Allessandro, Frank J. Thomas and Pauline J. Thomas, Appellees.
    No. 78-700.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.
    Rehearing Denied April 18, 1980.
    James A. Thomas, Acting City Atty., and Sherman Bennett Mayor, City Atty., City of Hollywood, Hollywood, for appellant.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   PER CURIAM.

This case is factually related to the case of Bracer and Co., Inc. v. City of Hollywood, 360 So.2d 1264 (Fla. 4th DCA 1978); cert. denied, 368 So.2d 1362 (Fla.1979) wherein we affirm, without opinion, a decision of the Circuit Court denying the relief which was successfully sought by the appel-lees here. In view of the similarity of the cases and the diametrically opposite results in each, we have carefully examined and considered the record in each case and the briefs and argument of respective counsel. Unlike Bracer, the record in this case fully supports the granting of the relief sought, both factually and legally.

Accordingly, the judgment is affirmed.

LETTS and MOORE, JJ., and SPENCER C. CROSS, Associate Judge, concur.


author: HERSEY, GEORGE W., Associate Judge.

text:
    B/G AMUSEMENTS, INC., a Florida Corporation, Appellant, v. MYSTERY FUN HOUSE, INC., a Florida Corporation, Appellee.
    No. 78-910/NT4-67.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.
    Stephen A. Weinstein, Orlando, for appellant.
    No appearance for appellee.
   HERSEY, GEORGE W., Associate Judge.

This appeal results from the entry of a default for failure of the defendant to file a responsive pleading and final judgment entered thereon.

Appellant was the lessee under an agreement for certain premises at a fixed annual rental, plus a percentage of the profits, and lessee was to pay taxes and utilities. Upon default by the lessee in the payment of rentals and for failure to maintain certain amusement devices in operating condition and for other defaults which need not be detailed here, the appellee wrote a letter of demand to the appellant dated December 9, 1977, pointing out the defaults and threatening to terminate the lease within thirty days of the date of the letter. Approximately one month later the lessee made a rental payment. The record does not disclose whether the amount paid was the full amount due and owing or whether or not any of the other defaults complained of had been cured.

On January 16, 1978, lessor filed an action seeking damages and eviction. On February 7,1978, the president of appellant filed a notice of appearance pro se. On February 23, 1978, appellee filed a motion for default for failure of appellant to file a responsive pleading. The certificate of service indicates that a copy was mailed to appellant’s president on February 22, 1978. Six days later, on February 28, 1978, a default was entered against appellant. On March 8, 1978, appellant’s president filed a motion to set aside the default, ascribing as grounds therefor excusable neglect. A final judgment was entered against appellant on March 24, 1978. The record contains an affidavit made by David A. Siegel as president of Mystery Fun House, Inc., the appel-lee, containing the following:

2. That B/G Amusements, Inc. owes to Mystery Fun House, Inc. the amount of $13,725.60 for lost revenue due to inoperable game machines.

The final judgment awards damages to appellee in the amount of $13,725.60.

On March 31, 1978 counsel for appellant filed a motion to set aside default and final judgment, together with .an affidavit of Robert F. Piecheny, president of B/G Amusements, Inc. The affidavit alleged by way of meritorious defense the payment in January, 1978, of $4,749.29 “ . which represented payment for all sums claimed by plaintiff against defendant and additional sums which had accrued through December, 1977. . . .” The affidavit contained the further allegation by way of excusable neglect that, because of illness, the president of appellant did not receive the notice of hearing until the afternoon of February 28, 1978, which made it impossible for him to attend the hearing on the morning of February 28.

On April 10, 1978, the trial court entered an order denying the motion to set aside default and to set aside final judgment.

The correctness of the entry of a default against the defendant corporation is not a viable issue. The record discloses that no responsive pleading was filed within the time provided by law and the default was entirely proper. The issues raised on appeal concern the propriety of the damage award and the refusal of the lower tribunal to grant the motion to set aside default and to set aside final judgment.

A party may be relieved from a final judgment under Rule 1.540(b), Florida Rules of Civil Procedure, for excusable neglect. However, as our Supreme Court concluded upon reviewing previous cases in North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), if there is any reasonable doubt, then a default should be vacated allowing a trial on the merits. The general policy of Florida courts in vacating defaults and judgments entered as a consequence of default is stated in the following language from Merrill-Stevens Dry Dock Co. v. Dozier, 310 So.2d 434 (Fla. 3d DCA 1975):

The policy of the courts of Florida in setting aside defaults in order to permit a trial on the merits is one of liberality.

