author: WALDEN, Judge.

text:
    Rocco POLICASTRO, Appellant, v. Bertha MYERS and Loretta Myers, Appellees.
    No. 81-1083.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 28, 1982.

      Jeff Tomberg of Law Offices of Tomberg & Tomberg, P. A., Boynton Beach, for appellant.
    No brief filed for appellees.
   WALDEN, Judge.

This is an appeal brought by Rocco Poli-castro from a judgment entered against him in the sum of $7,158.00.

Plaintiff/Appellee, Bertha Myers, did not favor us with an appellate presence or brief. As has been often remarked, such omission places an additional burden on this Court on account of the nature of the adversary system. Indeed it is a mystery to us as to why a person would engage counsel, bring suit, obtain a favorable judgment, and then fail to appear and defend it.

Bertha Myers sued her former son-in-law, Rocco Policastro, on account of an alleged loan of money to him. Bertha Myers was the mother of Loretta Myers, the former wife of Defendant, Rocco Policastro. Rocco Policastro answered the complaint by denying thé debt, alleging affirmative defenses, and counter claiming for monies owed. Rocco Policastro then filed a third party complaint against his former wife Loretta saying that if any money was owed to Bertha it was owed by Loretta.

During trial Rocco, with court recognition, voluntarily dismissed his third party complaint against Loretta with the result that Loretta was no longer a party to the action. Regardless, final judgment was entered in favor of Bertha and against Rocco and Loretta for $7,158.00, jointly and severally. And so obviously it was an error to enter judgment against Loretta when she was not named in her mother’s action, was not in anyway a party, and when the court had no jurisdiction over her. However, Loretta has not complained and so we simply let the judgment ride as to her.

Here is what happened.

During the course of the marriage between Rocco and Loretta, Loretta borrowed $7,000.00. from Bertha. This was accomplished by Loretta and Bertha borrowing $7,000.00 from the bank with Loretta and Bertha co-signing a note back to the bank as evidence of the debt. The bank issued a check for the loan proceeds payable to Loretta. Loretta endorsed the check to a title insurance company as part of the down payment on a house being purchased jointly by Loretta and Rocco. There was no documentary evidence or exhibits linking Rocco to the debt. Bertha testified that Rocco orally requested the loan. Rocco denied such request but acknowledged that Loretta borrowed $7,000.00 from Bertha and that the $7,000.00 was applied to the purchase price of the residence jointly owned by Rocco and Loretta during the time of their marriage.

Later the marriage between Loretta and Rocco was dissolved. They entered into a property settlement agreement wherein the parties divided their assets, presumably in equal shares. Included in Loretta’s share was the property which had been partially purchased by the alleged loan, and Rocco conveyed his interest in it to Loretta. It does not appear from the record that at the time of the settlement division either party brought up or considered the $7,000.00 in question or its repayment. The agreement contained this boiler plate, “Each party hereby agrees to release the other from any and all obligations or responsibilities to pay any debts, charges, obligations or liabilities thereof.”

At the conclusion of the non-jury trial the court announced its ruling:

THE COURT: I think it should be a joint and several judgment. It is obvious the money was not borrowed from the bank by Mr. Policastro; but the money was borrowed for his benefit and he did benefit. In fact, without it, there wouldn’t have been any transaction. So both parties owe the obligation, and I would enter a judgment for both parties.
MR. BRANDT: Thank you very much. I will prepare a Final Judgment which will be joint and several against the two Defendants for $7,000.
THE COURT: Right.

The judgment as to Rocco is sustainable upon either one of two theories.

First, as a matter of basic law, assuming the court believed Bertha and disbelieved Rocco as concerns the testimony about the loan, as the court had a right to do, this would obligate Rocco on the basis of an oral-contract.

Second, it is sustainable upon the theory of unjust enrichment or quasi contracts. 11 Florida Jurisprudence, Second Series, Contracts, Section 4 supplies the encyclopedic outline of this theory as follows:

A quasi contract is sometimes spoken of as a contract implied in law or a constructive contract. Express contracts and contracts implied in fact rest upon the assent of the parties, whereas quasi contracts do not rest upon such assent, but rather upon a fiction adopted by the law to provide a remedy.
The liability which the law implies in a quasi contract is based primarily upon a benefit flowing to the person sought to be charged, or, as is sometimes stated, upon unjust enrichment; and therefore in order to hold that a quasi contract or contract implied in law exists in a particular case it is necessary to find that the defendant has received a benefit or has been unjustly enriched, and should be required to compensate the plaintiff.

See also Restatement Of Restitution Section 1 (1937), Tipper v. Great Lakes Chemical Company, 281 So.2d 10 (Fla.1973) and Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736 (1897) and Peterson v. Howell, 99 Fla. 179, 126 So. 362 (1930).

Finally, we record that the trial court committed error, albeit, harmless, in refusing to allow into evidence the depositions of the plaintiff, Bertha, and third party defendant, Loretta, when offered by the defendant, Rocco, because Florida Rule of Civil Procedure 1.330(a)(2) provides that such depositions may be used by an adverse party “for any purpose”. A review of the transcript reveals that Rocco made unrestricted use of such depositions in his efforts to discredit and impeach the plaintiff and third party defendant with reference to individual questions, and he did so. At the end of the ease the defendant offered the depositions in evidence as a whole and this was rejected. A reading of the transcript and of the offered depositions persuades us that no prejudice resulted to Rocco on account of the exclusion of the depositions. Section 59.041, Florida Statutes (1981).

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: DELL, Judge.

license: Public Domain

text:
    Ignacio RUIZ and Marina Ruiz, his wife, Appellants, v. Wanda HUDDLE, a married woman, Appellee.
    No. 81-1349.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 27, 1982.
    Phillip T. Crenshaw of Crenshaw & Cren-shaw, P. A., Lake Worth, for appellants.
    Terence J. Watterson of Watterson & Dickenson, P. A., West Palm Beach, for appellee.
   DELL, Judge.

Appellee filed her complaint seeking foreclosure of a mortgage on appellants’ home. Appellants raised failure of consideration as an affirmative defense, and also as the basis for their counterclaim to quiet title. The trial court found in favor of appellee, and entered judgment of foreclosure against appellants in the amount of the note plus interest and costs.

This foreclosure action arises out of the purchase and sale of appellee’s hairdressing business to the appellants. Appellee offered her business for sale at the price of $22,000. Appellants accepted appellee’s offer, and appellee accepted as a down payment appellants’ note in the amount of $6,000 and a mortgage on their home. Ap-pellee, at appellants’ request, wrote a letter which provided:

This letter is to indicate the undersigns [sic] intent to sell the business conducted by the undersigned known as “Hair Associates” located at 1218 South Dixie, Lake Worth, Florida, to you for a sale price of $16,000 payable at closing which shall take place as soon as you have secured financing but in any event no later than June 1, 1978.

Appellants used the letter to facilitate an application for a Small Business Administration (SBA) loan. Although appellants applied for a loan in the amount of $18,000, the SBA approved only a $16,000 loan and required appellants to provide the extra $2,000 for working capital. To raise this working capital, appellants found a buyer for their home. Appellants requested a release of the mortgage when a title search revealed that appellee had recorded her mortgage. The record is silent as to any offer by appellants to pay the note and mortgage out of the proceeds of the sale, any offer to transfer the mortgage either to the business property or to the home they intended to purchase, or to satisfy the debt. Appellee refused to release the mortgage.

Although the exact sequence of events is unclear, it appears that after appellants attempted to sell their home, they continued to assure appellee that they would be able to obtain financing and that they were just waiting for the papers to be finalized. On the strength of these assurances appel-lee postponed closing. Finally, in November, appellee called the SBA and discovered that the SBA was actually holding a check for $16,000 for appellants. The sale never closed.

Appellants contend that the failure of the sale to close constituted a failure of consideration for the note and mortgage.

The record adequately supports the trial court’s judgment of foreclosure. Appellants argue that the note and mortgage were part of the purchase price and therefore when the transaction failed to close, the note should have been cancelled and the mortgage released. The record, however, amply demonstrates that the note and mortgage were given as a down payment for the business and that because of the down payment, appellee made no effort to sell the business to anyone else.

It is well settled that, even in the absence of ... a forfeiture provision, a vendee in default is not entitled to recover from the vendor money paid in part performance of an executory contract.

Beatty v. Flannery, 49 So.2d 81, 82 (Fla.1950). See also, Hughes v. Palmer, 103 Fla. 91, 137 So. 9 (1931); Cf. Mayer v. First Nat. Co. of Sarasota, 99 Fla. 173, 125 So. 909 (1930). A buyer cannot maintain an action against his seller for breach without a showing of performance or tender of performance, unless such performance has been excused. Slaughter v. Barnett, 114 Fla. 352, 154 So. 134 (1934). Where the buyer alleges that the contract is contingent on financing, the buyer must demonstrate his own good faith effort to obtain financing before he may recover his deposit. Beekay Realty Corp. v. Cayre, 256 So.2d 539 (Fla.3d DCA 1972). When the contracts do not provide for disposition of a down payment, a purchaser in default may not recover the amount paid on the executory contract, absent certain exceptions. Satchell v. Van Brode, 248 So.2d 245 (Fla.3d DCA 1971), citing Beatty v. Flannery, supra. One of the exceptions noted in Beatty is the inability without fault to fulfill the conditions of the contract. Appellants failed to demonstrate such inability.

