author: DAUKSCH, Chief Judge.

text:
    TWELFTH ORLANDO CORPORATION, etc., Appellant, v. DEVELOPERS DIVERSIFIED, LTD., etc., Appellee.
    No. 80-1248.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 8, 1981.
    James R. Lavigne of Lavigne & Davis, P.A., Winter Park, for appellant.
    Philip W. Watson of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   DAUKSCH, Chief Judge.

AFFIRMED on the authority of Landers v. Milton, 370 So.2d 368 (Fla.1979).

COBB and SHARP, JJ., concur.


source: Caselaw Access Project

author: DOWNEY, Judge. HURLEY, Judge,

license: Public Domain

text:
    S. Michael GENET, Appellant, v. CITY OF HOLLYWOOD, a Municipal Corporation of Florida, Appellee.
    No. 80-488.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied July 30, 1981.
    Bruce S. Rogow, Fort Lauderdale, formerly of Josefsberg & Tarre, P. A., Miami, for appellant.
    Sherman Bennett Mayor, Hollywood, for appellee.
   DOWNEY, Judge.

This is an appeal from a judgment quieting title to a parcel of property in Broward County in favor of the City of Hollywood, Florida.

Appellant is the owner of a tract of land, improved with a hotel, which abuts a public street known as Atlantic Boulevard in the City of Hollywood, Florida. Atlantic Boulevard appears as a dedicated street on the Plat of Seminole Beach, a plat initially recorded in the public records of Broward County, Florida, in 1915.

The suit commenced when appellant filed his complaint to quiet title to a trapezoidal shaped piece of property which the City contends is a part of the right of way of Atlantic Boulevard. In its answer the City asserted two defenses: 1) the City owned the parcel in question by reason of the dedication contained in the amended Plat of Seminole Beach and acceptance of the dedication by use and maintenance, and 2) the City claimed a prescriptive easement as a result of the public adverse user for a period in excess of twenty years. The City also filed a counterclaim asserting that the disputed land is a public street and prayed that appellee be ejected therefrom.

The evidence showed that a plat of Seminole Beach was filed in 1915. The plat shows a street named Atlantic Boulevard running along the west boundary of the subdivision, which is also the east boundary of the property owned by appellee. Said street incorporates the trapezoidal parcel in question here. However, the uncontradict-ed proof at trial by Roger Staley, Esquire, a member of the Broward County Bar who was tendered as an expert in real estate law, was that the developer of the subdivision known as Seminole Beach did not own the title to the parcel in question and so the developer could not dedicate the parcel to the public. In addition, Mr. Staley testified that in his opinion title to said parcel was in appellant. The City sought to offset this proof by evidence showing either a prescriptive easement resulting from continuous public use of the beach area since the late 1920’s, or a presumed dedication under Section 95.361, Florida Statutes (1977), because of the City’s alleged maintenance of the property for the statutory period of time.

We would first dispose of the City’s contention that it owns the property by presumed dedication pursuant to Section 95.361, Florida Statutes (1977). The statute provides:

95.361 Roads presumed to be dedicated.—
(1) When a road, constructed by a county, a municipality, or the Division of Road Operations, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or Division of Road Operations, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether the road has been formally established as a public highway or not. The dedication shall vest all right, title, easement, and appurtenances in and to the road in:
(a)The county, if it is a county road;
(b) The municipality, if it is a municipal street, or road; or
(c) The state, if it is a road in the state highway system or state park system, whether there is a record of a conveyance, dedication, or appropriation to the public use or not.

The City adduced proof from a city employee that for a period of less than four years he would occasionally sweep the street, including the disputed area, and that he fixed potholes in Atlantic Boulevard. As Mr. Zinkil testified that under contract with the City a company had laid asphalt on the Boulevard, including the disputed area, though he could not tell exactly the dimensions of the area covered. No testimony at all was adduced relative to the construction of the road; yet in our opinion that element is vital to proof of a presumed dedication under this statute. In Downing v. Bird, 100 So.2d 57 (Fla.1958), the Supreme Court, in construing the predecessor of Section 95.-361, Florida Statutes (1977), pointed out that a municipality could acquire title to a road right of way by complying with subsection (2) by filing a map with the Clerk of the Circuit Court, etc., or:

The City could, without the filing of such a map, prove its construction and maintenance of the road, continuously and uninterruptedly, for the prescribed period. 100 So.2d at 61-62. (Emphasis supplied.)

The proof presented to show use and maintenance for a four year period was slim, but absent proof of construction of the road, the City can not prevail on this theory.

Adverting now to the appellee’s second contention, that the City owns the property by prescriptive easement resulting from continuous adverse use by the public, we hold that the proof adduced did not rise to the level required to prove adverse possession.

The rule in Florida is that the acquisition of another’s property based on possession or use is not favored and thus proof of such title by adverse possession must be clear and positive. Downing v. Bird, supra. The elements necessary to prove a prescriptive easement or adverse possession of the property in question are: 1) Continued, uninterrupted use of the property by the public for road purposes for a period of twenty years or more; 2) the use was adverse or under claim of right; 3) the parameters of the right of way, i. e., the width and length thereof. All of these elements “must be proved by clear and positive proof, and can not be established by loose, uncertain testimony which necessitates resort to mere conjecture.” 100 So.2d at 64.

We have closely scrutinized the City’s proof in support of its claim of title by adverse use and conclude that it lacks the quality which the cases say is necessary to defeat another’s title. As Downing, supra, points out “the use or possession is presumed to be in subordination of the title of the true owner, and with his permission and the burden is on the claimant to prove that the use or possession is adverse.” In addition, Downing teaches that there is no presumption that if adverse possession is once shown the possession continues to be adverse. Clear and definite proof that it remained so for the full period is necessary. There is proof in this case that there was public use over an extended period of time. However, proof of the adverse character thereof is wanting. The two primary witnesses for appellee, Zinkil and David, testified to the public use of the paved area on the property in question. Their testimony demonstrates a substantial use by members of the public, but there is little evidence that the use described was adverse to appellant’s ownership nor even inconsistent therewith, and none that such adverse use was consistent throughout the full prescriptive period.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to enter judgment for appellant quieting his title in and to the parcel of property in question.

REVERSED AND REMANDED with directions.

UPCHURCH, JOHN J., IV, Associate Judge, concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I concur with the majority’s holding that the proof below was inadequate to support a finding of prescriptive easement or dedication pursuant to Section 95.361, Florida Statutes (1977). Nonetheless, utilizing the maxim that we should uphold the trial court if its judgment is sustainable under any theory supported by the record, Savage v. State, 156 So.2d 566 (Fla. 1st DCA) cert. denied, 158 So.2d 518 (Fla.1963), I would affirm the judgment of the trial court subject to the qualification set forth below. I believe the trial record contains abundant evidence to support a finding of implied common law dedication. See Hollywood, Jnc. v. City of Hollywood, 321 So.2d 65 (Fla.1975); City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352 (1923).

From 1915 until the day this case was tried by 1979, it was generally thought that Atlantic Boulevard, the road which traverses the disputed property, was a dedicated public way. At trial, however, appellant produced an expert witness who testified that the original subdivider lacked title to the property which had been dedicated in 1915, and again in 1918, as a public road. Yet, it is undisputed that from 1915, the year in which the first plat was recorded, on through the next sixty-six years, the public regularly used Atlantic Boulevard to gain access to the beach and to the Atlantic Ocean. In fact, today Atlantic Boulevard is a paved roadway. Furthermore, the maps and pictures in evidence establish that appellant’s building, together with those of the adjoining landowners, is situated so as to demonstrate the existence of a roadway. All of this, in my view, supports the finding that appellant’s predecessors in title acquiesced in, and thereby impliedly agreed to, the original subdivider’s intent to dedicate the property for use as a public road. Accordingly, I would confirm appellant’s claim that, as the successor in interest to the original dedicator, he is the record title holder to the trapezoidal-shaped piece of property beneath the roadway. However, since the public’s past and present use of the road is consistent with the dedicator’s purpose, I would deny appellant’s claim that he is free to erect a structure which would cross the center-line of the road and impede access to the beach.

In his dissent in City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974), Justice Ervin suggested that the judiciary has a positive and solemn duty to protect the public’s rights to the enjoyment and use of prescriptive public coastal areas, navigable waters, tidelands and sovereignty lands. Clearly, this duty applies with equal force to established easements and dedicated ways which are essential to assure the public’s right of access to Florida’s beaches and recreational areas. But I respectfully suggest that our decision today fails to keep faith with the standard enunciated by Justice Ervin. As I see it, the majority opinion does not give due consideration and weight to the historically documented use of the property. Thus, the majority accedes to a private landowner’s effort to assert exclusive control over a roadway which has been in the public domain since the early years of this century. I respectfully dissent.

      . See 2 R. Boyer, Florida Real Estate Transactions, ch. 30 (1979); see also Note, Dedication: Rights Under Misuser and Alienation of Lands Dedicated For Specific Municipal Purposes, 7 U.Fla.L.Rev. 82 at 85 (1954).


author: RYDER, Judge.

text:
    Albert ANDREWS, Jr., Appellant, v. Ada Mae WALTON and the Florida Department of Health and Rehabilitative Services, Appellees.
    No. 80-2188.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    Rehearing Denied July 15, 1981.
    Stuart E. Soff and Dwight Wells of Florida Rural Legal Services, Inc., Winter Haven, for appellant.
    Charles L. Carlton of Carlton & Carlton, P.A., Lakeland, for appellees.
   RYDER, Judge.