It does not follow, however, that every default should be vacated simply because an application therefor is made. We think the correct rule, and one that does not do violence to the liberal policy enunciated by the case law, is succinctly stated by the court in Winter Park Arms, Inc. v. Akerman, 199 So.2d 107, 108 (Fla. 4th DCA 1967):

The general rule in cases such as this is that the relief may be granted within the sound discretion of the trial court upon a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules.
The absence of either of these elements, however, will defeat his attempt to set aside a default.

In the case at bar, appellant did not retain counsel to' appear for it until after final judgment had been entered, two months after the complaint was filed. No pleading in response to the complaint was ever filed. As “excusable neglect” appellant alleges an illness of apparently one days duration, as a result of which the notice was received too late for a representative of appellant to attend the hearing. Whether or not this constitutes excusable neglect is immaterial, for it obviously does not go to the failure of appellant to file a responsive pleading within the time permitted by the appropriate rule. Further, the only matter urged as a meritorious defense is the mailing of a check in payment of rent. This goes to only one of several defaults alleged in the complaint. Appellant having failed to sustain the burden of showing the existence of a meritorious defense and excusable neglect, the order appealed from is affirmed with respect to denial of the motion to set aside default.

The remaining question is whether or not appellant was entitled to notice of the hearing at which damages were assessed. In the case of Stevenson v. Arnold, 250 So.2d 270 (Fla.1971) the following question was certified by the District Court of Appeal, Fourth District:

Whether in a suit seeking a money judgment for unliquidated damages, a defendant against whom a default judgment has been duly and regularly entered, is entitled to notice of trial on the issue of damages notwithstanding Rule 1.080(a), R.C.P.

In response, the Supreme Court held that notice under such circumstances was not necessary, expressly modifying all prior cases to the extent they were in conflict with the reasons and result of that case.

Then on January 1, 1977 the current revision of Rule 1.440(c), Florida Rules of Civil Procedure became effective. This amended rule provides in pertinent part:

In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a). In re Florida Bar, Rules of Civil Procedure, 339 So.2d 626 (Fla.1976).

The reference to Rule 1.080(a), Florida Rules of Civil Procedure tends to be confusing but examination of Rule 1.080(h) confirms an intention to change the rule of Stevenson v. Arnold, supra, by the 1977 amendments, so that notice is now required. We therefore hold that a party against whom a default has been entered is entitled to notice of an order setting an action involving unliquidated damages for trial. In accordance with this holding, we reverse this aspect of the order and the final judgment and remand for trial, after notice, on the damages issue.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DAUKSCH, C. J., and DOWNEY, JAMES C., Associate Judge, concur.


author: DAUKSCH, Chief Judge.

text:
    VERMONT MUTUAL INSURANCE COMPANY, Appellant, v. Mary E. BOLDING and Heritage Federal Savings and Loan Association, Appellees.
    No. 00-383/T1-134.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.

      William Parsons and Cliff B. Gosney, Jr., of Gosney, Cameron, Parsons & Marriott, P. A., Daytona Beach, for appellant.
    David Monaco and J. Lester Kaney of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for ap-pellee, Heritage Federal Sav. and Loan Assn.
    Raymond A. Haas and J. Richard Boehm of Haas, Boehm & Brown, P. A., Daytona Beach, for appellee, Mary E. Bolding.
   DAUKSCH, Chief Judge.

This matter began when Christopher King’s home burned and he settled with the insurance company for the fire loss and attempted to cheat the mortgagees out of their entitlements to the insurance proceeds by forging their names on the settlement draft. A contest later developed between the insurance company and the mortgagees as to the amount required to repair the fire damage and the mortgagees filed suit to collect from the insurance company under the policy.

The question in the appeal is whether an order awarding attorneys’ fees under section 627.428(1), Florida Statutes (1979), was proper when the recipients of the fees were the attorneys for mortgagees under the homeowner’s policy. In order for the mortgagees to be awarded attorneys’ fees properly, it must first be shown the judgment was “against an insurer” and “in favor of an insured or the named beneficiary” under the policy. There is no dispute as to the fact the judgment was against an insurer; the appellant issued the insurance policy.

The dispute is whether the mortgagees, who were named in the policy and an endorsement as mortgagees, are defined as either “an insured” or “the named beneficiary.” In our opinion, the trial judge ruled correctly when he awarded attorneys fees to the mortgagees’ attorneys and it is our determination this can be done because each of the mortgagees is to be deemed “an insured.”

In the policy a mortgagee is not specifically defined as an “insured;” rather paragraph 8(a) of the policy contains the following definition:

‘Insured’ means
(1) the Named Insured stated in the Declarations of this policy;
(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; and
(3) under Coverage E — -Personal Liability and Coverage F — Medical Payments to Others:
(a) with respect to animals or watercraft to which this insurance applies, owned by any Insured, any person or organization legally responsible therefor, except a person or organization using or having custody or possession of any such animal or watercraft in the course of his business or without the permission of the owner; and
(b) with respect to any vehicle to which this insurance applies, any employee of any Insured while engaged in the employment of the Insured.