We are not inclined to apply a different rule simply because the buyers elected to make their down payment by negotiable instrument secured by mortgage. Although the result in this case appears harsh, we cannot ignore the fact that appellants had qualified for the loan and apparently had the means to close this transaction. See Home Owners’ Loan Corp. v. Wilkes, 130 Fla. 492, 178 So. 161 (Fla.1938). The trial court resolved the issues raised by the complaint, affirmative defenses and counterclaim in favor of appellee. We find substantial competent evidence to support that judgment. We may not re weigh and reevaluate evidence considered by the trier of fact. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187 (Fla.1977). The judgment is affirmed.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.


author: COBB, Judge.

text:
    Joseph QUINLIVAN and John Caputo, Appellants, v. UNITED BUSINESS INVESTMENTS, INC., Appellee.
    No. 81-1156.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.
    Rehearing Denied Oct. 14, 1982.
    David L. Thomas, DeLand, for appellants.
    James E. Shepherd, Orlando, for appellee.
   COBB, Judge.

The appellants, Joseph Quinlivan and John Caputo, were the defendants below. The plaintiff below, United Business Investments, Inc. (UBI), is a business broker and sued the defendants for breach of a listing contract and, pursuant to a contractual provision, for attorney fees. The defendants filed a counterclaim seeking attorney fees pursuant to the terms of the written agreement between the parties.

The agreement provided that the defendants were to pay UBI a broker’s fee if their business property were sold, even by themselves, during the specified term of the contract. Paragraph 8 of the contract states:

Broker and Owner agree that should any action or suit be commenced to enforce any provision of this Listing Contract, the prevailing party shall be entitled to reasonable attorney’s fees and court costs as shall be determined by the court.

The defendants sold the property themselves to one Lillian Ciambriello, and the plaintiff sued for its commission. The defendants asserted as an affirmative defense that there was no obligation to pay a commission pursuant to an oral agreement made between themselves and the listing agent contemporaneously with the written contract. The alleged oral agreement excepted the commission requirement if the property were sold to Ciambriello, with whom the defendants had been discussing sale for some months. The defendants further asserted that plaintiff’s agent had been asked to put this exception into the written contract but declined to do so on the basis that “. . . there was no place in that (printed) agreement for an exclusion.”

Immediately prior to trial, the plaintiff dismissed its complaint. The defendants proceeded with their counterclaim for attorney fees and assessment of court costs. A hearing (actually a non-jury trial) was held on the defendants’ claim for attorney fees based on the contractual provision cited above, resulting in the following decision by the trial judge:

THIS CAUSE came on to be heard upon the Motion of the Defendants to assess attorneys fees, based on the listing attached to the Plaintiff’s Complaint, which provides for payment of attorneys fees by the prevailing party in any action commenced for enforcement of the listing agreement. This cause was terminated by voluntary dismissal following the interposition by the Defendant of a defense in the nature of an oral agreement reached at the time or contemporaneously entered into by the parties as an incident to or inducement to the Defendants to enter into the listing contract. Following extensive discovery on this defense, counsel for the Plaintiff announced at this hearing that he was convinced there was such a prior oral agreement and that it constituted a substantial defense, warranting the notice of voluntary dismissal previously filed. The Defendant’s counsel did not take serious issue with the circumstances which brought about the dismissal, that is to say, it appears that he largely agreed with counsel for the Plaintiff, but insisted he was nevertheless entitled to reasonable fees. Counsel for the Plaintiff cited the case of Lauderdale North Properties v. Seacrest Homes, 382 So.2d 386 (4th DCA 1980) and contends that the facts in this case, on the application for attorney fees, are on all fours with the facts in the cited case. Counsel for the Defendant contends the facts are distinguishable. This Court can find no appreciable difference in the controlling facts. It is upon consideration thereof
ORDERED AND ADJUDGED that the Application for Attorneys Fees be denied.
DONE AND ORDERED in Chambers at Orlando, Orange County, Florida, this 14th day of June, 1981.

Whether or not the trial court was correct in its reliance on the Lauderdale case, and whether or not we would agree with that decision, need not be decided for purposes of resolving this appeal. At the time of this action, section 57.105, Florida Statutes (1981), originally enacted in 1978, was applicable to this case. The trial court’s very finding that the plaintiff admitted it had filed suit for a fee contrary to its own oral agreement which induced the contract sufficiently characterizes the action as a frivolous one. See Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), review denied, 392 So.2d 1373 (Fla.1980). There was a complete absence of a justiciable issue, plaintiff knew it, and the applicable statute mandates that attorney fees be assessed against it. Galbraith v. Inglese, 402 So.2d 574 (Fla. 4th DCA 1981); Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980).

Accordingly, we reverse and remand for entry by the trial court of an award of a reasonable attorney fee to the appellants, Joseph C. Quinlivan and John Caputo, at trial and for this appeal, together with court costs at the trial level, which were erroneously denied to the prevailing party.

REVERSED and REMANDED.

DAUKSCH and SHARP, JJ., concur.

      . See § 59.46, Fla.Stat. (1981).

      . See §§ 57.041 and 57.071, Fla.Stat. (1981).


text:
    UTILITIES, INC., OF FLORIDA, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. AE-394.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.
    R.M.C. Rose and Martin S. Friedman of Myers, Kaplan, Levinson, Kenin & Richards, Tallahassee, for appellant.
    Susan F. Clark, Associate Gen. Counsel, Fla. Public Service Com’n, Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellant, a regulated utility, having applied unsuccessfully to the Public Service Commission (PSC) for a rate increase, seeks judicial review of the agency’s final order denying the application after formal proceedings were conducted by a hearing officer pursuant to Section 120.57, Florida Statutes (1981). Applying the standards of judicial review established by and enunciated in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), we affirm.

Of the several issues submitted to the hearing officer, the only one with which we are concerned was the determination of a fair and proper rate of return on equity capital. On that subject there was conflicting opinion testimony. The hearing officer’s findings of fact (as contained in the recommended order) outlined the method of calculation which each of the two expert witnesses used as the basis of his respective opinion as to a fair rate of return on equity capital. The petitioner’s expert witness, Mr. Cohen, utilized three methods of calculation, resulting in a range from 18.4 percent to 20.7 percent, with an average of 19.27 percent. The PSC’s expert witness, Mr. Gollahon, a member of the PSC staff, utilized a different method and, taking into account many factors different from those used by Mr. Cohen, arrived at an opinion of 16 percent return on equity capital, with permission to fluctuate plus or minus 1 per-: cent. In that portion of the recommended order entitled “conclusions of law,” the hearing officer stated (with reference to the rate of return on equity capital) the following:

The remaining issue is the appropriate return or cost that is to be placed on equity capital. The petitioner, through the testimony of Stanley L. Cohen, presented competent evidence as to three methods of calculation it used, and then took an averaging approach to arrive at a figure of 19.63% as a cost of equity. The respondent did not cross-examine petitioner’s witness. Instead, the respondent presented the testimony of James Goll-ahon who used other methods of deriving a cost of equity capital. Insufficient evidence was produced by the respondent to clearly illustrate that the petitioner’s calculations or methods of arriving at a reasonable rate of return were erroneous. The undersigned concludes that the petitioner has presented competent, substantial evidence that a return of 19.63% on equity capital would be fair.

The Public Service Commission approved the Hearing Officer’s recommended order except as to the conclusion of law relating to the appropriate return on equity. As to that item the agency order stated, “We are unable to find in the record a basis for the 19.63% return on equity which the Hearing Officer recommended and, therefore, reject it.” The agency order then proceeded to explicate in detail the weaknesses which it found in the calculations made by Mr. Cohen and the reasons why the calculations used by Mr. Gollahon and his conclusions based thereon, were felt to be more reliable. The Agency concluded that a return of 16 percent on equity was fair and just.

If the quoted portion of the Hearing Officer’s recommended order is, indeed, a “conclusion of law” as denominated in the recommended order, then the Agency clearly had the authority, under Section 120.-57(l)(b)9., Florida Statutes (1981), to reject or to modify the conclusions of law in the recommended order. If, however, the hearing officer’s reference to a 19.63% return is essentially a finding of fact (both parties to this appeal have treated it as though it were), the PSC properly rejected it and substituted its own findings for the reasons set out below.

Appellant contends that (1) Section 120.-57(l)(b)9., Florida Statutes (1981), does not permit an administrative agency the luxury of reversing the findings of fact of the hearing officer unless it “determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence,” and (2) the testimony of its expert witness, Mr. Cohen, met the test of competent, substantial evidence as defined in Duval Utility Co. v. Florida Public Service Commission, 380 So.2d 1028 (Fla.1980) and DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957). The argument, though compelling, is one which we know from McDonald v. Department of Banking and Finance, supra, must be reconciled with the countervailing argument that Section 120.68(10), Florida Statutes places on the reviewing court the responsibility to sustain the agency’s findings of fact if supported by competent substantial evidence. Aptly describing the result as a “conundrum,” the McDonald court held that it could reconcile the potentially conflicting statutory demands by adopting the standard of judicial review approved for Federal administrative agencies in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In explanation, Judge Smith’s opinion then went on to state, at page 579:

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight. . . .
At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings....
Thus, the substantiality of evidence supporting an agency’s substituted finding of fact depends on a number of variables: how susceptible is the factual issue to resolution by credible witnesses and other evidence, how substantially the hearing officer’s discarded findings are supported by such evidence, how far the factual issue tends to be one of opinion, how completely agency policy occupies a field otherwise open to different opinion. Judicial review of the Department’s substituted findings of fact is therefore inseparable from review of agency “determinations of .. . policy within the agency’s exercise of delegated discretion.” Section 120.68(7).