Albert Andrews appeals the order finding him in contempt of court for failure to pay child support alleging that the contempt power may not be used to coerce payments assigned to the State under section 409.-2561(3), Florida Statutes (1979). We affirm.

The court entered a final judgment of paternity against appellant in 1978 directing him to pay child support of $18.00 weekly. The State later petitioned the court alleging that appellee Walton was receiving Aid to Families with Dependent Children, and the court entered an order that future payments be made through the clerk of the court. After a number of arrearage hearings, the court entered a show cause order alleging an arrearage of over $500.00. The notice gave a hearing date, told of the nature of the hearing, and advised appellant of possible admissible evidence and possible penalties, including incarceration.

At the hearing, the State established that appellee was receiving Aid to Families with Dependent Children and that support payments were overdue. Appellant, who did not retain counsel, testified that he was married, had three children and his wife was not working. The court sentenced appellant to thirty days in jail, postponing the sentence so appellant could use an upcoming paycheck to purge the contempt if he wished.

The only argument we address is the legality of incarcerating appellant to secure payment of an obligation which has been assigned to the State. Imprisonment for debt is prohibited by the Florida Constitution. Art. I; § 11, Fla.Const. Imprisonment for failure to obey a court order of child support payment is not imprisonment for debt. Ex parte J. G. H., 17 Fla. 362 (1879). See Spencer v. Spencer, 311 So.2d 822 (Fla. 3d DCA 1975). Appellant suggests that the assignment of support benefits to the State negates the “support” nature of the obligation so as to make it an ordinary debt unenforceable by contempt.

We note that the third district has addressed the issue herein raised, holding the assignment to the State negates the public necessity for enforcement by imprisonment. Chapman v. Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980). Indeed, as is suggested therein, debts not involving support may not be enforced by contempt powers, even if given effect in a final judgment of dissolution. State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (1941); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974); State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla. 2d DCA 1966). We do not think, however, that the present obligation is not grounded in support, as were the obligations in Mason, supra; Corbin, supra; and Phillips, supra. Nor do we think that the assignment required by section 409.2561(3), Florida Statutes (1979), changes the nature of the obligation. The action below is no different from any other support action. The custodial parent brought the action, and there is no dispute that the payments were not made. Section 409.2561(3), Florida Statutes (1979), appoints the Department of Health and Rehabilitative Services as attorney in fact of the recipient of state benefits to pursue enforcement of child support. That the State has an interest therein and actively prosecutes the action does nothing to change the support nature of the obligation owed by appellant to appellee.

The judgment below is affirmed.

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


author: SCHEB, Chief Judge.

text:
    Victor Lee GOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-39.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    Rehearing Denied July 14, 1981.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellant challenges the trial court’s imposition of restitution as a condition of his probation.

Appellant, Victor Lee Goodson, entered a negotiated plea of nolo contendere to a charge of trafficking in stolen property. The plea bargain called for dismissal of a pending charge of grand theft and provided that Goodson be placed on probation for two years with a stipulation that he serve six months incarceration in a work release program. The trial court accepted Good-son’s plea on the basis outlined. The court, however, added a requirement that Goodson make restitution of $62.50 to his victim. Neither Goodson nor his counsel objected.

Goodson now appeals, citing Fresneda v. State, 347 So.2d 1021 (Fla.1977), for the proposition that a trial court must furnish a defendant prior notice before imposing restitution as a condition of probation. We disagree.

In Fresneda the supreme court held that the trial court was not authorized to impose as a condition of probation a requirement that the defendant pay money to the victim of his crime in excess of the amount of damage the defendant caused to the victim. The court added that “. . . the trial judge should give the defendant notice of the proposed restitution order and allow the defendant the opportunity to be heard as to the amount of damages or loss caused by his offense.” Id. at 1022.

We do not read Fresneda as holding that prior notice is the only acceptable way to protect the defendant’s right to a meaningful opportunity to be heard. Prior notice to the defendant is one acceptable method, but to make it the only approved method could have the effect of diminishing the likelihood that a trial judge may be persuaded at the sentencing hearing to place a defendant on probation with the condition that he make restitution.

The important objective of notice is to afford a defendant a meaningful opportunity to be heard before being required to pay money to the victim of his offense. In many cases a defendant will have no objection to restitution being imposed as one of the conditions of his probation. In these instances the court’s failure to provide notice should not make the order of restitution subject to reversal. Where, however, a defendant has not been furnished prior notice, and he objects to the court requiring restitution as a condition of his probation, he must be given an opportunity to be heard. This, of course, carries with it a requirement that the defendant be given a reasonable time to prepare.

Accordingly, we hold that a trial judge may notify the defendant prior to the sentencing hearing that restitution is a possibility. If he does so, and affords the defendant an opportunity to be heard, this would be sufficient compliance with the requirements of Fresneda. If, on the other hand, a trial judge does not furnish the defendant notice prior to the sentencing hearing and the defendant objects or otherwise contests the order of restitution, the trial judge must suspend the hearing for a reasonable time and allow the defendant to be heard on issues relevant to restitution.

In this case, Goodson was not denied an opportunity to be heard. Rather, he chose to silently accept the court’s resolution of the questions concerning the amount of restitution and his ability to pay that amount. Under these circumstances, the trial court’s order of restitution will not be reversed merely because the trial court did not furnish advance notice that restitution may be imposed as a condition of probation.

To the extent that our decision may be inconsistent with statements made in Stokes v. State, 377 So.2d 766 (Fla. 2d DCA 1979); Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1979); DiOrio v. State, 359 So.2d 45 (Fla. 2d DCA 1978); Latti v. State, 364 So.2d 828 (Fla. 2d DCA 1978), we recede from such statements.

Accordingly, we affirm the order placing the appellant on probation with the special condition that he make restitution.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    Joseph BOWMAN, Appellant, v. FOOD FAIR STORES; the Hartford Insurance Group, Appellees.
    No. VV-337.
    District Court of Appeal of Florida, First District.
    June 16, 1981.
    Rehearing Denied July 11, 1981.

      Barry M. Salzman of Chambers & Salzman, P. A., St. Petersburg, for appellant.
    Kurt Preston Hampp of Jacobs, Robbins & Gaynor, P. A., St. Petersburg, for appel-lees.
   PER CURIAM.

This is an appeal from a workers’ compensation order denying claimant’s petition for modification as being barred by the statute of limitations pursuant to § 440.28, Florida Statutes. The order also dismissed a claim for permanent total disability compensation filed within two years of the last payment of compensation without an award. We agree that the petition for modification was untimely. However, we must reverse the order dismissing the claim for permanent total disability.

The claimant injured his back on two separate occasions: August 7, 1970, and October 2, 1972. At the time of the 1970 injury, Hartford Insurance Company represented the employer, but at the time of the 1972 injury, the employer was self-insured. In his order of March 11, 1974, the judge of industrial claims found that the claimant had reached maximum medical improvement from the 1970 accident on January 8, 1974, with a 20% diminution of earning capacity. Hartford had paid on a 15% permanent impairment rating, and proceeded to pay an additional 17.5 weeks of compensation as ordered, completing payments in 1974.

On January 29,1979, a shotgun claim was filed, and on February 12, 1979, Hartford reinstated temporary total disability compensation from December 14, 1978. On March 22, 1979, Hartford voluntarily commenced paying permanent disability compensation for 35 weeks. Meanwhile, claimant’s original lawyer died, and substitute counsel filed a petition for modification dated October 16, 1979, .alleging a change of condition. Counsel also filed an application for hearing on the January 29, 1979 claim. The carrier filed a motion to dismiss. Hearings were held on February 27, 1980 and April 29, 1980, and at the second hearing the parties conceded that the January 29 claim was prematurely filed and that the employee would be deemed to have orally renewed his claim as of April 29, 1980. The carrier waived its 21-day investigation period since it was not inclined to voluntarily accept the additional benefits being claimed. On May 13,1980, the deputy commissioner entered an order denying the claimant’s petition for modification and dismissing the claim.

The April 29, 1980 renewed claim and the October 16, 1979 petition for modification were filed more than two years after the payment of benefits pursuant to the 1974 compensation order. We agree with the deputy that § 440.28 (1969) clearly prevents filing a petition for modification more than two years after payment pursuant to a compensation order, and does not allow renewal of the limitation period by a voluntary carrier payment after that two-year period.

A claimant’s right to compensation is fixed at the time of his injury. Since the claimant was injured in 1970 and 1972, the provisions of the 1969 and 1971 Workers’ Compensation Act are applicable to this case. The applicable limitation on filing initial claims for compensation without an award is governed by § 440.19(l)(a), Florida Statutes (1969), effective until 1979, which read as follows:

(l)(a) The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within two (2) years after the time of injury, except that if payment of compensation has been made or remedial treatment has been furnished by the employer without an award on account of such injury a claim may be filed within two (2) years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer.

The April 29, 1980 claim was filed within two years after the last payment of compensation without an award, and the claimant argues that this claim for permanent total disability compensation therefore meets the requirements of § 440.19(l)(a), Florida Statutes (1969). We agree.

We conclude that the voluntary reinstatement of temporary total disability compensation on February 12, 1979, was not pursuant to the March 7, 1974 compensation order. The statute clearly indicates that where payment of compensation or remedial treatment has been furnished by the employer without an award, a claim may be filed within two years after the date of the last payment of such compensation or after the date of the last remedial treatment furnished by the employer. The claim is not limited to remedial attention and medical services. We therefore conclude that it was error to dismiss the claim.

