author: NESBITT, Judge.

text:
    Robert Paul JACKSON, Appellant, v. MARINE TERMINALS, INC., Appellee.
    No. 81-2522.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Sept. 20, 1982.

      Dunn & Johnson and Irving Dunn, Miami, for appellant.
    Underwood, Gillis, Karcher, Reinert & Valle; Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

While employed by Lavino Shipping Company (Lavino), Jackson was seriously injured when he was struck by a tractor being operated by a fellow servant. The tractor was owned by the defendant, Marine Terminals, Inc. (MTI).

After Jackson received benefits pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901— 950 (1979) (LHWCA), he commenced this action against MTI for its common law liability by reason of ownership of the vehicle, a dangerous instrumentality. MTI’s motion for final summary judgment was granted and Jackson brought this appeal.

In support of the trial court’s order, MTI places heavy reliance upon Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966) (adhered to in Iglesia v. Floran, 394 So.2d 994 (Fla.1981)). Smith held that the owner/lessor of a dangerous instrumentality is immune from suit when an employee of the lessee is injured by a fellow employee’s negligent operation of the dangerous instrumentality, and the injured servant collects workers’ compensation benefits pursuant to the statutory scheme.

Realizing that Smith sounds the death knell for his suit, Jackson seeks to distinguish it. He contends that Smith cannot apply here because in that case the plaintiff had been compensated by Florida’s workers’ compensation act, whereas Jackson received his benefits under the federal LHWCA. We are unimpressed by this argument.

It is true that the LHWCA does not prevent suits against third parties, viz. parties other than the employers or co-employees of a compensated plaintiff. 33 U.S.C. §§ 905(b), 933(i); Guidry v. Continental Oil Company, 640 F.2d 523 (5th Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 96, 70 L.Ed.2d 87 (1981); Mallard v. Aluminum Company of Canada Ltd., 634 F.2d 236 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). However, Jackson’s complaint against MTI invoked Florida common law and thus the Smith immunity. The rationale of the Smith decision evolved from policies which remain unaffected by the particular statutory source of the compensation benefits. In Smith, it was observed that “vicarious liability founded on the doctrines of dangerous instrumentality and respondeat superior is primarily for the protection of third party members of the public, rather than injuries sustained by fellow employees under workmen’s compensation from negligence inter se.” 182 So.2d at 424. The fact that Jackson’s benefits were obtained under a federal act poses no bar to the application of the Smith holding to his claim against MTI.

In a second attempt at distinguishing Smith, Jackson asserts that in the Smith case the dangerous instrumentalities were leased to the plaintiff’s employer, while here Lavino merely borrowed the injurious tractor from MTI. As a basis for the legal difference in this distinction, Jackson directs our attention to LeSuer v. LeSuer, 350 So.2d 796 (Fla. 1st DCA 1977), wherein it was held that the owner/operator of a crane and his partner could not partake of the immunity of an employer by reason of Florida’s workers’ compensation law, where the crane had injured one of the employer’s servants. In declining to apply the Smith doctrine, the LeSuer court stated that “[Tjhere was no lease, so the crane was not ‘equivalent’ to one owned by [the employer].” 350 So.2d at 797.

The LeSuer case has no application to the present controversy. Despite the above-quoted dictum, LeSuer expressly left undecided “[a]ny question of the owner partners’ vicarious liability for [the] allegedly negligent operation of the crane, because of the dangerous instrumentality doctrine ... . ” 350 So.2d at 797. Additionally, even after drawing every possible inference in favor of Jackson, as we are required to do upon appeal from a summary judgment, Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977), it is obvious that the tractor which injured Jackson was not simply borrowed by Lavino; rather, it was the subject of a rental arrangement with MTI. The affidavit of the president of MTI stated that the subject tractor was rented, and incorporated by reference an invoice and rental agreement entered into between La-vino and MTI. The affidavit and incorporated exhibits left no doubt that there was a monetary consideration involved in the interchange of tractors from MTI to Lavi-no. Jackson filed his counter-affidavit to the effect that the tractor was “borrowed” by Lavino from MTI. Jackson’s affidavit made it quite clear that the tractor was the property of MTI, but it did not contradict the portion of MTI’s affidavit stating that a valuable consideration was paid in exchange for Lavino’s use of the tractor. Consequently, in this posture of the case, the trial court quite correctly relied upon the Smith decision.

We hold and hold only that under Florida law there is no liability of owners of dangerous instrumentalities to a worker injured by a fellow worker and compensated under the Longshoremen’s and Harbor Workers’ Compensation Act where the injured worker’s employer has tendered valuable consideration for use of the offending instrumentality.

Affirmed.


source: Caselaw Access Project

author: HUBBART, Chief Judge. PER CURIAM.

license: Public Domain

text:
    Milton F. STEINHARDT and Gladys Goldman, as Trustee, Appellants, v. Milton RUDOLPH and Hilda Rudolph, his wife, et al., Appellees. Milton RUDOLPH and Hilda Rudolph, his wife, et al., Appellants, v. Milton F. STEINHARDT and Gladys Goldman, as Trustee, Appellees.
    Nos. 80-957, 80-2527.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Dec. 28, 1982.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for Milton F. Steinhardt and Gladys Goldman.
    Michael L. Hyman and Andrew D. Ka-plan, Miami, for Milton Rudolph and Hilda Rudolph.
    Before HUBBART, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central issue presented by these consolidated appeals is whether a certain rent escalation clause, tied to the Consumer Price Index and the anticipated eventuality of a dollar devaluation, contained in the 99-year ground lease of condominium property in this case is unenforceable in futuro as being unconscionable under Florida contracts law. We conclude that the trial court was correct, based on this record, in finding that this lease provision was unconscionable and in refusing to enforce same in futuro; we further find no error in the other findings of the trial court attacked on this appeal. The final orders appealed from are, accordingly, affirmed in all respects.

I

The facts relevant to the central issue herein presented are as follows. Between 1965-70, Mr. Milton F. Steinhardt, the defendant-developer in this case, acquired a tract of land located in Dade County, Florida. He proceeded to develop this land by constructing a condominium complex later named Eastern Shores White House Condominium with 119 individual apartment units. As a means of selling these individual units under the condominium form of ownership, Mr. Steinhardt set up a land trust with respect to the land on which the condominium project was built. Mr. Stein-hardt named as trustee of the trust his employee, the defendant Gladys Goldman; he named as beneficiaries of the trust himself and several members of his family: Rafael Steinhardt, Esta Steinhardt and Joan Dunphy. It is undisputed that Mr. Steinhardt controlled this land trust and that Gladys Goldman took her orders directly from Mr. Steinhardt.

As a further means of selling the individual condominium units, Mr. Steinhardt, on March 2, 1970, entered into a nominal lease of the land on which the condominium was situated with the nominal trustee of the land, the defendant Gladys Goldman. By the terms of this lease, Gladys Goldman purported to lease this land to Mr. Stein-hardt with express provisions therein that Mr. Steinhardt would assign his interest, as lessee of the land, to the individual condominium unit owners upon the sale of said units. Under- the terms of the lease, the individual unit owners, as assignees of the nominal lessee, Mr. Steinhardt, were required to pay the cost of .extensive insurance, real estate taxes, repair expenses, and all other conceivable expenses arising from the operation of the underlying property; the nominal trustee-lessor Gladys Goldman and the real owner Mr. Steinhardt were not required to assume any responsibility with respect to the expenses, upkeep or management of the land.

The lease further provided for an annual rental rate [$51,480.] to be paid pro rata by the individual condominium unit owners as assignees of the nominal lessee, Mr. Stein-hardt. This rental rate, in turn, was subject to a double escalation clause. First, the lease provided that the rental rate would be adjusted upward periodically based on a formula directly tied to the Consumer Price Index; the rental rate, however, could never be reduced downward in the event of a fall in the Consumer Price Index. Second, the lease provided for an additional escalation of the rental rate in the event the dollar was ever devaluated, said escalation to be in direct proportion to the amount of the devaluation. A lien against the individual unit owner’s apartment was created upon failure to pay this rent when due.

Mr. Steinhardt, in turn, sold all of the individual condominium units, together with an assignment of the above-stated ground lease, to each of the 119 condominium unit owners at Eastern Shores White House Condominium and filed the required declaration of condominium on the project. In so doing, it appears that Mr. Steinhardt’s salespeople urged the individual unit owners not to engage an attorney to represent them in their respective transactions as they were led to believe that counsel would be provided for them. The unit owners, as a consequence, did not engage counsel on their individual transactions, but were represented, so they thought, by Mr. Rafael Steinhardt, who, unbeknownst to them, was one of the nominal beneficiaries of the land trust which ostensibly benefited from the lease. Mr. Rafael Steinhardt, however, did not, in fact, represent any of the unit owners on their respective closings herein, but instead, represented solely the developer, Milton Steinhardt; indeed, Rafael Stein-hardt drew up all the land trust, lease and condominium documents involved in the entire project as counsel for Milton Stein-hardt.

