text:
    Paul M. BESSEY and D. L. Aluminum Products, Inc., a Florida Corporation, Petitioners, v. Beatrice C. EMMONS, Respondent.
    No. 80-373.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.
    Anthony P. Gránese of Gormin, Geoghe-gan, Easley & Gránese, Clearwater, for petitioners.
    Steven C. Ruth of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for respondent.
   PER CURIAM.

Petitioners request certiorari review of an order granting respondent’s motion to compel production of certain documents. We grant the petition to the extent that the order compels discovery of “any and all records pertaining to the payment of attorney’s fees or other costs incident to the above-styled litigation.” Such documents are not relevant to any issue at this point in the proceedings below.

Accordingly, the order under review is quashed to the extent that it requires discovery of documents pertaining to attorney’s fees and costs. The petition for cer-tiorari is otherwise denied.

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Waldron L. SUNDSTROM, Trustee, Appellant, v. COLLIER COUNTY, a political subdivision of the State of Florida, and Carl A. Clemmer, Zoning Director in and for Collier County, State of Florida, Appellees.
    No. 79-2222.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.

      Stephen M. Maher of Carroll, McPeak, Bolesky & Schryver, Naples, for appellant.
    Anthony P. Pires, Jr., Asst. Collier County Atty., Naples, for appellees.
   PER CURIAM.

This is an appeal from an order dismissing a petition for mandamus with prejudice. Appellant contends that the dismissal should have been without prejudice. We agree.

Appellant, as trustee, owned certain real property in Collier County, Florida on which he intended to construct a marina-boatel. He obtained a building permit, and ostensibly relying thereon, expended sums of money to construct the facility. Subsequently, the county zoning director caused a stop-work order to be issued on the project. Appellant, pursuant to the Collier County Code, Chapter 67-1246, Laws of Florida, (Code) appealed the decision of the zoning director to the Collier County Board of County Commissioners sitting as the Board of Zoning Appeals. The board upheld the zoning director’s order and appellant filed a petition for a writ of mandamus forty-four days after the board’s decision. The Code provides review of a decision of the zoning board is to be by petition for certiorari filed within thirty days of the board’s decision. The circuit court dismissed appellant’s petition with prejudice on the grounds that appellant had failed to file a timely petition for certiorari, and mandamus could not be used to cure this effect.

The lower court correctly dismissed the petition for mandamus. Mandamus will not issue to relieve litigants of the consequences of failing to file in time for other appropriate relief. Shevin v. Public Service Commission, 333 So.2d 9 (Fla.1976). However, the dismissal should have been without prejudice to allow appellant an opportunity to attempt to state a cause of action in equity for equitable estoppel, declaratory relief, or an injunction. Sunshores, Inc. v. County of Pinellas, 351 So.2d 758 (Fla. 2d DCA 1977). Accordingly, the order is affirmed, but the case is remanded with instructions to delete the words “with prejudice”.

GRIMES, Acting C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    Albert W. STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 79-2057.
    District Court of Appeal of Florida, Second District.
    July 11, 1980.

      Jack 0. Johnson, Public Defender, Michael S. Becker, Asst. Public Defender, and Geoffrey A. Foster, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was adjudicated guilty of grand theft of a motor vehicle, and the state sought imposition of an enhanced sentence pursuant to Section 775.084(l)(a)2, Florida Statutes (1977). The court conducted a hearing to determine whether appellant should be sentenced as a habitual offender. Lieutenant Edward Williams, the prison investigator at the DeSoto Correctional Institution, testified that appellant was released from that institution on September 1, 1978. Lieutenant Williams was qualified as a fingerprint expert and testified that appellant’s fingerprints matched those on the certified copy of judgment and guilt which led to his commitment at DeSo-to Correctional Institution. This was the only evidence introduced at the hearing.

In its order sentencing appellant as a habitual offender, the court made findings that appellant had previously been convicted of a felony in this state, that the felony conviction upon which the court was sentencing appellant was committed within five years of his release from prison as a result of a prior conviction within Florida, and that the enhanced penalty was necessary for the protection of the public. Appellant contends that the trial court erred in not making findings that he had not been pardoned, and that his sentence had not been set aside as is required by Section 775.084(3)(d), Florida Statutes (1977). We disagree.

In Eutsey v. State, 383 So.2d 219 (Fla.1980), the Florida Supreme Court upheld the constitutionality of Section 775.084, Florida Statutes (1977). As an alternative argument the appellant in that case contended that during the hearing on whether an enhanced sentence should be imposed, the state failed to prove that he had not been pardoned or the conviction set aside. The supreme court rejected this argument stating that these are affirmative defenses to be raised by appellant rather than matters that must be proved by the state. In Eutsey the trial court had made a finding that there was no pardon nor had the conviction been set aside.

The evidence that Stewart had been released from prison less than five years prior to the instant conviction was unrebutted. The record would amply support findings that Stewart had not been pardoned and that his conviction had not been set aside. Since the findings required by the statute are fully supported on the face of the record, the mere failure to recite a specific finding in the sentencing order to that effect is harmless error, if error at all, and, therefore, the judge properly imposed the extended sentence. Cf., McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978).

As appellant’s other point is without merit, we AFFIRM.

HOBSON, Acting C. J., and OTT and CAMPBELL, JJ., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Robert BACON, Appellee.
    No. 79-1934.
    District Court of Appeal of Florida, Second District.
    July 11, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   OTT, Judge.

Appellee was arraigned on a charge of aggravated assault and waived his right to a speedy trial. When the case came on for trial the state was unable to proceed because the alleged victim had disappeared. The court thereupon dismissed the case, without prejudice. The next day the state refiled the same charge.

Appellee then filed a motion to dismiss on the ground that he had previously been placed in jeopardy for the same offense. At the same time, he filed a motion for discharge on the ground that the time for speedy trial had expired. Both motions were granted. We reverse both orders.

When charges against an accused are dismissed for any reason, the state can refile those same charges at any time unless prevented from doing so by (1) the constitutional prohibition against double jeopardy, (2)the doctrine of res judicata, (3) a statute of limitations, or (4) the dismissal of the first case with prejudice. State v. Schafer, 376 So.2d 927 (Fla. 2d DCA 1979). If the accused has waived his right to a speedy trial of the original charge, the time for bringing him to trial on the refiled charge (if based on the same conduct) is extended for a period equal to the time waived in the first case. State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980); State v. Boyd, 368 So.2d 54 (Fla. 2d DCA 1979).

Here, appellee was arrested on March 14, 1979. He waived his right to a speedy trial (180 days in this case) on April 23rd. The charge was dismissed before trial was to commence on September 18th, and was refiled on September 19th. The time for starting the trial on the refiled charge was 180 days after March 14th, plus the 148 days elapsing from April 23rd through September 18th. Thus, there had been no violation of the speedy trial rule when appel-lee’s motion was erroneously granted on October 11, 1979.

The court also erred if it based its dismissal of the case on a belief that the refiling of the charge against appellee somehow subjected him to double jeopardy. We cannot tell from the record before us whether the trial set for September 18th was to be before a jury or only the court, but in either event the result here would be the same — the trial never commenced and, as a consequence, jeopardy never attached. Rawlins v. Kelley, 322 So.2d 10 (Fla.1975).

As a matter of fact, the record discloses that when the motion to dismiss came on for hearing appellee apparently abandoned his claim of double jeopardy and focused his main attack on the failure of the state to appeal the dismissal of the first information. He argued that since the dismissal was predicated on the failure of the state to proceed to trial at the time set, merely refiling the charge without appealing the dismissal was improper under Pena v. Schultz, 245 So.2d 49 (Fla.1971).

