text:
    DOLPHIN TIRE COMPANY and Sentry Insurance Company, Appellants, v. William H. ELLISON, Appellee.
    No. XX-171.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    Rehearing Denied Sept. 1, 1981.
    John F. McMath, Miami, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

The employer/carrier appeals from a deputy commissioner’s order awarding to the claimant a reasonable attorney’s fee pursuant to Section 440.34(2)(c), Florida Statutes (1979). We affirm.

The relevant facts to this appeal are essentially undisputed. Claimant’s initial claim alleged that an industrial accident occurred on October 16,1979, for which 80% temporary total disability benefits were due pursuant to the “catastrophic loss” provisions of Section 440.15(2)(b), Florida Statutes (1979). The claim also alleged entitlement to penalties, interest, costs and attorney’s fees. The employer/carrier, however, filed a notice to controvert which denied the alleged entitlement to TTD at the 80% rate, penalties, interest and attorney’s fees. Specifically, the employer/carrier denied that an injury occurred which had caused damage to claimant’s central nervous system. They did admit that a compensable injury had Occurred but argued that the claimant was only entitled to TTD benefits at the rate of 66%% of the average weekly wages. See § 440.15(2)(a), Fla.Stat. (1979). While they controverted the claim of 80% TTD, the employer/carrier voluntarily paid the 80% rate plus interest and penalties prior to the final hearing on July 15, 1980. They asserted, however, that the 80% rate was not really owed to the claimant and that they had “gratuitously” paid it. Nevertheless, they made no request for a refund or a credit for overpayment. In his order the deputy commissioner found that the claimant had suffered a “catastrophic loss” as defined by Section 440.15(2)(b), Florida Statutes (1979), that he was entitled to be recompensed at the 80% TTD rate, and that attorney’s fees were properly due him.

Since they did not deny that an injury occurred for which compensation benefits were payable and in fact stipulated to the contrary, the employer/carrier argues that this case does not involve the denial of a compensable accident within the purview of Section 440.34(2)(c), Florida Statutes (1979). That statute provides that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier:

... in a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.

This is an issue of first impression before this court. However, we note that the Workers’ Compensation Act (Chapter 440, Florida Statutes) is remedial legislation and is intended to be liberally construed in such a manner as to effectuate the purpose for which it was enacted. Gillespie v. Anderson, 123 So.2d 458 (Fla.1960); Great American Indemnity Co. v. Williams, 85 So.2d 619 (Fla.1956). The general tenor of the Act is that the employee shall receive the benefits to which he is entitled with reasonable promptness, consistent with the employer’s right to make a reasonable investigation. Thompson v. W. T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964). Further, under Chapter 440, every claim of an injured worker is aided by the presumption “in the absence of substantial evidence to the contrary” that the claim comes within the provisions of the Act. § 440.26, Fla. Stat. (1979). Additionally, contrary to the usual construction given to statutory provisions changing the common law, statutory provisions concerning attorney’s fees in workers’ compensation proceedings have received liberal construction. City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962). Here, it is apparent that the claimant suffered a catastrophic injury as defined by Section 440.15(2)(b), Florida Statutes (1979), that the carrier denied that such an injury had occurred to the claimant for which compensation benefits were payable, and the claimant prevailed in obtaining these compensable benefits. In light of the self-executing tenor of the Act and the principles enunciated above, we conclude that this factual situation is encompassed by Section 440.34(2)(c) and that the claimant was entitled to an attorney’s fee. It is arguable, of course, that the legislature intended that attorney’s fees only be awarded where the employer/carrier denies any right to compensability. However, such a narrow interpretation of Section 440.-34(2)(c) is contrary to the underlying policy to construe doubtful provisions of the Workers’ Compensation Act in favor of the claimant. Great American Indemnity Co., supra. Our holding should not be construed to authorize an attorney’s fee where the only issue is over the average weekly wage or some other incidental benefit where the carrier does not deny that an injury occurred for which benefits are payable and the claimant is not forced to prove his injury and entitlement to compensation.

We have considered the employer/carrier’s other argument and find it to be without merit.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: CAMPBELL, Judge.

license: Public Domain

text:
    Devard B. BURNEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1502.
    District Court of Appeal of Florida, Second District.
    July 31, 1981.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Devard B. Burney appeals his conviction and sentence for possession of a firearm by a convicted felon on several grounds. We feel that none of the grounds are meritorious and affirm. In doing so, however, we fell we should comment on the issue raised by the appellant concerning the trial court’s refusal to give the appellant’s requested instruction on attempted possession of a firearm by a convicted felon. The appellant preserved the issue by properly objecting to the court’s failure to give the requested instruction.

This court has recognized that there does exist the crime of attempted possession of a firearm by a convicted felon. Porter v. State, 363 So.2d 41 (Fla.2d DCA 1978). Ordinarily, we would be required to reverse for failure to give the required instruction. Lomax v. State, 345 So.2d 719 (Fla.1977); State v. Terry, 336 So.2d 65 (Fla.1976). Those cases speak in terms of requiring lesser included instructions even when the trial court believes the evidence adduced was not reasonably susceptible to an inference by the jury which would support the lesser included offense. In the case for review here, there was no evidence at all that would support the lesser offense of attempted possession. Regardless, were it not for the new standard jury instructions, effective July 1, 1981, we would still be forced to reverse. In the Matter of the Use by Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Nos. 56,734 and 58,799 (Fla. Apr. 16, 1981). The Florida Supreme Court indicated that a charge of a lesser included offense is not required when not supported by the evidence at trial. Id., slip op. at 4—6. The new standard jury instructions would control in any retrial of the appellant’s case if we reversed. Therefore, on a retrial appellant would not be entitled to the instruct tion on attempted possession. We are not required to do a useless act nor are we required to act if it is impossible for us to grant effectual relief. Since no practical result can be attained by ordering a retrial on the failure to give the charge of attempted possession of a firearm by a convicted felon, we affirm. See In re Estate of Lindsay, 207 So.2d 736 (Fla. 4th DCA 1968).

BOARDMAN, A. C. J., and RYDER, J., concur.


author: PER CURIAM.

text:
    CONTINENTAL CAN CO. and American Motorists Ins. Co., Appellants, v. John DiNUNZIO, Appellee.
    No. WW-284.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1981.
    Rehearing Denied Aug. 14, 1981.
    Summers Warden, Miami, for appellants.
    Jay M. Levy, of Silver, Levy & Hershoff, Miami, for appellee.
   PER CURIAM.

AFFIRMED. Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., C. J., and JOA-NOS and THOMPSON, JJ., concur.


author: BASKIN, Judge.

text:
    Juan DE ARMAS and Evangelina De Armas, Appellants, v. P. J. CONSTRUCTORS, INC., Appellee.
    No. 80-1838.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Greene & Cooper and Sharon L. Wolfe, Rosenblatt, Greene & Arnowitz, Miami, for appellants.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

The issue to be determined in this appeal from the entry of summary judgment in favor of appellees pertains to a subcontractor’s immunity from liability for the negligent acts of an employee which resulted in injury to an employee of another subcontractor. Is the subcontractor who employed the individual who injured the employee of another subcontractor immune from suit under sections 440.10 and 440.11, Florida Statutes (1977) when both subcontractors are subsidiaries of the same general contractor? We hold that under these circumstances section 440.10(1) provides no immunity for the subcontractor. We reverse.

Juan De Armas, an employee of Southwest Contracting Company, was injured by an employee of P. J. Constructors, Inc. Pan American Construction Company, the general contractor, owned 51% of P. J. Constructors, Inc. and 100% of Southwest Contracting Company. In a lawsuit brought by De Armas against P. J. Constructors, Inc., the court ruled that Pan American’s ownership of both P.J. and Southwest entitled P.J. to immunity from suit under the workmen’s compensation laws. The court was also persuaded by the fact that Pan American and both subcontractors appeared as named insureds under the workmen’s compensation policy. The trial court granted summary judgment in favor of P.J. This appeal ensued.

Section 440.10(1), Florida Statutes (1977) provides:

In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors . . . shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees .... A subcontractor is not Hable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of s. 440.11 from action of law ... on account of injury of such employee of another subcontractor. (Emphasis supplied).

The plain language of the statute contains no extension of the general contractor’s immunity to a corporation it owns in whole or in part. When section 440.10(1) was amended in 1974 to include a right of action against a subcontractor, it established for the first time that subcontractors no longer enjoyed immunity for injuries inflicted by employees on employees of other subcontractors. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); Martel v. Gibeaut, Inc., 330 So.2d 493 (Fla. 4th DCA 1976).

Although De Armas could not sue his employer, Southwest, or Pan American, he has, under section 440.10, a right to bring an action against a subcontractor standing in a horizontal relationship to his employer. Despite Pan American’s partial ownership of P.J., P.J. remained a separate corporation with a separate legal identity. Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976); Gladding Corporation v. Register, 293 So.2d 729 (Fla. 3d DCA 1974), cert. discharged, 322 So.2d 911 (Fla. 1975). We see no reason to pierce the corporate veil. See Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963); Naranja Rock Co. v. Dawal Farms, 74 So.2d 282 (Fla.1954).

We reject appellees’ contention that Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979) controls the situation before us. Although Goldberg discusses common employment immunity, it is unrelated to the statutory provision pertaining to subcontractors upon which we base our decision.

