author: GRIMES, Judge. PER CURIAM.

text:
    Beverly D. GARRETT, Petitioner, v. FIREMAN’S FUND INSURANCE COMPANY, Respondent.
    No. 82-121.
    District Court of Appeal of Florida, Second District.
    July 7, 1982.
    Rehearing Denied Sept. 22, 1982.
    William H. Yanger, Jr. of Yanger & Sin-gletary, P.A., Tampa, for petitioner.
    Gwynne A. Young of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for respondent.
   GRIMES, Judge.

The question of whether someone other than a named insured can recover attorney’s fees incident to a successful suit on an insurance policy has plagued our sister courts for several years. We now join the fray.

Beverly Garrett, petitioner, sustained injury in an automobile accident while riding in a car owned by Charles Footman. Footman had automobile insurance with the respondent, Fireman’s Fund Insurance Company, which included personal injury protection benefits. This policy listed Footman as named insured, and no one else.

After the accident, Garrett received medical treatment, and Fireman’s Fund paid her bills in accordance with the PIP policy until July 17, 1979. Fireman’s Fund then ceased paying, having in the meantime received a physician’s report which stated that Garrett required no further medical treatment. Garrett filed suit for continued benefits. She also sought attorney’s fees under section 627.428(1), Florida Statutes (1979), should her claim be successful. In a well-reasoned order on final judgment, the county court found that Garrett was entitled to both benefits and attorney’s fees. The circuit court, in an equally well-reasoned order, reversed in part, holding that, although Garrett was entitled to benefits, she was not entitled to attorney’s fees. Garrett now seeks a writ of certiorari from this court, contending that the circuit court’s order departs from the essential requirements of law.

In Roberts v. Carter, 350 So.2d 78 (Fla.1977), our supreme court held that a successful third-party tort claimant was not entitled to recover attorney’s fees from the tortfeasor’s liability insurance carrier under section 627.428(1). The court interpreted the statute as allowing an award of fees only to the “contracting insured, the insured’s estate, specifically named policy beneficiaries, and the third parties who claim policy coverage by assignment from the insured.” 350 So.2d at 79. Although the court intended to clarify the meaning of section 627.428(1) by this statement, there has been disagreement over the meaning of the term “contracting insured.” In United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co., 369 So.2d 410 (Fla. 3d DCA 1979), the court interpreted this term as referring not only to the named insured but to all claimants standing in a “direct first party contractual relationship with the carrier.” 369 So.2d at 412. Other districts have strictly interpreted the term “contracting insured” to deny awards of attorney’s fees to persons who were not the named insureds. Aetna Life & Casualty Co. v. Stanger, 367 So.2d 728 (Fla. 4th DCA 1979); Fernandez v. Alonso, 375 So.2d 8 (Fla. 3d DCA 1979); see Aetna Life Insurance Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978).

More recently, in Norfolk v. Nationwide Mutual Fire Insurance Co., 407 So.2d 1014 (Fla. 5th DCA 1981), the Fifth District Court of Appeal reviewed the current conflict and followed the decision in United States Fidelity & Guaranty Co. The court stated that the reference to “contracting insured” in the Roberts decision was inadvertent and intended to refer to insureds under the contract rather than third-party beneficiaries of the contract. 407 So.2d at 1015. The Fourth District Court of Appeal has now ruled that a passenger in an insured vehicle who was not a relative of the named insured could recover attorney’s fees under the statute. Spaulding v. American Fire & Indemnity Co., 412 So.2d 367 (Fla. 4th DCA 1981). See also Prygrocki v. Industrial Fire & Casualty Insurance Co., 407 So.2d 345 (Fla. 4th DCA 1981); Earnest v. Southeastern Fidelity Insurance Co., 407 So.2d 995 (Fla. 3d DCA 1981).

We believe that Norfolk and United States Fidelity & Guaranty Co. present the most persuasive rationale. Section 627.-428(1) authorizes the recovery of attorney’s fees by “an insured.” Garrett successfully obtained additional benefits only because she qualified as an insured under the PIP provisions of the Fireman’s Fund policy. She “stands in the shoes” of a contracting party because her suit is directly on the policy. Earnest v. Southeastern Fidelity Insurance Co. Hence, she is entitled to recover attorney’s fees under the statute. We leave open the question of whether we agree with Prygrocki that a pedestrian is properly characterized as a contracting insured of the PIP carrier for the automobile which struck him.

We grant certiorari and direct the circuit court to reinstate the judgment of the county court. Garrett is also entitled to recover the reasonable fees for the services of her attorney at both the circuit and district court levels in an amount to be set by the county judge.

OTT, C.J., and CAMPBELL, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Shortly before this opinion was released, our sister court in Tracey v. Florida Insurance Guaranty Association, 414 So.2d 1159 (Fla. 3d DCA 1982), rendered a decision on similar facts that an unrelated passenger who had collected PIP benefits could not recover attorney’s fees under section 627.-428(1), Florida Statutes (1979). For the reasons expressed in our opinion, we respectfully decline to recede from our position. However, we now certify this ease to the supreme court under article V, section 3(b)(4), Florida Constitution, as being in direct conflict with the decision of the Third District Court of Appeal in Tracey.

The motion for rehearing is denied.

OTT, C. J., and GRIMES and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Joe WASHINGTON and Ulysses Thompson, Appellants, v. The STATE of Florida, Appellees.
    No. 81-201.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Oct. 18, 1982.
    Bennett H. Brummer, Public Defender and Geoffrey C. Fleck and Harold Mende-low, Sp. Asst. Public Defenders, for appellants.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Joe Washington and Ulysses Thompson, charged and convicted of robbery, contend that they were denied the effective assistance of counsel because a single lawyer was appointed to jointly represent them. Neither Washington nor Thompson objected to the joint representation or requested the appointment of separate counsel. Since representation of joint defendants by one lawyer is not per se unconstitutional, see Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Belton v. State, 217 So.2d 97 (Fla.1968), and dual representation does not in itself trigger the need for inquiry as to possible conflict by the trial court, Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the only arguable ground for reversal is that the record reveals that counsel for these defendants had an actual conflict of interest, so that either or both of them was prejudiced by the failure of the court, sua sponte, to appoint a separate lawyer for each., Cuyler v. Sullivan, supra; State v. Youngblood, 217 So.2d 98 (Fla.1968); Belton v. State, supra.

Does the record reveal an actual conflict of interest? Mr. Pilón, the alleged victim of the crime, testified that both defendants robbed him of a watch and some money. Within minutes of the robbery, the defendants were found in front of the Gibson Hotel, across the street from the scene of the crime. Pilón identified both men as the perpetrators. The defendants were arrested and searched. Pilon’s watch was found in Thompson’s sock; Pilon’s personal papers and bus ticket were found crammed in a crevice between a traffic box and wall next to where Washington was standing when arrested.

Both defendants testified. Washington stated that he did not know Thompson, but had seen him several times. He denied having anything to do with the robbery of Pilón. He stated that he was simply standing on the corner near the Gibson Hotel when arrested. Thompson testified that he too was simply on the same corner when he was arrested. He denied any participation in the robbery of Pilón. He said that while on his way to the Gibson, he bought the watch from strangers for $5.00, and when he became involved in some horseplay, he put the watch in his sock lest it be broken. He denied knowing Washington.

Thompson, unable to point to any specific prejudice to him, argues that prejudice is inherent in any joint representation. Washington points to specific prejudice. He says the evidence proving his guilt was weaker than the evidence proving Thompson’s guilt: none of the victim's property was found on Washington’s person, and, although Pilón was unwavering in the certainty of his identification of both defendants, Pilón did concede that he did not get a good look at Washington when the crime occurred. Washington asserts that because he had the same counsel as Thompson, the relative weakness of the case against Washington was never emphasized either at trial or at sentencing.

Thompson’s argument is, of course, no more than an argument for a per se rule against joint representation, which, as we have said, is not compelled by the United States Constitution, see Cuyler v. Sullivan, supra; Holloway v. Arkansas, supra; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and is not the rule in Florida, see State v. Youngblood, supra; Belton v. State, supra. Washington’s argument falls short because a disparity in the quantum of evidence establishing guilt does not itself create a conflict of interest, see, e.g., United States v. Benavidez, 664 F.2d 1255 (5th Cir. 1982); United States ex rel. McClindon v. Warden, Illinois State Penitentiary, 575 F.2d 108 (7th Cir.), cert. denied, 439 U.S. 856, 99 S.Ct. 170, 58 L.Ed.2d 163 (1978); United States ex rel. Ross v. LaVallee, 448 F.2d 552 (2d Cir. 1971); United States v. Gallagher, 437 F.2d 1191 (7th Cir.), cert. denied, 402 U.S. 1009, 91 S.Ct. 2190, 29 L.Ed.2d 430 (1971). As the Fifth Circuit so recently stated in United States v. Benavidez:

“Thus, we doubt that there can be a constitutional violation when the only claim of conflict is that a defendant should have abandoned the common defense and invited reciprocal recrimination, not because the government introduced evidence indicating the defendant’s innocence, but solely because the government made a stronger case against his eodefendant. We have routinely rejected claims that defense counsel needed to be free to abandon a ‘united front’ strategy. See, e.g., United States v. Medel, 592 F.2d 1305, 1312 (5th Cir. 1979); Canal Zone v. Hodges, 589 F.2d 207, 210 (5th Cir.), cert. denied, 441 U.S. 948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979). The claims of conflict here are based entirely on appellate counsel’s theories — developed with the benefit of the entire record — on what each defendant’s most effective response to the government’s evidence would have been. If actual conflict can be established on this basis, it will be a rare case in which an untested strategy will not look better than an unsuccessful one.
“Even if a constitutional violation could be proved in this manner, neither defendant has demonstrated an actual conflict because neither has shown that he stood ‘to gain significantly’ by abandoning the common defense. Foxworth [v. Wainwright], 516 F.2d [1072] at 1076 [5th Cir. 1972]; see United States v. Risi, 603 F.2d 1193, 1195 (5th Cir. 1979) (‘There must be a significant divergence in the interests of the jointly represented persons.’) (emphasis added).” 664 F.2d at 1260-61 (footnote omitted).