Although, as previously noted, we do not know the basis for the order of dismissal, any reliance on Pena would be misplaced. In that case, as here, the information was dismissed when the state announced that it was not ready for trial because its witnesses were absent. From that point on, however, there is no similarity between the cases. In Pena the trial court later reversed itself, set aside its order of discharge, and ordered the case to trial. Pena then brought habeas corpus proceedings in the circuit court, and the writ was sustained. Without appealing the granting of that writ, the state simply filed a new information. That, the state supreme court ruled, was improper because the writ was a final and res judicata determination that Pena’s fundamental (as contrasted with statutory) right to a speedy trial had been violated. No such bars to refiling appear in the case at bench; nor could they, since appellee had specifically waived his right to a speedy trial.

Since we are returning this case to the court below for trial, and since we do not have any exact information about why the court ruled as it did, we will address the merits of an ancillary attack made by ap-pellee upon the sufficiency of the second information. When his motion to dismiss, on the stated ground of former jeopardy, came on for hearing he argued as an additional ground that the information was insufficient in that it had not been based upon either a valid indictment or “sworn testimony”, as required by law. Bradley v. State, 208 So.2d 140 (Fla. 3d DCA 1968).

The information filed in this case on September 19, 1979, contains the following certification:

Personally appeared before me, JAMES T. RUSSELL, the undersigned State Attorney for the Sixth Judicial Circuit of Florida, in and for Pasco County, or his duly designated Assistant State Attorney, who being first duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which if true, would constitute the offense therein charged; hence this information is filed in good faith in instituting this prosecution, and that testimony was received under oath from a material witness or witnesses.
Robert P. Cole
Designated Assistant
State Attorney

Appellee argued that if an information is not based on a valid indictment, then it must be supported by the sworn affidavit of some person who knows the facts and “will testify at trial.” We cannot fathom just where appellee got that notion, and he has not appeared in this court to explain his position. One thing is certain — the Rules of Criminal Procedure of this state contain no such requirement. Rule 3.140(g) provides:

An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense.

The information in question here follows that requirement punctiliously. The record does not reveal whether the learned trial judge gave any weight to appellee’s argument, and we would assume that he did not, but out of an abundance of caution we scotch any notion that the information was defective.

In closing, we would add a postscript to this opinion. We have not had the benefit of assistance by the appellee on this appeal. We can only speculate as to why he did not deem it advisable to avail himself of the services of appointed or privately retained counsel and insure that his position was fully articulated during these proceedings. As must be obvious, of course, this court and its staff have sifted the record (such as it is) with a fine screen to turn up any support for the orders below. Such orders come to an appellate court clothed in a presumption of correctness, and as a consequence we will search a record, sua sponte if necessary, to support them. Our message to appellees in general, however, is that total and exclusive reliance upon that presumption is not recommended. It could be a most dangerous roulette.

The orders of the trial court dismissing the case and discharging appellee are reversed and the case is remanded for further proceedings.

HOBSON, Acting C. J., and CAMPBELL, J., concur.


author: BOARDMAN, Judge.

text:
    TRUSTEES, FLORIDA WEST COAST TROWEL TRADES PENSION FUND; Trustees, Florida West Coast Trowel Trades Welfare Fund; Trustees, Florida West Coast Trowel Trades Apprenticeship Fund; and, International Union of Bricklayers and Allied Craftsmen, Local No. 3, AFL-CIO, Appellants, v. QUALITY CONCRETE COMPANY, INC., and Safeco Insurance Company of America, Appellees.
    No. 79-2131.
    District Court of Appeal of Florida, Second District.
    July 11, 1980.

      John F. Venable of W. Eric Venable, Tampa, for appellants.
    Stephen H. Reisman of Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellee Safeco Ins. Co. of America.
   BOARDMAN, Judge.

The issue on this appeal is whether the issuer of a performance bond on a public works contract may be held liable under the bond for contractually required contributions to the union pension funds of the laborers employed by a subcontractor on the project. The trial court answered this question in the negative and therefore dismissed with prejudice the complaint of appellants, the trustees of certain union pension funds, as to defendant/appellee Safeco Insurance Company. We disagree and reverse.

Bricklayers, Masons, and Plasterers International Union of America, Local # 3 (the Union), entered into a collective bargaining agreement with Quality Concrete, Inc. (Quality). The collective bargaining agreement required that each employer pay to appellants certain union benefits, in addition to paying the employees’ wages.

Titan Southeast Construction Corp. (Titan) entered into a public works contract with the city of Tampa for the construction of a sewage treatment plant and purchased performance bonds from appellee on January 19, 1976, and March 14, 1977. The bonds in question all provided in pertinent part:

Now, if the Principal shall in all respects well and faithfully perform and execute the Contract and the work therein provided, . . and promptly pay all debts incurred by the Principal or any subcontractor in the prosecution of such work, including those for labor and materials furnished, . . . then is this obligation to be null and void, otherwise to remain in full force and effect.

Appellants filed an amended complaint and a second amended complaint against Quality and appellee. The second amended complaint alleged that Quality had failed to pay appellants the contributions due for the hours worked by employees covered by the collective bargaining agreement. It further alleged that one or all of the aforementioned surety bonds were issued with respect to payment for labor performed by Union members for Quality as a subcontractor to Titan and that appellee was therefore liable to appellants under its surety bond for the sum owed by Quality.

Appellee filed a motion to dismiss appellants’ second amended complaint on the grounds that the performance bonds in question were executed pursuant to Section 255.05, Florida Statutes (1975), and that (1) appellants were not claimants as defined by Section 255.05 because they did not claim to be in direct privity with Titan and were not a subcontractor to Quality, and (2) there was no Florida authority permitting recovery of union benefits against a Section 255.-05 bond. The trial court granted appellee’s motion and dismissed the complaint with prejudice as to appellee on the authority of William H. Gulsby, Inc. v. Miller Construction Co., Inc. of Leesburg, 351 So.2d 396 (Fla. 2d DCA 1977), and J. W. Bateson Co., Inc. v. United States ex rel. Board of Trustees of the National Automatic Sprinkler Industry Pension Fund, 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978). This appeal followed timely.

Section 255.05 requires that a contractor on a public works construction job provide a bond for the protection of certain persons supplying labor or materials to that job. Although no Florida court has expressly recognized that trustees of fringe benefit funds may assert a claim for delinquent contributions against a Section 255.05 bond, we conclude that such a claim is proper.

The question presented here is precisely that addressed in Local Union 323, International Brotherhood of Electrical Workers v. Electric Utilities Construction Co., 73 L.C. 53, 318 (S.D.Fla.1974). In that case the union entered into a collective bargaining agreement with the Electric Utilities Construction Corp. (EUCC) which provided that EUCC must pay to the trustees of various fringe benefit funds an amount based on the number of hours worked by covered employees. EUCC entered into a public works contract with the city of Vero Beach. Pursuant to the requirements of Section 255.05, EUCC purchased a payment and performance bond from United States Fidelity and Guarantee Co. (USF&G). The bond by its terms extended to protect persons supplying labor to EUCC in the construction of the public works project. The union and trustees sought to recover from EUCC and from USF&G as surety on the bond delinquent fringe benefit contributions. USF&G moved to dismiss the action for failure to state a cause of action, arguing that the bond did not extend to cover EUCC’s obligation to contribute to the fringe benefit funds imposed by the collective bargaining agreement. The district court denied the motion, relying on United States ex rel. Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793,1 L.Ed.2d 776 (1957). The court noted that Florida courts have stated that Section 255.05 was patterned after the Miller Act, 40 U.S.C. § 270(a) et seq., and that where there are no Florida decisions interpreting Section 255.05, a court should look for guidance to decisions interpreting the Miller Act. Board of Public Instruction v. Rood Construction Co., 166 So.2d 701 (Fla. 3d DCA 1964).

