text:
    LEON SHAFFER GOLNICK ADVERTISING, INC., d/b/a The Golnick Company, Appellant, v. Jerry CEDAR, Appellee.
    No. 82-192.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Charles H. Brodzki of F. Ronald Mastria-na, P.A., Fort Lauderdale, for appellant.
    John A. Friedman of Casoria, Goff & Friedman, P.A., Fort Lauderdale, for appel-lee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment, which we reverse and remand. In doing so, we wish to comment upon the misunderstanding and misuse of the Florida Rules of Civil Procedure; the necessity for consideration of amendments thereto because of what we believe to be other than isolated misuse; and a practice we would like to see terminated.

Appellee, who formerly was employed by appellant, brought this action against it to collect commissions, and to be reimbursed for expenses and compensated for vacation time. The employer’s attorney filed only a “Notice of Appearance” within twenty days of service of process on his client. Appellee moved for default, and hearing was set on the motion. A week prior to the hearing, appellant’s attorney filed an answer, affirmative defenses and a motion to dismiss. Appellant’s attorney did not appear at the hearing on the motion; and the trial court noted this non-appearance in the default judgment which it entered and refused to vacate. At the hearing on the motion to vacate, both attorneys made unsworn representations about the non-appearance of appellant’s attorney at the hearing on appel-lee’s motion for default. Final judgment was entered, and rehearing denied.

First, the misunderstanding was that of the trial court as to the effect of Florida Rule of Civil Procedure 1.500(b) and (c). When appellant filed its answer, affirmative defenses and motion to dismiss— days prior to the hearing on the motion for default — it deprived the trial court of the authority to consider whether a default should be entered or to enter one. The hearing on the motion was superfluous; and the attorney’s non-appearance was legally justified, albeit rude if he was noticed and failed to contact the court.

Second, the misuse was that of appellant’s attorney by filing a notice of appearance admittedly because he knew the clerk could not enter a default with the notice in the court file, and doing so for the purpose of getting additional time in which to plead. We believe this practice is used often by others, and we condemn it.

Third, the amendment we urge is with respect to Florida Rule of Civil Procedure 1.500(a), (b) and (c) wherein the word “paper” is being used by attorneys as their justification for filing notices of appearance — nothing more — to gain time for the filing of pleadings. We urge the elimination of such word and its substitution with the words “motion or responsive pleading.”

Fourth, the practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

DOWNEY and BERANEK, JJ., concur.

      .Subsections (b) and (c) of Florida Rule of Civil Procedure 1.500, which deals with defaults and final judgments thereon, provide:
      (b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.
      (c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default attempts to file any paper after a default is entered except under subdivision (d), the clerk shall return the paper to the party and notify him of the entry of the default. The clerk shall make an entry on the progress docket of the action taken.

      . See Travelers Ins. Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); and Board of Regents v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981).

      . See Miami Steel Traders, Inc. v. Ryder Truck Lines, Inc., 401 So.2d 1146 (Fla. 3d DCA 1981).

      . Florida Rule of Civil Procedure 1.500(a) provides for defaults:
      By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    Jasper Otis REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 82-264.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Jasper Otis Reeves appeals the final judgment, sentence, and order adjudicating him guilty of the sale of marijuana, sentencing him as a youthful offender for a term of two years, and ordering the sentence to be followed by two years of community control. He claims the trial court erred by overruling his objection to testimony concerning a telephone call, although counsel for both sides argued the point before the jury was allowed to hear it. The objection was timely and sufficient to preserve the question for review. See Gaines v. State, 406 So.2d 523 (Fla. 4th DCA 1981).

After appellant’s objection was overruled, the witness told the jury that a man telephoned her and identified himself as the person who sold her some marijuana. She then was asked to relate the conversation to the jury; and the following transpired:

A He said that I should be getting a paper soon to go to court and just to say that I don’t know him and I told him, I say well, I don’t know you, if they would bring you to me now I still don’t know you cause I didn’t look at you that well and so he said okay and I said okay and that was it.
Q How — how did he identify himself?
A This is the dude that you bought the reefer from.
Q And he said that you should say you didn’t know him?
A Just say you don’t know me.
Q When did this conversation take place, about how long after the incident?
A I don’t know.
Q Was it within a week, within a month?
A It wasn’t no month maybe some weeks but it wasn’t no month I don’t think.

The question is whether the trial court erred by allowing the witness to testify, over timely objection, about the telephone call she received concerning her testimony in the case. We conclude it did; therefore, we reverse and remand for new trial.

In Coleman v. State, 335 So.2d 364 (Fla. 4th DCA 1976), this court reversed a robbery conviction and remanded for new trial because the trial court admitted the victim’s testimony that he had been offered money not to testify at trial. This court held the “testimony was not only hearsay but was totally immaterial to the issue at trial, viz., did the appellant rob [the victim]. The only purpose that the testimony could have served was to create prejudice in the minds of the jury . ... ” Id. at 365.

Recently, in Jones v. State, 385 So.2d 1042 (Fla. 1st DCA 1980), the court reversed a judgment and sentence for kidnapping and sexual battery and remanded for new trial. One of the grounds for reversal was an impression left by the prosecutor on the jury that a witness had been threatened to keep her from testifying at trial. The attorney for appellant had objected during the testimony and later moved for a mistrial outside the presence of the jury on the grounds that the testimony was irrelevant and prejudicial. The trial judge denied the motion and allowed further testimony.

The appellate court held:

An attempt by a defendant or third person to induce a witness not to testify or to testify falsely is admissible on the issue of defendant’s guilt, provided it is shown that the attempt was made with the actual participation, knowledge, or authorization of the defendant. Duke v. State, 106 Fla. 205, 142 So. 886 (1932). Absent a link to the defendant, the issue of whether a witness is subject to improper influence is irrelevant and collateral to the issue of whether the defendant committed the crime for which he is charged and its admission over objection is grounds for the granting of mistrial and the denial thereof would be reversible error. Johnson v. State, 355 So.2d 200 (Fla. 3d DCA 1978). Furthermore, the admission of such evidence could only serve to create undue prejudice in the minds of the jury against the accused. Coleman v. State, 335 So.2d 364 (Fla. 4th DCA 1976).

Id. at 1043. In the present case, it was not proven that Reeves actually participated in, knew of, or authorized the telephone conversation with the witness; therefore, admission of the testimony constituted harmful error.

DOWNEY and BERANEK, JJ., concur.

      . Before this witness testified, a police officer had identified Reeves as the man who approached the witness’ “car carrying something in his hands ..., leaned into [it] and turned around and walked away.” The “something” was a bag containing three grams of marijuana. The witness, never able to positively identify Reeves, stated that a hat introduced into evidence through the police officer was not the one worn by the person who approached the car.

      . We note in passing that in Byer v. Florida Real Estate Commission, 380 So.2d 511, 512 (Fla. 3d DCA 1980), it was held that a telephone caller’s self-identification, without more, was “not competent evidence of identity.”


author: PER CURIAM.

text:
    Seena Tonkin BERK, Appellant, v. Herbert BERK, Appellee.
    No. 82-284.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Richard A. Goetz of Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauder-dale, for appellant.
    Eric J. Bergknoff, Hallandale, for appel-lee.
   PER CURIAM.

Seena Berk appeals an order of the trial court which denied her claim for attorney fees incurred in enforcing the terms of a property settlement agreement. We reverse.

The final judgment of dissolution of marriage incorporated a marital settlement agreement which provided:

7. Each party shall pay their own attorneys’ fee for the preparation and negotiation of this Agreement. However, should a dispute arise concerning this Agreement, the prevailing party shall be entitled to a reasonable attorney fee.

A dispute arose when appellee refused to honor a provision of the agreement which required him to pay several medical bills incurred by appellant. The trial court referred appellant’s motion to enforce the final judgment by contempt to a master. The master found appellee responsible for the medical bills and found appellant entitled to appropriate relief other than contempt. The trial court ratified and approved the master’s recommendations for enforcement of the terms of the marital settlement agreement.

However, for some unexplained reason, the master also found that neither party was a prevailing party as contemplated by the agreement, and recommended that the parties pay their own attorney fees. The trial court adopted the recommendation of the master.

It is difficult to imagine a more clear cut example of a prevailing party in a contract dispute. The master’s finding is clearly erroneous and must be reversed.

We recognize that the proceedings before the general master may have established some cogent and legally cognizable reason to deny appellant’s prayer for attorney fees. However, this is another in a series of cases in which masters and the trial court which they serve have declined to follow Rule 1.490(f):

The evidence shall be taken in writing by the master or by some other person under his authority in his presence and shall be filed with his report .... [Emphasis added.]

Fortunately for appellant, and unfortunately for appellee, the report of the general master demonstrates clear error, apparent from the face of the report. Such is not always the case. Master’s proceedings contribute greatly to the administration of justice by providing expeditious resolutions of disputes, a task which is otherwise difficult in view of crowded court dockets. Nonetheless, all judicial proceedings must be capable of review. We fail to see how the interests of justice are served by a circuit court’s failure to require a record, a duty affirmatively placed upon it by our Supreme Court, pursuant to the rule making power conferred by Article V, Section 2(a) of the Florida Constitution.

The order of the trial court is reversed, and the cause remanded for an evidentiary hearing to determine and award a reasonable attorney fee to appellant for the services of her counsel in the proceedings in the trial court and in this appeal.

