text:
    RAMADA INN, Appellant, v. Kenneth FOSTER, Appellee.
    No. ZZ-111.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Rehearing Denied March 2, 1982.
    Alan Meltzer, Palm Beach Gardens, for appellant.
    Joseph C. Segor and Patrick 0. Helm, Kaplan, Sicking, Hessen, Sugarman, Rosen-thal & De Castro, P.A., Miami, for appellee.
   PER CURIAM.

We affirm the order of the deputy commissioner authorizing continued medical treatment of claimant by Dr. Henry Saiontz, and the performance of a myelo-gram by Dr. Saiontz if needed. We also affirm the order requiring the employer to pay for prescription drugs previously furnished to the claimant at the direction of Dr. Saiontz, and to pay for drugs prescribed in the future.

The employer’s contention that the deputy commissioner should have granted its motion to dismiss claimant’s motions for further medical treatment and payment for prescription drugs, because of lack of specificity as required by Section 440.19(2)(d), Florida Statutes (1979), and Rule 3.10(4)(j-1), Division of Worker’s Compensation, is not well-founded under the facts presented. In a previous order, dated April 3, 1980, Dr. Saiontz was authorized to examine the claimant for consideration of facet blocks and to make recommendations for additional treatment if necessary. On April 8, 1980, Dr. Saiontz duly reported the results of his examination, with copies to the employer and its counsel. The report concluded with the recommendation that should the facet block not be successful claimant should have a myelogram, after which it would be determined whether physical therapy or surgery should be undertaken as treatment.

The claimant was examined and the facet blocks were performed by Dr. Saiontz but they had little or no effect in improving the claimant’s condition. Meanwhile, by letter dated April 14, 1980, the employer informed Dr. Saiontz that he was not authorized to do a myelogram, physical therapy or surgery. Dr. Saiontz responded with a letter to the employer’s counsel, dated April 22, 1980, in which he advised that since the claimant was apparently not helped by the facet blocks, and continued to have numbness and pain down his left leg, he recommended that a myelogram be performed to determine the source of his symptoms. Despite these reports and recommendations, the employer maintained its posture of refusing to authorize any additional procedures or treatment, without the benefit of any further medical examination or investigation with respect to claimant’s need for the same, and without offering or suggesting any alternatives. As a consequence, claimant had to secure the services of his present counsel, who filed the contested motions in September, 1980, and secured a hearing in November, 1980.

The statute and the rule are intended to govern claims, not motions of the kind the claimant was required to file in this case in order to secure further examination and treatment. The possible need for further examination and treatment was clearly contemplated by the previous order of April 3, 1980. The employer was “on notice” of the need for the myelogram in order to com-píete the diagnostic process, and having refused to authorize this procedure, without any medical basis for such refusal, and without offering any alternatives, cannot be heard to complain of lack of notice, nor can it be heard to complain of the order requiring payment of the cost of pain-relieving drugs needed to relieve claimant’s suffering in the interim. See Mayberry v. Sunland Training Center, 404 So.2d 810 (Fla. 1st DCA 1981). As appropriately pointed out by the deputy commissioner, the employer’s actions in this instance appear to run contrary to the self-executing nature of the worker’s compensation act.

AFFIRMED.

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

      . The claimant had actually been referred to Dr. Saiontz, a neurosurgeon, by Dr. Green, the treating physician, for the purpose of performing the facet blocks.

      . We have considered and find without merit appellant’s suggestion that the deputy commissioner should have selected another physician for a “second opinion” before authorizing the myelogram. So far as the record shows, the employer’s first request that claimant be seen by another physician was made at the November 6, 1980 hearing, some six and one-half months after Dr. Saiontz’s letter advising of the necessity for further evaluation of claimant.

      . In an abundance of caution, since Dr. Saiontz was not called as a witness at the hearing, the deputy commissioner allowed the employer’s attorney to take the deposition of Dr, Saiontz subsequent to the hearing and before entering his order. Although this procedure satisfied due process requirements it was far too late, at that point, for the employer to attempt to fulfill its investigative duties by attempting to establish, through Dr. Saiontz, that other possible alternative diagnostic or treatment measures might have proved beneficial to the claimant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raul PALACIO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2471.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Rehearing Denied March 2, 1982.
    Raul Palacio, in pro. per.

      Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant, Raul Palacio, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    PALM TREE CUSTOM MICA, INC., a Florida corporation, Appellant, v. Kenneth E. FORMAN and Carol Forman, Appellees.
    No. 81-1363.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Rehearing Denied March 4, 1982.
    Richard A. Barnett, Hollywood, for appellant.
    Peter B. Weintraub of Shapiro, Leder, Kimler, Entin & Werksman, Deerfield Beach, for appellees.
   PER CURIAM.

Reversed on the authority of Silvers v. DIS-COM Securities, Inc., 403 So.2d 1133 (Fla. 4th DCA 1981); Tomasello, Inc. v. de Los Santos, 394 So.2d 1069 (Fla. 4th DCA 1981). The cause is remanded with instructions to enter a temporary injunction upon the posting of an appropriate bond, the amount of which shall be determined by the trial court.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: CAMPBELL, Judge. SCHEB, Chief Judge,

text:
    Roland ROBERTS, Ernie Averill, Mike Roeder, Wade Scaffe, and Harry Rodda, as the duly elected Board of County Commissioners of Lee County, Florida, and Lavon Wisher, as County Administrator of Lee County, Florida, Appellants, v. NEWS-PRESS PUBLISHING CO., INC., d/b/a Fort Myers News-Press, Appellee.
    No. 81-685.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 1982.
    Rehearing Denied Feb. 23, 1982.

      James G. Yaeger, County Atty., and Nea-le Montgomery, Asst. County Atty., Fort Myers, for appellants.
    Steven Carta of Smith, Carta & Rings-muth, Fort Myers, for appellee.
   CAMPBELL, Judge.

We have before us another episode in the continuing saga of the News-Press Publishing Company versus Lee County or vice versa. The case reaches us by appeal from the trial court’s final judgment granting appellee’s petition for a writ of mandamus directed to the appellants as the county commissioners and county administrator of Lee County, Florida. We reverse.

The final judgment ordered appellants to allow appellee immediate general access to all personnel records of Lee County employees without first complying with the conditions imposed by Resolution 80-3 — 10 of the Board of County Commissioners of Lee County, Florida. That resolution states as follows:

WHEREAS, Chapter 119, Fla.Sta., provides that all state, county and municipal records should at all times be open for the personal inspection by any person; and,
WHEREAS, Chapter 119, Fla.Sta., provides that every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times under reasonable conditions and under the supervision of the custodian of the records or his or her designee; and,
WHEREAS, there are over 1,000 personnel files and/or job applications in the custody of the Lee County Personnel Director of the Lee County Personnel Department; and,
WHEREAS, the Lee County Personnel files and/or job applications contain personal information, educational background, military service records, past employment records and health condition questionnaires and inquiries applicable to each individual employee and job applicant of Lee County; and,
WHEREAS, the Legislature of the State of Florida have provided that County personnel records are public records open for a personal inspection by a person.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA, that:
1. Pursuant to Chapter 119, Fla.Sta., Lee County personnel records and job applications shall be open for a personal inspection by any person pursuant to the following procedure:
A. The request for personal inspection of a County personnel file or job application will be made in person at the Lee County Personnel Department.
B. That upon a request being made for a personal inspection of a Lee County Personnel file, the Lee County Personnel Department shall, to the extent reasonably possible, notify the Lee County employee whose file is being requested to be inspected that a request to view the file has been made and that same will be made available as set forth in subsections
C.and D. hereof. The employee shall have the right to be present at said inspection or examination if she or he so desires.
C. That the Lee County Personnel file and/or job applications shall be made open for examination and inspection no later than twenty-four (24) hours after the request for inspection and examination is made.
D. That said examination of the personnel file and/or job applications will be made in the Lee County Personnel Department and under the supervision of the Lee County Personnel Director or his designee.
E. That all Lee County employees and job applicants be duly advised that job applications and personnel files are available to public inspection.
2. That by this Resolution, the Board of County Commissioners of Lee County, Florida, confirm the foregoing procedure and find that same provides for inspection and examination of Lee County Personnel files and job applications based upon a reasonable time, condition and proper supervision.
3. That the foregoing procedure be adopted, as a part of the Lee County Administrative Code.

Appellants raise only two issues which merit discussion, i.e., whether mandamus was the proper remedy for the relief sought by appellee, and whether the Lee County resolution is in violation of the right of access to public records as provided in section 119.07(l)(a), Florida Statutes (1979).

In addressing the mandamus issue, we note that the stipulated facts below show that appellee had inspected the two personnel records it had requested prior to the filing of its petition in the trial court. In one case, appellee’s reporter requested the record and when he was informed of the conditions of the resolution, he left without objecting and returned at his election several days later and inspected the record in the presence of the employee whose record was being examined. In the other case, the reporter did object when he was informed of the conditions. The employee whose record was sought was in Chicago and expressed a desire to be present at the inspection. However, when the reporter returned at his election several days later, rather than the twenty-four hours permitted by the resolution, the record was produced even though the employee was not present.