Nor is a mortgagee defined as a beneficiary because there are no beneficiaries mentioned in the policy, as they might be in a life insurance policy. However, the policy does define the rights and obligations of a mortgagee in two places; first by saying:

Mortgagee Interests and obligations. If loss hereunder is made payable, in whole or in part, to a designated mortgagee not named herein as the insured, such interest in this policy may be cancelled by giving to such mortgagee a ten days’ written notice of cancellation.
If the insured fails to render proof of loss such mortgagee, upon notice, shall render proof of loss in the form herein specified within sixty (60) days thereafter and shall be subject to the provisions hereof relating to appraisal and time of payment and of bringing suit. If this Company shall claim that no liability existed as to the mortgagor or owner, it shall, to the extent of payment of loss to the mortgagee, be subrogated to all the mortgagee’s rights of recovery, but without impairing mortgagee’s right to sue; or it may pay off the mortgage debt and require an assignment thereof and of the mortgage. Other provisions relating to the interests and obligations of such mortgagee may be added herein by agreement in writing,

and second by saying:

Mortgage Clause — Coverages A and B only: (This entire clause is void unless name of mortgagee [or trustee] is inserted in the Declarations): Loss, if any, under this policy, shall be payable to the mortgagee (or trustee), named on the first page of this policy, as interest may appear, under all present or future mortgages upon the property herein described in which the aforesaid may have an interest as mortgagee (or trustee), in order of precedence of said mortgages, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or negliect of the mortgagor or owner of the within described property, not by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.
Provided also, that the mortgagee (or trustee) shall notify this Company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this policy, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof, otherwise this policy shall be null and void.
This Company reserves the right to cancel this policy at any time as provided by its terms but in such case this policy shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation and shall then cease, and this Company shall have the right, on like notice to cancel this agreement.
Whenever this Company shall pay the mortgagee (or trustee) any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, this Company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt; or may at its option pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage, with interest accrued and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of said mortgagee’s (or trustee’s) claim.

Under the facts of this case it was necessary for the mortgagees to file a lawsuit against the insurer. The judgment was against the insurer. The Legislature, by enacting section 627.428, Florida Statutes, deemed it advisable, in derogation of the common law, to allow an insured an attorney’s fee for having to sue the company. As our Supreme Court said in Roberts v. Carter, 350 So.2d 78 (Fla.1977), the “statutes allowing for the award of such fees should be strictly construed;” Id. at 78-79; and as our Supreme Court said in Wilder v. Wright, 278 So.2d.1 (Fla.1973), quoting the appellate court on the same case:

The purpose of the statute is to discourage contesting of valid claims of insured against insurance companies and to reimburse successful insureds reasonably for their outlays for attorney’s fees when they are compelled to defend or to sue to enforce their contracts . . .

Id. at 3.

It is our interpretation of the statute and the policy provisions that this policy protects the mortgagees, and that the word “insured” in the statute includes the mortgagees because, to the extent of their risk of loss, the mortgagees recover before the named insured. The coverage for the mortgagees was sought by and agreed to by the named insured, Christopher King, and was most likely a requirement of the mortgages themselves. Since the real party in interest was the mortgagees and the proceeds were first payable to them, we have reached our conclusion in harmony with Roberts v. Carter, 350 So.2d 78 (Fla.1977); All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla.1972); and Travelers Insurance Co. v. Tallahassee Bank and Trust Co., 133 So.2d 463 (Fla. 1st DCA 1961), cert. denied 138 So.2d 332 (Fla.1962).

AFFIRMED.

UPCHURCH, J., concurs.

CROSS, J., concurs only in conclusion.

      . Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.


text:
    Peter John BARAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2517/T4-306.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Glen H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Chief Judge.

In this appeal from an order revoking appellant’s probation it is apparent from the record that the trial judge failed to take into consideration the fact that the appellant failed to pay his public defender lien only because he was indigent and unable to make the payment. Although appellant’s defense was that he thought he had paid more than the amount shown in the public defender’s records, the fact remains that the evidence clearly shows appellant to be indigent. Therefore, we must reverse the order revoking appellant’s probation and remand this matter to the trial court with directions to discharge appellant because his probationary term has expired. Freiberger v. State, 343 So.2d 57 (Fla. 4th DCA 1977).

