author: CAMPBELL, Judge.

text:
    Stonewall JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1605.
    District Court of Appeal of Florida, Second District.
    April 23, 1982.
    Jerry Hill, Public Defender, Bartow, and Gregory E. Like, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

The trial of this cause and the resulting judgment and sentence are, to say the least, perplexing. The result causes us to address an issue that at first reflection seems to have been addressed many times, however, after careful consideration we determine this case to be one of first impression. The issue for our determination is whether a defendant may be found guilty of theft of property valued at $100 or more, grand theft of the second degree, section 812.-014(2)(b), Florida Statutes (1979), absent any specific proof of value by the state. We answer the question in the affirmative when, by the very nature of the property stolen, reasonable persons could not doubt that its value exceeded $100. In doing so, we stress the fact that this should occur only in those rare instances when the minimum value is undisputable and the jury cannot ascertain a specific value from the evidence or lack of evidence before it.

Appellant was charged by information with the theft on December 30, 1980 of a sailboat valued in excess of $20,000 which was the property of the United States Customs Service. That charge constitutes grand theft in the .first degree under section 812.014(2)(a), Florida Statutes (1979). The state’s proof showed that the boat was a 1980, 37-foot Hunter sailboat that had been seized by the United States Coast Guard on December 15, 1980, while it was carrying 2,000 pounds of marijuana on board. It had been turned over to the United States Customs Service for storage and handling when it became the subject of the alleged theft some two weeks later. In order to prove the value of the sailboat, the state called as a witness Robert Gonzalez, the supervisor for the Customs Service, who was on duty the night the boat was stolen. After testifying as to his duties and how the sailboat had come into the possession of the Customs Service, the following colloquy occurred:

Q Do you have an opinion as to how much that vessel was worth?
A Yes, sir, we have appraisers at the custom’s house and also for seized property vessels and vehicles go through the custom appraisers and they take the fair market value and that give (sic) us the official appraisal on it. This particular vessel was appraised at $55,000.

Appellant’s attorney promptly objected on the basis of hearsay. His objection was sustained and the jury was instructed to disregard the testimony.

Over appellant’s objection, the state made a request to call as a witness the person who had appraised the boat but whose name had not been furnished in the discovery process. After a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), the state’s request was denied.

The state then recalled Mr. Gonzalez and made the following proffer:

Q Who does your appraisals?
A Import Specialists located here in Tampa.
Q Who did the appraisal on the Moon Shadow?
A William Ingersoll.
Q Do you know how long he’s been an appraiser?
A Well over ten years.
Q Is that how long you have known him?
A Yes, sir.
Q How often does he do appraisal work for you?
A Every day.
Q Each time that he gives you an appraisal does that become a part of your file?
A Yes, it does.
Q Do you ever do any of your own appraisal work?
A No, sir.
Q You have an appraisal outfit that does everything?
A Well, they’re government employees working for the United States Government Service with a grade level and a job title and they’re specialists in their field. For example, if we make a seizure on any type of vessel, cargo vessel or anything, we don’t make the evaluation because we’re not qualified and these appraisers are, and they make the evaluation and we use that figure.
Q Ingersoll is a customs’ employee?
A Yes.
Q His report is regularly made a part of the file or whatever is on each piece of property that is seized?
A Yes, it is.
MR. DAVIS: Your Honor, I think, under the evidence code that an appraisal is a part of the regular business activities. I think clearly the situation we have here, we have an employee of the U. S. Customs, a professional appraiser, whom this gentlemen (sic) knows has been appraising for the United States Customs for at least ten years who daily makes custom reports that became a part of that custom file. I think this falls squarely within the hearsay exception.

That proffer was clearly an effort to introduce evidence of the appraised value of the sailboat as contained in the Custom’s file under the exceptions to the hearsay rule contained in section 90.803(6)(a) and (8). The trial judge rejected the proffer ruling that:

Somebody should have realized you have to prove the value of the boat, and you can’t do it by something that somebody has in their file that tells them it’s worth $55,000. I don’t know. I’m denying your motion for a continuance to bring in your other witness. There’s no other motion before me at this time that I know of.

While we agree that the state should have been better prepared to prove value, we feel that the proffered testimony was proper under either section 90.803(6)(a) or (8). The record is such, however, that we are not prepared to say that the admission of the contents of the Custom’s file would not also have violated the discovery process.

This case apparently is one in which the question of value was never really contested until the state attempted to prove it through the wrong witness, for as the trial judge observed, “I would say this: A 1980 37-foot Hunter certainly we know is worth more than $20,000, but as far as the proof goes you have a problem.” The state offered no other evidence of value, therefore, the jury had for its consideration only the following facts: The boat at the time it was stolen was an operable, 37-foot 1980 Hunter sailboat less than a year old. Fifteen days prior to its theft it had been seized by the United States Coast Guard while carrying 2,000 pounds of marijuana and it was being stored by the Customs Service.

The trial judge charged the jury in accord with the provisions of section 812.-012(9)(a)l and (b) regarding value as follows:

“Value” means: The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $100.

Section 812.012(9)(b) was added to the Florida Statutes in 1977. That section as paraphrased above by the trial judge reads literally as follows: “(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount, if no such minimum value can be ascertained, the value is .an amount less than $100.” The legislature obviously intended to provide an alternative method of determining value by adding that section to the statutes. However, we find no cases interpreting that section since its enactment to help us in determining a clear legislative intent. We cannot say with certainty that it was intended to allow a jury to rely on its “general knowledge” to determine a minimum value in every factual situation where the jury is presented no direct evidence of value. It does appear, however, that it may be utilized where, though no direct evidence of value is presented, there is a value which by the very nature of the stolen property itself is indicative of an uncontrovertible minimum value.

It is obvious the jury in this case did just that for it returned a verdict finding the appellant guilty as charged of grand theft of the first degree, i.e., property of the value of $20,000 or more.

We are not prepared to approve of a jury going so far as to find a minimum value of that amount on the basis of the evidence before it in this case, however, we find it would have been proper for the jury to return a verdict of guilt of grand theft in the second degree, i.e., property of the value of $100 or more. We think reasonable persons could not doubt that the value of the sailboat as described to the jury was $100 or more.

The cases that predate the 1977 amendment adding section 812.012(9)(b) seem clearly to require and limit proof of value to “market value.” See Negron v. State, 306 So.2d 104 (Fla.1975); Porter v. State, 341 So.2d 1017 (Fla. 2d DCA 1977); Platt v. State, 291 So.2d 96 (Fla. 2d DCA 1974). It is obvious to us upon careful consideration that the subsequent amendment intended, in limited or unusual circumstances, to broaden the manner of proof of “minimum” value to enable the trier of fact to determine degrees of theft. In those unusual circumstances where the minimum value of an item of property is so obvious as to defy contradiction, the better rule seems to be that relied upon by the Supreme Court of Illinois in People v. Tassone, 41 Ill.2d 7, 241 N.E.2d 419 (1968). In Illinois it was necessary to prove the value of property stolen was in excess of $150 to constitute a felony. In Tassone the defendant was charged with the felony theft of “a tractor trailer and one lot of merchandise, of the value of more than $150.” Id. 241 N.E.2d at 422. No evidence of value was offered. In affirming the defendant’s adjudication of guilt, the Illinois Supreme Court said:

It is true that in this case there was no direct proof of value. However, it has been well recognized that judicial notice may be taken of the fact that property has some value, although the courts have been reluctant to take notice of any specific value. (People v. Kurtz, 37 Ill.2d 103, 224 N.E.2d 817; People v. Price, 81 Ill.App.2d 111, 225 N.E.2d 453; People v. Kelly, 66 Ill.App.2d 204, 214 N.E.2d 290.) We see no valid reason why notice may not be taken in a case such as this that the property has a value of over $150. Courts do not operate in a vacuum; they are presumed to be no more ignorant than the public generally, and will take judicial notice of that which everyone knows to be true. (Owens v. Green, 400 Ill. 380, 394, 81 N.E.2d 149.) To say that it is not common knowledge that a large tractor and trailer are worth more than $150 is to close our eyes to reality. We do not take judicial notice of the exact value of the property but we do take notice that it is worth more than $150.

Id. 241 N.E.2d at 422-23. See also Kent v. State, 34 Ala.App. 443, 41 So.2d 194 (1949); Stooksbury v. State, 197 Tenn. 485, 274 S.W.2d 10 (1954); State v. Lawrence, 120 Utah 323, 234 P.2d 600 (1951). But see United States v. Wilson, 284 F.2d 407 (4th Cir. 1960).

There is an additional problem with the record in this case that we must address. The jury returned a verdict of guilty of grand theft in the first degree. In adjudicating appellant, the trial judge first pronounced a judgment of guilt of grand theft in the second degree. The assistant state attorney interrupted the oral sentencing to inform the judge that he should adjudicate appellant guilty of grand theft in the first degree, whereupon the judge immediately did so and sentenced him to ten years in prison. The subsequent written judgment and sentence and the commitment reflect an adjudication of guilt of grand theft in the second degree and a sentence of ten years. Grand theft in the second degree is a felony of the third degree and carries a maximum penalty of imprisonment for five years. §§ 812.014(2)(b), 775.082(3)(d), Fla. Stat. (1979).