The order is reversed and the cause is remanded for further proceedings on the employee’s claim. See also Johnson v. Division of Forestry, 397 So.2d 761 (Fla. 1st DCA 1981).

SHIVERS, SHAW and THOMPSON, JJ., concur.


author: COWART, Judge.

text:
    Harley MATHIS, Personal Representative of the Estate of Johnnie Baker Mathis, Deceased, Appellant, v. Hugh O’REILLY and Canal Insurance Company, Appellees.
    No. 80-1208.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    Rehearing Denied July 11, 1981.

      Joseph H. Williams of Troutman, Parrish & Williams, P. A:, Winter Park, for appellant.
    H. Terrell Griffin of Lawrence, Griffin & Dick, Orlando, for appellees.
   COWART, Judge.

In the trial of a vehicle accident negligence action, the plaintiff’s expert witness in traffic accident analysis gave his opinion that the pre-impact speed of the defendant’s vehicle was substantially in excess of the lawful speed. During the defendant’s case the defendant’s accident reconstruction expert expressed an opinion that the speed of the defendant’s truck before the accident was just under the lawful speed limit. On rebuttal, plaintiff recalled his expert witness and asked him how the defendant’s expert witness’ computations differed from the computations upon which his (plaintiff’s witness) opinion was based. The trial court sustained the defendant’s objection to the question, the jury returned a verdict for the defendant and the plaintiff appeals. We reverse.

Plaintiff’s witness in this case was not asked to express an opinion as to the validity of the opinion expressed by defendant’s expert witness, as was held improper in Carlton v. Bielling, 146 So.2d 915 (Fla. 1st DCA 1962). Plaintiff’s question in this case was couched to cause the plaintiff’s expert to delineate the facts, factors, formulae and rationale used in the analysis leading to the defendant’s witness’ opinion and to do the same as to his own opinion and then to compare the predicates upon which the two opinions were based. The result of such a comparison may show that defendant’s witness failed to consider all proper factors, or considered improper factors, or erred in the weight or effect attributed to certain factors, in the selection or use of formulas or in actual calculations or in other reasoning processes and thus might tend to impeach defendant’s witness, as in Hartstone Concrete Products Company, Inc. v. Ivancevich, 200 So.2d 234 (Fla. 2d DCA 1967), and King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA 1980). However, we feel the real value of such a question and answer is in giving the jury a better insight into the bases supporting the two differing opinions so that the jury can better evaluate and weigh the testimony of the witnesses by understanding and comparing how, why and in what particulars, the two expert witnesses reached different conclusions. Additionally, if properly based on evidence, plaintiff’s expert should also have been permitted to express an opinion as to the braking force of defendant’s truck. As this testimony could have been decisive in this case, we cannot say the error in excluding it was harmless, therefore the judgment for the defendant is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

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


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

text:
    Keith W. HIGHSMITH, Appellant, v. STATE of Florida, Appellee.
    No. 79-277, 80-250.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    Hal P. Dekle, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

REVERSED and REMANDED for new trial on the authority of Tascano v. State, 393 So.2d 540 (Fla.1981).

COBB and COWART, JJ., concur.


text:
    Joe Henry SKIPPER, Appellant, v. STATE of Florida, Appellee.
    No. SS-346.
    District Court of Appeal of Florida, First District.
    June 17, 1981.
    Rehearing Denied July 31, 1981.
    Lacy Mahon, Jr., and Harry B. Mahon, of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Doris Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We affirm appellant’s conviction of the offense of armed robbery. We find no basis for appellant’s contention that the trial court erred in failing to grant appellant’s motion for a court ordered line-up prior to commencement of the trial. Further, appellant’s contention that the trial court erred in failing to instruct the jury on penalties, Tascano v. State, 393 So.2d 540 (Fla.1980), was not preserved for appellate review. Although the supplemental record establishes trial counsel’s request for and denial of penalty instructions by the court, the record contains no objection in accordance with Rule 3.390(d), Florida Rules of Criminal Procedure. Accordingly, reversible error is not presented. Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981), Davenport v. State, 396 So.2d 232 (Fla. 1st DCA 1981).

Appellant also contends that the court erred in denying his challenge of a juror for cause. On voir dire, the juror stated that he was attending school preparatory to going into work as a law enforcement officer, and was at the time a reserve police officer for Fernandina Beach. In response to questioning, he responded truthfully that since he was going into law enforcement work, although he didn’t believe that this would prejudice him as a juror, he honestly didn’t know whether it would or not. However, he further stated, in answer to questions by the court, that he would not be more or less inclined to believe a person simply because he was a police officer; that he believed a police officer could be mistaken about what he sees; that there are circumstances under which even a police officer might bend the truth; and that he could gauge the testimony of each witness, law enforcement officer or not, just as any other witness, and'be guided by the instructions of the court. We conclude, viewing the questions and answers in their entirety, that the juror’s admission of a mere “possibility” of some prejudice in favor of law enforcement reveals nothing more than an inclination toward law enforcement work and upholding of the law. In our view the trial judge, who observed the manner and demeanor of the juror, and heard his statements, could properly have determined that no disqualification of the juror was shown. Section 913.03, Florida Statutes. Appellant has a heavy burden of showing an abuse of discretion. Williams v. State, 386 So.2d 538 (Fla.1980); compare Leon v. State, 396 So.2d 203 (Fla. 3rd DCA 1981). Furthermore, appellant failed to state the ground for challenge as required by Rule 3.320, Florida Rules of Criminal Procedure. Accordingly, we find no reversible error on this point.

Both appellant and appellee agree, however, that it was error for the trial court, in sentencing appellant for armed robbery, to enhance the penalty under the provisions of Section 775.087, Florida Statutes, for the use of a firearm. Section 775.087 does not apply to an offense which already provides an enhanced penalty for the use of a firearm, as does armed robbery under Section 812.13(2)(a), Florida Statutes (1979). Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978); Knight v. State, 374 So.2d 1065 (Fla. 3rd DCA 1979).

The judgment of conviction is affirmed, with directions to the trial court that the sentence imposed be corrected in accordance with this opinion.

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


author: HOBSON, Acting Chief Judge.

text:
    Julius LIGON, Jr., Appellant, v. Janice A. LIGON, Appellee.
    No. 80-188.
    District Court of Appeal of Florida, Second District.
    June 17, 1981.
    Rehearing Denied July 15, 1981.

      Herman B. Blumenthal, III, Seminole, for appellant.
    Wayne 0. Smith of Wallace & Smith, P. A., St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

The trial court, in a dissolution of marriage action, entered an amended supplemental order awarding appellee wife, among other things, custody of the parties’ minor child and the exclusive possession of the marital home. At the time of the sale of the home, the net proceeds were to be equally divided between the parties. The court further ordered appellant husband to pay all mortgage payments, insurance, and repairs on the home in excess of $100.

Appellant argues that the trial court erred in requiring him to pay all mortgage payments, insurance, and repairs, while awarding him only one-half of the net proceeds from the sale of the home. We agree and reverse that portion of the amended supplemental order which required the net proceeds to be equally divided between the parties.

Appellant, upon the sale of the home, is entitled to credit for one-half of the amount by which the unpaid mortgage principal has been reduced. This amount is to be computed from the time of appellant’s first mortgage payment under the order until the date of sale. Appellant is also entitled to credit for oñe-half of all payments which he makes for repairs to the marital home, if any.

Appellant’s other points are without merit. The remainder of the amended supplemental order is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

RYDER and DANAHY, JJ., concur.


text:
    William M. NEILSON, a minor, Kim L. Neilson, a minor, Robert F. Neilson, a minor, by and through their father and next friend, William E. Neilson, and William E. Neilson, individually, and Patricia P. Neilson, Appellants, v. CITY OF TAMPA, a municipal corporation; Harvey Daniel Glisson; Belcher Oil Company, a Florida corporation; Home Insurance Company, a New York corporation; Department of Transportation, an agency of the State of Florida; and Hillsborough County, a political subdivision of the State of Florida, Appellees.
    Nos. 79-1510, 80-357.
    District Court of Appeal of Florida, Second District.
    June 19, 1981.
    Rehearing Denied July 15, 1981.

      Simons & Schlesinger, P.A., Fort Lauder-dale and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellants.
    Robert H. Bonanno, Asst. City Atty., Tampa, for appellee City of Tampa.
    Alan E. DeSerio, Ella Jane P. Davis; H. Reynolds Sampson and Jay 0. Barber, Tallahassee, for appellee Department of Transportation.
    Joseph W. Clark, Raymond T. Elligett, Jr. and Charles P. Schropp of Shackleford, Far-rior, Stallings & Evans, P.A., Tampa, for appellee Hillsborough County.
   RYDER, Judge.

The Neilsons appeal from the dismissal of their personal injury complaint against the City of Tampa, Hillsborough County and the Department of Transportation. Appellants allege that the lower court erred in finding the governmental defendants immune from suit in light of the supreme court’s opinion in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). We agree that defendants are not immune and we reverse.

Appellants’ complaint alleged injuries resulting from a vehicular collision. Those counts directed against the governmental defendants alleged that the intersection where the collision occurred was defectively designed, not adequately controlled with traffic control signs, and hazardous to approaching motorists. Appellants alleged that the three governmental entities designed, maintained and constructed the intersection and failed to conform with the State Uniform Traffic Control Ordinances and Regulations.

After dismissal of the complaints, this court remanded for reconsideration in light of the subsequent case of Commercial Carrier, supra. Neilson v. Department of Transportation, 376 So.2d 296 (Fla.2d DCA 1979). The circuit court again dismissed the complaints.

