author: HENDRY, Judge. NESBITT, Judge

text:
    STUYVESANT INSURANCE COMPANY, Appellant, Arkin Construction Company, Inc., Cross-Appellant, v. SQUARE D. COMPANY, Cook, Sloan & Lowe Engineers a/k/a Cook, Sloan Associates, Inc., Appellees.
    No. 79-2164.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Rehearing Denied July 24,1981.

      Thornton & Herndon, Jeanne Heyward, Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for cross-appellant.
    Spencer & Taylor, Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

Stuyvesant Insurance Company, plaintiff in the trial court, appeals from summary final judgments entered in favor of appel-lees Square D. Company (Square D), and Cook, Sloan & Lowe Engineers (Cook). We reverse.

Appellant Stuyvesant issued a fire insurance policy on Ocean Pavillion, an apartment complex built in 1969. On September 22, 1973, during the policy period, a fire occurred at the Pavillion which was traced to electrical equipment in the aluminum bus ducting system. Stuyvesant paid the Pavil-lion owners $275,000 and became subrogat-ed to the owners’ rights vis-a-vis third parties. In 1976 Stuyvesant filed a complaint against Square D, the manufacturer of the electrical bus ducting installed in the Pavil-lion, alleging negligence, breach of implied warranties of merchantability and fitness, and strict liability. On September 21,1977, Stuyvesant filed suit against Cook, electrical engineer for Pavillion, charging it with negligence. Appellees Square D and Cook moved for summary judgment on the basis that no genuine issues of material fact existed. In addition, appellee Cook raised the affirmative defense of the statute of limitations. The trial court entered summary final judgment for both appellees. From those judgments Stuyvesant has appealed.

Two issues are presented for our determination by this appeal: (a) whether appellant’s cause of action against Cook is barred by the statute of limitations; and (b) whether genuine issues of material fact exist precluding the grant of summary judgment.

Stuyvesant’s cause of action against Cook arose on September 22, 1973, the date of the fire. On that date, the applicable statute of limitations was section 95.11(10), Florida Statutes (1973), which established a twelve-year limit from the completion date of construction of improvements to real property within which to bring suit against architects and professional engineers. Appellee Cook’s reliance upon the two-year limitation period set forth in section 95.11(4)(a); Florida Statutes (1975) is untenable since the 1975 revisions of section 95.11 are not retroactive. Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979); Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA), cert. denied, 361 So.2d 831 (Fla.1978). A shortening of any statute of limitations is given retroactive effect only upon an express showing of clear intent by the legislature. Carpenter v. Florida Central Credit Union, 369 So.2d 935 (Fla.1979); Foley v. Morris, 339 So.2d 215 (Fla.1976); Garofalo v. Community Hospital of South Broward, 382 So.2d 722 (Fla. 4th DCA 1980). This intent is completely absent from the 1975 statutes. Furthermore, when a cause of action arises from an occurrence which predates the effective date of a statute of limitations, that statute does not apply. Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); McGlynn v. Rosen, 387 So.2d 468 (Fla. 3d DCA 1980). Here, the fire predated the effective date of the 1975 statute, precluding application of that provision. Accordingly, we hold that section 95.11(10), Florida Statutes (1973), pertaining to actions against professional engineers and architects, governs appellant’s cause of action against Cook. Since the building was completed in 1969 and suit was filed in 1977, appellant’s suit against Cook is timely.

Addressing the merits of appellant’s claims against Square D and Cook, it is our opinion that summary final judgment was erroneously entered as there were genuine issues of material fact left unresolved by the trial court. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Mathis v. National Laboratories, 355 So.2d 117 (Fla. 3d DCA 1978). Among the various issues which remain are whether aluminum was a proper metal for use in construction of the bus ducts; whether Square D complied with its duty to warn of the product’s limitations and maintenance requirements; and whether Cook fell below the standard of care and good engineering design by specifying aluminum ducts and the placement thereof. These issues are questions of fact, properly determinable by a jury and not by way of summary judgment.

The final summary judgments under review on appeal and cross-appeal are hereby reversed and remanded for further proceedings.

Reversed and remanded.

NESBITT, Judge

(concurring in part, dissenting in part):

I agree with the majority that Stuyvesant’s action against Cook was not barred by limitations.