The factual issue with which the PSC was concerned, i.e., the fair and proper rate of return on equity capital for a utility of the type and size of appellant, was not one susceptible to ordinary methods of proof; instead it was essentially a matter of opinion which necessarily had to be infused by policy considerations for which the PSC has special responsibility. There was no question of either qualification or credibility per se of the expert witnesses. Rather, an analysis of the methods by, and the basis upon, which the experts had reached their respective opinions, was required to be made, a matter particularly within the range of the agency’s putative expertise and specialized experience.

The final order in this case, in accordance with the requirement explicated in McDonald, supra, sets forth in detail the agency’s rationale for substituting its findings for those of the hearing officer, addressing and answering the countervailing views of the hearing officer’s recommended findings. The agency’s substituted findings being supported by competent substantial evidence measured by McDonald standards, the agency’s order is entitled to be and is, affirmed.

AFFIRMED.

MILLS and WENTWORTH, JJ., concur.

      . While not in the precise language of Section 120.57(l)(b)9., Florida Statutes, we take this to be agency determination that the hearing officer’s findings were not based upon competent substantial evidence.

      . For example, the Agency noted that Mr. Cohn had (a) relied largely on the current high level of interest rates without taking into consideration the wide fluctuation such rates had been undergoing, (b) inappropriately factored in the rate for Ba bond rather than a Baa bond, and (c) in using the discounted cash flow method had overstated the earning growth rate.

      . For example, the Agency felt that its staff witness reached a more nearly accurate result because he (a) made a comparable earnings analysis and market analysis of both utilities and unregulated companies in which he applied certain techniques to “levelize” the highs and lows that are expected to occur in the future, (b) computed a risk factor using linear and exponential regression calculations to indicate the upward trend in debt costs resulting in a risk factor less than that used by Mr. Cohen who had subtracted the embedded cost of debt rather than the current cost of debt from the allowed equity returns, and (c) had used two designated test groups which the Agency felt to give a more reliable result in making the comparable earnings approach.

      . Cf. Hernicz v. Department of Professional Regulation, 390 So.2d 194 (Fla. 1st DCA 1980) (misplacement of a conclusion of law in the findings-of-fact section of an administrative order did not change the conclusion of law into a finding of fact).

      . Although technically there was no evidence to pinpoint 19.63% as a fair rate of return on equity capital, nor was it the average to which Mr. Cohen testified, the figure was within the range to which Mr. Cohen testified, i.e., 18.4% to 20.7%.


author: McCORD, Judge.

text:
    FLORIDA PUBLISHING COMPANY, publisher of the Florida Times-Union and Jacksonville Journal, Petitioner, v. The Honorable William WILKES, Acting Circuit Judge in and for Clay County, Florida, the Florida Commission of Ethics, and L. H. Lancaster, Respondents.
    No. AM-237.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.

      Harold B. Wahl, George D. Gabel, Jr., and James J. Taylor, Jr., of Wahl & Gabel, and John F. Gaillard, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., and Philip C. Clay-pool, Staff Atty., Commission on Ethics, Tallahassee, for respondent The Florida Com’n of Ethics.
    Lamar Winegeart, III, of Arnold, Strat-ford & Booth, Jacksonville, and Larry Smith, Green Cove Springs, for respondent L. H. Lancaster.
   McCORD, Judge.

The Florida Publishing Company, publisher of both the Florida Times-Union and the Jacksonville Journal, petitions this Court to review the trial court’s order excluding the press and public from a court proceeding and sealing the files in a case where respondent Lancaster, the Clay County Supervisor of Elections, seeks, among other things, to have the Commission of Ethics’ investigation of him kept confidential. Fla.R.App.P. 9.100(d). The trial court’s order was entered pursuant to this Court’s order remanding the cause for a hearing to determine the propriety of continued closure of the trial court’s records. The trial court was directed to “inquire into the necessity of closure, the availability of less restrictive alternatives, and whether closure achieves the desired objectives.”

The genesis of Lancaster’s action against the Commission is its investigation of Lancaster for alleged sexual harrassment of female employees within his office. In challenging the validity of the proceedings initiated by the Commission, Lancaster is seeking to enjoin any further Commission proceedings, including a probable cause hearing, on the basis of violations of various rights guaranteed by the Florida and U. S. Constitutions. The gist of his complaint is found in Section 112.324(2), Florida Statutes (1981):

A preliminary investigation shall first be undertaken by the commission to determine if the facts alleged in the complaint constitute probable cause to believe that a violation has occurred. If, upon completion of the preliminary investigation, the commission finds no probable cause to believe that this part has been violated, the commission shall dismiss the complaint, and the complaint, unless prohibited by subsection (3), shall become a matter of public record, together with a written statement of the findings of the preliminary investigation and a summary of the facts which the commission shall send to the complainant and the alleged violat- or... . (emphasis supplied)

Until the preliminary investigation is completed, however, all of the Commission’s actions, files, and other records remain confidential. § 112.324(1), Fla.Stat. (1981). Essentially, Lancaster wants to keep the post-preliminary investigation proceedings and records confidential, for, he alleges, publication of the Commission’s proceedings would irreparably harm him. Thus, he argues that his remedy at law is inadequate, for to force him to litigate this case in an open setting would be tantamount to denying him the very right to litigate at all.

We are partially persuaded by this argument but find that the trial court’s closure order is overly broad. While Lancaster seeks to prevent the airing of evidence which he feels would be damaging to his reputation, most of his complaint is directed to matters of pleading that require no evi-dentiary predicate. Moreover, since it is quite evident that the Florida Publishing Company and its readers know that Lancaster is being charged with sexual harassment, we foresee no or very little harm in public access to questions relating solely to pleadings which require no evidentiary predicate for their determination. The remaining allegations and the proceedings thereon, which could require disclosure of evidence damaging to Lancaster, fall into a different category, and the trial court did not err in ordering closure as to them. To rule otherwise at this point would render Lancaster’s cause of action moot and render Section 112.324(2), which mandates confidentiality up until a probable cause hearing is held, a nullity. In so ruling we express no opinion as to the complaint on its merits, which is not before us.

Accordingly, we remand this cause with directions that the trial court hold bifurcated proceedings on Lancaster’s complaint, opening the proceedings on those aspects of the case (listed in footnote 1) which are simply matters of pleading and require no evidence for their resolution at law and closing the proceedings on those aspects of the complaint which depend upon a factual predicate.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

MILLS and SHIVERS, JJ., concur.

      . We regard the following allegations of the complaint as being matters of pleading only which require no evidentiary predicate for their determination:
      (1) that Section 112.313(6), Florida Statutes (1981), is unconstitutionally vague and ambiguous and leaves its enforcement to the whims of the Commission and its prosecutors, that it fails to convey a sufficiently definite warning as to the proscribed conduct, that the terms “special privilege, benefit or exemption” afford no guidelines, no ascertainable standard of guilt, and no barometer by which a public official may measure his specific conduct.
      (2) that plaintiff is denied due process of law by not being permitted an adversary proceeding in the nature of a preliminary hearing;
      (3) that allegations of “sexual harassment” are not within the jurisdiction of the Commission;
      (4) that the field of “sexual discrimination” or “sexual harrassment” has been preempted by Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e];
      (5) that Section 112.324, which provides for the release to the public of the findings of the preliminary investigation, whether or not the Commission finds probable cause, deprives Lancaster of equal protection under the law in that he is treated differently from other constitutional officers.


author: JORGENSON, Judge.

text:
    Norton M. BAKER, M.D., Appellant, v. HUEVEL, B. V., Appellee.
    No. 82-1185.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Oct. 27, 1982.

      Steven J. Gard, Atlanta, Ga., Neil J. Ber-man and Judith Kazer Lamet, Miami, for appellant.
    Stephen F. Kessler, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

This is an interlocutory appeal from an order denying appellant’s motion for change of venue. For the reasons which follow, we reverse and remand with directions to transfer this cause to Orange County, Florida.

The three-count unsworn complaint alleges that the appellant had executed and delivered certain unsecured promissory notes to plaintiff’s assignor in Dade County, Florida. Payment on the notes was due in Dade County, Florida. Appellee concedes that venue in this case is governed by Section 47.061, Florida Statutes (1979), but argues that Dr. Baker failed to satisfy his burden of pleading and proving facts which would defeat venue as laid.

The only evidence before the trial court on the venue issue is the sworn affidavit of Dr. Baker reciting that the notes were made and delivered in Orange County, Florida, and that he is an Orange County resident. Consistent with the holding of our sister court in Foster v. Greco, 320 So.2d 43 (Fla. 4th DCA 1975), we likewise conclude that in the absence of any other proofs, Section 47.061 is controlling.

Accordingly, we reverse the order of the trial court and remand with directions to enter an order transferring the cause to the circuit court of Orange County, Florida.

Reversed and remanded with directions.

      . Dr. Baker’s motion was styled as a motion to dismiss for improper venue which we treat as a motion to transfer. The better practice is a motion to abate or a motion to transfer. See Trawick, Florida Practice and Procedures § 5 7.