The Florida Supreme Court in Commercial Carrier adopted a test distinguishing between “planning” and “operational” levels of decision making by governmental agencies. Planning decisions remain immune from tort liability because “certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.”

We hold that the negligence alleged below falls under the operational level of decision making. As this court noted in Collum v. City of St. Petersburg, 400 So.2d 507, at 508-(Fla.2d DCA 1981), “once a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.” Below, once the planning decision was made to intersect the roads, the governmental entities could not negligently design or construct the facility with impunity. Appel-lees’ conceded discretion in planning to build a road does not extend to the actual drawing of the plans and specifications. To hold otherwise would produce a result

so that even though the finished project might be inherently dangerous . .. (ap-pellees) could not be liable, because . . . (they) “planned” the system that way. The fact of the matter is that a blueprint is not a plan in the sense of the “planning” that is discretionary, and once the “planning” has been done, the plans that are then prepared can indeed give rise to liability. Collum, supra, at 509.

The orders of dismissal are REVERSED and the case REMANDED for further proceedings.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


text:
    Thomas G. GRICE and Lilia Grice, Personal Representative of the Estate of Debbie Diane Grice, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, Florida, Appellee.
    No. XX-156.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Rehearing Denied July 31, 1981.
    Wilmer H. Mitchell of Wilmer H. Mitchell, P. A., Pensacola, for appellants.
    Dominic M. Caparello of Messer, Rhodes, Vickers & Hart, Tallahassee, for appellee.
   ON MOTION TO DISMISS APPELLANTS’ NOTICE OF INTERLOCUTORY APPEAL AS BEING UNTIMELY FILED

PER CURIAM.

Having considered Appellee’s Motion to Dismiss Appellants’ Notice of Interlocutory Appeal as Being Untimely Filed and the responses thereto, the Court orders that the motion is denied. The Court finds that the July 1, 1980, order granting Appellee’s motion to dismiss and dismissing Appellants’ complaint for improper venue was a final order. See Schwertfeger v. Constant, 109 So.2d 173 (Fla. 2nd DCA 1959). Therefore, Appellants’ motion for rehearing and motion for relief from judgment tolled the time within which an appeal could be taken. Thus, Appellants’ notice was timely since it was filed within the appropriate time following the July 30, 1980, order disposing of Appellants’ motion for rehearing and motion for relief from judgment. Appellants’ Notice of Interlocutory Appeal shall be treated as a Notice of Appeal.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Frank MARRERO and Rosa Marrero, Appellants, v. Jose Edward CAVERO and Laura Cavero, Appellees.
    Nos. 81-226, 81-227.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Rehearing Denied July 28, 1981.
    Stephen L. Raskin, Miami, for appellants.
    John H. Duhig, Miami, for appellees.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Defendants’ entitlement to an attorney’s fee based on a contract in evidence was not defeated by failure to plead for same as they presented the issue before the trial court by timely motion made after judgment for the defendants — although it would have been better practice for the defendants to have pled for said attorney’s fees in their answer. Miami Lincoln Mercury, Inc. v. Kramer, 399 So.2d 1003 (Fla. 3d DCA 1981). See, e. g., Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980).

Affirmed.


text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO of the State of Florida, Appellant, v. PALACE BAR & LOUNGE, INC., a Florida Corporation, Appellee.
    No. 81-421.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Rehearing Denied July 28, 1981.
    Dennis E. LaRosa, Tallahassee, for appellant.
    Cohen, Angel & Rogovin and Terrance S. Schwartz and Lawrence H. Rogovin, North Miami, for appellee.

      Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The temporary injunction here under review be and the same is hereby reversed on the authority of Department of Business Regulation, Division of Alcoholic Beverages & Tobacco v. N.K. Inc., 399 So.2d 416 (Fla. 3d DCA 1981); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla.3d DCA 1981).

Reversed.


text:
    Donald N. SMITH, Appellant, v. Beverly A. SMITH, Appellee.
    No. 80-2368.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Roger A. Bridges, Coral Gables, Sams, Gerstein & Ward, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

No abuse of discretion has been demonstrated in the trial court’s award of $75,000 in attorney’s fees for the representation of the wife in the cause we considered in Smith v. Smith, 378 So.2d 11 (Fla.3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980). Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Posner v. Posner, 315 So.2d 175 (Fla.1975); Meltzer v. Meltzer, 400 So.2d 32 (Fla.3d DCA 1981); Adams v. Adams, 376 So.2d 1204 (Fla.3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980); Snider v. Snider, 375 So.2d 591 (Fla.3d DCA 1979), appeal dismissed, 385 So.2d 760 (Fla.1980).

Affirmed.


author: HURLEY, Judge.

text:
    TRANSAMERICAN PROPERTIES, INC., Appellant, v. CITY OF RIVIERA BEACH, Appellee.
    No. 80-24.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied July 31, 1981.

      Kenneth J. Scherer of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for appellant.
    Charles W. Musgrove, West Palm Beach, and Allan V. Everard, Riviera Beach, for appellee.
   HURLEY, Judge.

Plaintiff/appellant brings this appeal from a final order dismissing its complaint for equitable relief against the City of Riviera Beach. The trial court construed plaintiff’s amended complaint to be a direct attack upon the city’s denial of a petition for zoning variance and, therefore, held that plaintiff’s exclusive remedy was a petition for certiorari. See Centex Homes Corp. v. Metropolitan Dade County, 318 So.2d 149 (Fla.3d DCA 1975). Since plaintiff failed to file a timely petition for certiorari, the trial court dismissed the instant complaint.

Given the history of this case and the fact it was initiated only after plaintiff failed to obtain a variance, we have little difficulty in agreeing with the trial court’s assessment of plaintiff’s motivation. Nonetheless, when evaluating a motion to dismiss the court must limit its gaze to the four corners of the complaint. Poulos v. Vordermeier, 327 So.2d 245 (Fla.4th DCA 1976). Applying that rule to the allegations set forth in plaintiff’s amended complaint, we find that they constitute a general challenge to the validity of a zoning ordinance as it pertains to plaintiff’s property. Therefore, plaintiff is not limited to the certiorari route, but may proceed with a complaint for equitable relief. Thompson v. City of Miami, 167 So.2d 841 (Fla.1964); Bama Investors, Inc. v. Metropolitan Dade County, 349 So.2d 207 (Fla.3d DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978). Accordingly, we hold that it was error to dismiss plaintiff’s amended complaint; the order of dismissal is reversed and the cause is remanded for further proceedings.

LETTS, C. J., and MOORE, J., concur.


author: FERGUSON, Judge.

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, etc., Appellant, v. Lewis H. KAMINESTER, M. D., P. A., a Florida Corporation, Appellee.
    No. 80-1382.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellant.
    Robinson & Greenberg and Daniel K. Bandklayder and Barry N. Greenberg, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Southern Bell Telephone and Telegraph Company appeals from a jury determination of damages finding it liable to appellee, Lewis H. Kaminester, M.D., P.A., a Florida corporation, in the amount of $92,929.00 for a breach of contract in incorrectly listing the doctor’s address in the 1977 Greater West Palm Beach Yellow Pages and in the 1977 Hobe Sound-Jupiter Yellow Pages. We reverse.

Appellee, Lewis H. Kaminester, M.D., P.A., is a Florida corporation licensed to practice medicine in Florida. Dr. Kamines-ter, a dermatologist, is the principle employee and sole officer of the corporation. At the trial on damages, the appellee-corporation relied on the testimony of Dr. Kami-nester and the corporation’s accountant to establish loss of net profits. This testimony was based on information contained in patient interview sheets which each new patient was asked to fill out during his first office visit. The first sheet includes the question as to who the new patient was “referred by” and the second sheet provides space for the doctor’s diagnosis and description of treatment. The patient interview sheets indicated directory referrals as follows:

Year of Directory Number of Patients Referred
1976 165
1977 29
1978 182

The accountant subtracted 29 from the mean of the 1976 and 1978 referrals to arrive at the number of 144 patients who should have been referred by the directories if the listings had been correct. Based on the medical information on the 165 referred-patient interview sheets of 1976, the patients were divided into seven disease categories. The calculated 144 lost patients were then assigned the same percentage of disease categories as the 1976 referrals. Lost profits were determined on the projected treatments and length of treatment for the number of “lost” patients assigned to each disease category. “Lost” acne patients, for example, were projected to seek treatment every three weeks for three to five years, “lost” psoriasis patients to seek treatment for three to four years, and “lost” skin cancer patients would have to return “somewhat.”’ The accountant projected a loss of gross fees of $100,230.00 due to the directory error. He subtracted eight percent for lab fees, office and medical supplies to reach a net figure of $92,-212.00. Expenses of $717.00 for advertising expenses in 1977 were then added for a projected loss of net profits of $92,929.00.

As its first issue on appeal, Southern Bell claims that the trial court abused its discretion in admitting the original patient interview sheets into evidence after precluding defendant from discovering the exhibits pri- or to trial.

We find applicable to the case the statement of the court in International Telephone and Telegraph Corporation v. United Telephone Company of Florida, 60 F.R.D. 177, 186 (M.D.Fla.1973) that:

[T]he failure of a party to allow pretrial discovery of confidential matters which that party intends to introduce at trial will preclude the introduction of that evidence.