We note with disapproval that the lawyer who represented appellant at the probation violation hearing was from the same lawyers’ office which provided the evidence to convict appellant. This is a violation of Disciplinary Rule 5-102(B) of the Florida Bar Code of Professional Responsibility. See also Fla. Bar Code Prof. Resp., E.C. 5-1. However, we hasten to add that the record reflects defense counsel did as well as any lawyer could have done in defending his client and the conflict of interest did not obviously reduce the zealous defense of the accused. This is good example of the necessity of avoiding even the appearance of conflict or misconduct.

REVERSED AND REMANDED WITH DIRECTIONS.

CROSS and UPCHURCH, JJ., concur.


author: SHARP, Judge.

text:
    Gerald S. ROZMESTOR, Appellant, v. STATE of Florida, Appellee.
    No. 00-55/T1-97.
    District Court of Appeal of Florida, Fifth District.
    c.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

The appellant, Gerald Rozmestor, was convicted of attempted burglary after a jury trial. Rozmestor raises two points on appeal: sufficiency of the evidence to establish a prima facie case on the issue of identity of the appellant as the perpetrator of the criminal act; and legality of the sentence imposed by the trial court because two years of the four year sentence were to be served concurrently with sentences imposed on the appellant on January 11, 1979, and the remaining two years were to be served consecutively to the prior sentences. We find there was sufficient competent evidence against the appellant to sustain his conviction, but because there is no statutory authority to divide the sentence as was done in this case, we remand to the trial court for correction of the sentence not inconsistent with this opinion.

The trial judge sentenced the appellant to a 4 year prison term, upon conviction for the third degree felony charged in the information. The maximum sentence allowable was 5 years. § 777.04(4)(d) Fla.Stat. (1979). At the sentencing hearing the judge said:

. it is the sentence of the law and judgment of the court that you Gerald S. Rozmestor be imprisoned by confinement and committed to the custody of the Florida Department of Corrections for a term of four years. You are not entitled to the time in this matter as you received the time that you were in jail while waiting trial in Docket Number 78-1904. Two years of this sentence will be served concurrently with the sentence imposed on January 11, 1979. And Count II and III will be served consecutively with each other to a five year sentence with Count II and three years with Count III. Two of this four year sentence here will be served concurrently with those and two of these sentences will be served consecutively with those.

The judgment appealed from provides:

. it is the sentence of the law and judgment of the Court that you Gerald S. Rozmestor be imprisoned by confinement and committed to the custody of the Florida Department of Corrections for a term of four years less 0 days heretofore served in the Volusia County jail, and the first two years of this sentence shall be served concurrently with any other sentence imposed by any other court, and the remainder of this sentence shall be served consecutively thereto .

The appellant in this case was convicted of attempted burglary as charged in a one count information. The record does not show the nature of the convictions in January of 1979 referred to by the judge. However, the sentence for at least one count was five years. Thus, appellant’s present 4 year sentence will be broken up by the last three years of the prior sentence before the final two years commence to run.

Unless there is specific statutory authority to impose a sentence, it cannot stand. Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943). Wright v. State, 348 So.2d 633, 634 (Fla. 3rd DCA 1977). And the language susceptible of differing constructions shall be construed most favorably to the accused. § 775.021(1), Fla.Stat. (1979). A defendant convicted of two or more offenses not charged in the same information shall serve the sentences imposed consecutively unless the court directs that some or all be served concurrently. § 921.-16(1), Fla.Stat. (1979). The statute provides for concurrent sentences or consecutive sentences, but not a combination. Divided or non-consecutive sentences have been uniformly disapproved in this state. In State v. Coleman, 149 Fla. 28, 5 So.2d 60 (Fla.1941) a prisoner was released shortly after she commenced to serve her sentence. After the prison term would have expired the state sought to imprison her to serve the full term. The Supreme Court held the state could not further imprison her: “. . . the convict has a right to pay his debt to society by one continuous period of imprisonment.” Id. at 61. (Emphasis supplied).

Deferred sentences and “split sentences” which extend the prison term and or probation time beyond the maximum term allowed by the statutes for punishment of the particular crime are also invalidated because they have the inherent evil of possibly subjecting a defendant to serving a prison term without regard to “the march of the years.” State v. Bateh, 110 So.2d 7 (Fla.1959); Laniero v. Wainwright, 347 So.2d 684 (Fla. 4th DCA 1977); Kishel v. State, 351 So.2d 1058 (Fla. 4th DCA 1977); Green v. State, 354 So.2d 135 (Fla. 1st DCA 1978); McArthur v. State, 330 So.2d 548 (Fla. 1st DCA 1976).