      . § 47.061, Fla.Stat. (1979), provides:
      Actions on unsecured negotiable or nonnegotiable promissory notes shall be brought only in the county in which such notes were signed by the maker or one of the makers or in which the maker or one of the makers resides. When any such note was signed by the makers in more than one county, action may be brought thereon in any such county. This section shall be liberally construed in favor of the makers of such notes.


author: MILLS, Judge.

text:
    Edward Earl GLISSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-165.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Rehearing Denied Oct. 29, 1982.

      Edward Earl Glisson, pro se, appellant.
    No appearance for appellee.
   MILLS, Judge.

Glisson appeals Florida Parole and Probation Commission action establishing his presumptive parole release date. We affirm.

This court has repeatedly affirmed the use of concurrent sentences as aggravating factors. This use does not encroach on the function of the judiciary and does not violate the separation of powers clause, Article II, Section 3, Florida Constitution. See McRae v. State, 408 So.2d 775 (Fla.2d DCA 1982); Marsh v. Garwood, 65 So.2d 15 (Fla.1953).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    GATEWAY HOSPITAL CORPORATION, EAST, d/b/a Pembroke Pines General Hospital, Appellant, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES and South Broward Hospital District, Appellees.
    No. AK-163.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Byron B. Mathews, Jr. of McDermott, Will & Emery, Miami, for appellant.
    James M. Barclay, Cape Coral, for appel-lee/Department of HRS.
    Clarke Walden of Walden, Walden & McCauley, Dania, Loyd M. Starrett and Martha B. Sosman of Foley, Hoag & Eliot, Boston, Mass., for appellee/South Broward Hosp. Dist.
   McCORD, Judge.

The Gateway Hospital Corporation, East, d/b/a Pembroke Pines General Hospital (Gateway), appeals from a final order of the Department of Health and Rehabilitative Services (HRS) issuing to the South Bro-ward Hospital District (South Broward) a certificate of need authorizing South Bro-ward to spend up to $1,000,000 for the purchase of 30 acres of land in southwestern Broward County. The final order found for South Broward on the merits of the application as well as concluding that Gateway lacked the requisite standing to challenge the permit. We affirm.

South Broward is a public, tax-supported hospital district serving residents of southern Broward County. It owns and operates the Memorial Hospital in Hollywood, Florida, and a walk-in medical center in Pembroke Pines. Gateway, which is also located in southern Broward County, is a private hospital which competes with South Bro-ward’s facilities. It opposed the application for the certificate of need at a public hearing before the Health Planning and Development Council for Broward County, Inc. The Council voted approval of the application, which was subsequently approved by HRS. Gateway’s petition for a formal administrative hearing followed.

We agree with the conclusion of HRS that Gateway will not be “substantially affected” by South Broward’s proposed acquisition of real property in southwestern Broward County. There will be no competing services, for all that is proposed is the mere acquisition of land for possible future use of a new hospital. In fact, the simple acquisition of land is recognized by HRS rule as being inherently noncompetitive. Fla.Admin.Code Rule 10-5.08(2):

In order that those projects that are not truly competitive not be unduly delayed by the review cycles (“batching cycles”) established pursuant to subsection (1) each HSA shall adopt procedures for expedited review of the following types of projects:
(f) simple acquisitions of land, nonclinical equipment and system items, parking garages, parking lots, doctors’ office buildings, etc.

Gateway, however, argues that this authorization gives South Broward a “million dollar foot-in-the-door” advantage in any future proceedings for a new hospital in southwestern Broward County. We find this argument to be too speculative and tenuous an injury to convert Gateway into a substantially affected party. However, in order to dispel any doubts, we specifically hold that this purchase of land shall not afford South Broward any competitive advantage in future certificate of need licensing proceedings regarding a new hospital in southwestern Broward County.

On the merits, we find the final order of HRS to be supported by competent, substantial evidence. § 120.68(12), Fla.Stat.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.

      . Applications for similar types of services in the same health service area are reviewed in relation to each other, and review “batching cycles” have been established to ensure that applications which may be competitive will be given comparative review. Fla.Admin.Code Rule 10-5.08(1).

      . Each certificate of need application is first evaluated by the Health Systems Agency (HSA) for the health service area in which the project is proposed. As part of its review, the HSA normally conducts a public hearing In which “interested” persons may present their views orally and in writing. § 381.494(6)(b), Fla.Stat. (1981); Fla.Admin.Code Rule 10-5.-10(l)(a). The HSA submits its written findings of fact and recommendation to HRS. § 381.-494(6)(d), Fla.Stat. (1981); Fla.Admin.Code Rule 10-5.10(l)-(4). HRS then reviews the application and issues or denies a certifícate of need for the project. § 381.494(7)(c), Fla.Stat. (1981); Fla.Admin.Code Rule 10-5.10(5)-(7).


author: PER CURIAM.

text:
    Efren YERO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2023.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    As Modified Oct. 26, 1982.

      Bennett H. Brummer, Public Defender, and Harold C. Culmer, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Efren Yero, who was tried as an adult and convicted by jury of sexual battery, appeals his adjudication of guilt and sentence to 155 years imprisonm'ent.

Yero, aged 16, was charged with sexual battery upon J. G. who was then under 11 years of age. Upon defense request, the court ordered the witnesses sequestered.

Despite the invoking of the rule, the prosecutor met with several of the witnesses (who had not yet been sworn) on the morning of the first day of trial. The witnesses present at this meeting were the victim, another child who ultimately testified to similar acts by the defendant, and the parents of those children. Further, someone from the State Attorney’s Office was seen discussing the case with another witness. The court made inquiry about the violation of the rule and was advised by the witnesses that there was no change in their testimony inspired by the meeting. The lower court denied a motion for mistrial.

The jury convicted Yero of sexual battery, and the court sentenced him to 155 years in prison. The trial court did not enter a separate order about her decision to impose adult sanctions, as required by § 39.111(6)(d). The judge did, however, enter a lengthy order retaining jurisdiction. In that order, the judge detailed the violent nature of the criminal act, Yero’s lack of remorse, and his previous record.

The appellant urges error in the witnesses violating the sequestration rule and the trial court failing to enter a separate order as to her decision to impose adult sanctions. We find no merit in either ruling and affirm. Dumas v. State, 350 So.2d 464 (Fla.1977); Rowe v. State, 120 Fla. 649, 163 So. 22 (1935); Schroeder v. State, 391 So.2d 260 (Fla. 4th DCA 1980); Matire v. State, 232 So.2d 209 (Fla. 4th DCA 1970).

Affirmed.

      . THE DEFENDANT, Efren Yero, was convicted by a jury of an involuntary sexual battery upon a person 11 years of age pursuant to F.S. 794.011(2). A Pre-Sentence Investigation Report was ordered as the Defendant had been found guilty of a first felony while an adult. Upon consideration of the Pre-Sentence Investigation Report and the facts of the case presented at trial, the Court finds it appropriate and in the best interest of the public to retain jurisdiction of the offender to review any Florida Parole and Probation Commission release order under the provision of Section 947.16, Florida Statutes.
      After being fully advised of the prior history of juvenile delinquency of the Defendant, Efren Yero, age 16, through the Pre-Dispositional Report submitted by the Department of Health and Rehabilitative Services, and after having considered carefully the various statutory criteria regarding sentencing of a chronological juvenile in Adult Court set forth in Chapter 39, Florida Statutes, and making a written finding that adult sanctions and incarceration are necessary in this case, and after considering all reports submitted by Court-appointed and defense-retained psychiatrists in this case as well as the Pre-Sentence Investigation, the Court makes the following findings.
      There is ample justification for entry of an order by this Court retaining jurisdiction over the Defendant, Efren Yero, for review of any future release order of the Florida Parole and Probation Commission and accordingly states the reasons therefor with particularity as follows:
      (1) The acts of the Defendant, Efren Yero, are serious, and that the crime was committed in a violent, aggressive, willful and premeditated manner.
      (2) The Defendant was convicted of a sexual battery upon a minor which involved the use of intentional violence upon the minor. In particular, the Defendant induced a neighbor child into the Defendant’s parents’ bedroom, handcuffed the victim to the bed, held a starter gun to the victim’s head and forced the victim to commit oral copulation upon the Defendant. (A more detailed statement of the facts are contained within the Pre-Sentence Investigation Report attached hereto and made a part hereof.)
      (3) The crime was committed against a person, to wit: J. G., an eleven (11) year old male with similar fact evidence introduced at trial about the rape of R. M., age 8, a day prior.
      (4) The crime committed involved the infliction of both mental and physical pain and suffering.
      (5) The Defendant has an extensive prior juvenile arrest and conviction record, beginning at age 8, as well as many contacts with law enforcement agencies, Juvenile Courts, Court-appointed psychiatrists and psychologists, social workers and juvenile state schools. The summary of the experts’ opinions are that the Defendant is capable of violent and aggressive behavior, is impulsive, unpredictable and potentially dangerous.l
      (6) The Defendant has shown no remorse, repentance or contrition for his acts.
      (7) The Parole and Probation officer who prepared the Pre-Sentence Investigation Report strongly recommends he should receive a lengthy period of incarceration.
      (8) The Defendant is 16 years of age and by actuarial count has many years of life ahead of him. Based upon the nature of the offense, his extensive prior criminal involvement, substantial drug abuse, and his disregard of the criminal justice system’s rehabilitative efforts, the Court finds the Defendant a serious threat and danger to society.
      Accordingly the Defendant is sentenced to 155 years in the state penitentiary and under the provisions of Florida Statute 947.16, this Court retains jurisdiction over the offender for review of a Commission release order during the first third of the sentence imposed.
      !This Court has witnessed a violent outburst by the Defendant in the courtroom on the day of the previous trial in which he used foul language and threatened to kill the judge and prosecutor.