I would affirm the remaining summary judgment because the bus ducting supplied by the manufacturer was precisely in accordance with the plans and specifications drawn by the electrical engineers which were in accordance with the building code. Moreover, the only evidence of any negligence occurred through the malfunctioning of the duct which was due to its improper maintenance or improper design. Consequently, I dissent with the majority view to reverse that aspect of the summary final judgment.

      . The complaint also named Arkin Construction Company, general contractor for Pavillion, and Kammer & Wood, Inc., electrical contractors, as defendants. The suits against Arkin and Kammer are still pending.

      . Arkin Construction Company has cross-appealed from the summary final judgments granted to Square D and Cook, and has joined in Stuyvesant’s brief.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Amidi ZUBERI, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1226.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Mark C. Menser, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: COWART, Judge.

text:
    Dean Allen MIDDLETON, Petitioner, v. John POLK, Sheriff, Seminole County, Florida, Respondent.
    No. 81-714.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      Ed Leinster, Orlando, for petitioner.
   COWART, Judge.

A jury found the petitioner guilty of a criminal offense. The trial judge withheld adjudication of guilt, ordered a presen-tence investigation and released petitioner on bond on the express condition that petitioner reside with his father. The petitioner failed to abide by this condition, the trial judge revoked bail and petitioner was confined under a bench warrant. Petitioner seeks a writ of habeas corpus, citing Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA), cert. dismissed, 320 So.2d 393 (Fla.1975), which holds that Florida Rule of Criminal Procedure, 3.550, which implies that an accused can be confined without bond after a verdict of guilty, must yield to Article I, Section 14, Florida Constitution, which guarantees that until adjudged guilty every person shall be entitled to release on reasonable bail. The word “reasonable” is not restricted to the monetary amount of the bail bond but may also relate to the sufficiency of the surety and to the conditions of the bond. Carter v. Carson, 370 So.2d 1241 (Fla. 1st DCA 1979). Even in determining which form of release will reasonably assure appearance before a finding of guilt the trial judge is required to take into account the defendant’s family ties. Fla.R.Crim.P. 3.130(b)(4)(iii). Under the circumstances of this case we cannot hold, as a matter of law, that this condition of release on bail is unreasonable. Accordingly, the petition for writ of habeas corpus is

DENIED.

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

      . The petitioner’s right to release on bail before conviction is not affected by the breach of the conditions of an earlier release unless the trial judge determines that the petitioner’s conduct in that instance evinces a flagrant disregard of the court’s authority or an effort to evade its processes so as to justify a forfeiture of his bail rights. See Ex parte McDaniel, 86 Fla. 145, 97 So. 317 (1923); Hancock v. State, 386 So.2d 613 (Fla. 5th DCA 1980).


author: SHARP, Judge.

text:
    Frank Henry STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 81-535.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      Frank Henry Stephens, pro se.
    No appearance for appellee.
   SHARP, Judge.

The appellant filed a motion under Florida Rule of Criminal Procedure 3.850 seeking relief from the judgment and sentence and addressing matters which can be raised in a collateral attack. He sought to have his conviction for robbery with a weapon vacated on several grounds including the involuntariness of the guilty plea. The appellant’s motion is legally sufficient and, if true, would entitle him to relief.

Where the motion is legally sufficient on its face, (as is appellant’s allegation that the guilty plea was not voluntarily entered), it is the duty of the trial court to comply with Florida Rule of Criminal Procedure 3.850 by holding an evidentiary hearing to determine if the relief should be granted. However, if the case file and record conclusively show petitioner is entitled to no relief, then the court should deny relief in an order specifically setting out the reasons for the denial, and it should attach portions of the case file and record to sustain its determination. Neither action was taken by the court below. Therefore, the order denying appellant’s motion under Florida Rule of Criminal Procedure 3.850 is reversed, and this cause is remanded to the trial court with instructions within sixty (60) days to (a) Attach that portion of the case file and record which refutes appellant’s allegations or (b) conduct an eviden-tiary hearing on appellant’s allegation that the guilty plea was not voluntary. Gunter v. State, 380 So.2d 1198 (Fla. 5th DCA 1980); Lesley v. State, 370 So.2d 85 (Fla. 2d DCA 1979); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978).

REVERSED AND REMANDED.