Prior to the trial of this cause an order had been entered notifying appellant that he would be treated as a subsequent felony offender under section 775.084. That section provides that upon proper findings the trial court may sentence an habitual felony offender, in the case of a felony of the third degree, to an enhanced term of years not to exceed ten. The trial court’s judgment and sentence do not indicate that appellant was being sentenced as an habitual offender. The record as we have it does not reflect findings to support an enhanced sentence. We cannot determine from the record if the variance between the written judgment and sentence and the oral pronouncement was deliberate or by inadvertence. Regardless, we reverse the jury verdict as to a finding of guilt of grand theft in the first degree and direct a corrected entry of guilt of grand theft in the second degree. In addition, we direct that appellant be resen-tenced to a maximum of five years unless the proper findings are made to support an enhanced sentence pursuant to section 775.-084.

REVERSED in part, AFFIRMED in part and REMANDED for treatment consistent herewith.

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


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    Mary MANNING, f/k/a Mary Varges, Appellant, v. Richard VARGES, Appellee.
    No. 81-1768.
    District Court of Appeal of Florida, Second District.
    April 23, 1982.
    Stephen W. Sessums and Carole A. Taylor, of Albritton, Sessums & McCall, Tampa, for appellant.
    Donald A. Pleasants and Charles P. Schropp, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Mary Manning (Mary), formerly Mary Varges, appeals a final order in favor of Richard Varges (Richard), her ex-husband, allowing a credit against arrearages in child support and suspending child support. We affirm that portion of the final order allowing a credit against arrearages and reverse that portion suspending child support.

In 1978, the Circuit Court for Hillsbor-ough County dissolved the marriage of Mary and Richard. The court awarded her custody of their four minor children, subject to reasonable visitation privileges, and directed him to pay child support. On June 1, 1981, the commissioner of the circuit court served Mary and Richard by mail at their respective addresses in St. Ann, Missouri, and Tampa, Florida, with a notice of a July 22, 1981, hearing “to consider arrears of $5,271.86.” The notice concluded with the following warning: “BE PRESENT ... SHOULD EITHER OF YOU FAIL TO APPEAR, YOUR RIGHTS MAY BE SERIOUSLY PREJUDICED.” Richard appeared at the hearing with his attorney and offered testimony on his behalf. Mary, however, appeared neither in person nor through an attorney.

After the hearing, the court ordered and adjudged as follows:

1. That the husband’s support account shall be credited in the amount of $2,775.66 for charges that were erroneously placed against the husband’s account.
2. That the husband’s obligation to pay child support is hereby suspended until such time as the wife permits the husband to visit with the minor children of the parties still in her custody and enters into an agreement either with the husband or the Office of the Circuit Court Commissioner that would permit the husband to exercise reasonable and liberal rights of visitation with the minor children.

Mary contends that the court lacked authority to allow a credit against arrear-ages (paragraph 1 of the final order) and to suspend child support (paragraph 2) since she believes that she did not receive proper notice. She argues that the hearing notice did not indicate that anything other than “enforcement of arrearages” would be considered. (Emphasis added) Her construction of the language of the notice is too constrained. The notice provided that the hearing would “consider arrears.” (Emphasis added) The American Heritage Dictionary of the English Language (rev. 5th ed. 1976), defines “consider” as “[t]o deliberate upon; examine; study.” In effect, the notice implied that the court might determine after a studious deliberation and careful examination of the matter of arrears that Richard did not owe the entire $5,271.86. Thus, she had actual notice that he might be allowed a credit against arrearages.

It cannot be fairly said, however, that the notice that arrears would be considered put Mary on actual notice that child support might be modified. A court cannot modify a support decree, or any other decree, unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard on such issue. Cortina v. Cortina, 98 So.2d 334, 336 (Fla.1957). Furthermore, nothing in the record indicates that Richard filed a petition for modification. A decree adjudicating an issue not presented by the pleadings nor litigated by the parties during the hearing on the pleadings is, at least, voidable upon appeal. Id. at 337; see Fox v. Haislett, 388 So.2d 1261, 1265 (Fla. 2d DCA 1980); Taylor v. Taylor, 376 So.2d 27, 29 (Fla.2d DCA 1979). Therefore, the hearing was not an appropriate proceeding to modify child support.

Accordingly, paragraph 1 of the order is affirmed and paragraph 2 is reversed. The cause is remanded with directions to vacate paragraph 2 without prejudice to permit further consideration of the matter of modification of child support upon the filing of appropriate pleadings.

AFFIRMED in part, REVERSED in part and REMANDED.

BOARDMAN and DANAHY, JJ., concur.

      . The only questions before us are whether Mary had actual notice that Richard might be allowed a credit against arrearages and that child support might be modified. There is no question that the June 1 notice afforded her a reasonable time to appear in person or through counsel at the July 22 hearing.

      . We note that Richard concedes that paragraph 2 is “technically deficient.”


author: PER CURIAM.

text:
    Billy D. TACKETT, a/k/a Billy Hamilton, Appellant, v. STATE of Florida, Appellee.
    No. 80-1513.
    District Court of Appeal of Florida, Second District.
    April 23, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant seeks a reversal of the revocation of his probation. The written order of revocation did not conform to the oral pronouncement made by the trial judge at the revocation hearing.

Condition (4) of the probation specified that appellant would not possess a weapon or firearm without prior consent of his probation officer. In addition, appellant was prohibited from violating any law under condition (5). At the revocation hearing, the state proved that a police officer had legally stopped appellant driving his car, when the officer spotted a rifle in plain view on the car floorboard. Appellant’s probation officer had not given prior permission to possess the weapon. Thus, we believe the trial court properly found a violation of condition (4).

At the hearing, the trial court judge made the following oral pronouncement: “I will find him (appellant) guilty of violation of condition 4.” So that the written order of revocation will conform to the oral pronouncement, we strike from the revocation order the finding that appellant also violated condition (5). The order, judgment and sentence are affirmed in all other respects. Pedroso v. State, 380 So.2d 1124 (Fla.2d DCA 1980).

HOBSON, A. C. J., and GRIMES and RYDER, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Theodore R. HOBBS, Jr., and Virginia Hobbs, Appellants, v. ARMCO, INC., d/b/a National Supply Company, Maryland Casualty Company, and Bellefonte Insurance Company, Appellees.
    No. VV-54.
    District Court of Appeal of Florida, First District.
    April 26, 1982.

      Louis K. Rosenbloum, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, and Norton Bond, Pensacola, for appellants.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellees.
   LARRY G. SMITH, Judge.

Appellant Hobbs appeals a summary final judgment adverse to him in his personal injury suit against appellee, Armco Steel Corporation, arising from an accident involving oil well .drilling equipment manufactured by Armco. We agree with appellant’s contention that it was error to enter summary judgment for appellee Armco. We reverse.

Hobbs, a motorman in an oil well drilling crew, was injured when a pipe fell off of a V-door ramp, or Kelly slide, manufactured by Armco. The accident occurred on a drilling rig near Hattiesburg, Mississippi. As a result of the accident, the pipe severed Hobbs’ spine, causing him to be partially paralized. The complaint alleges that the V-door ramp was defective because it had no safety devices or guard rails which would prevent pipes or other materials from rolling off the ramp and striking workmen within the area. The complaint predicated liability upon theories of negligence, breach of implied warranty, and strict liability. Appellee-Armco denied all material allegations of the complaint, and further asserted affirmative defenses of assumption of risk and contributory negligence.

Applying Mississippi law, which recognizes the defense of assumption of risk, the trial court granted Armco’s motion for summary judgment upon a finding that Hobbs had knowledge of the defective condition of the V-door ramp, appreciated the danger, and “continued to work with such knowledge and appreciation.”

Crouch v. Mississippi Power and Light Company, 193 So.2d 144 (Miss.1966), supports appellant’s contention that the trial court erred in awarding summary judgment. Citing Prosser, Torts, § 67, at 461 (3d ed. 1964), Crouch stated two requirements necessary to establish the defense of assumption of risk, viz:

(1) the plaintiff must know and fully understand the risk he is incurring; that is to say, the risk which the defendant has negligently created; and (2) the plaintiff’s choice to incur the risk must be free and. voluntary. Prosser, Torts, § 67, at 461 (3d ed. 1964).... ‘Knowledge of the risk is the watchword of assumption of risk.’ Prosser at 462. Even where there is knowledge and appreciation of a risk, the plaintiff may not be barred from recovery where the situation changes to introduce a new element; and the fact that the plaintiff is fully aware of one risk does not mean that he assumes another of which he is unaware. Id. at 464.

In this case, appellant recognizes that he had knowledge of the danger of pipes sliding off of the V-door ramp. However, he points to evidence indicating that at the time of the accident he had no knowledge that the hook of the air hoist line, which secured the pipe, had come loose, and that the pipe was no longer being held in place by the air hoist, and was free to roll off of the ramp. Appellant had no knowledge, in other words, that the unsecured pipe was simply leaning against the ramp. In accordance with the principles applied in the Crouch case, above quoted, we agree that this evidence presents a factual issue which would preclude a finding of assumption of risk as a matter of law.