REVERSED and REMANDED.

LETTS, C.J., and HERSEY and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    Martin H. COLIN, as Personal Representative of the Estate of Angela Kae Lottes, deceased, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION and David Hunter Smith, Appellees.
    No. 82-313.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    John H. Beck, Gen. Counsel and Margaret Ray Kemper, Tallahassee, for appellee Dept, of Transp.
   HERSEY, Judge.

The instant appeal is brought from an order dismissing plaintiff/appellant’s complaint on the basis of improper venue. The order, on its face, is a non-final order concerning venue and subject to interlocutory appeal pursuant to Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure. Since it is a non-final order, plaintiff’s petition for rehearing, although timely, was not authorized and therefore did not operate to toll the thirty day period for filing a notice of appeal. Fla.R.App.P. 9.020(g) and Fla.R. Civ.P. 1.530. For a conflicting view see Grice v. Board of County Commissioners of Madison County, 400 So.2d 801 (Fla. 1st DCA 1981).

Plaintiff expresses concern that the dismissal is, in effect, with prejudice because the statute of limitations expired after the original complaint was filed. However, plaintiff’s subsequent complaint filed in Leon County (the proper venue) should be treated as an amended complaint (amended to reflect the correct venue) for application of the statute of limitations. Thus, the date of the second complaint would relate back to that of the original complaint so that the cause of action would not be barred by the statute of limitations. Fla.R. Civ.P. 1.190(c).

Because the notice of appeal was filed more than thirty days after rendition of the order at issue, the appeal is dismissed as being untimely.

BERANEK and DELL, JJ., concur.


text:
    Franklin E. MARKS, Appellant, v. STATE of Florida, Appellee.
    No. 82-348.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Malcolm Anderson of Law Offices of Malcolm Anderson, North Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We determine that appellant’s First Point on Appeal is without merit. As to his Second Point, appellant may not raise the issue of ineffective assistance of counsel for the first time on appeal. Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). The issue must first be presented to the trial court and where, as here, trial has been concluded, the appropriate vehicle is a motion for post conviction relief.

We therefore affirm.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    CITY OF BOCA RATON, Appellant/Cross-Appellee, v. FAITH BAPTIST CHURCH OF BOCA RATON, INC., a Florida nonprofit corporation; Woodlands Christian Academy, an unincorporated educational institution; and The Reverend Jerry Peterson, Pastor, Faith Baptist Church, Appellees/ Cross-Appellants.
    No. 82-905.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    M.A. Galbraith, Jr., City Atty., Boca Ra-ton, for appellant/cross-appellee.

      Jon Jay Ferdinand, Tamarac, for appel-lees/cross-appellants.
   DOWNEY, Judge.

After finally disposing of the underlying litigation, the City of Boca Raton sought the assessment of reasonable attorney’s fees against appellee pursuant to Section 57.105, on the grounds that appellee’s defense completely lacked any justiciable issue of law or fact. The trial court awarded the City an attorney’s fee but not a reasonable fee as provided by statute. Both parties seek reversal of that order.

The evidence showed that the reasonable value of the services rendered in the trial court by the City Attorney was $100 per hour. However, since the City was represented in this case by the City Attorney, who is paid a salary, the trial court felt an award of reasonable attorney’s fees to the City would result in a windfall. Therefore, the trial court awarded the City a fee based on an hourly rate, which was arrived at by taking into consideration the City Attorney’s salary. The fee awarded was substantially less than a reasonable fee based on the expert testimony adduced.

While we cannot deny the trial court’s position was was arguable, we reject it and hold that the City was entitled to be awarded, a reasonable attorney’s fee as provided in the statute. The mere fact that the plaintiff was represented by its house counsel who was paid an annual salary does not militate against the allowance of reasonable attorney’s fees as provided by law. That is the position taken by the Seventh Circuit in Illinois v. Sangamo Constr. Company, 657 F.2d 855 (7th Cir.1981), wherein the State of Illinois, in its proprietary capacity, brought suit under a federal anti-trust act that entitles a successful litigant to treble damages, costs, and reasonable attorney’s fees. The trial court awarded the successful state a reasonable fee of $63,285. The defendants contended, among other things, that, since the state was represented by the state attorney general, an award of attorney’s fees to the state should be limited to the actual costs incurred by the state for the lawyers’ salaries. A number of other federal cases are cited in Sangamo that support the allowance of a reasonable fee to a successful party when its counsel is salaried or when the services are rendered free of charge.

The court in Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla.1982), at 505, noted that the purpose of Section 57.105 is:

... to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants.

We believe the allowance of a reasonable fee in these circumstances is consistent with that purpose. In addition, we do not believe this holding in any way impinges upon the rule that restricts the allowance of attorney’s fees in contract cases to not more than the amount agreed upon between the parties, such as Sarasota Pub. Co. v. E.C. Palmer & Co., Limited, 102 Fla. 303,135 So. 521 (1931). In that case the contracting parties (lawyer and client) had decided between themselves that the fee agreed upon was reasonable.

Another reason to reject the appellees’ proposal to limit the fees in a case like this to the actual cost to the party-recipient is that it would entail an evidentiary investigation into all of the ramifications of the overhead of the City Attorney’s office. As the court said in Sangamo:

[Rjeliance on generally prevailing market rates for attorneys with comparable skill, experience, and reputation simplifies the already difficult task district courts face in awarding reasonable attorney’s fees. Defendants’ approach would require courts to investigate the overhead and incidental expenses incurred by a state in connection with the prosecution of an antitrust suit. Such an inquiry would be a cumbersome means for arriving at a tentative figure of reasonableness. It is far better to rely upon generally prevailing market rates, which take into consideration factors such as overhead and support personnel. The initial use of an objective standard of reasonableness, i.e., generally prevailing market rates, is far preferable to extensive judicial scrutiny of private fee arrangements or of the internal economics of the Attorney General’s office.
657 F.2d 855, at 861, 862.

Accordingly, we reverse the order appealed from and remand the cause to the trial court with directions to reconsider the amount of attorney’s fee due appellant in the light of the evidence and the factors to be considered in determining a reasonable attorney’s fee. A further hearing on the question of attorney’s fees may be appropriate in the court’s discretion.

We have considered the appellees’ cross-appeal and found it to be without merit.

REVERSED AND REMANDED with directions.

LETTS, C.J., and DELL, J., concur.

      . See Pitkin v. Ryan, 409 So.2d 1221 (Fla. 4th DCA 1982). See also Disciplinary Rule 2-106(B), Code of Professional Responsibility.


text:
    VITAL INDUSTRIES, INC., Appellant, v. Ronald H. BURCH, Appellee.
    No. 82-995.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Bruce E. Hoffman of Law Offices of Eilon Krugman-Kadi, Gainesville, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Vital Industries, Inc., defendant below, appeals from a non-final order which dismissed (with leave to amend) appellee’s complaint for failure to state a cause of action but denied that portion of the motion to dismiss based upon improper venue. The court apparently thereby determined that venue was properly laid in Palm Beach County.

The cause of action was based on an alleged breach of a contract of employment. From the scant pleadings before us it appears that only two contacts exist between the cause of action and Palm Beach County. The offer of employment was mailed from Alachua County to appellee in Palm Beach County and at that time the appellee resided in Palm Beach County. Alachua County has numerous other contacts with the parties and appears to be the proper venue.

“A cause of action for breach of contract accrues in the locale where the defendant fails to perform its contract.” Coordinated Constructors v. Florida Fill, Inc., 387 So.2d 1006-1007 (Fla. 3d DCA 1980); M.A. Kite Co. v. A.C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961). From the facts in the complaint, the alleged contract is a unilateral one consisting of an offer mailed to the appellee in Palm Beach County and an acceptance by appellee by going to work for appellant in Alachua County. Appellant allegedly breached the contract by dismissing the plaintiff in Alachua County. The affidavit accompanying appellant/defendant’s motion to dismiss states that Vital’s place of business is in Alachua County and plaintiff left employment at Vital November 10, 1981. On these facts it is clear that the cause of action arose in Alachua County and the action should be transferred there.

We therefore reverse that portion of the order pertaining to the venue issue and remand with instructions to transfer this cause to the appropriate court in Alachua County.

REVERSED and REMANDED.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


text:
    Martha HARRIGAN, as Personal Representative of the Estate of John W. Garrick, deceased, Appellant, v. Anna HARRISON a/k/a Anna Harrison Garrick, Appellee.
    No. 82-1016.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Joel L. Kirschbaum of Esler & Kirsch-baum, P.A., Fort Lauderdale, for appellant.
    James A. Week of Week & Week, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from an order entered in the probate division granting appellee an extension of time for the filing of an independent action pursuant to Section 733.-705(3), Florida Statutes (1981). The motion for extension of time asserted “good cause” but stated no reasons or grounds whatsoever. The motion was not accompanied by any affidavit and the motion was heard solely on the argument of counsel. There was simply no good cause demonstrated in accordance with the dictates of established precedent on this subject. See In re Estate of Wilisch, 384 So.2d 223 (Fla. 3d DCA 1980), and In re Estate of Dezso, 382 So.2d 399 (Fla. 4th DCA 1980). The order extending the time for the filing of appellee’s independent action is thus vacated and set aside.

REVERSED.