In Segal v. Wainwright, 304 So.2d 446 (Fla.1974), the Florida Supreme Court rejected the state’s argument that the defendant should serve a five year robbery sentence with a one year sentence and a nine year sentence sandwiched between parts of the five year sentence. The court noted its “oft-repeated holdings that a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces.” Id. at 448. The sandwiching of parts of one sentence between another was rejected in that case. Whether consecutive or concurrent the prisoner must be allowed to serve his sentence seriatim and in one stretch rather than in bits and pieces.

In this case, the term for the offense may be served either concurrently in full, or consecutively in full, with the other sentences, or any one of them, but not broken up between other prison sentences presently being served by the appellant. We therefore affirm the judgment, vacate the sentence, and remand this case to the trial court for resentencing. The appellant should be present at the resentencing proceeding, and should be afforded counsel.

Judgment affirmed; remanded for resen-tencing.

COBB and UPCHURCH, JJ., concur.


author: ORFINGER, Judge.

text:
    Craig R. BOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 78-2219/T4-251.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, Denise Banjavic, Legal Intern, West Palm Beach-, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Bowles appeals his conviction of attempted sexual battery, trespass and assault after a jury trial, and the consequent sentence thereon.

The victim testified that appellant, whom she knew, entered her apartment through an open window while she was asleep, physically assaulted her and attempted to forcibly rape her. She stated that she struggled with him, called out hoping one of her neighbors would hear her, and during the struggle scratched the appellant and was bitten by him. She testified that appellant finally tired of the struggle grabbed up his clothes and ran out the back door of the apartment. The neighbor testified that she was awake and heard the commotion, heard the victim shout to her to call the police, heard the victim say “Craig (appellant’s first name) get out of my house” several times and heard a male voice which she identified as appellant’s.

The arresting officer testified that when he went to appellant’s house about an hour after the incident, there were fresh, bleeding scratches on appellant’s face and body. Appellant, testifying in his own behalf, admitted being in the apartment earlier that evening, although he said that he was there for a few minutes and left without incident. He denied the victim’s allegations, denied the attack and denied the presence of scratches, or other marks on his face or body when arrested. As rebuttal, the State produced four police officers, each of whom testified without objection that they knew the general reputation of appellant in the community for truth and veracity, and that it was bad. Then, over objection, each was asked if he would believe the appellant under oath and each answered in the negative.- Appellant argues that permitting a witness, and particularly four witnesses, to testify that they would not believe appellant under oath is prejudicial error in that the testimony invades the province of the jury which is the sole judge of the credibility of a witness and that the error is compounded by using police officers for that purpose. We agree and reverse.

Section 90.08, Florida Statutes (1977), permits the introduction into evidence of the general reputation of a witness to affect his credibility. . It is clear that in a criminal prosecution when a defendant testifies, his credibility can be tested in the same manner as with any other witness. Lebowitz v. State, 313 So.2d 473 (Fla. 3d DCA 1975); 81 Am.Jur.2d Witnesses, § 523. Long ago, the Supreme Court of Florida held that a witness could not be asked if the defendant was worthy of belief in the case after that witness had testified as to defendant’s general reputation for truth and veracity. Maloy v. State, 52 Fla. 101, 41 So. 791 (1906). The court there held that:

“ . . . the credibility of the defendant as a witness in this case was a question for the jury to determine without the aid of the opinion of another witness as to such credibility. The inquiry should have been confined to the general reputation of the defendant for truth and veracity . . ” 41 So. at 792.

See also: Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977). This limitation to evidence of general reputation for truth and veracity seems to be the generally accepted rule in this country. McCormick on Evidence, 2d Ed. § 44; 98 C.J.S. Witnesses §512. No legal principle is more firmly established in our system of jurisprudence than that which makes the jury the sole arbiter of the credibility of witnesses, including the reasonableness, probability and credibility of a defendant. Barnes v. State, 93 So.2d 863 (Fla.1957).

The State asks us to consider the error, if any, to be harmless under Section 924.33,-Florida Statutes (1977), but it is difficult to characterize the cumulative effect of the improper testimony of four police officers as harmless. Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions as officers of the law, and the prosecutor in his final argument asked the jury to do just that. Absent the cumulative effect, such testimony might have been harmless in the light of the testimony here, but that is a point we need not decide in the light of this record.

Because the improper testimony impaired appellant’s opportunity for a fair trial in this case, the judgment of conviction is reversed, the sentence set aside and the cause is remanded for a new trial.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


text:
    Anthony Jerome COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2106/T4-226.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.