As part of the sales transactions in this case, a complex series of documents were supplied to each of the unit owners in a so-called Blue Book, which included the subject lease document. There is evidence, however, that these documents were supplied to a number of the unit owners either at or after their respective closings. At any rate, the unit owners apparently relied on their “counsel” to protect their interests and, it is asserted, were unaware of the content or meaning of the double escalation clause in the lease as discussed above. This clause, critical to the instant case, has since been enforced to steadily increase the rent paid by the individual unit owners to lease the ground on which the subject condominium is situated.

On March 25,1975, Eastern Shores White House Association, Inc. filed, on behalf of itself and all of its individual unit owners, as a class, a multi-count complaint against Milton Steinhardt and Gladys Goldman seeking in Count IV to restrain the enforcement of the double escalation clause in the ground lease agreement based on a theory of unconscionability. A second complaint was later filed by Milton and Hilda Rudolph, et al., as individual unit owners, both for themselves individually and as representatives of the class of all condominium unit owners in the Eastern Shores White House Condominium; two counts were set forth in the second complaint, not relevant here, one attacking the double escalation clause and the other questioning the landlord’s title to the property. Appropriate answers were filed to these complaints, and both causes were, in turn, consolidated for a single disposition and trial.

On January 14, 1980, the cause came on for non-jury trial in the court below on all issues save certain damage claims. At that time, testimony was adduced establishing the above-stated facts. The trial court subsequently entered a final judgment declaring the double rent escalation clause unconscionable and unenforceable from and after February 12, 1980 — the date of a post-trial hearing at which the parties preliminarily agreed' to enter into a stipulation of settlement. The trial court also entered a subsequent final order finding for the defendants on the remaining two counts of the amended complaint which questioned the title of the landlord in the lease premises and attacked the double escalation clause on grounds as stated above. The defendants Steinhardt and Goldman appeal the former ruling; the plaintiff unit owners appeal the latter ruling.

II

The law in Florida is clear that an unconscionable contract or an unconscionable term therein will not be enforced by a court of equity. “It seems to be established by the authorities that where it is perfectly plain to the court that one party [to a contract] has overreached the other and has gained an unjust and undeserved advantage which it would be inequitable to permit him to enforce, that a court of equity will not hesitate to interfere, even though the victimized parties owe their • predicament largely to their own stupidity and carelessness.” Peacock Hotel, Inc. v. Shipman, 108 Fla. 633, 138 So. 44, 46 (1931). Stated differently, “[i]f a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.” Restatement (Second) of Contracts § 208 (1979); see also § 672.302, Fla.Stat. (1981). At common law, an unconscionable, and thus unenforceable, contract or term therein was defined as one which “[n]o man in his senses and not one under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Hume v. United States, 132 U.S. 406, 411, 10 S.Ct. 134, 33 L.Ed. 393 (1889), quoting from Earl of Chesterfield v. Janssen, 28 Eng.Rep. 82,100 (1750). In a more modern context, “ ‘[m]ost courts take a ‘balancing approach’ to the unconscionability question, and to tip the scales in favor of unconscionability, most courts seem to require a certain quantum of procedural plus a certain quantum of substantive unconscionability.’ ” Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865, 868 (Fla. 4th DCA), pet. for review denied, 408 So.2d 1094 (Fla.1981), citing with approval J. White & R. Summers, Uniform Commercial Code 128 (1972). Procedural unconscionability focuses on those factors surrounding the entering of the contract which add up to an absence of meaningful choice on the part of one of the parties to the contract as to the terms therein; substantive unconscionability, on the other hand, focuses directly on those terms of the contract itself which amount to an outrageous degree of unfairness to the same contracting party. See e.g., Kohl v. Bay Colony Club Condominium, Inc., supra, at 867-68 and authorities collected.

This procedural-substantive analysis is, however, only a general approach to the unconscionability question and is not a rule of law. For example, the Florida decisions concerning unconscionability as applied to a mortgage foreclosure case are entirely devoid of this analysis. See, e.g., New Eng land Mutual Life Insurance Co. v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975); Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970); Althouse v. Kenney, 182 So.2d 270 (Fla. 2d DCA 1966); Koschorek v. Fischer, 145 So.2d 755 (Fla. 2d DCA 1962); Lieberbaum v. Surfcomber Hotel Corp., 122 So.2d 28 (Fla. 3d DCA 1960). Moreover, the Restatement (Second) of Contracts § 208 (1979) does not even attempt to define unconscionability in a black letter rule of law, whether in procedural-substantive terms or otherwise, because the legal concept involved here is so flexible and chameleon-like. Still, we regard the procedural-substantive analysis as generally helpful and note that it has been employed in past cases in analyzing the asserted un-conscionability of long-term condominium leases. See e.g., Bennett v. Behring Corp., 466 F.Supp. 689 (S.D.Fla.1979); Kohl v. Bay Colony Club Condominium, Inc., supra. We, accordingly, apply it in this case.

All of this does not mean, however, that a court will relieve a party of his obligations under a contract because he has made a bad bargain containing contractual terms which are unreasonable or impose an onerous hardship on him. Indeed, the entire law of contracts, as well as the commercial value of contractual arrangements, would be substantially undermined if parties could back out of their contractual undertakings on that basis. “ ‘People should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain. Also, they should be permitted to enter into contracts that actually may be unreasonable or which may lead to hardship on one side. It is only where it turns out that one side or the other is to be penalized by the enforcement of the terms of a contract so unconscionable that no decent, fairminded person would view the ensuing result without being possessed of a profound sense of injustice, that equity will deny the use of its good offices in the enforcement of such unconscionability.’ ” 14 S. Williston, A Treatise on the Law of Contracts § 1632 at 51-52 (3d ed. Jaeger 1972), quoting with approval from Carlson v. Hamilton, 8 Utah 2d 272, 332 P.2d 989, 990-91 (1958). This principle of unconscionability is, we think, an important, if infrequently used, safety valve in our law of contracts because “courts should be enabled to refuse enforcement of a contract ... when such enforcement would not be in keeping with the basic function of any court — the administration of justice.” Murray, Unconsciona-bility: Unconscionability, 31 U.Pitt.L.Rev. 1, 2 (1969).

We deal today with a typical long term 99-year condominium lease, here a ground lease, established by a condominium developer as part of a sales package for selling the individual condominium units. In recent years, these leases have come under increasing judicial and legislative scrutiny for their asserted unfairness to the individual unit owners. It is now recognized that a cause of action sounding in unconscionability lies against the enforceability of such leases. Avila South Condominium Ass’n v. Kappa Corp., 347 So.2d 599, 605 (Fla.1977); Cole v. Angora Enterprises, Inc., 370 So.2d 1227 (Fla. 4th DCA 1979); Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316, 1317-18 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979); Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32, 36 (Fla. 3d DCA 1977). Several other causes of action, not relevant here, have also been recognized by the courts as a means of attacking these same leases. Avila South Condominium Ass’n v. Kappa Corp., 347 So.2d 599 (Fla.1977). To facilitate the bringing of these actions, the Florida Supreme Court has specifically adopted a rule of civil procedure [Fla.R.Civ.P. 1.220(b), now renumbered Fla.R.Civ.P. 1.221] allowing individual condominium unit owners as a class to attack the lawfulness, including the unconscionability, of such leases in a single class action. Avila South Condominium Ass’n v. Kappa Corp., supra at 608; Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d at 869 (Fla. 4th DCA 1981). Moreover, individual Florida Supreme Court Justices have, in separate opinions, strongly criticized these leases and developer practices associated therewith. Avila South Condominium Ass’n v. Kappa Corp., supra at 609-10 (England, C.J., concurring in part; dissenting in part); Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628, 630-34 (Fla.1973) (Ervin, Boyd, JJ., dissenting), cert. denied, 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974); Fountainview Ass’n v. Bell, 214 So.2d 609, 609-14 (Fla.1968) (Ervin, Roberts, JJ., dissenting).

The Florida Legislature, in turn, has also been quite critical concerning the over-all fairness of many of these condominium leases:

“The Legislature expressly finds that many leases involving use of recreational or other common facilities by residents of condominiums were entered into by parties wholly representative of the interests of a condominium developer at a time when the condominium unit owners not only did not control the administration of their condominium, but also had little or no voice in such administration. Such leases often contain numerous obligations on the part of either or both a condominium association and condominium unit owners with relatively few obligations on the part of the lessor. Such leases may or may not be unconscionable in any given case. Nevertheless, the Legislature finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases.... ” § 718.122(2), Fla.Stat. (1981).

These onerous obligations and circumstances are, in turn, set out in Section 718.122(1), Florida Statutes (1981), and, when all are present, render a “recreational or other common facilities” condominium lease presumptively unconscionable “irrespective of the date on which such lease was entered into....” §718.122(1), Fla.Stat. (1981).