In Sherman, Carter, the prime contractor, entered into a contract with the United States to construct certain military installations. Pursuant to that contract, Carter provided a payment and performance bond executed by Hartford Accident and Indemnity Co., as required by the Miller Act. Carter had previously entered into a collective bargaining agreement with numerous local unions which required that he make contributions to various fringe benefit funds. Carter failed to make these contributions, and the trustees of those funds brought an action on the bond. The court noted that the contributions to the funds were part of the compensation for the work performed by the employees and thus the employees were not fully paid until those contributions were made. The court rejected the surety’s argument that the action was improper because the obligation to make the contributions arose out of an agreement with the union and not out of the agreement with the United States. The surety also argued that the trustees were not proper claimants under the Miller Act bond because they did not furnish labor or materials. The court rejected this argument on the ground that, for Miller Act purposes, the contributions were the equivalent of wages due the employees who furnished the labor and that the trustees stood in the shoes of the employees.

The bonds furnished by appellee do not expressly prohibit trustees of collectively bargained fringe benefit funds from bringing an action on the bond. Rather the bond provides:

This bond is made for the use and benefit of all persons, firms, and corporations who may furnish any material, or perform any labor for or on account of the work, building or improvement, and they and each of them are hereby made obligees hereunder, in the same manner as if their own proper names were written herein, as such, and they and each of them may sue hereon, all in accordance with the provisions of Section 255.05 Florida Statutes and any amendments thereto, approved, the provisions of that act being hereby made a part of this bond as though fully set forth herein.

The purpose of Section 255.05 is to protect laborers and materialmen on public works projects. City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1964). To hold that trustees of collectively bargained fringe benefit funds cannot recover unpaid contributions from a surety on a Section 255.05 bond would be to render unprotected a large portion of the laborers’ compensation package.

One who supplies labor or materials to a subcontractor is within the class of those required to be protected by a Section 255.05 bond. Hardrives, supra. Section 255.05 requires that one who enters into a contract with a city of the state of Florida for construction, repair, or completion of any public building must execute a penal bond and that, in addition to the usual protection, the bond must be conditioned on the additional following obligations: “that such contractor shall promptly make payments to all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract . . . .” (Emphasis added.) Appellants alleged in their second amended complaint that Quality contracted with Titan, the prime contractor. Thus, Quality was a subcontractor, and, therefore, a supplier of labor to Quality must be protected by a Section 255.05 bond.

As noted in Sherman, when trustees bring an action against a bond such as Section 255.05, the unpaid contributions are considered the equivalent of wages due the employees. In such an action the trustees stand in the shoes of the employees. As suppliers of labor to a subcontractor, appel-lees are within the class of persons required to be protected by a public works performance bond.

Bateson, supra, and Gulsby, supra, upon which the trial court relied, are not on point. Bateson is distinguishable because there the unpaid contributions were required to be made by a sub-subcontractor. The court stated:

Congress understood the difference between “sub-subcontractors” like Colquitt and “subcontractors” like Pierce, and . it intended the scope of protection of a payment bond to extend no further than to sub-subcontractors. [Citation omitted.] There is nothing to the contrary anywhere in the legislative history. Thus, while Colquitt could have claimed against the payment bond had Pierce defaulted in its obligations, the employees of Colquitt were not similarly protected against Colquitt’s default, because they did not have a contractual relationship with Pierce or any other “subcontractor.” (Footnote omitted; emphasis added.)

434 U.S. at 591-592, 98 S.Ct. at 876, 55 L.Ed.2d at 56. And Gulsby involved a sub-sub-sub-subcontractor.

Accordingly, the trial court’s order dismissing appellants’ complaint as to appellee Safeco is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: COBB, Judge.

text:
    Loretta QUINN et al., Appellants, v. The HOUSING AUTHORITY OF the CITY OF ORLANDO, Florida, Appellee.
    Nos. 79-1083/T4-558 to 79-1091/T4-558H.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    James C. Hauser, Orlando, for appellants.
    H. Richard Bates of Anderson & Rush, Orlando, for appellee.
   COBB, Judge.

This is the consolidated appeal of nine tenants living in rental housing leased from the Housing Authority. The Housing Authority filed complaints against the tenants seeking to evict them for non-payment of rent. The complaints were signed by the director of the Housing Authority. The tenants answered, raised affirmative defenses, and filed counterclaims. One of the affirmative defenses alleged that the complaints were filed by a corporation and signed by a non-lawyer. In its answers to requests for admissions, the Housing Authority admitted: (1) it is a corporation, and (2) its pleadings for eviction were signed by a non-attorney.

The Housing Authority moved for partial summary judgments on its eviction actions. In turn, the tenants moved for partial summary judgments or alternatively for dismissals on the ground that the complaints were filed by a corporation and signed by a non-attorney. The trial court granted the Housing Authority’s motions and denied the tenants’ motions. The tenants appealed.

A corporation is not a person and, therefore, a corporation cannot designate a non-attorney employee to represent it. Instead, a corporation must be represented by an attorney. Nicholson Supply Co. v. First Federal Savings & Loan Association, 184 So.2d 438 (Fla. 2d DCA 1960); Angelini v. Mobil Home Village, Inc., 310 So.2d 776 (Fla. 1st DCA 1975); Southeastern Associates, Inc. v. First Georgia Bank, 362 So.2d 967 (Fla. 1st DCA 1978). Therefore, the partial summary judgment entered in favor of the Housing Authority was void and is hereby quashed and the trial court is directed to grant the tenants’ motions for dismissal without prejudice. Due to our disposition of this issue, we do not need to decide the merits of appellants’ other contentions.

QUASHED and REMANDED with directions.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


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

text:
    John Earl ZIEGLER, Appellant, v. STATE of Florida, Appellee.
    No. NN-144.
    District Court of Appeal of Florida, First District.
    July 15, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

Ziegler complains, among other things, that he cannot simultaneously be convicted and sentenced on a count charging his possession of a short-barreled shotgun which was or could readily be made operable, Section 790.221, Florida Statutes (1979), and on another count charging that he, a previously convicted felon, possessed a firearm, to-wit, a shotgun, Section 790.23, Florida Statutes (1979). The shotgun referred to in each count was the same.

Allegation and proof of Ziegler’s possession of a shotgun was common to both counts, yet on each count the State alleged and proved an additional element, not necessary for conviction on the other count: in respect to the first count, that the shotgun was short-barreled, and in respect to the second count, that Ziegler was a convicted felon. Ziegler’s conviction on both counts, whether simultaneously or consecutively, therefore cannot constitute double jeopardy for the same offense, proscribed by the State and Federal Constitutions. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). For similar reasons, neither offense can be considered as “lesser included” in the other for purposes of Section 775.021(4), Florida Statutes (1979), forbidding additional sentences on lesser included offenses proscribed by different statutes. Brown v. State, 206 So.2d 377, 383 (Fla.1968); contrast Hicks v. State, 382 So.2d 389 (Fla. 1st DCA 1980).

Appellant’s other points are unavailing. The judgments and sentences are

AFFIRMED.

ERVIN, J., concurs.

WENTWORTH, J., concurs and dissents with opinion.

WENTWORTH, Judge,

concurring in part, dissenting in part.