ORFINGER and COWART, JJ., concur.


author: ORFINGER, Judge.

text:
    John H. HARLEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1128, 80-1151.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

The trial court correctly denied appellant’s motion for discharge on speedy trial grounds, so we affirm. Appellant was charged with escape. There is a question as to the date of his apprehension, but even if we accept his view, speedy trial time had not run. Since appellant was a prisoner when he escaped, Florida Rule of Criminal Procedure 3.191(b)(1) applies, Travis v. State, 364 So.2d 870, 871 (Fla. 1st DCA 1978), and trial must commence within one year from the date of his recapture or within 180 days of his demand for speedy trial. Neither period had run at the time appellant entered his plea.

AFFIRMED.

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


text:
    Gertrude GIBBS, Appellant, v. RELIANCE INSURANCE COMPANY, etc., Frank D. Bell, Heavy Equipment Services, Inc., etc., and Scott and Jobalia, Inc., etc., Appellees.
    Nos. 80-962, 80-1023 and 80-1142.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      W. M. Chanfrau of Chanfrau & Chanfrau, Daytona Beach, for appellant.
    George A. Meier, III, and Sutton G. Hil-yard, Jr., of Pitts, Eubanks & Ross, P.A., Orlando, for appellee Scott and Jobalia, Inc.
    No appearance for appellees Reliance, Bell and Heavy Equipment Services, Inc.
   ORFINGER, Judge.

We dismiss the consolidated appeals, sua sponte, because the partial summary judge-ments appealed from are not appealable.

An order dismissing a claim for punitive damages, but not a claim for compensatory damages, whether contained in a single count or in multiple counts, is not an appealable final order where the claims arise out of the same set of facts. Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980). Similarly, an order dismissing one count of a multi-count complaint is not appealable, even though based on a different legal theory, where the different counts all arise out of the same factual circumstances. North Indialantic Homeowners Association v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980).

The first count of this two-count complaint sought compensatory and punitive damages against defendant Bell as the driver of a vehicle involved in the collision with plaintiffs vehicle, and sought similar damages against the corporate defendants and their insurer, on two theories: (1) ownership of the vehicle Bell was driving; and (2) vicarious liability as his employer. The second count sued only the corporate defendants on the theory of negligent entrustment. The court granted the partial summary judgment in favor of the corporate defendants as to punitive damages claimed in the first count, and granted the partial summary judgment in their favor as to both the compensatory and punitive damages claimed in the second count. There still remains for determination under the first count the claim for compensatory and punitive damages against defendant Bell and the claim for compensatory damages against the corporate defendants. The claims which were dismissed all arise out of the same accident, involve the same parties and the same injuries and are clearly interrelated with those claims which remain. Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976).

The appeal is dismissed without prejudice to an appeal of the issues raised here following final judgment.

Appeal DISMISSED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    CENTURY BANK OF LEE COUNTY, etc., Appellant, v. Thurman GILLESPY, Jr., M. D., et al., Appellees.
    No. 80-932.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, for appellant.
    Alfred E. Hawkins of Hawkins & Hawkins, Daytona Beach, for appellees.
   COWART, Judge.

We hold that, regardless of whatever attributes a joint venture may have which, for other purposes, distinguish it from a traditional partnership, if a “joint venture” in fact meets the definition of a statutory partnership as set out in section 620.585, Florida Statutes (1979), it is a partnership for the purpose of acquiring, holding and conveying title to real property in the name of the joint venture (partnership) as an entity separate from its members as provided in sections 620.595 and 620.605, Florida Statutes (1979).

The summary judgment holding that a judgment against one joint venturer alone did not constitute a lien against land held by the joint venture under a conveyance to it in the joint venture (partnership) name, is

AFFIRMED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    HERTZ COMMERCIAL LEASING CORPORATION, a Delaware Corporation, Appellant, v. Rudolph Winfield SEEBECK, d/b/a Whitey Seebeck Standard Service, Appellee.
    No. 80-597.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      Aaron Goldman, Ocala, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

Appellant filed an action against appellee claiming damages by virtue of the breach of an equipment lease. Appellee’s answer admitted the execution of the lease, but denied the breach. Appellee also affirmatively pleaded (a) termination by mutual consent; (b) release; (c) waiver; and (d) lach-es. Appellant filed no reply to the affirmative defenses, and noticed the case for trial.