      Richard L. Jorandby, Public Defender, West Palm Beach, and Steven Jablon, Asst. Public Defender, Kissimmee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction of armed robbery, a life felony. Because appellant was sixteen years old at the time he was prosecuted, he was initially charged as a delinquent under chapter 39, Florida Statutes. After the petition alleging delinquency was filed, the state attorney filed a Motion to Waive Juvenile Jurisdiction as is permitted under Rule 8.150 and Rule 8.160, Florida Rules of Juvenile Procedure. This motion was granted , and the court waived-jurisdiction over appellant as a juvenile and ordered that he be tried as an adult. Following his conviction, appellant filed a Motion for Arrest of Judgment alleging the trial court was without jurisdiction to try appellant because the statute governing waiver of jurisdiction had not been complied with. Sec. 39.02, Fla.Stat. (1975).

The issue on appeal is whether a juvenile charged by an information with a life felony can be waived to the criminal division of the circuit court and tried as an adult pursuant to section 39.02(5)(a). We answer yes. It is our holding that section 39.-02(5)(c) is an alternative and a further definition of rights and responsibilities regarding juveniles charged with capital and life felonies but is not an exclusive procedure for those cases when a waiver of jurisdiction is sought. That is to say if a juvenile is charged by information with a life felony, the juvenile division has exclusive jurisdiction under section 39.06(7), Florida Statutes (1975) until final adjudication under the juvenile proceedings statute, chapter 39, unless the criminal (adult) division is required to assume jurisdiction after an indictment or a waiver of jurisdiction by the juvenile division.

The order denying the motion in arrest of judgment is affirmed. The conviction was previously affirmed, 358 So.2d 92 (Fla. 4th DCA 1978).

AFFIRMED.

CROSS and ORFINGER, JJ., concur.

      . If the judge finds, after a waiver hearing as provided in s. 39.09, that any child who is 14 years of age or older and who, if an adult, would be charged with a violation of Florida law should be tried as an adult, the judge may enter an order waiving jurisdiction and certifying the case for trial as if the child were an adult, and thereafter the child shall be subject to the jurisdiction of the appropriate court as if the child were an adult.

      . A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. No adjudicatory hearing shall be held within 14 days from the date that the child is taken into custody unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented it to the grand jury but that the grand jury has declined to return an indictment. Should the court receive such a notice from the state attorney, or should the grand jury fail to act within the fourteen-day period, the court may proceed as otherwise required by law.


author: SHIVERS, Judge.

text:
    SAMBO’S RESTAURANT and General Adjustment Bureau on behalf of American Home Assurance Company, Appellants, v. Patricia HORN, Appellee.
    No. QQ-189.
    District Court of Appeal of Florida, First District.
    March 20, 1980.
    Bruce R. Raster of Pattillo, MacKay & McKeever, Ocala, for appellants.
    James A. Shook, Ocala, for appellee.
   SHIVERS, Judge.

Appellee was working as a waitress at a Sambo’s Restaurant on December 17, 1977, when she twice slipped and fell. She saw a doctor, complaining of back pain. According to one of her treating physicians, she did not first complain about a knee injury until two months after the accident. Her claim for compensation, however, was predicated largely on her alleged knee injury.

The Judge of Industrial Claims (JIC) awarded temporary total disability benefits or temporary partial disability benefits from the time of appellee’s termination and continuing as long as her temporary disability existed. We remand for clarification.

The award of temporary total disability benefits or temporary partial disability benefits is improper. If appellee were temporarily disabled for a given period of time, she was either partially or totally disabled. The order, however, does not specify which, and because she could not be both partially and totally disabled at the same time, the JIC should have stated the exact nature of her disability. Evidence in the record establishes that he could not properly have found her totally disabled because of the work she did for other employers during the time in question, but the parties should not have been left to speculate as to the meaning of the order.

REMANDED for clarification.

ERVIN and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    R. E. LEDFORD CONSTRUCTION COMPANY and Travelers Insurance Company, Appellants, v. James I. KING, Deceased, by Mrs. James I. King, Appellee.
    No. QQ-450.
    District Court of Appeal of Florida, First District.
    March 20, 1980.

      Robert D. McAliley of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for appellee.
   ERVIN, Judge.

In this workers’ compensation case, the employer/carrier appeals an order finding it responsible for surgical and medical costs in excess of the fee schedule set out in Fla.Admin.Code Rule 8C-7.01, and finding it responsible for the remaining balance of claimant’s hospital bill. We affirm as to both findings.

As to the latter award, the carrier argues that the judge could not modify his prior order apportioning out costs relating to the noncompensable surgery because the later order was not designed to correct a mistake of fact or a change in condition, the only grounds for modifying compensation orders. See Section 440.28, Florida Statutes (1977). The record does not demonstrate, however, that the later order was in fact a modification of the prior order.