We do not foreclose the possibility, however remote, that the defendants, or one of them, can in a collateral proceeding establish a claim that the joint representation created an actual conflict of interest. But no actual conflict of interest appears in the record before us, and, accordingly, we affirm the convictions.

Affirmed.

      . Two days before trial, Washington, joined by Thompson, advised the court that the defendants did not want the attorney whom the court had appointed “because we don’t feel he know enough about our case.” The Assistant Public Defender then told the court that there was an obvious conflict between “these gentlemen and myself,” that is, that the defendants did not have confidence in the attorney’s ability. On the day of trial, the Public Defender called to the attention of the court that he had only recently learned that the defenses of the defendants were no longer compatible and that Washington now intended to lay the blame on Thompson. In response to the court’s ensuing inquiry, Washington, in Thompson’s presence, denied the existence of this conflict, and, as it later developed, no such conflict existed. No other potential conflict was called to the court’s attention, and no request for separate counsel was made by either defendant.

      . An actual conflict of interests is, ipso facto, prejudicial. The language in Cuyler v. Sullivan, supra, 446 U.S. at 348, 100 S.Ct. at 1718, “a defendant ... must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance,” has not been read to mean that a defendant must show prejudice beyond actual conflict, e.g., that the result would have been otherwise. See United States v. Benavidez, 664 F.2d 1255 (5th Cir. 1982); Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981).

      . While the State does not argue that a claim of ineffective assistance of counsel may not be raised for the first time on direct appeal, we do not overlook abundant authority to that effect. See, e.g., State v. Barber, 301 So.2d 7 (Fla.1974); Walker v. State, 399 So.2d 374 (Fla. 3d DCA 1981), and cases cited therein. We believe, however, that the Florida Supreme Court’s holding in Foster v. State, 387 So.2d 344 (Fla.1980), carved an exception to Barber and its progeny where a claim of ineffectiveness arises from joint representation. There the court said: “Even in the absence of an objection or motion below ... where actual conflict of interest or prejudice to the [defendant] is shown, the court’s action in making the joint appointment and allowing the joint representation to continue is reversible error,” Id. at 345. Foster involved a conflict in the representation of the defendant and a co-defendant who during trial became a key state witness and was rewarded with a dismissal of the case against her after the completion of her testimony. Since there is no rule that such dual representation is a per se conflict of interest from which prejudice is presumed, see Annot. 27 A.L.R.3d 1431 (1969), Foster must be read as allowing the ineffective assistance claim to be raised for the first time on appeal if actual conflict, and thus prejudice, is shown in the trial record. Moreover, because the dissent in Foster urged that Barber controlled, it is clear that Foster rejected the notion that ineffective assistance of counsel could never be recognized as fundamental error.

      . At oral argument, Thompson’s counsel unwittingly suggested that had Thompson had the benefit of independent counsel, he might have made a deal to plead to a lesser offense, or for a sentence less than the fifteen years he received, in exchange for testifying against Washington, against whom the evidence was less persuasive. This record not only is silent as to this opportunity for Thompson, but, in light of Thompson’s trial testimony that he knew nothing about the robbery or Washington, we would hardly recognize that a conflict of interest exists when joint representation is said to prevent a defendant from committing perjury. See United States ex rel. McClindon v. Warden, Illinois State Penitentiary, 575 F.2d 108 (7th Cir. 1978).

      . Of course, a defendant is entitled to the effective assistance of counsel at sentencing as well as trial. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982); Dozier v. United States District Court, 656 F.2d 990 (5th Cir. 1981). But an argument that counsel’s failure to point up some difference in the amount of proof against a defendant (irrelevant in the face of a jury verdict of guilty) is hardly an argument that counsel was ineffective.

      . In Glasser, two defendants were represented by the same lawyer. Glasser objected and pointed to potential conflicts and prejudice; his co-defendant did not object and made no showing of prejudice. Glasser’s conviction was reversed; the co-defendant’s conviction was affirmed. As the Florida Supreme Court correctly observed in State v. Youngblood: “Obviously, if joint representation of co-defendants by the same lawyer necessarily results in prejudice, the court could not have reached different results for Glasser [and his co-defendant].” 217 So.2d at 100 (emphasis in original).

      . Before Belton and Youngblood, one might have relied on Baker v. State, 202 So.2d 563 (Fla.1967), as standing for a per se rule, at least where objection to joint representation is made. There the court said:
      “The interests and defenses of most co-defendants are conflicting. Evidence, strategy and defenses which will benefit one co-defendant usually are detrimental to the other. It is this conflict and inconsistency of position which makes it impossible for the same counsel to effectively represent two or more co-defendants simultaneously.

      “The state, however, contends that even if the defendants were entitled to have separate counsel, the error was harmless because defendants have not shown they were prejudiced. We cannot agree. As was said in Glasser, 315 U.S. at 76, 62 S.Ct. at 467:
      “ ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’

      “Accordingly, we hold that it was unnecessary that the defendants show prejudice flowing from the denial to them of separate counsel.” Id. at 566 (emphasis supplied).
      But Belton and Youngblood reject any reading of Baker as establishing a per se rule and substitute instead the rule that “when a joint defendant requests separate counsel, his request should be granted unless the state can clearly demonstrate for the record that prejudice will not result from a denial.” 217 So.2d at 101 (emphasis supplied). Here, the State had no such burden, since no request was made. Instead, it was the defendant’s burden to show prejudice.
      While much can be said for a rule requiring a separate attorney for a separate defendant, see United States v. Mari, 526 F.2d 117, 119 (2d Cir. 1975) (Oakes, J., concurring), and a rule requiring the court to conduct inquiry wherever there is joint representation, see Fed.R.Crim.P. 44(c) advisory committee note, we are not at liberty to fashion such rules. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . It may be that while Washington had little to gain by an argument that the proof against Thompson was more substantial, he had something to gain by testifying that Thompson did the whole thing. However, as we have said, supra note 4, a conflict of interest is not cognizable when the joint representation is said to prevent a defendant from committing perjury.


author: PER CURIAM.

text:
    Umberto DeLUCA, Appellant, v. RAY’S INN, INC., a Florida corporation, Raymond D. Parks and Orville R. Parks, Appellees.
    No. 80-1787.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Rehearings Denied Oct. 18, 1982.

      Osborne Walker O’Quinn, Fort Pierce, for appellant.
    Douglas E. Gonano and Rupert Jasen Smith, Fort Pierce, for appellees.
   PER CURIAM.

Of the several points raised on appeal, we limit ourselves to the question of the accuracy of the computation of appellees’ damages. We affirm those damages which are supported in the record and we reverse the remainder with instructions to enter an amended final judgment.

This case results from an unsuccessful effort to sell a restaurant business in Port St. Lucie. Appellant is the prospective purchaser; appellees include the corporate owner and the stockholders of the closely-held corporation. For reasons that are irrelevant to this appeal, the parties entered into an interim management agreement which permitted appellant to occupy and run the restaurant prior to the sale. For reasons that are also unrelated to this appeal, the sale was never consummated. Ap-pellees then repossessed the restaurant by self-help. This gave rise to appellant’s suit for wrongful eviction and appellees counterclaim for breach of the management agreement.

The trial court awarded nominal compensatory and punitive damages for wrongful eviction. The computation of these damages is peculiarly within the province of the trier of fact and we find no reversible error. In their counterclaim, ap-pellees sought damages of $12,777.71. The trial court awarded $12,277.21. The accuracy of this calculation is the major issue on appeal.

Appellees established their damages through the testimony of Mrs. Louise Parks, the corporate bookkeeper. She provided a detailed explanation and precise cost figure for each item of damage. Among the items listed were a series of attorneys’ bills for which the corporation sought reimbursement. The court intervened in the questioning and indicated that it found no justification for imposing appel-lees’ legal expenses on the appellant. In this respect, the court was eminently correct. The management agreement did not specify that appellant would be responsible for such costs and it was silent on the question of attorneys’ fees in the event of litigation to enforce the agreement.

Since the amount awarded to appel-lees almost equals the amount prayed for, it is reasonable to conclude that the trial court accepted and relied upon Mrs. Parks’ testimony. Yet, the figures set forth in her testimony do not justify the amount awarded. It is not entirely certain, but it appears that the sum of $2,269.38, which was claimed as the amount due for missing items, may have been counted twice. Therefore, we have recalculated each of the items in Mrs. Parks’ testimony and, excluding $2,792.50 for attorneys fees, we reach a total of $9,906.33.

This figure, however, is subject to one final modification. Included in Mrs. Parks’ list is the sum of $1,433.39 which was paid to Florida Power & Light Company. Mrs. Parks also testified that appellant gave appellees a check for $1,455.00 to be used as a utility deposit. Since the trial court permitted appellees to retain the deposit, appellant is entitled to a credit. Accordingly, we find that the evidence, viewed in the light most favorable to the appellees, establishes their entitlement to $8,451.33. Thus, we affirm in part, reverse in part and remand with instructions to enter an amended final judgment on the counterclaim for $8,451.33.

AFFIRMED in part, REVERSED in part and REMANDED with instructions.

GLICKSTEIN, HURLEY, JJ., and GREEN, OLIVER L., Associate Judge, concur.