Since the only records specifically sought to be inspected were produced prior to ap-pellee’s petition below, appellants argued before the trial court and here that the issue was moot and, therefore, mandamus was not proper. Appellee argued, and the trial court relied on, State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1977), to hold that the underlying issue of the reasonableness of the conditions of the Lee County resolution was not moot and the court had jurisdiction to determine the issue by means of appellee’s petition for mandamus. State ex rel. Miami Herald Publishing Co. v. McIntosh does not appear to us to be controlling. That case concerned a pretrial “gag” order limiting the press in its reporting of a criminal trial. By the time the Florida Supreme Court reached the issue on a petition for certiorari, the trial had concluded. The court determined that whether the issue was moot in that case did not prevent its exercise of jurisdiction on the petition for certiorari. Relying on Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the Florida Supreme Court held the issue “not moot since the controversy between the parties is capable of repetition, yet evading review.” State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d at 911 (Emphasis added.) Here, the issue does not evade review for the appellee has an available remedy by injunction or by way of declaratory judgment. State ex rel. Haft v. Adams, 238 So.2d 843 (Fla.1970). In addition, as was held in City of Winter Garden v. Norflor Construction Corp., 396 So.2d 865, 866 (Fla. 5th DCA 1981), “Mandamus is an extraordinary writ and discretionary remedy and should not be granted when it will achieve no beneficial result such as when the act sought to be compelled has been performed.” The supreme court has said in State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21, 24 (1936):

Rights and remedies are so closely interwoven in the law that it becomes necessary to clearness of thought and the efficiency of judicial procedure to preserve as distinctly as possible the lines of demarcation between the different forms of remedies. Rights are more important than remedies and substantive law is more important than adjective law. But both are important. Remedies are a means to an end. The end is the efficient ascertainment and administration of justice under the law. But this highly desirable end can be best reached when the proper means to arrive at it are adopted.

However, the validity of the Lee County resolution is an important issue to the parties before this court and to the employees of the county. We also anticipate that this is not the end of “the continuing saga” and since the merits of the issues have been ably and adequately addressed by the parties, we are not inclined to dispose of the case on a technical pleading issue. The availability of public records for inspection is and will continue to be a unique issue that deserves an expeditious determination if the public records law is to have meaning. The spirit of the provision of Article V, section 2(a) of the Constitution of the State of Florida, that no cause be dismissed because an improper remedy has been sought, causes us in this unique factual circumstance to proceed on to the question of the validity of the Lee County resolution. In doing so, a look at the facts, history, progression and reasoning of the cases dealing with not only the Lee County situation but with the other cases concerning access to personnel records in general is helpful in understanding our final disposition of this case. We anticipate our disposition will provide prompt access to personnel records and still afford those whose records are being inspected an opportunity to protect any private rights they may have.

The first case to specifically address the issue of public access to personnel records of a public agency was Judge Grimes’ opinion for this court in Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla. 2d DCA 1975). That case grew out of a discussion by the Lee County Board of County Commissioners of the possible termination of employment of a department head and the subsequent decision to place a warning letter in the unidentified employee’s personnel file. In order to identify the employee and examine the warning, the Fort Myers News-Press demanded to examine the personnel files of all the county department heads and was refused. The refusal resulted in a writ of mandamus ordering such an examination be allowed. On appeal, this court considered whether there was any public policy of the state that clearly dictated that personnel records be considered privileged so as to be exempt from chapter 119. This court concluded that there was such a public policy of confidentiality of personnel records so as to prevent general access to all personnel records, as had been ordered by the trial court’s writ of mandamus. In doing so, it recognized that the records of individual employees would be subject to access by anyone having an interest in a suitable proceeding in which the employee was a party. In News-Press Publishing Co. v. Wisher, 345 So.2d 646 (Fla.1977), the supreme court expressly declined to reach the “broader and more difficult question of general access” to personnel records that had been addressed by this court.” Id. at 647. In noting that the trial court’s writ of mandamus ordered inspection of all county personnel records and in quashing this court’s decision, the supreme court modified the trial court’s writ of mandamus to command only that the county administrator produce the name of the county employee involved and the document or documents which were ordered placed in his or her file by the county commission. Interestingly, the supreme court did not require production of that employee’s entire personnel file. In its decision, it recognized a potential problem arising from “[t]he implications of general access to personnel files, and the competing rights of individual privacy.” Id. at 648. The supreme court also expressly refused to “analyze the public records law in its broad aspects to determine how much, if any, of a county employee’s personnel record is exempt from public disclosure.” Id. at 648. In that regard, the public records law in ■section 119.07(3)(c) expressly exempts from disclosure questions and answers of examinations administered for the purpose of, among other things, employment. Thus, from the statute itself we see that it is not only possible but probable for a personnel file to contain exempt or privileged information which an employee might be unable to protect unless the employee is involved in the disclosure process.

The next case which touched on the question of what right of private privilege, independent of statutes or public policy as perceived at common law, may exist in regard to contents of personnel records, was State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1978). The majority in Vea le determined that it was necessary for them to decide the issue which this court addressed in its Wisher decision, but which the supreme court held in News-Press was not necessary; that is, whether nonstatutory public policy considerations may restrict public access to public records. The court in Vea le determined, on the basis of its construction of the then amended section 119.07(3)(a) and pursuant to News-Press, that there was no such “public policy” exemption. However, in his concurring opinion in Veale, Judge Robert P. Smith, Jr., points up that the proper case had not yet been presented to the courts to resolve the latent question of whether, as opposed to “public policy” limitations, any constitutional limitations on disclosure may exist independent of statutes and public policy. Judge Smith there concluded that “it is proper that we reserve our views on the constitutional questions, as did the Supreme Court in News-Press, until a proper case for their resolution is presented.” Id. at 1198.

The supreme court in Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979), next recognized a potential constitutional question. In a footnote to that opinion, the court said, “Whether or not there is a constitutional right of privacy which limits the Public Records Act is not presented, and we do not consider that issue in the present case.” Id. at 422 n.l.

The latest Florida case to consider the issue of possible constitutional rights of nondisclosure is Shevin v. Byron, Harless, Schaffer, Reid & Associates, 379 So.2d 633 (Fla.1980). In this case, the supreme court considered the existence of such rights in regard to the particular facts of that case and concluded on those facts that no such federal or state constitutional rights existed. The supreme court did not finally determine the issue of whether, in the proper factual posture, such constitutional rights of privacy exist so as to protect portions of public records from public access regardless of chapter 119. In that case, Justice Over-ton, and Chief Justice England in concurring and Justice Adkins in dissenting, certainly felt such a right may well exist. The existence of such a right under, the Florida Constitution has probably been laid to rest, however, by the adoption in 1980 of section 23 to Article I of the Florida Constitution. That section expressly provides for a right of privacy but also restricts that right so as not to limit the public’s right of access to public records and meetings as provided by law. The question of such a federal right has not been so clearly decided, though Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981), certainly seems to express that such a right exists. The court there, in responding to an argument based on Wait v. Florida Power & Light Co., states, “Whatever the retroactive impact of Wait upon Florida law, it is clear that the legislature cannot authorize by statute an unconstitutional invasion of privacy.” 633 F.2d 1172, 1176 n.3. When Fad jo is considered in conjunction with Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), both discussed at length in Shevin v. Byron, Harless, Schaffer, Reid & Associates, it seems clear that there is a potential federal constitutional right of disclosural privacy for employees that may exist in addition to the limited statutory exemptions in regard to the contents of personnel files.

If, then, there are federal constitutional rights of nondisclosure as well as statutory exemptions from the public records law, what is the process by which those rights and exemptions are to be exercised? For the most part, the courts have declined to address these issues, relying on the fact that “[n]o employee is before us as a party to raise possible constitutional issues.” News-Press Publishing Co. v. Wisher, 345 So.2d 646, 647. We agree with the statement in the News-Press case that it was there and it is here “not appropriate to analyze the public records law in its broad aspects to determine how much, if any, of a county employee’s personnel record is exempt from public disclosure.” Id. at 648. Yet, if a right or exemption exists regarding a portion of the contents of an employee’s personnel file, how is it ever to be determined which of the contents may be exempt unless the employee is brought into the disclosure process so as to exercise those rights or exemptions and thereby be a party to any enforcement proceeding under the public records law?

Section 119.07(l)(a) provides that those having custody of public records shall permit them to be inspected “at reasonable times, under reasonable conditions.” In issuing its writ of mandamus holding the Lee County resolution unnecessarily restrictive, the trial court relied on the holding of Wait that:

It is clear to us that this statutory phrase refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of the records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.