I concur with the majority view that possession of a short-barreled shotgun and possession of a firearm by a convicted felon are not the “same offense” for double jeopardy purposes; I further concur in the majority view that appellant’s other points are unavailing. However, I respectfully dissent on the issue of whether, in the circumstances of the present case, possession of a short-barreled shotgun is a lesser included offense of possession of a firearm by a convicted felon.

In Brown v. State, 206 So.2d 377 (Fla.1968), the Florida Supreme Court defined four categories of lesser included offenses. Category IV

comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, although such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense.

In the present case the two crimes, possession of a firearm by a convicted felon and possession of a short-barreled shotgun, were charged in separate counts; however, the evidence at trial revealed that the appellant possessed only one firearm, a short-barreled shotgun. Therefore, in order to prove possession of a firearm by a convicted felon, the state in this case had to and did prove possession of a short-barreled shotgun. I would accordingly conclude that in these circumstances possession of a short-barreled shotgun is a lesser included offense of possession of a firearm by a convicted felon. Cf., Hicks v. State, 382 So.2d 389 (Fla. 1st DCA 1980). Section 775.021(4), Fla.Stat., thus precludes separate sentences for each offense in this case. Hicks, supra.

I would remand for an order vacating the appellant’s sentence for possession of a short-barreled shotgun.


text:
    Willie DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2129.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.

      Bennett H. Brummer, Public Defender, and Jeffrey W. Samek, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. Johnson v. State, 348 So.2d 646 (Fla. 3d DCA 1977); Shapiro v. State, 345 So.2d 361 (Fla. 3d DCA 1977).


text:
    The STATE of Florida, Appellant, v. William James MONTFORD, Appellee.
    No. 80-421.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon the appellee’s confession that the trial court erred by entering its order discharging him, see State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980), the trial court’s order of February 19, 1980, is vacated and the cause remanded for further proceedings.


text:
    PALM BEACH HEIGHTS DEVELOPMENT AND SALES CORPORATION, Appellant, v. Anthony DECILLIS and Mary Decillis, Appellees.
    No. 80-834.
    District Court of Appeal of Florida, Third District.
    July 16, 1980.
    Mann, Dady, Corrigan, Baron & Zelman and Lawrence D. Winson, Miami, for appellant.

      Marc J. Postelnek, Miami Beach, for ap-pellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

Anthony and Mary Decillis were awarded a money judgment in the amount of $6,128 against Palm Beach Heights Development and Sales Corporation (PBH). PBH appealed. Five days later the Decillises, pursuant to Rule 9.310, Florida Rules of Appellate Procedure, moved the lower court to enter an order requiring PBH to post an appeal bond. The lower court entered an Order Requiring Supersedeas Bond, which provided, inter alia:

“ORDERED AND ADJUDGED the Defendant [PBH] shall post a good and sufficient bond to indemnify Plaintiffs for their costs, interest and fees as well as the amount of the Final Judgment heretofore entered by this Court, if the appeal of the Defendant/Appellant is dismissed or the Order appealed from is affirmed, in the amount of $7,216.00.”

PBH sought and we granted review of the aforesaid order. On June 30, 1980, we vacated the lower court’s Order Requiring Su-persedeas Bond “without prejudice to the appellant’s right to procure stay pending review at any time throughout the penden-cy of the appeal by complying with the provisions of Florida Rule of Appellate Procedure 9.310(b)(1).” At PBH’s request, we now clarify that order.

We vacated the lower court’s order for the reason that it required the appellant to post a bond pending appeal. A trial court cannot impose such a requirement upon an appellant. A party can appeal a money judgment without posting a supersedeas bond, and the opposing party has the concomitant right to seek execution upon the judgment. Fitzgerald v. Addison, 287 So.2d 151 (Fla.2d DCA 1973). On the other hand, should the appellant desire a stay pending our review, such a stay is automatic, without the necessity of a motion or order, on its posting of a good and sufficient bond equal to the amount of the judgment, plus fifteen per cent thereof. Fla.R.App.P. 9.310(b).

PBH asserts that it has a right to obtain a stay under Rule 9.310(a) without posting a bond or by posting less of a bond than Rule 9.310(b) requires, and that our order is too limiting. We disagree. PBH is entitled to a stay of the final judgment only by the posting of the bond in the amount set forth in Rule 9.310(b), and the trial court is not empowered to deprive the Decillises of their right to execute on the judgment by ordering any lesser bond or otherwise setting less onerous conditions. Barnett v. Barnett Bank of Jacksonville, N.A., 338 So.2d 888 (Fla.1st DCA 1976); Jenkins Trucking, Inc. v. Emmons, 207 So.2d 280 (Fla.3d DCA 1968).

Our order of June 30, 1980, as clarified, stands.


text:
    Harold Edward STALLINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-378.
    District Court of Appeal of Florida, Second District.
    July 16, 1980.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The State filed an information against Harold Stallins, a juvenile, pursuant to Section 39.04(2)(e)4, Florida Statutes (1979). Stallins contends that the trial court committed reversible error in not sentencing him pursuant to Section 39.111(6)(c)l-6, Florida Statutes (1979).

Section 39.111(6), Florida Statutes (1979), requires that a trial court, when imposing adult sanctions on a juvenile, make findings of fact and evaluate the juvenile based on the criteria in Section 39.111(6)(c), Florida Statutes (1979). The record here reveals that Stallins was not sentenced in conformance with that statute.

There being no merit to the other point raised on appeal, we affirm the judgment of the trial court but vacate the sentence. The case is remanded for resentencing pursuant to Section 39.111(6). State v. Cain, 381 So.2d 1361 (Fla.1980).

GRIMES, Acting C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    Patricia E. BRYANT, Appellant/Cross-Appellee, v. Walter Robert BRYANT, Appellee/Cross-Appellant.
    No. 79-1187.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Ronald Sales and James Tuthill of the Law Office of Ronald Sales, P. A., Palm Beach, for appellant/cross-appellee.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

Affirmed upon the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

LETTS, C. J., BERANEK, J., and WES-SEL, JOHN D., Associate Judge, concur.


text:
    David B. TRABAYKO, Appellant, v. STATE of Florida, Appellee.
    No. 80-32.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment of the trial court is affirmed, but the sentence is vacated and the case remanded for resentencing pursuant to Section 39.111(6), Florida Statutes (1979). See Stallins v. State, No. 80-378 (Fla. 2d DCA July 16, 1980).

SCHEB, C. J., and BOARDMAN and GRIMES, JJ., concur.


author: ANSTEAD, Judge.

text:
    John DAVIS, Appellant, v. CHARTER MORTGAGE COMPANY, Appellee.
    No. 78-1707.
    District Court of Appeal of FLorida, Fourth District.
    June 25, 1980.
    Rehearing Denied Aug. 5, 1980.
    Donald A. Wich, Jr. of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for appellant.
    Michael D. Stewart of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

This is an appeal by the plaintiff, Davis, from an adverse final judgment for the defendant, Charter Mortgage Company, denying plaintiff’s claim for damages resulting from the defendant’s alleged trespass upon plaintiff’s property and alleged conversion of certain personal property therefrom, done so when plaintiff failed to make the mortgage payments on the property.

Davis sued Charter Mortgage, the mortgagee of property owned by Davis located in Pompano Beach, alleging that Charter had wrongfully entered the property by and through its agent Wallace Minniefield, and wilfully damaged and converted certain personal property owned by Davis. Count II of the suit alleged negligent removal of and damage to the property. Charter denied the allegations, affirmatively alleged that the plaintiff was negligent in contributing to his own loss, and also alleged that Minniefield was an independent contractor.