One clause frequently contained in these condominium leases is, as here, a so-called escalation clause which “provides that the rental under the lease ... shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.” § 718.401(8)(a), Fla.Stat. (1981). This clause has by statute been prospectively declared “void” as against' Florida public policy and may no longer be included or enforced in any lease which, unlike here, was entered into subsequent to the effective date of the statute. § 718.401(8)(a), Fla.Stat. (1981); Fleeman v. Case, 342 So.2d 815 (Fla.1976). Even so, the courts have applied the statute to leases existing at the time that the statute became effective where, unlike this case, the declaration of condominium specifically adopts the Florida Condominium Act and all future amendments thereto. Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978); see also Century-Village, Inc. v. Wellington E, F,- K, L, H, J, M & G, Condominium Ass’n, 361 So.2d 128 (Fla.1978); Sandalfoot South One, Inc. v. Sandalfoot Cove Country Club, Inc., 404 So.2d 752 (Fla. 4th DCA 1981); Cole v. Angora Enterprises, Inc., 403 So.2d 1010 (Fla. 4th DCA 1981); Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla. 3d DCA), pet. for review denied, 407 So.2d 1105 (Fla.1981); Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium Club, Inc., 385 So.2d 103 (Fla. 3d DCA), pet. for rev. denied, 392 So.2d 1374 ( Fla.1980). Kaufman and its progeny illustrate, once again, the willingness of Florida courts to void onerous terms in such leases in appropriate circumstances. In sum, then, many of these long term condominium leases have come under sharp judicial and legislative attack in recent years for their gross unfairness to the individual unit owners, a factor we consider highly relevant in determining whether a particular lease, in appropriate circumstances, may be unenforceable, either in whole or in part, as being unconscionable under Florida contracts law.

Ill

We now turn to a consideration of whether the continued enforcement of the double escalation of rent clause contained in the 99-year condominium ground lease in the instant case was barred as being unconscionable under Florida contracts law. Here we have no trouble in concluding that the trial court- was well within its discretion, based on this record, in finding that the continued enforcement of this clause was, indeed, so barred as being contractually- unconscionable. We must, accordingly, reject the defendants Steinhardt and Goldman’s contentions to the contrary on this appeal.

A

The factors indicating procedural uncon-scionability in this case are manifest based on the record before us. The individual condominium unit owners had, in our view, no real meaningful choice in accepting the double escalation of rent clause or, indeed, any other clause contained in the subject ground lease.

1

First, the subject lease was solely negotiated and executed by the developer Stein-hardt and his employee, the nominal land trustee Goldman, who, concededly, took orders directly from the developer Steinhardt. The individual condominium unit owners in no sense had any voice as to any of the terms included in the subject lease, including the double escalation of rent clause. This avowed self-dealing by the developer must, therefore, be considered a factor— truly a powerful one — of procedural uncon-scionability under Florida contracts law. Indeed, this factor has already been recognized as an indicia of unconscionability when applied to other related long-term condominium leases. See e.g., § 718.-122(l)(a), Fla.Stat. (1981).

2

Second, the individual unit owners were, in effect, required to become assignees of the developer Steinhardt’s “tenancy” in the subject ground lease as a precondition for buying their individual condominium units; they could not, for example, buy their condominium units and decline to become tenants on the subject lease. Given the great need for, and the admitted scarcity of, housing units in this state — and, indeed, in this nation — the meaningful choice of the unit owners as to whether to accept the lease in question was a decidedly minimal one. As such, the lease was akin to a contract of adhesion long condemned under our law, and the corresponding impact on the unit owners’ choice here must be considered one factor of procedural unconscionability under Florida contracts law. See e.g., Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628, 630-34 (Fla.1973) (Ervin, Boyd, JJ., dissenting), cert. denied, 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974); Fluor Western, Inc. v. G&H Offshore Towing Co., 447 F.2d 35, 39 (5th Cir.1971) (en banc), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972); Bolgar, The Contract of Adhesion: A Comparison of Theory and Practice, 20 Am.J.Comp. 53 (1972).

3

Third, the sales people of the developer in this case urged the individual unit owners not to obtain their own counsel for their respective closings on the sale of the individual condominium units. As a result, the unit owners did not obtain counsel for their individual closings and were under the impression that they had counsel protecting their interests supplied by the developer. That counsel, however, was, in fact, representing solely the developer Steinhardt at these closings. Indeed, this lawyer, Rafael Steinhardt, had drawn up all of the legal documents involved in this condominium project, including the subject lease, and was also a nominal beneficiary of the land trust who ostensibly benefited from the subject lease. The documents, including the subject lease, were not even supplied to many of thé individual unit owners until at or after their respective closings. This entire course of conduct had the effect of depriving the individual unit owners of any real knowledge of what they were getting into when they technically agreed to become assignees of the developer Steinhardt’s leasehold on the subject lease. Again, we deal with a powerful procedural unconscion-ability factor under Florida contracts law.

B

The substantive unconscionability factors in this case are even more abundant when one focuses on the actual terms in the subject lease, including the double escalation of rent clause. This lease was, without doubt, a one-sided developer’s lease containing exceptionally onerous terms for the individual unit owners.

1

First, the double escalation of rent clause is tied to both the Consumer Price Index and any possible dollar devaluation with one important catch: only a rise in rents is authorized here, not a reduction — even though the Consumer Price Index falls or the dollar is legally appreciated in value. This double escalation of rent clause was made effective for the entire life (99 years) of the lease. In sum, the developer Stein-hardt, by the terms of this lease, is entirely protected on rent collections for nearly a century from the vicissitudes of inflation and recession, while the individual unit owners are entirely at the mercy of these economic forces; even if the market should drop out and the dollar be devaluated, the unit owners must, nonetheless, pay an inflated price for greatly devalued land. Surely, we deal here with substantive un-conscionability factors of the first magnitude under Florida contracts law. Indeed, these factors have already been recognized, in part, as indicia of common law uncon-scionability when applied to other related long-term condominium leases. See e.g., § 718.122(l)(e)(h), Fla.Stat. (1981). Moreover, the legislature has deemed the subject rent escalation clause, in itself, void as against Florida public policy when applied, unlike this case, to leases entered into subsequent to the effective date of the statute, § 718.401(8)(a), Fla.Stat. (1981); Fleeman v. Case, 342 So.2d 815 (Fla.1976). This gives added weight, we think, to our conclusion that the rent escalation clause should be, at least, one indicia of substantive un-conscionability under Florida contracts law when applied to any condominium lease including the lease in the instant case.

2

Secondly, the subject lease imposes upon the individual condominium unit owners the duty of paying the real estates taxes, the insurance costs, and all maintenance expenses and obligations with respect to the leased land. The developer Steinhardt through his nominal trustee Goldman has no cost or maintenance obligation whatever with reference to the lease; his sole duty under the lease is to accept rents. As the lease lasts for nearly a century, the cost obligations imposed on the individual unit owners are truly staggering while the developer has no cost or management obligations at all. These indicia, without doubt, are powerful factors of'substantive uncon-scionability under Florida contracts law. Indeed, such factors have already been recognized as indicia of common law uncon-scionability when applied to other related long-term condominium leases. See e.g., § 718.122(l)(b)(c)(d), Fla.Stat. (1981). Moreover, it is clear that all the above terms, when accompanied by a rent escalation clause, as here, are sufficient in themselves to place the lease under a cloud of suspect unconscionability based on Florida contracts law. Kohl v. Bay Colony Club Condominium, Inc., supra at 869.

3

Third, the “benefit” obtained by the individual unit owners by the subject lease is almost non-existent. The unit owners receive the right to “enjoy” the land on which their condominium is situated. While this is a technical benefit, it is a minimal one at best as the leasehold interest held by the individual unit owners clearly has no real economic value by itself in the open market. Surely, no buyer would be remotely interested in purchasing the individual unit owner’s tenancy herein (apart from the individual condominium unit) for the privilege of “enjoying” land on which the subject condominium building is situated. The leasehold interest of the individual unit owners is, therefore, for all intents and purposes, inalienable by itself, and the individual unit owners, like it or not, are saddled with paying rent thereon for the entire 99-year life of the lease or for so long as they own their individual condominium unit. Moreover, the saleability of their individual condominium unit is considerably reduced when combined with the sale of said lease as the terms of the lease are so onerous; this is particularly true where, as here, the unit owners are competing in a market where no new leases may contain the subject cost of living escalation clause. § 718.-401(8)(a), Fla.Stat. (1981).

4

Fourth, the subject lease specifically provides that a lien may be imposed on the individual apartment unit for the failure of the unit owner to pay his share of the rent under the lease. The developer, then, is totally protected against non-payment of rent at the expense of the unit owners’ interests. We deal again with a substantive unconscionability factor under Florida contracts law which has already been adopted when applied to other related long-term condominium leases. See e.g., § 718.-122(l)(f), Fla.Stat. (1981).