Referring to the requirement that the plaintiff’s choice to incur the risk must be “free and voluntary,” Crouch, supra, in order for assumption of risk to apply, appellant indicates that this requirement has not been met in the case before us. Appellant points to evidence that he went to the position at the base of the V-door ramp where the injury occurred in compliance with the specific and direct instruction of his supervisor. He argues that he thus had no reasonable alternate course of conduct, and cannot be held to have placed himself in a position of known peril freely and voluntarily. Under Mississippi law, an employee is relieved from any assumption of risk of his master’s negligence while performing work which he is specifically ordered to do. Goss v. Kuril, 187 Miss. 679, 193 So. 783 (Miss.1940). The same principle has been applied in a strict liability action by an injured workman against the manufacturer of a machine which caused the worker’s injury. Green v. Edmands Co., 639 F.2d 286 (5th Cir. 1981). That case dealt with injuries to a worker who was changing gears on a machine in the manner contemplated by the manufacturer. The court held that the mere fact the injured worker might have had knowledge and appreciation of the danger involved in the operation would be insufficient to invoke the defense of assumption of risk. Thus, said the court: “An individual who has no choice but to encounter the risk cannot be found to have voluntarily encountered the risk.” Id. at 290. The evidence disclosed that alternative methods could have been devised for changing of the gears, one of which would have been to provide a special “T-wrench,” to avoid the necessity for the operator to be in a kneeling position and to grasp the gear with his bare hands. The inquiry into “vol-untariness” thus contemplates consideration of whether a reasonable alternative course of conduct was available to the plaintiff. Green concluded: “Where, as here, appellant followed the procedures contemplated by the manufacturer who offered no alternative course of conduct to accomplish the task, we conclude that appellant cannot be found to have assumed the risk.” Id. at 290.

Although we are cognizant that ap-pellee may not be held responsible for the negligence of appellant’s employer, we nevertheless conclude that the issue of “vol-untariness” must take into account all the circumstances surrounding the accident, including directions by the employer, and the availability of alternatives open.to the appellant. Such a determination is in our opinion, a matter for the jury.

Since this case must be tried under the law of Mississippi, we offer further additional comments. Assumption of risk is a complete defense under Mississippi law. Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So.2d 558 (1962). It is noted, however, that since contributory negligence is applied comparatively under a statute adopted in 1910, there are problems in the application of the doctrine of assumption of risk. The Supreme Court of Mississippi addressed this problem in Braswell v. Economy Supply Co., 281 So.2d 669, 677 (Miss.1973), and set forth the rule that “where assumption of risk overlaps and coincides with contributory negligence the rules of the defense of contributory negligence shall apply.” The court has also stated, in an automobile case, that the doctrine should seldom be employed “except where the plaintiff’s conduct is venturous.. .. ” Yarbrough v. Phipps, 285 So.2d 788, 790 (Miss.1973). More recently, in Alley v. Praschak Mach. Co., 366 So.2d 661 (Miss.1979), although the court approved the submission of the assumption of risk issue to the jury, it reiterated the Elias requirement of a “deliberate and voluntary choice” on the part of the injured plaintiff to expose himself to the danger “in such a manner as to register assent on the continuance of the dangerous condition.” Id. at 664.

As we view the authorities above cited, and others referred to in the briefs of the parties, the issue is not whether Hobbs had knowledge, acquired over a period of years in working around oil well drilling rigs, that pipe and objects could fall from a ramp unprotected by railings or barriers. The issue, rather, is whether at the time of the accident, Hobbs can be said to have deliberately and voluntarily placed himself in a position to be injured when the air hoist line slipped from the ten inch pipe, allowing it to fall from the unguarded V-door ramp. Although appellee urges that Hobbs had knowledge that on previous occasions, pipe had fallen off the side of the slide, and that he had told his supervisor that something needed to be done to correct it, these facts alone establish only general knowledge. We are not persuaded that the requirements of assumption of risk are satisfied merely because Hobbs continued to work on the oil rig. To so hold would virtually eliminate actions for personal injury suffered by workers engaged in potentially hazardous occupations. It is not surprising that the Mississippi court has held that assumption of risk is a jury question in all but the clearest cases. See Daves v. Reed, 222 So.2d 411, 414 (Miss.1969), and authorities therein cited.

REVERSED and REMANDED.

ERVIN and SHIVERS, JJ., concur.

      . We find no abuse of discretion in the trial court’s granting of Armco’s motion at the summary judgment hearing allowing Armco to amend its answer by alleging that Mississippi law applied. See, State Farm Mutual Automobile Insurance Company v. Olsen, 406 So.2d 1109 (Fla.1981); also, Section 90.202(2), Florida Statutes (1979), and Section 92.031, Florida Statutes (1975).

      . In footnote 1 of the Alley opinion, 366 So.2d at 665, the author of the opinion observes: “The writer feels that the assumption of risk issue seldom should be submitted to a jury under Mississippi’s Comparative Negligence Law. Where the assumption of risk doctrine would apply, the negligence of the injured person, for practical purposes, would have to be the sole proximate cause of the accident, and such issue should be submitted to the jury rather than assumption of risk.


author: PER CURIAM. ERVIN, Judge,

text:
    PIEZO TECHNOLOGY and Professional Administrators, Inc., and Old Republic Ins. Co., and Southern Fire Adjusting Co., Appellants, v. Geraldine SMITH, Appellee.
    No. ZZ-27.
    District Court of Appeal of Florida, First District.
    April 26, 1982.

      Bernard J. Zimmerman, William G. Ber-zak and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   PER CURIAM.

Employer/carrier appeals a workers’ compensation order which found that claimant was wrongfully discharged contrary to the provisions of § 440.205, Florida Statutes. We conclude that a deputy commissioner is without jurisdiction to make such a determination unrelated to any pending claim for benefits otherwise due under Chapter 440, Florida Statutes, and we therefore reverse.

The order determining that employer Piezo Technology violated § 440.205, Florida Statutes, is based on findings (1) “that the employer improperly terminated Geraldine Smith as a result of her attempts to claim further workmen’s compensation benefits” instead of the alleged reason of excessive absenteeism; (2) that the deputy had “jurisdiction to hear this cause pursuant to Fla.Stat. § 440.205, § 440.25, and § 440.45,” and (3) that a prior order denying additional benefits for the claim in question “does not preclude the undersigned from considering a violation of Fla.Stat. § 440.205 inasmuch as that statute is not predicated upon a showing that monetary benefits are due the injured worker.”

Section 440.205, Florida Statutes, provides that:

No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

The legislative history of § 440.205 shows that the bill was at one time drafted with explicit provisions for sanctions and jurisdiction in the circuit court. Journal of the House of Representatives, pp. 208-210 (April 10, 1979). By amendment these provisions were deleted, and the law as enacted prescribes no specific sanctions or jurisdiction. Because the omitted provisions covered only matters of remedy often left to general law, the amendment can be regarded as deletion of surplusage having no significant bearing on the question of forum for enforcement. Certainly the language of the provision enacted, supra, does not negate a civil remedy in courts of general jurisdiction, nor does it support application of the maxim for construction of laws which are amended by substitution of language that gives a different meaning:

Where the journals recording the history of the enactment of the statute show that language that gave a particular construction to it was taken out by an amendment, another provision being substituted that gives a different meaning, a construction based on the provision before its amendment will be avoided, [emphasis supplied]

See 30 Fla.Jur., Statutes, § 103 (1974) (citing State ex rel. Finlayson v. Amos, 76 Fla. 26, 79 So. 433 (1918). Equally certain is the fact that the purpose of the provision, stated in the title of the act, is “prohibiting retaliatory discharges of employees.” Because, as detailed below, that purpose is not susceptible of accomplishment within the limited jurisdiction of deputy commissioners under Chapter 440, and because we may not assume that the provision is a nullity or useless enactment, we conclude that the creation of a cause of action for wrongful discharge, cognizable in the circuit court, was the means intended for accomplishment of the stated legislative purpose.

We conclude however that a wrongful discharge action is clearly not cognizable by a deputy commissioner within the parameters of Chapter 440. Although deputy commissioners are authorized by § 440.25(1) to “hear and determine all questions” in respect to a claim for compensation, the request for a § 440.205 wrongful discharge finding in the case before us is neither a claim for “compensation” nor “benefits” as those terms are used in Chapter 440.

The order appealed in this case is likewise not properly entered by a deputy commissioner under Chapter 120. Section 120.565 provides for declaratory statements by way of agency opinion and final agency action; however, § 440.021 establishes that deputy commissioners are exempt from Chapter 120 and shall not be considered an agency or a part thereof. We find no authority for imbuing a deputy commissioner with “agency status” for the limited purpose of § 440.205 adjudications, and we therefore conclude that such adjudications may not be made under § 120.565, since that statute expressly requires agency action.

The order appealed is reversed.

WENTWORTH and JOANOS, JJ„ concur.

ERVIN, J., dissents w/opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent. It is my view that the deputy does in fact have jurisdiction to entertain a claim alleging wrongful discharge.

By looking only to the words of Section 440.205, it is difficult for one to glean the extent of the legislative purpose behind its enactment. Although the statute clearly precludes retaliatory discharge, it provides no sanctions for such conduct, nor does it explicitly vest jurisdiction in either the courts or the deputy commissioners for determining whether an alleged wrongful discharge occurred.