372 So.2d at 425.

While we agree that no conditions are proper which would tend to deny access, we do find that an enlargement of the Wait statement is warranted. That enlargement would include reasonable regulations that would permit an employee whose file is being sought an opportunity to protect contents of the file that might be the subject of any statutory or constitutional privilege. The public records law recognizes that access may be denied to exempt or privileged matters. Section 119.07(2)(a), for instance, provides that any person who has custody of public records, who asserts that an exemption provided in section 119.07(3) or in general or special law applies, shall delete from the file the items for which the exemption is asserted. Exempted by section 119.07(3) are records which are presently provided by law to be confidential or which are prohibited by general or special law from being inspected by the public. However, such a statutory privilege or exemption or any constitutional right of nondisclosure will most often be personal to the employee and, therefore, subject to being asserted only by the employee and not by the custodian of the file. As we have observed, our courts have often based their refusal to recognize such rights on the fact that it was the custodian and not the employee who was the party before the court. We conclude that a temporary delay in the right of access to personnel records, in order to allow an employee a reasonable time to determine whether to assert any existing right of exemption or confidentiality, seems only logical and reasonable. The Lee County resolution, we find, imposes such reasonable conditions in allowing employees twenty-four hours’ notice and the right to be present at any inspection of their personnel files. The right to be present may well result in the employee waiving any right of privilege or confidentiality, and, therefore, work to the advantage of prompt access to the records. In regard to the reasonableness of the twenty-four hour delay, it is significant that section 119.11 requires that whenever a court orders an agency to open its records for inspection in accordance with the provisions of chapter 119, the agency shall comply with such order within forty-eight hours, unless otherwise provided by the court issuing such order. Thus, it seems that the practical effect of the Lee County resolution may be to lessen the time within which questionable items might be made available for inspection.

We think it is also important to point out that in contrast to certain other public records, personnel records are not kept as a principal function of a public agency. They are merely an internal agency function maintained to facilitate the primary purpose of that particular agency. There is no longer any question that personnel records are public records and, therefore, subject to access. However, in light of the purpose of personnel files and because of the potential rights of the employee in their contents, a short delay in access to allow an employee an opportunity to protect potential rights does not seem to us to be an undue restriction on those seeking access.

We, therefore, conclude that Resolution 80-3-10 of the Board of County Commissioners of Lee County, Florida, does not impose unreasonable conditions under section 119.07(l)(a). We, therefore, quash the writ of mandamus of the trial court and reverse and remand for treatment consistent herewith.

SCHOONOVER, J., concurs.

SCHEB, C. J., dissents with opinion.

SCHEB, Chief Judge,

dissenting.

The narrow question before the court is whether the twenty-four hour delay which may be imposed between a request to examine personnel records and the time the county permits for inspection violates the right of access provided by section 119.-07(l)(a), Florida Statutes (1979). If so, Resolution 80-3 — 10 is invalid.

I agree that we should reach the issue raised here, notwithstanding the fact that News-Press has already inspected the records it requested. Issues over access to public records are susceptible to repetitive occurrence. Therefore, the court should reach these issues and furnish guidance for the future. Moreover, mandamus was a proper remedy for News-Press to pursue since disclosure of public records is a ministerial and not a discretionary function. Mills v. Doyle, 407 So.2d 348 (Fla. 4th DCA 1981).

The reasoning of the majority is persuasive. However, I think the result ■ it reaches is foreclosed by the statutory language of the Public Records Act, as the legislature has preempted the right to legislate in the area of access to public records.

Section 119.07, Florida Statutes, provides:

(1)(a) Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee. . ..
(2)(a) Any person who has custody of public records and who asserts that an exemption provided in subsection (3) or in general or special law applies to a particular record shall delete or excise from the record only that portion of the record for which an exemption is asserted and shall produce for inspection and examination the remainder of such record.

The majority concludes that the twenty-four hour delay does not conflict with the quoted statute because the statute provides that inspection is to be “at reasonable times, under reasonable conditions.” I disagree. I interpret the statutory language merely to limit examination of public records to regular business hours in the presence of a qualified person. In Wait v. Florida Power and Light Co., 372 So.2d 420, 425 (Fla.1979), the supreme court noted that the statutory language “at reasonable times, under reasonable conditions,” does not refer to conditions which must be fulfilled before review of public records is permitted. If a twenty-four delay in Lee County is permissible, longer delays in other counties could be upheld. This would lead to a lack of uniform accessibility to public records. Moreover, it would have a chilling effect on the right of the press to promptly examine public records.

As the majority points out, personnel records are public records. And while the supreme court in News-Press Publishing Co. v. Wisher, 345 So.2d 646 (Fla.1977), declined to determine the question of general access to personnel records, the Fourth District in State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1978), has addressed the issue. In Vea le the Fourth District concluded that the legislature foreclosed any judicial exemptions to the disclosure and examination of personnel records since the legislature in 1975 changed section 119.07(2)(a) to permit only those exemptions “provided by law.” This view was endorsed by the supreme court in Wait.

Moreover, in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633 (Fla.1980), the court held that there was no state or federal right of privacy in respect to disclosure of papers prepared by a consultant on a confidential basis where the purpose was to assist a municipal utility in filling a managerial position. After Shevin, as the majority notes, any claim of state constitutional right of privacy in public records was foreclosed by the adoption of the amendment of section 23, Article I, Florida Constitution.

Resolution 80-3-10, to the extent it permits a twenty-four hour delay, conflicts with section 119.07(l)(a), and is invalid. Therefore, I would affirm the judgment. Accordingly, I respectfully dissent.


text:
    Eddie GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-395.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Rehearing Denied March 8, 1982.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

There is no showing in the record that the court abused its discretion in denying defendant’s oral motion for continuance of the trial. Magill v. State, 386 So.2d 1188 (Fla.1980); Lyles v. State, 312 So.2d 495 (Fla. 1st DCA 1975); Fla.R.Crim.P. 3.190(g).

Appellant’s split sentence of four years of imprisonment followed by four years of probation is invalid, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), but upon remand for correcting the sentence, the court may, as one of its options, withdraw the sentence altogether and impose a new sentence not to exceed eight years imprisonment (with credit for time served). Flynn v. State, (Fla. 1st DCA 1981) (case no. AE-15, opinion filed October 30, 1981); Alexander v. State, 402 So.2d 485 (Fla. 2d DCA 1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981). In light of this construction placed on Villery, supra, which could result in the imposition of a lengthier prison sentence, the appellant may wish to decline correction of his sentence.

The conviction under review is affirmed; the sentence under review is reversed and the cause is remanded to the trial court for resentencing unless the defendant withdraws his request for resentencing, in which event the sentence under review shall stand affirmed.


author: BASKIN, Judge.

text:
    Robert COLLINS, D.O., and Sharyn Collins, his wife, Appellants, v. George Q. HOLLAND, as Personal Representative of the Estate of George R. Holland, deceased, Florida Insurance Guaranty Association, as Ancillary Receiver for Consolidated Mutual Insurance Company, Appellees.
    No. 81-560.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Rehearing Denied March 3, 1982.

      Schwartz, Klein & Steinhardt and Jay S. Weiss, Miami, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

Dr. Collins and his wife sued George Holland to recover for injuries sustained when Holland’s dog bit Dr. Collins while he shopped in Holland’s furniture store. Because appellants failed to substitute the personal representative following Holland’s death, the case was dismissed. Dr. Collins then refiled his claim naming the personal representative of Holland’s estate; his wife pursued her derivative claim. In response to appellees’ motion for stay, predicated upon appellants’ failure to pay the costs’ judgment, appellants paid $780.95, the costs incurred in the initial action.

Appellees then filed an Offer of Judgment which appellants accepted. Dr. and Mrs. Collins asked the court to tax costs in their favor, including reimbursement of the costs they had been required to pay in connection with the first proceeding. The trial court granted the motion only insofar as it pertained to the $82 in costs incurred in the second action.

We reverse the order denying appellants’ request for reimbursement upon our holding that the costs of the initial lawsuit constituted “accrued costs” within the meaning of Florida Rule of Civil Procedure 1.442:

At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. An offer of judgment shall not be filed unless accepted or until final judgment is rendered. If the adverse party serves written notice that the offer is accepted within ten days after service of it, either party may then file the offer and notice of acceptance with proof of service and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by further proceedings, the party adjudged liable may make an offer before trial if it is served within a reasonable time, not less than ten days, before beginning of the hearing or trial to determine the amount or extent of liability. This rule shall not apply to actions or matters related to dissolution of marriage, alimony, nonsupport or child custody. (Emphasis added).

Costs pertaining to discovery materials are generally recoverable by the prevailing party. Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So.2d 59 (Fla. 3d DCA 1965); § 57.041, Fla.Stat. (1979). To penalize a successful litigant for accepting an offer of judgment would controvert the purpose of Florida Rule of Civil Procedure 1.442, favoring settlements. White v. Cowles Florida Broadcasting, Inc., 361 So.2d 821 (Fla. 1st DCA 1979).

Reversed and remanded for further proceedings.


text:
    Carol L. CIRIGLIANO, a single woman, Appellant, v. David H. SINGER and Spiegel and Singer, a partnership, Appellees.
    No. 81-709.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Rehearing Denied March 1, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Henry I. Smyler, Miami, for appellant.
    Maland & Turetsky and Robert C. Ma-land, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958).


author: LETTS, Chief Judge.

text:
    Peter FUNDARO, Appellant, v. CANADIANA CORPORATION, a Florida Corporation, Appellee.
    No. 80-1997.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Rehearing Denied March 9, 1982.

      Randolph Braccialarghe and Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant.
    Joel D. Kenwood of Baskin & Sears, Boca Raton, for appellee.
   LETTS, Chief Judge.

An individual co-defendant appeals the trial court’s refusal to set aside a default entered in favor of a second corporate co-defendant, the former having failed to answer a cross claim filed against him by the latter. We reverse.