See, e. g., Baekos v. United States, 82 F.R.D. 743, 745 (E.D.Mich.S.D.1979); Duffy v. Currier, 291 F.Supp. 810, 815 (D.Minn. 1968); A & M Records, Inc. v. Heilman, 75 Cal.App.3d 554, 142 Cal.Rptr. 390, 397-398 (1977).

In July of 1978, Southern Bell requested that the appellee corporation produce “any and all patient interview sheets from July 1975 to the present.” Appellee subsequently moved for a protective order asserting that the sheets contained confidential and privileged medical information. The order was granted by the court. Although Southern Bell was later permitted to copy the names, numbers and addresses of those referred by the directories, Southern Bell was not permitted, despite requests, to see a copy of the patient interview sheets containing the medical information until the evening after the first day of trial on May 7, 1980. The trial judge had rejected all earlier attempts of Southern Bell to discover the medical information and, in addition, had ruled during pretrial discovery that the patient interview sheets containing the medical information would not be admitted into evidence. The trial judge stated:

The point is, what you did was choose to protect the privilege of the patient when it suited your purpose and to ignore it when it did not suit your purpose, and to the extent that you did so, that is fine, except I am now not going to let you saddle the other side with the burden of not having been able to inquire on the basis of it.

At trial, however, the trial judge reversed himself so that the court would not, in his words, end up “with a totally inaccurate set of figures.” The court then stated that if Southern Bell desired to view the sheets it could do so that evening. After viewing the patient interview sheets, Southern Bell’s expert informed the court the next morning that at least one week would be required to examine the four thousand to five thousand patient interview sheets.

Though we agree with the appellee-cor-poration that the calculation of damages by percentage breakdown of patients by category of treatment came as no surprise to Southern Bell and the sheets can not be withheld from evidence solely on that basis, we agree with Southern Bell that denying it inspection of the patient interview sheets until after the first day of trial did not allow Southern Bell sufficient time to defend against the reliability of the patient interview sheets. That there exists a real question of reliability in the calculation of damages based on the referral and medical information contained in the sheets is demonstrated by the fact that appellee-corporation projects a $100,230.00 loss of gross profits and a $92,924.00 loss of net profits from a loss of 144 referrals. At the same time, using the 1978 figures — prepared admittedly in anticipation of litigation — ap-pellee-corporation shows an actual combined increase for both the appellee and Dr. Kaminester of only $17,713.00 in net profits from an increase of 153 referrals. Even assuming that all of the increase was due to patients referred by the directories, the figures raise questions of reliability. Southern Bell was unable to check the medical information which was the basis of the damage claim in order to verify or to prepare challenges to the projected disease categories, treatments, projections of treatment duration, or the assumption that the “lost” patients would remain with Dr. Kaminester for the projected durations. We hold that the trial court abused its discretion in admitting the patient interview sheets containing the medical information into evidence. See, e. g., Rommell v. Firestone Tire & Rubber Co., 394 So.2d 572 (Fla. 5th DCA 1981).

As part of its second point on appeal, Southern Bell argues that the trial court erred in denying its motion for directed verdict and new trial because the corporation failed to deduct the compensation it paid to Dr. Kaminester in computing net profits rendering its proof of lost profits inadequate.

In proving damages caused by lost net profits, see Augustine v. Southern Bell Telephone & Telegraph Co., 91 So.2d 320 (Fla.1956); E. T. Legg & Associates, Ltd. v. Shamrock Auto Rentals, Inc., 386 So.2d 1273 (Fla.3d DCA 1980), pet. for rev. denied, 392 So.2d 1379 (Fla.1981); Petrulli v. Approved Dry Wall Construction, Inc., 284 So.2d 27 (Fla.3d DCA 1973), cert. denied, 292 So.2d 18 (Fla.1974), a corporation, in arriving at the net loss, must deduct the expense of salaries paid to its officers, see e. g., Innkeepers International Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 106 (Fla.1976).

We do not find, as appellee argues, that there was sufficient evidence to support a jury’s necessarily finding either that Dr. Kaminester’s compensation would not have increased due to additional patients, or that Dr. Kaminester’s compensation was not an expense item attributable to treatment of the additional patients. Appellee’s accountant testified that payroll, depreciation, dues and subscriptions, advertising, payroll tapes, and retirement plan expenses would be expenses incurred by the professional association. Though these expenses, many of direct benefit to Dr. Kaminester, would have to be considered in computing net profits, the accountant also testified that he only deducted as expenses laboratory fees and office and medical supplies. We also reject appellee’s argument that when the corporation is a professional association whose officer is a physician, an exception should be made to the general rule that a showing of loss of net profits requires a corporation to deduct the compensation paid to its officer. Cf. Partridge v. Norair Engineering Corp., 301 F.2d 247 (D.C.Cir.1962) (cost of partner’s services must be included in computing net profits). A practitioner who incorporates should not be allowed to enjoy the benefits of the corporate form, then, because it would be economically advantageous to the practitioner in a suit brought by the corporation seeking damages, be free to disregard that corporate form. We hold that the failure to deduct the compensation of Dr. Kaminester in the computation of net profits, rendered the proof of damages inadequate as a matter of law, and that the court erred in not granting Southern Bell’s motion for a new trial.

Because we find these issues dispositive, we do not consider Southern Bell’s other points on appeal.

Reversed and remanded for proceedings consistent with this opinion.

      . The doctor’s address was listed as 201 Bermuda Lane, Palm Beach instead of his actual address of 860 U. S. Highway Number One, North Palm Beach. The doctor’s name, specialty, and telephone number were correctly listed in both directories.

      . The following monetary figures represent sums generated by all of the patients treated during the given year, not just those referred by the directories:
      Directory Compensation paid Year Dr. Kaminester Net Profits for Corp. Patients Referred
      1976 $ 90,748 $ 3,833 165
      1977 146,000 3,349 29
      1978 151,888 15,774 182


author: VANN, HAROLD R., Associate Judge.

text:
    BRUCE INVESTMENT CORPORATION, a Maryland Corporation, Appellant, v. E. Randall BEIDER and Hortensia Smith, Appellees.
    No. 80-1554.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    William A. Ingraham, Jr., and Bertram A. Sapurstein, Miami, for appellant.
    Arthur L. Neibrief, Michael Blumenthal, Myers, Kaplan, Levinson, Kenin & Richards and John P. Horan, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, HAROLD R., Associate Judge.

Final judgment entered in favor of Smith on her cross-claim against Bruce is reversed. We find that the trial court improperly excluded evidence on the issue of whether Bruce and Smith had reached a settlement agreement. In all other respects, the final judgment is affirmed.

On April 14, 1978, Beider and Bruce entered into a real estate contract wherein Beider was to purchase a condominium unit from Bruce. Smith was the real estate broker representing the seller. Beider placed a deposit of $8,500.00 into Smith’s escrow account. When the deal did not close, Beider sued both Smith and Bruce to get back his deposit. Beider claimed that Bruce breached the contract by failing to show evidence of good title within the time period specified in the contract. Smith answered and filed a cross-claim and counterclaim contending, respectively, that if Bruce breached the contract Smith was entitled to the full broker’s commission ($5,100.00) and if Beider breached the contract, Smith was entitled to retain half the deposit.

Shortly after her cross-claim was filed, Smith entered into settlement negotiations with Sam Sardinia, Bruce’s president. Smith agreed to dismiss her cross-claim against Bruce if Bruce signed another contract to sell the condominium to another buyer procured by Smith and to pay Smith an attorney’s fee of $500.00. A joint stipulation encompassing the settlement agreement was signed by the attorneys for Smith and Bruce. On March 26, 1979, Judge Wetherington denied Bruce’s motion to enforce the stipulation after hearing argument that the stipulation had not been properly executed by all parties prior to the withdrawal by Smith of her settlement “offer.” Subsequently, Judge Wetherington disqualified himself and the cause was assigned to Judge Simons. At pre-trial conference, Judge Simons ruled that the order denying Bruce’s motion to enforce stipulation was the law of the case. Judge Simons determined that he would not enforce the “settlement stipulation” and precluded Bruce from presenting evidence at trial concerning the existence of any settlement agreement between Bruce and Smith. On June 14, 1980, Judge Simons entered final judgment in favor of Beider on his complaint for the return of deposit. Also, the court found in favor of Smith on her cross-claim against Bruce. From that final judgment, Bruce has appealed to this court.

We hold that evidence concerning the existence of a settlement agreement between Bruce and Smith should have been admissible at trial. We rule that the settlement agreement would be enforceable as to the cross-claim filed by Smith against Bruce. This is so, quite simply, because the stipulation was executed by attorneys for Bruce and Smith. The fact that Beider or his attorney did not sign the stipulation would not compel a different result. Here, Beider was not a party to the settlement negotiations between Bruce and Smith. Thus, any settlement would be enforceable against Bruce and Smith even though Beider did not sign the stipulation. Cf., Alaimo v. Tirone, 297 So.2d 584 (Fla. 3d DCA 1974). Where representations of counsel indicate a dispute as to whether a binding settlement has been reached, both parties should be given a full and fair opportunity to prove their version of the proposed settlement. The trial court’s failure to permit Bruce to prove the existence of a settlement agreement, properly framed by the pleadings, was error and should be reversed.

The final judgment in favor of Smith on her cross-claim against Bruce is reversed and remanded. In all other respects, the final judgment is affirmed.

      . That sale subsequently fell through.

      . Bruce pled that settlement agreement as an affirmative defense to Smith’s cross-claim. In her reply to Smith’s affirmative defenses, Smith alleged that the settlement offer was withdrawn before it was accepted and was unenforceable due to a failure of consideration.