Finding no bar to suit by appellants, we reverse the summary judgment entered by the trial court and remand for further proceedings.

      . Ch. 74-197 § 6, Laws of Fla.


text:
    Thomas Otis MACKEY, Appellant, v. STATE of Florida on Behalf of Gertrude MACKEY, Appellee.
    No. 80-1705.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Rehearing Denied Sept. 4, 1981.
    Joseph P. Hoffman and Elizabeth Baker, Legal Services of Greater Miami, Inc., Carres, Gamble & Hamilton and Kathy Hamilton, Miami, for appellant.
    Rubin & Friedman and Melvin A. Rubin, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The appellant, father of a minor child who is being supported by the State, was found in contempt by the trial court for failure, while having the ability, to pay child support in accordance with an award previously made.

We reverse upon the reasoning contained in Chapman v. Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980), wherein it was held, under similar circumstances, that a father could not be imprisoned for a debt to the State.

The order of contempt is reversed.

      . The State had an assignment pursuant to Chapter 409, Florida Statutes (1979).

      . It is noted that the Chapman decision became final subsequent to the contempt order under review in this case.

      .The other points urged for reversal are not addressed in light of our reversal of the contempt order on the basis of no right to imprisonment for debt.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Procopio DELGADO and Luis Alberto Gonzalez, Appellees.
    No. 80-1967.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.

      Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon, Abe Koss, Miami, and Joseph Sorota, Clearwater, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

On the basis of information from a disinterested eye witness to an apparent assault or homicide, a South Miami police officer put out a BOLO (be on the lookout report) for the automobile allegedly involved. The BOLO was for a red and white vehicle of the type used in the “Starsky and Hutch” television series, occupied by two white males. Within “a matter of seconds” after first receiving this report, Public Safety Department officer Stephenson saw a vehicle which matched this description perfectly heading north on a through street located about three miles west of the crime scene. After verifying the contents of the BOLO, the officer stopped the car and apprehended the present defendants. On their motions, the trial court suppressed testimony concerning a “show-up” identification and other evidence resulting from the stop on the ground that it was not supported by articulable suspicion. The state appeals. We reverse. As in State v. Gamble, 370 So.2d 428 (Fla. 3d DCA 1979), which involved a similar trial court determination, we hold that the existence of the “reasonable suspicion” required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Section 901.151, Florida Statutes (1979) to support a temporary detention of this nature was established as a matter of law.

It is first of all clear — and neither the order under review nor the defendants really dispute the point — that Stephenson could properly base his actions upon the accuracy of the BOLO, the source of which was the presumptively reliable report of a citizen on the scene. Hetland v. State, 387 So.2d 963 (Fla.1980); Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979); see generally, State v. Webb, 398 So.2d 820 (Fla.1981), and cases collected; Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980).

The trial judge essentially held, however, and the appellees urge here, that there was insufficient reason to believe that the defendants’ car was the one the BOLO described. We cannot agree. The circumstances presented to Stephenson clearly gave rise to a reasonable belief that the defendants had in fact been involved in the criminal incident:

1. The vehicle both described and actually seen was a distinctive and unusual one. See United States v. Mallory, 460 F.2d 243 (10th Cir. 1972), cert. denied, 409 U.S. 870, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972); People v. Flores, 12 Cal.3d 85, 115 Cal.Rptr. 225, 524 P.2d 353 (1974); see also, Byrd v. State, supra; State v. Gamble, supra.
2. The vehicle was seen within a close and fully consistent proximity of time and place to those of the crime. Franklin v. State, 374 So.2d 1151 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1113 (Fla. 1980), and cases cited.
3. The vehicle was occupied, as the BOLO reported, by two white males. See Franklin v. State, supra.

While any one of these factors might not be sufficient to validate the stop, see L. T. S. v. State, 391 So.2d 695 (Fla. 1st DCA 1980), the co-existence of all of them makes it self-evident that there was a rational basis for the conclusion that those who were riding in the vehicle and those described in the BOLO were two and the same. Stephenson’s actions were entirely appropriate as measured by the standards of both good police work and the constitution. As they usually do, the common conception to the contrary notwithstanding, these standards exactly coincide in the present case.

Reversed.

      . The officer testified
      Q. Have you had occasion — you said you had occasion to see the Starsky and Hutch program?
      A. Correct.
      Q. Can you tell me how the Starsky and Hutch vehicle compares with this vehicle?
      A. Very, very similar in regard to the red and white location of the paint and along the vehicle, with the white stripe and all.


author: HURLEY, Judge.

text:
    Samuel CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 80-44.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.

      Richard L. Jorandby, Public Defender, and Donald C. Dowling, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

The appellant, Samuel Clark, appeals the revocation of his probation and a sentence of eighteen months in the state prison. He claims (1) that the trial judge lacked jurisdiction to hear two additional counts which were added to the affidavit of violation after the expiration of his probationary period, and, (2) that the evidence pertaining to the original counts was insufficient to support a guilty finding. We agree, and, consequently, reverse.

On October 4, 1978, following a plea of guilty to grand theft, appellant was placed on probation for one year, (i. e., October 4, 1978 — October 3, 1979). On August 24, 1979, an affidavit of violation of probation was filed charging that on August 22, 1979, appellant actually or constructively possessed a firearm (Count I), heroin (Count II), and cocaine (Count III). On October 5, 1979, two days after the expiration of the one-year probationary period, an amended affidavit of violation of probation was filed. Counts I, II, and III of the original affidavit were realleged; two additional counts were added which charged appellant with delivery of cocaine on August 7, 1979 (Count IV), and delivery of heroin on August 9, 1979 (Count V). Following a hearing, the court found appellant guilty of violating probation by committing the acts specified in counts II, III, IV, and V, i. e., two of the original counts (II and III) and the two added counts (IV and V). The court revoked appellant’s probation, adjudged him guilty of grand theft and imposed a sentence of eighteen months imprisonment.

Although appellant failed to voice an objection below to the trial court’s lack of jurisdiction to consider counts IV and V due to their untimely filing, we hold that the issue may be raised for the first time on appeal since it is fundamental and jurisdictional. Gibson v. State, 351 So.2d 948, 950 (Fla.1977). Thus, we turn to the general rule which governs timely revocation of probation: once a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation. Bouie v. State, 360 So.2d 1142 (Fla.2d DCA 1978); Carpenter v. State, 355 So.2d 492 (Fla.3d DCA 1978); State ex rel. Ard v. Shelby, 97 So.2d 631 (Fla.1st DCA 1957). See Sections 948.06(1), 948.04(2), Florida Statutes (1979).

In the case at bar the state urges that the above rule should not preclude consideration of the new or amended charges because the “amended affidavit . . . was part of the process set in motion by the original affidavit. . . . ” Furthermore, the state suggests that the similarity between the original and the added charges lends credence to its “relation-back” theory. We disagree. The Supreme Court in Carroll v. Cochran, 140 So.2d 300 (Fla.1962), upheld a revocation of probation even though an arrest warrant was not served until after the termination of probation. The court grounded its decision on the fact that “the processes of the trial court had been timely set in motion . . . because the warrant . . . was issued within the period of probation.” Id., at 301. We apply a restrictive interpretation to the holding in Carroll and conclude that while it permits a revocation process, timely begun, to continue past the probationary term, it does not allow the filing of new, substantive charges after the date of termination of probation. Consequently, since Counts IV and V constituted new and untimely filed charges, we hold that the court was divested of jurisdiction to consider them.

On the other hand, since the first three counts in the amended affidavit merely realleged the three timely-filed original charges, we hold that the court did have jurisdiction to determine whether appellant violated his probation by committing any of the acts specified in those counts. See Jess v. State, 384 So.2d 328 (Fla.3d DCA 1980). Accordingly, we turn to the record to determine whether the trial court’s findings have support.

Testimony revealed that on August 22, 1979, a search warrant was executed at 612 N.W. 8th Avenue, Hallandale, Florida. This address is a one bedroom apartment in a duplex. The investigating officers forcibly entered the apartment and found appellant standing in the bedroom with a woman named Rontoralyen Jenkins. Upon being advised of his Miranda rights, appellant said that “he had just been in there a little while because he was looking the place over because he was going to rent it.” Miss Jenkins later confirmed appellant’s statement.

The officers began their search and, in the kitchen, located a brown envelope containing ten aluminum foil packets and a film case with three additional tin foil packets. Asked if any drugs or weapons were found on defendant’s person, Officer Mag-rill testified “Not to my knowledge, no.” Similarly, when asked if he ever saw the defendant in the kitchen, he answered “I never saw him in the kitchen, no.” Officer Huetter testified that the apartment was rented by a “Jack Clark” who was not the same person as the defendant “Samuel Clark.” Asked , what the relationship was between the two men, Huetter answered, “I think it’s father or uncle, one or the other; I have not been able to establish which one. .. We cannot locate or track down this Jack Clark, whoever he is.” Officer Bieger was asked whether there was an indication of anyone living in the apartment recently. He answered, “Not to my knowledge, no.”