LETTS, C.J., and BERANEK and HERSEY, JJ., concur.


author: DELL, Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Freddie James SWEETING, Ernestine Sweeting, and Village of North Palm Beach, Appellees.
    No. 82-1044.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Joseph R. Boyd and W. Crit Smith of Boyd & Smith, P.A., and Chriss Walker, Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
    Edna L. Caruso, West Palm Beach, for appellee Freddie James Sweeting.
   DELL, Judge.

The Department of Health and Rehabilitative Services [HRS] appeals an order of the trial court which dissolved a continuing writ of garnishment.

A final judgment of dissolution entered in 1976 awarded appellee Ernestine Sweet-ing (now known as Ernestine Forbes) custody of six minor children born of her marriage to appellee Freddie Sweeting. The final judgment ordered Freddie Sweeting to pay $25.00 per week child support. He made no child support payments through 1980, and Ernestine Forbes received state assistance through HRS pursuant to Sections 409.235 et seq., Florida Statutes (1981), Aid to Families With Dependent Children [AFDC]. In 1981, HRS instituted proceedings to collect child support arrear-ages from Sweeting. The trial court’s order containing final judgment found and adjudged Sweeting indebted to HRS in the amount of $5,404.00. The order also granted a continuing writ of garnishment, pursuant to Section 61.12, Florida Statutes (1981), against Sweeting’s employer, the Village of North Palm Beach. The writ issued in March, 1981.

The following November, HRS cancelled the Forbes’ AFDC grant, and she petitioned for modification of child support. Sweeting and Forbes entered into a settlement agreement in which Forbes agreed to cooperate to expunge the writ of garnishment, and Sweeting agreed that upon expungement, he would pay to Forbes as additional child support all funds previously being paid to the Department. Sweeting filed a motion to set aside writ of garnishment, which Forbes did not resist. The trial court modified child support in accordance with the settlement agreement, and dissolved the writ of garnishment on the authority of Sokolsky v. Kuhn, 405 So.2d 975 (Fla.1981). The next day, HRS filed its controverting affidavit and motion for rehearing, which the trial court denied.

In Sokolsky v. Kuhn, the former wife reduced child support arrearages to a final money judgment and secured a writ of garnishment. The former husband moved to dissolve the writ and filed an affidavit of exemption alleging that he is the head of a family, exempt from garnishment under Section 222.11, Florida Statutes (1979). The former wife filed no controverting affidavit. The trial court found that the former husband was not exempt from garnishment due to Section 61.12. Section 61.12 creates an exception to the head of family exemption from garnishment with respect to orders of the court for alimony, suit money, or child support. The Supreme Court held:

[T]he exception to the head of the family exemption from garnishment of an ex-spouse’s wages created by section 61.12 does not apply here where the ex-wife has reduced past-due child support to a final money judgment and that, therefore, in seeking garnishment the ex-wife must comply with the requirements of section 222.12 in order to succeed in her garnishment proceeding.

Id. at 977. The ex-husband’s status as a head of a family depended upon his obligation to support children other than those in the custody of his ex-wife. The Supreme Court’s footnote 1 states in pertinent part:

[I]t is conceivable that where an ex-wife reduces to money judgment an order for past-due support payments and seeks garnishment of her ex-husband’s wages to collect this debt, the husband might attempt to claim the head of the family exemption in section 222.11 by claiming that he pays alimony or child support to his ex-wife.... This holding, however, is limited to a situation where a third-party creditor seeks garnishment. If this type of exemption were available in cases involving past-due child support or alimony, an ex-husband would be able to defeat his former wife’s garnishment on the basis that he is the head of the family to which he is liable for child support or alimony and for which he is indebted. We do not intend such an absurd result. An ex-husband will not be able to avoid garnishment for past-due child support or alimony on this basis. (Emphasis added.)

Id. at 977.

This is the situation sub judice. Sweet-ing claims to be exempt by virtue of his status as the head of a family. This status depends upon his obligation to support persons whom he has in fact declined to support. Accordingly, had Forbes resisted the motion to set aside writ of garnishment, Sweeting could not claim exempt status as against her.

However, Forbes has not resisted the motion, and the writ was not issued in her favor, but rather in favor of HRS, for reimbursement of sums paid to support her children. Forbes and Sweeting contend that HRS is a mere third party creditor, and cannot avoid the head of family exemption.

The Supreme Court addressed this issue in Lamm v. Chapman, 413 So.2d 749 (Fla.1982). The husband therein failed to make child support payments, the wife received AFDC support, and the trial court granted HRS’s petition to have all payments due from husband paid into court with directions to forward them to HRS. The State’s attorney subsequently filed a motion for contempt for nonpayment, and the trial court sentenced the husband to jail, with provisions to purge the contempt. The district court reversed, inter alia, on the ground that the contempt order was an unconstitutional imprisonment for debt. Although it recognized that the obligation to pay child support is not debt but a duty to the family which may be enforced by contempt, it held that when this duty has been converted into a debt to a third party, that third party may not enforce payment by contempt.

The Supreme Court rejected this portion of the district court’s opinion. Upon examination of Section 409.2561 and the declared public policy regarding child support, the Court concluded that the legislature did not intend to prohibit the State from using civil contempt as a means of securing repayment of public moneys expended in behalf of the unsupported child. The Court made the following statements:

By the express authority of section 409.-2561(3)(c), the state is empowered to act in the place of the public assistance recipient in seeking civil enforcement of the child support obligation; no limitations are placed on the state’s choice of remedies. We construe section 409.2561(3)(c) to authorize the state’s use of the identical remedies against the responsible parent as are available to the child’s custodian, including, but not limited to, the use of civil contempt.
* * * * * *
[T]he assignment of the child support obligation to the state, under section 409.-2561(3) does not change the nature of the obligation, nor does it limit the means by which the obligation may be enforced.
* is sfc ¡fc sfc
We note that, although contempt may be the most generally used means of enforcing the child support obligation, it is not the only remedy available to the state or to the child’s custodian. Either could obtain a judgment for an arrearage of child support. In the event that such a judgment is obtained, it constitutes a judgment debt upon which execution may issue and for which traditional enforcement remedies, including liens and levies, may be utilized.

Id. at 752-53, (emphasis added).

Accordingly, in the case sub judice, the State, through the Department of Health and Rehabilitative Services, is not a third party creditor, but stands in the shoes of the wife, and may collect outstanding child support by any remedy available to the wife.

Forbes and Sweeting argue that HRS has lost its privileged position because AFDC payments have terminated. We disagree. The Supreme Court in Lamm held that it is the acceptance of public assistance which vests the authority to proceed with all remedies in the Department. Forbes accepted public assistance and the fact that the public no longer provides assistance does not operate to erase HRS’s previously vested authority to collect arrearages.

We hold that under the facts of this case, appellee Sweeting is not the head of a family for purposes of the exemption from garnishment provided by section 222.11. We reverse and remand with instructions to reinstate the writ of garnishment.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Although the final judgment modifying child support states, “The parties have noticed the State of Florida, Department of Health and Rehabilitative Services with a motion to set aside writ of garnishment,” the certificate of service attached to that motion indicates that Sweeting did not serve the department. HRS neither affirms nor denies receipt of notice, and does not argue the lack thereof as grounds for reversal.


text:
    Deborah B. ALBERT, Linda Sonnenblick and Shirley Bland, Appellants, v. HARTFORD NATIONAL BANK AND TRUST COMPANY, a National Banking Association, organized and existing under the National Banking Act of The United States, Appellee.
    No. 82-1170.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Joseph P. Klock, Jr., and Robert W. Goldman of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for appellants.
    Dennis J. Powers of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellee.
   DELL, Judge.

This appeal involves purportedly contradictory orders entered in two cases simultaneously before the circuit court: In re: Estate of Bland (Estate), a probate proceeding before Judge Johnson; and Hartford National Bank, etc. v. Albert, et. a1. (Hartford), a domestication action before Judge Cook. Appellants, personal representatives of the estate of Chester Bland, challenge Judge Cook’s order compelling production in aid of execution.

Appellee, Hartford National Bank and Trust Company, had received a judgment against Mr. Bland and five co-venturers in Connecticut. Bland died shortly thereafter and his will was admitted to probate in Florida. Appellee filed a statement of claim in Estate seeking the full amount of the Connecticut judgment, to which appellants objected. Thereafter, appellee filed its complaint in Hartford, seeking to domesticate the Connecticut judgment. Judge Cook entered a final judgment in favor of appellee, which he later amended to provide the clause “for which let execution issue.” Appellee filed a motion for writ of execution in both cases, and filed a notice of taking of deposition in aid of execution and a request for production in aid of execution in Hartford. Appellants objected, and ap-pellee moved to compel production in Hartford.

On May 11, Judge Johnson denied appel-lee’s motion for writ of execution in Estate, and on May 12, Judge Cook granted appel-lee’s motion to compel production in aid of execution in Hartford. Appellants filed their notice of appeal, directed to Judge Cook’s order of May 12, on the same day that Judge Cook transferred Hartford to the probate division for all further proceedings.

Appellants contend Judge Cook’s order compelling production is premature because appellee may not compel production in aid of execution before receiving a writ of execution; Judge Johnson has denied appellee’s motion for writ of execution; and appellee cannot collect any portion of the judgment without the approval of the probate court.