After Davis vacated the premises and failed to make the mortgage payments on the house for the months of December, 1974, and January, February, and March of 1975, Charter sought to protect its security by hiring Minniefield to board up the unoccupied residence. Instead of just boarding up the premises, Minniefield allegedly removed numerous items of Davis’ property and damaged the premises in other respects. The mortgage provided that Charter, upon notice to Davis, could enter the property to make repairs if the mortgage was in default. Notice was to be provided by certified mail directed to the mortgaged premises. Davis was never sent formal notice of Charter’s intention to have Minnie-field board up the residence and contended that Minniefield’s entry upon the property was unlawful.

Charter maintained that Minniefield was an independent contractor, rather than its agent, and that it was not responsible for his wrongful acts. In its instructions to the jury, the court relied on Florida Standard Jury Instruction 3.3b in instructing the jury that

. a person is not responsible for the negligence of an independent contractor or of an agent or employee of an independent contractor. An independent contractor is a person who is engaged by another to perform specific work according to his own methods, and whose methods of performing work are not controlled by the person engaging him and are not subject to that person’s right of control.

During the charge conference, appellant requested the trial court to give a special jury instruction setting out several exceptions to the general rule contained in the standard instruction. One of the exceptions contained in the proposed instruction provided that a person is responsible for the acts of an independent contractor:

Where the act or work contracted for, which may be from a verbal agreement, is of itself, tortious and unlawful;
******
In any of these . . . instances the actions of a person, though an independent contractor, will be imputed to the employer and the employer will be responsible for damage or injury resulting therefrom.
Where the oral contract (between the principal and the independent contractor) is for the commission of a tort (trespass), the principal is responsible not only for those negligent acts of the independent contractor which are authorized by the contract, but for the collateral acts of the independent contractor as well.

In order to demonstrate reversible error, appellant must prove that the requested instructions contained an accurate statement of the law, that the facts in the case supported a giving of the instructions, and that the instructions were necessary for the jury to properly resolve the issues in the case. Davis v. Lewis, 331 So.2d 320 (Fla. 1st DCA 1976).

If an independent contractor is hired to do an act that constitutes a tort, the principal is responsible not only for those negligent or tortious acts of the independent contractor which are authorized by the contract, but for the collateral acts of the independent contractor as well. National Rating Bureau v. Florida Power Corp., 94 So.2d 809 (Fla.1956); Peairs v. Florida Publishing Company, 132 So.2d 561 (Fla. 1st DCA 1961); 21 A.L.R. 1262 (1922). We believe appellant’s requested instruction correctly stated this legal principle.

Here, the mortgage agreement allowed the mortgagee, upon the sending of a notice by certified mail to the stated address of the mortgagor, to take such action as was necessary to protect its interest, including entering upon the property to make repairs. However, the evidence shows that although the mortgagee resorted to other means to satisfy the notice requirement, including the leaving of a handwritten note on the front door addressed to appellant, it failed to send notice by certified mail. Construing the document against the mortgagee, its draftsman, the right of the mortgagee to enter upon the property to repair was conditioned upon its furnishing of the requisite notice by certified mail to the mortgagor, and the jury could have found that absent such notice, entry upon appellant’s property by the mortgagee was unlawful and constituted a trespass.

We therefore conclude that because the jury could have found that a trespass and conversion or negligent removal of the items of personal property were acts committed by Minniefield for which the appel-lee would be liable even if Minniefield were found to be an independent contractor, the failure of the trial court to grant appellant’s requested instruction constituted reversible error. Accordingly, this cause is hereby reversed and remanded for a new trial in accordance with the terms of this opinion.

DOWNEY and HERSEY, JJ., concur.


author:
DENNIS, Justice.
     MARCUS, Justice BLANCHE, Justice CALOGERO, Justice.
     MARCUS, Justice BLANCHE, Justice WATSON, Justice,

text:
    Brenda PISCIOTTA, wife of/and Joseph Pisciotta v. ALLSTATE INSURANCE COMPANY and R. B. Coleman.
    No. 64915.
    Supreme Court of Louisiana.
    Nov. 21, 1979.
    Dissenting Opinion Dec. 14, 1979.
    On Rehearing June 3, 1980.

      James A. Babst, Chaffe, McCall, Phillips, Toler & Sarpy, Russell M. Cornelius, Nor-mann & Normann, New Orleans, for defendants-respondents.
    Marvin C. Grodsky, New Orleans, for plaintiff s-applicants.
   DENNIS, Justice.

This personal injury suit was brought by plaintiff, Brenda Pisciotta, who was injured when suspended ceiling panels fell on her during her part-time employment at a Sears store. The trial court rendered judgment against a renovation contractor, its insurer and three Sears executive employees, awarding her $35,000 in general damages, essentially for a herniated disc, and $44,441.00 for a 20% diminution of her earning capacity. The court of appeal vacated the judgment against the Sears executives and reduced the award to $15,000 without specifying the injuries for which it compensated. We reverse in part and affirm in part. After reviewing the evidence, we conclude that the trial judge did not commit reversible error by finding that (1) Brenda Pisciotta sustained a herniated disc caused by the falling ceiling panels; (2) The Sears executives were guilty of negligence proximately causing the accident; (3) The plaintiffs were entitled to an award of $35,000 in general damages, primarily for her herniated disc. However, we further conclude that the trial judge erred manifestly in awarding damages of $44,441.00 on the basis of a finding that Brenda Pisciotta had suffered a 20% diminution in her earning capacity as a result of the accident.

The accident occurred at a Sears store in Jefferson Parish where Brenda Pisciotta was working part-time in the catalog sales department, on October 1, 1975. An employee of a renovation contractor, Gulf Best, caused some ceiling panels to fall on Pisciotta. Three of Sears’ local managerial employees, R. B. Coleman, William Laugh-miller and Lang Eddins, had approved Gulf Best’s pursuit of its contract work during working hours and in close proximity to the catalog department. Pisciotta was seen immediately by the company doctor, to whom she complained only of an injured finger. She continued to work regularly on a part-time basis, but complained of back pains to a fellow employee. Six weeks after the accident she returned to the company doctor complaining of back pains. He treated her with conservative measures at irregular intervals until February 25, 1976, at which time he referred her to an orthopedist because of the persistence of her pain. During the next few months, Pisciotta was seen and treated by two orthopedic surgeons and a neurological surgeon.