The statute’s history is a curious one: as first introduced in the Senate as Senate Bill 188, Journal of the Senate, p. 68 (April 3, 1979), it contained various amendments to Chapter 440, yet it made no provision relating to the subject matter of Section 440.205. That same day a committee substitute was passed with minor amendments, none of which referred to Section 440.205. Id. at pp. 68-71. The bill was then referred to the House. On April 10, 1979, the House adopted amendments to the bill and passed it as amended. One of those amendments introduced a provision which eventually became Section 440.205. Journal of the House of Representatives, pp. 208-210. The House bill, as amended, provided:

(1) No employer shall discharge, threaten to discharge, intimidate or coerce any employee by reason of such employee’s claim for compensation or attempt to claim compensation under the Workmen’s Compensation Act of Florida.
(2) Any employer who violates the provisions of this section-—
(a) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation;
(b) may be enjoined from further violations of this section in order to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of such employee’s claim for compensation under the Workmen’s Compensation Act of Florida; and
(c) shall be subject to a civil penalty of not more than $500.00 for each violation as to each employee.
(3) Any individual who is reinstated to a position of employment in accordance with the provisions of this section shall be considered as having been on furlough or leave of absence during such period and shall be reinstated to his position of employment without loss of seniority and shall be entitled to participate in insurance or other benefits offered by the employer pursuant to the established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such individual was discharged.
(4) The employer alone and not the employer’s insurance carrier shall be liable for such penalties and payments. Any provision in an insurance policy undertaking to relieve the employer from liability for such penalties and payment shall be void.
(5) In an action or proceeding under this section, the court shall award a prevailing employee who brings such action by retained counsel a reasonable attorney’s fee as a part of the costs. The court may award a prevailing employer a reasonable attorney’s fee as part of the costs if the court determines that the action is frivolous, vexatious, or brought in bad faith.
(6) An action by an employee to enforce this section shall be brought in the Circuit Court of the county in which such employer maintains a place of business.

Id. at 210.

On April 17,1979, the bill was returned to the Senate and referred to its Ways and Means Committee. Although that committee recommended adoption, the full Senate refused, requesting instead that the House recede from its amendments or appoint a conference committee. Upon the House’s refusal, a conference committee was appointed, which ultimately amended the bill passed by the House. One of the amendments eventually became Section 440.205, and, as finally enacted, retained only Section 1 of the House’s amended bill and deleted all provisions for damages, injunctions, civil penalties and attorney’s fees as provided in the amended House bill. Journal of the Senate, pp. 263-296 (April 26, 1979); Journal of the House of Representatives, pp. 323-352 (April 24, 1979).

After considering the above history, I can only conclude that the legislature’s enactment of Section 440.205, which eliminated all but Section 1 of the House’s amended bill, does not reflect any intention that there be created a civil cause of action in the circuit court. This conclusion corresponds with the long-standing rule of statutory construction to the effect that

where the journals recording the history of the enactment of the statute show that language that gave a particular construction to it was taken out by an amendment, another provision being substituted that gives a different meaning, a construction based on the provision before its amendment will be avoided.

30 Fla.Jur., Statutes, § 103, p. 261 (1974) (citing to State ex rel. Finlayson v. Amos, 76 Fla. 26, 79 So. 433 (1918). See also Mayo v. American Agricultural Chemical Co., 101 Fla. 279, 133 So. 885 (1931).

Nor in my view was there created a claim that is cognizable under Chapter 440. Section 440.25(1) provides:

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

The claimant’s request for a finding under Section 440.205 is neither a “claim for compensation”, nor a “claim for benefits”, see Section 440.19. Indeed, Section 440.205 does not provide for any compensation or benefits. Compensation is defined as “the money allowance payable to an employee or to his dependents as provided for in this chapter.” Section 440.02(11). Additionally, compensation or benefits allowable under Chapter 440 are generally predicated upon accidental injuries. See Section 440.02(18). Any case involving a wrongful discharge, pursuant to Section 440.205, on the other hand, would necessarily require proof of an intentional act.

Although I find nothing in Section 440.-205 explicitly conferring on a discharged employee the right to file a claim for benefits before a deputy commissioner, I do not think one can logically conclude that the statute fails to afford an aggrieved person the right to litigate a wrongful discharge in any forum. Such a conclusion would be incongruous with well established principles of law, since the legislature should not be presumed to have intended to enact a useless piece of legislation. See Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla.1962); 30 Fla.Jur., Statutes, § 77. Consequently, if the statute grants a right or imposes a duty, it may be construed as conferring by implication the power necessary for the exercise of the right or the performance of the duty. 30 Fla.Jur., Statutes, § 170. Thus, if the statute requires an act to be done for the benefit of another, or forbids the doing of an act which may be to his injury, the person wronged may have an action even though one is not given to him under the express terms of the statute. See Girard Trust Company v. Tampashores Development Co., 95 Fla. 1010, 117 So. 786 (1928). Finally, the need to imply an action here is made imperative by the constitutional precept that no legal wrong should be suffered without a remedy. Article I, Section 21, Florida Constitution (1968). See also Baxter’s Asphalt, etc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981).

I think it necessary to look, then, to the Administrative Procedure Act (Chapter 120) as a means of resolving the question of jurisdiction. Section 440.021, Florida Statutes (1979), does not expressly exclude determinations made under Section 440.205 from Chapter 120 proceedings. Section 440.021 provides:

Workers’ compensation adjudications by deputy commissioners and the Industrial Relations Commission are exempt from chapter 120, and neither the deputy commissioners nor the Industrial Relations Commission shall be considered an agency or a part thereof. Advisory opinions of the division pursuant to s. 440.19(1) as to the entitlement of an employee or his dependents to benefits under this chapter are exempt from chapter 120. In all instances in which the division institutes action to collect a. penalty or interest which may be due pursuant to this chapter, the penalty or interest shall be assessed without hearing, and the party against which such penalty or interest is assessed shall be given written notice of such assessment and shall have the right to protest within 20 days of such notice. Upon receipt of a timely notice of protest and after such investigation as may be necessary, the division shall, if it agrees with such protest, notify the protesting party that the assessment has been revoked. If the division does not agree with the protest, it shall refer the matter to the deputy commissioner for determination pursuant to s. 440.25(3) and (4). Such action of the division is exempt from the provisions of chapter 120.

At first glance that section appears to be a blanket exemption from all sections of Chapter 120 proceedings. However, a closer reading of the statute leads to the opposite conclusion, that the exemption applies only to specific sections of Chapter 440, namely: (1) workers’ compensation adjudications, (2) advisory opinions of the division of labor as to the entitlement of benefits under the Act and (3) actions to collect a penalty owing to the Division. The proceedings in the instant case obviously do not fall within any of the above categories. Similarly, the language of Section 120.-52(l)(c), Florida Statutes (1979), excising deputy commissioners from the definition of agency, applies only to “adjudication of workers’ compensation claims, .... ” I therefore conclude that a proceeding brought by an employee wrongfully discharged is not one that is barred under Chapter 120 by the proscriptive language of either Section 440.021 or 120.52(l)(c).

This conclusion is buttressed by the provisions of Section 440.44(9), authorizing the Division of Workers’ Compensation to conduct administrative hearings and issue orders under the APA which do not infringe upon the jurisdiction of deputy commissioners. Additionally, a reading of Section 440.-44(2) reinforces my belief that a wrongful discharge under Section 440.205 should only be resolved administratively. The expression of intent in Section 440.44(2) is a reflection of the long-standing statutory maxim that administrative bodies are given the integrity to interpret and apply statutes within their own expertise which are entrusted to them by the legislature. See Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981). The Division, operating through the deputy commissioners, is the proper body — rather than the circuit courts — to decide issues relating to wrongful discharges. In my judgment, broad statutory powers repose special expertise in the Division to hear such cases as well as to apply and interpret the provisions of Section 440.205. For example, the Division, an arm of the Department of Labor and Employment Security, is entrusted with a variety of labor and employment matters. See Chapters 443, 446, 447 and 450. On the other hand, circuit courts are not specifically provided jurisdiction to determine the employment violation involved in Section 440.205 as, for example, are courts of competent jurisdiction authorized to hear actions alleging wage rate discrimination based on sex. See Section 448.07. Moreover, as a practical matter, deputy commissioners have no doubt frequently been exposed to instances of retaliatory discharge (but with no power to prevent it) which surfaced in connection with compensation hearings. In short, the determination of wrongful discharge under Section 440.205 is very closely related to the mainstream of workers’ compensation law in Chapter 440.

I consider also that the deputies’ specific authorization to make findings under Section 440.205 lies in Section 120.565, providing:

Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only. The agency shall give notice of each petition and its disposition in the Florida Administrative Weekly, except that educational units shall give notice in the same manner as provided for rules in s. 120.54(l)(a), and transmit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action.

Originally, the Department of Administration interpreted Section 120.565 as allowing the use of a declaratory statement “before any wrong [was] actually ... committed.” Fla.Admin.Code Rule 28-4.05. That phrase, however, was deleted from the rule as amended on March 23, 1980. The new rule now provides:

A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of any statutory provision, rule or order as it does, or may, apply to Petitioner in his particular circumstances only. The potential impact upon the petitioner’s interests must be alleged in order for petitioner to show the existence of a controversy, question or doubt.

Fla.Admin.Code Rule 28-4.05 (emphasis supplied). The deleted language from the original rule, as well as the above underscored language of the new rule, indicates that a declaratory statement pursuant to Section 120.565 can now be used to resolve a controversy in situations where the alleged harm or damage has already been consummated. Moreover, it is evident that factual issues can be resolved in a 120.565 proceeding since Florida Administrative Code Rule 28-4.07(1) provides:

The agency may, at its discretion, hold a hearing to dispose of a petition submitted pursuant to Section 120.565, F.S. If a hearing is held it shall be conducted pursuant to Section 120.57 on an expedited basis, or as otherwise agreed upon by the agency and the parties.