Judge Cook properly compelled production in aid of execution. The final judgment in the domestication action is independent of the probate proceeding. The amended final judgment provided for issuance of execution and entitled appellee to discovery under Rule 1.560, Florida Rules of Civil Procedure. Rule 1.560 permits a judgment creditor to obtain discovery in aid of execution from any person in the manner provided in the Rules of Civil Procedure. Parties may obtain discovery by deposition or by production of documents or things regarding any matter, not privileged, that is relevant to the subject matter of the action. Fla.R.Civ.P. 1.280. Appellee requested documents relevant to execution of the judgment in the domestication action. Further, appellee’s motion to compel states that the purpose of the request is to discover assets which might have been fraudulently transferred before Mr. Bland’s death. Since probate is a proceeding in rem, Section 731.105, Florida Statutes (1981), and the estate subject to administration is the res, Section 731.201(2); In re Williamson’s Estate, 95 So.2d 244 (Fla.1957), Judge Johnson’s order denying execution does not affect executable assets outside the probate estate, nor does it prohibit appellee from taking discovery in aid of execution.

Accordingly we affirm Judge Cook’s order compelling production in aid of execution of the domesticated Connecticut judgment.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


text:
    In the Interest of O.W., a child.
    No. 82-1206.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Margaret Good, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

O.W., a child thirteen years of age, appeals from an adjudication of delinquency for violation of Section 856.021, Florida Statutes (1981), loitering and prowling, a misdemeanor.

The arresting officer while patroling in a residential area near a school and on a school day observed two young boys in a tree. While talking with the boys he heard a noise in some nearby bushes and saw three young boys, including appellant, run through a field where homes were located nearby. The officer called to the boys but they kept running. After chasing the boys for eight or nine blocks, the officer apprehended appellant. Notwithstanding appellant’s explanation that he was skipping school, the police officer arrested him and charged him with loitering and prowling. The officer testified that his suspicions were aroused because the boys were running away in an area which had the reputation of being a meeting place for student drug transactions.

A conviction for loitering and prowling under Section 856.021, Florida Statutes (1981) requires proof of two elements:

(1) The defendant loitered or prowled in a place, at a time, or in a manner not usual for law abiding individuals; (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. This alarm is presumed under the statute if, when a law officer appears, the defendant flees, conceals himself or refuses to identify himself. Prior to any arrest, the defendant must be afforded an opportunity to dispel any alarm or immediate concern by identifying himself and explaining his presence and conduct. If it appears at trial that the explanation is true and would have dispelled the alarm or immediate concern, then the defendant may not be convicted under this statute.

State v. Ecker, 311 So.2d 104, 106 (Fla.1975).

We find the evidence insufficient to support this adjudication of delinquency. The State has not shown how climbing trees, playing in bushes or running through woods and fields constitutes an unusual activity for a thirteen year old boy. We find appellant’s explanation that he was skipping school consistent with the circumstances surrounding his arrest and the State offered no evidence to the contrary. Accordingly, we reverse the judgment and sentence and remand this matter for entry of such further orders as may be consistent herewith.

REVERSED and REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    MAX BAUER MEAT PACKER, INC., Appellant, v. GORDON CARTONS, INC., Appellee.
    No. 82-1285.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Stevan Mishan of Cristol, Mishan & Sloto, Miami, for appellant.
    Bruce Zeidel of Cohen & Scherer, P.A., West Palm Beach, for appellee.
   DOWNEY, Judge.

This is an interlocutory appeal from a non-final order denying appellant’s motion to dismiss for improper venue. We hold the order appealed from is erroneous and reverse.

Appellee sued appellant in three counts for goods sold and delivered and on an open account. Appellant responded by moving to dismiss for improper venue. The record reflects that appellee is a Maryland corporation and appellant a Florida corporation with offices in Dade County. Appellant neither has an office nor does business in any other county in Florida. Appellant ordered certain goods from appellee during October and November, 1981, for which it received invoices that stated on their faces, “Please send all remittances to Gordon Cartons, Inc., Baltimore, Md. 21230.... ” When payment was not received, the matter was turned over to appellee’s lawyers, whose office is in North Palm Beach, Florida. On March 1,1982, those lawyers wrote appellant advising that they represented appellee and that the office of their firm had been designated as the place of payment of the debt.

This suit was commenced in Palm Beach County. Appellant’s motion to dismiss for improper venue was accompanied by an affidavit stating that appellant’s principal office is in Dade County and that it has no office in Palm Beach County nor does it do business in that county. Finally, the affidavit states that the place of payment of said account was Baltimore, Maryland. In opposition, appellee filed an affidavit of its counsel stating that he sent the aforementioned collection letter to appellant on March 1, 1982.

The controlling venue statute is Section 47.011, Florida Statutes (1981), which provides that action shall be brought only in the county where a) the defendant resides, or b) the cause of action arose, or c) the property in litigation is located. There being no property involved in this litigation, appellant must be sued in the county of its residence, Dade County, or where the cause of action accrued.

The next applicable principle is that a cause of action for breach of contract to pay money accrues where the debt is to be paid; if no place of payment is designated, the debt accrues at the residence of the creditor. State Dept. of Trans, v. San Marco Cont. Co., 355 So.2d 133 (Fla. 1st DCA 1978).

The invoices reflecting the shipment of goods creating the debt in question direct payment to be made at appellee’s residence in Baltimore, Maryland. That eliminates the second prong of three allowed by Section 47.011 for establishing venue. Nor can counsel, through the ingenious method of writing a letter demanding payment at their North Palm Beach law office, create an additional fourth alternative in the statute. On this record we hold that the cause of action accrued in Baltimore, Maryland. Therefore, the appropriate venue for suit in Florida is Dade County.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to transfer the cause to the Circuit Court of Dade County. Gross v. Franklin, 387 So.2d 1046 (Fla. 3rd DCA 1980).

REVERSED AND REMANDED with directions.

HERSEY and HURLEY, JJ., concur.


text:
    Irving SAMPSON, an individual, Petitioner, v. The Honorable Robert Lance ANDREWS, a Judge in the Seventeenth Judicial Circuit in and for Broward County, Florida, and Joseph W. Peltz, an individual, and Warren J. Peltz, an individual, Respondents.
    No. 82-1414.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Dan Cytryn, Lauderhill, for petitioner.
    John Daniel Nyce, Fort Lauderdale, for respondents Joseph W. Peltz and Warren J. Peltz.
   PER CURIAM.

We issue the writ of certiorari sought herein and quash the order of the trial court on the authority of Container Corp. v. Seaboard Air Line R. Co., 59 So.2d 737 (Fla.1952); Milhet Caterers, Inc. v. North Western Meat, Inc., 185 So.2d 196 (Fla. 3d DCA 1966); Edgar v. Economic Opportunity Legal Services Program, Inc., 230 So.2d 487 (Fla. 3d DCA 1970) and Carbonnel v. American International Pictures, Inc., 313 So.2d 417 (Fla. 3d DCA 1975).

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    CITY OF MIRAMAR, Petitioner, v. Thomas GIORDANO, Respondent.
    No. 82-1441.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Edward Paul Kreiling, City Atty., Mira-mar, for petitioner.
    Levi England of England & Donato, Dav-ie, for respondent.
   HERSEY, Judge.

Respondent, Thomas Giordano, was suspended from his duties as a Firefighter/Paramedic with the City of Mira-mar and then was discharged by the city. His dismissal was affirmed by the Civil Service Board, which specifically found Giordano guilty of the following:

1. On or about January 30, 1978, while on duty, he struck a patient whom he was treating, causing further injury to the patient.

2. On or about November 9, 1977, while on duty, he made unwarranted statements to a teenage female, indicating repeatedly that he loved her and using an obscenity to describe a member of the Volunteer Fire Department.

3. Numerous complaints about his attitude have been received from his fellow employees, both paid and volunteer. These complaints have culminated in a letter from the Captain of the Volunteer Rescue Department, requesting his dismissal.

4. On or about July 16,1977, he responded in an improper manner to a member of the volunteer staff when said member had telephoned for emergency equipment.

Respondent next filed a petition for a writ of certiorari in the circuit court. After a considerable lapse of time that court reversed the holding of the Civil Service Board, finding a lack of substantial competent evidence to support termination of respondent’s employment. The city has filed with us a petition for writ of certiorari to review the decision of the circuit court.

The original hearing by the Board extended over several meetings during which the testimony of many witnesses was taken and a voluminous record amassed. The Board upheld termination of respondent by a vote of four to three.

Some of the testimony is subject to more than one interpretation. Throughout the recital of complaints there is an undercurrent of personality conflicts. The question of impropriety seems often clouded by animosity, the Board apparently believing that the animosity of the witnesses was generated by the improprieties; the circuit court seemingly concluding that the appearance of impropriety was fostered in the witnesses’ minds by personal dislike of respondent.

However, the witnesses and respondent were directly observed by the members of the Board. It was exclusively their domain to determine the credibility of each witness and to assign the appropriate weight to his or her testimony. They were the finders of fact. Neither the circuit court nor this court may usurp the fact finding function. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982); Cherokee Crushed Stone v. City of Miramar, 421 So.2d 684 (Fla. 4th DCA 1982).