Claimant was confined at Jackson Memorial Hospital from February 1, 1977, until March 16, 1977, during which time he was operated on for a laminectomy and later an orchiectomy. By order of March 21, 1978, the costs of the laminectomy were found causally related to claimant’s work-related injury, but the costs of the orchiectomy, noncompensable. Complying in part with the order, the carrier paid Jackson Memorial’s bill for claimant’s hospitalization from February 1 until February 24, the date of claimant’s laminectomy, but refused to pay any amount thereafter, contending that the remaining balance of the bill related to the orchiectomy. The claimant then filed a motion to compel the carrier to pay the unpaid portion of both the hospital bill and a medical bill, which the judge granted on June 18, 1979, the order now appealed.

We agree that the order must be affirmed as to the point raised because appellant has failed to demonstrate from the record how that order directing the carrier to pay the balance of claimant’s hospitalization costs was a modification of the prior order. The surgeon’s fee for the noncom-pensable operation is not at issue, only the hospitalization costs. Moreover a letter from one of claimant’s physicians states that all of claimant’s hospitalization costs related to his back problem, beginning with the laminectomy and culminating in radiation therapy. The carrier failed to sustain its burden of demonstrating error, and the order directing payment of the remaining hospitalization costs is affirmed.

As to the carrier’s argument that the judge erred in requiring it to pay the surgeon’s fee for the laminectomy in excess of the fee schedule, it should be noted that Rule 8C-7.01 permits the Division of Labor to assess greater fees “in unusual cases on the basis of individual consideration.” When a judicial function is involved, as it is here, the Division is deemed to act through the orders of the respective judges of industrial claims. See Thomas v. General Elevator Corporation, 9 FCR 179, 180 (1975), cert. denied, 316 So.2d 294 (Fla.1975). Admittedly the judge’s order did not expressly find that the laminectomy performed was an unusual procedure, but that finding is im.plicit in the following language:

I have reviewed the operative notes and find that Dr. Sutton explored at five different levels and performed a laminecto-my at five different levels as well as excising the tumor at those levels. I find that a reasonable fee for those surgical services is in the amount of $2,000.00 and that the surgeon is additionally entitled to $200.00 for the performance of the myelogram.

Additionally, the medical records clearly support the award in excess of the fee schedule. The claimant, at the time the emergency myelogram was performed, was partially paralyzed and had developed urinary retention. When the myelogram disclosed a block in his thoracic spine at the T-5 level, claimant was removed to the operating room where an emergency lami-nectomy was performed. The medical records disclosed that not only was it necessary to remove a tumor which had encased claimant’s spinal cord but also to remove the lamina and spinous processes at five levels. We agree with the judge’s implicit finding that the surgery was hardly standard or usual.

AFFIRMED.

SHIVERS and SHAW, JJ., concur.


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

text:
    Richard J. PARELLA, Jr., Appellant, v. DAVID JONES PLUMBING, INC., and Fireman’s Fund American Insurance Co., Appellees.
    No. SS-306.
    District Court of Appeal of Florida, First District.
    March 20, 1980.
    Michael A. Edwards, West Palm Beach, for appellant.
    Eugene N. Betts, Fort Lauderdale, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Parella appeals from an order denying him workers’ compensation benefits on his claim resulting from a heart attack. The central issue tried by the deputy commissioner, and resolved against Parella, was whether the incident resulted from “unusual strain or over-exertion not routine” to Parella’s work. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 589 (Fla.1961). While this record contains substantial competent evidence that the heart attack was not causally related to Parella’s work, that evidence is the testimony of an expert medical witness whose opinion was influenced in part by hospital records and other written material which came into the carrier’s possession, which was ordered produced for inspection by Parella’s counsel, and which nevertheless were not produced as ordered. Counsel’s unfamiliarity with the materials relied upon by the witness hampered effective cross-examination of the witness on whose testimony the order necessarily depends. The order will be reversed and the case remanded for further consideration after Parella’s counsel has been afforded an opportunity to examine the records and cross-examine the witness. Cf. Polk County Road Dept. v. Goodwin, IRC Order 2-2976 (June 11, 1976).

REVERSED and REMANDED.

LARRY G. SMITH, J., concurs.

SHIVERS, J., specially concurs.

SHIVERS, Judge,

specially concurring.

I concur in the reversal and remand. The carrier was ordered to produce the records and material and did not do so. Parella’s counsel has a right to peruse these so he may cross-examine.