C

Putting all the above-stated procedural and substantive unconscionability factors together, we have no trouble whatever in concluding that, at the very least, the continued enforcement of the double escalation of rent clause in the subject lease was unconscionable, and classically so, under Florida contracts law. The individual unit owners, by this lease, are saddled with a 99-year commitment to lease the land on which their condominium is situated. As this tenancy has virtually no economic value on the open market and is tantamount to being inalienable in itself, the lease, in effect, locks the unit owners into paying rent for the entire 99-year life of the lease or for as long as they own their individual unit. Moreover, the saleability of their individual unit is considerably reduced because of the lease. The unit owners, in addition, are required to pay an annual rental for this land of $51,480, which, in turn, escalates as the Consumer Price Index rises, but does not decrease when the same Index falls; the rent further escalates in the event of a dollar devaluation. The unit owners are also required to bear all the expenses connected with the upkeep and management of the land, to wit: real estate taxes, insurance, and any and all maintenance expenses. A lien is placed on the individual condominium units in the event that a unit owner’s share of the rent is not paid under the lease. The developer Mr. Steinhardt, on the other hand, bears no responsibility whatever under the lease, save that of collecting rent.

The lease, in turn, was negotiated, in effect, solely by the developer himself, with the unit owners having no voice whatever as to any of its terms. The lease was, in addition, made a precondition to the sale of the individual units making it akin to an adhesion sale. And, finally, the entire lease transaction was hidden, in part, under a smoke screen wherein the developer successfully urged the unit owners not to obtain lawyers to protect their rights in their respective closings, withheld in part the legal papers associated with the transaction, and had a lawyer at the individual closings who represented solely the developer’s own interests.

It is difficult, in our view, to imagine a lease with more procedural and substantive indicia of unconscionability than the lease we examine in the instant case. Surely “[n]o man in his senses and not one under delusion would make [such a lease] on the one hand, and ... no honest and fair man would accept [such a lease] on the other.” Hume v. United States, 132 U.S. 406, 411, 10 S.Ct. 134, 33 L.Ed. 393 (1889), quoting from Earl of Chesterfield v. Janssen, 28 Eng.Rep. 82, 100 (1750). Without doubt, “one party [the developer Steinhardt] has overreached the other [the individual condominium unit owners] and has gained an unjust and undeserved advantage which it would be inequitable to permit him to enforce,” Peacock Hotel, Inc. v. Shipman, 103 Fla. 633, 138 So. 44, 46 (1931), as “‘no decent, fairminded person would view the ensuing result [here] without being possessed of a profound sense of injustice ....’” 14 S. Williston, A Treatise on the Law of Contracts § 1632 at 52 (3d ed. Jaeger 1972), quoting with approval from Carlson v. Hamilton, 8 Utah 2d 272, 332 P.2d 989, 990-991 (1958). Indeed, we think the quantum of procedural and substantive unconscionability in this case is so great that the entire lease, or at least the double escalation of rent clause, was, in all likelihood, unenforceable from its very inception. The trial court, however, did not void the entire lease and, indeed, did not even void the double escalation of rent clause from its inception. Instead, the trial court imposed a very modest remedy which was to prohibit the enforcement of the double escalation of rent clause, in futuro, from a date immediately subsequent to the trial herein. Under all the circumstances, we think this remedy was well within the discretion of the trial court to impose. We, accordingly, have no difficulty in affirming the aforesaid ruling of the trial court as being amply supported by substantial, competent evidence in this record.

IV

We turn now to the appeal taken by the individual unit owners attacking two of the findings made by the trial court below. We find no merit in this appeal. First, it is clear that the declaration of condominium in this case does not adopt future amendments of the Florida Condominium Act, and, as such, Kaufman v. Shere, supra, is inapplicable to this case. Second, we are unimpressed with the individual unit owners attack on the landlord’s title to the leased land in this case as “it is a well-established rule that lessees are estopped from denying their lessors’ title, during the existence of the relationship of landlord and tenant.” Avila South Condominium Ass’n v. Kappa Corp., 347 So.2d at 603 (Fla.1976); in this connection, we are persuaded that Ackerman v. Spring Lake of Broward, Inc., 260 So.2d 264 (Fla. 4th DCA 1972), has no more vitality in view of the Avila South decision of the Florida Supreme Court. The final orders under review in this cause are, therefore, in all respects

Affirmed.

ON REHEARING

PER CURIAM.

The defendants Steinhardt and Goldman have filed a motion for rehearing in which they urge for the first time on appeal that the double escalation of rent clause contained in the condominium ground lease herein permits a reduction in rentals due under the lease in the event of a fall in the consumer price index and therefor cannot be considered, as we have held, a factor of substantive unconscionability under Florida contracts law. We cannot agree.

By the terms of the subject clause, the basic rental rate of $51,480 a year due under the lease can never be reduced no matter how far the consumer price index might fall; the rentals can only increase on a periodic basis from this basic rental rate. True, these rent increases might arguably be erased by a subsequent fall in the consumer price index, but the basic rental rate could never be reduced no matter how depressed the economy might become. In addition, the rentals are subject to a proportionate increase in the event of a dollar devaluation — irrespective of any movement in the consumer price index. Under any view of this lease, then, the developer is fully protected for nearly a century against the vicissitudes of inflation and depression-while the individual unit owners are left entirely at the mercy of these economic forces. We deal here, as we have held, with substantive unconscionability factors of the first magnitude under Florida contracts law.

We have considered this and all other points raised on the subject motion for rehearing and find them to be without merit. The motion for rehearing is, therefore, denied.

      . The rent escalation clause provides as follows:
      “C. In view of the fluctuating purchasing power of the dollar, the parties hereto, desiring to adjust the above described rentals to such purchasing power, agree that adjustments shall be made in the annual rental from time to time as hereinafter provided so as to reflect as nearly as possible such fluctuations. The parties hereto adopt as standard for measuring such fluctuations the Consumer Price Index (revised using the 1957-1959 average as equal to 100), United States average on all items and commodity groups issued by the Bureau of Labor Statistics of the United States Department of Labor, hereinafter referred to as the “Index”. The average of the Index for the months of June, July, and August, 1970, shall be taken as the Basic Standard. The average of the Index for those months was 135.6, and that figure is therefore the Basic Standard as that term is hereinafter used. The first adjustment shall be made in the year 1974 so that it will operate for the next five-year period commencing on the 1st day of April, 1975. Thereafter, for the remainder of the term, adjustments shall be made every five years and shall be in effect to the next five-year period. These adjustments shall be made and the rental for the ensuing period shall be arrived at by multiplying the rent of FIFTY ONE THOUSAND FOUR HUNDRED EIGHTY DOLLARS ($51,480.00) by a fraction, the numerator of which shall be the new Index figure and the denominator of which shall be the Basic Standard. The new Index figure will be the average for the months of June, July, and August of the Lease year prior to that in which the adjustment is made. For example, the new Index figure shall be taken from the months of June, July, and August, 1974, and would be utilized for the purpose of recomputing the rentals commencing the 1st day of April, 1975, and thereafter at the end of each five-year period.
      It is understood that the above Index is now being published by the Bureau of Labor Statistics of the United States Department of Labor, monthly. Should it be published at other intervals so that the three months’ average cannot be determined exactly as above contemplated for the Basic Standard, then the Basic Standard shall be arrived at from the Index or Indices published by said Bureau most closely approximating such three months’ interval. Should said Bureau of Labor Statistics change the manner of computing such Index, the Bureau shall be requested to furnish a conversion factor designed to adjust the new Index to the one previously in use, and the adjustment to the new Index shall be made on the basis of such conversion factor. Should the publication of said Index be discontinued by said Bureau of Labor Statistics, then such other Index as may be published by such Bureau most nearly approaching said discontinued Index shall be used in making the adjustments herein provided for. Should said Bureau discontinue the publication of an Index approximating the Index herein contemplated, then such Index as may be published by another United States Government Agency as most nearly approximates the Index herein first above referred to shall govern and be substituted as the Index to be used, subject to the application of an appropriate conversion factor to be furnished by the government agency publishing the adopted Index. If such governmental agency will not furnish such conversion factor, then the parties shall agree upon a conversion factor or a new Index and, in the event agreement cannot be reached as to such conversion factor or such new Index, then the parties hereto agree to submit to arbitration, chosen in accordance with the Rules of the American Arbitration Association, the selection of a new Index approximating as nearly as can be the Index hereinabove first contemplated, which new Index may be the one published by a governmental agency or one published by a private agency and generally accepted and approved as an Index reflecting the contemplated fluctuation in the purchasing power of the dollar. Should there be no such publication by a governmental agency, then an Index prepared by a private agency generally accepted and approved as an Index reflecting the contemplated fluctuation in the purchasing power of the dollar shall be agreed upon by the parties hereto, or failing such an agreement, a generally accepted and approved Index shall be selected by arbitrators in accordance with the Rules of the American Arbitration Association. The selection of an Index by such arbitrators in either of the above events shall be binding upon the parties hereto. In no event shall the basic rental payable to the Lessor decrease below FIFTY ONE THOUSAND FOUR HUNDRED EIGHTY DOLLARS ($51,-480.00), which is the basic rental payable under this Lease.
      In the event of any controversy arising as to the proper adjustment for rental payments as herein provided, the Lessee shall continue paying the rental under the last preceding rental adjustment as herein provided until such time as said controversy has been settled, at which time an adjustment will be made retroactive to the beginning of the adjustment period in which the controversy arisejsic].