We are not asked whether the deputy commissioner can properly act as agency head to determine a violation under Section 440.205. Had it been determined, however, that deputy commissioners possess the requisite jurisdiction to make administrative findings of wrongful discharge, there clearly would be no impediment to our reviewing such an order as final agency action. By analogy, we frequently review free-form agency actions by subordinate employees when such actions are “authentic beyond doubt and [when] nothing can be gained through further agency proceedings.” Rice v. Dept. of Health & Rehabilitative Services, 386 So.2d 844, 847 (Fla. 1st DCA 1981). And see Harris v. Florida Real Estate Comm’n., 358 So.2d 1123, 1125 (Fla. 1st DCA 1978), cert. den., 365 So.2d 711 (Fla.1978). Additionally, we are specifically authorized to review any order of a deputy commissioner. See Section 440.271.

In my judgment, were we to allow the deputy to issue a finding under Section 440.205, there would not result — as the e/c argues — an unfeasible and unprecedented bifurcation of an action between an administrative body and the circuit court. Section 120.565 expressly states that a declaratory statement is final agency action. As final agency action, the statement could then be enforced by either the agency or a substantially interested person in the circuit court. Section 120.69(1), Florida Statutes. Section 120.69(2) provides the following remedies:

A petition for enforcement may request declaratory relief; temporary or permanent equitable relief, any fine, forfeiture, penalty, or other remedy provided by statute; any combination of the foregoing; or, in the absence of any other specific statutory authority, a fine not to exceed $1,000.

To summarize, in my judgment a claimant is not precluded by the exclusionary language of either Section 440.021 or 120.-52(l)(c) from requesting an administrative declaratory statement on the question of whether he or she was wrongfully discharged. If a determination is made by the Division that the claimant was wrongfully discharged, and the employer fails to redress that wrong, the claimant could then petition the circuit court for an order enforcing the deputy’s determination and request also the wide variety of remedies provided by Section 120.69(2). I would therefore conclude that the Division has jurisdiction to enter an order finding whether or not an employee was wrongfully discharged.

As to the merits, I conclude also that the deputy had competent and substantial evidence before him to determine that claimant was wrongfully discharged; consequently, I would affirm the order in its entirety.

      . Factors involved in actions for statutory enforcement are noted in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and Trans-America Mortgage Advisors v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979).

      . Chapter 79-40, Laws of Florida.

      . Cf., Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla.1962); Girard Trust Company v. Tampashores Development Co., 95 Fla. 1010, 117 So. 786 (1928).

      . See Segal v. Arrow Industries, 364 So.2d 89 (Fla. 3d DCA 1978).

      . Professor Alpert has also taken the position that “[Section 440.205] should provide the impetus to Florida’s recognition of a cause of action.” L. Alpert, Florida Workmen’s Compensation Law, § 33-9 (1981 Supp.).

      . Section 440.44(2) provides:
      INTENT. — It is the intent of the Legislature that the division assume an active and forceful role in the administration of this act, so as to ensure that the system operates efficiently with maximum benefit to both employers and employees.

      . There appears to be no legal barrier foreclosing a deputy commissioner from acting as the agency head for the purpose of making a declaratory statement in construing Section 440.-205. In fact, it would appear that the deputy would be the logical and appropriate choice. Section 440.45(3) states: “The deputy commissioners shall be within the Department of Labor and Employment Security under the secretary of that department.” That statute does not clarify whether the deputy is also “under” the Division of Workers’ Compensation. At any event, it has been held that when a judicial function is involved, the Division is deemed to act through the orders of the respective judges of industrial claims. See Thomas v. General Elevator Corporation, 9 FCR 179, 180 (1975), cert. denied, 316 So.2d 294 (Fla.1975); R. E. Ledford Const. Co. v. King, 381 So.2d 330, 332 (Fla. 1st DCA 1980). There is also no reason why the Division could not delegate agency head status to the deputy commissioner for the limited purpose of resolving a Section 440.205 claim. For example, Section 440.45(6) provides:
      The division may delegate to its attorneys, examiners, safety representatives, field agents, inspectors, and other legal representatives such powers and authority as it may deem necessary in the administration of this chapter, (emphasis supplied)


author: BOOTH, Judge.

text:
    UNIVERSITY INNS and Insurance Company of North America, Appellants, v. Belva Joyce DAVIS, Appellee.
    No. ZZ-143.
    District Court of Appeal of Florida, First District.
    April 26, 1982.

      Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellants.
    Jesse F. Sparks, Jr., Orlando, for appellee.
   BOOTH, Judge.

This cause is before us on appeal by the employer/carrier from an order “modifying” a previous order. The previous order of January 29, 1979 found maximum medical improvement and no permanent disability as a result of an accident of March 12, 1978. The order sought to be reviewed, entered 11 months later, on December 8, 1980, awarded claimant additional temporary total disability benefits, remedial medical treatment by a psychiatrist and costs.

On appeal, the employer/carrier contends that the award of additional benefits was erroneous, as the previous order had found Davis reached maximum medical improvement with no permanent disability from her March 12, 1978 accident, and there was no evidence presented which would support modification. We agree and reverse.

Claimant contends that modification was not required because the previous order only concerned an “orthopedic maximum medical improvement.” Where a claimant suffers two separate medical conditions as a result of one industrial accident, separate maximum medical improvement dates may be determined by the Deputy Commissioner, with the last maximum medical improvement date marking the end of all temporary disability and of the need for remedial treatment. See Mora v. Max Bauer Meat Packing, Inc., 378 So.2d 119 (Fla. 1st DCA 1980). This date is also the beginning of permanent disability. Giffen Industries of Orlando v. Campbell, 8 FCR 157 (August 22, 1978), cert. denied, 289 So.2d 734 (Fla.1974); Corral v. McCrory Corporation, 228 So.2d 900 (Fla.1969). Here, the record establishes that psychiatric treatment was claimed in the earlier proceeding and maximum medical improvement determined. The Deputy Commissioner’s finding that Davis reached maximum medical improvement on August 10, 1978, with no permanent disability, therefore barred further compensation awards absent modification proceedings.

In order to justify modification pursuant to Florida Statutes, Section 440.-28, the claimant must demonstrate either a change in condition or a mistake in a determination of fact. E.g., McKenney v. School Board of Palm Beach County, 408 So.2d 655 (Fla. 1st DCA 1981). Modification proceedings are not intended to permit a claimant to relitigate issues which have been previously determined. City of West Palm Beach v. Chisolm, 405 So.2d 279 (Fla. 1st DCA 1981); Universal Erectors, Inc. v. Murphy, 410 So.2d 209 (Fla. 1st DCA, 1982). Evidence which merely supplements or controverts that already taken is insufficient, as held in the oft-cited case of Sonny Boy’s Fruit Company v. Compton, 46 So.2d 17 (Fla.1950).

Here, the Deputy Commissioner’s failure to rule specifically on whether the requirements of Section 440.28 were met was not fatal, had there been competent substantial evidence to support modification. Acousti Engineering Co. of Florida v. Shivers, 391 So.2d 792 (Fla. 1st DCA 1980). However, no evidence whatsoever of a mistake of fact or change of condition since the January 29, 1979 order was presented below; the testimony and medical reports produced were merely cumulative of evidence of Davis’ psychiatric disability which had been presented in the 1979 proceeding. One of the orthopedic surgeons who examined Davis in May, 1980 stated that there had been “no change” in her condition since 1978; and claimant’s psychiatrist, Dr. Bernstein, testified that his current diagnosis of a psychogenic pain disorder was “essentially the same” as his diagnosis had been when he treated Davis in 1977, prior to the accident. Even Davis’ testimony indicates that she had returned to her attorney subsequent to the 1979 order precisely because her condition had not improved or changed.

The award of further temporary total disability benefits, remedial medical treatment and costs in this case was also erroneous because there was no medical evidence that Davis’ psychiatric condition at the time of the modification hearing was causally related to her March 12, 1978 accident. See Nix v. Merrill-Stevens Drydoek & Repair Co., 107 So.2d 616 (Fla. 1st DCA 1958); Two Brothers Catering v. Castro, 9 FCR 243 (1975), cert. dismissed, 316 So.2d 58 (Fla.1975). When Dr. Bernstein was asked in 1980 whether he had an opinion “within reasonable psychiatric probability” as to whether her 1978 injury was causally related to her current need for treatment, he answered “I don’t know.”

There was no medical testimony supporting a causal relationship. Claimant’s own testimony that she had hurt since the accident did not establish causation and would have been insufficient for this purpose in any event, since the origin of her psychiatric illness was not readily discoverable without a medical examination. Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla.App.1981).

In view of our determination on these issues, reversal of the order below is required, and it is unnecessary to consider appellants’ remaining points on appeal.

REVERSED.

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

      . There was no petition for modification, and the Deputy, in entering the order sought to be reviewed, did not treat the petition as one for modification.


author: SHIVERS, Judge.

text:
    Wesley A. McLARTHY, Appellant, v. SHANDS TEACHING HOSPITAL and Division of Risk Management, Appellees.
    No. AB-188.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    Terence J. Kann, of Barton, Cox & Davis, Gainesville, for appellant.
    Jack A. Langdon, of Jones & Langdon, Gainesville, for appellees.
   SHIVERS, Judge.

McLarthy was injured in an accident on April 20, 1975. The employer/carrier accepted the claim and ultimately began payment of benefits based on a sixteen percent permanent partial disability. Payment was made at the rate of $73.73 per week. Appellant subsequently filed a claim for greater benefits. On January 21,1981, the deputy commissioner rendered an order finding McLarthy sustained a sixteen percent permanent partial disability but determined that benefit payments should have been made at the rate of $75.18 per week. The increase in the benefit calculation was due to an insurance premium contribution made by the employer. Section 440.34, Florida Statutes (1973), requires the award of an attorney’s fee where the claimant employs an attorney in the successful prosecution of a claim. Although increase in benefits was small, the record shows the increase was due to the efforts of the claimant’s attorney.