      . At the hearing on Bruce’s motion to enforce stipulation, no evidence was presented as to the agreement between Bruce and Smith. Judge Wetherington merely heard argument and summarily denied the motion.

      . At trial, Bruce proffered the sworn depositions of Smith and Sam Sardinia concerning the existence of settlement agreement between Smith and Bruce. Smith’s deposition confirmed that Smith had proposed the settlement to Sardinia who accepted same on behalf of Bruce.

      . Judge Simons heard the cause non-jury.

      . See Fla.R.Civ.P. 1.030(d), repealed effective July 1, 1979, which provides in pertinent part as follows:
      “(d) STIPULATIONS. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged


author: HENDRY, Judge.

text:
    Arbutus L. BUSKIRK, Appellant, v. SUDDATH OF SOUTH FLORIDA, INC., a Florida corporation, New York Central Mutual Fire Insurance Company, a foreign corporation, Globe Adjustment Company, a Florida corporation, and Boma Construction, Inc., a Florida corporation, Appellees.
    No. 80-1364.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied July 31, 1981.
    Ellis Rubin, Naples, and Alan E. Dubow, Key Biscayne, for appellant.
    Virgin, Whittle & Garbis and Gary E. Garbis, Horton, Perse & Ginsberg, Carroll, Halberg & Meyerson, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer, Greenberg & Murray and Donald Murray, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

On this appeal we are asked to determine the applicability of Rule 2.060(g), Florida Rules of Judicial Administration, to a settlement agreement entered into prior to the effective date of the rule.

Appellant Buskirk seeks review of a final judgment enforcing the terms of a settlement agreement allegedly entered into by the parties to this appeal. On October 21, 1977, during a deposition of appellant, a stipulation between the parties was dictated before a court reporter. The transcript of the stipulation was never signed by appellant or her attorney, nor was signature of the agreement waived by either. Approximately ten days later, each of the other parties was notified of appellant’s rejection of the terms of settlement. Appellees’ motion for enforcement of the settlement was denied, and defenses of accord and satisfaction were stricken from their pleadings upon appellant’s motion. Discovery continued and the cause was set for trial. Shortly before trial, the judge below entered an order enforcing the settlement. It is from this order that appeal is taken.

Appellant contends that the settlement agreement is unenforceable because neither she nor her attorney signed the agreement or waived the signature requirement. We agree and reverse.

Rule 1.030(d), Florida Rules of Civil Procedure, in effect at the time of the agreement, provided in pertinent part:

(d) Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged. . . agreements made at depositions which are incorporated in the transcript thereof need not be signed when signing thereof is waived.

It is undisputed that the agreement was never signed by appellant or her attorney, nor were their signatures waived. Consequently, the agreement did not comply with the requirements of Rule 1.030(d), and for that reason is unenforceable. Davies v. Canco Enterprises, 350 So.2d 23 (Fla. 3d DCA 1977); Moore v. Gunning, 328 So.2d 462 (Fla. 4th DCA 1976); Alaimo v. Tirone, 297 So.2d 584 (Fla. 3d DCA 1974). Appellees, however, argue that Rule 2.060(g), Florida Rules of Judicial Administration, governs the instant case, and that under this provision, settlement agreements are excluded from the requirement that stipulations be in writing and signed by the party against whom enforcement is sought.

Upon careful review of the record, briefs and arguments, we find that Rule 2.060(g) is not applicable to the settlement agreement sub judice. The stipulation was entered into on October 21, 1977, and Rule 2.060 did not become effective until July 1, 1978, almost one year later. A law is presumed to have only prospective effect absent clear intent to the contrary. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla. 1977); Foley v. Morris, 339 So.2d 215 (Fla. 1976); Yamaha Parts Distributors Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975); Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980). No clear intent mandating retroactive application appears in the Florida Supreme Court’s enactment of the Rules of Judicial Administration. In re Florida Rules of Judicial Administration, 360 So.2d 1076 (Fla. 1978). In fact, Rule 1.030(d), Rules of Civil Procedure was not repealed until July 1, 1979, when the Rules of Judicial Administration were revised, indicating the continued validity of the old rule governing stipulations. In re Florida Rules of Judicial Administration, 372 So.2d 449 (Fla. 1979). Nothing in the language of the enactment of the rules manifested an intent to apply the rules other than prospectively.

The settlement agreement herein was incorporated into the transcript of a deposition which was never signed by the appellant or her attorney and in which the signature requirement was not waived. Accordingly, the agreement is of no force and effect, and it was error , for the trial judge to have granted the appellees’ motions to enforce the settlement. Since our ruling on this point is determinative, we do not consider the other points raised on appeal. The order enforcing settlement is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

      . Rule 2.060. Attorneys
      (g) Stipulations. No private agreement or consent between parties or their attorneys concerning the practice or procedure in an action shall be of any force unless the evidence of it is in writing, subscribed by the party or his attorney against whom it is alleged. Parol agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings, and agreements made at depositions that are incorporated in the transcript need not be signed when signing of the deposition is waived. This rule shall not apply to settlements or other substantive agreements.

      . This holding renders unnecessary any consideration of whether settlement agreements are completely excluded from operation of Rule 2.060(g) as appellees have suggested, or whether they are excluded only from the parol provisions of the rule.


text:
    The STATE of Florida, Appellant, v. Mark Steven LEVITT, Appellee.
    No. 80-2486.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Friedlich & Haguel and Steven H. Hagu-el, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Reversed on the authority of State v. Holder, 400 So.2d 162 (Fla. 3d DCA 1981); State v. Thompson, 399 So.2d 485 (Fla. 3d DCA 1981); State v. Johnson, 398 So.2d 500 (Fla. 3d DCA 1981); State v. Horne, 399 So.2d 49 (Fla. 3d DCA 1981).

Reversed.


text:
    Olden Richard BROWN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-1612, 79-1526.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied July 31, 1981.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

These consolidated appeals have been brought by appellant who was charged by indictment with sexual battery and attempted sexual battery. He pleaded guilty to both counts and was placed on probation for a term of seven years on each charge to run concurrently. A condition of the probation was that he enter and satisfactorily complete the mentally disordered sex offender program.

After appellant had spent approximately one year in the program the agency reported, to the trial court that it had exhausted treatment under the program and that appellant had violated the terms of his probation. Upon due and proper hearings the court revoked his probation and sentenced him to thirty years in the state penitentiary under each of the two counts.

Appellant seeks to vacate the order of probation and the sentence imposed following the revocation of probation based on the ground that they were unlawfully entered.

We have carefully reviewed the record and briefs in the light of appellant’s contentions and have concluded that reversible error has not been made to appear. Williamson v. State, 379 So.2d 370 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1120 (Fla.1980); King v. State, 373 So.2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980); Smith v. State, 345 So.2d 1080 (Fla. 3d DCA), cert. denied, 353 So.2d 678 (Fla.1977); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974).

Affirmed.


author: LARRY G. SMITH, Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. STATE of Florida ex rel. the DEPARTMENT OF INSURANCE of the State of Florida, as Florida Receiver of Main Insurance Company, an Illinois Corporation, Appellees.
    No. ZZ-130.
    District Court of Appeal of Florida, First District.
    June 30, 1981.
    Marion R. Shepard and J. Stephen O’Hara, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    Norman L. Miley, Jr., William T. Moore, John Reilly, Louis C. Bustamante of Helli-well, Melrose & DeWolf, Miami, for appel-lees.
   LARRY G. SMITH, Judge.

Florida Insurance Guaranty Association, Inc. (FIGA) appeals an order appointing the Florida Department of Insurance as receiver of Main Insurance Company (Main), a foreign insurer domiciled in Illinois, and ordering liquidation of Main’s assets located in Florida. The trial court’s order of insolvency and liquidation is of concern to FIGA because the order triggered FIGA’s statutory obligation to pay the covered claims of Main’s Florida insureds and creditors under Sections 631.54(4), (5) and 631.57(1), Florida Statutes (1979).

FIGA’s appeal presents for our determination the issue of whether the trial court’s order for liquidation of Main’s assets located in Florida was within the statutory authority vested in the court under Chapter 681, Part I, Florida Statutes, the “Insurer’s Rehabilitation and Liquidation Act” (IRLA). Resolution of this issue requires, initially, interpretation and construction particularly of Section 631.091, Florida Statutes. FIGA contends that the sole authority for an order of liquidation of a foreign insurer is found in Section 631.091, and that under this section a Florida court has no authority to order liquidation of a foreign insurer (such as Main) unless and until a receiver (or similar officer) has first been appointed in the insolvent insurer’s domiciliary state (in this case — Illinois) “for the purpose of liquidating the business of such insurer.” Section 631.091. Our reading of the statutes convinces us that FIGA’s contention is correct, and since it is admitted by the parties that no order of liquidation has been issued in Illinois, the trial court’s order under attack here was premature, and constituted error. We therefore reverse that portion of the trial court’s order authorizing the Department to seize and liquidate all of Main’s Florida assets. However, notwithstanding our reversal of this portion of the trial court’s order, we question whether FIGA should be relieved of its statutory obligations to pay covered claims, and we remand for further consideration and ruling by the trial court on this point.