      . This included $10,508.33 for expenses incurred because of appellant’s alleged breach and $2,269.38 for items which appellees found to be missing after they retook possession.

      . $7,636.95 for incurred expenses plus $2,269.38 for missing items.


author: PER CURIAM. DAUKSCH, Judge.

text:
    William Henry BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 82-998.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    On Rehearing Sept. 29, 1982.
    William Henry Bennett, in pro. per.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, COBB and FRANK D. UP-CHURCH; JJ., concur.

ON PETITION FOR REHEARING

DAUKSCH, Judge.

In his Petition for Rehearing appellant correctly points out we should have ordered the trial court to hold an evidentiary hearing to determine the truth and substance of appellant’s allegations that he was denied effective assistance of counsel at trial.

The order denying the motion for post conviction relief is reversed and this cause is remanded for an evidentiary hearing and an order, with findings of fact, either granting or denying the said motion.

REVERSED AND REMANDED.

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


text:
    JENNINGS COUNTRY CLUB HOMES, INC., Appellant, v. GENERAL CAPITAL CORPORATION, Appellee.
    No. 82-41.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Oct. 20, 1982.

      Bartel & Shuford and Stanley Bartel, Miami, for appellant.
    Smith & Mandler and Patricia M. Silver, Miami Beach, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and OWEN, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

The parties, Jennings Country Club Homes, Inc., hereinafter referred to as Jennings, and General Capital Corporation, hereinafter referred to as Capital, entered into an agreement providing for Capital to lend a large sum of money to Jennings to purchase sixty-five lots on which to construct residential houses and to then offer the houses for sale to the public. In addition to interest provided for in the note, Capital would receive forty per-cent of the profits from the sale of the improved or unimproved lots, as additional compensation for the loan. By its terms the note came due in two years. The contract provided in part as follows:

At the end of two (2) years from the date hereof any balance remaining unpaid, together with interest, shall become due and payable.

After the note was paid and the mortgage satisfied, Capital recorded the agreement and demanded forty per-cent of the profits on all the lots developed and sold prior to the expiration of the two years and forty per-cent of the profits on all the lots to be developed and/or sold subsequent to the two years.

Jennings ultimately denied that they owed any portion of the profits in the lots or houses, sold after the initial two year period.

Following a consolidation of suits, one filed by Jennings seeking a declaratory judgment and another filed by Capital seeking an accounting, the trial judge entered a final summary judgment holding that the contract was unambiguous and that Capital was entitled to forty per-cent of the profits made on the sale of each lot or house.

We reverse. The agreement was prepared by the attorney for Capital. The trial judge in his order under review demonstrated that he had to go outside of the agreement to determine its effect. The agreement is subject to two different constructions, therefore, the matter should not have been determined in a summary judgment proceeding, even if the ultimate trial will be before the trial court without a jury. Hurt v. Leatherby Insurance Company, 380 So.2d 432 (Fla.1980); Landin Ltd., v. The Loxahatchee River Environmental Control District, 416 So.2d 482 (Fla. 4th DCA 1982); Goldbloom v. J. I. Kislak Mortgage Corporation, 408 So.2d 748 (Fla. 3d DCA 1982); Kirsh v. Mannen, 393 So.2d 63 (Fla. 3d DCA 1981); Sol Walker & Company v. Seaboard Coast Line Railroad Company, 362 So.2d 45 (Fla. 2d DCA 1978); Morton v. Morton, 307 So.2d 835 (Fla. 3d DCA 1975); Westchester Fire Insurance Company v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971).

Therefore, we return this matter for a trial on the issues as made on the pleadings.

Reversed and remanded with directions.

      . The agreement, the note and the mortgage were all signed at the same conference. The mortgage was properly notarized so that it could be recorded. There was no provision on the agreement itself for notarization. After all the documents had been signed and the representative of Jennings had left the conference, Capital caused its signature to be notarized, in order that the document could be recorded and it, in fact, was recorded, subsequent to the satisfaction of the mortgage and served as the basis of Capital securing a lis pendens on the unsold lots. It was only after the contract was recorded that Jennings learned about the notarization.

      . “This cause came on to be heard before me upon GENERAL CAPITAL CORP.’s Motion for Partial Summary Judgment ... the Court having heard argument of counsel, reviewed the pleadings, depositions and affidavits on file, finds that the agreement of June 15, 1978 between GENERAL CAPITAL CORP. and JENNINGS COUNTRY CLUB HOMES, INC. is clear and unambiguous on its face, and that GENERAL CAPITAL CORP. is entitled to receive 40% of the profits as described in said agreement upon the sale of the lots and/or homes constructed on said lots without time limitation.”

      . Jennings raised the doctrine of unclean hands as applied to Capital, because of the events surrounding the affixing of the notarization seal to the original agreement and to the recording of same. We do not pass on this point, because it should be initially decided by the trial court on the issues as made by the pleadings and the evidence tendered in support thereof.


text:
    ANDRESIX CORPORATION, Appellant, v. PEOPLES DOWNTOWN NATIONAL BANK, etc., et al., Appellees. PEOPLES DOWNTOWN NATIONAL BANK, Appellant, v. F. Allen BLISS, Andresix Corporation, et al., Appellees.
    Nos. 81-1691, 81-2205.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Oct. 19, 1982.
    Horton Perse & Ginsberg and Mallory H. Horton, for Andresix Corp.
    Quinton, Lummus, Donwody & Adams and Peter M. Feaman, for Peoples Downtown Nat. Bank.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the trial court’s order denying the motion to intervene filed by Andresix Corporation upon a holding that Andresix, as a purchaser of property which was then the subject of a mortgage foreclosure action and accompanying lis pendens by Peoples Downtown National Bank, was not entitled to intervene in such action. Greenwald v. Graham, 100 Fla. 818, 130 So. 608 (1930); Intermediary Finance Corporation v. McKay, 93 Fla. 101, 111 So. 531 (1927); Peninsular Naval Stores Company v. Cox, 57 Fla. 505, 49 So. 191 (1909). See O’Bryan v. Dr. P. Phillips & Sons, Inc., 123 Fla. 302, 166 So. 820 (1936). Cf. Nelson Bullock Co. v. South Down Development Co., 132 Fla. 495, 181 So. 365 (Fla.1938); Freligh v. Maurer, 111 So.2d 712 (Fla. 2d DCA 1959); Dutcher v. Haines City Estates, Inc., 26 F.2d 669 (5th Cir. 1928) (intervention appropriate where lis pendens filed by party with inchoate claim to interest in property, but without prior recorded lien, and proposed intervenor asserts superior interest in property).

The stay of the foreclosure action entered by the trial court pending this review is vacated.

Affirmed in Case No. 81-1691; stay vacated in Case No. 81-2205.


author: DOWNEY, Judge. DOWNEY, Judge.

text:
    DOLAN, FERTIG & CURTIS, Appellant, v. GULF INSURANCE COMPANY and Lawyers Professional Liability Insurance Company, Appellees.
    No. 81-1465.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 1982.
    Rehearing Denied Oct. 13, 1982.
    Robert J. Reid and M. Lee Gay, Jr., of McClure & Gay, P. A., Fort Lauderdale, for appellant.
    Paul Regensdorf, John W. Fleming and William D. Ricker of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Appellant, Dolan, Fertig & Curtis, P. A., a law firm, seeks review of a summary judgment in favor of appellee, Gulf Insurance Company, arising out of a suit for declaratory relief to determine appellee’s liability based upon a legal malpractice insurance policy.

It appears that the appellant law firm contracted with Gulf Insurance Company for errors and omissions coverage for the period of November 20, 1978, to November 20, 1979. Under said policy, Gulf agreed to pay all sums on behalf of the insured that the insured should become legally obligated to pay as damages for any claim arising out of professional legal services first made against the insured during the policy period. The policy required that the claim arise for services performed during the policy period; that the claim be known to or made against the insured during said period; and that the insured notify the insurer thereof during said period. At the end of the term, the law firm did not renew the Gulf policy, but instead contracted with Lawyers Professional Liability Insurance Company (L.P. L.I.C.) for the period from November 30, 1979, to November 30, 1980, with a retroactive provision extending back to 1976, except for claims arising out of any occurrence prior to the effective date of the policy, if the insured knew of them prior to the policy period.

It further appears that on November 19, 1979, the day before the Gulf policy term expired, the law firm was notified by a dissatisfied client that a malpractice suit was imminent. In December, the law firm notified L.P.L.I.C. of the claim, which the company rejected in January because, as its application shows, the claim was known to the law firm when the L.P.L.I.C. policy was issued. Having been rebuffed by its current carrier, the law firm notified Gulf of the claim on February 12, 1980. Gulf denied coverage because it was not notified during the policy period as expressly required in the contract.

In the interim, the aggrieved client sued the law firm and received a judgment for $55,000. Appellant commenced this suit for declaratory relief, seeking a judicial determination as to which of the companies was liable for the damages award. In due course, the trial court granted Gulfs motion for summary judgment because the Gulf policy required the claim to be known or made and reported to the company during the policy period. This provision requiring notice to the company had not been fulfilled. It is that summary judgment that we have for consideration.

Appellant seeks reversal on the grounds that the Gulf policy was either against public policy or was ambiguous, and should thus be construed in favor of coverage. Appellant also contends it should recover because Gulf was not prejudiced by the late notice. However, we find no ambiguity in the policy, nor are we impressed with a wholesale attack upon this type of insurance coverage as being against public policy.