Upon trial of the case the district judge found that the Gulf Best employees and the Sears executives were guilty of negligence which proximately caused Pisciotta’s injuries. In his written reasons for judgment he made the following findings:

“The panels, of which one of the type is in evidence, were of plastic ‘egg-crate’ type that lie loose in a metal frame. This frame is itself attached to the surrounding walls, or, in this case, a wall and a valence constructed for that purpose. One of these walls or sections of valence had previously been removed to permit extending the length of the entire structure. At that end, the metal gridwork apparently hung free, temporarily unattached.
“Defendant Gulf Best’s employee William A. Doyle testified, quite candidly, that he was himself actively working in the area wherein the new valence, ceiling and counter were being installed immediately adjacent to the older structures to which these would be connected, that his activities consisted of hammering, aligning the new, contiguous valence which had been ‘shimmed’ to a tight fit against the old, installing 2' by 4' boards between the valence and the rear wall, that approximately ten Sears employees worked in the pre-existing section immediately adjacent, that the loose panels could have been removed prior to construction but were not. Any of his above-described activities were sufficient to cause the mere xh to % inch dislodgement of the tract holding the ceiling panels that would suffice, according to his testimony, to cause the panels to fall out.
“In fact, the accident did occur during his above-described labor and in his full view, Mr. Doyle describing four to six such panels falling upon plaintiff.
“After this accident, but not before, some additional panels were removed to prevent a repetition of the occurrence.
“The motion of the pre-existing valence as Mr. Doyle was manipulating the contiguous and touching new section of valence is also described as simultaneous with the sound of the fall of the panels by the Sears employee-manager of the catalog department, Andrew Pederson, an eye-witness.
“The preponderance of evidence, then, clearly establishes Gulf Best’s poor and unnecessarily hazardous operating practices as negligence, and this negligence as the cause of the ceiling panel fall.
“Next, the Court turns to plaintiff’s allegations of negligence on the part of certain Sears supervisory employees.
« # * *
“The circumstances described do not comport with the statute’s and the Court’s notion of ‘a safe place to work.’
“Mr. R. B. Coleman personally knew or should have known of this non-performance or mal-performance (of the obligation to furnish a safe place to work) so as to bring him within the ambit of culpable persons delineated in Canter. He admitted having overall responsibility for safety, visiting the catalog department during the construction ‘three or four times a week,’ during which time the catalog department employees were working there, that he ordered no changes but, in retrospect, now feels he would, if the same situation were to occur, see that the ceiling panels were removed before permitting the work to take place. He participated in the formulation of the plan to do the work, the manner in which it was to be done, its being done during store working hours, and its being done without temporary relocation of the catalog department and its employees.
“The latter (Mr. Coleman’s participation) was attested to by William Laugh-miller and, in part, by Lang Eddins who testified that only Mr. Coleman would have authority to close the area or relocate the department, and directed this not be done.
“Mr. Laughmiller’s testimony further revealed that he visited the work site at which the conditions described prevailed every day. He knew that employees of Sears were working in an area adjacent to the new construction. He knew that the new valence was being attached to the old valence and that catalog department employees were working directly under the egg crate ceiling panels which were in the track system connected to the old valence. Even though he claimed that he had delegated his responsibilities for enforcing OSHA requirements to Messrs. Eddins and Menne for this particular renovation project, he admitted he was not rid of his overall responsibility for the safety of Sears employees in the catalog department. In fact, he states that he visited the renovation site daily to make sure that the work was being done in a proper fashion. He admitted being a participant in the initial planning conference with Coleman and Eddins at which the decision resulting in the employees working in the hazardous circumstances were made.
“Lang Eddins considered himself in charge of this project although he reported to Laughmiller and Coleman. He admits that he had the authority to stop unsafe practices but did not do so because he did not consider the situation to be an unsafe one. The Court disagrees.
“Accordingly the Court finds each of these three defendants, R. B. Coleman, William Laughmiller and Lang Eddins, in violation of the duties owed plaintiff, Brenda Pisciotta, by them and further finds these violations to have proximately caused her accident.”

Accordingly, the district judge rendered judgment for the plaintiffs, Pisciotta and her husband, against Gulf Best, its insurer The Fidelity and Casualty Company of New York, and the three Sears executives. Pis-ciotta was awarded $35,000 in general damages and $44,441.00 because of a 20% diminution in her earning capacity.

On appeal, the court of appeal modified the judgment by reducing the total award to $15,000 and releasing the Sears executives from liability. The intermediate court found “that there is support in the record for the conclusion that Gulf Best’s employees knew or should have known that their work . . . could cause one or more of the panels to shake loose . . . but that, since there had been no similar previous incidents, “there was no reason [for the Sears executives] to believe that this incident would occur.” The court of appeal concluded that the district judge abused his discretion in awarding the plaintiffs $35,000 for general damages and $44,441.00 for loss of earning capacity, finding that the plaintiffs had failed to carry their burden of proving either that Pisciotta sustained a herniated disc in the accident or that her earning capacity had been substantially diminished.

The rules of law governing a court of appeal’s review of a trier of fact’s determination of causation and assessment of damages were stated and discussed exhaustively in Canter v. Koehring, 283 So.2d 716 (La.1973); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Without setting forth the rules at length, we will consider whether they were properly applied in this case.

The issues are: (1) Did the accident cause Pisciotta to have a herniated disc? (2) Has her earning capacity been diminished by 20%? (3) Were the Sears executives guilty of negligence which proximately caused the accident?

1. Cause of Plaintiff’s Herniated Disc

In his written reasons the district judge made the following findings:

“Defendants’ contention that the accident is an unlikely cause of Mrs. Pisciot-ta’s rather serious injury is rejected by the Court. Indeed, the testimony of the physicians, particularly that of treating physicians and specialists Dr. Vogel, neu-rosurgical specialist and Dr. Russel Levy, orthopedic specialist to whom plaintiff was referred by the industrial surgeon of plaintiff’s employer, and who hospitalized her, clearly attributed the injury — which the doctors believed to be and the Court finds to be a C-6 herniated intervertebral disc — to be caused by the ceiling panel fall or by Mrs. Pisciotta’s movements in response to the fall. Defendants offer no evidence of another cause to contravene this.”

The evidence fully supports the district judge’s findings of fact. The intermediate court was mistaken in concluding that “there is no clear testimony to indicate that plaintiff suffered any back or neck pain referable to the accident until around the time she was referred to Dr. Levy and quit work in April of the following year except for an isolated instance of a complaint in November, approximately six weeks after the accident."

Pisciotta testified that she bent over and threw her arms over her head when she was struck by several falling ceiling panels. According to her testimony she began to have neck pains a few days later. A co-worker, Mrs. Richard, testified that Pisciotta began to complain of neck pains a couple of days after the accident. The company doctor, who was the first to treat Pisciotta, testified that he had no record that she complained of neck or back pain on the day of the accident. However, six weeks after the accident, on November 14,1975, he saw her again and she complained of “pain of the left trapezius muscle, which is the left side of the neck, and the left parathoracic muscles, which is the left side of the chest.” He further testified that “there was some tenderness on left lateral flexion, which is just bending your neck to the left . [and] there was some tenderness at the base of the left neck.” The same doctor saw her three days later and again six days later; he testified that “there was some persistence of the symptoms” and “a slight alteration of the cervical vertebrae that might indicate some spasm of the neck muscles.” The company doctor testified that she returned to him on November 24, 1975 and displayed “very questionable minimal numbness of the little finger of the left hand.” A week later she was seen again by him and he reported she had “mild tenderness of the trapezius muscle, which is the base of the left neck,” but he thought it so minimal that he discharged her from further treatment. Pisciotta returned on February 17, 1976, however, complaining of “pain in the left shoulder and numbness of the left arm and some decreased strength on that side.” He saw her a few days later and noted that her pain had migrated to the “left posterior back of the chest, near the rhomboid group of muscles.” On her next visit, on February 25, 1976, the doctor referred her to an orthopedic surgeon, Dr. Levy, for evaluation, because “she complained still of pain in that posterior chest.” Thus, the record reflects that Pisciotta complained frequently of neck and back pains, beginning shortly after the accident, and continuing through the period of her treatment by the company doctor.

Dr. Levy, an orthopedic surgeon, began treating Pisciotta on March 3,1976 and last examined her before trial in June, 1976. He testified he initially felt she had a “cervical sprain type of syndrome,” but ultimately concluded that she had “a probable disc herniation with a nerve root pinched” which by history he “felt . . . was related to the falling ceiling structure.” She had constant, and at times, severe, disabling neck pains while under his treatment. He hospitalized her with traction at one point and recommended that she undergo a myelogram to determine if surgery was advisable. Pisciotta decided against a myelo-gram, however, and, Doctor Levy testified, they had “more or less a break in the doctor-patient relationship.”