The case of Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 589 (Fla.1961) indicates that in order for a heart attack such as the one involved in this case to be com-pensable it must (1) be causally related to the employment and (2) result from an unusual strain or overexertion not routine to employment. It is clear to me that preceding his heart attack claimant experienced “unusual strain or overexertion not routine” to his work as required by Victor Wine. Shortly before sustaining his heart attack, the claimant, without assistance, carried two water heaters up a flight of stairs. The evidence revealed that not only had the claimant never been required to perform such strenuous work, but that it was extremely rare for any employee to move the water heaters without assistance.


text:
    Peter HALL, Petitioner, v. DIVISION OF WORKERS’ COMPENSATION, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Respondent.
    No. TT-262.
    District Court of Appeal of Florida, First District.
    March 20, 1980.

      Stephen J. Wein of Battaglia, Ross, For-lizzo, Hastings, Dicus & Campbell, and D. C. Anderson of Anderson & Spangler, St. Pe-tersburg, for petitioner.
    No appearance for respondent.
   PER CURIAM.

By this petition for review, Peter Hall seeks to challengé certain rules promulgated by the Division of Workers’ Compensation pursuant to sections 440.19 and 440.25, Florida Statutes (1979). The order from which Hall brings this petition is a letter informing Hall that his claim does not meet the requirements of Rule 38F-3.10 and that if he does not amend the claim within ten days, the Division or the employer/carrier may file a motion to dismiss.

Section 440.19(2)(d) sets forth the information that must be contained in a claim and states:

“Any claim, or portion thereof, not in compliance with this subsection shall be subject to dismissal upon motion of any interested party, the division, or a deputy commissioner.”

Section 440.25(1) states:

(1) Subject to the provisions of 440.19, a claim for compensation may be filed with the division at its office in the City of Tallahassee in accordance with rules prescribed by the division at any time after a specific benefit becomes due and is not paid, and the deputy commissioner shall have full power and authority to hear and determine all questions in re-sped to such claims. (E.S.)

Under the statutory scheme, it is the deputy commissioner, not the Division, who determines the sufficiency of a claim. The Division’s letter is not final action on Hall’s claim. It only informs Hall' that if he doesn’t file an amended claim, his claim is subject to a motion to dismiss.

We find that petitioner has prematurely sought review. The deputy commissioner has not ruled on the sufficiency of the claim. If the claim is ultimately dismissed by the deputy) Hall can appeal from that order. Therefore the Petition for Review is

DISMISSED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Sharon HENDRIX, as natural mother and guardian of Richard L. Dicks, a child, Petitioner, v. David PINGREE, Secretary of Health & Rehabilitative Services, State of Florida, Respondent.
    No. UU-121.
    District Court of Appeal of Florida, First District.
    March 20, 1980.
    Jeffrey H. Barker, Gainesville, for petitioner.
   PER CURIAM.

This cause is before us upon petition for a writ of habeas corpus and other emergency relief. Petitioner raises issues which may properly be resolved upon a direct appeal which is now pending; such issues are not presently reviewable by way of habeas proceedings. State v. Cochran, 122 So.2d 609 (Fla.1960). Petitioner presents no other factual allegations which would justify relief.

Accordingly, the petition is denied.

MILLS, C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur. '


text:
    NORTHEAST FLORIDA STATE HOSPITAL and Division of Risk Management, Appellants, v. Bonnie Jean HARRINGTON, Appellee.
    No. QQ-332.
    District Court of Appeal of Florida, First District.
    March 21, 1980.
    Anthony J. Salzman of Jones & Langdon, P. A., Gainesville, for appellants.
    No appearance for appellee.
   PER CURIAM.

Paragraph 1 of the decretal portion of the order is amended to read as follows:

Furnish to the claimant such remedial care and attention as the nature of her injury and the. process of her recovery might require, in the manner and for the time provided by law.

Monex Corporation v. Mercado, 379 So.2d 439 (Fla. 1st DCA 1980); Luv Auto Sales v. Murphy, IRC Order 2-3567 (October 10, 1978), cert. dismissed 373 So.2d 459 (Fla.1979). As amended, the order is affirmed.

MILLS, C. J., and ERVIN and SHIVERS, JJ., concur.


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

text:
    George E. WHITE, Jr. et al., Appellants, v. Allah Rakha NASIR et ux., Appellees.
    No. PP-168.
    District Court of Appeal of Florida, First District.
    March 25, 1980.

      Thurston A. Shell, of Shell, Fleming, Davis & Menge, Pensacola, for appellants.
    No appearance for appellee.
   ROBERT P. SMITH, Jr., Judge.

Considering appellees’ bona fides, the location of their building setback violation, its minimal impact upon the value, use and enjoyment of neighboring properties, and the cost of rebuilding appellees’ house to comply with the setback requirement, the chancellor acted within his authority and proper discretion in denying the extraordinary writ of injunction without prejudice to an action for damages, while assessing costs against appellees.

■ AFFIRMED.

BOOTH and SHAW, JJ., concur.