The policy issued by Gulf is known in the industry as a “claims made” or “discovery” policy. It is best understood in juxtaposition to what is known as an “occurrence” policy. These two different types of policies have been recognized in two Florida cases but neither case involved an attack upon the validity of the various types of insurance coverage. In Ranger Insurance Company v. United States Fire Ins. Co., 350 So.2d 570 (Fla. 3d DCA 1977), the court described the policies as follows:

[A] discovery policy is one wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurance company during the policy period no matter when the act or omission occurred; an occurrence policy is one wherein the coverage is effective if the negligent act or omission occurs during the policy period, regardless of the date of the discovery.— 350 So.2d at 572.

Thus, it appears that notice to the carrier during the policy period is of the essence in a “claims made” policy. Obviously, a policy structured in this fashion has a far more limited exposure than an “occurrence” policy. Under the former coverage, the exposure exists for the policy term only, while under the latter the carrier may be exposed for many years. A lawyer might draw a will during the current year and be sued many years later by an intended beneficiary who was damaged by the lawyer’s improper advice to the decedent, e.g., McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). The limited exposure results in lower premiums and, we are told, the greater availability of coverage in a field where available coverage is diminishing.

Accordingly, we recognize the peculiarities of the “claims made” policy and see no reason why such contracts should be against public policy. The contract in question in several places cautions the reader that it is a “claims made” policy, which terms are therein defined. Thus, we are not dealing with a “sleeper provision.” However, we are persuaded that one aspect of the policy requires judicial intervention in order to make the contract fair; that aspect has to do with the termination date as it affects claims made very late in the policy period. A time comes at the end of the policy period when it may well be impossible for the insured to notify the company of a claim. The extreme case would involve the receipt of a claim by the insured minutes before the midnight expiration of the term on the last day thereof. It would also appear that delivery of notice of a claim to a lawyer’s office on the day before expiration of the term, as in the present case, may under the circumstances make it virtually impossible to get notice to the insurer. Therefore, we hold that there should be some reasonable period of time after the end of the term to enable an insured to notify the insurer of a claim discovered very late in the policy period. This is not an unheard of suggestion. In Graman v. Continental Cas. Co., 87 Ill.App.3d 896, 40 Ill.Dec. 772, 409 N.E.2d 387 (1980), the “claims made” policy involved there provided that the insurance afforded by the policy covered negligence that occurred during the policy period, provided that claims were first made against the insured during the policy period and reported in writing to the Company during this policy period “or within 60 days after the expiration of this policy period.” In Breaux v. St. Paul Fire & Marine Insurance Co., 326 So.2d 891 (La.App.1976), the Louisiana court acknowledged that “claims made” policies require that the claim be discovered and reported during the policy period. The court then gratuitously added, “Some reasonable extension of reporting time for last minute claims might be allowed.” 326 So.2d at 892.

Predictably, appellee argues strenuously against such a concept and points to the provision of the Gulf policy denominated Extended Discovery Indorsement, which upon payment of an additional premium enables an insured to purchase the virtual equivalent of “occurrence” coverage for specific periods of time. For example, a lawyer retiring from practice with no further use of a “claims made” policy might want to protect himself from future claims arising out of negligent acts that occurred before he retired. This could be done by exercising his right under the Extended Discovery Indorsement and converting the “claims made” policy into an “occurrence” policy. But we do not see this available coverage as meeting the needs of an insured for late claims discovered at the very end of the insured term. Therefore, we believe that, if the policy has no express provision fixing a reasonable time after the policy period expires for reporting claims that are discovered late in the policy period, the policy should be held to allow the reporting of such claims within a reasonable time after discovery even though that time extend beyond the termination of the policy. What is a reasonable time under the circumstances of each case is a question of fact. Thus, the trier of facts must decide whether under all of the circumstances of this case appellant properly notified appel-lee of the claim in question so as to make coverage under the Gulf policy effective.

Accordingly, the summary judgment appealed from is reversed and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED with directions.

BERANEK and HURLEY, JJ., concur.

ON PETITION FOR REHEARING

DOWNEY, Judge.

By petition for rehearing and motion for clarification, appellee has suggested that the trial court has never passed upon the question of whether appellant had notice of the potential malpractice claim long before the end of the policy period when it received written notice from the complaining client. Since the main thrust of this appeal is directed toward notice received at the very end of the policy term, our opinion might be construed as leaving only the question of whether timely notification was given to appellee after the policy term had expired for factual determination on remand. We did not intend by said opinion to preclude appellee from proving that appellant had notice of the claim long before the November 19th written notice so as to fall within the provisions of paragraph 111(a) of the policy.

Perceiving the question involved in this case to be one of great public importance, we certify the following question to the Supreme Court of Florida:

As a matter of policy may the court require that “claims made” professional liability policies should be subjected to a reasonable additional period beyond the termination date of the policy for reporting claims that arise late in the contract term?

With the foregoing clarification, the petition for rehearing is denied.

BERANEK and HURLEY, JJ., concur.

      . The pertinent provisions of the policy are:
      I. COVERAGE—
      To pay on behalf of the Insured all sums which the insured shall become legally obligated to pay as damages because of any claims first made against the Insured during the policy period, arising out of professional services rendered or which should have been rendered for others in the Insured’s capacity as a lawyer, subsequent to the effective date, and caused by the insured or any other person for whose acts the Insured is legally liable, except as excluded or limited by the terms, conditions and exclusions applicable to this Coverage Form.
      ******
      III. Policy Period-Territory—
      This Coverage Form and the insurance provided hereby only applies to professional services rendered or which should have been rendered within the United States of America, its territories or possessions or Canada subsequent to the effective date and then only if claim is first made during the policy period or an extended discovery period purchased in accordance with Condition 3.
      The following provisions shall apply in determining whether a claim is first made during the policy period or an extended discovery period: (a) If during the policy period or an extended period (if purchased) the Insured shall have knowledge or become aware of any event arising out of the rendering or failure to render professional services covered hereby which may subsequently give rise to a claim and shall during the policy period or such extended discovery period give written notice thereof to the Company in accordance with Condition 4(1) of this Coverage Form, then such notice shall be considered a claim made hereunder within the policy period or such extended discovery period.
      (b) If any claim is first made during the policy period or an extended discovery period (if purchased) alleging damages which are payable under this Coverage Form, any additional claims which are made or suits or proceedings in connection therewith which are brought subsequent to the policy period or such extended discovery period for damages resulting from the same or related professional services shall be considered a part of the claim which was first made during the policy period or such extended discovery period.
      A claim shall be considered to be first made when the Company first receives notice of the claim or of an event which may subsequently give rise to a claim (See Condition 3 for Insured’s rights to have Extended Discovery Endorsements issued).

      . The client even suggested the firm notify its malpractice carrier and advise the client of the carrier’s name.

      . The cause remains pending in the trial court against L.P.L.I.C.

      . Ranger Insurance Company v. United States Fire Ins. Co., 350 So.2d 570 (Fla. 3d DCA 1977); Bill Binko Chrysler-Plymouth, Inc. v. Compass Insurance Company, Inc., 385 So.2d 692 (Fla. 4th DCA 1980).


author: BOOTH, Judge.

text:
    UNIVERSITY HOSPITAL BUILDING, INC., d/b/a Memorial Hospital of Jacksonville, its nurses, agents, servants and employees, Appellants, v. Emily GOODING, as Personal Representative of the Estate of T. Hagood Gooding, deceased, Appellee.
    No. VV-93.
    District Court of Appeal of Florida, First District.
    Aug. 20, 1982.
    Rehearing Denied Oct. 13, 1982.

      Rutledge R. Liles, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    V. James Facciolo, of Searcy & Facciolo, P.A., Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final judgment entered in a wrongful death action against appellant, University Hospital Building, Inc., in favor of Emily Good-ing, the widow and personal representative of T. Hagood Gooding, the deceased. On appeal, appellants contend that the verdict was against -the manifest weight of the evidence; that the trial judge erred in failing to grant the hospital’s motions for directed verdict and motion for judgment notwithstanding the verdict; and that the trial judge erred in giving plaintiff’s requested jury instruction number 16.

Decedent, a 61-year-old man, experienced the onset of pain in his lower abdomen while at home. After contacting the office of his doctor, Dr. Borland, decedent was transported to the emergency room by ambulance. The emergency room staff was advised that decedent was coming to meet Dr. Borland, a gastroenterologist. That doctor, though present in the hospital and paged following decedent’s arrival, did not, through circumstances not at issue here, come to the emergency room until a few minutes before his patient’s death.

The uncontradicted medical evidence was that decedent suffered a ruptured abdominal aortic aneurysm prior to his admission to the hospital, a critical condition which will, in the absence of surgical intervention, cause death, usually within a few minutes, and that it did in fact cause his death after his admission to the emergency room.

In support of the charge of negligence and, specifically, the requisite causal connection between failure to exercise due care and the death of plaintiff’s decedent, plaintiff relied on the testimony of Dr. Charles Bailey, an eminent cardiologist, who testified that the conduct of the emergency room staff did not meet acceptable medical standards in that there was a failure to take an adequate history and do an adequate physical examination or laboratory work.

The evidence shows that the emergency room staff was expecting, momentarily, the arrival of Dr. Borland, who was known to be in the hospital and aware of his patient’s pending arrival. The patient did not appear to be in extremis on arrival, and there was testimony that he was reluctant to be examined by the emergency room doctor.

Emergency rooms are used for several types of patients: (1) true emergencies, and (2) convenient places for a doctor and his patient, needing prompt though not emergency care, to meet either while the doctor is in the hospital or after the doctor’s regular office hours. Although there was evidence that patients of the second type, who enter the emergency room in order to meet their doctor there, are not generally treated by emergency room staff, Dr. Bailey testified that “good teaching hospitals” and the Joint Commission on Accreditation of Hospitals accord hospital staff concurrent responsibility for the immediate care of such patients.