The plaintiff in the original complaint named both the individual, who is the appellant before this court, and the corporate appellee as co-defendants; however, the individual co-defendant was never served with summons on the main complaint. Thereafter the corporate co-defendant cross claimed against the individual co-defendant and once again there was no summons and service was instead supposedly effected merely by a certificate within the four corners of the cross claim that same had been “furnished” to the individual co-defendant. As has been already noted, the individual co-defendant never answered the cross claim and that omission occasioned the default which resulted in the final judgment for $5,040 which is now before us on appeal.

Disposing first of the failure to serve a summons relative to the original complaint, we are of the opinion that the individual co-defendant should not be heard to complain. Not only did he file a motion to dismiss it (not directed to insufficiency of process or jurisdiction), but in addition, upon denial of the motion to dismiss, he thereafter filed an answer. By so doing, any failure of the service and any jurisdictional defects were waived. Krasnosky v. Krasnosky, 282 So.2d 186 (Fla. 1st DCA 1973) and First Wisconsin National Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla.2d DCA 1977).

There remains the question of the failure by the corporate co-defendant to serve a summons on the individual co-defendant on the cross claim filed by the former against the latter.

At the outset we are surprised by a paucity of Florida case law which flatly tells us whether or not cross claims against co-defendants require service by summons, although an old Supreme Court holding in Lovett v. Lovett, 112 So. 768, 775, 776 (Fla.1927) might appear to prescribe it. Florida Rules of Civil Procedure 1.080 and Section 48.031(1), Florida Statutes (1979) both call for service of summons on a party of all “initial” pleadings. In our view, a cross claim is an “initial” pleading as to the subject matter of the cross claim and this view is certainly bolstered by the adoption, in the Florida Rules of Civil Procedure, of Form 1.903 entitled “Cross Claim Summons.” Accordingly, we hold that cross claims against co-defendants require service by summons unless that requirement is waived by subsequent conduct of the cross defendant which as a practical matter we recognize is often the case. We expressly limit this holding to cross claims.

Having established the necessity for service, we once again must answer the question of whether the service required here was waived. We think not.

The individual cross defendant filed no answer to the cross claim and filed no pertinent pleading whatsoever until the eorpo-. rate cross plaintiff gave notice of taking his deposition. At that point the individual cross defendant filed a motion for a protective order because he was traveling out of state for a medical check-up. Pursuant thereto the deposition was reset and he did show up on the alternate date. However, there was nothing whatever to indicate that the deposition was anything other than- on the main complaint. Any party to a law suit may take the deposition of any other party (Rule 1.310(a)) and any party who is given reasonable notice in writing (Rule 1.310(b)) must show up (Rule 1.380(d)). In the absence of some specific notification that the deposition would be limited to the cross complaint, the individual co-defendant would be subject to sanctions, not to mention expenses and attorneys fees, if he failed to show. As a consequence his appearance for a deposition at the instance of a corporate co-defendant is not, under the facts of this case, deemed by us to be a waiver. We must confess that common sense would indicate that the deposition would, and apparently did, include much enquiry about the subject matter of the cross claim. That fact alone, however, is insufficient to cause us a change of heart.

The corporate co-defendant also argues that, because the individual co-defendant had actual knowledge of the filed cross claim, he had an affirmative duty to file a motion to quash service rather than lie low in the weeds until a default was to be entered. To this end we are cited to Nationwide Mutual Fire Insurance Company v. Holmes, 352 So.2d 1233 (Fla. 4th DCA 1977). However, close examination of that case does not appear to substantiate such a contention and we reject it.

Finally the corporate co-defendant argues that at the hearing on the motion for default the individual co-defendant did not raise the inadequacy of service of process. However, we have no transcript of that hearing. Furthermore we take note of our Supreme Court’s holding in McIntosh v. Wibbeler, 106 So.2d 195, 197 (Fla.1958) wherein it was said:

It is axiomatic that where there is no service of process sufficient to sustain the jurisdiction of the court, mere negligence or lack of due diligence (even if such is assumed in the instant case) on the part of a party at a later stage of the proceedings cannot correct the fault, nor can lapse of the appeal period validate a judgment in these circumstances.

Accordingly, it is our view that the trial court was in error in failing to set aside the default and this cause is reversed and remanded in accordance herewith.

REVERSED AND REMANDED.

GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . In his treatise on Florida Practice and Procedure even Trawick, in contrast to his usual unequivocal style, comes to no definite conclusion on service of cross claims by co-defendants but notes that “conservative practice requires issuance of cross claim process ... . ” Trawick’s Florida Practice and Procedure § 12-6 (1977).


author: CAMPBELL, Judge.

text:
    GENERAL TELEPHONE COMPANY OF FLORIDA, Appellant, v. David Cline CHOATE, Appellee.
    No. 81-188.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1982.
    Rehearing Denied Feb. 24, 1982.

      F. Ronald Fraley, Charles P. Schropp and Raymond T. Elligett, Jr., of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellant.
    Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., and Larry Klein, West Palm Beach and McKeown & Gamot, Palm Beach, for appellee.
   CAMPBELL, Judge.

Appellee, a lineman, was awarded damages for personal injuries he sustained when he fell from a power pole and his back struck appellant’s telephone pedestal terminal located next to the pole. The record is devoid of any evidence to support liability on the part of appellant to appellee for his injuries based solely on the location of appellant’s pedestal terminal in relation to appellee’s employer’s power pole as constituting the proximate or legal cause of those injuries. We, therefore, reverse the jury verdict and direct entry of a directed verdict as moved for by the appellant.

David Cline Choate had been a lineman for Peace River Electrical Cooperative (PREC) for eighteen years before the accident. When a power outage was reported, Choate was assigned to correct the problem. After clearing the area around PREC’s pole, Choate used climbing hooks and a safety belt to ascend the pole to a height of fifteen feet. A gust of wind blew Choate from the pole and, as he fell, he struck appellant’s pedestal terminal which was less than three feet from the “working side” of PREC’s pole.

Choate sued appellant General Telephone (GTE) for his injuries, alleging that it had been negligent in placing the pedestal too close to the pole from which Choate fell. At trial appellee’s expert witness testified that if the pedestal in this case had been placed three feet away from the adjacent power pole, Choate would not have struck it when he fell. In our opinion, the latter assumption is sheer speculation. If the pedestal had been located three feet away instead of where it was, Choate, instead of striking his back and being injured, might have struck his head and been killed.

Appellant’s safety director testified as an expert witness that of the falls incurred by its employees, there were no recorded instances of anyone striking a pedestal terminal. Appellant also presented testimony by a representative of Southern Bell Telephone that pedestals are usually placed six inches to one foot away from poles so they will be less likely to be knocked over by lawnmowers or other vehicles. Finally, an employee of Florida Power & Light was called to confirm that, at the time the pedestal was installed, the prevailing practice was to place such pedestals approximately one foot away from the adjacent pole. It was also this witness’ opinion that a pedestal would constitute no more of a hazard to a falling lineman than the ground would.

It is not necessary to indulge in the process of speculation as to what would have been the safest distance for appellant’s terminal to have been located in relation to PREC’s pole. Appellee’s complaint contains but a single allegation of negligence on the part of appellant. That allegation was that appellant

negligently placed the aforesaid telephone pedestal terminal in a position which the Defendant knew or should have known was dangerous and constituted a hazard to service linemen, such as the Plaintiff, who must climb said electrical power pole and further, that the positioning of the aforesaid telephone pedestal terminal was in violation of the standards of the industry which the Defendant knew or should have known existed, which required that said telephone pedestal terminals be located no less than four (4) inches from the adjacent power pole, or in a larger arcing circle, no closer than six (6) feet from the adjacent power pole. (Emphasis added.)

Appellant presented unrebutted evidence that PREC’s pole which appellee was climbing at the time of the accident was not the original pole which was in place when the pedestal was installed. The evidence shows that when replacing a pole it is common practice to erect the new pole next to the original one and then transfer the lines to the new pole. Thus, there is no evidence that the distance between the present pole and the pedestal is the same distance as it was from the pedestal to the original pole when appellant installed the pedestal. Therefore, there is no evidence to support appellee’s sole allegation that appellant “placed” or “positioned” its terminal adjacent to PREC’s pole. On the contrary, the sole evidence is that the pole appellee was climbing was “placed” or “positioned” by PREC adjacent to appellant’s previously installed terminal.

According to the record, the pedestal was installed adjacent to the original pole on April 3, 1969, and the adjacent pole was replaced with a new pole on June 3, 1970. The record fails to denote the location of the original pole. Recognizing the practice testified to of leaving the original pole in place until the lines may be transferred to the new pole, there is no evidence to show what the distance separating the two was in 1969.

Nevertheless, even if the evidence showed that the new pole was placed the same distance from the pedestal, appellant would still not be negligent because the pedestal was not the proximate cause of Choate’s injuries. Determination of proximate cause should rest on whether the defendant should be under a duty to protect the plaintiff against the event which did in fact occur. W. Prosser, Law of Torts 244 (4th Ed. 1971). If the defendant has created only a passive, static condition which made the damage possible, the defendant should not be liable. Id. at 247. ■ See Note, Tests of Causation and The Florida Jury Instructions — The Current Conflict and the Need' for a Change, 32 U.Fla.L.Rev. 308, 320-24 (1980).