A few facts concerning the background of this litigation must be related. In January, 1977, a circuit court in Illinois entered an order appointing a domiciliary rehabili-tator for Main. Shortly thereafter, the Florida Department of Insurance sought and was granted by the circuit court, Leon County, an order appointing it ancillary receiver of Main for purposes of conservation. During the next several years attempts were made by the domiciliary rehabilitator to rehabilitate Main, apparently without success. In the meantime, many Florida citizens who held final judgments against Main or had other claims were unable to obtain payment, and certain of Main’s Florida insureds were unable to obtain representation by Main in actions brought against them. Several of these parties were allowed to intervene in the Florida court proceedings for the purpose of filing motions requesting that the trial court adjudicate Main insolvent. Subsequently, in October, 1980, the Department filed an application for an order to show cause, seeking an order appointing the Department as receiver for the purposes of liquidation. The Department alleged in its application, among other things, that Main had in Florida assets sufficient to warrant the appointment of a receiver for purposes of liquidation consisting of a deposit made under Section 624.411, Florida Statutes, with a book value of $312,000.00. Indications were that the Florida claims would far exceed this amount. After a hearing, the trial court entered an order finding Main insolvent under Section 631.011(5), Florida Statutes (1979), and appointing the Department as receiver of Main for purposes of liquidation.

Before proceeding with analysis of specific statutory provisions, we will refer to certain matters which we consider as part of the statutory context. The forced liquidation or reorganization of insurance companies doing business in several states presents unique problems which have been-alleviated in some thirty-two states, to some extent, by the adoption in one form or another of the Uniform Insurers Liquidation Act. An important feature of the Uniform Act as adopted in the several states is the enhancement of cooperation between the reciprocal states by provisions requiring that the Commissioner of Insurance or equivalent supervisory official be the receiver of a delinquent insurer. Section 631.011(2). The purpose of the Act is to secure equal treatment for all creditors, wherever situated, of defunct or failing insurance companies. Springer v. Colburn, 162 So.2d 513 (Fla.1964). In addition Florida, in common with some other states, has authorized the creation of a guaranty association (here FIGA, a non-profit corporation) as a mechanism for the protection of its own citizens against delay in payment and financial loss occasioned by the insolvency of an insurer. Section 631.511, Florida Statutes. Funds for FIGA’s payment of covered claims are raised by assessments levied by the Department against all “member insurers” (Section 631.54(6)) which are then remitted to and administered by FIGA’s board of directors. Section 631.-57(3)(a).

FIGA’s liability for claims is governed by the statutes. Section 631.57(1), Florida Statutes, imposes the obligation upon FIGA to pay “covered claims,” defined in Section 631.54(4) as claims arising out of insurance policies issued by an insolvent insurer. The term “insolvent insurer” is defined in Section 631.54(5), Florida Statutes (1979) as follows:

(5) “Insolvent insurer” means a member insurer authorized to transact insurance in this state, either at the time the policy was issued or when the insured event occurred, and against which an order of liquidation with a finding of insolvency has been entered by a court of competent jurisdiction if such order has become final by the exhaustion of appellate review. (Emphasis supplied)

The interconnection between the above statutory provision governing FIGA’s liability for claims and the provisions of IRLA becomes immediately significant, because reference must be made to IRLA’s provisions to learn how and under what circumstances an “order of liquidation” in connection with a finding of insolvency of a foreign insurer may be entered by a Florida court. It must be noted, first, that “Delinquency proceedings” pursuant to Chapter 631, filed in the name of the Department, “shall constitute the sole and exclusive method of liquidating ... an insurer, ...” Section 631.021(4). Secondly, the sole ground for the entry by a Florida court of an order of liquidation as to a foreign insurer is contained in Section 631.091, which reads as follows:

631.091 Grounds for ancillary liquidation; foreign insurers.—
The Department may apply to the court for an order appointing it as ancillary receiver of and directing it to liquidate the business of a foreign insurer having assets, business or claims in this state upon the appointment in the domiciliary state of such insurer of a receiver, liquidator, conservator, re-habilitator, or other officer by whatever name called for the purpose of liquidating the business of such insurer.

FIGA argues, and we agree, that only one ground exists for an order authorizing the Department as receiver to liquidate the assets of a foreign insurer — that ground being, under the above quoted statutory provision, the appointment in the domiciliary state of a receiver, liquidator, conservator, rehabilitator, or other officer by whatever name called, “for the purpose of liquidating the business of such insurer.” Thus, there being no order for liquidation of Main in Illinois, the domiciliary state, it was error for the trial court to order liquidation of Main’s assets in Florida.

We think the meaning of Section 631.091 is clear, not ambiguous. The Department urges us, however, to read the language differently, to assume that the words “. . . for the purpose of liquidating the business of such insurer” appearing at the end of the paragraph, relate back and apply to the action to be taken by the Florida receiver upon his appointment. Under the Department’s view, there would be no necessity that there first be an order of liquidation in the domiciliary state prior to entry of an order of liquidation of the foreign insurer’s assets in Florida. We cannot accept this view. The Department would have us read the statute, in part, as follows: “The Department may apply to the court for an order . . . directing it to liquidate the business of a foreign insurer . . . for the purpose of liquidating the business of such insurer.” We will not attribute to the legislative draftsman the deliberate creation of a redundancy in the phrases pertaining to liquidation of the business of a foreign insurer, particularly when there is a plain, logical and rational meaning to the paragraph when read using the ordinary rules of grammar and punctuation.

We reject also the Department’s contention that its reading, which it admits would be assisted by the placing of a comma after the word “called,” is more compatible with the obvious legislative intent of IRLA. The “purpose” clause, Section 631.001(4), declares that the purpose of the act is “the protection of the interests of insureds, creditors, and the public generally,” through

(a) Early detection of any potentially dangerous condition in an insurer and prompt application of appropriate corrective measures which are neither unduly harsh nor subject to unwarranted publicity needlessly damaging to the insurer;
(b) Enhanced efficiency and economy of liquidation through clarification and specification of the law to minimize legal uncertainty and litigation;
(c) Equitable apportionment of any unavoidable loss;
(d) Lessening the problems of interstate rehabilitation and liquidation by facilitating cooperation between states in the liquidation process and by extension of the scope of personal jurisdiction over debtors of the insurer outside this state.

Turning to the body of the act, examination of the provisions patterned after the Uniform Insurers Rehabilitation and Liquidation Act (see Section 631.211), as well as those supplementary provisions added to the Florida version of the act, reveals clearly and unmistakably that the vesting of predominant control in the domiciliary state of an ailing or insolvent insurer is the cardinal feature of the act. Thus, the act confers upon the Florida courts extensive authority concerning the rehabilitation or liquidation of domestic insurers, Sections 631.-051, 631.061, and for the conservation or ancillary liquidation of the United States branch of alien insurers (an insurer formed under laws of a foreign country, Section 624.06(3), Florida Statutes), Sections 631.-081, 631.131. Proof of insolvency as well as other conditions with respect to a domestic or alien insurer allows 'the Department to invoke the powers of the act through delinquency proceedings. By contrast, the authority of the Department and the courts is circumscribed, in the case of foreign insurers, to conservation of the foreign insolvent insurers’ assets, Section 631.071, unless there has first been an order for liquidation in the domiciliary state, in which event liquidation of the foreign insurers’ Florida assets may be ordered pursuant to Section 631.091.

Section 631.152, subsection (1), pertaining to ancillary receivership of foreign insurers, contains the directive that “[T]he department shall file a petition requesting the appointment on the grounds set forth in s. 631.091 .. . . ” Subsection (2) provides that the domiciliary receiver for the purpose of liquidating an insurer domiciled in a reciprocal state “shall be vested by operation of law,” with title to all property of the insurer, including that in Florida, with exception of “other property” not covered by the general vesting of title, and security deposits held by the ancillary receiver in Florida, if one is appointed. By contrast, and to further illustrate the general statutory scheme favoring paramount control by the domiciliary state, we note that Section 631.141 vests full title in the Florida receiver of an insurer domiciled in Florida, with the same reservations concerning assets in other jurisdictions that an ancillary receiver in Florida would have. Further, Section 631.131(2) recognizes the paramount authority and control vested in the receiver of the domiciliary state by expressly providing that all steps taken by the Florida Department of Insurance, as ancillary receiver, in the mar-shalling and liquidation of assets of a foreign insurer, shall not conflict with the rights of the domiciliary receiver.

Our interpretation of Section 631.091 is in harmony with the purposes of the act as set forth in Section 631.001(4)(a)-(d), earlier referred to, and with specific provisions of the act above discussed, as well as others. We note further that, in keeping with the announced purposes of protection of creditors, equitable apportionment of any unavoidable loss, and lessening of the problems of interstate rehabilitation and liquidation of insurers, the Florida act contains detailed provisions with respect to the filing of claims, Sections 631.161, 631.171 and 631.181, and contains special provisions with respect to preferred claims, special deposit claims, secured claims, and to priority of claims in general, Section 631.191.

IRLA is not of recent vintage. It was first enacted in 1959. The wisdom of the act, or its specific Florida variations, is a matter of concern to the Legislative Branch, not the courts. If the act or any particular provision places Florida citizens at a disadvantage, as compared to the citizens of any other state, this is an injustice the remedy for which lies solely within the province of the Florida Legislature, unless there is some constitutional infirmity (none being suggested by either party to these proceedings) which would enable a court to invalidate the offending provision. Experience in operating under the provisions of the act might have been insufficient, heretofore, to bring to the surface such problems as the Department now urges upon us as the basis for upholding the interpretation it succeeded in getting the trial court to accept. The trial judge’s order contains the finding that the “manifest purpose” of Chapter 631 “has been utterly frustrated by the refusal of the Illinois Rehabilitator to either rehabilitate or liquidate Main, . . . . ” This court is not insensitive to the plight of Florida citizens who have and will continue to suffer financially until such time as their claims can be paid in the manner and to the extent prescribed by law. However, neither the Department’s nor our own dissatisfaction with the efficacy of the act furnishes authority for us to rewrite this legislation, or to repeal those provisions that we think might stand as impediments to speedy settlement of the claims of Florida citizens.