While it is accepted that probation revocation hearings may be informal and need not adhere to strict rules of evidence applicable to criminal trials, Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Rathburn v. State, 353 So.2d 902 (Fla.4th DCA 1977), it is equally clear that a person’s probation may not be revoked unless there is sufficient evidence to satisfy the conscience of the court that a substantial violation of the conditions of probation has occurred. Bernhardt v. State, 288 So.2d 490 (Fla.1974). Applying this fundamental principle to the case at bar, we are compelled to hold that the evidence adduced below, viewed in the light most favorable to the state, utterly fails to satisfy the requirements for constructive possession. See e. g., Smith v. State, 279 So.2d 27 (Fla.1973); Wale v. State, 397 So.2d 738 (Fla.4th DCA 1981); D. M. M. v. State, 275 So.2d 308 (Fla.2d DCA 1973). Aside from appellant’s mere presence in the apartment — which was explained without contradiction — there is a total void of proof. Accordingly, we conclude that the court’s findings cannot be supported by any evidence in the record and, therefore, the order on appeal is reversed.

BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    William J. BORATTO and Louis A. Boratto, Appellants, v. LTA COMPANY, a General Partnership, Appellee.
    No. 79-1477.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.

      Edna L. Caruso, West Palm Beach, and Ross J. McKelvey, Jr., Miami, for appellants.
    J. Timothy Sheehan of Gibson, Gibson & Sheehan, P. A., West Palm Beach, for ap-pellee.
   PER CURIAM.

AFFIRMED.

BERANEK and HURLEY, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially:

I agree with the result reached in this case. The contract between the parties for the sale of a condominium penthouse unit from appellee,'the developer, to appellants, the purchasers, was clear in its terms. In particular, paragraph 4 expressly provided that in the event appellants were unable to secure financing, the contract would be terminated.

Appellants were turned down twice by the prospective lender during a period of several months following the execution of the contract. After the first rejection, ap-pellee waived the termination provision and verbally approved of a resubmission by appellants of their application. Following notification from the prospective lender of the second rejection, appellee considered the contract terminated. It wrote one of appellants, who had obtained possession of the unit by an early occupancy agreement, that it wished possession of the unit to be delivered to appellee. Less than a week after this notification, appellants received a third rejection from the lender — this time for a smaller mortgage — and appellant in possession of the unit immediately notified appel-lee that it would close for cash without a mortgage. Appellee responded that the contract had been terminated and subsequently filed this action for possession.

The final judgment awarded possession to appellee. I concur in that decision because the contract was terminated prior to appellee’s offer to close for cash. Said offer did not breathe new life into the contract.


author: WENTWORTH, Judge. LARRY G. SMITH, Judge,

text:
    John Henry FIELDS, Appellant, v. STATE of Florida, Appellee.
    No. NN-228.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.

      Michael J. Minerva, Public Defender, Gene S. Taylor, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

On this appeal from a judgment of conviction and sentence on a charge of robbery, we are now required to dispose of allegations of error independent of those treated in our initial opinion in this cause.

Appellant, a juvenile, challenges the denial of his motion to suppress uncounseled confessions and admissions obtained during a custodial detention and interrogation of approximately four hours. Although appellant expressly waived his Miranda rights, we conclude that his action cannot be regarded as a voluntary, intelligent, or knowing waiver, and the various confessions and admissions should have been suppressed.

Appellant was, in formal terms, repeatedly advised of and said that he understood his Miranda rights, but upon being asked if he wanted a lawyer his response was that “I can’t afford to get one.” Appellant’s interrogators did not then or at anytime thereafter make any further statement or clarification regarding his right to counsel. The trial judge suppressed the confession which was given contemporaneously with the quoted statement, but did not suppress the various other confessions and admissions given prior and subsequent to the statement.

A court-appointed psychologist testified that appellant had a reduced mental ability involving a “visual perceptual disorder” with brain damage and attention span problems, and that he had the reading ability of a first-grade student. The doctor also testified that appellant “would have trouble” understanding his Miranda rights as they were read to him.

A Miranda waiver during custodial interrogation is valid only if it is a voluntary, intelligent, and knowing waiver. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tennell v. State, 348 So.2d 937 (Fla.2d DCA 1977). In determining whether a waiver is voluntary, intelligent, and knowing, the court must consider the totality of the circumstances, and while a juvenile may waive his Miranda rights, the state bears a “heavy burden” in establishing that the waiver is valid. Arnold v. State, 265 So.2d 64 (Fla.3d DCA 1972), cert. denied, 272 So.2d 817 (Fla.1973). In the present case the testimony of the court-appointed psychologist and appellant’s statement regarding his inability to afford an attorney show plainly that appellant did not intelligently comprehend the meaning of his Miranda rights to have counsel even if he could not afford the cost. The record also reflects false police assertions apparently calculated to delude appellant and destroy his resistance. We conclude that appellant has established that his waiver of Miranda rights was not a voluntary, intelligent, and knowing waiver, and the trial judge should accordingly have granted his motion to suppress the confessions and admissions in question.

The judgment and sentence appealed are reversed and the cause is remanded for further proceedings.

SHAW, J., concurs.

LARRY G. SMITH, J., specially concurs with opinion.

LARRY G. SMITH, Judge,

specially concurring.

Evidence presented by the State at the suppression hearing revealed, as noted in the majority opinion, that appellant when asked if he wanted a lawyer stated “I can’t afford to get one.” During the period of approximately two hours preceding this statement appellant had received Miranda warnings three times: First, at a playground in a residential neighborhood where the officers initially made contact with him; second, when he arrived at the Sheriff’s Office in the Courthouse after agreeing to voluntarily accompany the officers there for further discussion of the crime for which he was later charged; and third, at the beginning of the taped interview at which appellant made the statement about not being able to afford counsel. Appellant initially denied being involved in the offense when first contacted by the officers. After the second Miranda warning at the Sheriff’s Office, the officers conducted further questioning and investigation of information given by appellant tending to establish an alibi. This went on for an hour or so, at which time one of the officers made the factually incorrect representation to appellant that his fingerprints had been identified at the crime scene. This incorrect statement triggered appellant’s first incriminating statement, to the effect that “I might have touched the door when I was leaving.” The officers then commenced the taped interview at which time the third Miranda warning was given.

Edwards v. Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reaffirmed the stringent standard of Miranda and subsequent cases which require that a waiver of counsel must not only be “voluntary,” but constitute a “knowing and intelligent relinquishment of a known right or privilege ...” (- U.S. at -, 101 S.Ct. at 1883). The court further elaborated on this standard by holding that “once an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights.” Id. at -, 101 S.Ct. at 1884.

The circumstances of appellant’s interrogation, coupled with the evidence of his diminished mental capacity, preclude a finding that at the time he made his initial incriminating statement he knew and understood his right to have free counsel provided by the state. His subsequent statement regarding his inability to afford counsel must be considered, in my opinion, not only with respect to the first taped confession, which was suppressed by the trial court, but to his preceding untaped statements and the second taped statement, which were not suppressed. Appellant’s assertion concerning his inability to afford counsel appears to have been made spontaneously, in response to a specific question concerning his desire for counsel, and there is no indication that it was spurious or fabricated for the purpose and with the intent of invalidating his earlier incriminating statements. Both the taped and the untaped conversations were, for all intents and purposes, one continuous investigative episode. When so viewed, appellant’s declaration of inability to afford counsel was virtually contemporaneous with his preceding incriminating statements, and the conclusion is inescapable that he never understood his right to free counsel, and his right to free appointed counsel was never explained to him even after his misunderstanding was apparent.

It is now clear from the decision in Edwards v. Arizona, supra, that free and voluntary response to police interrogation cannot alone show waiver of the right to counsel where that right has previously been invoked. Applying an equally stringent waiver standard here, I am satisfied that appellant’s free and voluntary response to police interrogation is not sufficient to show a waiver of counsel where his later response clearly and unequivocally demonstrates his lack of understanding of the right to free counsel. Although it is entirely within the province of the trial court to judge the intelligence and understanding of any accused in suppression hearings, it appears that a less exacting waiver standard was applied here. For this reason I would join with the majority in reversing the order denying suppression of the untaped statements and the taped statement later made at the Tallahassee Police Department.

      . After remand from the Supreme Court, State v. Fields, 394 So.2d 1015 (Fla.1981), reversing Fields v. State, 377 So.2d 223 (Fla. 1st DCA 1979).

      . Appellant was told that he had been identified by a confidential informant and that his fingerprints had been found at the scene of the robbery. The record shows that neither statement was true.

      . At approximately 2:00 p.m. the officers drove to appellant’s home, talked briefly with his mother, and shortly thereafter spotted appellant in a neighborhood park. The first taped statement commenced at 4:05 p.m.

      . This decision, further elaborating upon the scope of Miranda rights, came long after the trial judge’s ruling here reviewed. Mr. Justice White’s majority opinion points out the clear distinction between the consent to search standard of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), which requires only that the consent be “voluntary under the totality of the circumstances,” and the standard for waiver of the right to counsel, which mandates a showing of “ ‘intentional relinquishment or abandonment of a known right or privilege.’ ’’ Edwards v. Arizona, - U.S. at-, 101 S.Ct. at 1883.


author: THOMPSON, Judge.

text:
    STATE of Florida, Appellant, v. Kirk Bryan McCRERY, Appellee. STATE of Florida, Appellant, v. Lila Subhiya GUERTIN, Appellee.
    Nos. AB-56, AB-84.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.
    Rehearing Denied October 2, 1981.
    Gregory C. Smith, Asst. Atty. Gen., for appellant in No. AB-56.
    Larry G. Turner, Thomas W. Kurrus, Gainesville, for appellee in No. AB-56.
    Carolyn Snurkowski, Asst. Atty. Gen., for appellant in No. AB-84.