Accordingly, we AFFIRM the order except to the extent it denies the claim for attorney’s fees. We REVERSE and REMAND exclusively for a determination of an appropriate fee.

ERVIN and WENTWORTH, JJ., concur.


text:
    Edward Arthur MANEY, Appellant, v. Ruth Sebastian MANEY, Appellee.
    No. AE-215.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    John P. Townsend, of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellant.
    Ernest L. Cotton, of Cotton, Wesley & Poché, Shalimar, for appellee.
   SHIVERS, Judge.

Husband appeals an April 27, 1981, order awarding wife attorney’s fee following entry of an earlier final order giving full faith and credit to a Kentucky divorce decree. The order establishing the Kentucky decree in Florida was rendered June 18, 1980. It did not reserve jurisdiction to award an attorney’s fee. The wife filed a motion for attorney’s fees on July 3, 1980. Since the motion was filed after the time for filing petition for rehearing had passed (Fla.R. Civ.P. 1.530(b)), the trial court lacked jurisdiction to award the attorney’s fees. Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). Accordingly, the order appealed is REVERSED.

ERVIN and WENTWORTH, JJ., concur.


text:
    Samuel WHITE, Appellant, v. Ruby WHITE, Appellee.
    No. AF-304.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    Henry M. Coxe, III, Coxe & Anderson, Jacksonville, for appellant.
    S. Gordon Blalock, Blalock, Holbrook & Akel, Jacksonville, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution which awards the wife the exclusive use and possession of the parties marital' residence and $500.00 per month permanent alimony. We affirm both awards.

The evidence clearly establishes the wife’s need for permanent alimony in the amount awarded and the husband’s ability to pay that amount. Further, the parties were married for thirty-four years, during which time the wife raised seven children. The wife is now fifty-two years old, in poor health, and without employment experience or marketable skills. Thus the award to the wife of exclusive use and possession of the parties marital home was justified. Taylor v. Taylor, 381 So.2d 1353 (Fla.1980). However, we agree that the award of exclusive use of property should be for a specified period of time. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1981). We therefore remand to the trial court for entry of an amended final judgment providing for the award of exclusive use and possession until the wife remarries or dies or for some other specified period in the discretion of the trial court.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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


author: WIGGINTON, Judge.

text:
    FORMING CONTRACTORS and Old Republic Insurance Company, Appellants, v. Thomas BARRY, Appellee.
    No. AG-35.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    Charles Desmond Crowley, Fort Lauder-dale, for appellants.
    Dennis M. Usdan, of Nolan & Usdan, Fort Lauderdale, for appellee.
   WIGGINTON, Judge.

In this workers’ compensation appeal, the employer/carrier challenge the deputy commissioner’s award of temporary total disability benefits to claimant and her determination of claimant’s average weekly wage. We reverse as to the award of temporary total disability benefits. During the periods of time in question, the record reveals medical testimony as to claimant’s ability to work. Claimant’s subjective testimony as to his inability to work, and especially in light of the medical testimony to the contrary, is insufficient to establish his entitlement to TTD benefits. Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); cf. Square G. Construction Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982).

Further, we must reverse the sufficiency of the job search as claimant failed to show either that his work search was successful, but that he was unable to perform the work due to his disability, or that his work search was unsuccessful due to his disability rather than the unavailability of work. Lehigh Corporation v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). The evidence contained in the record clearly establishes claimant’s ability to work, refuting any claim of total incapacity during the relevant time periods which would otherwise support an award of TTD benefits. Kennedy & Cohen v. Porter, 380 So.2d 495 (Fla. 1st DCA 1980).

As to the deputy’s determination of claimant’s average weekly wage based on an alleged stipulation, there is no evidence in the record, and both parties dispute the existence of any stipulation to that effect. Accordingly, we also reverse and remand that portion of the deputy’s order for rede-termination of claimant’s average weekly wage.

JOANOS and THOMPSON, JJ., concur.


text:
    GRAPIN & CHAYKIN, M.D., P.A., and Bertram Grapin and Louis Chaykin, individually, Appellants, v. TURNOFF & FOX, M.D., P.A., a Florida Professional Association, and Howard Turnoff and Steven Fox, individually, Appellees.
    Nos. 81-169, 81-174.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Kelly, Black, Black & Earle and Hugo L. Black, Jr., Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The trial court order adjudging plaintiffs in contempt of court and ordering them to pay to the defendants the sum of $250 per day for each and every day they remained in violation of orders requiring them to make discovery, is void for the failure of the order to contain findings that the alleged contemnors had the present ability to comply with the underlying discovery orders. Garo v. Garo, 347 So.2d 418 (Fla.1977); Epstein v. Epstein, 345 So.2d 398 (Fla.3d DCA 1977).

Reversed.


text:
    The STATE of Florida, Appellant, v. Leroy FORCER, Jr., Appellee.
    No. 81-786.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    No appearance for appellee.
    Before SCHWARTZ and NESBITT, JJ„ and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Because the trial court determined that double jeopardy had attached, it dismissed the information which charged the defendant with unlawful possession of a firearm by a convicted felon. We reverse on the authority of State v. Iglesias, 374 So.2d 1060 (Fla.3d DCA 1979).

Reversed and Remanded.


text:
    Ricky GAINER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-813.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Sireci v. State, 399 So.2d 964 (Fla.1981); Paul v. State, 385 So.2d 1371 (Fla.1980); Allen v. State, 326 So.2d 419 (Fla.1975); McMullen v. State, 405 So.2d 479 (Fla. 3d DCA 1981); Ragland v. State, 358 So.2d 100 (Fla. 3d DCA), cert. denied, 365 So.2d 714 (Fla.1978); Baxter v. State, 355 So.2d 1234 (Fla.2d DCA), cert. denied, 365 So.2d 709 (Fla.1978); Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977), cert. dismissed, 372 So.2d 64 (Fla.1979).


text:
    H. O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-880.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. United States v. Hayes, 385 F.2d 375 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968); State v. Craig, 237 So.2d 737, 740 (Fla.1970).


text:
    BANKERS NATIONAL LIFE INSURANCE CO., Appellant, v. Anita Renee PESKO, as beneficiary and trustee, Appellee.
    No. 81-948.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Adams, Ward, Hunter, Angones & Adams and Robert Ward, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee and Stephen N. Zack and S. Daniel Ponce, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Pike v. National Fidelity Life Insurance Company, 377 So.2d 973 (Fla. 3d DCA 1979); Kaufman and Broad Home Systems, Inc. v. Sebring Airport Authority, 366 So.2d 1230, 1231 (Fla. 2d DCA 1979).


author: NESBITT, Judge.

text:
    Gloria MELI, a parent of Elena Meli, a minor, Appellant, v. ADMIRAL INSURANCE COMPANY and Linda Speedy, Appellees.
    No. 81-1024.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Welbaum, Zook, Jones & Williams and Alan B. Baybick, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer, Miami, for appellees.

      Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The minor plaintiff was injured in October of 1976 while performing gymnastics under the supervision of her public high school physical education instructor. Through her next friend, she commenced this action against the instructor, individually, and the insurer of the Dade County School Board in April of 1980, alleging the instructor’s simple negligence in failing to properly supervise the minor.

Ultimately, the trial court entered summary final judgment in favor of the defendant evidently basing its ruling upon Chapter 80-271, Section 1, Laws of Florida, effective July 1, 1980, and codified as Section 768.28, Florida Statutes (1980 Supp.), which provided absolute immunity to public employees.

The question we must resolve is whether this amended statute may be retroactively applied to a cause of action accruing in 1976. The trial court did not have the benefit of the Supreme Court’s decision in Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981) wherein the court held that the statute could not be retroactively applied to void plaintiff’s award which had already been reduced to a judgment. Nonetheless, the language and intent is broad enough to prohibit the retrospective application of the statute to an aggrieved party who filed suit prior to the effective date of the statute. A retroactive application in the present case would effect an abrogation of the plaintiff’s rights, just as it would have in Knowles, supra. Any question to the contrary is resolved by the Court’s reference in Knowles, supra, to its decision in Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977) holding that the substantive statutory right of immunity could not be withdrawn retroactively by amendatory legislation.

Consequently, the viability of plaintiff’s cause of action must be determined with respect to the law in effect prior to the enactment of Chapter 80-271, Section 1, Laws of Florida. Under the provisions of Section 768.28(9), Florida Statutes (1977), it was clear that a public employee was not immune from suit for negligent acts occurring within the scope of his employment, although he was entitled to indemnification.

For the foregoing reasons, the summary judgment is reversed and remanded for further proceedings.