In Florida, proximate cause exists only when there is a natural, direct and continuous sequence between the defendant’s act and the plaintiff’s injury so that it may be said that but for the act the injury would not have occurred. Sardell v. Malanio, 202 So.2d 746, 747 (Fla.1967); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960) aff’d 127 So.2d 441, 443 (Fla.1961). See also Greene v. Flewelling, 366 So.2d 777 (Fla.2d DCA 1978).

In Biltmore Terrace Associates v. Kegan, 130 So.2d 631 (Fla.3d DCA 1961), the Third District Court of Appeal reversed a jury verdict for a minor who sustained injuries when he dove from a four foot wall owned by the defendant hotel and struck the ocean bottom in very shallow water. The wall was constructed to separate the hotel’s pool area from the ocean. Due to the extreme weather conditions, the pool was closed and no lifeguard was posted. Even though the hotel was aware that guests had been known to dive from the wall into the ocean, the district court of appeal noted that the wall was built in order to bar ingress to the ocean and not for diving purposes. There was no allegation that there was negligence in the wall’s construction and the court held that the hotel owner had no duty to foresee the plaintiff’s unpredictable actions. The court reasoned that, “To require a warning under such circumstances would be as ludicrous as requiring a sign on the top of an office building reading ‘don’t jump off here.’ ” Id. at 634.

This court considered a similar case when a twelve-year-old mistakenly thought she was trapped in a public restroom and in attempting to “escape”, tried to pull herself up a concrete block wall which caused a portion of the wall to fall and strike her foot. Ramadan v. Crowell, 192 So.2d 525 (Fla.2d DCA 1966). Reversing a jury verdict for the plaintiff, this court noted there was no finding that the wall had been negligently maintained and concluded: “[T]he mere happening of an accident on their premises is not enough to sustain the plaintiffs’ burden to prove negligence.” Id. at 527. Compare Burson v. Gate Petroleum Co., 401 So.2d 922 (Fla. 5th DCA 1981) (Selling beer to a minor was not the foreseeable proximate cause for injuries sustained when the purchasing minor shared the beer with the driver of a motor vehicle which subsequently struck the plaintiff.) and Rio v. Minton, 291 So.2d 214 (Fla.2d DCA 1974) with National Airlines, Inc. v. Edwards, 336 So.2d 545 (Fla.1976) (hijacked plaintiff’s injuries from consumption of Cuban food and beverages too remote to be recoverable) and Brown v. City of Alachua, 344 So.2d 1326 (Fla. 1st DCA 1977).

In General Telephone Co. of Florida v. Mahr, 153 So.2d 13 (Fla.2d DCA 1963), this court made it clear that, in order to establish proximate cause, the consequences of the defendant’s act must be “natural and probable” and not just possible. Id. at 16— 17. See Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148 (Fla.1949). Mr. Mahr sued the utility for the negligence of its employees in leaving a gasoline can and open flame pots at a barricade around a manhole. The plaintiff’s injury occurred when a motorist crashed through the utility’s barricade and caused the gasoline can to explode. See also Memorial Park Inc. v. Spinelli, 342 So.2d 829 (Fla.2d DCA 1977); Crosby v. Manly Construction Co., 193 So.2d 11 (Fla.2d DCA 1966). See generally Restatement (Second) of Torts, § 430 (1966) (necessity of adequate causal relation).

The appellee’s theory of appellant’s negligence is necessarily based on the foreseeability by the appellant that someone falling from the utility pole would be injured by striking the approximately four inch square pedestal rising approximately three feet out of the ground. To render appellant liable on such a theory would require the appellant to foresee appellee’s falling from directly above the pedestal. From the evidence, it appears that it could be foreseeable that a lineman would have to work on any or all sides of the pole depending on where the problem requiring the work was located. Therefore, a person working on the pole could fall from wherever he was working which would make the pedestal a hazard no matter where it was located in close proximity to the pole. Since the very nature of the use of a pedestal terminal requires it to be located somewhere in close proximity to the pole, the choice of that location is not rendered negligent simply because someone happened to fall from directly above it and be injured.

Finally, even if the record established the exact location that appellant placed its pedestal terminal in relation to PREC’s pole, the record contains no evidence as to any standard of care by which appellant’s placement of the terminal should be evaluated. The trial judge instructed the jury that appellant was subject to requirements of the National Electric Safety Code that electrical and communication equipment shall be installed so as to reduce hazard to life as far as practicable. That, however, does not establish any definitive standard of care by which appellant might be held liable to ap-pellee. Actionable negligence is based on the failure to abide by a reasonable standard of care. Since the record establishes no standard applicable to appellant, the case should not have been allowed to go to the jury.

We, therefore, conclude that appellant should not be held liable to appellee merely because he struck an immovable pedestal instead of the ground. Accordingly, the judgment for appellee is reversed and this cause remanded with instructions to the trial court that appellant’s motion for directed verdict should be granted.

OTT, Acting C.J., concurs.

RYDER, J., dissents.

      . According to the record, a lineman will climb the pole on the opposite side from where repairs are needed, or the working side. Notably, the evidence shows that most falls occur when climbing.

      . The Florida Supreme Court seems to have modified the traditional “but for” test to the more modern “substantial factor” test in cases with separate concurrent causes of the injury. Note, supra, at 324.


author: ERVIN, Judge.

text:
    Melvin GREER, M.D.; Edward Valenstein, M.D.; David Yocum, M.D., and Board of Regents of the State of Florida, Appellants, v. John E. MATHEWS and Gwendolyn G. Mathews, his wife, Appellees.
    No. AC-376.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    Rehearing Denied March 1, 1982.

      L. William Graham of Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates, Gainesville, for appellants.
    Beckham & McAliley, Joel D. Eaton and Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for appellees.
   ERVIN, Judge.

The appellants urge in this interlocutory appeal that the trial court erred or abused its discretion in transferring venue to Leon County as to a claim filed against the State of Florida in Duval County, while at the same time in refusing to transfer separate counts against co-defendant state employees in their individual capacities. We reject these contentions and affirm the trial court’s order.

This appeal involves two related questions of first impression:

1. Does the state’s common law venue privilege extend to actions against state employees sued in their individual capacities where the state agency is also joined in such actions and the state agency is charged with vicarious liability for the actions of its employees?

2. Did the lower court abuse its discretion in refusing to grant the state employees involved a change in venue, while granting the change to the state agency?

At the outset, we acknowledge that the state’s venue privilege remains well entrenched in Florida, notwithstanding the enactment of Section 768.28, Florida Statutes (1975), a statutorily qualified waiver of sovereign immunity. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978). However, neither party has cited any authority assisting us in resolving the question of whether the venue privilege extends to state employees when sued in their individual capacities. Nevertheless, it is our view that recent developments in the closely related, common law privilege of sovereign immunity parallel the scope of the state venue privilege. This conclusion is evident from a reading of District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla.1980), in which the Florida Supreme Court determined that a plaintiff could bring a common law action in negligence against a government employee individually without invoking Section 768.28. Thus, under Tal-madge, one could sever an action against a government employee from one against the government itself, notwithstanding that Section 768.28(9) then required the state to satisfy judgments entered against its employees.

Although the plaintiff in the instant case seeks to recover against the state under a theory of respondeat superior, we apply the same principles of severance in the venue context. Because we find that an action against a public employee has a separate and distinct character based on common law, tort principles, we fail to see how the state’s venue privilege could apply to such an action.

The 1980 amendment to Section 768.28(1), Laws of Florida, Chapter 80-271, § 1, appears to contradict our analysis in that the amendment prohibits a party from suing a government employee individually for simple negligence. Nevertheless, that amendment cannot constitutionally be applied retroactively, Bryant v. School Board of Duval County, supra, fn. 2; State, Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981), as the alleged tort in the instant case occurred in 1979.

The state additionally contends that the venue privilege should apply to actions against state employees because the state is obliged to defend its employees. We do not find that argument convincing. Neither Sections 111.07 nor 768.28(9) mandate the state to defend its employees. The former only gives the state discretionary authority to defend its employees, while the latter only requires the state to pay directly a judgment against its employees.

Finally, due to the effect of Tal-madge, the trial court did not abuse its discretion in splitting venue between Duval and Leon County. When multiple defendants are involved, and a state defendant exercises its venue privilege, it is within the trial court’s discretion whether to transfer other defendants. Wagner v. Nova University, Inc., 397 So.2d 375 (Fla. 1st DCA 1981). Moreover, although the state may be inconvenienced if it chooses to defend its employees in a forum different from where it is sued, we note that it was the state’s motion to change venue which induced the court to sever the case in the first instance. In so deciding, the trial court was faced with offsetting considerations for not transferring venue as to state employees, such as the fact that most of the witnesses and the parties involved in the tort claim are from the Jacksonville area.

Accordingly, the trial court’s ruling is affirmed.

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

      . The established law in Florida is that the venue of any action against the state, or its agencies, etc., lies in the county where the government maintains its principal headquarters, and in the absence of waiver or exception, the right to be so sued is absolute. See Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977).