Thus we are impelled to the conclusion that the holding of the Civil Service Board is supported by evidence that was substantial and competent, as those terms have been defined in the context of certiorari. It was a departure from the essential requirements of the law for the circuit court to revisit the evidence to reweigh it or to determine its relative credibility. On that basis we grant the petition and quash the writ of certiorari issued out of the circuit court. The order of the Civil Service Board is reinstated and affirmed.

CERTIORARI GRANTED.

LETTS, C.J., and GLICKSTEIN, J., concur.


text:
    ACMAR ENGINEERING CORP., a Florida corporation, Security Management Corp., a Maryland corporation authorized to do business in the State of Florida, et al., Petitioners, v. Honorable Otis FARRINGTON, Retired Circuit Judge on Assignment to Active Judicial Service in the Seventeenth Judicial Circuit, in and for Broward County, Florida, and City of Hallandale, a Florida municipal corporation, Respondents.
    No. 82-1551.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Marion E. Sibley of Sibley, Giblin, Leven-son & Glaser, Miami Beach, and Buchbinder & Elegant, P.A., Miami, for petitioners.

      John G. Fletcher, South Miami, and Steven L. Josias, Fort Lauderdale, for respondent-City of HaHandale.
   HERSEY, Judge.

Relying on Donaldson Engineering, Inc. v. City of Plantation, 326 So.2d 209 (Fla. 4th DCA 1976) the trial court determined that it had no jurisdiction to modify the terms of a final judgment where that judgment reserved jurisdiction merely “for enforcement of the Final Judgment.”

Petitioners seek a writ of mandamus to compel the trial court to assume or exercise jurisdiction.

The distinction between Donaldson and this case is that the former involved a final judgment whereas the present case originally terminated in the issuance of a mandatory injunction. It was early determined in Florida law that an injunction may be modified by the court at any time based upon a change in circumstances. See, e.g., Florida Industrial Commission v. Ebner, 111 So.2d 79 (Fla.1959). The supreme court succinctly laid the matter to rest in Seaboard Rendering Co. v. Conlon, 152 Fla. 723, 12 So.2d 882, 883 (Fla.1943) in the following language:

In Jackson Grain Co. et al. v. Lee, 150 Fla. 232, 7 So.2d 143, 146, we recognized the doctrine announced in 28 Am.Jur., pages 494 and 495, that a court rendering a decree of this character “may open or modify the same where the circumstances, and circumstances of the parties, are shown to have so changed as to make it just and equitable to do so * * *.”

Being thus advised that its jurisdiction to modify the injunction continues, we assume the trial court will exercise that jurisdiction so that it will not be necessary to issue the writ and that the matter will proceed to be heard on the merits.

We grant the petition but withhold issuance of the writ.

LETTS, C.J., and WALDEN, J., concur.


text:
    DOW CORNING CORPORATION, Petitioner, v. Allibert GARNER and George M. Garner, her husband, and Kenneth L. Winslow, Respondents.
    Nos. 82-1835, 82-2170.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Marc Cooper of Greene & Cooper, P.A., Miami, and David F. McIntosh of Corlett, Killian, Hardeman, McIntosh & Levi, Miami, for petitioners.
    Jack H. Vital, III, of Simons & Schlesinger, Fort Lauderdale, and Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for respondents.
   PER CURIAM.

Petitioner, Dow Corning Corporation, by consolidated petitions for writ of certiorari, seeks review of two orders requiring production of documents.

We find the orders compelling discovery contain sufficient safeguards to protect petitioner from disclosure of work product, trade secrets, and other privileged information. However, in light of the broad scope of discovery sought by respondents, Allibert and George Garner, the trial court’s failure to condition discovery on the payment of petitioner’s reasonable expenses of making discovery constitutes a departure from the essential requirements of law with no adequate remedy by appeal. Schering Corporation v. Thornton, 280 So.2d 493 (Fla. 4th DCA 1973).

Accordingly, we grant certiorari and direct the trial court to enter such further orders as may be necessary to conform to the requirements of Florida Rule of Civil Procedure 1.280(c).

CERTIORARI GRANTED.

HERSEY, DELL and WALDEN, JJ., concur.


text:
    Oakley FARMER, Petitioner, v. The Honorable Mark E. POLEN, Judge, Circuit Court of Broward County, Florida, Respondent.
    No. 82-1918.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Steven Squire of Miller & Squire, Chartered, Fort Lauderdale, for petitioner.
    John B. Di Chiara of Di Giulian, Spellacy & Di Chiara, Fort Lauderdale, for Valerie Henry.
   DELL, Judge.

Oakley Farmer petitions this court for a writ of mandamus to compel the respondent judge to enter a final judgment confirming an arbitration award. Judge Polen filed no response. Valerie Henry, petitioner’s former employer and losing party in the arbitration proceeding, did respond.

Petitioner and Henry entered a written employment agreement, which contained a clause providing that the parties would settle all controversies and disagreements arising under the contract by arbitration. A dispute arose, petitioner resigned and the parties arbitrated in accordance with the arbitration clause of the contract. The arbiters awarded petitioner $20,000 accrued compensation. Henry filed a petition for modification in which she did not contest the award but merely asserted an error in calculation. The arbiters denied the petition for modification. Petitioner filed his complaint to confirm the arbitration award. Henry filed her answer, counterclaimed for breach of contract, and prayed for damages. Petitioner moved for entry of final judgment, asserting that Henry’s counterclaim, filed more than 90 days after the award, did not operate as a motion to vacate the award, thus compelling the court to enter final judgment under Section 682.12, Florida Statutes (1981). The court struck Henry’s counterclaim on the ground that Chapter 682 does not permit the filing of a permissive counterclaim, deferred ruling on petitioner’s motion for entry of final judgment, and permitted Henry to serve an amended counterclaim. Henry filed an amended counterclaim seeking rescission of the employment contract.

Henry does not dispute mandamus as the appropriate procedure, petitioner’s contention that she did not timely move to vacate the award, or that petitioner established the statutory prerequisites to an award, thus rendering confirmation a ministerial duty. We need only decide whether Henry, by filing a counterclaim seeking the equitable remedy of rescission of the contract containing the arbitration clause, may avoid the statutory time limit to protest the validity of the arbitration award.

We hold that under the facts of this case, she may not. Henry relies upon Watson v. Chase Chemical Corp., 249 So.2d 53 (Fla. 1st DCA 1971), and quotes the following language as “inferential approval” of her amended counterclaim:

In the case sub judice, in order to have relieved himself of the binding contractual provision of an agreement to arbitrate, it was incumbent upon plaintiff to sue for rescission of the entire contract.

Id. at 54. This dicta, taken out of context, cannot save Henry’s claim. In Watson, the parties had entered a contract containing an arbitration clause. When a dispute arose, the plaintiff made no attempt to arbitrate, but proceeded to file suit for breach of contract. The trial court dismissed the complaint by reason of the arbitration clause. The district court affirmed. Although the district court did indicate that a suit for rescission of the entire contract “at the outset” would have been proper, it held that by filing suit for breach of contract, the plaintiff elected a remedy which affirmed the existence of the contract.

Where a party elects to adopt one of two inconsistent remedies, he cannot after-wards pursue the other, even though he fails in the remedy elected and used. Where the election of a remedy assumes the existence of a particular status or relation of the party to the subject matter of litigation, the party cannot after-wards pursue another remedy by which he assumes a different and inconsistent status or relation to the subject matter.

Watson, supra, at 54, quoting Weeke v. Reeve, 65 Fla. 374, 61 So. 749 (1913). The court held that to relieve himself of the binding arbitration clause, Watson should have sued for rescission.

Henry’s actions demonstrate that she elected to ratify and confirm the contract, including the arbitration clause. Henry did not file her suit for rescission, rather she participated in arbitration; timely filed a petition to modify in which she did not dispute the validity of the award, but only challenged the calculation of the amount thereof; failed to file a petition to vacate the award; and answered petitioner’s complaint to confirm the award with a counterclaim for breach of contract. All of these actions preceded the amended complaint for rescission.

By failing to timely challenge the validity of either the arbitration provision or the arbitration proceeding, Henry cannot now seek rescission of the contract which she ratified and confirmed by her actions. Therefore, the trial court erred when it denied petitioner’s motion for entry of a judgment confirming the arbitration award. Accordingly, we grant the petition for writ of mandamus and direct the trial judge to enter judgment confirming the arbitration award in favor of the appellant.

MANDAMUS GRANTED.

LETTS, C.J., and GLICKSTEIN, J., concur.


text:
    Kenneth B. GALLIGAN, Appellant, v. Richard BURGESS and The Monastery, Inc., d/b/a Monk’s Lounge, Appellees.
    No. 82-1935.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Gregg J. Pomeroy and Robert W. Kelley of Pomeroy, Betts & Pomeroy, Fort Lauder-dale, for appellant.
    Kevin A. Malone of Krupnick & Campbell, P.A., Fort Lauderdale, for appellee, Burgess.
   DELL, Judge.

Kenneth Galligan appeals from an order denying his motion to set aside an order granting appellee Richard Burgess’s motion to enforce a settlement against appellant and The Monastery, Inc., d/b/a Monk’s Lounge (Monastery).