      . This affirmance is without prejudice to the appellant filing a Rule 3.850 motion urging ineffectiveness of trial counsel in respect to matters which may require an evidentiary hearing.


author: PER CURIAM. BASKIN, Judge

text:
    George DUDLER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-95.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Bennett Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc); Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981); Collier v. State, 353 So.2d 1219 (Fla. 3d DCA 1978); Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 131 (Fla.1978); Reddish v. State, 167 So.2d 858 (Fla.1964).

BASKIN, Judge

(concurring).

Because the facts of this case closely resemble those in Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981), I concur in the result without departing from the views I expressed in my dissent in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc).


text:
    Tim FURR, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2203.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Bennett Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc); Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).

BASKIN, Judge

(dissenting).

Brown v. State, 376 So.2d 382 (Fla.1979) authorizes this court to review dispositive issues reserved upon the entry of pleas of nolo contendere. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981), cited by the majority opinion, recognizes that some issues may be dispositive upon stipulation by the parties. In the case before us, however, neither of the two reserved issues is dispositive; the state indicated it could proceed if either ruling were reversed. Thus, under Jackson v. State and Brown v. State, this court must remand the cause and permit defendant Furr to withdraw his plea, as I indicated in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc) (Baskin, J., dissenting).


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Richard Brian SCHNEIDER, Carl Seaman Schneider, and Lisa Ann Harwood, Appellees.
    No. 81-2070.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Rehearing Denied Oct. 27, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
    Norman F. O’Rourke, Fort Lauderdale, for appellees — Richard Brian Schneider and Carl Seaman Schneider.
   HERSEY, Judge.

The state appeals from a non-final order granting a motion to suppress certain contraband. We reverse.

Officer Marvin Roberts of the Hollywood, Florida, Police Department received an anonymous telephone call describing a boat which was being used to bring marijuana into the country and the residence where it was located. With the permission of a neighboring landowner the officer set up surveillance of the residence. The described boat was docked at the residence, but subsequently put out to sea, returning two days later. On the evening of its return Officer Roberts observed a white van back up to the front door of the residence. At about 10:45 p.m. the rear light of the house was turned on and three men came out. Richard Schneider boarded the boat and began throwing large rectangular bales covered in a dark shiny plastic substance wrapped with white tape to Carl Schneider and Thomas Eleagar.

Officer Roberts concluded that these bales contained marijuana because of their size, the manner in which they were wrapped, the sound as they hit the ground, the boat’s low position in the water, its return from the ocean that day, and the tip on the telephone. After observing ten bales being unloaded, Officer Roberts notified the other units to move in. Roberts proceeded to the back of the house where he observed that some of the bales had ripped open spilling marijuana.

The subjects were placed under arrest. Because marijuana was seen in plain view on the deck and in the cabin of the boat, the officers boarded the vessel. Ultimately eighteen bales of marijuana were seized.

The police officers observed what they had reasonable cause to believe was marijuana by virtue of a legally permissive “open view.” State v. Rickard, 420 So.2d 303 (1982). The totality of circumstances furnished probable cause for the officers to conclude that they were witnessing a felony in progress. Accordingly, they had grounds to arrest the individuals involved. § 901.15(3), Fla.Stat. (1981). Pursuant to that arrest they could properly seize the marijuana bales. Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981); State v. Trepany, 409 So.2d 529 (Fla. 4th DCA 1982).

We therefore reverse the order granting the motions to suppress and remand for further appropriate proceedings.

REVERSED and REMANDED.

BERANEK and HURLEY, JJ., concur.


author: ERVIN, Judge.

text:
    Jack STEWART, Appellant, v. PAVE-MARK and Liberty Mutual Insurance Company, Appellees.
    No. AG-59.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.

      Mark L. Zientz of Williams & Zientz, Coral Gables, for appellant.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellees.
   ERVIN, Judge.

In this workers’ compensation case, the claimant appeals the order of the deputy commissioner denying the claim for wage-loss benefits. We reverse and remand for further consistent proceedings.

The order resulted from a supplemental hearing held on July 7, 1981 for the purpose of determining claimant’s alleged entitlement to wage-loss benefits due from the maximum medical improvement date of September 15, 1980 to June 12, 1981. The original order of April 10, 1981 included the finding that claimant had a five percent impairment of the body as a whole. Claimant was injured in a compensable accident on April 10, 1980, resulting in a fractured right ankle and injuries to the left knee and left wrist. Also, in the previous order the deputy found the average weekly wage to be $188.65, with a compensation rate of $125.77. The employer/carrier agrees that the April 10, 1981 order is res judicata on all issues adjudicated. However, the e/c controverted the claim for wage-loss benefits on the basis that claimant was able to earn 95% of 85% of the wages he was earning at the time of the accident.

The order appealed from is brief. Although the deputy found that claimant still suffered from the injury to the extent described in the attending physician’s report, he concluded that “the injury does not interfere with the employee’s ability to earn the same wages he was earning at the time of his accident.” The crux of the parties’ arguments on appeal is whether the claimant had proven an appropriate work search, sufficient to demonstrate a compensable wage loss.

At the time of the accident, claimant was thirty-one years old, had completed one year of college and was employed as a “long-line operator” for the employer, a private company in the business of painting lines and markings on highways, parking lots and other paved areas. Claimant was not rehired by his employer. He eventually found work on May 17, 1981 as a delivery driver. The testimony of claimant and a list of jobs he produced reveal that he applied for work as a laborer, orderly, delivery person, truck driver, sign painter, handyman, garbage man, warehouse worker, carpenter, fire fighter and bus driver. The list also discloses at least two dozen businesses claimant had contacted, and he testified that he had “put in about 50 to 75 applications.” Claimant testified that he was unable to find work although he actively pursued work during the period of the claimed wage loss. His rejection for the jobs for which he applied was not necessarily due to his physical problems. He stated he was “just turned down completely” at one place because of his long period of unemployment, and at other places because they weren’t hiring. At some places he would ask initially if the employer would hire someone who had a workers’ compensation claim, or was injured. If the employer said yes, then claimant would reveal that he had a claim. He testified that he tried to apply for jobs where he wouldn’t have to be on his feet for eight hours continuously, as he is unable to stand for long periods of time.

The employer/carrier maintains that the deputy was correct because claimant did not show by competent, substantial evidence that his work search was unsuccessful due to his disability rather than to unavailability of work; thus, he failed to distinguish his joblessness from that of any unimpaired jobless individual. Lehigh Corp. v. Byrd, 897 So.2d 1202 (Fla. 1st DCA 1981); Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981). Claimant replies that he has satisfied his burden of proof under section 440.15(3)(b)1, 2, Florida Statutes (1979), by proving a physical impairment caused by the industrial injury, an actual wage loss, and a good faith work search since there is no evidence that claimant has either voluntarily limited his income or failed to accept employment commensurate with his ability. Nor, he contends, has the employer made any attempt to show that work was available to him.

Following the notice of appeal filed in this cause, this court rendered its opinion on rehearing en banc in Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA, September 23, 1982). Regency Inn confronts the issue of the effect of economic conditions on the employee’s entitlement to wage-loss benefits. In Regency Inn, we stated that the Lehigh Corp. v. Byrd determination of an inadequate work search does not require direct proof by the employee that he has been rejected for a job because of his disability as an essential evidentiary element in proving wage loss. Regency Inn, 422 So.2d 870 at 877-878. Regency Inn continues that the unavailability of jobs due to economic conditions does not preclude recovery of wage-loss benefits; accordingly it is not necessary for a wage-loss claimant to present evidence that his refusal for employment was not due to unavailability of jobs resulting from economic conditions.

Also relevant to the instant case is the following footnote in Regency Inn:

Certainly evidence that a job was not obtained because employers were “not hiring” (as the employee in this case testified) does not establish unavailability of jobs due to economic conditions. We take it as not subject to serious question that many businesses and industries at any given time, in any given locality, even in times of relative economic prosperity may be “not hiring” when a particular person applies for work. If the claimant’s search for work was sufficiently extensive and intensive, then in order to defeat her wage loss claim it was incumbent upon the employer or carrier to show that jobs were available to her with employers who “were hiring.” Wright v. Gulf and Western Food Products, 401 So.2d 1316 (Fla.1981).

422 So.2d at 879 n. 9 [slip opinion at 13].

Although the record before us does not indicate any lack of diligence or good faith such as might conceivably result from an extremely restricted or illogical search, there are of course an infinite number of facts and circumstances which may bear upon the adequacy or good faith of a work search. Regency Inn, 422 So.2d at 877. Because the deputy’s order failed to make the necessary factual findings consistent with our opinion in Regency Inn v. Johnson, we REVERSE and REMAND this cause to the deputy for reconsideration of the claim.

McCORD and JOANOS, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Winifred E. HUGUENOR, Appellant, v. Thomas HUGUENOR, Individually, and as Guardian of the Person and Property of Florence P. Huguenor and Robert Huguenor, Appellee.
    81-605.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.

      Theodore F. Zentner of Becks, Becks & Wick'ersham, Daytona Beach, for appellant.
    David A. Monaco of Cobb & Cole, P.A., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant appeals from an order of the trial court denying a motion to set aside a default final judgment. We reverse.