      Michael L. Bryant, Jack M. Ross, Gaines-ville, for appellee in No. AB-84.
   THOMPSON, Judge.

This is a consolidated appeal from an order granting the appellees’ motions to suppress evidence. The State argues that the trial court erred by finding that the search warrant herein failed to state with particularity the property to be seized. We agree and reverse.

A Gainesville police officer applied for a warrant to search the appellees’ residence. He explained in detail why he thought cannabis and cocaine were located on the premises. He also explained why he believed that the appellee McCrery was dealing in large amounts of illegal narcotics. Based upon the police officer’s affidavit, a search warrant was issued, authorizing a search for the following items: “contraband being controlled substances under Chapter 893 Florida State Statutes including cocaine, cannabis and records and notes of narcotic transactions as well as evidence of the commission of a felony; to wit: possession and possession with intent to sell or deliver cocaine and/or cannabis.”

The search warrant was executed, and the appellee McCrery was subsequently charged with possession of more than 20 grams of cannabis, while the appellee Guer-tin was charged with possession of cannabis. The appellees filed motions to suppress all evidence seized from their residence, and these motions were granted.

“In determining the degree of specificity required in the description of goods to be seized, it is necessary to look at the nature of the thing to be seized and the particular circumstances of the case.” Pezzella v. State, 390 So.2d 97, 99 (Fla. 3d DCA 1980). “When contraband is sought, the courts have been least demanding in their description requirements.” Id. at 99 n. 1. Of course, the standard of reasonableness must be applied. Given these considerations, we find that the search warrant herein adequately described the property to be seized.

The instant case may be contrasted with Pezzella, where the court found that the following description of property to be seized was constitutionally overbroad: “Possession of a controlled substance: In violation of F/S/S 896.13 [893.13].” Unlike the warrant in Pezzella, the search warrant here, on balance, sufficiently specifies the property to be seized. Thus, we reverse the trial court’s order.

McCORD and SHIVERS, JJ., concur.


author: BARKDULL, Judge.

text:
    The STATE of Florida, Appellant, v. Samuel ROGERS, Appellee.
    No. 80-1739.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      Janet Reno, State Atty. and Ira N. Lo-ewy, Asst. State Atty., for appellant.
    Smith, Black & Peckins and David M. Peckins, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BARKDULL, Judge.

The State of Florida appeals from two orders entered discharging defendant, Samuel Rogers, from prosecution pursuant to Fla.R.Crim.P. 3.191, the speedy trial rule.

In Case No. 80-1643, defendant Rogers was charged with the burglary of a structure and with grand theft in the second degree. In Case No. 80-1716, he was charged with robbery. In the former case he was arrested on November 30, 1979; in the latter case he was arrested on November 28, 1979. Trials in both cases were set for May 19,1980 (which date was within the speedy trial period). On the weekend prior to the trial date, serious civil disorders occurred within Dade County, resulting in a May 19, 1980 administrative order (No. 80-121), entered by Chief Judge Edward Co-wart, acknowledging the emergency situation within the County. The order of May 19th read, in part, as follows:

“WHEREAS, the Court finds that exigency conditions exist in Dade County, Florida;
THEREFORE, pursuant to Rule 3.191(d)(2)(h) and (f)(i), (iii) and (iv) of the Florida Rules of Criminal Procedure, and with the authority vested in me as Chief Judge of the Eleventh Judicial Circuit of Florida, it is hereby
ORDERED that the speedy trial rule be tolled from day-to-day for all cases set for trial in the Criminal Divisions of the Circuit and County Courts for the week of May 19, 1980, and as long as emergency circumstances continue. At the end of the aforementioned exigency conditions, this Court will enter an Order rescinding any further tolling of the speedy trial rule concerning criminal cases in Dade County, Florida.
A copy of this Order shall be placed in the Court files of all cases scheduled to be tried during the time that said conditions exist and until further order of Court.”

This was followed by an order dated May 28th by the trial judge, Judge Earnest, which read as follows:

“Pursuant to the provisions of Fla.R. Crim.P. 3.191 (d)(2), and (f)(iii) and (iv) this Court finds that:
1. Civil disorder in the form of shooting, looting, rioting, sniping and killing has broken out in significant portions of Dade County, Florida;
2. All available local police and other law enforcement personnel, as well as numerous national guard troops have been activated in response to said civil disorder;
3. As a result law enforcement witnesses are unavailable to both the defense and the State at this time, but will become available at a later date;
4. As a result defense and state witnesses, jurors, attorneys, and court personnel are unable to freely and safely traverse the streets of Dade County, Florida;
Based upon the foregoing findings this Court concludes that as a matter of substantial justice to both the defense and the State, the speedy trial time limitations provided for in Fla.R.Crim.P. 3.191 should and are hereby extended up to and including the last full business day of the week of July 28, 1980.”

Subsequently, on May 30, 1980, the Chief Judge entered an order nunc pro tunc to May 27th, which read in part as follows:

“ORDERED that the tolling of the speedy trial rule, pursuant to Administrative Order Numbers 80-121 and 80-122, filed in Case No. 80-3 (Court Administration), shall cease at the end of the courts normal business day on May 27, 1980 and no longer be effective; however, each Trial Judge, on an individual case basis, shall determine under appropriate Rules of Criminal and Juvenile Procedure the effect of any continuance necessitated by the exigent circumstances outlined in the above referred to Administrative Orders.”

Thereafter, on July 30, 1980, for the first time, the defense moved for discharge. Ultimately, the trial court discharged the defendant because he had not been accorded a speedy trial.

This appeal ensued. We reverse the order of discharge. It was error for the trial court to discharge the defendant, where the speedy trial period was extended due to exigent circumstances. Chief Judge Cowart’s May 30th order stated that “. .. each Trial Judge, on an individual case basis, shall determine under appropriate Rules of Criminal and Juvenile Procedure the effect of any continuance necessitated by the exigent circumstances outlined in the above referred to Administrative Orders"

No party questions that Chief Judge Cowart’s original order of May 19th was appropriate in view of the civil disturbances then present in Dade County, which have come to be known as the “McDuffie Riots”. Judge Earnest’s order of May 28th was appropriate, not only because he was the original trial judge but because it was provided for in the nunc pro tunc order entered by Chief Judge Cowart. There was no constitutional impediment to a speedy trial, the defendant not being incarcerated, there being no showing of prejudice or unreasonable delay. State v. Hamilton, 387 So.2d 555 (Fla. 2d DCA 1980); Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Edwards, 577 F.2d 883 (5th Cir. 1978); United States v. Noll, 600 F.2d 1123 (5th Cir. 1979).

Therefore, we find that the order of discharge entered July 30, 1980 to have been erroneously entered, and it is hereby reversed and set aside and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded for further proceedings.

      . Same order entered in both cases.

      . Same order of discharge entered in both cases.


text:
    Curtis Jay DAMM, Appellant, v. The STATE of Florida, Appellee.
    No. 81-16.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen. for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

The defendant, Curtis Damm, appeals from a final judgment of conviction and sentence entered against him in the Dade County Circuit Court.

Damm was informed against for sexual battery not likely to cause serious personal injury (Count I) and burglary (Count II). A plea hearing was held before Judge Stet-tin, who was informed by defense counsel that pursuant to an agreement with the State the defendant would plead guilty to both counts and would be so adjudicated, in exchange for which he would be adjudged a mentally disordered sex offender and thereupon committed for treatment under the mentally disordered sex offender program. It was agreed that in the event the defendant did not successfully complete the sex offender program, his maximum penalty would be no greater than fifteen years for the entire case (both counts). In this regard, the trial judge specifically explained to the defendant: “...lam telling you now you will and can be sentenced to jail for up to fifteen years less credit for all of the time you have served either in a hospital or a jail since the time of your arrest. Do you understand that?” The defendant responded: “Yes, sir.” On March 28,1979, the trial judge entered a written order adjudging the defendant guilty of both counts of the information and finding the defendant to be a mentally disordered sex offender, committing him to the Department of Health and Rehabilitative Services for treatment under Chapter 917 of the Florida Statutes (1977).

In December of 1980, based on the defendant’s failure to complete the sex offender program, a sentencing hearing was conducted before a different trial judge who sentenced the defendant to ten years’ imprisonment on Count I, with a consecutive twenty-year term of probation on Count II. The judge imposed this sentence without requiring a pre-trial investigation report. The consecutive twenty-year probationary sentence was imposed over defense counsel’s assertion that it fell outside of the plea agreement. This appeal by the defendant resulted.

We remand the matter to the trial court to first determine if the instant convictions were the first felony convictions suffered by the defendant; if so, the sentences are hereby set aside and vacated. The trial court should order a pre-sentence report in accordance with Rule 3.710, Florida Rules of Criminal Procedure and thereafter resen-tence the defendant, as he may be so advised, but any such sentence or sentences should not exceed a total of fifteen years in the State correctional system pursuant to the plea bargain, less credit for time served. If the trial judge determines that the defendant has a previous felony conviction, the ten-year sentence is hereby affirmed. However, we modify the probation to a period of five years, and if the defendant should violate said probation the most time that he could be sentenced to upon such violation would be five years.