Appellant owned all of the stock of KBG, Inc., the parent corporation of Monastery which owned and operated Monk’s Lounge. Appellee sued appellant and Monastery for damages resulting from personal injuries allegedly suffered in Monk’s Lounge. Appellant received service of process and notified the insurance carrier for Monastery, Northeastern Fire Insurance Company of Pennsylvania (Northeastern), of the suit and forwarded the complaint to the insurer for a defense. Northeastern retained Pom-eroy, Betts & Pomeroy to defend. Pomeroy sent appellee a $6,000 offer of judgment on behalf of appellant and Monastery, which appellee accepted.

When Northeastern went into receivership appellee moved to enforce the settlement against appellant individually. The trial court granted the motion to enforce settlement, giving appellant and Monastery 20 days to pay the settlement. Appellant retained independent counsel and moved for a rehearing to set aside the offer of judgment, claiming that he never authorized the law firm retained by Monastery’s insurance carrier to settle the claim. The trial court denied appellant’s motion for rehearing to set aside the offer of judgment. This appeal followed.

Appellant contends that the trial court should have set aside the order enforcing the settlement because he did not authorize, consent to or ratify the settlement.

The burden of establishing assent to a settlement rests on the party seeking judgment on that settlement. Goff v. Indian Lake Estates, Inc., 178 So.2d 910 (Fla. 2d DCA 1965). In a case factually similar to the case at bar, the Second District reversed a judgment entered against a named insured based on a compromise and settlement where all settlement negotiations took place between the plaintiff and the insurer’s attorney. The insured could not be bound unless the party seeking to enforce the settlement alleges and proves that the insured consented to or knew of the settlement negotiations. Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. 2d DCA 1963). In the present case, appellee alleged a settlement agreement with appellant individually but failed to present any proof of this agreement or subsequent ratification by appellant.

Accordingly, we reverse and remand with instructions to vacate that portion of the order which enforces the settlement against appellant.

REVERSED and REMANDED.

BERANEK and WALDEN, JJ., concur.

      . Monastery failed to appeal the order enforcing settlement and thus stands as an appellee in this appeal. 9.020(f)(2), Fla.R.App.P.


text:
    Pedro Luis PEREZ and Luisa Perez, his wife; Adolfo Rodriguez and Migdalia Rodriguez, his wife; Osvaldo Lopez and Josefa Lopez, Ms wife; and Octavio Valdes and Helen Valdes, his wife, Appellants, v. MAULE INDUSTRIES, INC., and the Insurance Company of North America (INA), Appellees.
    Nos. 80-54 to 80-56 and 80-58.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1983.
    Horton, Perse & Ginsberg and Edward A. Perse, Carroll, Halberg & Meyerson, Miami, for appellants.
    Vemis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Coconut Grove, Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellees.
    Before HENDRY, HUBBART and FERGUSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 30, 1982 (411 So.2d 960) affirmed the order of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 421 So.2d 515, by its opinion and judgment filed October 28, 1982 and mandate now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on April 15, 1982 is withdrawn, the judgment of this court filed March 30, 1982 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appeal from is reversed. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


author: THOMPSON, Judge. PER CURIAM. THOMPSON, Judge,

text:
    ARDMORE FARMS and ESIS, c/o INA, Appellants, v. Joan A. SMITH, Appellee.
    No. AJ-209.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    On Rehearing En Banc Dec. 29, 1982.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) bring this appeal from a compensation order awarding: (1) wage loss benefits for the months of August and September 1981; (2) permanent total disability (PTD) benefits commencing October 1, 1981, and; (3) costs of the proceedings. In the fourth and last paragraph of the decretal portion of the order, the deputy commissioner (deputy) reserved jurisdiction of the cause for the purpose of determining entitlement to attorney’s fees. With the exception of the award of wage loss benefits, we reverse these awards and strike that portion of the order reserving jurisdiction on the question of attorney’s fees.

On May 18, 1980 claimant, while employed as a truck driver, was exposed to dust thrown into the air by the eruption of the volcano Mount Saint Helens. This exposure resulted in serious and permanent injury to the claimant’s lungs. On September 1, 1981, the E/C stipulated and agreed to commence payment of wage loss benefits upon the submission of appropriate wage loss benefit request forms. The E/C paid wage loss benefits for the months of May, June, and July, 1981, but it thereafter refused to pay wage loss benefits for the months of August and September on grounds that the wage loss benefit request forms it received for those months were not properly filled out and executed. The benefit request forms at issue were not signed by either the claimant or her attorney, although they did bear the impression of the attorney’s signature stamp. These forms were marked to indicate that claimant was not receiving social security benefits.

Upon the E/C’s failure to pay wage loss benefits pursuant to these forms, the claimant applied for a hearing on the matter, which hearing was thereafter scheduled for December 11, 1981. The only issue which was in controversy when the hearing commenced on December 11, 1981 was the claimant’s entitlement to wage loss benefits for the months of August and September 1981, plus costs, interest, penalties, and attorney’s fees. During the hearing, the claimant submitted revised wage loss benefit request forms for the months of August and September, which were properly signed and which indicated that claimant was receiving certain social security benefits. The deputy thereafter issued the order described hereinabove, without including in her order any reference to the fact that claimant had submitted revised benefit request forms, and without making any finding as to whether the E/C were justified in refusing to honor the unsigned forms.

We agree with the deputy that the E/C are obligated to pay the claimed wage loss benefits for the months of August and September 1981. However, we hold that the benefit request forms originally submitted were not properly executed, and therefore the E/C’s obligation to pay the wage loss benefits did not mature until the date of the hearing when the claimant submitted accurate and duly executed forms. This court has held that the self-executing nature of the workers’ compensation law requires that mere failure to comply with technical requirements in filing wage loss benefit request forms should not defeat a valid claim for such benefits, Car Stop Unlimited v. Salmon, 404 So.2d 172 (Fla. 1st DCA 1981), and that there is “nothing sacrosanct” about the particular form by which wage loss benefits are requested, Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). However, the claimant’s failure to report receipt of social security benefits and her failure to sign a benefit request form, thereby attesting to its accuracy, were not “merely technical” omissions. Without accurate information as to what social security or unemployment compensation benefits claimant is receiving, the E/C cannot determine what wage loss benefits are due the claimant, and without claimant’s signature on the request form the E/C are unable to obtain the release of information from the Division of Employment Security. By failing and refusing to submit properly executed forms, the claimant herein deprived the E/C of an opportunity to calculate and ascertain the amount of the benefits due claimant, and to make timely payment thereof.

It is undisputed that the E/C accepted claimant as being PTD and commenced payment of PTD benefits prior to the hearing. There is no contention that the payment of PTD benefits was untimely. Therefore, there was no controversy with respect to the permanent and total nature of claimant’s disability, and the deputy erred in adjudicating the issue. Sperry Remington Office Machines v. Stelling, 383 So.2d 1150 (Fla. 1st DCA 1980). Although similar error was held harmless by another panel of this court, see G & S Packing Company v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980), we think it better to reverse such an award in order to avoid possible future confusion and unnecessary litigation concerning the appropriate basis for an award of attorney’s fees. Accordingly, that portion of the deputy’s order awarding PTD benefits is stricken.

In view of our reversal of the award of PTD benefits, and of our holding that wage loss benefits for the months of August and September 1981 did not become due and payable until the date of the hearing when claimant submitted properly executed wage loss benefit request forms, we must conclude that the claimant did not “prevail” in the proceedings before the deputy, and that the award of costs of the proceedings was also erroneous. Additionally, the deputy did not, and from this record could not, find that the carrier acted in bad faith in handling this claim. Therefore, the award of costs is reversed, and the portion of the order reserving jurisdiction to determine the issue of attorney’s fees is stricken. Claimant’s petition for appellate attorney’s fees is denied.

REVERSED.

MILLS and BOOTH, JJ., concur.

ON REHEARING EN BANC

PER CURIAM.

After reconsideration by the court on its own motion, en banc, the court by majority vote of the judges recedes from that portion of the original panel’s decision and opinion holding that because claimant’s wage loss forms were “not properly executed,” the E/C’s obligation to pay wage loss benefits did not mature upon receipt by the E/C, and that under the facts presented, the deputy commissioner’s reservation of jurisdiction to determine “bad faith” was error.

The majority of the judges of the court find that the original panel’s decision concerning the effect, as a matter of law, of defectively executed wage loss claim forms conflicts with the decision and opinion of this court in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

The facts are essentially as stated in the panel’s original opinion, with certain variations and omissions which will be mentioned. On May 18, 1980, the claimant, while employed as a truck driver, was exposed to dust thrown into the air by the eruption of the volcano Mt. St. Helens, resulting in serious and permanent injury to claimant’s lungs. On September 1, 1981, the E/C stipulated and agreed to commence payment of wage loss benefits, upon the submission of appropriate wage loss request forms, and this stipulation was communicated to the deputy commissioner by joint letter executed by counsel for the E/C and counsel for the claimant. On the strength of this stipulation, the claimant’s attorney canceled a scheduled hearing on wage loss and other claims. As stipulated, the E/C paid wage loss benefits for the months of May, June and July, 1981, but refused to pay wage loss benefits for the months of August and September, although wage loss request forms for these months were timely submitted. The E/C filed no notice to controvert (Section 440.20(6), (7), Florida Statutes (1979)), and filed no motion to dismiss the claim for either month (Section 440.-19(2)(b)). In short, so far as the record discloses, the E/C gave no reason for its denial and nonpayment of the August and September wage loss claims, and the record further discloses no “active effort and initiative” on the part of the carrier to determine its obligation to pay wage loss benefits to the claimant. Florida Erection Services, 395 So.2d at 211. The first and only indication given by the E/C of their reason for nonpayment is found in the prehearing stipulation in which the E/C asserted that the forms were “not signed,” and “no work search shown.” So far as appears from the record, the errors in reporting receipt of social security benefits, which are emphasized in the original panel’s opinion, were raised by the E/C for the first time on appeal, thus presenting conflict with Sun-land Hospital — State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

A hearing on the E/C’s failure to pay the August and September wage loss claims was scheduled and held on December 11, 1981. The E/C had been paying temporary total disability to the claimant prior to the submission of wage loss claims, and prior to the hearing stipulated that the claimant was permanently and totally disabled as of October 1, 1981. At the hearing the claimant submitted revised wage loss benefit request forms for the months of August and September, which were signed by her, and which indicated that she was receiving certain social security benefits. Based upon the stipulations of the parties, and the wage loss claim forms filed at the hearing, the deputy commissioner ordered payment of wage loss benefits for the months of August and September, and permanent total disability benefits commencing October 1, 1981. The deputy commissioner also ordered the E/C to pay costs of the proceedings, and reserved jurisdiction to determine the issue of attorney’s fees. The deputy commissioner made no reference in her order to the alleged defects in the original wage loss forms, and made no finding concerning whether the E/C justifiably refused to honor the forms originally submitted.