Appellant Winifred Huguenor is the widow of Lloyd Huguenor, Jr., deceased, and before her removal, she was the personal representative of Lloyd, Jr.’s estate. In the first count of a two count complaint, the appellees, as beneficiaries of a trust created in Illinois by the will of Lloyd Huguenor, Sr., sought relief against Lloyd, Jr.’s estate because of Lloyd Jr.’s alleged co-mingling of trust assets with his own while he was the trustee of his father’s trust. In the second count, appellees sought a money judgment against Winifred Huguenor, alleging that while acting as personal representative of Lloyd, Jr.’s estate, she had converted to her own use certain bonds belonging to the estate, the proceeds of which she refused to return.

Constructive service of process by publication under chapter 49, Florida Statutes (1979), was had upon Winifred, who then resided in Great Britain. When no answer was filed, a default was entered by the Clerk. Upon motion by appellees that Count II represented a separate cause of action against Winifred which could proceed independently from Count I, the trial court severed Count II and subsequently entered a final money judgment on default against Winifred Huguenor. Winifred subsequently moved to set the judgment aside on the ground that it was void for lack of personal jurisdiction over her. The motion was denied and this appeal followed.

Section 49.011, Florida Statutes, authorizes service of process by publication in certain enumerated actions or proceedings. This constructive service statute is strictly construed against the party who seeks to obtain service of process under it, McAlice v. Kirsch, 368 So.2d 401 (Fla.3d DCA 1979). The complaint must allege sufficient facts to show a cause of action for which constructive service is allowed under the statute, Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla.2d DCA 1979).

The action here is one for money damages based on the tort of conversion. It is simply not the type of action where service of process may be obtained by publication. See, e.g., Alan Restaurant Corp. v. Walder, 399 So.2d 1128 (Fla.4th DCA 1981); Drake v. Scharlau, 353 So.2d 961 (Fla.2d DCA 1978); Ressler v. Sena, 307 So.2d 457 (Fla.4th DCA 1975).

Appellee contends that because Winifred committed the tort while acting as the personal representative of Lloyd, Jr.’s estate in Volusia County, she becomes personally liable to interested persons under section 733.609 and section 733.619(2), Florida Statutes (1979), and thus amenable to the jurisdiction of the courts of this state under section 48.193, because she committed the tortious act in the state. She may very well be subject to the provisions of Florida’s long-arm statute, but in personam jurisdiction cannot be obtained over her by service by publication.

Neither do we find that appellant submitted herself to the jurisdiction of the court. The only appearances before the court were for the purpose of contesting the court’s jurisdiction over her, and do not constitute a general appearance such as will waive the jurisdictional argument. See Public Gas Co. v. Weatherhead Co., 409 So.2d 1026 (Fla.1982).

The order denying appellant’s motion to set aside the final judgment for lack of personal jurisdiction over appellant is reversed, and the cause is remanded with directions to set aside the final judgment.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.

      . The first count is not involved in this appeal. The count involved in this appeal is separate and distinct from and is not interrelated with the other count. See Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    ROMAR INTERNATIONAL, INC., a Florida corporation, Appellant, v. JIM RATHMAN CHEVROLET/CADILLAC, INC., a Florida corporation and General Motors Corporation, a Delaware corporation, Appellees.
    No. 81-1173.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.

      Richard A. Manzo of Manzo, Rogers & Wright, Titusville, for appellant.
    Lori J. Caldwell of Rumberger, Kirk, Caldwell, & Cabaniss, P. A., Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellees each moved for attorney’s fees and expenses under Florida Rule of Civil Procedure 1.310(g)(1), which in essence permits a trial court to award as sanctions, reasonable expenses, including attorney’s fees, to a party where his opponent notices a deposition but fails to attend. However, before the hearing on these motions, appellant took a voluntary dismissal of its action against appellees. The trial court nevertheless proceeded to hear appellees’ motions and ultimately awarded them “costs and attorney’s fees.” Appellant contends that the trial court lacked jurisdiction to make such an award.

The right of a plaintiff to voluntarily dismiss his lawsuit at any time prior to a hearing on a motion for summary judgment, before the jury retires, or before submission of a non-jury case to the court for decision is guaranteed by Florida Rule of Civil Procedure 1.420(a)(1). Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978); Bevan v. D’Alessandro, 395 So.2d 1285 (Fla. 2d DCA 1981). A narrow exception exists where a fraud on the court is attempted by the filing of the voluntary dismissal, in which case the court may strike the voluntary dismissal and reinstate the matter. Bevan v. D’Alessandro; Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979).

The effect of a voluntary dismissal is “to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction’.” Randle, 360 So.2d at 69. See also, Knight v. County of Alachua, 396 So.2d 846 (Fla. 1st DCA 1981). However, Rule 1.420(d) provides authority for a defendant to recoup its court costs when a voluntary dismissal has been taken. Id.

In Knight v. County of Alachua, appellant, a non-party deponent, had moved for attorney’s fees pursuant to Florida Rules of Civil Procedure 1.280(c) and 1.380(a)(4) to recover such fees incurred in successfully procuring a protective order after being served with a subpoena. Appellee, however, voluntarily dismissed its lawsuit and on appeal the First District Court of Appeal concluded that the trial court was without jurisdiction to rule on the motion. The court stated:

[T]he award would have required the judge’s exercise of discretion in granting the motion. The effect of the voluntary dismissal was to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction.’

396 So.2d at 846.

An award of attorney’s fees and expenses under Rule 1.310(g)(1) likewise requires exercise of the trial court’s discretion. Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 467 (Fla. 4th DCA 1969). Appellees argue that the instant case differs from Knight in that here we deal with a party who seeks fees and expenses and Rule 1.420(d) permits a defendant to recoup its court costs when a voluntary dismissal has been taken.

However, appellees proceeded here under Rule 1.310(g)(1) and at no time filed a motion to tax costs under Rule 1.420(d). See, e.g., MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979) (wherein a motion to tax costs under Rule 1.420 was made). In addition, appellees are seeking to recover attorney’s fees and expenses, including those incurred in travelling to the deposition site. Rule 1.420(d) generally does not permit recovery of attorney’s fees, see Randle, 360 So.2d at 69, or counsel’s travel expenses. Long v. Martin, 410 So.2d 607 (Fla. 5th DCA 1982).

We have been unable to discover any cases under Rule 1.310 which establish that the trial court has inherent jurisdiction after a voluntary dismissal to award the expenses provided for by the Rule. Under Randle and Knight, we reluctantly conclude that the voluntary dismissal here divested the trial court of jurisdiction to pass upon appellees’ motion.

REVERSED.

DAUKSCH and COWART, JJ., concur.

      . Florida Rule of Civil Procedure 1.310(g)(1), provides:
      If the party giving the notice of the taking of a deposition fails to attend and proceeds therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.

      . Rule 1.420(d) provides in part that:
      Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.

      . There are significant exceptions to this rule but they are not applicable here. See, e.g., MacBain v. Bowling; Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976).


author: DAUKSCH, Judge.

text:
    Walton D. CHAMPION, as Personal Representative of the Estate of Joyce Caroline Champion, deceased, Appellant, v. Roy Lee GRAY, Jr.; Roy L. Gray; Gladys Gray; Dixie Insurance Co., etc.; and Florida Farm Bureau Casualty Insurance Company, etc., Appellees.
    No. 81-1309.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.

      Ann G. Paschall, of McClung & Paschall, Brooksville, for appellant.
    Chris W. Altenbernd, of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellee Florida Farm Bureau Cas. Ins. Co.
    Gary M. Witters, of Allen, Dell, Frank & Trinkle, Tampa, for appellees, Gray, Jr., Gray and Dixie Ins. Co.
   DAUKSCH, Judge.

At issue in this appeal is the complex question of whether a plaintiff should be allowed to recover for the physical consequences of a mental or an emotional disturbance caused by a negligent act in the absence of physical impact upon the plaintiff. The rule in Florida is that absent physical impact upon the plaintiff, damages may not be recovered for mental anguish or physical injury resulting from emotional stress caused by the negligence of another. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Claycomb v. Eichles, 399 So.2d 1050 (Fla. 2d DCA 1981). Only the Florida Supreme Court can overrule the “impact rule” and we shall respect the rule until our supreme court sees fit to change it. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, we suggest that the rule should at least be revisited and at best be changed.

This case is before us from an order dismissing a complaint with prejudice. The complaint alleged that Karen Champion, the child of Joyce and Walton Champion, was walking near a roadway when a car driven by a drunk driver left the road, struck the child and killed her. Immediately after the accident, Karen’s mother, Joyce, came to the scene and discovered the body of her child. Overcome with shock and grief at the sight of and death of her daughter, Joyce collapsed and died.

Mr. Champion alleged that he lost his daughter, then his wife, as a direct and proximate result of the actions of the driver. The lawsuit against the defendants for the death of the daughter continued. The lawsuit against the driver for the death of the mother was dismissed because there was no actual physical contact upon the plaintiff (here plaintiff’s decedent, the child’s mother), and therefore no legal nexus between the actions of the driver and the death of the mother.

Because Florida still adheres to the impact rule, the trial court properly dismissed the complaint with prejudice. However, it has been held in other states that no physical contact is necessary and the impact rule has been discarded. The majority of jurisdictions now allow recovery, absent impact, for the negligent infliction of emotional stress, particularly where physical injury is produced as a result of such stress.