      . Note also that it remains an open question whether the amendment may be applied prospectively due to the possibility that it may unconstitutionally deny access to the courts. Bryant v. School Board of Duval County, 399 So.2d 417, 422 (Fla. 1st DCA 1981).


text:
    CITY OF MIAMI, Appellant, v. William Everett MARCH and Carla March, his wife, and Luis Manuel Lopez, Appellees.
    No. 80-602, 80-927 and 80-928.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied March 3, 1982.

      George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, George Vogelsang, Miami, for appel-lees.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

The City of Miami appeals from an adverse declaratory judgment entered below ordering it to indemnify two of its employees held liable on a tort judgment. The employees sued each other for simple negligence based on an automobile accident arising out of and in the course of their employment with the City of Miami as police officers. The employees had duly received worker’s compensation benefits from the City of Miami on said accident. Neither employee sued, and admittedly could not have sued, the City of Miami in this negligence action as same was barred by the City’s worker’s compensation immunity. § 440.11(1), Fla.Stat. (1977). The employees, instead, chose litigation choice # 3 as stated in District School Board of Lake County v. Talmadge, 381 So.2d 698, 703 (Fla.1980), to wit: a suit against the other “employee alone, without invoking section 768.28, under traditional legal principles regarding tort actions against public employees,” Id. at 703, and rejected litigation choices # 1 and # 2 under Talmadge, supra, which would have made the City a party defendant in the action under Section 768.28, Florida Statutes (1979). As the City of Miami was not and could not be a party to this action, it plainly follows that it cannot be held liable on the judgment entered in the action. See also Seaboard Coastline R. Co. v. Smith, 359 So.2d 427 (Fla.1978).

We, accordingly, reverse the declaratory judgment under review and remand to the trial court with directions to enter a declaratory judgment stating that the City of Miami has no legal obligation to pay on the tort judgment entered against the said employees in this cause. We, also, reverse the order of equitable distribution entered in this cause and under review by this appeal, as the City of Miami was not entitled to any worker’s compensation distribution payment herein. We, also, dismiss the appeal by the City of Miami as to the tort judgment entered in this cause as the City had no standing to appeal said judgment.

Reversed and remanded.

      . Parenthetically, it should be noted that this suit could not be brought in the future as Section 440.11(1), Florida Statutes (1977) — the statute applicable to the accident in this cause — was amended effective July 1, 1979, to give worker’s compensation immunity “to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter.” § 440.-11(1), Fla.Stat. (1979). This amendment, however, applies only to claims for injury arising out of accidents occurring on or after July 1, 1979. Ch. 79-40, § 127, Laws of Fla. As the accident in the instant case occurred prior to July 1, 1979, the amendment was inapplicable to the instant case and the suit herein was properly entertained in the trial court.


author: DANIEL S. PEARSON, Judge.

text:
    Joseph CAVALLUZZI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-679.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied March 9, 1982.

      Ronald S. Guralnick, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BASKIN and PEARSON, DANIEL S. and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the judgment of conviction entered upon the defendant’s nolo contendere plea reserving his right to appeal the denial of his motion to suppress contraband found in an airport search of his suitcase. We hold that (1) no stop (that is, temporary seizure) of Cavalluzzi occurred when the police officers approached him, identified themselves, asked if he would talk to them, and asked to see his airline ticket, State v. Login, 394 So.2d 183 (Fla. 3d DCA 1981); State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981); United States v. Fry, 622 F.2d 1218 (5th Cir. 1980); see also Schlanger v. State, 397 So.2d 1028 (Fla. 3d DCA 1981), and the observation of the claim check number for the suitcase obtained when Cavalluzzi voluntarily turned over his airline ticket was not tainted by any subsequent illegality,; (2) where, as here, the defendant makes no claim that the time during which his suitcase was removed from the airline’s immediate control extended beyond the scheduled departure of his flight so as to constitute an unlawful seizure of the suitcase, State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981); see also Young v. State, 394 So.2d 525 (Fla. 3d DCA 1981); compare United States v. West, 495 F.Supp. 871 (D.Mass.1980) (reasonable suspicion that bag contained narcotics justified “investigative stop” of bag past flight departure time), the police officers’ removal without search of Cavalluzzi’s luggage from the airline baggage area did not interfere with his reasonable expectation of privacy, State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980), whether the distance of the removal was merely from a cart to the airport floor, see State v. Ricano, 393 So.2d 1136 (Fla. 3d DCA 1981); State v. Mosier, supra, or, as in the present case, from the baggage area to the concourse of the airport ; (3) the dog sniff of the suitcase after its removal from the baggage area was not a search, State v. Ricano, supra; State v. Mosier, supra; Harpold v. State, 389 So.2d 279 (Fla. 3d DCA 1980); State v. Goodley, supra, and the dog’s “alert” on the suitcase provided probable cause to open it and search its contents, Harpold v. State, supra; State v. Goodley, supra.

Affirmed.

      .It appears that the state and the court understood that the defendant’s counsel intended to reserve the right to appeal, although the express reservation does not appear of record. On two occasions after the plea was entered the State and the court remained silent in the face of defendant’s counsel’s announcement that he had expressly reserved the right to appeal at the time of the plea. By treating the right of appeal as being reserved, and according the defendant the right to appeal, we avoid the corollary problems of the court’s failure to advise the defendant when accepting the plea that “he gives up his right to appeal all matters relating to the judgment,” Florida Rule of Criminal Procedure 3.172(c)(iv), and the State’s failure to comply with the negotiated agreement.

      . Cavalluzzi’s primary argument is that he was “stopped” based on profile characteristics that did not amount to a founded suspicion. Our holding that Cavalluzzi was not stopped makes it unnecessary for us to address this argument.

      . Before any encounter with the defendant, the officers knew.the description of the defendant’s luggage, the identity of the airline with which it had been checked, and the fact that the defendant was taking the National flight to Newark. This information may have been sufficient to lead independently to the suitcase without reliance on the claim check number. See State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981), and cases cited therein. The record before us, however, is insufficiently developed for us to conclude that the independent source doctrine is applicable.

      . In State v. Goodley, supra at 1182, this court said: “... a traveler who checks his luggage has no knowledge, and in fact, no real concern as to precisely where his bag may be located within the airline’s custody at any given time.” We read this as the equivalent of saying that such traveler has no privacy interest which is offended by movement or relocation of his surrendered luggage.

      . The apparent reason for taking the suitcase to the concourse was to bring it to Cavalluzzi, who, according to the police officers’ belief, had consented to a search of the suitcase in his presence. Since after Cavalluzzi gave his consent, he went into shock and passed out, the officers, after bringing the suitcase to the concourse, decided not to rely upon the consent and summoned a narcotics dog. Therefore, we need not discuss the defendant’s argument that his consent was invalid.


text:
    Tania GUTIERREZ and Jose Gutierrez, her husband, Appellants, v. Marvin WEINSTEIN, Robert L. Grover and Sherwin Stauber d/b/a Grover, Weinstein & Stauber, Appellees.
    No. 81-564.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied March 2, 1982.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

We affirm the summary judgment entered by the trial court. We note that a court order is entitled to a presumption of correctness. See Phillips v. Phillips, 146 Fla. 311, 1 So.2d 186 (1941). Appellees’ reliance upon the judgment was shown by the record to have been the result of a mutual mistake, which was later corrected by the court, and not the result of negligence.

Appellants’ remaining' points lack merit.

Affirmed.


text:
    Wesley H. LITTLE, a/k/a Wesley Hugh Little, Appellant, v. The STATE of Florida, Appellee.
    No. 81-827.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied March 2, 1982.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fla.R.Crim.P. 3.191(d)(3)(H).


text:
    The STATE of Florida, Appellant, v. Keith James LOUTTIT, Appellee.
    No. 81-1370.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied March 10, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Harry W. Prebish, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. See St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978).


text:
    Dennis HAMILTON, Margaret Hamilton, and Hamilton Machine Corporation, Appellants, v. HAMILTON STEEL CORPORATION, etc., et al., and National Bonding and Accident Insurance Company, Appellees.
    No. 81-307.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Rehearing Denied March 4, 1982.

      Dianne Weaver of Weaver & Weaver, P. • A., and Nancy Little Hoffmann, P. A., Fort Lauderdale, for appellants. ™
    Alan C. Brandt, Jr., and M. Daniel Hughes of Chappell, Brandt & Gore, P. A., Fort Lauderdale, for appellees.
   LETTS, Chief Judge.

This is an appeal from a trial court ruling that, where single counsel represents multiple defendants and some of those defendants invoke the attorney-client privilege, neither the single counsel, nor any of the other defendants (even those who waive the privilege) may testify about an alleged privileged communication concerning authority and assent to settle a law suit. We reverse.

Several adult children went into the boat building business, but could not function without a performance bond. To obtain one, they, or one of them, either forged, or obtained, their parents’ guarantee of the bond issued through the Insurance Company. The venture was unsuccessful and the Insurance Company brought suit against the parents, the children and their respective corporations.

At an early hearing, the single defense counsel, who purportedly then represented all the defendants, announced a settlement and expounded at length to the judge on quite a complex solution. Its bottom line, since the children were without funds, called for the parents to be responsible for a $100,000 pay off secured in part by a mortgage and note on their homestead. One of the children was present at this motion and acquiesced to the settlement. At the conclusion of that hearing, counsel agreed to order and file a transcript of the proceedings, same to stand in place of an order on the stipulation. As a consequence no formal order was ever entered.