        In addition to the foregoing paragraph providing for the' increase of the rental covered by this Lease due to price fluctuations, it is agreed that in the event the United States dollar should ever be officially devaluated by the United States Government, or replaced by a legal specie of a lesser value, then and in that event the rental to be paid by the Lessee to the Lessor shall be increased in proportion to said devaluation so that the rental, including any increase by reason of fluctuations in the Consumer Price Index, will be equal to the value of the United States dollar as of the date of the execution of this Lease.

      29. DEVALUATION: In the event that the United States Dollar should ever be officially devalued by the United States Government or replaced by a regular specie of a lesser value, then and in that event the rental to be paid by the Lessee to the Lessor or any purchase price to be paid to the Lessor by the Lessee shall be increased in proportion to said devaluation so that the rental to be paid to the Lessor or the purchase price of the property covered by this Lease to be paid to the Lessor, shall be the same in terms of actual value as the United States Dollar was on March 2, 1970.”

      . Mr. Rafael Steinhardt testified below that he was unaware of the asserted deception practiced by the developer’s salespeople and that to date he has received no income as a nominal beneficiary of the subject land trust. There has, accordingly, been no contention raised here that counsel was guilty of any professional improprieties.

      . An additional count [Count V], not relevant here, also attacks the double escalation clause as being void under Section 711.231 Florida Statutes (1975). The trial court dismissed this count and this dismissal was affirmed on appeal. Eastern Shores White House Ass’n v. Steinhardt, 347 So.2d 788 (Fla. 3d DCA 1977). This count was repled in a subsequently filed complaint and was tried below resulting in a judgment for the defendants herein. The plaintiffs have appealed this ruling. For reasons developed later, we find no error in this decision of the trial court.

      . See footnote 3, supra.

      . On the contrary, the defendants argued in their main brief that “cost of living index adjustment clauses,” such as found in the subject lease, have been universally upheld, and are a “recognized method for determining rental increases in a long term lease.” (Appellant’s main brief, pp. 14, 15). In addition, the defendants in both their main brief and reply brief frequently refer to the subject rent provision as an “escalation clause.” (Appellant’s main brief, pp. 4, 11, 13, 18; Appellant’s reply brief, pp. 3, 5, 6, 7, 12).

      . The complex rental adjustment formula based on the cost of living index as provided in the double escalation of rent clause herein appears to support this result — although the lease inconsistently provides elsewhere that the entire clause is one “providing for the increase of the rental covered by this Lease due to price fluctuations.” [emphasis added]. It is therefore open to argument whether the lease provides for any reductions in lease rental payments; indeed, the defendants in both their main brief and reply brief have made arguments which implicitly assume that only rent increases are permitted under the subject rent clause. See note 1, supra.


author: JOANOS, Judge.

text:
    Carroll LAURAMORE, Appellant, v. STATE of Florida, Appellee.
    No. AF-442.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.

      Nancy A. Daniels, Asst. Public Defender and Gary Adel, Legal Intern, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   ON MOTION FOR REHEARING

JOANOS, Judge.

Originally we affirmed the judgment and sentence in this case without opinion, 421 So.2d 520 (Fla.App.1982). Appellant has petitioned this court for rehearing or certification, alleging that without a written opinion it is impossible to determine the reason for affirmance and whether a conflict has been created with decisions of another district court, specifically M.J.S. v. State, 386 So.2d 323 (Fla.2d DCA 1980), and State v. Sepulvado, 362 So.2d 324 (Fla.2d DCA 1978). Under the circumstances, it is appropriate to explicate the reasons for affirming the judgment and sentence.

The first issue presented was whether the trial court erred in admitting, over objection, the identification testimony of Kenneth Prate since that testimony was allegedly the result of a pre-trial identification procedure which, it is asserted, violated appellant’s right to due process of law. Mr. Prate had been the victim of the robbery, and his home had been burglarized.

Several weeks after the robbery and burglary, Prate was taken to the county jail and was present when appellant appeared for a parole revocation hearing. On entering the room, Prate was introduced to the people in the room; the only person not identified by name was appellant. Prate was asked whether the person who robbed him was present in the room, and he replied affirmatively. Appellant’s counsel, who was representing him in the parole revocation proceeding, was present and objected. Because of this incident, the defense filed a motion to suppress the out-of-court identification and any subsequent in-court identification by Mr. Prate. This motion was presented prior to trial and denied.

In evaluating the correctness of this ruling, we consider only the testimony presented during the suppression hearing and on which the trial court based its ruling; additional information brought up during testimony at trial could not have affected that ruling.

During the suppression hearing, Mr. Prate testified that he had not based his identification on the fact that appellant was in the room, but that he had recognized appellant when he first saw him, and when he first walked into the room he immediately knew who appellant was before any statement of any kind was made to him. In addition he said that the criminal incident had lasted about fifteen minutes, the lights were on in the house, the burglar was not masked, Prate had no trouble seeing him, he was doing things in the house that drew Prate’s attention to him, and although the thought of later having to identify appellant never entered his mind, he made an effort to remember what appellant looked like. Before the close of the suppression hearing Mr. Prate was questioned with regard to his assessment of appellant’s height as being slightly under six feet. Counsel asserted that appellant had been seated at the parole revocation hearing.

The pre-trial procedure used in this case in which Mr. Prate was brought to the parole hearing, introduced to everyone except appellant, and asked if the robber was present in the room was unnecessarily suggestive. To that extent we agree with appellant’s argument. This answers only one of several questions as to the alleged due process violation, however.

Our reading of the pertinent cases indicates that even if an out-of-court identification is determined to have been unnecessarily suggestive, eyewitness identification testimony will not be suppressed unless it was impermissibly suggestive, i.e., the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. In answering this question the totality of the circumstances must be considered. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The relevant criteria are: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See Grant v. State, 390 So.2d 341 (Fla.1980) (dealing with suppression of an out-of-court identification); Adams v. State, 417 So.2d 826 (Fla. 1st DCA 1982) (dealing with suppression of both out-of-court identification and in-court identification). Considering all of the circumstances discussed above, while the pre-trial procedure was unnecessarily suggestive, under the totality of the circumstances it was not so suggestive as to create a very substantial likelihood of irreparable misidentification, i.e., it was not impermissibly suggestive. The trial court did not err in denying the motion to suppress.

Appellant suggests that this Court’s decision may conflict with the decisions in M.J.S. v. State, 386 So.2d 323 (Fla.2d DCA 1980), and State v. Sepulvado, 362 So.2d 324 (Fla.2d DCA 1980). Those cases indicated that “[o]nce a pre-trial identification is found to be impermissibly suggestive, it is presumed that any in-court identification will be tainted and the burden shifts to the state to overcome the presumption by clear and convincing evidence.” 386 So.2d at 324. Appellant vigorously argues that the State presented no proof whatsoever that Prate’s in-court identification was based on an independent recollection of appellant and was not affected by the suggestive pre-trial procedure. Since we have determined that the procedure, while unnecessarily suggestive, was not impermissibly so, i.e., it did not create a substantial likelihood of irreparable misidentification, the ruling in this case does not conflict with M.J.S. and Sepulvado.

Appellant’s second argument on appeal was that as the offenses of robbery and burglary were charged and proven, the robbery was a category four lesser included offense of the burglary. Appellant was charged with first degree burglary of the dwelling of the Prates with intent to commit robbery therein, and armed robbery of the Prates. The proof showed that he had committed unarmed (second degree) burglary and unarmed robbery. While it was necessary to the burglary, as charged and proven, to show intent to commit an offense within the dwelling, in this case intent to commit robbery, it was not necessary to prove the completed robbery. See Dowdell v. State, 415 So.2d 144 (Fla. 1st DCA 1982).

The motion for rehearing and certification is DENIED.

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


author: HURLEY, Judge.

text:
    Melvin T. GOLDBERGER, Appellant, v. HOFCO, INC., a Florida corporation, Appellee.
    Nos. 81-1524, 82-388.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.

      Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellant.
    Jerry B. Smith, Coral Springs, and Theodore R. Nelson of Nelson & Feldman, P.A., Bay Harbor Islands, Miami, for appellee.
   HURLEY, Judge.

This appeal concerns the interaction of the Florida Mechanics’ Lien Law, Sections 713.01 to 713.37, and the Florida Arbitration Code, Sections 682.01 to 682.22, Florida Statutes (1981). At issue is the propriety of the trial court’s decision to award interest from the date on which a claim of mechanic’s lien was filed rather than the date on which an arbitration award was entered. Under the facts of this case, we hold that interest was recoverable from the date of entry of the arbitration award and, therefore, we affirm in part and reverse in part.

This action arose when the appellant Goldberger filed a complaint to discharge a mechanic’s lien. The appellee Hofco, Inc. (“Hofco”) counterclaimed to foreclose the lien. The action was stayed pending arbitration pursuant to a contractual arbitration agreement. The arbitrators resolved the dispute and entered an award in favor of Hofco. The award expressly denied interest for the period predating the award.