Dr. Vogel, a neurological surgeon, first examined Pisciotta on May 25, 1976 and saw her again on June 8, 1976, August 19, 1976, November 16,1976, February 17,1977, April 13, 1977, September 1, 1977, and December 29, 1977. She complained to him of cervical, left arm and interscapular pains. Based on the history she gave him and his examinations he diagnosed her condition as a herniated cervical disc caused by the accident of October 1, 1975 when the ceiling panels had fallen on her. Dr. Vogel recommended that she submit to a myelogram and consider surgery, but Pisciotta had not elected to do so at the time of the trial.

Dr. Manale, an orthopedic surgeon, examined Pisciotta once on June 22, 1976. She complained of pain in her neck during certain motions required by the examination. The doctor thought there were two possible causes for her symptoms: either she had “stretched some portions of her brachial plexus, that is, the nerves that come down from the spine in the region of the neck to go down the arm,” or that she had been struck by an object in that area. He also testified that it was possible, but unlikely, that she had sustained a herniated disc. The doctor states, however, that he believed her symptoms were caused by her accident on October 1, 1975. Thus, Dr. Manale was the only specialist to express the opinion that Pisciotta did not have a herniated disc.

The trial judge apparently gave greater weight to the testimony of the other orthopedist, Dr. Levy, and the neurological surgeon, Dr. Vogel, because they had treated and examined her on a number of occasions. The finder of fact must have found credible Pisciotta’s testimony describing the accident and her pains arising soon afterwards. He evidently found corroboration in the testimony of her co-worker, Mrs. Richard. The trial judge must have been persuaded by the testimony of Doctors Vogel and Levy that often herniated disc symptoms do not manifest themselves until several days after the damaging trauma. The trial judge’s decisions in these respects were clearly reasonable.

After reviewing the record, we conclude that there was “evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding,” Canter v. Koehring, 283 So.2d 716 (La.1973), of the fact that Pisciotta sustained a herniated disc when she was pelted by the falling panels. “[0]n review the appellate court should not [have] disturbed] this factual finding in the absence of manifest error.” Id. Furthermore, our consideration of the whole record convinces us “that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). Finally, since the record does not “clearly reveal that the trier of fact abused its discretion in making its award,” Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977), the district judge’s assessment of $35,000 in damages because of the herniated disc injury should not have been disturbed. La.C.C. art. 1934.

2. Effect Upon Plaintiff’s Earning Capacity

The district judge found that Pisci-otta had sustained a loss of earning capacity in the amount of $44,441.00. The judge based his determination on the testimony and computation of plaintiff’s expert economist witness, Dr. Wolf son, who concluded that, if Pisciotta had suffered a 20% loss in her earning capacity, this loss should translate into a present lump sum award of $44,441.00. The court of appeal reversed the trial court’s finding, indicating that it lacked an evidentiary basis.

The district judge erred manifestly in accepting the underlying premises that Pis-ciotta had suffered a 20% loss in her earning capacity. The medical testimony does not support a finding that her ability to earn an income was permanently damaged to this extent. On the contrary, the evidence indicates that after an operation she would probably be able to return to work and most of her activities. There is some confusion in the record in that Dr. Vogel at one point responded affirmatively to a question: “Is that another way of saying that the patient would remain ten to twenty percent disabled?” However, a reading of Dr. Vogel’s testimony immediately preceding this question and a study of his entire testimony lead to but one reasonable conclusion. Dr. Vogel opined that at least eighty or ninety percent of the patient’s discomfort should be relieved by treatment, which would probably include an operation. Thus he thought she could continue to have some discomfort following an operation, but he testified several times that she should be able to resume her normal occupation and activities. We therefore agree that the trial court’s award should be amended to eliminate any recovery for permanent loss of earning capacity.

Mrs. Pisciotta indicated to Dr. Vo-gel that she was undecided about whether to submit to the operation. A plaintiff must minimize his damages by submitting to reasonable corrective surgery necessary to eliminate any permanent disability. Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216 (1913); Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974); Dohmann v. Richard, 282 So.2d 789 (La.App. 3d Cir. 1973); Welch v. Ratts, 235 So.2d 422 (La. App. 2d Cir. 1970). A damage award should include the cost of this corrective surgery. Dohmann, supra; Welch, supra. Dr. Vogel testified that the operation would cost approximately $3,000, which includes all hospital and surgical fees. He further stated that Mrs. Pisciotta would not reach maximum medical improvement until one year following the operation. Accordingly, we will amend the judgment below to add $3,000 for the cost of corrective surgery and $3,000 for lost wages during the rehabilitative period.

3. Negligence of Sears Executive Employees

The trial judge found that the employees of the renovation contractor, Gulf Best, were negligent in failing to remove the ceiling panels before attempting to install a new valance alongside an existing valance. Apparently, all three — the frame holding the suspended ceiling panels, the old valance, and the new valance — were hanging from the roof of the building and touched one another at certain points. Essentially, the trier of fact found that it was foreseeable that a mere one-half to three-fourths inch displacement of the track or frame holding the ceiling panels would cause them to fall on the employees working underneath, and that it was apparent that the activity of hammering and jarring necessary to align the new valance flush with the old one created an unreasonable risk of causing such a displacement.

The court of appeal agreed that the Gulf Best employees should have realized the danger but inexplicably found that the Sears executives had no reason to believe that the incident would occur. Our review of the record convinces us otherwise. The evidence fully supports a finding that the Sears executives, who were responsible for both the safety of the Sears employees and the renovation, were or should have been intimately knowledgeable about the physical relationships of the suspended ceiling-valance components. Just as the Gulf Best workers, they should have recognized the unreasonable risk of harm to the employees working under the suspended ceiling components involved in proceeding with the construction during working hours without first removing the ceiling panels.

4. Summary of Damages Awarded

Accordingly, the judgments of the court of appeal and the district court will be amended and recast in our decree to award plaintiffs the following damages:

General damages $ 35,000
Medical expenses incurred 2,831
Earnings lost to date of trial 6,694
Medical expenses related to necessary corrective surgery 3,000
Loss of earnings during rehabilitation 3,000
Total (excluding costs and expert witness fees) $ 50,525

Decree

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Brenda Pisciotta, wife of Joseph Pisciotta, and Joseph Pisciotta, and against defendants Gulf Best Electric Company, The Fidelity and Casualty Company of New York, R. B. Coleman, William Laughmiller, and Lang Eddins, in solido, for the sum of $50,525, together with interest at the legal rate from the date of judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of intervenor, Sears, Roebuck & Company, to such extent as is possible under the terms and provisions of this judgment.

All costs, including those of the expert witnesses, are taxed against Gulf Best Electric Company, The Fidelity and Casualty Company of New York, R. B. Coleman, William Laughmiller, and Lang Eddins, in solido.

REVERSED IN PART, AMENDED IN PART, AFFIRMED IN PART.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

BLANCHE, J., dissents and hands down reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I agree with the majority in all respects except its finding that Sears’ executives were guilty of negligence proximately causing the accident. Accordingly, I respectfully concur in part and dissent in part.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The record does not support a finding that plaintiff’s back injury was in any way connected or caused by the falling of a ceiling panel. The majority opinion relies on the district judge’s findings of fact and those findings were criticized by the court of appeal as follows:

“Our review of this record leads us to factual and legal conclusions very much different than the ‘Reasons for Judgment’ contained therein and obliges us to state our appreciation of the facts of this case so that a reviewing court may have the benefit thereof. We conclude that the testimony and exhibits materially contradict the ‘Reasons for Judgment’ and find as follows: . . .”