As pointed out by the original panel’s opinion, the original August and September wage loss forms were not signed personally by the claimant or her attorney, but they did bear the impression of the attorney’s signature stamp. The attorney was the same one with whom the E/C had previously dealt in stipulating for payment of wage loss claims, and in stipulating to the cancellation of a wage loss hearing before the deputy commissioner. The wage loss claim form for August contained a check-mark beside the word “No” in answer to the question: “Are you receiving any social security?” The September form indicated neither “Yes” nor “No” to this question. The wage loss forms submitted at the hearing before the deputy commissioner answered the social security question in the affirmative and gave the amount $362.90. The deputy commissioner’s order finds that claimant had an average weekly wage of $450.00 per week. Nothing in the order nor in the record or briefs before us indicates that the amount of social security would entitle the E/C to any set-off or adjustment on account of the social security benefits received by the claimant, nor that the E/C has been prejudiced in any manner because of the mis-information conveyed by the original claim forms filed by the claimant’s attorney.

The original panel’s decision held that because of the errors in failing to report social security benefits, and because the forms were “not signed” by either the claimant or her attorney, the forms were “not properly executed, and therefore the E/C’s obligation to pay the wage loss benefits did not mature until the date of the hearing when the claimant submitted accurate and duly executed forms.” In so holding, the panel acknowledged prior decisions holding that the mere failure to comply with technical requirements in filing wage loss benefit request forms should not defeat a valid claim for such benefits, citing Car Stop Unlimited v. Salmon, 404 So.2d 172 (Fla. 1st DCA 1981), and Florida Erection Services Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). The court concluded, however, that the failure to report social security benefits and the claimant’s failure to sign her request forms “were not ‘merely technical’ omissions.” In so holding the pri- or opinion collides with the principle enunciated in Florida Erection Services that the new workers’ compensation law “will not tolerate passive disapproval and rejection of claims on mere technical matters of form.” 395 So.2d at 211. Cf., Layne Atlantic Co. v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982); Exceptional Children’s Home v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982); Rinker Materials Corporation v. Harris, 413 So.2d 105 (Fla. 1st DCA 1982); Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981).

Even assuming for purposes of discussion, that certain errors or irregularities in the form of filing of wage loss claim forms might be considered “mere technical” defects or omissions, and others might be so serious as to completely invalidate the claim, the errors dealt with here, when compared with the error or omission in Florida Erection Services, must fall into the “mere technical” category. The omission in Florida Erection Services was the failure to complete that portion of the form requiring disclosure of claimant’s earnings during the month for which wage loss benefits were claimed. There could hardly be a more fundamental omission, since it is impossible to determine the amount of wage loss benefits due unless and until the E/C is informed of the amount of wages, if any, actually earned by the claimant. By contrast, the claimant’s failure to sign the wage loss claim forms in the present case (although they were submitted and properly identified as emanating from the claimant s counsel, who was known to the E/C), could have had no bearing upon the E/C’s duty to determine their obligation to pay wage loss benefits, particularly in view of the fact that the E/C had already stipulated to payment of wage loss benefits for those months. Furthermore, although the failure to provide the correct information regarding receipt of social security benefits could have some significance to the E/C, there is no indication in this record that the E/C failed to pay because of this omission, and indeed, for all the record shows, the fact that an error in this regard had occurred was not apparent until the December hearing before the deputy commissioner. If the E/C had this information at the time the wage loss forms were received, it could have adjusted the wage loss payments accordingly, if any adjustment was proper. If it did not have this information, then there was no way for the E/C to know that the August or September forms provided incorrect information, in which event, the carrier could not have used this as an excuse for nonpayment. The correct procedure, one which is clearly mandated by Florida Erection Services and its progeny, is for the E/C to proceed with “active effort and initiative” in order to “fairly and expeditiously determine its obligation to place needed benefits in the hands of the injured worker ....” 395 So.2d at 211.

It is clear that the establishment of an hierarchical approach to errors, defects and omissions in claim forms, pursuant to which some are “merely technical” and others as a matter of law have a nullifying effect, would substantially depart from Florida Erection Services. Under that decision, the obligation of the E/C promptly to pay benefits upon receipt of a claim regular on its face, or to actively seek any information needed to cure an irregularity, is not dependent upon the claimant’s compliance with technical requirements. A claim for wage loss benefits is adequate, under Section 440.20(4), if it is sufficient “to give ‘knowledge’ of his claim, which is all that is required.” Florida Erection Services, 395 So.2d at 212. Social security and unemployment compensation information is not required to be included in order for a claim to be “in compliance” with the law governing the contents of claims. Section 440.-19(2)(d); and see footnote 3. Even if such information were required by statute, the receipt of an incomplete claim form would be the occasion for action by the E/C, not an excuse for merely ignoring the claim.

It cannot be said as a matter of law that the E/C here could not be guilty of “bad faith” in failing to either pay or make a prompt investigation or determination of its obligation to pay the August and September wage loss claim forms when filed. This would deprive the claimant of the opportunity of seeking recovery of substantial benefits afforded her by the act, in the form of attorney’s fees, and would divest the deputy commissioner of the “broad discretion” which is the sine qua non of this aspect of workers’ compensation litigation. See, Florida Erection Services, at 213. Whether, and to what extent, the defects and irregularities in the claim forms submitted by the attorney hampered or impeded the E/C in the processing of the claims, and how the E/C’s “bad faith” liability may be affected thereby, are matters to be dealt with initially by the deputy commissioner at a hearing, based upon the evidence and arguments duly presented. We simply hold that the defects and irregularities shown thus far cannot be held as a matter of law to preclude claimant’s recovery of attorney’s fees to which she may be entitled under the statute. Section 440.34(3)(b), Florida Statutes (1981).

The original panel decision reversing the award of permanent total benefits, on the ground that these benefits had been accepted, were being paid, and were therefore not in controversy, is adhered to. Those portions of the prior opinion reversing the award of costs, and reversing and striking the deputy commissioner’s reservation of jurisdiction to consider attorney’s fees, are receded from and modified as stated in this opinion.

ROBERT P. SMITH, Jr., C.J., McCORD, ERVIN, LARRY G. SMITH, SHIVERS, SHAW, WENTWORTH, JOANOS and WIGGINTON, JJ., concur.

THOMPSON, J., dissents with opinion in which MILLS and BOOTH, JJ., concur.

THOMPSON, Judge,

dissenting.

I dissent and would adhere to the decision of the original panel. The majority finds that the original panel decision conflicts with the decision and opinion of this court in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981), and that the defects in the wage loss claim form filed in this case were “mere technical” irregularities of the type this court was referring to in Florida Erection Services. The majority also cites four other cases, all of which cite Florida Erection Services, but none of which involves the adequacy of a wage loss claim form. Two deal primarily with the bad faith issue that was involved in Florida Erection Services. See Layne Atlantic Co. v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982); Rinker Materials Corp. v. Har ris, 413 So.2d 105 (Fla. 1st DCA 1982). The other two cite Florida Erection Services as authority for the general proposition that employees are entitled to receive benefits with reasonable promptness. See Exceptional Children’s Home v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982); Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981).

There is a clear distinction between the irregularities involved in the claim filed in Florida Erection Services, and in the claim filed in this case. In Florida Erection Services, the claimant failed to send the carrier all four copies of the claim form and failed to fill in the wages earned during the period covered by the form. There is no statute or rule directing that a wage loss claim be filed in quadruplicate. Even if there was such a rule, the original or one copy of the claim form gives the carrier the same notice of the claim as an original and three copies. It is obvious that such an irregularity is a mere technical matter of form which should not and cannot be used to delay or deny payment of benefits. Although the irregularity of failing to specify the amount of wages earned, if any, is a greater hindrance to the carrier in promptly processing the claim than is the failure to file the claim in quadruplicate, this unnecessary hindrance should not prevent the carrier from processing the claim with reasonable promptness since this information concerning wages is available from the claimant or can be obtained by the carrier upon investigation without the consent of the claimant. However, information as to the social security or unemployment compensation benefits received by the claimant can only be obtained by the carrier from the claimant or with the written consent of the claimant. Any information given by the claimant as to the social security or unemployment compensation benefits received cannot be verified by the carrier without the claimant’s written consent.