On the day set for trial, appellee moved ore tenus for a judgment on the pleadings and the subsequent orders entered by the court granting the motion make it appear that the motion was granted because of the failure of appellant to reply to the affirmative defenses. We have not been favored by a brief of appellee, so we have nothing to dispel this very plausible interpretation of the court’s order.

It was error for the trial court to grant a judgment on the pleadings for the defendant because plaintiff had not replied to the affirmative defenses. A reply is not required to merely deny an affirmative defense. An automatic denial of every allegation of an affirmative defense is provided by Florida Rule of Civil Procedure 1.110(e). Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975); Equibank, N.A. v. Penland, 344 So.2d 629 (Fla.1st DCA 1977); Miller v. Smith, 341 So.2d 1021 (Fla. 4th DCA 1977). Under Rule 1.100(a) a reply is required only if the pleader wishes to avoid the affirmative defense.

A reply is activated only by an affirmative defense that can be avoided. Stated differently, a reply pleads an affirmative defense to an affirmative defense.

Trawick, Florida Practice and Procedure, section 11-6 (1979).

Having determined that the entry of a judgment on the pleadings was erroneous, we find it unnecessary to discuss appellant’s other point on appeal. The final judgment for defendant is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

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


text:
    James B. MALONEY, et ux., Appellants, v. ATLANTIQUE CONDOMINIUM COMPLEX, INC., and Keith L. Hudkins, Appellees.
    No. 80-556.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.

      Stephannie L. DaCosta, Cocoa Beach, for appellants.
    William C. Irwin, Cocoa Beach, for appel-lee Hudkins.
    William E. Weller, Cocoa Beach, for ap-pellee Atlantique.
   COWART, Judge.

This case involves the exercise of a condominium association member’s preemptive right to buy units offered for sale to nonmembers by other members.

The Declaration of Atlantique Condominium Complex, Inc., provides in part:

Prior to the sale of any interest in any unit, the owner of said unit, except co-owners selling to each other, shall notify the Board of Directors, in writing, of the name, address, business, occupation or employment of the offeror, accompanied with an executed copy of the bona fide offer as hereinafter defined. Members shall have the first right over non-members to accept such sale at the bona fide price and on the terms contained in the notice, provided they so notify the Secretary of the Corporation in writing of acceptance at least ten (10) days after the date of notice, which information the Corporation shall promptly forward to the owner.... (emphasis added)

“Subject to condominium by-laws” the Neals, as owners of a unit, entered into a contract of sale and purchase wherein the Neals agreed to sell their unit to the Malo-neys, who were non-owners and non-members. For the purposes of this case this document constitutes a bona fide offer of the Neals to sell. Written notice of the sales contract (offer) was given by the Neals by hand delivery to the secretary of the condominium association on November 27, 1978, and copies were mailed by the association to all members. On December 4, 1978, appellee Hudkins, a non-resident owner-member, mailed an acceptance of the offer to the condominium association’s president. On December 7, 1978, the Neals and the Maloneys closed the contracted transaction and the Neals conveyed title to the unit to the Maloneys. On December 8, 1978, appellee Hudkins’ letter of “acceptance,” exercising his preemptive right to buy under the condominium declaration, was received by the association president and that day delivered to the association secretary. The condominium association, appellee herein, brought suit for a declaratory judgment against the Neals, the Maloneys and the appellee Hudkins and others to have the court construe the condominium declaration and declare that the sale to the Maloneys was void and that Hudkins was entitled to purchase the unit. The parties stipulated that the phrase “at least ten (10) days” in the condominium declaration means “within ten (10) days.” The trial court in effect held that Hudkins was entitled to purchase the unit, and the Maloneys appeal.

Within ten days of November 27, 1978, means by the 7th day of December, 1978. If Hudkins’ letter of “acceptance” was effective when it was mailed on December 4, 1978, it was timely and he was entitled to buy, the sale to the Maloneys was ineffective and the trial court was correct. However, if Hudkins’ letter was effective or operative only as of December 8, 1978, when it was received, it did not constitute a timely acceptance of the Neals’ offer to sell nor a timely exercise of Hudkins’ preemptive right of first refusal and the judgment below should be reversed. The question is presented as to whether the so-called “deposit acceptance rule” (under which an acceptance is deemed effective as of the date of deposit in the mail of the acceptance of an offer), applies in this case.