In the instant case, the patient entered the hospital expressly to be seen by a doctor who was present in the hospital. However, unknown to anyone, the patient suffered a life-threatening condition which required immediate surgical intervention. The jury found that the failure of the emergency room staff to diagnose and immediately operate, even though awaiting the arrival of the patient’s doctor, constituted negligence. The question is an extremely close one, but it is difficult to overturn the jury verdict on this point in view of the testimony of Dr. Bailey.

On the issue of causation, the diagnosis of a ruptured aortic aneurysm is concededly a difficult one to make, particularly in an obese patient such as decedent. Dr. Bailey testified to various diagnostic methods which have been used and to the percentages of success of each method in detecting the existence of a ruptured aneurysm. Dr. Bailey also testified that, had some appropriate diagnostic procedure been used and been successful in detecting the ruptured aneurysm, there was a 50 percent chance of saving the patient’s life by immediate surgery. Bailey testified that the 50 percent chance diminished minute-by-minute after the patient’s arrival at the hospital and terminated when the patient attempted to use the bedpan shortly after 4:45 p.m. Therefore, under Dr. Bailey’s testimony, if the emergency room staff had been able to diagnose the aneurysm and perform immediate surgery, within 45 minutes after the patient’s arrival at the emergency room, the patient would have had a 50 percent chance of survival.

Causation in fact is proved by evidence that more likely than not defendant’s negligence caused the injury. This same burden of proof applies regardless of whether the “but for” or the “substantial factor” test is used. The rule is stated by

Prosser as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonble basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant, (emphasis added)

The testimony of plaintiff’s expert, the strongest evidence presented on plaintiff’s behalf, establishes that decedent’s chances of survival, given all optimum conditions and prompt efficient action, where at best evenly balanced and less than probable. On this state of the proof, the case should not have been submitted to the jury.

The error in failing to direct a verdict was compounded by the court’s giving of plaintiff’s jury instruction number 16, which allowed the jury to find for the plaintiff if they found negligence on the part of the defendant “destroyed Mr. Gooding’s chance for survival.” That special instruction was preceded by Standard Jury Instruction 5.19(a), which defines legal cause as requiring, inter alia, that the cause “produces or contributes substantially to producing such [loss] ..., so that it can reasonably be said that, but for the negligence the [loss] ... would not have occurred.” Admittedly, the evidence here, taken- in the light most favorable to plaintiff, does not meet the requirements of Instruction 5.1(a).

Plaintiff has supplied this court with a supplemental authority advocating a cause of action for negligent deprivation of a chance to survive with damages based on the following formula:

[D]ecedent was deprived of an X percent chance of surviving, that [the decedent’s] life was worth Y dollars, and that as a result the value of the chance was X times Y dollars.[]

However, plaintiff did not predicate her complaint upon such a theory of recovery and did not so limit her claim for damages. New theories of action can only be promulgated by statute or through interpretation of law consistent with public policy by case decisions of the highest court of the state, the Florida Supreme Court. Absent sanction by either entity, this court should adhere to the current state of the law, which permits recovery for wrongful death where the causal relationship between defendant’s negligence and the death is established by standard burden of proof criteria.

In recognition of an apparent conflict between our decision and that of the Third and Fourth District Courts of Appeal in Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), and Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1977), and the important public policy consideration inherent in the question presented, we certify the following questions to the Florida Supreme Court:

1. WHETHER PLAINTIFF IN A WRONGFUL DEATH ACTION MUST PROVE THAT MORE LIKELY THAN NOT THE DEATH WAS CAUSED BY DEFENDANT’S NEGLIGENCE.
2. WHETHER A THEORY OF RECOVERY FOR LOSS OF A CHANCE TO SURVIVE PREDICATED UPON ALLEGED MEDICAL MALPRACTICE IS ACTIONABLE IN FLORIDA; AND, IF SO, (A) WHETHER THE TRIAL COURT PROPERLY INSTRUCTED ON SAME, AND (B) WHAT IS THE APPROPRIATE MEASURE OF DAMAGES?

REVERSED.

JOANOS, J., concurs.

PEARSON, TILLMAN (Retired), Associate J., dissents without written opinion.

      . A directed verdict was entered in favor of co-defendant, Dr. Haswell, the emergency room physician.

      . Dr. Borland was not made a defendant.

      . In a letter written by Dr. Bailey to appellee’s attorney, the doctor opined that “although it is not specified in the autopsy protocal, the designation as a ‘large sacular aneurysm of the distal abdominal aorta’ probably means that it was located distal to the origins of the renal arteries.”

      . The 50 percent survival rate from an operation to repair an aortic aneurysm, testified to by plaintiffs expert, assumes proper diagnosis or high suspicion of same. Insofar as the possibility of survival rate fails to take into account the varying percentage rates of success of the different diagnostic procedures for aortic aneurysms, it actually should be further reduced.

      . It is not at all clear that the “substantial factor” test applies in Florida. Voght, “Test of Causation and the Florida Jury Instructions— The Current Conflict and the Need for a Change,” 32 U.Fla.L.Rev. 308 (1980).

      . Prosser, Law of Torts, p. 241 (4th Ed. 1971); Restatement (Second) of Torts, 433(B), comments a and b.

      . Jury Instruction No. 16 read as follows:
      If you find that Hagood Gooding had a significant chance of survival and if you find that negligence on the part of the defendant, its agents or servants, destroyed Mr. Gooding’s chances of survival, then the negligence of that defendant ... is a legal cause of injury.
      This type of instruction has its origins in language in Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), a wrongful death action under Tort Claims Act. In that case, however, the court held (Id. at 632): “Both of plaintiff’s experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert.” (emphasis added)

      . Wolfstone & Wolfstone, “Recovery of Damages for the Loss of a Chance,” Scalpel and Quill, Vol. XIII, No. 4 (December, 1979).

      . The Third District Court of Appeal, in Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), has recognized a right to recover in wrongful death for loss of a chance to survive. That case has been followed by the Fourth District Court of Appeal in Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1977).


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

text:
    Paul FRAMBACH and Allene Frambach, Appellants, v. Stanley H. DUNIHUE, Appellee.
    No. 81-962.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 29, 1982.
    John E. Hatcher, Jr., Winter Garden, for appellants.

      Maxwell W. Wells, Jr. and Robert W. Morrison of Maxwell W. Wells, Jr., P. A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The Frambachs appeal from a judgment awarding Dunihue an undivided one-half interest in their property. Two pieces of property were titled in the Frambachs’ names. In parcel A the court imposed a resulting trust. In parcel B, the court determined that Dunihue was entitled to a one-half interest as an “equitable lien and equitable interest.” By this appeal, the Frambachs question only the court’s ruling as to parcel B on which their home was located.

The history of this case is an amazing account of human relationships. Why people who for many years had demonstrated an incredible ability to solve their disputes would ultimately end up in litigation is mystifying.

Dunihue was a widower with seven children to raise ranging in age from three to eleven. The Frambachs lived nearby with their four children. Contact between the parties started when Mrs. Frambach, a devoted churchwoman, asked if she could take the Dunihue children to church. She later became a babysitter and took care of the Dunihue children sometimes at their home and sometimes at hers for which she was paid $25.00 per week.

This arrangement continued for a few months. In September, 1960, the Fram-bachs and the Dunihues waited out a hurricane in the Frambachs’ home. The Fram-bachs’ house was small (a bedroom, living room and kitchen, 600 square feet in all) and had no inside plumbing. As fate would have it, the relationships which developed as the storm howled proved so interesting and the two families so congenial that the Frambachs and Dunihues decided to see if the two families could live together.

Dunihue set out to enlarge the house. A bedroom and bath were added and various improvements made. As the years passed, Mrs. Frambach had another child and for a time, until the Dunihue children began to move out, fifteen people (three adults and twelve children) lived in the house. Mrs. Frambach ran the household, did the cooking, and saw that the children cleaned, helped with the washing, and did such chores as were required and within their capabilities.

Both Dunihue and the Frambachs were employed. Dunihue on several occasions obtained employment for Mr. Frambach and their earnings were not substantially different, although Dunihue had the larger income. The Frambachs and Dunihue each had a bank account into which they deposited their respective earnings. Mrs. Fram-bach wrote checks on both accounts and decided in large measure which account would be used to pay a particular bill. Dunihue’s characterization of the arrangement was probably the most appropriate, that it was just one family and whatever money was available was used wherever it was most needed. Very often the three shopped together for clothes, furniture, and automobiles.

Improvements in the home continued to be made. Dunihue’s contributions to these improvements undoubtedly were the most valuable although everyone assisted. At the time of this litigation, the value of the home had appreciated to approximately $65,000. The court received considerable testimony of Dunihue’s contributions to the improvements, but very little evidence was adduced as to the value of the services received by Dunihue and his family.

This arrangement lasted for nineteen years until the last of the Dunihue children were grown and gone. The relationship was suddenly terminated when Mrs. Fram-bach called Dunihue at work and told him to come get his things and get out. He was given thirty minutes to comply. The reason for the sudden end to the friendship was not clear.

After being ejected from the Frambachs’ home, Dunihue brought suit to impose an equitable lien on the property. Dunihue claimed that the Frambachs had promised him a place to live for the rest of his life in exchange for his work. He further alleged that he had relied on this promise and that the Frambachs will be unjustly enriched at his expense if he is not compensated for his work. The Frambachs denied that they had made any such promise to Dunihue claiming that without the improvements it would have been impossible to house that many people.