Goldberger moved to vacate the award. The trial court, however, declined to do so. Rather, it confirmed the award. Thereupon, Hofco, relying on the confirmed arbitration award, filed a motion for summary judgment in the pending mechanic’s lien action. The trial court granted the motion and entered judgment for the amount of the arbitration award plus interest. The trial court calculated interest from the date on which the claim of lien was filed as opposed to the date on which the arbitration award was entered. Thus, the trial court’s decision conflicts with the arbitration award in that it allows interest which the arbitrators expressly denied.

Hofco attempts to justify the trial court’s decision by contending that the foreclosure action could have been avoided if Goldber-ger had paid the award; because Hofco had to resort to foreclosure to enforce the award, the trial court was empowered to alter the terms of the arbitration award and to assess interest from the date on which the claim of lien was filed. We disagree.

We discussed the interaction of the Mechanics’ Lien Law and the Arbitration Code in McDaniel v. Berhalter, 405 So.2d 1027 (Fla. 4th DCA 1981). There a plaintiff sought to foreclose a mechanic’s lien based on an arbitration award. We held that the trial court, unless it vacated or modified the award pursuant to the provisions of the Arbitration Code, was bound by the terms of the award. Id.; see Broward County Paraprofessional Ass’n v. School Board of Broward County, 406 So.2d 1252, 1253 (Fla. 4th DCA 1981); Heyman v. Vonelli (Vonelli Construction Co.), 413 So.2d 1254 (Fla. 3d DCA 1982). In particular, we held that a trial court cannot add interest for the period predating the award when the arbitrators have expressly or impliedly denied interest for that period; the claim for pre-award interest is extinguished by the award. 405 So.2d at 1030. Thus, a claimant who bases an action on a confirmed arbitration award is bound by the terms of award, both the good and the bad. The fact that the Mechanics’ Lien Law is involved does not change the result.

McDaniel v. Berhalter controls the present case. Here the arbitration award expressly denies pre-award interest. Absent justification to vacate or modify the award, the trial court was without authority to alter the terms. Therefore, we hold that the trial court erred in assessing pre-award interest; it should have limited interest to the amount which accrued after the date of the arbitration award.

The trial court also found that Hofco held a valid mechanic’s lien and ordered foreclosure of that lien. Goldberger has asserted that imposition and foreclosure of a lien was improper. We disagree and affirm that portion of the judgment.

Accordingly, we affirm in part, reverse in part, and remand with instructions to enter an amended final judgment consistent with this opinion.

BERANEK, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Fred BALLONE, Appellee.
    No. 81-644.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1982.
    Rehearing Denied Oct. 19, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Charles G. Brackins of Meldon & Brac-kins, Gainesville, for appellee.
   HOBSON, Acting Chief Judge.

The State appeals an order granting Fred Ballone’s motion to dismiss an information. We reverse.

A trial judge issued a warrant for appel-lee’s arrest for the commission of a felony after determining at a nonadversary hearing that probable cause existed for his arrest. He based his determination on allegations contained within an affidavit submitted by a county sheriff’s department detective. The State arrested appellee pursuant to the warrant and filed an information.

Prior to his arraignment and while free on bond, appellee filed a motion to dismiss the information pursuant to Rule 3.190(b), Florida Rules of Criminal Procedure, on the ground that the trial court lacked jurisdiction over him due to the purported illegality of the arrest, in that the affidavit allegedly failed to establish probable cause. A different trial judge conducted an adversary hearing on appellee’s motion to dismiss. He concurred with appellee that the affidavit failed to establish probable cause and that, as a result, the trial court lacked jurisdiction over him. Thus, he granted the motion.

On appeal, the State asserts that the trial court became vested with jurisdiction over appellee upon the issuance of the arrest warrant after the initial judge’s nonadver-sary probable cause determination. Appel-lee, however, pointing out that an arrest warrant is the procedure by which the trial court acquires jurisdiction, argues that the second judge correctly dismissed the information after determining that the affidavit did not establish probable cause. We reject appellee’s contention.

Subsection (a)(4) of Rule 3.131, Florida Rules of Criminal Procedure, does not authorize a trial judge to dismiss an information upon a determination that no probable cause exists. See State v. Antel, 333 So.2d 76 (Fla. 4th DCA 1976).

An adversary hearing on the issue of probable cause was unwarranted in the case at bar. In Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975), the United States Supreme Court held that the fourth amendment requires a judicial determination of probable cause at a nonad-versary hearing either before or promptly after an arrest as a prerequisite to an extended restraint of liberty following an arrest. The Court declared that an adversary hearing is unnecessary. Id. at 121, 95 S.Ct. at 866.

Rule 3.131 was amended to conform to the Pugh decision. See Antel Subsection (a)(1) of Rule 3.131 provides for a non-adversary probable cause determination by a magistrate prior to the issuance of a warrant for the defendant’s arrest. Upon the issuance of an arrest warrant, the defendant becomes subject to the trial court’s jurisdiction. See Campbell v. Dade County, 113 So.2d 708 (Fla. 3d DCA 1959). The validity vel non of the arrest warrant is immaterial insofar as it regards the trial court’s jurisdiction to proceed with the case. Id.

In the instant case, the first judge, in compliance with the fourth amendment and Rule 3.131, determined at a nonadver-sary hearing that probable cause existed for appellee’s arrest. Appellee became subject to the trial court’s jurisdiction upon the issuance of the arrest warrant.

Accordingly, we reverse the order granting appellee’s motion to dismiss the information and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    Elmar FORTSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-621.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1982.
    Rehearing Denied Oct. 27, 1982.
    Robert E. Pyle, Lake Alfred, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Ann Paschall and Peggy A. Quince, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

The appellant has failed to demonstrate any reversible error, and we accordingly affirm the convictions in this case. However, the judgment and sentence entered on these convictions refer to the offenses of dangerous display of a firearm rather than improper exhibition of a dangerous firearm. We accordingly remand for entry of a proper judgment reflecting that the appellant was found guilty of the offenses of improper exhibition of a firearm. The judgment and sentences are otherwise affirmed.

SCHEB, A.C.J., and CAMPBELL, and SCHOONOVER, JJ., concur.


author: LETTS, Chief Judge. HERSEY, Judge, HERSEY, Judge.

text:
    Dorman K. KIMBRELL, Jr., and Earlene M. Kimbrell, his wife, Appellants, v. Phillip PAIGE, Eugene Berrian, and Allstate Insurance Company, Appellees.
    No. 81-764.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.
    Rehearing Denied Dec. 29, 1982.

      Edna L. Caruso, and Schuler & Wilkerson, P.A., West Palm Beach, for appellants.
    Stanley J. Narkier of Weathers, Narkier & Brooks, P.A., West Palm Beach, for ap-pellee Allstate Ins. Co.
    Samuel Tyler Hill of Hill, Culver & Nea-le, Fort Lauderdale, for appellees Paige & Berrian.
   LETTS, Chief Judge.

This appeal considers whether an injured employee, who has received workmen’s compensation, can sue a third party tort-feasor for the first time after the passage of three years, although the compensation carrier has, in the second year following the accident, given the thirty day notice of its intention to seek subrogation and has filed an appropriate suit in that same second year. We hold the employee does not have a separate cause of action against the tort-feasor.

A detailing of all the facts would add little to this opinion and we thus restrict ourselves to those necessary to support our conclusion. The gravamen of this controversy is found in the following excerpt from the 1975 version of the applicable Florida statute, the year 1975 being the one in which the employee was injured in a car accident while within the scope of his employment. Section 440.39 (4 through 6) reads in pertinent part:

(4)(a) If the injured employee or his dependents, as the ease may be, fail to bring suit against such third party tort-feasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer, and if not, the insurer carrier, may, after giving 30 days’ notice to the injured employee or his dependents and the injured employee’s attorney, if represented by counsel, institute suit against such third party tort-feasor, either in his own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subrogated to and entitled to retain from any judgment recovered against, or settlement made with, such third party, the following: All amounts paid as compensation and medical benefits under the provisions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made, together with all court costs, including attorney’s fees expended in the prosecution of such suit, to be prorated as provided by subsection (3). The remainder of the moneys derived from such judgment or settlement shall be paid to the employee or his dependents, as the case may be.
(b) If the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against a third party tort-feasor, the right of action shall revert to the employee or, in the case of his death, those entitled by law to sue, and in such event the provisions of subsection (3) shall apply.
(5) In all cases under subsection (4) involving third party tort-feasors, where compensation benefits under this law are paid, or are to be paid, settlement either before or after suit is instituted shall not be made except upon agreement of the injured employee or his dependents and the employer or his insurance carrier, as the case may be.
(6) Any amounts recovered under this section by the employer or his insurance carrier shall be credited against the loss-experience of said employer.