Returned to the trial court with instructions.


text:
    Paul RHYNE, Trading as Paul Rhyne Plumbing, Appellant, v. MIAMI-DADE WATER AND SEWER AUTHORITY and Protean Investors, Inc., Appellees.
    No. 81-176.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Don R. Livingstone, South Miami, for appellant.
    Henry H. Harnage of Worley and Gautier, Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen, Miami, for appellees.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Paul Rhyne, trading as Paul Rhyne Plumbing appeals from a summary judgment entered in favor of appellees Protean Investors, Inc. and Miami-Dade Water and Sewer Authority. The issue on appeal is whether the trial court erred in granting defendant/appellee’s summary judgment on the basis of appellees’ affirmative defense of res judicata.

The defense of res judicata arises from a mortgage foreclosure action by Bankers Trust Company of New York against Milam Interchange Industrial Park, Inc., owner of a residential construction project, and various other defendants including appellant Rhyne Plumbing which had filed a mechanics lien on the property. In this action, Rhyne filed a counter-claim against Bankers Trust for materials and services rendered Milam under Rhyne’s sub-contract with Martin Friedman Construction Co., Inc.

On April 7,1976, a partial summary judgment was entered against Rhyne as to Counts I, II, III and IV of its counter-claim and on August 9, 1979, a summary final judgment of foreclosure was entered which incorporated the previous partial summary judgment. In rejecting Count III, the lower court necessarily found that the personal property of Rhyne was subject to the mortgage and security documents of Bankers Trust and transferred any interest of Rhyne to Bankers Trust.

According to the provision in the prior summary judgment, Bankers Trust assigned its foreclosure sale bid to Protean. On November 24, 1976, Protean conveyed the property to appellee Miami-Dade Water and Sewer Authority. Appellee Miami-Dade claims the act of conveying from Protean to the Authority was the same act as required of Milam had the foreclosure adjudication not occurred.

The doctrine of res judicata bars a second action between the same parties or their privies on the same issues decided below. Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972) (elements of res judica-ta: (1) identity in thing sued for, (2) identity of cause of action, (3) identity of persons and parties to actions, and (4) identity of quality or capacity for or against whom claim is made). Compare Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla. 1977) (collateral estoppel requires identity of parties and issues that were fully litigated and determined in another forum) with St. Louis Baptist Temple, Inc. v. Federal Deposit Insurance Corp., 605 F.2d 1169 (10th Cir.1979) (collateral estoppel an aspect of res judicata) and Vera v. Garcia, 390 So.2d 797 (Fla. 3d DCA 1980) (subsequent action barred where no new issue), and American National Bank & Trust Co. of Fort Lauderdale v. Egidi, 388 So.2d 51 (Fla. 4th DCA 1980) (under doctrine of estoppel by judgment, parties are estopped from litigating issues actually adjudicated in prior litigation; res judicata is applicable as bar to action where same issue is presented as defense in earlier suit resulting in judgment adverse to party bringing subsequent claim).

As assignee of the judgment, Protean is entitled to all the beneficial interests, rights and remedies of the assignor. And, as assignee, Protean is clearly a privy of Bankers Trust, subject to the application of res judicata. See St. Louis Baptist Temple, Inc., supra at 1175, stating that “privity exists in relation to subject matter between prior and instant litigation if the parties to the instant litigation claim under the same title,” and quoting from 46 Am.Jur.2d, Judgments, § 532, pp. 684, 685 as follows:

Under this rule, privity denotes mutual or successive relationship to the same right of property, so that a privy is one who, after the commencement of the action, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase, or assignment. There is privity within the meaning of the doctrine of res judicata where there is an identity of interest and privity in estate, so that a judgment is binding as to a subsequent grantee, transferee, or lienor of property. This is in harmony with the view that a judgment is binding on privies because they are identified in interest, by their mutual or successive relationship to the same rights of property which were involved in the original litigation.

The above definition of privy applies also to appellee Miami-Dade who is a transferee in interest. See also IB Moore’s Federal Practice (2d ed. 1974), § .0411[1], See, e.g., Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (res judica-ta bars further claims by parties or their privies based on same cause of action); Small Business Administration v. Taubman, 459 F.2d 991 (9th Cir. 1972) (counter-claim of assignee which asserted same cause of action previously asserted by assignor barred by res judicata).

Rhyne asserts that he should be paid for his work. Unfortunately for Rhyne, his right to payment for the materials and services which are the subject of this suit was foreclosed by the prior adjudication in favor of Bankers Trust and its privies, including assignees and transferees, and his present claim is barred by the doctrine of res judicata.

Rhyne’s argument that there was a separate binding oral agreement for payment between Rhyne and Miami-Dade Water and Sewer Authority is without merit.

Affirmed.


text:
    Felicita E. HOTUSING, a/k/a Felicita E. Pascual, Appellant, v. Orlando A. HOTUSING, Jr., Appellee.
    No. 81-385.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Robin B. Gluck, Miami, for appellant.
    Carlos M. Mendez and Carlos L. deZayas, Hialeah, for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD, R. (Ret.), Associate Judge.
   PER CURIAM.

This case is before the court to review an order on motion for temporary custody and other relief wherein custody of the minor child previously awarded to the mother by final judgment of dissolution of marriage, is taken from the mother and awarded to the father. It is contended by this appeal that (1) the mother’s due process rights were violated when she was notified only one working day prior to the father’s motion for change of custody and not allowed sufficient time to secure witnesses or a court reporter, (2) it was error to proceed upon the order to show cause for temporary change of custody where the order, in effect, shifted the burden of proof to the wife and relieved the husband of his burden to prove a change in circumstances. The record is absent not only a transcript of the hearing, but the order which changes custody sets forth no factual basis.

The cause is remanded for a period of 15 days in order that a new evidentiary hearing be held with a court reporter present. The cost of the reporter is to be appellant’s expense.


text:
    STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Charles A. Nuzam, Director, Appellants, v. 27TH AVENUE CORPORATION, INC., a Florida corporation, d/b/a The Climax Lounge, Appellee.
    No. 81-386.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      William A. Hatch, Tallahassee, for appellants.
    Daniel A. Wick, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The temporary injunction staying the enforcement of an ex parte agency emergency order is reversed because the circuit court had no jurisdiction to entertain the complaint for injunction. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. N. K., Inc., 399 So.2d 416 (Fla.3d DCA 1981).

Reversed.


text:
    A. HAGEN, Appellant, v. FLORIDA DRUG, INC., d/b/a Florida Wholesale Drug, Inc., and Remala Drug Corporation, d/b/a Williams Rexall Pharmacy, Appellee.
    No. 78-2735.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Nancie G. Severs of Miller & Squire, Fort Lauderdale, for appellant.
    Michael W. Ullman of Ullman & Ullman, North Miami Beach, for appellee-Florida Drug, Inc.
    No appearance for appellee-Remala Drug Corp.
   HURLEY, Judge.

Plaintiff/appellant brings this appeal from the dismissal with prejudice of his third amended complaint. We affirm in part and reverse in part.

Count one was aimed at the defendant Remala Drug Corporation and alleged a breach of a lease agreement. Since Remala neither moved to dismiss nor filed a responsive pleading, the court erred in dismissing count one.

Count two was directed against defendant/appellee Florida Drug, Inc. Therein, plaintiff alleged the existence of a statutory landlord’s lien and prayed for its enforcement against the proceeds of a subsequent lien which had been perfected by Florida Drug, Inc. Employing the usual criteria for evaluating a pleading on a motion to dismiss, see Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So.2d 1171 (Fla. 3rd DCA 1981), we conclude that count two adequately states a cause of action. Those matters now urged upon us by appellee to justify the dismissal constitute affirmative defenses which should be pled and considered at a later stage in the proceedings.

Count three, on the other hand, seeks to establish an equitable lien against certain proceeds obtained by appellee. Since there are no allegations of fraud, misrepresentation or other affirmative deception, the trial court was correct in dismissing this count. See Rinker Materials Corp. v. Palmer First National Bank and Trust Co., 361 So.2d 156 (Fla.1978); Armetta v. Clevetrust Realty Investors, 384 So.2d 55 (Fla. 4th DCA 1980).

Accordingly, the dismissal of counts one and two is reversed; the dismissal of count three is affirmed.

LETTS, C. J., and DOWNEY, J., concur.


author: HERSEY, Judge.

text:
    William BROWN, Appellant, v. SOUTH BROWARD HOSPITAL DISTRICT, d/b/a Memorial Hospital, a political subdivision of the State of Florida, Appellee.
    No. 79-654.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.

      Jeffrey Michael Cohen and David A. Ro-senblatt of Fromberg, Fromberg & Roth, Miami, for appellant.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appel-lee.
   HERSEY, Judge.

William Brown appeals from a final order granting a motion to dismiss his amended complaint with prejudice.

Appellee, South Broward Hospital District, entered into a contract with Andrew H. Warner, Inc. whereby the latter became general contractor to remodel Memorial Hospital, owned by the District. The general contractor entered into a contract with Chief Salvage Corporation which thus became a subcontractor to perform certain phases of the work. Appellant, Brown, was an employee of the subcontractor. On November 9, 1976, he was instructed by his foreman to reduce the width of a ledge on the second floor of the building. It is alleged in the complaint and admitted for purposes of the motion to dismiss and this appellate review that Brown specifically requested safety straps or a scaffold “but none were available or, in the alternative, the Plaintiff’s foreman refused to provide the Plaintiff with them.” It is further alleged that during the cutting operation a piece of concrete fell, throwing the concrete saw into the air, causing Brown to fall whereby he sustained serious injuries.