The trial court determined that the two families had operated as a single family. While emphasizing that he was not making such an inference, the judge opined that the association of the parties was almost as close as though there had been a single wife and two husbands. The court then found that the pooling of assets and commingling of everything into a common pot was to assure Dunihue that he would have a home as long as he lived and that it would award Dunihue an equitable lien in the home. Regarding the amount of the lien, the court stated the following:

They did start out with a thousand-dollar equity, the [Frambachs]. But in effect because of the way they treated everything through the years, they really are just as though this was a divorce. And we are dividing up the property between a wife that had two husbands, so to speak. That’s why I think the only fair thing to do is to make them tenants in common right down the middle. So that’s my judgment.

As a general rule, a court of equity may give restitution to a plaintiff and prevent the unjust enrichment of a defendant by imposing a constructive trust or by imposing an equitable lien upon the property in favor of the plaintiff. Restatement of Restitution §§ 160-161 (1937). However, where the plaintiff makes improvements upon the land of another under circumstances which entitle him to restitution, he is entitled only to an equitable lien upon the land and he cannot charge the owner of the land as constructive trustee and compel the owner to transfer the land to him. Restatement of Restitution § 161, Comment a. Neither a constructive trust nor a resulting trust arises in favor of a person who pays no part of the purchase price even though he pays for improvements on the property. 5 Scott, The Law of Trusts, §§ 455.7,472 (3d ed. 1967). The person does not become, in whole or in part, a beneficial owner of the property although he may be entitled to reimbursement.

In the present case, the court, in effect, determined that the Frambachs held an undivided one-half interest in the property in trust for Dunihue. However, there was no evidence of a promise or agreement to deed a portion of the Frambachs’ property to Dunihue in return for the improvements. Nor has Dunihue alleged that he actually paid a part of the purchase price. In these circumstances, Dunihue was not entitled to have a constructive trust imposed on the property. We therefore reverse the award to Dunihue of a tenancy in common and remand the cause for further consideration.

Upon remand, the trial court should determine the value of the respective contributions of Dunihue and the Frambachs. This can be accomplished by calculating the fair market value of the improvements attributable to Dunihue and the fair market value of the services rendered by the Fram-bachs to him during the nineteen years the parties lived together. In the alternative, the court could determine the cost to Duni-hue for his labor, services and material in making the improvements as compared to the cost to the Frambachs of providing services to Dunihue. We suspect that, under either measure, the contributions of the parties will be equal. However, if the court finds that Dunihue’s contributions exceed the value of the benefits received by him from the Frambachs, an equitable lien in this amount should be imposed to prevent the unjust enrichment of the Frambachs.

REVERSED and REMANDED.

ORFINGER, C. J., and COBB, J., concur.


author: PER CURIAM. PER CURIAM.

text:
    Robert L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1625.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    On Rehearing Oct. 20, 1982.
    Robert L. Williams, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Robert L. Williams appeals the lower court’s denial of his motion for post-conviction relief. Where a motion for post-conviction relief is denied and the denial is not predicated on the insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the movant is not entitled to relief must be attached to the order of denial. Fla.R.Crim.P. 3.850. In this case, there are no attachments to the order and there was no evidentiary hearing held. Accordingly, the cause is reversed and remanded to the lower court with instructions to hold an evidentiary hearing. Fla.R. App.P. 9.140(g).

REVERSED AND REMANDED.

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

ON PETITION FOR REHEARING

PER CURIAM.

Motion for rehearing granted. We note that the trial court, following our remand of this case, has complied with Florida Rule of Appellate Procedure 9.140(g) by attaching a copy of that portion of the record which conclusively shows that appellant is not entitled to post-conviction relief. Therefore, the trial court need not hold an evidentiary hearing and we affirm the trial court’s order denying appellant’s motion for post-conviction relief.

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


text:
    STATE of Florida, Appellant, v. Francis FARRUGIA and Gregory S. Sullivan, Appellees.
    No. AD-266.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Rehearing Denied Oct. 20, 1982.

      Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellees.
   BOOTH, Judge.

This cause is before us on appeal by the State from an order of the trial judge granting appellees’ motions under Rule 3.190(c)(4), Florida Rules of Criminal Procedure. The trial court dismissed the information charging appellees with trafficking in cannabis contrary to Section 893.135, Florida Statutes. The information charges that appellees did “knowingly and unlawfully have in their actual or constructive possession in excess of 100 pounds but less than 2,000 pounds of cannabis.” Approximately 1,700 pounds of cannabis were found in the cargo area of the vehicle, a pickup truck with camper shell, which bypassed an agricultural inspection station without stopping. At the time the vehicle was stopped, it was being operated by appellee Farrugia with appellee Sullivan as passenger.

Appellees filed motions to dismiss stating that neither appellee had means of access to the cargo area of the vehicle, which had to be forcibly entered by law enforcement officials; that there was nothing in the cargo area to impart knowledge on the part of defendant Sullivan of the presence of the contraband; that no personal items attributable to defendant Farrugia were found in the cargo area; that defendants were paid a certain sum to drive the vehicle but were unaware of its contents; and that the vehicle was not owned by either appellee. It is conceded that both appellees alternately drove the vehicle on a trip which originated in the state of Michigan and terminated with the arrest of ap-pellees in Hamilton County, Florida. Photographs of the vehicle in the record show that the cab area, though separated from the camper, had an operable window in the rear forming a “pass through” to the front of the camper. Photographs further reveal that opaque curtains had been placed on all windows of the camper shell and were drawn. Nevertheless, the odor of marijuana was detected at the inspection station, and a search warrant was issued. Personal clothing and effects of both defendants were found in the front-seat area.

The foregoing facts are sufficient to establish a prima facie showing of possession on the part of both appellees and to defeat motions under Rule 3.190(c)(4).

Appellees’ joint operation of the vehicle gave them possession and control. The question of knowledge of the nature of the cargo is an ultimate fact question, not subject to motion to dismiss under Rule 3.190(c), as held by this court in Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 635 (Fla.App.1980). See, also, State v. Alford, 395 So.2d 201 (Fla. 4th DCA 1981).

Appellees would have us divide and consider separately control of the operation of the vehicle transporting the contraband from control and possession of the contraband being transported. We find this distinction contrary to logic and reason as presented as a basis for motions to dismiss under Rule 3.190(c)(4). Lack of access to, or visibility of, the contents of the vehicle may have a bearing on the issue of knowledge and/or intent but does not preclude possession as a matter of law.

We reject appellees’ contention that they may transport illegal drugs on the highway of this state with impunity so long as they do not have in their immediate possession keys to the locked cargo area containing the contraband, and have stored no personal effects in the cargo area. That contention makes a mockery of the drug laws of this state and effectively insulates those in the business of trafficking in illegal drugs from being brought to trial. It is not the purpose of Rule 3.190(c)(4) to preclude prosecution and consideration by the jury of factual inferences bearing on the ultimate guilt or innocence of the accused. It is for the jury to determine whether, in the instant case, appellees are innocent conveyors of contraband who were unaware of its presence in the vehicle they were hired to operate.

Accordingly, the judgment below is reversed and the cause remanded for further proceedings consistent herewith.

SHIVERS and JOANOS, JJ., concur.

      . In Shad v. State, 394 So.2d 1114 (Fla. 1st DCA 1981), the defendant was a mere passenger, and this court found that, even assuming knowledge on his part of the presence of contraband in the camper top of the vehicle, the State failed to prove that he had the ability to maintain control over the contraband or reduce it to his possession. The case sub judice is distinguishable because it involves a Rule 3.190(c)(4) motion to dismiss and because the allegations show that both defendants exercised joint control of the truck.


author: HURLEY, Judge.

text:
    Tyrone PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-734.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 20, 1982.

      Thomas J. McLaughlin, South Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

The issue on appeal is whether the exclusion of a defense witness was a permissible remedy for an alleged defense discovery violation in a criminal case. We are compelled to reverse because the procedural prejudice suffered by the prosecution as a result of the violation was insufficient to warrant exclusion of evidence and could have been cured by a less drastic remedy. In light of our decision, we have found it unnecessary to address the appellant’s other points on appeal.

The present case began when the defendant, now appellant, was caught tampering with a parked truck in which police officers were hiding. The state alleged that the defendant was burglarizing the truck. The defendant, in maintaining his innocence, asserted that he was investigating the truck pursuant to orders from his employer because it was suspicious and was interfering with the employer’s business. Over defense objections, the trial court excluded the employer’s testimony to remedy an alleged defense discovery violation.

The facts leading to the exclusion order can be summarized because we can limit our discussion to the question of whether the record can support a finding that the prosecutor was so prejudiced by a discovery violation that exclusion of evidence was required to ensure a fair trial. On the Friday when this case was called for trial, an attorney from the Public Defender’s Office appeared on behalf of the defendant. He requested a continuance for the following reasons: (1) the attorney assigned to the case was unavailable due to another trial, (2) the assigned attorney had not adequately prepared and had just received the case three weeks before from another attorney who had left the Public Defender’s Office, and (3) the assigned attorney had not had an opportunity to talk to potential defense witnesses and had not yet provided the state with a witness list. The prosecutor opposed the motion on the ground that this would be the second defense continuance and indicated that the state would seek exclusion of the defense witnesses because a defense witness list had not been provided. The trial court refused to continue the case but put the case on recall for a few days until the assigned attorney finished his other trial. The defense attorney who was present then offered to provide the names of the witnesses, but the record is unclear whether the names were actually provided at that time. He also revealed that the witnesses were eyewitnesses.