Thereafter the parents allegedly discovered the existence of the settlement for the first time and filed affidavits denying all knowledge of it and sought to have it set' aside. There is an abundance of other facts, motions and orders not deemed essential to our purpose which all culminated in the Insurance Company filing a motion to compel and for entry of a judgment based on the settlement, all defendants by now represented by separate counsel. More motions and hearings followed including an attempt to take single counsel’s deposition, whereat all the children invoked the attorney-client privilege and the deponent refused to testify even though the parents waived their right to the privilege. All this resulted in the trial court’s ruling that:

“the manifest weight of available authority precludes an attorney representing two or more clients from testifying about privileged communications over the objection of one or more of his former clients .... That absent a unanimous waiver of the attorney-client privilege by all parties defendant . . . none of the parties may testify about communications within the embrace of the . . . privilege.”

Pursuant thereto the trial court entered judgment on the settlement in favor of the Insurance Company, intoning that it was “inequitable to this set of circumstances” to place the burden of establishing assent to the settlement on the Insurance Company and that the case of Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977), which holds that such a burden is placed on the party asserting the validity of the settlement, “doesn’t apply to this set of facts.” As the court further noted “it can’t be right that [it] has the burden yet gets the door slammed in [its] face.” As the court also noted, it was simply not fair to place the burden of establishing assent on the plaintiff Insurance Company, yet permit the defense to frustrate that burden by invoking the privilege so that the Insurance Company could not carry it. We agree with this last reasoning, but adopt a different viewpoint as to the solution. To us it is not Nehleber v. Anzalone, supra, which does not apply here, for we think it does, it is the attorney-client privilege which is inapplicable.

The all important deposition at which the former single counsel refused to answer any questions relative to his authority to settle because the children invoked the privilege, although the parents waived it, took place after the adoption of Florida’s Evidence Code. We have read Section 90.-502(4)(c) and (e), Florida Statutes (1979) and are of the opinion that both of these remove the privilege under the facts of this case.

Subsection (4)(c) states: “there is no lawyer-client privilege under this section when ... a communication is relevant to an issue of breach of duty by the lawyer to his client . . . . ” Such a breach of duty is exactly what ip at issue here i.e. did the lawyer have the authority and assent of all of his clients to enter into the settlement or did he breach his duty as to some of them.

We are also of the opinion that subsection (4)(e) applies to negate the privilege because that subsection excludes “a communication . . . relevant to a matter of common interest between two or more clients ... if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients . .. . ” (emphasis supplied) It seems abundantly clear that this communication was of common, even if adverse, interest between two or more clients and was made by some (viz. any) of them to a lawyer jointly retained or consulted.

Our conclusion is shored up by two Florida cases Dominquez v. Citizens Bank, 62 Fla. 148, 56 So. 682 (1911) and Ogden v. Groves, 241 So.2d 756 (Fla. 1st DCA 1970) which both came to the same conclusion as the two subsections of the above cited statute. Noticeably the Insurance Company ignores both of these cases and, for that matter, both subsections of the statute in its answer brief. We agree that these two cases are not on all fours because they both involve fact situations where single counsel formerly represented both the original plaintiff and defendant, whereas before us now the same counsel represented multiple defendants only. However, it seems to us that the principle is the same.

We have still another reason for our conclusion in this case. To us it would appear that even if a privilege would have existed, it was waived in this instance. It is black letter law that once the privilege is waived, and the horse out of the barn, it cannot be reinvoked. In the instant case, single counsel showed up at a hearing and publicly announced on behalf of all his clients all of the details of the settlement. Later some of his clients and he himself now claim certain of the details of that same settlement to be “confidential.” We cannot agree, for the settlement, supposedly in its entirety, had already been publicly announced to third parties, including the judge, at the settlement hearing. An explanation of any inconsistencies now appearing must be forthcoming outside of any claim of privilege.

Our decision does not leave the Insurance Company without a remedy for although we adhere to the Nehleber v. Anza-lone doctrine, we agree with the trial judge that it would be manifestly unfair to ask the Insurance Company to carry an impossible burden, and it would set bad precedent. No court should countenance an announced settlement between counsel followed by escape therefrom, if one side arbitrarily reneges and then seals his counsel’s lips by invoking the attorney-client privilege. It seems obvious that the Insurance Company must be allowed to attempt to carry its burden in a case such as this and we instruct the single counsel that there is no attorney-client privilege on this issue and direct him to testify as to this matter upon any resumption of his deposition. Likewise the parents may testify as to their knowledge or consent, as can the children.

We have no idea who will turn out to be the villains, but presumably the defendants and or their counsel will have redress against each other if any wrongdoing is uncovered.

Meanwhile if the immediate outcome as to the authority and assent of single counsel to settle is decided adversely to the Insurance Company’s interests, it may proceed to trial upon its main claim and let justice take its course. We would observe it would have been better practice for both sides to have had confirmation in writing by all parties to the settlement.

REVERSED AND REMANDED.

GLICKSTEIN and DELL, JJ., concur.

      . The Insurance Company suggests a “ratification” of the settlement, but that was not the reasoning of the trial judge and the issue is not here considered.

      . After several false starts an effective date of July 1, 1979 was adopted. See In re Florida Evidence Code, 376 So.2d 1161 (Fla.1979).

      . F.S.A. § 90.507; 5 Erhardt’s Florida Practice. Florida Evidence § 507.1 (1977).


text:
    Chester Flonzel DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-232.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Rehearing Denied March 1, 1982.

      Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Davis appeals alleging the trial court erred in denying his motion for new trial and in sentencing him for sexual battery. We affirm. The affirmance, however, is without prejudice to Davis’ right to assert, if he so desires, any alleged error by way of a proper motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

MILLS, WENTWORTH and THOMPSON, JJ., concur. .


text:
    T. W., a child, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-283.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Louis 0. Frost, Jr., Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED on the authority of R. M. P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1981).

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    John W. PETTRY and Carol S. Pettry, his wife, Appellants, v. James M. PRUITT and Mary L. Pruitt, his wife and the First National Bank of Live Oak, a banking corporation, Appellees.
    No. AB-185.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Rehearing Denied March 3, 1982.

      Stephen A. Smith of Smith & Smith, Lake City, for appellants.
    John H. Parker, III and L. James Cherry, Jr., Live Oak, for appellees.
   PER CURIAM.

The Pettrys appeal a final judgment denying the relief they sought based on their complaint naming the Pruitts and the First National Bank of Live Oak (“the Bank”) as defendants and seeking equitable subrogation to the holders of a mortgage which had been paid with certain funds, the imposition of a constructive trust upon the funds, and an accounting for the funds.

The sequence of events leading up to the filing of the complaint is rather complex. On January 22, 1975, the Pruitts, appellees here, sold certain property to the Pettrys, appellants in this case. The Pettrys assumed a mortgage held by the Bank and in addition gave a second mortgage to the Pruitts. On May 5, 1975, the Pettrys purchased a policy of fire insurance to cover the property and buildings, naming the bank as loss payable mortgagee. On June 1, 1975, the buildings located on the property were destroyed by fire. The Pettrys’ claim against the insurance company was denied and they filed suit against the insurance company. The insurance company defended alleging arson.

In October 1975 the Pruitts paid $5,547.38 on the mortgage held by the bank. On March 30, 1976, after the fire loss occurred, but before the dispute with the insurance company was concluded, the Pettrys recon-veyed the property to the Pruitts and the parties entered into a Real Estate Closing Statement and Agreement which provided as follows:

1. If Buyers [Pruitts] shall sell subject property at a bona fide sale for true value within period of one year, for a price less than the total price of this conveyance [$62,760.52], Sellers [Pettrys] shall reimburse Buyers for any difference between the hereinstated purchase price and the then selling price obtained by the Buyers.
2. Sellers’ liability to Buyers in accordance with preceding paragraph shall be limited to payment from the proceeds of an outstanding lawsuit by Sellers against American Motors Insurance Company for recovery for losses incurred as a result of a fire which occurred on the dwelling on the subject premises during the ownership by Sellers; and if there shall be no recovery, then the liability herein of the Sellers shall be deemed to be satisfied; or if recovery is less than the amount of the difference in prices, then the liability of the Sellers shall be limited to the amount recovered, less expenses of recovery.
3. If the Buyers herein do not sell the property within the stated period of one year, then there shall be no liability accruing to the Sellers hereunder.
4. It is agreed between the parties that this agreement shall not be construed to operate as an assignment of the Seller’s rights against said American Motors Insurance Company.

The Bank and the Pruitts had filed a separate suit against the insurance company and on May 30,1978, the Bank settled its claim with the insurance company for $31,-000.50. According to the stipulated statement of facts the proceeds of that settlement were disbursed as follows: $20,411.97 to Bank as loss payable mortgagee; $9,637.91 in attorney’s fees pursuant to contingent fee agreement with Pruitts; $86.75 for costs; and $863.87 retained by the Pruitts. Before this settlement occurred the Pettrys notified the Bank that they claimed entitlement to any proceeds the Bank might receive from the insurance company. Following the settlement the Pettrys filed the complaint for equitable subrogation, imposition of a constructive trust, and an accounting and the trial court denied relief.