The amended complaint containing these allegations was dismissed for failure to state a cause of action. Appeal is taken only with reference to the dismissal of Count II and our review will be similarly limited.

The issue raised by the briefs and the record is whether the owner of real property is liable to the employee of a contractor engaged by the owner to build, remodel or demolish a building for injuries sustained by that employee during the course of and within the scope of his employment. While the issue thus stated is rather too broad, the subsequent discussion will serve to narrow the legal issue we actually determine here.

Appellant attacks the trial court’s order as erroneous, advancing two alternative theories.

First, appellant suggests that the trial court may have determined that worker’s compensation insurance was the exclusive remedy available under these circumstances. If this were the sole basis for the trial court’s order, then it would be clearly erroneous, as suggested by appellant. It is correct to state that Section 440.11, Florida Statutes (1979) provides that the liability of an employer for worker’s compensation is in lieu of any other liability to the employee and therefore is his exclusive remedy. The test for application of the immunity rule is whether the party against whom relief is sought had the duty or liability to provide worker’s compensation coverage. Immunity is co-extensive with that duty. Smith v. Ussery, 261 So.2d 164 (Fla.1972). Appellee hospital district was neither an “employer” nor a “contractor” within the meaning of the Worker’s Compensation Act; therefore is not immune from suit. Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954). The issue of immunity, however, becomes operable only if the complaint does or could otherwise state a cause of action against appel-lee.

Appellant’s argument on this question is more complex and troublesome. In summary, Brown contends that failure to provide scaffolding was a violation of a penal statute, which statute imposed a duty on the owner of the premises, so that the violation itself is negligence per se, actionable against the owner/appellee. On that basis, appellant’s injuries having been proximately caused by the violation, the complaint would state a cause of action against appel-lee.

The statute in question is the South Florida Building Code made applicable in Bro-ward County by Chapter 71-575, Special Laws of the State of Florida. The portions relied upon, as originally set out in the complaint and appellant’s brief, are:

§ 304.2 COMPLIANCE (d): “Compliance with this Code is the responsibility of the owner.”
§ 3316 SCAFFOLDS: “Properly constructed scaffolds shall be provided for all work which cannot be done safely by workmen standing on permanent or solid construction, except when such work can be done safely from ladders.”

It is argued by appellant that Section 3316 is designed to protect a certain class of persons (workers) from a particular type of injury (falling) so that violation of that section constitutes negligence per se.

In deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973) the Supreme Court distinguished three types of statutes, violation of which has relevance to the burden of proof in a negligence action. Violation of a statute designed to protect a particular class of persons from their inability to protect themselves, such as one prohibiting the sale of firearms to minors, is “strict liability” negligence per se to which contributory negligence is no defense. A violation of any other statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury also constitutes negligence per se; however, contributory negligence is a bar to recovery in this category. Violation of any other type of statute may be considered as prima facie evidence of negligence. Schulte v. Gold, 360 So.2d 428 (Fla. 3d DCA 1978).

The building code falls into the second category and if the statute places the duty of providing scaffolding on the owner, then appellant’s complaint, alleging violation of the statute which constitutes negligence per se, alleges a cause of action and should not have been dismissed with prejudice. The crucial question is whether appellee-owner owed a duty to appellant-employee under the circumstances alleged.

Appellee had no common law duty to provide Brown with a safe place to work. Cuyahoga Wrecking Corp. v. Mastres, 368 So.2d 380 (Fla. 3d DCA 1979). Moreover, where the very work the employee is engaged to do creates the hazard whereby he is injured, the employee “assumes the risk by accepting the employment.” Jacques v. Miami Ice & Cold Storage Co., 73 Fla. 1193, 75 So. 788 (1917). The Cuyahoga court also had under consideration a violation of the building code causing an injury to a workman who sued the owner. That court decided that the plaintiff-workman was outside that class of persons afforded any protection by the section. The rationale for this holding was said to be that one performing the duties for which he was hired is not within the class designed to be protected by the building code.

An amendment to the ordinance causes Section 304.2(d) to now read:

(d) Compliance with the Code is the responsibility of the owner, except that safety to persons and materials during actual construction operations, as set forth in Chapter 33, is the responsibility of the permit holder.

It is unclear whether the amendment became effective on December 1, 1974 or on March 13, 1975. The trial court decided the case on the assumption that the original language of the ordinance applied. We need not determine whether the amendment should have been considered. We hold that the building code did not and does not now impose a duty on the landowner to supervise construction undertaken by an independent contractor and subcontractors. On the facts of the present case appellant therefore has no recourse against appellee and the complaint was appropriately dismissed.

AFFIRMED.

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


text:
    STATE FARM FIRE & CASUALTY COMPANY, a foreign corporation, Janie Kaminski, a minor, Mary Kaminski, as Guardian ad litem of said minor, Mary Kaminski, Walter Kaminski, Lauri Goodwine, a minor, and Mary S. Goodwine, Appellants, v. Alycegene PAINTER and Charles L. Painter, her husband, Appellees.
    No. 79-1627.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Larry Klein and Weathers & Narkier, West Palm Beach, for appellants.
    Joseph D. Farish, Jr., of Farish, Farish & Romani, West Palm Beach, for appellees.
   PER CURIAM.

The trial court’s order granting the plaintiff’s motion for a new trial is affirmed. See, Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977). Although none of the parties, nor the trial court in its order granting a new trial, has directed our attention to the verdict in this cause, our decision is bolstered by its inconsistency. In its verdict the jury found for the plaintiffs and against no one of the defendants. It then determined the plaintiffs’ damages to be zero. At the new trial a proper form of verdict should be utilized.

AFFIRMED.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    CHASE MANHATTAN MORTGAGE AND REALTY TRUST and Blaeser Development Corporation, Appellants/Cross-Appellees, v. Frank A. WACHA, Lavon Bagwell, Maggie Hurchalla, Tom Higgins, and John Holt, not individually, but collectively, comprising the Board of County Commissioners of Martin County, Appellees/Cross-Appellants.
    No. 79-1662.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.

      Carolyn Chabora and John Fenniman, Stuart, and William C. Owen, Jr., of Cone, Owen, Wagner,’ Nugent, Johnson, Hazouri & Roth, P.A., Tequesta, for appellants/cross-appellees.
    John T. Carmody, Jr., County Atty., and Robert Makemson, Asst. County Atty., Stuart, for appellees/cross-appellants.
   GLICKSTEIN, Judge.

The owner and prospective purchaser of real estate appeal from a final judgment denying them mandamus to compel the Board of County Commissioners of Martin County to approve a site plan and direct the issuance of building permits for development of 160 multiple dwelling units on a twenty acre parcel of land. We affirm.

On or about January 16, 1979, appellee Commissioners denied final approval of the site plan and construction plan that had been submitted by appellants. The bases for said denial were lack of water and inadequate access. The trial court held that the issues of lack of water and inadequate access were fairly debatable and that the Commissioners did not abuse their discretion in denying site plan approval.

Section 33-73 of the Martin County Code contains special requirements for multiple dwelling projects and provides for sketch plans, site plans and construction plans. Sketch plan, site plan and construction plan are defined in Section 33-73(d)(lXb)-{d) as follows:

(b) Sketch plan is a nontechnical depiction of the existing features of the land and the development proposed thereon together with ownership data. A sketch plan serves the following two (2) purposes:
1. The developer can obtain an early determination of his prospects before he invests heavily in technical plans; and
2. The county can fully evaluate the pros and cons of the project on a before-the-fact basis, thus allowing necessary changes to be made more easily.
(c) Site plan is a technical depiction of a proposed project prepared by a registered engineer and/or surveyor, as appropriate.
(d) Construction plans consist of the maps or drawings accompanying a site plan which show the specific design and location of improvements.

Section 33-73(d)(3) of the Code provides:

Site plan and construction plan specifications : Site plans and construction plans shall be prepared by a licensed, registered architect, engineer or surveyor, as appropriate, shall be prepared in ink, shall be drawn to a convenient scale of not more than one hundred (100) feet to an inch and shall include the following information on the plans or as exhibits thereto:
a. Items k. through q., inclusive, from the sketch plan specifications, except that such items shall be definitive and final, rather than preliminary and approximate, and shall include, where appropriate, such profiles, cross sections, calculations and details as are necessary and proper to show compliance with all applicable county standards;
b. Numbers to be assigned to all buildings in compliance with the provisions of article II of chapter 30; and
c. Required approvals or permits from all concerned state and federal agencies.