Furthermore, in response to the Department’s suggestion that unless this court upholds the order of the trial court we would be permitting the continuance of undue hardships on Main’s insureds in this state, we have several observations. The first concerns the Department’s reference, in oral argument, to the fact that it has not made stronger efforts during the long history of this problem to spur needed action in Illinois out of concern for principles of “comity.” We find this approach somewhat inconsistent with the Department’s insistence, in this proceeding, that we should in effect ignore certain of the reciprocal statutory provisions from which any such duty of comity owing to our sister state would arise. Secondly, we note that four regular sessions of the Florida Legislature (not counting the regular or special sessions just ended) have come and gone without amendments to the law which would have allowed the Department to demand action by FIGA toward payment of covered claims without further delay. Thirdly, we note the enactment in 1979 of an amendment to Section 631.54(5) which imposed the additional requirement of a court order of liquidation (which we have discussed in this opinion), in addition to a finding of insolvency, as a prerequisite to FIGA’s obligation. to pay claims against insolvent insurers. Absent the 1979 amendment referred to the trial court’s order herein, finding Main insolvent, would have been sufficient to trigger FIGA’s obligation to pay claims. This is so because, prior to the 1979 amendment, Section 631.54(5) defined “insolvent insurer” as an insurer “adjudicated to be insolvent by a court of competent jurisdiction, if such adjudication has become final by the exhaustion of appellate review.” There formerly existed no requirement of an “order of liquidation.” The trial court, under Sections 631.071(1) and 631.061(1) clearly has jurisdiction to adjudicate insolvency in connection with the appointment of the Department as ancillary receiver for purposes of conservation. Prior to the 1979 amendment this adjudication of insolvency, when affirmed on appeal, would have matured FIGA’s obligation to pay covered claims. A New Jersey case illustrates the point. An adjudication of insolvency in connection with appointment of a conservator by a North Carolina court, under provisions similar to those in effect in Florida prior to the 1979 amendment, has been held sufficient to trigger the liability of New Jersey’s insurance guaranty association. New Jersey Property & Liability Insurance Guaranty Association v. Sheeran, 137 N.J.Super. 345, 349 A.2d 92 (1975).

In conclusion, it is our opinion that the change in the law governing FIGA’s liability, effected by the 1979 amendment to Section 631.54(5), presents issues not adjudicated by the trial court’s order, and which have not been briefed or argued in this appeal. As already indicated, the 1979 amendment substantially changed the conditions under which FIGA’s liability for claims commenced. We note, however, that many, if not all claimants may have vested rights under policies issued or by virtue of other events occurring prior to the effective date of the 1979 amendment. No ruling has been made, nor is any suggested by this court, concerning whether the 1979 amendment, if retroactively applied to prior claims, would unlawfully impair the obligation of contracts. See Springer v. Colburn, supra. We therefore remand this issue to the trial court for further consideration, including hearings and the receipt of evidence, if necessary, for determination of FIGA’s liability as to any claims against Main accruing prior to the 1979 amendment.

Reversed and remanded for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., and JOANOS, JJ., concur.

      . Uniform Laws Annotated, Master Edition, Volume 13, Notes and Commentary, pages 429 — 433, text page 434. Florida’s version of the act (see Section 631.211, Florida Statutes), contains numerous variations, omissions and additional matter, as is true in many other states. Id., page 431. See Table of Reciprocal States, Section 631.141, F.S.A. 1981 pocket part.

      . See O’Malley v. Florida Insurance Guaranty Association, Inc., 257 So.2d 9 (Fla.1971), upholding validity of Insurance Guaranty Association Act, Chapter 70-20, Laws of Florida (1970).

      . IRLA proceedings were unknown to the common law. Hence, the courts may not go beyond the specific statutory provisions of IRLA and fashion a remedy which is not provided for in the act. City of Miami v. Romfh, 66 Fla. 280, 63 So. 440 (1913).

      . The trial court’s order under review here purports to vest in the Department title to Main’s assets to the same extent as would be authorized under the foregoing statutory provisions if Florida were the domiciliary state. Thus the trial court’s order runs contrary to these statutory provisions, which are a part of the Uniform Act.

      . According to Florida House and Senate Staff Reports the Department of Insurance apparently encouraged the 1979 amendment to Section 631.54(5). Those reports each contain the following comments:
      “This bill imposes the additional statutory requirement of an order of liquidation to accompany a finding of insolvency before an insurer may be deemed an “insolvent insurer,” at which time, in Florida, the Guaranty Trust Fund will be available to pay claims against the insolvent.
      A spokesman from the Department of Insurance indicated that this change in language would clarify the conditions under which the Guaranty Trust Fund, which is contributed to by Florida insurers, will be available to pay claims against insolvent insurers.
      There has been some questions in the past, in cases of out of state adjudication of insolvency in which the court orders rehabilitation of the insurer rather than liquidation, as to whether the Guaranty Trust Fund must pay claims against the insolvent. This bill clarifies, statutorily, that only an order of liquidation, rather than an order of rehabilitation, with a finding of insolvency, will trigger the application of the Guaranty Fund.
      Because Florida courts have usually provided such liquidation orders along with findings of insolvency, this bill is not expected to have any substantial economic impact, according to the representative of the Department of Insurance.”
      Senate Staff Analysis and Economic Impact Statement, April 17, 1979, SB 694 Committee files, Senate Commerce Committee Office, The Capitol; House Committee on Insurance Staff Report, April 20, 1979, HB 1430, Committee files, State Archives Building, Cartons 475-478, and 478T.

      . FIGA suggests that the 1979 amendment to Section 631.54(5), Florida Statutes, was motivated by the desire to avoid, in Florida, the same result as occurred in the Sheeran case. While we may concede such a possibility, we have no confirmation of this fact.

      . No constitutional issues have been raised in this appeal and none have been addressed by this court.


text:
    Delano B. HARRIS, Petitioner, v. STATE of Florida and Honorable C. Welborn Daniel, Respondents.
    No. 81-675.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Sanford A. Minkoff of Ford & Minkoff, P. A., Tavares, for petitioner.
    No appearance for respondents.
   FRANK D. UPCHURCH, Jr., Judge.

Delano Harris petitions for a writ of prohibition on the ground that speedy trial time has elapsed. The relevant dates are as follows:

October 21,1980 Harris arrested for burglary and theft. Subsequently released on bond.
December 1,1980 Information filed in Lake County.
January 5,1981 Harris fails to appear at arraignment.
January 14,1981 Harris taken into custody in Polk County. Later transferred to Lake County.
April 18,1981 Speedy trial time normally would have
April 30,1981 Motion to Discharge.
May 5,1981 Motion denied on the ground that speedy trial time would not be tolled but would start anew on January 14,1981.

The amended rule 3.191(e), effective January 1, 1981, provides in its entirety as follows:

Availability for Trial. A person is unavailable for trial if (1) the person or his counsel fails to attend a proceeding where their presence is required by these Rules, or (2) the person or his counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for herein is not entitled to be discharged. No presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish availability during the term.

Former rule 3.191(e) read:

Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.
If an accused voluntarily removes himself from the jurisdiction of the court or otherwise acts to make himself unavailable for trial, the right to trial within the time herein provided shall on motion by the State be voidable by the court in the interests of justice. Upon such accused becoming available for trial and upon notice thereof by the accused or his counsel to both the court having jurisdiction over the trial and to the office of the prosecutor, or upon being retaken into custody, the time within which trial is to commence shall be as herein provided and begin anew.

Harris contends that the speedy trial period is tolled during the period of his absence or unavailability for trial. The state contends that a new speedy trial period commenced upon his recapture.

Although Harris was arrested October 21,1980, the operative event, i. e., the failure to appear at his arraignment, occurred on January 5, 1981, after the effective date of the amended criminal rules. The rules govern all proceedings within their scope and supersede all conflicting rules and statutes. The Florida Bar In re Rules of Crim.P., 389 So.2d 610 (Fla.1980). While statutory changes in the law are normally presumed to apply prospectively, procedural changes are to be applied to pending cases. Johnson v. State, 371 So.2d 556 (Fla.2d DCA 1979).

Even though amended rule 3.191(e) has completely eliminated the language pertaining to a new speedy trial time after the accused is retaken into custody, Harris argues that the speedy trial time is tolled only for the period of his absence. Even if we accept that contention as correct, Harris is not entitled to discharge. Amended rule 3.191(e) provides that “a person who has not been available for trial during the term provided is not entitled to be discharged.” A person is deemed “unavailable for trial” if: 1) the person or his counsel fails to attend a proceeding where their presence is required by the rules, or 2) the person or his counsel is not ready for trial on the date trial is scheduled.

Here Harris admits that he failed to attend his arraignment and has not alleged that his counsel, attended the proceeding. Thus, Harris “has not been available for trial during the term provided” and therefore is not entitled to be discharged.

Under the former rule, a second speedy trial term would have begun after Harris was taken into custody. Had the state failed to bring Harris to trial within that time, Harris may have been entitled to be discharged. The amended rule, by completely eliminating this second speedy trial term and by providing that an accused who has not been available is not entitled to discharge, makes unavailability, in effect, a waiver of the procedural speedy trial protection.

The writ of prohibition is DENIED.

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