We must admit we can find no specific language in the above quotation which prohibits the filing of a second law suit by the injured employee even though the compensation carrier has already done so. However, we agree with the Second District’s holding that the language of the statute “contemplates the filing of only one suit against the third party tort-feasor.” Maryland Casualty Company v. Simmons, 193 So.2d 446, 449 (Fla. 2d DCA 1966). We also believe our Supreme Court is in agreement with our conclusion by reason of the following language taken from Aetna Casualty and Surety Co. v. Bortz, 271 So.2d 108, 114 (Fla.1972):

Although it is assumed that the right of the employer and the employee are concurrent in the second year, once the employer files suit under subsection (4)(a), or undertakes to negotiate a settlement (with notice to the employee, and so long as no suit has been filed and no settlement has been reached by the employee and the third party), the employee is required to co-operate with the effort. Zurich Ins. Co. v. Renton, [189 So.2d 492], supra; Jersey Ins. Co. of New York v. Cuttriss [220 So.2d 15], supra. Co-operation by the claimant is expected since the employer is initiating action for the claimant’s ultimate use and benefit under a statutory grant of power.
We agree that a claimant is entitled to have his own counsel monitor the employer’s suit, and even participate actively, if permitted by the employer, but the ultimate governance over the cause is within the province of the employer when suit is brought under subsection (4)(a).

_ True, the Bortz case is by no means on all fours. Nonetheless, we are not convinced by the employee’s arguments that Bortz is not apropos. We also are not dismayed by what may appear, at first blush, to be a Supreme Court case to the contrary. See Rosenthal v. Scott, 150 So.2d 433 (Fla.1961). Most importantly, Rosenthal does not involve workmen’s compensation and makes no mention of the statute which we have before us for consideration now. Secondarily, it is an old case which latter preceded the Bortz decision for which we have preference.

Passing now to a procedural point which merits discussion, the record reveals that the carrier only gave the thirty day notice to the employee’s lawyer and did not give independent notice to the employee as is also required by Subsection (4)(a) of the above quoted statute. It is true that the trial judge found as a matter of fact that independent notice was given to the employee but we must agree that deciding questions of fact on a motion to dismiss is improper. Accordingly, we address the problem as if only the lawyer was so advised by the carrier.

To us, it would appear that advice to both, is only a procedural requirement and we do not see why the third party tort-feasor should suffer the consequences of any procedural snafu in which he played no part. The main questions are: “Was due process complied with?” and “Was the protection envisaged by the statute afforded to the employee?” We answer both questions in the affirmative. In so concluding, we do not mean to foreclose any legal remedy which the employee might have against either the compensation carrier or his attorney. We do, however, believe that the spirit and intent of the statute was substantially complied with when the employee’s legal counsel was advised. If one is contemplating suit, who better to advise than an interested party’s lawyer? Presumably, a lawyer knows much more about the ramifications of such a thirty day notice than would his lay client.

AFFIRMED.

HURLEY, J., concurs.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

In Rosenthal v. Scott, 150 So.2d 433 (Fla.1963), our supreme court, in an opinion on rehearing, analyzed in some depth the rule against splitting causes of action. Recognizing the innate injustice of a rigid and inflexible application of that rule to the factual situation before the court in that case, an exception was engrafted upon the prohibition against splitting a cause of action. In principle that exception provided that where an insurance carrier obtains rights against a tortfeasor by subrogation, insured and insurer may bring separate actions against the tortfeasor. More specifically, the holding was that the insurance carrier may bring its action against the tortfeasor to recover amounts paid to or for the insured because of property damage without foreclosing the right of its insured to later bring an action against the tort-feasor for personal injuries. Unless the subrogation exception to the rule against splitting a cause of action applies only to negligence cases involving property damages and personal injuries it would seem that Rosenthal applied here would require a reversal. (The statute Section 440.39, Florida Statutes (1977), does not on its face mandate any different result).

The Rosenthal court ended its opinion with the following observation: “Every court in this land in spirit if not in fact has emblazoned over its portal in box-car letters: ‘Fiat Justicia.’ We pray it may ever remain so.”

Responsive to that pronouncement I would apply Rosenthal in its broader sense and permit appellant to proceed with his cause of action.

Accordingly, I respectfully dissent.

ON MOTION FOR REHEARING

HERSEY, Judge.

Appellants’ petition for rehearing is denied; however, the following question is certified to the Florida Supreme Court as one of great public interest:

Does Section 440.39(4), Florida Statutes (1981), bar a separate suit against a third party tort-feasor by an injured employee when such suit is filed more than one year after the cause of action accrued and the compensation carrier, in the second year following the accident, gave the thirty day notice of its intention to seek subrogation and filed an appropriate suit against the third party tort-feasor?

HURLEY, J., concurs.

LETTS, C.J., dissents without opinion.


author: ORFINGER, Chief Judge.

text:
    CITY OF UMATILLA, etc., Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, et al., Appellees.
    No. 81-1124.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Rehearing Denied Dec. 9, 1982.
    Richard W. Hennings of Cauthen, Robuck & Hennings, P.A., Tavares, for appellant.

      Vernon Townes Grizzard, Deputy Asst. Gen. Counsel, Public Employees Relations Com’n, Tallahassee, for appellee Public Employees Relations Com’n.
    Gene “Hal” Johnson, Tallahassee, for ap-pellees Florida Police Benev. Ass’n, Inc., and Roggelin.
   ORFINGER, Chief Judge.

The City of Umatilla appeals from an order of the Public Employees Relations Commission overturning the findings of its hearing officer and ordering the reinstatement of a police officer because of his discharge for protected union activity. We reverse.

Patrolman Eugene Roggelin was suspended from the Umatilla police force for alleged “insubordination.” Following a hearing held at his request before a complaint review board which recommended that he resign or be fired, the City discharged him.

Roggelin and the Volusia County Police Benevolent Association (PBA) of which Roggelin was a member, filed an unfair labor practice charge with Public Employees Relations Commission (PERC), alleging that Roggelin had been discharged because of his involvement in protected union activities; that the disciplinary action had been motivated by anti-union animus and not for the reasons specified in the discharge notice, and that the City had therefore violated sections 447.501(l)(a) and (b), Florida Statutes (1979).

An evidentiary hearing was conducted before a PERC hearing officer who issued a recommended order making findings of fact and concluding that the unfair labor practice charge be dismissed. In his order, the hearing officer found that Roggelin was an enthusiastic, vocal and active PBA supporter, and that his pro-PBA views were well known to all members of the police department and senior city officials. The hearing officer found that Roggelin was a problem police officer in both his individual capacity and as a PBA representative, and that the City had ample non-prohibited grounds for his suspension and discharge. The hearing officer noted that the basic issue in the case is whether the City was motivated by anti-union animus in suspending and discharging Roggelin and he answered this issue by finding that the burden on the charging party of showing that the protected activities were a motivating factor in the City’s decision to terminate employment was not met here. He concluded that while Rogge-lin did engage in protected activity as a PBA representative, this protection did not cover his disrespectful and insubordinate acts toward the chief and assistant chief.

Acting on exceptions to the hearing officer’s report, PERC reversed that ruling and ordered Roggelin’s reinstatement with back pay and attorney’s fees. The commission rejected the hearing officer’s findings in several areas, and also rejected his ultimate finding on the issue of motivation. The commission said that the hearing officer had failed to make a number of relevant findings of evidentiary fact from undisputed testimony. The commission also stated that the hearing officer failed to apply the appropriate standard of proof, specifically failing to take into account circumstantial evidence which the commission felt bore heavily on the issue of motivation for discharge. The commission rejected the hearing officer’s ultimate finding of motivation and found that indeed, the City had violated section 447.501(a) and (b).

The primary issue for review is whether the Commission erred in substituting its own findings of fact for those of the hearing officer. Appellant contends that it did. Put another way, was there substantial competent evidence to support the findings of fact of the hearing officer, and if so, did the agency, not having heard the case, have the right to reject those findings and substitute its own?

An agency has no power to reject or modify the hearing officer’s findings of fact unless the agency first determines that the findings were not based upon competent substantial evidence or that the proceedings in which the findings were based did not comply with the essential requirements of the law. See International Brotherhood of Painters and Allied Trades v. Anderson, 401 So.2d 824 (Fla. 5th DCA), rev. denied, 411 So.2d 382 (Fla.1981). The commission here found that some of the hearing officer’s findings, including that of motivation, were not based on competent substantial evidence and rejected those findings, substituting its own.

As we see it here, the Commission drew different inferences from the disputed or admitted facts and therefore arrived at different conclusions. The hearing officer found that non-prohibited grounds were the substantial or motivating causes for the city’s action. The Commission discarded this finding, concluding that the union activity was the real motivation for the discharge. We hold that PERC did not follow established principles of law when it discarded findings of its hearing officer which were supported by competent substantial evidence. That PERC might have reached a different result had it heard the evidence does not authorize it to discard the hearing officer’s findings. See Gruman v. Department of Revenue, 379 So.2d 1313 (Fla. 2d DCA 1980); Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 115 (Fla. 1st DCA 1977).

The Commission relies heavily on McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), claiming special insight into the facts and conclusions which determine the issues of motivation here. McDonald commented on the apparent conflict between section 120.57(l)(b)9 (the scope of review by the agency) and section 120.68(10) (the scope of review by the court of the agency’s substituted findings of fact), and said:

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight. At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the substantiality of evidence supporting the agency’s substituted findings.