      . The School Board was evidently ndt joined as a party defendant due to failure to comply with the notice requirements of Section 768.28(6), Florida Statutes (1977).


author: SCHWARTZ, Judge.

text:
    Pedro QUEVEDO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1135.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

It affirmatively appears that any violation of Fla.R.Crim.P. 3.150(b) in the joinder in the same trial of the second degree murder count against the appellant Quevedo, and a charge of attempted murder of the same victim, occurring during the same barroom brawl, against Quevedo’s brother, was entirely harmless. The judgment under review is therefore affirmed. Sec. 924.33, Fla.Stat. (1979); see, Zeigler v. State, 402 So.2d 365 (Fla.1981); Harris v. State, 414 So.2d 557 (Fla. 3rd DCA (1982); Damon v. State, 397 So.2d 1224 (Fla. 3rd DCA 1981); compare Wilson v. State, 298 So.2d 433 (Fla. 4th DCA 1974), cert. dismissed, 327 So.2d 35 (Fla.1976); Paul v. State, 385 So.2d 1371 (Fla.1980).


text:
    Ellis RUBIN, Petitioner, v. DADE COUNTY, Respondent.
    No. 81-1194.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Ellis Rubin, Miami, David R. Mankin, Hollywood, and Steven Abramowitz, Miami, for petitioner.
    Robert A. Ginsburg, County Atty., and James A. Jurkowski, Asst. County Atty., for respondent.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN, (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The petitioner Rubin, an attorney, represented without fee an indigent named Lay-field, who was charged with first degree murder. The trial court declared Layfield indigent for costs with a cap of $750.00. Rubin expended a sum in excess of that amount before Layfield pied guilty to second degree murder and aggravated battery in September, 1979. Rubin did not move for an order of reimbursement, however, until April, 1981. In the order now under review, the trial court denied the application on the sole ground that it was untimely filed. We treat the present appeal as a petition for certiorari and quash the order below.

In the total absence of a showing that the appellee Dade County, which is ultimately responsible for the costs, has been prejudiced or its interests adversely affected in any way by the passage of time, a mere, thus-irrelevant delay in seeking payment affords no reason for denying Rubin the relief to which he became entitled by order of court. See Roberts v. Askew, 260 So.2d 492, 494 (Fla.1972); City of Miami v. Carter, 105 So.2d 5, 14 (Fla.1958). For this reason, the trial court is directed to enter an order certifying that $750.00 should be paid to Rubin as taxable costs.

Certiorari granted.

      . Although Rubin paid over $1,400.00 in costs he now claims entitlement only to the $750.00 authorized by the court.

      . See Daniel v. State, 309 So.2d 248 (Fla. 4th DCA 1975).


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a foreign corporation, Appellant, v. Edwarda CASINO, Appellee.
    Nos. 81-1285, 81-1754 and 81-1862.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Ligman, Martin, Shiley & McGee; Steven R. Berger, Miami, for appellant.
    Samuel Sheradsky, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The trial court was correct both in dismissing the UM carrier’s action for declaratory relief, see, Travelers Indemnity Co. v. Johnson, 201 So.2d 705 (Fla.1967); Columbia Casualty Co. v. Zimmerman, 62 So.2d 338 (Fla.1952); Kelner v. Woody, 399 So.2d 35 (Fla. 3rd DCA 1981), and in awarding attorney’s fees to the appellee, who was the successful party in a proceeding brought under his uninsured motorist policy. The latter point is controlled by Florida Farm Bureau Mutual Ins. Co. v. Quinones, 409 So.2d 97 (Fla. 3rd DCA 1982); accord, Travelers Indemnity Co. v. Chavis, 410 So.2d 992 (Fla. 3rd DCA 1982); contra, Spaulding v. American Fire & Indemnity Co., 412 So.2d 367 (Fla. 4th DCA 1981). Accordingly, the judgment and orders under review are

Affirmed.


text:
    Earl Eugene JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1319.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Samuel M. Spatzer and James K. Parker, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.

      Before HUBBART, C. J., and DANIEL S. PEARSON, J., and EZELL, BOYCE F., JR. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Barber, 301 So.2d 7 (Fla.1974); Mancini v. State, 273 So.2d 371 (Fla.1973); Sundell v. State, 354 So.2d 409 (Fla.3d DCA 1978).


text:
    Mary M. MANGIAMELI, Appellant, v. Angelo Frank MANGIAMELI, Appellee.
    No. 81-1357.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Smith, O’Haire, Quinn & Garris and Michael J. Garavaglia, Yero Beach, for appellant.
    Joseph A. Ferrara, Coral Gables, for ap-pellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Michael E. MURPHY and Adele A. Murphy, his wife, Appellants, v. John HAMMILL, Appellee.
    No. 81-2236.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Fowler, White, Burnett, Banick & Strick-root and A. Rodger Traynor, Jr. and Allan Kelly, Miami, for appellants.
    White & Brown and Richard White, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Beekay Realty Corp. v. Cayre, 256 So.2d 539 (Fla.3d DCA 1972).


text:
    Ankur KURE, Appellant, v. DORIC SHIPPING CORPORATION, a Florida corporation, Elias Giannakopoulas, and Anastasia Gians, Appellees.
    No. 81-2308.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Kelner & Kelner and Milton Kelner, Miami, for appellant.
    Gerhardt A. Schreiber, Coral Gables, for appellees.

      Before SCHWARTZ, NESBITT and JOR-GENSON, JJ. .
   PER CURIAM.

Affirmed. Wallace v. Ralph Pillow Motors, Inc., 344 So.2d 949 (Fla. 1st DCA 1977); Delta Airlines, Inc. v. Wilson, 210 So.2d 761 (Fla. 3d DCA 1968). See also Section 607.051, Florida Statutes (1979).


text:
    Claude Lee SIMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-781.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Claude Lee Simons, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

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


author: COWART, Judge. DA'UKSCH, Chief Judge,

text:
    In re The ESTATE OF W. J. NEWMAN, Deceased. Margaret PIERREPONT, Appellant, v. Sally Newman HUMPHREYS, Appellee.
    No. 81-84.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.

      Robert L. Young and Christine K. Bilo-deau of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellant.
    Fred H. Cumbie, II of Miles & Cumbie, P. A., St. Cloud, for appellee.
   COWART, Judge.

This case involves a determination of the physical extent of a homestead at the time of the homesteader’s death.

W. J. Newman died testate on January 7, 1969. Up to the time of his death, he lived as the head of a family consisting of himself and his second wife Sally Newman, the appellee, on a parcel of land that was contiguous, less than 160 acres and not in any municipality. Mr. Newman was survived by his wife Sally and seven adult children.

Of course, homestead property is not subject to devise if the owner is survived by spouse or minor children; it is excluded from the owner’s estate and descends to the decedent’s lineal descendants subject to the widow’s life estate. Conversely, real property not homestead is included in the estate and is subject to the widow’s dower interest.

Appellant, decedent’s daughter by a former marriage, petitioned to remove from the administration of his estate the entire tract of real property on which the decedent resided at his death. The probate court granted the petition. Subsequently appel-lee timely moved for rehearing and presented an affidavit from the county tax collector to the effect that Mr. Newman applied for and received a homestead tax exemption on all of the contiguous property on which he resided from 1955 until 1968, when he applied for and received a homestead tax exemption only on one lot of land which was a small part of the larger parcel of land. Based solely on this affidavit, the probate court rescinded its prior order and found that only the one lot was exempt homestead property, based on a finding that the affidavit was evidence of the intent of the decedent to establish a homestead on the lot on which his residence was located and that “the wife continued to live there as the homestead and the children acquiesced in this by treating this particular lot as the homestead for better than ten years since the estate has been open.”

There is no question but that prior to 1968 the entire contiguous tract on which the decedent resided at the time of his death constituted his homestead. The only question is whether the decedent abandoned, for homestead purposes, those portions of his property beyond the one lot and whether the tax collector’s affidavit as to the decedent’s claim of a homestead tax exemption only as to that lot in 1968 is legally sufficient evidence of a homesteader’s intent to abandon. We find it is not and reverse.

The homestead character of a piece of property is not created by, nor is it dependent upon, any general or specific mental intent on the part of the owner to create or maintain a certain piece of property as his homestead, but arises and attaches from the mere existence of certain facts in combination in place and time. Neither is the existence of the homestead in any manner dependent on claiming or failing to claim the entitlement to an exemption from ad valorem taxes that the legislature has by statute conferred on persons who in good faith permanently reside on real property in which they have a certain ownership interest. Since a homesteader may terminate the homestead nature of a parcel of land by making a good faith change in his principal place of permanent residence and since one’s place of residence does involve one’s intention, a homesteader’s intention to abandon a particular parcel as his permanent residence and re-establish his permanent residence elsewhere could be very relevant in a particular case. However, there is no suggestion or argument in this case that Mr. Newman did any act with the intent to abandon his home on this tract of land and re-establish one elsewhere.

Because of the beneficial aspects of homestead property relating to exemption from forced sale, and certain tax exemptions, it is commonly believed that homestead status is all benefit in favor of the homesteader. This is not correct in that the constitutional limitation on the homesteader’s right to devise his homestead property constitutes a substantial restriction on his right to otherwise make a testamentary disposition of his property according to his every desire and direction. That restriction, coupled with the statutory provision for his surviving spouse to take a life estate in it with a vested remainder to his lineal descendants in being at the time of his death, constitutes a valuable right in the surviving spouse and heirs but not in the homesteader. While it is true that the head of a family who holds title to homestead property may do acts which will defeat the legitimate expectancy rights of his spouse and children, nevertheless they do not exactly hold their rights at his grace and he may neither will their rights away by formal devise nor destroy them by a mere express or implied indication of his desire, choice, determination or intention. He may not “abandon” the rights of his spouse and children. Therefore the intention of the homesteader that certain property be, or not be, his homestead for the purpose of its descent and distribution as provided by law is immaterial to the inquiry as to whether certain property did in fact constitute his homestead at his death. Similarly, whether the widow continues to live there after the owner’s death is immaterial to that inquiry. Likewise, it is immaterial whether the children acquiesce in the widow’s possession, since her possession is consistent with her life estate in the homestead. Also the widow’s possession over merely a part of the homestead, such as the residence and lot in this case, is no evidence that the greater parcel was not homestead because her awareness of her homestead rights are not essential to their existence. There is no claim of estoppel involved in this case. Since actual residence on the property is required to properly claim a homestead tax exemption and such residency is one fact relevant to a determination of the homestead character of a parcel of land, a claim of the tax exemption as to a parcel may be relevant to a claim that parcel is, or was, homestead property; but the reverse implication is fallacious and the failure to claim tax exemption is no evidence that property is not in fact homestead, because that failure is also consistent with many other reasonable explanations. The most obvious is that because the tax exemption is limited to a dollar amount, if the assessed value of the residence and a smaller parcel exceeds the amount of the applicable exemption there is no tax advantage to also include in the claim of exemption other contiguous property that may in fact constitute part of the total homestead property.