The court of appeal further noted:

“We find great disparity between the record and the ‘Reasons for Judgment’ as we turn to consideration of the issue of damages allegedly incurred by Pisciotta.”

The doctor who saw plaintiff immediately following the incident concluded that she had “minor lacerations of the finger, not enough to suture, but merely to put an antibiotic dressing on it, and I don’t think we gave her a tetanus shot and I discharged her. We didn’t have to see her any further.” The accident happened on a Wednesday and plaintiff returned to work on Friday of the same week. She worked steadily thereafter for the balance of October and all of November, December, January, February, March and into April when she quit working because of a doctor’s recommendation. This writer’s review of the record confirms the observation of the court of appeal that what caused Mrs. Pisciotta’s alleged back or neck pains loomed unanswered in the record.

Finally, this writer is at a loss to understand the logic of holding Sears’ executive liable to plaintiff just because Gulf Best workers should have recognized there was some danger that a ceiling panel might fall. There is no proof in the record that Sears executives either knew or would have been aware of the purported danger created by Gulf Best employees. After all, if the work being performed by Gulf Best appeared all that dangerous, maybe Mrs. Pisciotta should not have been standing under it.

ON REHEARING

CALOGERO, Justice.

On original hearing the Court majority reversed the Court of Appeal in part and reinstated portions of the trial court judgment in favor of plaintiff, a part-time Sears employee injured when suspended ceiling panels fell on her at work. We reinstated and/or awarded a total of $50,525.00 of an $88,966.00 trial court award, reduced by the Court of Appeal to $15,000.00, upon finding appropriate each element of the trial court award except the $44,441.00 in lost future earning capacity. We also reversed the part of the Court of Appeal judgment absolving the three Sears executives of liability and reinstated the trial court judgment against them.

Plaintiffs and three defendants, Sears executives R. B. Coleman, William Laughmil-ler, and Lang Eddins, were granted rehearings upon their applications. Plaintiffs seek reinstatement of the trial court’s $44,-441.00 award for diminution of future earning capacity. Coleman, Laughmiller, and Eddins claim that they were not negligent and the Court of Appeal was correct in vacating the judgments against them. After reconsidering these issues, we conclude that each of them was properly resolved in the original opinion with one exception, which we discuss herein.

In our earlier opinion, we held that all three of the Sears executives, Coleman, Laughmiller, and Eddins, were guilty of negligence proximately causing plaintiff’s accident and thus liable in solido with Gulf Best Electric Company, a co-defendant. Upon reconsideration of this issue we find that only the display manager, Eddins (of the three Sears executives), was guilty of negligence and responsible to plaintiffs for the damages.

The facts, as they pertain to this issue, are as follows: Plaintiff, Brenda Pisciotta, was working part-time in the catalog sales department at the Sears Clearview store in Jefferson Parish. On October 1, 1975, Gulf Best Electric Company, an electrical contracting firm, was in the process of doing some renovation work for Sears, during working hours and in close proximity to the catalog department. During the renovation work, an employee of Gulf Best caused some ceiling panels to fall onto Mrs. Pisciot-ta, causing her injuries.

In the original opinion we were particularly impressed with the fact that the three Sears executives, Coleman, Laughmiller, and Eddins, had responsibility for the safety of the employees of the store and had approved Gulf Best’s plans for the construction. However, as pointed out in the briefs on rehearing, the responsibility for daily on-the-scene safety management of the catalog renovation project was delegated to Eddins under whose immediate supervision the renovation project was carried out. While both Coleman and Laughmiller had general responsibility for the safety of their employees, they had delegated that responsibility, at least for the catalog department and this renovation project, to Eddins, and Eddins did the on-the-scene supervision and reported back to the others.

In the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973) we laid out the following criteria for imposing individual liability on an executive:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, persona] liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.” (Emphasis provided.)

In order to determine whether the executives in this case are individually liable to plaintiff under the above criteria we must look at the specific facts involved here.

The principal or employer here, Sears, Roebuck Company, was under a duty to provide its employees with a reasonably safe place to work. R.S. 23:1s. In this case, this duty was delegated in part to all three executives named as defendants: Coleman, Laughmiller and Eddins.

Coleman, the store manager, had general administrative responsibility for the entire Sears operation at its Clearview facility. The store employs 700 to 900 people and contains approximately 250,000 square feet of useable space. While Coleman’s duties include responsibility for the safety of employees and customers (and toward that end he made daily walking inspections of the store), of necessity, and in accordance with Sears policy, he delegated his responsibility in this area to a number of subordinates for its discharge, including Laughmiller, the operating superintendent or assistant manager of the store.

Laughmiller supervised a work force of over 200 employees and was responsible for several areas of store function besides safety. He had delegated responsibility for daily, on-the-scene safety management to certain department subordinates. As testified to by Coleman and another Sears employee, Pederson, the responsibility for daily, on-the-scene safety management of the catalog renovation project was delegated to Eddins, under whose immediate supervision the renovation project was carried out.

Under the criteria set out in Canter, for a defendant to be liable it must be found that he breached a duty through “personal fault.” Canter further provides that “with regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment.” Under the above criteria, we simply cannot find that plaintiff’s accident was caused through the “personal fault” of either Coleman or Laughmiller. Although both of these executives had general responsibility for the safety of the employees both had delegated these responsibilities to Eddins and there has been no showing that this delegation was without due care. On the other hand, Eddins spent three and four hours per day at the renovation site and had ultimate responsibility for ensuring plaintiff a reasonably safé place to work. Since the trial court determined that plaintiff’s working conditions were not reasonably safe, we conclude that Eddins breached the duty owed plaintiff through his personal fault and is therefore liable in solido with Gulf Best for the injuries she sustained.

For the reasons assigned, we reinstate the original opinion and judgment of this Court except insofar as it casts R. B. Coleman and William Laughmiller for plaintiff’s damages and costs.

DENNIS, J., concurs in part and dissents in part, adhering to the opinion on original hearing.

MARCUS and WATSON, JJ., concur in part and dissent in part and assign reasons.

BLANCHE, J., dissents with reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I agree with the majority in all respects except its finding that Lang Eddins was guilty of negligence proximately causing the accident. Accordingly, I respectfully concur in part and dissent in part.

BLANCHE, Justice

(dissenting).

I adhere to my original dissent. The court of appeal’s excellent review of the evidence shows that the record does not support a judgment in favor of plaintiff.

ON REHEARING

WATSON, Justice,

concurring in part and dissenting in part:

The majority is correct in holding on rehearing that Eddins is liable in solido with Gulf Best but that the other two Sears executives are not. However, both on original hearing and on rehearing the majority errs seriously on the issue of diminution of future earning capacity. Even if the trial judge was wrong in the award he made (and it does not appear that he abused his much discretion in that he essentially awarded about $80,000.00 for pain and suffering and future disability from a herniated disc), this court has erred in the other direction by prescribing a very serious operation for Ms. Pisciotta, guaranteeing a perfect result, and allowing loss of wages only during convalescence. Thus, this court cut the award for future disability to $3,000.00, which cannot be justified.

I respectfully concur in part and dissent in part.

       Chief Judge Paul B. Landry, Retired, participated in this decision as an Associate Justice Ad Hoc.

       Honorable Edward A. de la Houssaye, III participated in this decision as an Associate Justice Pro Tempore.

      . R.S. 23:13 provides:
      “Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such with similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupation.”