McDonald, 346 So.2d at 579.

We need not decide whether we agree with McDonald’s analysis of the interplay between sections 120.57(l)(b)9 and 120.-68(10). McDonald adopts the standard of judicial review found in Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), without commenting on the obvious differences between the federal statute and section 120.57(l)(b)9, the statute dealing with the scope of agency review of a hearing examiner’s report. Be that as it may, the Commission has not met the McDonald test.

The testimony before the hearing officer was disputed and in conflict. Various inferences could be drawn from it. The principal dispute was whether Roggelin had truly been insubordinate and disrespectful to his superior officers, or whether the City was merely raising that as a smokescreen to hide the fact that Roggelin’s superiors did not like his union activities, and that this was the real reason for his discharge. There is nothing special or unique about a dispute of this kind. Questions of motive and intent are found in a variety of civil and criminal disputes, and the trier of fact is frequently called upon to resolve those issues along with others. Neither is there anything unusual in the rule that the findings of the trier of fact will not be overturned by the reviewer if there is competent substantial evidence to support them. There is competent substantial evidence to support the findings of the hearing officer in this case. It may be said that there is also competent substantial evidence to support the findings of the Commission, but that is not the test here. The controlling statute, section 120.57(l)(b)9, plainly proscribes the rejection of the hearing officer’s findings of fact where those findings are supported by competent substantial evidence. Pasco County, 353 So.2d at 115.

The Commission also relies on Scheuerman v. Florida Real Estate Commission, 215 So.2d 29 (Fla. 4th DCA 1968), as authority for the proposition that the Commission has the duty to make findings of fact from the record, notwithstanding the findings of the hearing examiner who alone heard the witnesses testify and observed their demeanor. Scheuerman is based on the holding in Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2d DCA 1962), wherein it was observed that section 475.31(4), Florida Statutes, as then applicable, made no provision for, nor did it give any force or effect to, findings of the examiner. These cases are inapposite here. The statutes relied on have either been repealed or amended and the procedural parts of those sections are now embodied in Chapter 120, the Administrative Procedure Act. Section 120.57(l)(b)9 specifically prohibits the agency from rejecting or modifying the findings of fact of the examiners unless they are not based on substantial competent evidence.

The order of the Public Employees Relations Commission is vacated, and the cause is remanded for entry of a final order consistent herewith.

VACATED and REMANDED.

DAUKSCH and SHARP, JJ., concur.

      . Section 112.532, Fla.Stat. (1979):
      All law enforcement officers employed by any employing agency shall have the following rights and privileges:
      (2) Complaint review boards. — A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members. Agencies having more than 100 law enforcement officers shall utilize a five-member board with two members being selected by the administrator, two members being selected by the aggrieved officer, and a fifth member being selected by the other four members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.
      We refer to this hearing only to report the chronology of events as they took place. See City of Hallandale v. Inglima, 346 So.2d 84 (Fla. 4th DCA 1977) which approves the opinion of the Attorney General, 076-38 AGO, that the complaint review board is advisory only. The referenced opinion of the Attorney General also says:
      Nowhere in that section [112.532(2)] or in any other section of Part VI of Ch. 112, F.S., are there any provisions denoting or establishing any powers, duties, or functions for such complaint review board. Neither does the title to the enabling legislation, Ch. 74-274, Laws of Florida, throw any illumination on the legislative intent and purpose pertinent to this legislation. It is of interest that the courts have expressed their difficulty in ascertaining the powers and functions of the board and have complained of the vagueness of the statute.

      . § 447.501, Fla.Stat. (1979):
      (1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
      (b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment.

      . Section 120.57(l)(b)9, Fla.Stat.,- states as follows:
      The agency may adopt the recommended order as the agency’s final order. The agency In its final order may reject or modify the conclusions of law and interpretation of administrative rules and the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court reverses an agency’s order, the court in its discretion may award attorney’s fees and costs to the aggrieved party.

      . 5 U.S.C.A. sec. 557(b) says in pertinent part:
      When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule, (emphasis added).


text:
    Sandra Magnaghi SCHMIDT, Appellant, v. Robert Henry MAGNAGHI, Appellee.
    No. 82-337.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    James N. Powers, P.A., Orlando, for appellant.
    R. Stephen Miles, Jr. of Miles & Cumbie, P.A., St. Cloud, for appellee.
   PER CURIAM.

AFFIRMED. Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982); Siegel v. Zimmerman, 319 So.2d 187 (Fla. 3d DCA 1975); Greenberg v. Greenberg, 397 So.2d 1032 (Fla. 3d DCA 1981); Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980).

SHARP and COWART, JJ., and WEINBERG, A.J., concur.


author: THOMPSON, Judge.

text:
    Robert B. WILLIAMS, Administrator, Florida State Hospital, Appellant, v. Evelyn BEARD, Mamie Chapman, Duane Reed Robinson, Elaine Gordon, Leah Miller, Velma Sexton Newton, Chester Bennett, Clifford McNamara, Walter Starnes, Leola Bathea, Henry Brown, Anna Dean, Nancy Larry, Chester Starkes, James Wright, Charles Alford, Martha Burton, Talmadge Mabry, Melvin Gillion, Gilbert Berger, Appellees.
    No. AJ-16.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.

      Theodore E. Mack, Hospital Legal Counsel, State of Fla., Dept, of Health and Rehabilitative Services, Chattahoochee, for appellant.
    Michael Allen, Public Defender, Kenneth David Driggs, Asst. Public Defender, Tallahassee, for appellees.
   THOMPSON, Judge.

The Administrator of the Florida State Hospital appeals the orders dismissing his requests for continued involuntary placement of appellees, who were patients at Florida State Hospital. For the reasons enunciated below we affirm the dismissals of the requests for continued involuntary placement of all the appellees except Walter Starnes.

Appellant filed requests for continued involuntary placement of each appellee. Pursuant to § 394.467(4)(a), Fla.Stat. (1981), such requests are to be filled prior to the expiration of the period during which the treatment facility is authorized to retain the patient.” Since the hearing officer found that each of the requests was untimely filed, he dismissed each request for lack of jurisdiction. Appellant argues that this was error. Since the requests for continued involuntary placement. of each appellee, with the exception of appellee Starnes, were filed after the expiration of each ap-pellee’s previous placement period, we find that the hearing officer properly dismissed each request except the request relating to appellee Starnes.

We agree with the appellant’s argument that the hearing officer improperly dismissed the request for continued involuntary placement of Starnes. Although the involuntary placement of Starnes for a period not to exceed six months was ordered by the circuit court on May 14,1981, according to appellant’s request for such placement, Starnes was not admitted to Florida State Hospital until May 19, 1981. Accordingly, the request for continued involuntary placement of Starnes, filed November 17, 1981, was filed within six months of his admission to the treatment facility, but was not filed within six months of the date the court signed his involuntary placement order. Since § 394.467(2), Fla.Stat., relating to admission to a treatment facility on an involuntary basis, indicates that a patient may be retained by the facility for “a period not to exceed 6 months from the date of admission,” and since the order does not state otherwise, we find that Starnes’ placement period did not end until six months from the date he was admitted to Florida State Hospital. Accordingly, the request for continued involuntary placement of Starnes was timely filed on November 17, 1981.

In conclusion, we affirm the dismissal of each request for continued involuntary placement except for the dismissal of the request as to Starnes. However, we stay the issuance of the mandate for thirty days from the date that it would otherwise issue under Fla.R.App.P. 9.340 so that the appellant may have an opportunity to seek involuntary placement of the patients involved herein under § 394.467, Fla.Stat., if such action is felt to be necessary and advisable.

ROBERT P. SMITH, Jr., C.J., and SHIVERS, J., concur.


text:
    Thomas F. PEPE, Appellant, v. John SHEPHERD, Lisa Greenbaum and Faces, Inc., a Florida corporation, Appellees.
    No. 82-376.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 6, 1982.

      William J. Williams, Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellant.
    Prunty, Ross, Olsen & Israel and John W. Prunty, Miami, for appellees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The sole bases upon which the trial court entered summary judgment for the defendants-appellees were (1) its conclusion that an assignment of a portion of a promissory note is enforceable against the obligors only if the obligors consent in writing and (2) the related but separate conclusion that the ob-ligors’ oral consent, if any, to the splitting of the indebtedness is barred by the statute of frauds.

First, it is axiomatic that no agreement need be in writing unless required by statute or contract. Here there was no contract between the parties that required that a partial assignment of the indebtedness be agreed to in writing by the obligors; and no Florida statute imposes such a requirement.

Second, contrary to the appellees’ contention, the consent of the obligors is not a “promise to answer for the debt ... of another person,” an action upon which is barred by the statute of frauds if not in writing, see § 725.01 Fla.Stat. (1979), but instead is merely the obligors’ consent to pay part of their own debt to another.

Therefore, since a writing was not required and there remains a genuine issue of material fact whether the obligors orally consented to the assignment, the summary judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.