Even if the tax collector’s affidavit constituted admissible evidence, neither it nor its contents nor the other matters the trial court considered constituted evidence material to a relevant inquiry in this case and accordingly they are legally insufficient to support the order on the motion for rehearing vacating the court’s earlier order. Therefore the order on rehearing is reversed and the prior order of May 30, 1980, is reinstated.

REVERSED and remanded for further proceedings consistent with this opinion.

SHARP, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DA'UKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion the best way to deal with this would be for us to remand this case for a rehearing in light of the law of which the trial judge may not have been aware. For us to do otherwise seems to me to be an invasion upon the trial judge’s fact-finding prerogative.

Also, I disagree somewhat with the statements in the majority opinion as to the relevancy and materiality of the tax collector’s evidence. In my opinion the evidence of the claim of homestead for tax purposes is relevant and material to the issue of the extent of the homestead for estate purposes. Where the trial judge got off the track is where he seems to have thought the homestead claim for tax purposes was conclusive proof. But, in the final analysis, we cannot really know what the result of the factual findings would have been had the trial judge known that the tax collector’s evidence was not conclusive proof.

Thus, I would reverse the order and remand the case for a new hearing where all the evidence could be considered in its proper legal light. The result could very well be what the majority opinion reaches, but it may not.

      . The decedent’s will purports to devise his entire estate equally to his wife and seven children. Its effect has not been raised in this case. See In re Estate of McCartney, 299 So.2d 5 (Fla.1974); J. Maines and D. Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 Fla.L.Rev. 227, 276 (1978).

      . Art. X, § 4(c) Fla.Const.; § 732.4015, Fla. Stat. (1981), formerly § 731.05, Fla.Stat. (1968). This provision of the constitution was amended in 1972 to permit the homestead to be devised to the owner’s spouse if there are no minor children. This amendment was after Mr. Newman’s death.

      . § 732.401, Fla.Stat. (1981), formerly § 731.27, Fla.Stat. (1968).

      . § 731.34, Fla.Stat. (1967). This statute was repealed in 1974 and replaced by § 732.201 et seq., Fla.Stat. (1974), giving a surviving spouse an elective share of a decedent’s estate. This change was also after Mr. Newman’s death.

      . See § 196.031, Fla.Stat. (1981).

      . For example, the homesteader can change his residence to a place off of the property or do some act to change his status as the head of a family or may alienate the homestead by mortgage, sale or gift in the manner permitted by the constitution or permit title to be lost by forced sale for non-payment of taxes and assessments or of purchase, improvement or repair obligations or for labor performed on the realty. See Art. X, § 4(a), Fla.Const.


author: COWART, Judge.

text:
    Charles L. FRENCH and Julia M. French, Appellants, v. Bernard E. WELLMAN and Ruby Wellman, Appellees.
    No. 81-476.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.

      Brinly Carter, DeBary, for appellants.
    Nord L. Johnson of Rano, Cauvel & Johnson, P. A., DeLand, for appellees.
   COWART, Judge.

This is an appeal from an interlocutory order granting a motion to set aside a default.

Appellees initially filed a motion to dismiss this appeal, arguing this court did not have jurisdiction, citing Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980). Based on appellants’ response, appellees conceded and withdrew the motion to dismiss. Appellees erred, not in filing their motion to dismiss, but in withdrawing it. In Yates, we held that an order granting a motion to set aside a default, as distinguished from an order setting aside a judgment entered on a default (sometimes called a default judgment), was a non-final order not reviewable by appeal or common law certiorari. Since Yates is indistinguishable from this appeal, this appeal is

DISMISSED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . An order denying a motion to vacate a default has been held appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(iv). See, e.g., Silva v. Pedro Realty, Inc., 411 So.2d 872 (Fla.1982); Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla., 1982).

      . An order granting a motion to set aside a default judgment pursuant to Florida Rule of Civil Procedure 1.540(b) is a reviewable non-final order under Florida Rule of Appellate Procedure 9.130(a)(4) or (5). See, e.g., Diner’s Club, Inc. v. Brachvogel, 370 So.2d 443 (Fla. 3d DCA 1979), cert. dismissed 395 So.2d 1156 (Fla.1980).


text:
    STATE FARM FIRE AND CASUALTY COMPANY, etc., Appellant, v. AETNA FIRE UNDERWRITERS INSURANCE COMPANY, etc., Appellees.
    No. 81-704.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.

      Thorwald J. Husfeld and W. R. Armstrong, of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellant.
    Glenn E. Cohen and Robert M. Sharp of Bullock, Sharp, Childs, Mickler & Cohen, P. A., Jacksonville, for appellee.
   COWART, Judge.

This case involves the right of an insurance company which had issued a replacement fire policy to prorate loss with another insurance company which had issued the prior fire policy on the same property when the fire loss occurs after the first policy is cancelled but within the 10 day notification of cancellation period that the first company was required to give a mortgagee under a loss payable clause.

Mr. and Mrs. Floyd owned a house subject to a mortgage in favor of First Federal Savings and Loan Association and covered by a fire insurance policy issued by appellant, State Farm Fire and Casualty Insurance Company. The policy contained a standard mortgagee clause covering the mortgagee. The Floyds sold the house to the Oglesbys who applied to the mortgagee to assume the mortgage. The mortgagee required the purchasers to provide fire insurance coverage. The purchasers obtained fire insurance coverage from the appellee, Aetna Fire Underwriters Insurance Company, which policy was issued effective April 21, 1976. At the request of the Floyds, State Farm on July 7, 1976, notified the Floyds that their policy had been cancelled effective April 21, 1976, and sent a copy of the letter to the mortgagee with a postscript assuring it that its interest would continue to be protected until July 20, 1976, pursuant to a policy provision. The house was totally destroyed by fire on July 14, 1976. The two insurance companies litigated their respective liability and the trial court agreed with Aetna’s claim that dual coverage existed at the time of the loss and that Aetna was entitled to prorate the loss with State Farm. State Farm appeals that determination.

We note the difference between an “open” loss payable clause and a “New York” or “standard” loss payable clause. See 5A J. Appleman, Insurance Law and Practice § 3401 (1969). In this case, both policies contain a “standard” loss payable clause and under such clause the mortgagee is an insured whose independent rights under the policy cannot be adversely affected by the rights of the insured owners. The Oglesbys became owners of the property on April 15,1976, and paid Aetna to insure and protect themselves and the mortgagee from the risk of loss by fire effective as of April 21, 1976. On the other hand, the Floyds had State Farm cancel its policy and protection as of April 21, 1976, and State Farm calculated its return premium as of that date. Of course, this cancellation was subject to State Farm’s direct obligation to the mortgagee under the mortgagee clause, which obligation continued to protect the mortgagee’s interest for 10 days after the written notice of cancellation to the Floyds. Nevertheless, the mortgagee’s rights as mortgagee are only to be repaid money it has loaned and to have the security of the value of the unburned mortgaged house as collateral for the debt to it. The mortgagee’s rights as an insured mortgagee are only to be protected by insurance from loss of, or damage to, its security occasioned by the risk covered by the insurance. The policy provision requiring that the mortgagee be given a 10 day notice before the policy can be effectively cancelled as to such mortgagee is obviously for the benefit of the mortgagee and its interest and not for the benefit of the owner or any third party, such as another fire insurance company writing a policy intended to replace the prior policy. Likewise, it is evident that the 10 day period is to give the mortgagee opportunity to acquire replacement insurance to protect its interest. When a replacement policy is in force and effect, the mortgagee’s interest is protected, the purpose of the 10 day notice provision has been fulfilled and the prior cancellation of the first (replaced) insurance policy should be deemed effective as to the mortgagee, which is then protected by the replacement policy. This construction avoids unintended double or dual insurance coverage and is consistent with our conclusion in Insurance Co. of North America v. Morgan, 406 So.2d 1227 (Fla. 5th DCA 1981). Accordingly, the final judgment below is reversed and the cause is remanded for entry of judgment for appellant and for any other appropriate proceedings.

REVERSED and remanded.

DAUKSCH, C. J., and COBB, J., concur.

      . The letter to the Floyds read in part “as you requested, your policy has been cancelled effective April 21, 1976. Enclosed is your return premium of $23.” A blind postscript to the mortgagee read “your interest in this policy will continue to be protected until July 20, 1976, at which time coverage is terminated.”

      . The policy provided:
      If loss hereunder is made payable, in whole or in part, to a designated mortgagee not named herein as the insured, such interest in this policy may be cancelled by giving to such mortgagee a ten days’ written notice of cancellation.

      . Cat ’N Fiddle, Inc. v. Century Ins. Co., 213 So.2d 701 (Fla.1968); Graves v. Iowa Mut. Ins. Co., 132 So.2d 393 (Fla.1961); Frazier v. Standard Guaranty Ins. Co., 382 So.2d 392 (Fla. 4th DCA 1980).