On the following Tuesday when the case came up again, the assigned attorney informed the court that his secretary was supposed to have delivered a written witness list on Friday but had not done so until Monday. He also stated that he was willing to proceed. The prosecutor indicated that he was also willing to proceed but that he had not yet received the witness list and wanted the defense witnesses excluded. (Apparently the witness list was delivered to the prosecutor’s office but not to the prosecutor himself.) The defense opposed the motion to exclude saying that he had made every effort to inform the state of the witnesses as soon as he had learned of them. The judge initially refused to exclude the witnesses but required the defense to make the witnesses available for deposition by the state that afternoon. The defendant was allowed to look for the witnesses while voir dire of proposed jury members took place. Later, the defense attorney informed the court that the witnesses were unavailable for various reasons and could not be brought in that day. The defense also informed the court that the witnesses were eyewitnesses who unsuccessfully tried to make statements to arresting officers, and informed the judge of the substance of their forthcoming testimony. The judge told the defense that it would have to make the witnesses available the next morning by 8:30 a. m. for deposition if it wanted to use their testimony.

The next morning only one of the three witnesses appeared on time and later testified for the defense; the second appeared sometime between 10 and 11:45 a. m. while the state was presenting its case-in-chief; the third failed to appear at all and, thus, was not available to testify. The defense did not learn that the second witness had appeared until after the state had rested its case-in-chief. The prosecutor said he did not want to depose the witness and insisted that the witness be excluded. The only evidence of prejudice to the state was the state’s assertion that it had rested its casein-chief. Based on these facts, and after considering a proffer of the witness’ testimony which revealed that the testimony was substantially what the defense attorney had said it would be except that it was less beneficial to the defense, the trial court prohibited the witness from testifying before the jury.

Rule 3.220, Fla.R.Crim.P., governs discovery procedures and requires defense counsel to furnish the prosecutor with a list of those witnesses that are expected to be called on behalf of the defendant. Pursuant to another provision of the rule, a trial court can enter just orders to remedy discovery violations and can impose sanctions on recalcitrant attorneys.

Exclusion of testimony is one of the remedies available. But exclusion is a severe remedy that raises very serious questions concerning the fairness of the judicial process.

A trial court’s discretion to remedy discovery violations can be properly exercised only after the court has made an adequate inquiry into the surrounding circumstances as required by Richardson v. State, 246 So.2d 771 (Fla.1971). The mere failure of a party to list a witness is not itself sufficient grounds to exclude that witness. Bradford v. State, 278 So.2d 624, 626 (Fla.1973); Lucas v. State, 376 So.2d 1149, 1151 (Fla.1979); Richardson v. State, 246 So.2d at 774. Whether a remedy such as exclusion should be imposed depends on the totality of circumstances, including such factors as whether the violation was inad-vertant or willful, whether it was trivial or substantial, and, most importantly, whether it has prejudiced the opposition’s ability to prepare for trial. Richardson v. State, 246 So.2d at 775. The primary purpose of this inquiry is to ferret out procedural prejudice occasioned by discovery violations. Smith v. State, 372 So.2d 86, 88 (Fla.1979). Thus, the trial judge must decide whether the violation hindered or prevented the aggrieved party from properly preparing for trial and may impose a remedy only if a finding of such prejudice is made. Dorry v. State, 389 So.2d 1184, 1186 (Fla. 4th DCA 1980); see Williams v. State, 376 So.2d 441, 442-43 (Fla. 4th DCA 1979). If the trial court finds procedural prejudice, it can tailor a just remedial order, but “[rjelevant evidence should not be excluded from the jury unless no other remedy suffices.” Cooper v. State, 336 So.2d 1133, 1138 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977).

In the present case, the facts in the record indicate that exclusion of eyewitness testimony was too severe. We note that the prosecutor’s photographic exhibit shows the existence of eyewitnesses, his own witnesses knew there were eyewitnesses, and he knew of the excluded witness and of the substance of the witness’s testimony before the trial commenced. Cf. Sireci v. State, 399 So.2d 964, 968-69 (Fla.1981) (witness list does not necessarily have to be in writing). Although the prosecutor claimed that he was surprised, he did not indicate why he thought the surprise prejudiced his ability to adequately prepare the case or that the prejudicial surprise, if any, could not be cured by a less severe remedy.

It is crucial to remember that, “[t]he purpose of the rules, indeed the purpose of the law, is to achieve justice not frustrate it.” C. A. W. v. State, 295 So.2d 329 (Fla. 1st DCA 1974) (reversing for improper exclusion). The provisions of the discovery rule were designed to further the objective of the trial process which is to arrive at a just decision based on all the facts.

To summarize, we reverse because the record demonstrates that exclusion of a defense eyewitness was too severe a remedy for the procedural prejudice suffered by the prosecution. We underscore the critical point that the exclusion of otherwise admissible evidence is an extremely severe remedy that must be reserved for the most compelling circumstances which did not exist in this case.

REVERSED and REMANDED for a new trial.

ANSTEAD and HERSEY, JJ., concur.

      . Fla.R.Crim.P. 3.220(b)(3) provides:
      Within seven days after receipt by defense counsel of the list of names and addresses furnished by the prosecutor pursuant to Section (a)(l)(i) of this Rule the defense counsel shall furnish to the prosecutor a written list of all witnesses whom the defense counsel expects to call as witnesses at the trial or hearing.

      . Fla.R.Crim.P. 3.220(j) provides:
      (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
      (2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.

      . We note the recent holding of the U. S. Court of Appeals, Fifth Circuit, “that the compulsory process clause of the sixth amendment forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants.” United States v. Davis, 639 F.2d 239, 243 (5th Cir. 1981); see also Lewis v. State, 411 So.2d 880, 882-83 (Fla. 3d DCA 1981) (Baskin, J., dissenting); cf. Dumas v. State, 350 So.2d 464 (Fla.1977) (because of the sixth amendment, a witness can be excluded for violating the sequestration rule only if the witness acted with the knowledge, consent, procurement, or connivance of the defendant or defense counsel). While, in the present case, we refrain from reaching the constitutional question and from endorsing or criticizing the Fifth Circuit’s opinion, we note that the opinion demonstrates the very serious nature of a decision to exclude evidence in order to remedy a discovery violation.

      . Numerous appellate panels have addressed fact situations similar to that in the present case and have concluded that exclusion was too severe a remedy. See, e.g., Hotchkiss v. State, 367 So.2d 727 (Fla. 4th DCA 1979); Williams v. State, 264 So.2d 106 (Fla. 4th DCA), cert. denied, 268 So.2d 162 (Fla.1972); Adams v. State, 366 So.2d 1236 (Fla. 2d DCA 1979); State v. Bowers (Fla. 2d DCA Case No. 82-359, June 2, 1982) [7 F.L.W.D.C.A. 1203]; State v. Plachta, 415 So.2d 1356 (Fla. 2d DCA 1982); see generally Yetter, Florida Criminal Discovery and Pre-Trial Motions Manual § H (1979; 1982 supp. D & S Publishers, Inc.).


author: WENTWORTH, Judge.

text:
    WAKULLA COUNTY ABSENTEE VOTER INTERVENORS & J. Michael Carter, Appellants/Cross Appellees, v. Evelyn R. FLACK, Appellee/Cross Appellant.
    No. AI-496.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 4, 1982.
    Wilson W. Wright, Tallahassee, for appellant/cross-appellee, Wakulla County Absentee Voter Intervenors.
    J. Michael Carter, appellant/cross-appel-lee, pro se.
    Rivers Buford, Jr., and Keith J. Kinder-man, Tallahassee, for appellee/cross-appel-lant, Evelyn R. Flack.
   WENTWORTH, Judge.

This appeal is from a final'judgment ordering that the absentee ballots cast in the 1978 election for Wakulla County Judge not be counted, and that the appellee Flack should be certified and commissioned in that office. Upon consideration of briefs and oral argument by the parties and inter-venors, we conclude that the result reached by the trial court complies with the mandate in Flack v. Carter, 392 So.2d 37, 40 (Fla. 1st DCA 1981), citing Boardman v. Esteva, 323 So.2d 259 (Fla.1976), and requiring a determination of whether there has been substantial compliance with the essential requirements of the absentee voting law and whether irregularities adversely affect the sanctity of the ballot and the integrity of the election. Our recent decision in Potter v. Bolden, 416 So.2d 6 (Fla. 1st DCA 1982), has again recognized “the general rule stated in Boardman, that where the number of invalid absentee ballots is more than enough to change the result of the election, then the election shall be determined solely upon the basis of the machine vote.” We do not, as appellant and interve-nors urge, reconsider that proposition.