Items k. through q. referred to above are from Section 33-73(d)(2)k-q. These subsections require that sketch plans show the following:

k. The approximate location of the following existing items within or immediately adjacent to the property: Buildings, improvements, utilities, drainageways, ditches, swales, watercourses, water surfaces, wooded areas, swamps, marshes, wetlands, tidal lands, mangroves, coastal construction setback lines, antimosquito ditches, easements of any kind whether used or not, streets, roads, railways, culverts, burial grounds, property lines and recorded plats;
l. Approximate topography based on the latest Coast and Geodetic Survey Map;
m. Preliminary proposals for connection with existing water supply and sanitary sewer systems or alternative means of water supply and sanitary waste treatment and disposal;
n. Preliminary proposals for providing drainage outfall or on-site retention conforming with such Martin County subdivision regulations and ordinances as are in force and effect;
o. The approximate location and dimensions of all proposed improvements, including buildings, streets, drives, walks, utilities, parking lots, etc.;
p. The approximate location, dimensions and area of all land proposed to be set aside for park or playground purposes or for other public use (such as bicycle paths, parallel access roads, etc.) or for the use of the future inhabitants of the project;
q.Whenever the sketch plans cover only a part of the applicant’s contiguous holdings (disregarding intervening roadways, easements, etc.) the applicant shall also submit, at the scale of not more than two hundred (200) feet per inch, a sketch, in pen or pencil, of the proposed project area, together with its proposed roadway and drainage systems and an indication of the location of probable future projects and their roadway and drainage systems;

As can be seen from the express language of Sections 33-73(d)(3)(a) and 33-73(d)(2)(m) the proposal for a water supply must be definitive and final. We interpret that to mean the actual existence of a source of water, not simply an agreement with a supplier that may become viable some unknown date in the future.

The uncontradicted evidence before the trial court was that F. M. Water, Inc. had been issued a water use permit by South Florida Water Management District; that the permittee was to supply water for the subject development; and that at the time of the appellees’ action on application for site plan approval, F. M. Water, Inc. did not have the groundwater withdrawal capability to supply water service to the development. The county engineer wrote in a report prepared for appellees that the existence of a viable source of water had not been established. In view of that report appellees had no choice but to deny appellant’s application.

We also affirm on the basis of inadequate access. Section 336.05(2), Florida Statutes (1979) provides:

The commissioners are authorized to refuse to approve for recording any map or plat of a subdivision when recording of such plat would result in duplication of names of streets or roads or when said plat, in the opinion of said commissioners, will not provide safe access or drainage. (Emphasis added.)

We believe that the legislature intended by use of the generic word map that this section apply to the approval of site plans.

Accordingly, we affirm without prejudice to appellants to resubmit their site plan for approval by the Commissioners should the inadequacies be corrected.

AFFIRMED.

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

      . Martin County, Code, Section 33-73(b) provides:
      (b) Building permits: No building permit for any multiple dwelling shall be issued unless and until a site plan for such dwelling shall have been approved pursuant to this section.

      . The Board of County Commissioners also filed a cross-appeal. Based on our decision herein, the cross-appeal lacks merit. For ease of reference the parties shall be referred to only as appellants and appellees.


text:
    Clara PLOETZ, Appellant, v. BIG DISCOUNT PANEL CENTER, INC., and State Farm Fire & Casualty Company, Appellees.
    No. 79-1960.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Schuler & Wilkerson, P. A., and Edna L. Caruso, West Palm Beach, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment following a defense verdict for appellees in a negligence action. We affirm.

On April 16, 1978, Clara Ploetz was injured while shopping with her husband, Paul, for wood paneling in Big Discount Panel Center’s place of business. In her complaint she alleged that the store was negligent “in stacking large and heavy plywood panels against its wall near the doorway to the premises and in an area where many patrons would walk or stand, in a nearly vertical position so that several of these panels tumbled over and violently fell on [her]. . . . ”

At the trial, Mrs. Ploetz was unable to give any relevant facts about the placement of the panels that fell on her because her back was to the panels. However, her husband testified in detail. He first said that he took one sheet of the plywood paneling and stacked it outside of the premises near the doorway, then backed his automobile up to the premises. He described the paneling as four feet in width and eight feet in height. According to him, there was no panel rack inside of the doorway in which to stack panels. He further testified that the store’s personnel stacked the selected paneling at the doorway so that about twenty inches of the four foot width was actually outside. As he was moving his automobile, Mr. Ploetz saw the panels move forward and backward two times. He called to his wife to watch out. At that point the panels fell, striking Mrs. Ploetz.

Mrs. Harvey, who was working with her husband at the store, testified that the panels which fell on Mrs. Ploetz were stacked, lengthwise, up against panel racks inside of the doorway. Her husband, Mr. Harvey, testified that he rested the panels against the panel rack and that none of the panels were partially outside, as Mr. Ploetz had testified. The proprietor described the panel rack as an A frame with two arms that come out across the top which holds the panels in. Over appellant’s objection the following question and answer of Mr. Harvey were permitted:

Q. (By Ms. Sonneborn) Mr. Harvey, in your experience with Weyerhaeuser, when you were going from store to store, did you have an opportunity to observe whether it is the customary practice to secure the panels in the panel rack in any manner other than just placing them in the panel rack while in the process of loading a customer’s car?
A. No, I would say it is not even customary to secure them in the racks while they are on display. Normally the racks are built to where the weight of the panels hold them in the rack and, like I said, most of these people that build their own displays and A frames do not use the arms that are on the display racks that we use, and therefore do not use any panel clips because there would be no place to clip them on.

Mr. Zammit was called at trial as a witness for appellee. He was in the same business as appellee and testified that the majority of the stores in the area use an A frame for paneling to be displayed upright. Over appellant’s objection, Mr. Zammit was asked the following question:

In your experience in your own store and your observation of other stores, is it the customary practice to secure the panels into the A frame panel rack by any method when you are temporarily stacking them there, when you are in the process of loading them into a customer’s car?

He answered:

I don’t believe it would be customary to confine them.

Appellant’s first point is that the trial court erred in allowing Messrs. Harvey and Zammit to testify as to whether or not it was customary to secure panels in the panel racks when the panels were being loaded for a customer. We have considered all of appellant’s arguments on this point and believe that the rule articulated in Sea Board Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716, 718 (1927) applies. In that case the supreme court said:

It would seem to us that the proper rule . . . would be, in cases where the method used was not clearly and inherently negligent or dangerous, to admit evidence of the general custom of others engaged in the same kind of business or occupation, as to the particular method under investigation, for the consideration of the jury for whatever light it might throw upon the question as to whether or not the method used was or was not negligent under the circumstances of the particular case, but not to any extent whatever as conclusive of the question. There is a common sense and reasonable basis for the contention that what is ordinarily and usually done by men generally, engaged in the same work, has some relevancy to the inquiry as to what an ordinarily prudent person would do under the same circumstances.

Accordingly, appellant’s objections were properly overruled.

Appellant argues in her second point that she was entitled to a jury instruction on res ipsa loquitur. The Florida Supreme Court described the doctrine as one of extremely limited applicability that had been improperly extended beyond its intended perimeters.

Res ipsa loquitur — “the thing speaks for itself” — is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.

Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1341-1342. Sub judice, appellant alleged in her complaint specific acts of negligence and submitted at trial direct proof of negligence by the testimony of her husband. As indicated above, he testified that he had observed that the wood panels that fell and struck appellant, allegedly causing injury to her, were stacked approximately half in and half out of the premises and that they had moved forward and backward twice before falling. Accordingly, the trial court properly denied the requested instruction. Benigno v. Cypress Community Hospital, Inc., 386 So.2d 1303, 1304 (Fla. 4th DCA 1980).

AFFIRMED..

MOORE and BERANEK, JJ., concur.


author: MOORE, Judge.

text:
    Helen D. WEIDER, Appellant/Cross Appellee, v. William Grimes WEIDER, Appellee/Cross Appellant.
    Nos. 80-744, 80-1318 and 80-1367.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.

      David R. Wellens of Sobo, Wellens & Balocco, Fort Lauderdale, for plaintiff/cross appellee, wife.
    Jerald A. Goldstein, Boca Raton, for ap-pellee/cross appellant, husband.
   MOORE, Judge.

This case involves consolidated appeals from a final judgment of dissolution of marriage and certain post-judgment orders. Each of the parties raises several points on appeal. In view of our holding, it is not necessary to consider each of the points. We find that the trial court abused its discretion and reverse for a new trial.

In the final judgment, the trial court, inter alia, dissolved the marriage of the parties, awarded the appellant-wife $300 biweekly as rehabilitative alimony for three years, and ordered a partition of the marital home, awarding to the wife a $6,000 special equity therein. In a post-judgment order, the trial court awarded the wife exclusive use and possession of the marital home “. . . until July 14, 1983 or a determination of the appeal of the final judgment .. . whichever occurs latest in point of time.”

The parties were married 23 years at the time of the final hearing. The wife was 60 years old. Although she had had several clerical and sales jobs, she had not been employed for the last 12 years prior to the final hearing. Her testimony indicated that she was in poor health. A vocational consultant, however, testified that she was capable of earning $150 to $160 per week.

The husband, on the other hand, was 51 years old at the time of the final hearing and was earning an annual salary of $43,-000 plus various fringe benefits as a vice president of Sensormatic Corporation. The only child of the marriage was emancipated.

The failure to award permanent alimony under these circumstances constitutes an abuse of the trial court’s discretion. It is inconceivable that the wife, 60 years old and in poor health, would have the ability to be completely self-supporting upon termination of the rehabilitative alimony. The evidence showed that at most the wife could earn $150 to $160 a week and there was no indication that this amount would increase with rehabilitation. Absent evidence showing that the wife has the ability, with rehabilitation, to become self-supporting, permanent alimony should be awarded. Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980); accord, Colucci v. Colucci, 392 So.2d 577 (Fla. 3rd DCA 1980). The facts here present a more compelling case for reversal than the above cases.