Our view is that Florida should now align itself with the overwhelming majority of jurisdictions which have abandoned the rule and condemn it as unjust and illogical. The rationale for the rule has certainly been seriously undermined in recent years. Rickey v. Chicago Transit Authority, 101 Ill.App.3d 439, 57 Ill.Dec. 46, 48, 428 N.E.2d 596, 598 (1981). Techniques for diagnosing the causal connection between emotional states and physical injuries have been significantly refined since the impact rule was first announced. Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1973), quashed, 291 So.2d 593 (Fla.1974). Due to the advances of medical science in the field of psychic injuries, it is foreseeable to the defendant that his negligence may cause another to suffer emotional distress, and mere difficulty of proof or the possibility of fraud should not preclude the plaintiff from the opportunity to prove his injury. We agree with the rationale of Judge Mager in Stewart v. Gilliam, where he said:

The question is not really one of “impact” but rather the causal connection between the negligent act and the ultimate injury — a circumstance which in the last analysis does not seem to pose problems any more difficult to solve in a non-impact case than in an impact case. Causation is not peculiar to cases without impact; it is an ingredient in all types of personal injury litigation. The fact that there may be difficulty in proving or disproving a claim should not prevent a plaintiff from being given the opportunity of trying to convince the trier of fact of the truth of the claim. The question is one that falls within the province of a jury in light of the circumstances in the particular case.

271 So.2d at 473.

Additionally, if recovery in negligence for physical injuries resulting from emotional disturbance absent impact is allowed in Florida, the risk of fraudulent claims should be no greater than it currently is in this state for recovery which is available for the intentional infliction of emotional distress without contemporaneous physical injury. Furthermore, in those jurisdictions which allow recovery in negligence for emotional injuries without physical impact “the feared flood tide of litigation has simply not appeared.” Niederman v. Brodsky, 436 Pa. 401, 411, 261 A.2d 84, 89 (1970). However, “[mjore significant than what may have been the experience in other states is the basic principle that a fear of expansive litigation should not deter courts from granting relief in meritorious cases.” Stewart v. Gilliam, 271 So.2d at 475.

The basic purpose of our court system is to provide a remedy to those who are injured by the fault of others. Article I, Section 21 of the Florida Constitution states: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Whether Walton Champion’s wife died as a result of the defendant’s negligence should be determined in court, and if it is proved that the allegations are true then he should recover what relief is available. To deny him relief for the shallow, out-dated, unrealistic reasons underlying the impact rule does not comport with the justice required by our constitution.

There are two aspects to the problem presented in this case. The first aspect involves recoverability by a plaintiff for physical injuries due to mental trauma, negligently caused, absent impact. This aspect has already been discussed and we have expressed our view that an action for recovery should be maintainable. The second aspect is more difficult. The question becomes “whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety.” Tobin v. Grossman, 24 N.Y.2d 609, 613, 301 N.Y.S.2d 554, 556, 249 N.E.2d 419, 421 (1969). In other words, “the mental disturbance and its consequences are not caused by any fear for the plaintiff’s own safety, but by distress at some peril or harm to another person — as in the case of a mother witnessing the death of her child.” W. Prosser, The Law of Torts 333, (4th ed. 1980). Of course, those jurisdictions which still follow the impact rule deny recovery in this situation. Id. Many courts which no longer require impact would also deny recovery because the mother (or other close relative) was not in the “zone of danger” and “the defendant could not reasonably anticipate any harm to the plaintiff, and therefore owes her no duty of care.” Id. However, an increasing number of those courts which allow recovery absent impact have examined the policy factors involved and also allow a claim for relief where a parent or close relative has sustained substantial physical harm as a result of severe emotional distress over some peril or harm to another (usually a minor child), caused by the defendant’s negligence, and the parent or close relative either witnessed the accident or soon came to the scene of the accident while the initial victim was still there.

Until recently, the typical case in other jurisdictions allowing recovery for injuries arising from concern over harm to another involved a person (usually the parent) who was also put in fear for his own safety as a result of the defendant’s negligence. In other words, recovery was allowed because the parent was in the “zone of danger.” As stated by the Massachusetts Supreme Court in Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978):

It is arguably reasonable to impose liability for the physical consequences of emotional distress where the defendant’s negligent conduct might have caused physical injury by direct impact but did not. The problem with the zone of danger rule, however, is that it is an inadequate measure of the reasonable foreseeability of the possibility of physical injury resulting from a parent’s anxiety arising from harm to his child. The reasonable foreseeability of such a physical injury to a parent does not turn on whether that parent was or was not a reasonable prospect for a contemporaneous injury because of the defendant’s negligent conduct.

In 1968, the California Supreme Court broke the pattern of denying recovery merely because the parent was not threatened with contemporaneous injury or was not in the zone of danger. The court held that a cause of action was maintainable on behalf of a mother, in no danger herself, who witnessed her minor daughter’s death in a car accident allegedly caused by the defendant’s negligence, and who suffered emotional disturbance and shock to her nervous system which caused her physical and mental pain and suffering. Dillon v. Legg, 68 Cal.2d, 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). One year later, recovery by a mother who did not witness the acei-dent but arrived at the scene shortly thereafter was allowed by a California appellate court in Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). The court stated: “Manifestly, the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself.” Id. at 256, 79 Cal.Rptr. at 725. The California Supreme Court later confirmed in Krouse v. Graham, 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 872, 562 P.2d 1022, 1031 (1977) that a visual perception of the impact causing the death or injury was not required. Consequently, a growing number of courts have rejected the zone of danger test and allow recovery in cases where the parent or close relative was outside the zone of danger. Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981) (son, who was waiting for his mother at the opposite side of a traffic intersection, saw his mother’s vehicle struck on the driver’s side by another vehicle as she was proceeding through the intersection); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980) (mother, who watched her seven-year-old son suffer and die when he became trapped in an elevator, was allowed recovery for mental and emotional distress even though she had not been subjected to any risk of physical harm); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (mother saw her daughter, from doorway of her home, struck and killed by an automobile); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979) (mother who heard a terrible noise and then saw her daughter lying seriously injured in the road, and father who came to the scene of the accident immediately thereafter, were allowed recovery despite fact that they alleged neither that they suffered physical impact nor that they were within the zone of danger); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978) (mother suffered heart attack upon coming to the scene of where her minor daughter had been struck by an automobile moments earlier, father suffered heart attack upon learning of his wife’s death and his daughter’s injuries); D’Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975) (mother saw her four-year-old son struck and killed by a mail truck); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974) (ten-year-old boy saw his stepgrandmother struck and killed by an automobile); D'Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Sup. 164, 326 A.2d 129 (Super.Ct.1973) (mother and father saw their child killed in an automobile accident); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973) (mother saw her nine-year-old daughter struck and killed by a truck); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App., 6th Dist. 1978) (minor plaintiff was allowed recovery for physical injury sustained by her as a result of shock and emotional trauma of witnessing efforts to revive her infant sister who drowned in swimming pool of day nursery operated by defendant). These courts have recognized that “the zone of danger rule imposes unjust limitations on recovery and fails to protect worthy interests.” Corso v. Merrill, 406 A.2d at 307. “It is foreseeable that a bystander may be emotionally distressed even though not himself in any physical danger.” Barnhill v. Davis, 300 N.W.2d at 107. One court has stated that:

This new awareness of the unfairness of the zone of danger requirement in these cases is based upon the implicit acceptance that the emotional impact upon a parent witnessing [or contemporaneously perceiving] the killing of a minor child is at least as great and as legitimate as the apprehension that is inspired by a plaintiff being personally within the zone of danger.

Sinn v. Burd, 404 A.2d at 677.

Thus, we believe traditional principles of negligence analysis may be applied in such cases and the imposition of undue liability may be avoided by using the broader test of reasonable foreseeability. Measuring the defendant’s conduct by this standard, “it is clear that it is reasonably foreseeable that, if one negligently operates a motor vehicle so as to injure a person, there will be one or more persons sufficiently attached emotionally to the injured person that he or they will be affected.” Dziokonski, 380 N.E.2d at 1302.

We agree with Professor Prosser’s observation that “[i]t would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends.” Prosser at 334. As stated by the court in Portee v. Jaffee:

The task in the present case involves the refinement of principles of liability to remedy violations of reasonable care while avoiding speculative results or punitive liability. The solution is close scrutiny of the specific personal interests as-sertedly injured. By this approach, we can determine whether a defendant’s freedom of action should be burdened by the imposition of liability. In the present case, the interest assertedly injured is more than a general interest in emotional tranquility. It is the profound and abiding sentiment of parental love. The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare.... No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.

417 A.2d at 526.

Thus, in order to be worthy of legal protection, the emotional harm cannot be insignificant. It must be “a painful mental experience with lasting effects.” Corso v. Merrill, 406 A.2d at 304. “In other words, the harm for which plaintiff seeks to recover must be susceptible to some form of objective medical determination and proved through qualified medical witnesses.” Id.

Limits on liability which are consistent with the individual interest being injured have been established in those jurisdictions which would allow recovery under facts similar to those in the case sub judice. It has been noted, however, that “devising one hard and fast rule for limiting bystander recovery in mental suffering cases would be difficult and complex if not impossible.” Toms v. McConnell, 207 N.W.2d at 144. We agree that “[t]he problem of limiting liability will be best surmounted and will be more justly resolved for all concerned by treating each case on its own individual facts.” Id. It was stated in Dziokonski that “[ejvery effort must be made to avoid arbitrary lines which ‘unnecessarily produce incongruous and indefensible results.’ The focus should be on underlying principles. In cases of this character, there must be both a substantial physical injury and proof that the injury was caused by the defendant’s negligence.” 380 N.E.2d at 1302. (citations omitted). Beyond that, it is generally agreed that there are three major factors which should be considered in determining foreseeability in this type of case:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence from relationship or the presence of only a distant relationship.