Appellants argue that since they did not assign the insurance policy to the Pruitts, the Pruitts had no interest in the policy proceeds and should not have received any of the proceeds of the settlement which the insurance company reached with the bank as loss payable mortgagee. The Pruitts argue that by virtue of the Real Estate Closing Statement and Agreement, the Pet-trys had agreed to reimburse them for the difference between the purchase price for the reconveyance, $62,760.52, and the proceeds of a subsequent sale, $33,000. The subsequent sale by the Pruitts to a third party occurred on September 27, 1978.

It is clear the Bank was entitled to the sum of $20,411.97, which was the amount due on its mortgage as of the date of settlement with the insurance company. The Bank was also entitled to a reasonable sum for attorney fees. Section 627.428, Florida Statutes. The sum of $2,000.00 appears to have been the amount paid the Bank’s attorney. Thus the Bank was entitled to retain $22,411.97.

As to the remaining $8,588.53, additional factors must be taken into account. The Pruitts paid the Bank $5,547.38 to apply on the mortgage. This occurred after the fire loss and before the settlement with the insurance company. The policy clearly, in the mortgagee clause, covered sums owed on the mortgage at the time of the loss. Though payment by the Pruitts may not technically give them the right to recover the amount paid by them, it does provide some insight in construing the Real Estate Closing Statement and in considering the equities of the case. This brings us to the very basic issue in this case. This agreement provides that if the Pruitts shall sell the property at a bona fide sale for true value “within a period of one year” for a price less than the total price of the conveyance, which amounted to $62,670.52, the Pettrys would reimburse the Pruitts for any difference between that figure and the selling price obtained by the Buyers. However, the second paragraph of the agreement specifically limited the Pettrys’ liability to “payment from the proceeds of an outstanding lawsuit against” the insurance company. Thus there would never be any liability until there had been some payment from proceeds of insurance claims. The agreement is silent as to whether “within the period of one year” refers to the one year following execution of the agreement, which was March 30, 1976, or some other beginning date. Apparently the trial court construed the agreement as running from the date of realization of proceeds of litigation with the insurance company. The settlement by the Bank and the Pruitts, with the insurance company was on May 30, 1978. The Pruitts subsequently sold the property to a third party on September 27, 1978, which was beyond a year from the execution of the Real Estate Closing Statement and Agreement, but within a year of the settlement with the insurance company and receipt of the settlement proceeds of $31,000.50. It is not overlooked that the agreement referred to the proceeds of the Pettrys’ “outstanding lawsuit against the insurance company” and that there were separate suits by the Bank and the Pruitts on one hand and the Pettrys on the other. The Pettrys, in a jury trial, recovered $10,-874.68 from the insurance company. The stipulation of facts does not state the date of this recovery, but it is obviously subsequent to the dates of events heretofore mentioned.

The sums received by or for the benefit of the Pruitts, whether for costs, attorney’s fees, or otherwise, are well within the amount agreed to be reimbursed under the agreement referred to, if the time limitation had not expired.

The Pettrys are seeking to invoke the aid of a court of equity in asserting a right to subrogation to funds received by the Bank, the imposition of a constructive trust, and an accounting.

In view of all of the equities involved, the trial judge appears to have applied correct reasoning' and come to an appropriate conclusion. The construction of the agreement to the effect that the one year limitation did not begin to run until there had been some recovery of insurance proceeds is reasonable considering all of the relationships of the parties and the posture of their financial involvements and commitments. It was the efforts of the Bank and the Pruitts which induced the settlement by the insurance company and they incurred expenses and attorney fees in the process. The Pruitts paid the Bank $5,547.38 to apply on the mortgage, which at the time of the fire would have been included within the coverage for the bank mortgagee under the policy. From these and other circumstances the trial court is shown to have exercised a sound judicial discretion and to have applied equitable considerations in rendering its judgment herein.

AFFIRMED.

ROBERT P. SMITH, C. J., MILLS, J., and WILLIS, BEN C., Associate Judge, concur.

      . Although the Pruitts held a second mortgage on the property at the time the loss occurred, they were not named as loss payable mortgagees in the contract of insurance.


text:
    Lawrence PEOPLES, Appellant, v. Wayne DORR, et al., Appellees.
    No. AD-442.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    R. Jeremy Solomon of Booth & Conner, Tallahassee, for appellant.
    Alan E. DeSerio and Ella Jane P. Davis, Tallahassee, for appellees.
   PER CURIAM.

AFFIRMED. Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA 1981); Woodman v. Dever, 367 So.2d 1061 (Fla. 1st DCA 1979); and Dowling v. Blue Cross of Florida, 338 So.2d 88 (Fla. 1st DCA 1976).

McCORD, ERVIN and SHAW, JJ., concur.


author: SCHEB, Chief Judge. CAMPBELL, Judge,

text:
    S. D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-2285.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

S. D., a juvenile, challenges the trial court’s denial of his motion for discharge under Florida Rule of Juvenile Procedure 8.180(b), the speedy trial rule.

Appellant, age 14, was arrested on March 21, 1980, on a charge of selling marijuana, a felony. On April 9 appellant and his mother signed a document prepared by the Department of Health and Rehabilitative Services (HRS) entitled “Waiver of Speedy Trial” in order for him to enter a community control program. After reciting appellant’s right to have the charges against him determined by the juvenile court, the document provided:

I understand that I am being referred to a special program and that if I cooperate fully this charge against me will be dropped when I successfully complete the program.
Based upon this understanding I agree to give up the right to speedy trial . . . for the period that I am officially enrolled in the program. These rights are suspended beginning today.

On August 18 appellant was eliminated from the program. On August 25 the state filed a petition to have him declared a delinquent child based on his alleged delivery or sale of marijuana. Later, the state amended the charge to misdemeanor possession of a controlled substance.

After the state took no further action, appellant on November 5 filed a motion for discharge on the ground that an adjudicatory hearing had not begun within ninety days as required by Rule 8.180(b). The trial court denied the motion. Appellant then pled nolo contendere reserving his right to appeal the denial of his motion for discharge, and this appeal ensued.

The form that appellant signed is not a model of clarity. Although entitled “Waiver of Speedy Trial,” the text specifically provided that the speedy trial period was waived only for the period that appellant, was in the HRS program. The waiver states that “[tjhese rights are suspended beginning today.” Webster’s New Twentieth Century Dictionary, p. 1837, (Unabridged 2d Ed. 1980), defines suspended as meaning “interrupted; delayed temporarily.”

The state argues that the waiver actually constituted a continuance granted in order that appellant might participate in a community control program. Therefore, as the delay was attributable to appellant, he waived his right to a speedy trial under the rule. We disagree.

We find that the language in the document constitutes a limited waiver of speedy trial which this court has previously recognized as valid for specific purposes. Johns v. State, 340 So.2d 528 (Fla.2d DCA 1976).

Ordinarily, appellant was entitled to an adjudicatory hearing by June 19, 1980. The speedy trial period, however, was tolled from the time he signed the waiver on April 9 until he was eliminated from the program on August 18. Speedy trial began-to run again on August 18. Therefore, the appellant was entitled to an adjudicatory hearing no later than October 28. Appellant’s motion for discharge was filed November 5, eight days after the time for an adjudicatory hearing expired. Thus, under Rule 8.180(b), appellant was entitled to have the petition against him dismissed with prejudice.

Accordingly, we vacate the order denying discharge, and remand with directions to the trial court to discharge appellant.

GRIMES, J., concurs.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

I respectfully dissent.

I agree with the state’s position that the waiver constituted a continuance granted in order that appellant might participate in a community control program and, therefore, as the delay was attributable to appellant, he waived his right to a speedy trial.

The majority is correct in stating that the form signed by appellant is not a model of clarity. As they pointed out, the form is entitled “Waiver of Speedy Trial” and the body of it contains the phrase, “for the period that I am officially enrolled in the program.” However, there is another part to the form which was signed by appellant’s mother. That portion has no limiting language and reads, “As the parent/guardian of the above named child, I understand that he/she is waiving his/her right to a speedy trial and the forty-five day filing period.” There is no question that the delay was for appellant’s benefit.

Though there is not a comparable rule of juvenile procedure, Florida Rule of Criminal Procedure 3.190(g)(1) defines a motion for continuance as a postponement of a cause for any period of time. Appellant's cause was postponed while he was in the program and falls within the definition of a continuance. Under the rules of criminal procedure, the granting of a defendant’s motion for continuance waives the speedy trial period for speedy trial as set forth in the rules. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). I would apply the same rule in regard to juveniles and, therefore, hold that appellant waived his right to a speedy trial.

Florida Rule of Juvenile Procedure 8.180(c) provides that the court may extend the speedy trial periods for juveniles on motion of either party upon entry of an order reciting the reasons. That rule has been interpreted to prohibit an extension of the speedy trial rule absent such an order and finding by the court that the interest of justice will be served by such extension. J. R. S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979). There was no such court order in this case. It appears to me in this case, however, that the written waiver of speedy trial setting forth the reasons is adequate. compliance with the intent of the rule.