Florida Erection Services did not involve the misrepresentation that the claimant was receiving no wages when, in fact, he was receiving wages. In this case, the claim form filed for wage loss benefits for the month of August contains a misrepresentation that the claimant was not receiving any social security benefits when, in fact, the claimant was receiving such benefits. The wage loss claim form contains the following notice “[a]ny person who, knowingly and with intent to injure, defraud or deceive any employer or employee, insurance company, or self-insured program, files a statement of claim containing any false or misleading information is guilty of a felony in the third degree.” False information that the claimant was not receiving social security when, in fact, she was receiving social security injures or defrauds an insurance company which is entitled to an off-set of the social security benefits. It is difficult to conceive how an act which constitutes a third degree felony punishable by not exceeding five years in the state penitentiary can be considered “a mere technical matter of form.” The August and September wage loss claim forms were not signed by the employee as directed in the form but were executed with the rubber stamp facsimile signature of her attorney. The original panel did not, as was assumed by the majority, determine that the use of a facsimile signature by an attorney may not be considered as a signing by the attorney. Rather, the original panel’s concern was that the claim form had not been signed by the claimant. The majority has cited no authority for the proposition that an attorney may attest to the accuracy of information provided on a wage loss claim form, or authorize the Division of Employment Security to release unemployment compensation information, either by signature or by facsimile signature. To be sure, an attorney may sign pleadings and other documents on behalf of a client, but an attorney is not empowered to authorize release of confidential information about a client or to sign affidavits for a client. A properly executed wage loss benefit request form includes representations of fact as to wages earned and social security and unemployment compensation benefits received, and constitutes authorization for the release of confidential information concerning unemployment compensation benefits received. The form is clearly more in the nature of an affidavit or a release than a pleading, and thus should be signed by the claimant personally. The form directs that the employee complete and sign that section and there is no authority in the law or on the form for execution of the form by the claimant’s attorney.

It is contended that § 440.19(2)(d), Fla. Stat., which specifies the information to be contained in claims, does not require the inclusion of social security or unemployment compensation information. While that statement is true, that section does not apply to wage loss claim form BCL-13b. Section 440.19(2)(d) applies to original claims for benefits which are filed with the Division of Workers’ Compensation (Division) and which, if contested, are thereafter referred to a deputy for hearing. The information which the statute requires to be included with the original claim permits the Division to identify the claim and the claimant, and to make the evaluation of the claim required under § 440.19(1). Wage loss benefit request forms serve the entirely different purpose of apprising the carrier of the amount of wage loss benefits due on a monthly basis. This is made absolutely clear by Fla.Admin. Code Rule 38F-3.18(3) which provides in part:

(3) LES Form BCL-13b as Claim for Benefits. The original filing of LES Form BCL-13b with the employer or carrier does not constitute the filing of a formal claim for benefits or claim for compensation as contemplated in subsection 440.19 or 440.25, Florida Statutes. The original filing of LES Form BCL-13b with the carrier (by the employee) is solely to provide the employee an administrative method to comply with the requirement of subsection 440.185(10) that the employee report to the carrier or self-insured employer any compensable wage loss....

The wage loss forms call for the inclusion of information which is not required by the statute relating to original claims and they do not require the inclusion of certain information required by the statute to be in original claims. LES Form BCL-13b, Request for Wage Loss Benefits, is an official form adopted by Fla.Admin.Code Rule 38F-3.25 and is authorized by law and rule adopted pursuant to law. The Division has the same authority to request social security information and a release of unemployment compensation information in that form as it did to adopt and authorize the use of LES Form BCL-14, Request for Social Security Disability Benefit Information, or LES Form BCL-20, Authorization and Request for Unemployment Compensation Information.

The majority opinion eliminates the requirement that the claimant sign the wage loss claim form and correctly fill in the amount of social security benefits received, and finds that the proper way for the carrier to obtain that information is to request that the claimant furnish the carrier with LES Form BCL-14 authorizing the release of social security information or LES Form BCL-20 authorizing the release of unemployment compensation information. This procedure would delay the processing of the claim instead of accomplishing the purpose stressed in Florida Erection Services of assuring the prompt payment of benefits. If the only procedure for obtaining social security information is to file a request, pursuant to Fla.Admin.Code Rule 38F-3.20, that the employee furnish a LES Form BCL-14 and the proper way to obtain information regarding unemployment compensation benefits paid is to request, pursuant to Fla.Admin.Code Rule 38F-3.22, that the employee furnish a LES Form BCL-20 then the carrier would be entitled to receive those forms before processing the claim. However, if the information or the authority to release the information is on the wage loss claim form when filed, there is no reason for any delay in processing it. Fla.Admin.Code Rules 38F-3.20 and 38F-3.22 both provide that if the injured employee willfully fails or refuses to furnish the form requested within 21 days from the date of demand, payment of workers’ compensation benefits for disability or supplemental compensation prescribed by § 440.15(l)(e), Fla. Stat. shall cease until such time as the employee furnishes the signed LES Form BCL-14 or LES Form BCL-20. Moreover, Fla.Admin.Code Rule 38F-3.22 relating to requests for unemployment compensation information provides that payment of benefits under the act for total disability or supplemental compensation pursuant to § 440.15(l)(e), Fla.Stat., shall cease until the employee furnishes LES Form BCL-20 to the party requesting the form. This indicates that at least that rule, if not both rules, is applicable to requests for social security information and unemployment compensation information only where the claimant has sustained a total disability as set forth in § 440.15(1) and not to claims for wage loss benefits under § 440.15(3). Even if applicable, the method advocated by the majority would delay instead of expedite the processing of a wage loss claim.

In holding that the claimant need not sign wage loss benefit claim forms the majority has eliminated the requirement that someone who has both knowledge of the information requested and the right to authorize the release of pertinent information sign the claim. If a person without actual knowledge can sign the claim and intentionally provide incorrect information, then the penalty provisions for furnishing false and misleading information can be totally avoided by the mere expedient of having someone other than claimant execute the claim form.

If it is permissible for an attorney to sign the form in lieu of the claimant, then the attorney should have the same responsibility for the accuracy of the information that the claimant has and should be subject to the same penalties for false or misleading information as is the claimant. If a claim for wage loss benefits can be filed by an attorney, there is absolutely no excuse for it being incorrect or incomplete.

It is also contended that the errors in reporting receipt of social security benefits which are emphasized in the original panel’s opinion were raised by the E/C for the first time on appeal thus presenting conflict with Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982). In the prehearing stipulation, the E/C asserted as a defense that the forms were not signed. Although the deputy never ruled on this defense, the defense that the wage loss claim forms were not signed and all issues reasonably encompassed within that defense, including unverified false information not attested to by the claimant, were raised before the deputy and thus preserved for appellate review.

I would adhere to the original panel decision.

MILLS and BOOTH, JJ., concur.

      . The deputy commissioner’s order alludes to the work search defense but contains no ruling with respect to that issue. Since this possible defense was not pursued on appeal, we assume that it has been abandoned by the E/C.

      . Although the original panel’s decision assumes that the use of a facsimile signature by the attorney may not be considered a “signing” by the attorney, no authority for this position is mentioned. Florida law is to the contrary. A facsimile signature can be sufficient, even on a document as important as an arrest warrant. See, State v. Hickman, 189 So.2d 254 (Fla.App.1966). See, further, Uniform Commercial Code, § 671.201(39), Florida Statutes, defining “signed” for Code purposes, as “includes any symbol executed or adopted by a party with present intention to authenticate a writing.”

      . The E/C’s argument that the claim form must be signed by the claimant in order to allow the E/C to obtain social security and unemployment compensation information is not well taken. If the E/C need this information, they have only to request it, either informally, by telephone or letter request, or by using more formal methods. The Division’s Rules 38F-3.20 and 38F-3.22 provide for social security and unemployment compensation information requests, and these rules also provide for specific forms for this purpose (Forms BCL-14, BCL-20). Section 440.19(2)(d), which specifies the information required to be included in claims, does not require the inclusion of social security or unemployment compensation information. The same subsection further prescribes a procedure for contesting claims which are “not in compliance” with the statute. The remedy for non-compliance is a motion to dismiss the claim. Neither the statute nor case law can support the E/C’s action here of simply ignoring the claim. Car Stop Unlimited v. Salmon, 404 So.2d 172, cited in the original panel’s decision, forecloses the argument that because the wage loss claim form (BCL-13(b)) contains the question relating to receipt of social security, the failure to answer or an erroneous answer invalidates the claim. “... [W]e conclude that failure by claimant to utilize the specific form prescribed by the Division should not be fatal so long as essential statutory requirements respecting claimed wage loss benefits are otherwise satisfied.” Id. at 173. Car Stop held that an application for hearing, under the circumstances presented, was properly treated as a claim.

      .Wage loss claims are payable 14 days from the date the E/C have “knowledge” of the compensable wage loss. Section 440.20(4), Florida Statutes. The wage loss claims for August and September were dated September 9 and October 6, respectively. The date received by the carrier is not apparent, but the record does disclose the claimant’s new application for wage loss hearing dated September 24, 1981.