Next we consider the amount of the alimony. The factors to be considered in determining the amount of alimony payments are the needs of one spouse and the ability of the other spouse to satisfy those needs. The criteria to be used include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during the course of the marriage, and the value of the parties’ estates. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). See also, McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); cert. denied 357 So.2d 186 (Fla.1978). In considering these criteria, it becomes obvious that the award of rehabilitative alimony of $300 bi-weekly is inadequate. Assuming the wife obtains employment at the rate of $150 per week, she will have a total annual taxable income of $15,600 for three years. The husband’s income, on the other hand, less his deductible alimony, will be $35,200. This disparity in the relative incomes of the parties warrants alimony in excess of that awarded by the trial court.

We must also reverse that portion of the final judgment ordering partition. In order to justify an award of partition, the pleadings must conform to the requirements of Section 64.041, Florida Statutes (1979). Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974), cert. dismissed, 312 So.2d 733 (Fla.1975). Also, the final judgment must provide for partition in accordance with the procedures set forth in Chapter 64, Florida Statutes (1979). Sanders v. Sanders, 351 So.2d 1126 (Fla. 2nd DCA 1977); Rankin v. Rankin, 258 So.2d 489 (Fla. 2nd DCA 1972). The failure of the pleadings in this case to satisfy the statutory requirements and the failure of the final judgment to provide for partition in accordance with the statutory procedures mandates reversal. We, therefore, remand this case to the trial court so that appropriate supplemental pleadings may be filed. See, Sanders, supra.

We must also reverse that portion of the post-judgment orde'r granting the wife exclusive use and possession of the marital home “until July 14, 1983 or a determination of the appeal of the final judgment ... whichever occurs latest in point of time.” Fla.R.App.P. 9.600 allows the trial court to enter and enforce orders necessary for the protection of a party pending appeal. By awarding the wife the exclusive use and possession of the marital home until July 14, 1983 in the event this appeal is decided prior to that time, the trial court has exceeded its jurisdiction. The trial court losses jurisdiction upon the filing of a notice of appeal except for those matters specifically enumerated in Rule 9.600, and the rule does not provide for such jurisdiction beyond the pendency of the appeal.

Because of the changes required by this opinion and the interrelationship of the financial aspects, the trial court, on remand, should reconsider all the provisions of the final judgment relating to support and division of the parties’ assets in order to do equity and justice between the parties. Goss v. Goss, 400 So.2d 518 (Fla. 4th DCA 1981). In reconsidering the final judgment the trial court may receive new evidence.

Except for the granting of a dissolution of the marriage between the parties, the final judgment is reversed and this cause is remanded for further proceedings.

LETTS, C. J., and DOWNEY, J., concur.


text:
    Joseph William WILLICK, Appellant, v. STATE of Florida, Appellee.
    No. 80-988.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is affirmed. However, as the State concedes, the trial judge in his probation revocation order found a violation of three conditions of probation whereas the testimony at the hearing and the judge’s oral findings on the record only support a finding of violation as to two of the three conditions.

Accordingly, this cause is remanded so that the trial judge can amend the order of revocation of probation and exclude therefrom any reference to a violation of special condition (10).

AFFIRMED AND REMANDED IN ACCORDANCE HEREWITH.

LETTS, C. J., MOORE, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: BERANEK, Judge.

text:
    COTTON BELT INSURANCE COMPANY, INC., Appellant, v. TRAVELERS INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, Stephen M. Wolfman and Judith M. Wolfman, Appellees.
    No. 80-1484.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.

      John Kelley and Dennis A. Vandenburg of Pyszka & Kessler, Fort Lauderdale, for appellant.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for ap-pellee, Travelers Ins. Co.
   BERANEK, Judge.

This is an appeal from a summary judgment against an insurance carrier in an action asserting lien rights for worker’s compensation and personal injury protection (PIP) benefits paid to an insured of the carrier. Wé affirm in part and reverse in part.

On October 9, 1975, Mr. Wolfman was injured in an accident with Mrs. Smith while in the course of his employment. In 1976, Wolfman sued Smith and Smith’s liability insurance carrier, Travelers Insurance Company. Cotton Belt Insurance Company provided worker’s compensation coverage for Wolfman’s employer and also provided personal injury protection (PIP) coverage pursuant to Section 627.736, Florida Statutes (1975). On April 18, 1976, Cotton Belt filed and served a claim of lien for PIP benefits and a separate claim of lien for worker’s compensation benefits paid and to be paid. Neither lien was recorded. On September 26, 1978, the case was settled as between the plaintiff, defendant and the defendant’s insurance carrier. The liens were not disposed of and no pro rata distribution hearing occurred under Section 440.-39(3)(a), Florida Statutes (1977).

On January 4, 1980, Cotton Belt Insurance Company sued Travelers Insurance Company in a separate suit to foreclose the previously filed but undisposed of worker’s compensation and PIP liens. The trial court granted summary judgment against Cotton Belt based upon its failure to record the lien and upon Traveler’s argument that the statute of limitations barred the action. Final judgment was entered and the present appeal taken.

We initially conclude the trial court was correct in finding that the failure to record the worker’s compensation lien was fatal to this claim. The statute in effect at the time was Section 440.39(3)(a), Florida Statutes (1977), which specifically required that a lien be recorded. This court has held recording to be essential under the statute. Kight v. Capeletti Brothers, 384 So.2d 1302 (Fla. 4th DCA 1975), and Alfar Creamery Company v. Williams, 366 So.2d 458 (Fla. 4th DCA 1979). Appellant points out that this statute was amended effective July 1, 1979, when the Legislature deleted the words “shall be recorded” as applicable to the lien. Appellant urges the trial court erred in not giving this amendment retrospective effect so as to excuse the failure to record the lien. We disagree. Retrospective application to a still pending suit may have been proper but retrospective application of the 1979 statutory amendment to the prior suit which was finally terminated in 1978 would have been inappropriate. Such an application would reopen all prior litigation which had been determined under the prior statute requiring recordation. When Travelers Insurance Company settled the initial personal injury action, it had the right to rely upon Section 440.39(3), Florida Statutes (1977) which required recording of all worker’s compensation liens. Absent statutory compliance, no valid lien existed. See Alfar Creamery Company v. Williams, supra. We thus conclude the trial court correctly applied the recording requirement of the statute in granting summary judgment as to the worker’s compensation lien.

The situation is entirely different as to the PIP lien. There was no statutory requirement that a PIP lien be recorded. Appellee also moved for Summary Judgment based on the Statute of Limitations. Appellee argues the cause of action for enforcement of the PIP lien accrued upon the happening of the accident in 1975, and that the eventual suit on the lien filed in 1980 comes too late and is barred by a four-year statute of limitations. This argument totally disregards the timely filing of the lien on April 18, 1978 and its pendency thereafter. Further, there was nothing in this record before the trial court to indicate the date on which PIP benefits were first paid by the carrier. Indeed, the record does not disclose precisely what statute of limitations the appellee relied upon before the trial court nor whether the trial court accepted the statute of limitations argument as an appropriate defense.

Here, the lien was on the recovery in the suit by the insured recipient of PIP benefits against the tort-feasor. The lien was timely asserted within that suit and the appel-lee’s argument regarding the statute of limitations defense is without merit. The lien could not be enforced until the suit was terminated and some recovery in the form of a settlement or judgment came into existence. This lien was not barred by any statute of limitations urged by appellee.

We affirm the trial court’s summary judgment as to the worker’s compensation lien and reverse as to the personal injury protection lien and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART.

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

      . See Section 627.736(3), Florida Statutes (1975). The accident in question occurred pri- or to October 1, 1976. After this date an amendment, Ch. 76-266, Laws of Florida, abolished such liens.


text:
    Ronald E. HILL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1942.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment and sentence are affirmed, except the imposition of court costs and assessments, both of which are stricken.

AFFIRMED.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Joan DAWSON, Appellant, v. John C. DAWSON, Appellee.
    No. 80-1859.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.

      Edna L. Caruso, Majorie D. Gadarian and Jack Ackerman, West Palm Beach, for appellant.
    Robert H. Springer of Kohl, Springer, Springer & Varner, Palm Springs, for ap-pellee.
   DOWNEY, Judge.

The appellant wife contends the trial court erred in refusing to award her (a) rehabilitative alimony and (b) the husband’s interest in the marital home as lump sum alimony.

The parties were married for approximately nine years. The wife, aged 52, has a net estate of approximately $72,000, while the husband, aged 58, is worth approximately $209,000. The parties own two pieces of real estate, one in Lantana, and the martial home in Leisureville. The final judgment granted the husband a special equity in the Lantana property and ordered the marital home partitioned.

The wife had worked as a beautician some fifteen years earlier but is not licensed in Florida. She has also worked as a waitress. At the time of final hearing the wife was unemployed and her income from assets she held was only about $50 per week. Her expenses were estimated at about $400 per week. The husband makes approximately $23,000 per year.

Although we find no error regarding the denial of lump sum alimony, under the circumstances of this case we hold it was an abuse of discretion not to award the wife some form of assistance, at least on a rehabilitative basis. Therefore, upon remand the trial court should reconsider the matter and award the wife a specific sum as rehabilitative alimony and/or possession of the marital home for a reasonable period of time. In order to make this determination the trial court is authorized to take further testimony if it appears necessary. If the court decides the appropriate award would be possession of the marital home for a reasonable time, the provisions of the judgment for partition of that property will of necessity have to be delayed.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

MOORE and HERSEY, JJ., concur.