Among the numerous issues posed by the parties on appeal and cross-appeal, the dispositive point appears to us to be the propriety of the court’s conclusion that five named illiterate electors “received assistance in casting their ballots in a manner other than that provided by law and under the circumstances of this case, these ballots were not cast in substantial compliance with the essential requirements of the absentee voting law and adversely affected the sanctity of the ballot and the integrity of the election.” The factual and procedural predicate for that conclusion is stated as follows by the order appealed:

The Wakulla County Canvassing Board certified the following to be the results of the election referred to in 1. above:

Poll Votes Absentee Votos Total
Carter 1704 89 1793
Flack 1706 85 1791
On November 17, 1978, the plaintiff brought this civil action asking that the Court declare her to be the winner of the election because there were enough invalid absentee votes counted to have affected the election.... On November 17, 1981, this Court entered a pretrial order which ordered that the following issues be submitted to a jury: . .. Whether certain electors whose absentee ballots were counted received assistance in casting those ballots contrary to Section 101.-051, Florida Statutes.
By that portion of its verdict which has been challenged and not yet affirmed, the jury determined that none of the following named electors ‘cast invalid ballots in the November 7, 1978, General Election because of their having received unlawful assistance in casting those ballots’: . .. During its deliberations, the jury submitted the following inquiry to the Court in relation to the issue of unlawful assistance:
1. The jury wishes the Court to state clearly what the attorneys said in their own arguments:
Re: 3 What is the meaning of the law? Is it lawful to assist more than one absentee voter outside the supervisor’s office?
The Court gave the following response to the foregoing question:
1. In regard to this question, the law is contained in the statute, and if it will be of help to you, we will permit you to take a copy of the statute to the jury room with you.
It was error for the Court to have submitted question numbered 3. on the verdict form to the jury without instructions as to the meaning of the law, or on the law of statutory construction, and this was compounded by the Court’s failure to provide a more meaningful response to the jury’s inquiry in regard to that question.
Any factual holding that the following named electors did not all receive from Mrs. Frances Smith assistance in casting their absentee ballots would be contrary not only to the great weight of the evidence but to all the relevant evidence:
. . . There was evidence introduced at the trial which indicated that Mrs. Frances Smith supported the defendant and there was no evidence to the contrary. Those voters listed in 14. above were all illiterate to the extent that they would not have known had their ballots been marked contrary to their instructions.
The controlling statutory language is that appearing in § 101.051, Florida Statutes, as follows:
101.051 Electors seeking assistance in casting ballots; form to be executed; forms to be furnished ....
(3) Any elector applying to cast an absentee ballot in the office of the supervisor, in any election, who is unable to read or write or who, because of some physical disability, needs assistance in voting may request the assistance of some person of his own choice, who has not previously assisted more than one other person during the election, in casting his absentee ballot; however, a blind elector may receive the assistance of any person of his own choice. However, no supervisor of elections or his deputies or members of his staff shall act in such a capacity. (4) If an elector needs assistance in voting pursuant to the provisions of this section, the clerk or one of the inspectors shall require the elector requesting assistance in voting to take the following oath:
I,-(Print name)-, swear or affirm that I am a registered elector and request assistance from _ (Print name) _ in voting at the (name of election) held on (date of election) for the following reason -[e.s.]

Contrary to the apparent assumption of the trial court and the parties to this cause, we conclude from a study of § 101.051, in the context of its history and the remainder of the election code, that subsection (3) is directéd to all electors who seek assistance in voting absentee. This means, of course, that the reference to those who “cast an absentee ballot in the office of the supervisor” is not limited to those who appear personally in the supervisor’s office to execute and deposit their ballots. It serves instead to encompass all electors voting absentee, wherever they may sign and deposit their ballots, because all such ballots are legally “cast” in the supervisor’s office and thus distinguished from those cast at the polls. That view of the absentee voting process has been taken by the Florida courts in resolving other disputes as to whether absentee ballots are actually cast when submitted before the date of an election:

No ballots have been cast nor will be cast by absentee voters until that date arrives. The law has merely provided for the accommodation of those who will not be present at their respective election precincts on that day that they may prepare a ballot which will be cast for them on that day ....

State ex rel. Peacock v. Latham, 125 Fla. 793, 170 So. 475, 480 (1936). That technical use of the term “cast” is substantiated in a general way by such explicit provisions of the present code as that permitting cancellation of marked ballots “provided the elector returns the ballot whether voted or not ... to the election board.” § 101.69, Florida Statutes. Our view of absentee ballots as those cast in the supervisor’s office, in the application of this section of the law, does not of course preclude other meanings for the term “cast” so as to include the entire process reaching back to the deposit of mailed ballots when context so dictates.

More compelling reasons for our construction of the statute may be found in the extreme particularity with which assistance at the polls is controlled, in the complex history of the regulation of all assistance to illiterates and other handicapped electors under Florida law, and in the general doctrine that specific statutory authority must exist for voter assistance because, absent such authority, the acts involved in voting are of such personal character that they may not be delegated. A substantial revision of § 101.051 in 1977 removed its former references to special registration cards under § 97.061, Florida Statutes, and removed from the subsections on both absentee and poll assistance the language on “examination required by this section,” leaving that requirement to be covered by subsection (4) as a condition to assistance for any elector who “needs assistance in voting pursuant to the provisions of this section.” Although appellant and intervenors devote some argument to the alleged absence of notice to absentee voters as to these restrictions, the record sheds no light on this subject. We accordingly do not treat such issues beyond noting the notice provided by the statute itself in conjunction with inquiry arguably invited by the specific instructions prescribed by § 101.65 that each elector shall “[s]ign your name” and “[m]ark your ballot in secret as instructed on the ballot.”

From a consideration of the analysis of particular defects in absentee ballots set forth in Boardman, supra, we reach the further conclusion that the trial court correctly assessed the effect of all the facts before him as a substantial violation of essential requirements of the absentee voting law, sustaining his conclusion that the improper assistance in the circumstances of this case adversely affected the sanctity of the ballot and the integrity of the election.

We find no merit in other arguments presented here by appellant or by the cross-appeal. Motion by appellee to strike portions of the briefs, or to supplement the record, is mooted by our conclusion on the merits.

The judgment is accordingly affirmed.

SHAW and THOMPSON, JJ., concur.

      . Although the court correctly found the ballots to be unlawfully cast because of assistance “in a manner other than that provided by law,” the further reason stated is in our opinion incorrectly based on a view that the statutory provisions “do not authorize nor make provision for assistance to absentee voters not casting their ballots in the office of the supervisor, but if they did the legislature would surely have provided for the regulation of that assistance in a manner similar to that set forth in Section 101.051; i.e., the execution of a Declaration to Secure Assistance and a limitation on the number of voters assisted by any one person.”

      . Subsections (1) and (2) refer to assistance in “the voting booth” on election day. All subsections together accordingly spell out the authority for and restrictions upon assistance to any elector in voting.

      . “The word ‘cast’ means ‘deposit (a ballot) formally or officially .... ” Port of Palm Beach District v. State, 156 Fla. 99, 22 So.2d 581, 582 (1945).

      . Other sections are specific as to requirements “[i]f an elector appears in person to cast an absentee ballot ...which could easily have been done in § 101.051(3) if that distinction had been intended.

      . See generally AGO 059-180, Bienn. Report of the Florida Attorney General 1959-1960.

      . Cases collected 29 C.J.S. Elections, §§ 208, 201(1), 26. Cf. AGO 078-89, Annual Report of the Fla. Attorney General 1978, and AGO 064-126, Bienn. Report of the Florida Attorney General 1963-1964.

      . Chapter 77-175, Laws of Florida, General Acts of 1977, Section 3.


text:
    Jay Henry VANDEN BOSCH, Appellant, v. Patricia Ann Vanden Bosch ELKINS, Appellee.
    Nos. 81-1434, 81-1437.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.
    Rehearing Denied Oct. 18, 1982.

      Gautier, Dempster & Lawrence and Theodore Dempster and Jerome J. Kavulich, Miami, for appellant.
    Proby & Adkins and Milton R. Adkins, Coral Gables, for appellee.
    Before HUBBART, C. J. and DANIEL S. PEARSON, J. and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

This is a consolidated appeal from (1) a final order modifying a substituted judgment of marriage dissolution by increasing the award of child support, and (2) a subsequent order awarding attorney’s fees for the former wife on the modification proceeding. We reverse.

The law is well-settled that a trial court is authorized to modify a child support award contained in a final judgment of marriage dissolution [which, as here, does not incorporate a property settlement agreement]: “[1] when such is found to be necessary by the court for the best interests of the child or children, [or] [2] when the child or any one of them has reached the age of 18 years, [or] [3] when such is found to be necessary by the court because there has been a substantial change in the circumstances of the parties.” § 61.13(1), Fla. Stat. (1981); see Wood v. Wood, 272 So.2d 14 (Fla. 3d DCA 1973). Where, as here, the party seeking a modification of child support contained in a final judgment of marriage dissolution relies on the statutory ground of “a substantial change in the circumstances of the parties,” said party bears the burden of proof on the issue in showing that there has been a substantial change in circumstances since the final judgment, which change was involuntary and permanent in nature. In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977); also see Lacy v. Lacy, 413 So.2d 472 (Fla. 2d DCA 1982); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981). Slightly different rules obtain where, unlike this case, the final judgment of marriage dissolution sought to be modified incorporates a property settlement agreement. See § 61.14, Fla.Stat. (1981); also compare Lacy v. Lacy, supra; Deatherage v. Deatherage, supra.

In the instant case, the former wife Patricia Ann Vanden Bosch Elkins filed in the trial court a motion for modification of child support previously awarded in a substituted final judgment of marriage dissolution. The sole ground relied upon for the requested increase in child support was an alleged “substantial change in the circumstances of the parties.” § 61.13(1), Fla. Stat. (1981). At the hearing on the motion for modification, the only change in circumstances shown was that the former wife had remarried, had voluntarily sold the marital home she was awarded as lump sum alimony, and had moved into a new residence which was substantially more expensive to maintain. This was clearly a voluntary change in circumstances in no way imposed upon the former wife nor required for the well-being of the minor children. It could not, therefore, form a basis for the increase in child support awarded herein.

We have not overlooked the claim that an additional change in circumstances was shown below in the children’s living and schooling expenses, apart from the residence move. We have, however, diligently searched the record in vain for any evidence to support this claim and can find nothing which even approaches the required showing of a substantial change in circumstances here; there is utterly no showing in this record that these aforesaid expenses have substantially increased since the substituted final judgment. We, therefore, have no alternative but to reverse the final judgment of modification under review.

We must also reverse the attorney’s fee award under review. There was utterly no legal basis to file the modification proceeding here and the former wife was, in any event, possessed of sufficient resources to retain counsel. As such, an attorney’s fee award was not authorized here. Deatherage v. Deatherage, supra.

The final judgment of modification and the order awarding attorney’s fees are, therefore,

Reversed.