Dillon v. Legg, 69 Cal.Rptr. at 80, 441 P.2d at 920.

The court in Dziokonski found that:

It does not matter in practice whether these factors are regarded as policy considerations imposing limitations on the scope of reasonable foreseeability ..., or as factors bearing on the determination of reasonable foreseeability itself. The fact is that, in cases of this character, such factors are relevant in measuring the limits of liability for emotionally based injuries resulting from a defendant’s negligence. In some instances, it will be clear that the question is properly one for the trier of fact, while in others the claim will fall outside the range of circumstances within which there may be liability.

380 N.E.2d at 1302.

With the foregoing considerations in mind, the court in Dziokonski concluded that:

The allegations concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant’s negligence state a claim for which relief might be granted, where the parent either witnesses the accident or soon comes on the scene while the child is still there.

Id.

Similarly, we believe that such allegations should state a cause of action for recovery in negligence. We take heed to the old adage: “Be not the first by whom the new are tried, nor yet the last to lay the old aside." Therefore, because we deem the matter to be of great public importance, we certify the following question of law to the Florida Supreme Court:

I. SHOULD FLORIDA ABROGATE THE “IMPACT RULE” AND ALLOW RECOVERY FOR THE PHYSICAL CONSEQUENCES RESULTING FROM MENTAL OR EMOTIONAL STRESS CAUSED BY THE DEFENDANT’S NEGLIGENCE IN THE ABSENCE OF PHYSICAL IMPACT UPON THE PLAINTIFF?

AFFIRMED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., concur.

      . Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978); Melton v. Allen, 282 Or. 731, 580 P.2d 1019 (1978); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976); First Nat. Bank v. Langley, 314 So.2d 324 (Miss.1975); D'Ambra v. U.S., 114 R.I. 643, 338 A.2d 524 (1975); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.1972); Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970), see also Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433 (Me.1982) (no physical injury but recovery allowed, thus overruling Wallace limitations); Daley v. La Croix, 384 Mich. 4, 179 N.W.2d 390 (1970); Ver Hagen v. Gibbons, 47 Wis.2d 220, 177 N.W.2d 83 (1970); Okrina v. Midwestern Corp., 282 Minn. 400, 165 N.W.2d 259 (1969); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 234 A.2d 656 (1967); Robb v. Pennsylvania R. Co., 8 Storey 454, 58 Del. 454, 210 A.2d 709 (Del.Sup.1965); Trent v. Barrows, 55 Tenn. App. 182, 397 S.W.2d 409 (1965); Haight v. McEwen, 43 Misc.2d 582, 251 N.Y.S.2d 839 (1964); Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959); Monteleone v. Co-operative Transit Co., 128 W.Va. 340, 36 S.E.2d 475 (1945); Kelly v. Lowney & Williams, Inc., 113 Mont. 385, 126 P.2d 486 (1942); Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674 (1937), adhered to, 135 Neb. 232, 280 N.W. 890 (1938), see also Fournell v. Usher Pest Control Co., 208 Neb. 684, 305 N.W.2d 605 (1981) (Nebraska has abrogated the “impact” rule but still requires that some type of physical injury result from the negligently inflicted suffering and that recovery for emotional disturbance must be limited by at least requiring the plaintiff to have been within the “zone of danger or actually put in fear for his own safety”); Sternhagen v. Kozel, 40 S.D. 396, 167 N.W. 398 (1918); Whitsel v. Watts, 98 Kan. 508, 159 P. 401 (1916); Alabama Fuel & Iron Co. v. Baladoni, 15 Ala.App. 316, 73 So. 205 (1916); Hunter v. Southern R. Co., 152 N.C. 682, 68 S.E. 237 (1910); Green v. Shoemaker, 111 Md. 69, 73 A. 688 (1909); Stewart v. Arkansas Southern R. Co., 112 La. 764, 36 So. 676 (1904); Mack v. South Bound R.R., 52 S.C. 323, 29 S.E. 905 (1898); Rickey v. Chicago Transit Authority, 101 Ill.App.3d 439, 57 Ill.Dec. 46, 428 N.E.2d 596 (1981); Landreth v. Reed, 570 S.W.2d 486 (Tex. Civ.App., 6th Dist. 1978); Federal: Sahuc v. United States Fidelity & Guar. Co., 320 F.2d 18 (5th Cir. 1963); Kaufman v. Western Union Tel. Co., 224 F.2d 723 (5th Cir. 1955), review denied, 350 U.S. 947, 76 S.Ct. 321, 100 L.Ed. 825 (1956); Belt v. St. Louis-San Francisco R. Co., 195 F.2d 241 (10th Cir. 1952); 38 Am. Jur.2d, Fright, Shock, etc., § 13 et seq., p. 16, footnote 7 (1968); Commentary, Torts: The Impact Rule—Nuisance or Necessity? 25 U.Fla.L.Rev. 368, Appendix (1973).

      . Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); D’Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974); D’Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Sup. 164, 326 A.2d 129 (Super.Ct.1973); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App., 6th Dist. 1978).

      . Commentary, Torts: The Impact Rule — Nuisance or Necessity? 25 U.Fla.L.Rev. 368 (1973) citing A. Pope, “An Essay on Criticism II,” in The Norton Anthology of English Literature 1440 (1962) (emphasis added).


text:
    Bruce Sidney THORNDIKE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1441.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant to apply to the trial court pursuant to Florida Rule of Criminal Procedure 3.850 to correct the written order entering judgment.

AFFIRMED.

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


text:
    Eddie Lee COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1365.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.

      James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

This appeal concerns the propriety of the trial court’s denial of a defense motion for mistrial based upon comments made in closing argument by the prosecution.

The defendant, Eddie Lee Coleman, was charged with robbery with a firearm. The only evidence at trial against the defendant was the testimony of and eyewitness identification by one Patricia Chavis, the victim of the robbery at a convenience store in Eustis. The defendant testified in regard to an alibi defense, but had no corroborating witnesses. In other words, it was a one-on-one factual dispute for jury resolution.

In the prosecutor’s comments during closing argument, he stated:

But let’s get back to Patricia Chavis’ description. Her description was good enough when it was sent over a BOLO for the Belle Glade Police Department to pick him up.

This statement was unsupported by any evidence. Moreover, it was untrue since Coleman had been arrested by a Belle Glade police officer for an unrelated offense. The defendant claims that the comment gave unwarranted support to the reliability of the victim’s identification, which was the key issue in the case. The court noted that there was no evidence at all presented as to why the defendant was picked up, and denied the motion, while entering a cautionary instruction stating that if there is a difference between the facts as remembered by the jury and those presented by counsel, the jury was to go by what they personally remembered.

It is the duty of the trial court to check improper remarks of counsel to the jury and by proper instructions remove any prejudicial effects such remarks may have created. Carlile v. State, 129 Fla. 860, 176 So. 862 (Fla.1937). Improper comments made by trial counsel warranting a mistrial must be so fundamentally tainted that neither an objection nor retraction could entirely destroy their sinister influence. Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 420 (Fla.1977). Here, a cautionary instruction was given, and presumably such a directive by the trial court would be sufficient to vitiate any harm the improper comment would have done. However, whether such improper comments constitute harmful error must be determined by consideration of their effect when viewed in context with other circumstances appearing in the record. McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982). In looking at the entire record, even in the presence of a rebuke to the comment, if an improper remark can still be said to be prejudicial to the right of the accused it must be considered as grounds for reversal. Pait v. State, 112 So.2d 380 (Fla.1959). The key question in determining proper review of an improper argument is whether or not the court can see from the record that the conduct of the prosecuting attorney did not prejudice the accused, and unless this conclusion be reached, the judgment should be reversed. McCall v. State, 120 Fla. 707,163 So. 38 (Fla.1935).

Here, the statement that the victim’s identification was good enough to allow the police to pick up the suspect cannot be said to be without prejudice to the defendant. Since the testimony of Chavis as to the identification of the robber was the sole evidence presented at trial, any additional credibility given to it is of great importance. When the key issue in the case is one of the victim’s ability to identify the defendant, the fact that her identification was sufficient to allow police in another town to pick up the defendant adds to her credibility in that if the description was that sufficient, she must have had a very good recollection of events, thereby bolstering any further identification she made. It cannot be said that the error was harmless in that the improper comment did not in any way contribute to the defendant’s conviction. Clearly, there was reasonable doubt presented on the issue of whether this statement contributed to the conviction; therefore, a reversal is required. See McMillian v. State; Glantz v. State, 343 So.2d 88 (Fla. 3d DCA 1977). The judge’s instruction telling the jury to disregard the statement of the prosecutor and to rely upon the testimony presented is of little help here, since there was no evidence presented as to why the defendant was arrested. Therefore, the only information presented to the jury on this issue was the improper comment by the prosecution.

REVERSED and REMANDED FOR NEW TRIAL.

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


text:
    John Arthur GIBSON, Dennis McKinley Simms and Johnnie B. Dixon, Appellants, v. STATE of Florida, Appellee.
    Nos. 81-1344, 81-1346 and 81-1586.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Jones v. State, 415 So.2d 852 (Fla. 5th DCA 1982); Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982); Selley v. State, 403 So.2d 427 (Fla. 5th DCA 1980).

ORFINGER, C. J., and DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.