The appellees claim broadly that Florida has adopted the “deposit acceptance rule,” citing Morrison v. Thoelke, 155 So.2d 889 (Fla.2d DCA 1963), Green v. Sesac, Inc., 177 So.2d 752 (Fla. 1st DCA 1965), quashed, 189 So.2d 612 (Fla.1966), Kendel v. Pontious, 244 So.2d 543 (Fla.3d DCA 1971), cert. dismissed, 261 So.2d 167 (Fla.1972), and Kendel v. Pontious, 261 So.2d 167 (Fla.1972).

In Morrison, a resident of Florida desiring to buy Florida land from the Thoelkes, who lived in Texas, signed a contract and mailed it to the Thoelkes, who signed the contract and placed it in the mail to Morrison’s attorney in Florida. Before the contract was received by Morrison’s attorney, the Thoelkes called Morrison’s attorney and cancelled and repudiated their acceptance and the contract. However, the Morrisons recorded the contract when it was received and the Thoelkes brought a quiet title suit to have the contract declared void and cleared from their title. The trial court held that the Thoelkes’ acceptance was effective only when received and that the contract was void because the Thoelkes had withdrawn their acceptance before it was received. The appellate court reversed, holding that the Thoelkes’ acceptance was effective when their acceptance of the contract was placed in the mails. After concluding that there were advantages and disadvantages in applying or not applying the deposit acceptance rule, the Morrison court, in an exhaustive opinion reviewing the historical development of the rule and citing many authorities, including I Corbin on Contracts, § 78 (1950), applied the rule to the facts in that case. However in Morrison the court recognized the basic problem was that “In the formation of contracts inter absentes by post, delay in communication prevents concurrent knowledge of assents and some point must be chosen as legally significant.” The court then found that the balance in Morrison tipped to the application of the “deposit acceptance rule” because (1) the offeror had chosen the medium of communication, (2) the offeror is seldom injured by the delay and uncertainty in not knowing whether or not his offer had been accepted; and (3) if any such delay or uncertainty is unacceptable to the offeror he can always expressly condition his offer as to time and to his actual receipt of an acceptance. Morrison makes clear that the logic of its decision related to contracts negotiated by mail and on the considerations detailed above.

In Green the appellate court in construing the application of a taxing statute merely referred to the fact that the trial judge, whose decision was reversed, relied on the deposit acceptance rule.

In Kendel v. Pontious, as in Morrison, a prospective purchaser signed a contract which was mailed to the owner who signed it but, unlike Morrison, the owner did not deposit the contract in the mail but handed it to the owner’s attorney on January 17, 1969. The prospective purchaser revoked his offer on that same day and before the acceptance was placed in the mail. The trial court in Kendel, citing Morrison, held that the revocation was effective because, when an offer to purchase is transmitted to the seller by mail, if the offer or contract does not otherwise provide, it will be implied that acceptance will be made by mail. The district court of appeal affirmed and the Florida Supreme Court denied certiora-ri.

While the owner of a condominium unit in Atlantique can choose the medium by which he communicates his notice (offer) to the board of directors and can thereby prevent delay in commencing the running of the ten day notice, he has neither control over selection of the communication medium by which the association relays his offer to the other owners nor control over the selection by the other owners of their method of communication of notice of the exercise of their preemptive right. Delay and uncertainty impair marketability and are very important and undesirable, both to the unit owner desiring to sell his unit and to a prospective purchaser. The unit owner should be able to know if any other unit owner has exercised this “right of first refusal” or “preemptive right” within ten days after the date the owner has notified the board of directors of the association so that the unit owner may know with assurance that the restraint on his right to alienate his property is over and that he is free to close his sale pursuant to his conditional offer to (contract with) a third party. If the owner-offeror was required to assume the risk of the delays and miscarriages of the mail he would never know how long he had to wait, particularly where, as here, the option is subject to acceptance by any of many persons living anywhere they choose. If condominium owners who have such preemptive rights choose to live in areas distant from the condominium, which causes the problems that arise from the formation of contracts by mail, they should assume the disadvantages caused by their long distant, absentee ownership and those disadvantages should not be placed upon other owners who desire to sell. Here, since the option is created and controlled by the condominium declaration and the notification of other owners of the offer and the exercise of their option is made to and by the association, the owner-offeror lacks the normal freedom to expressly condition his offer as to time and the actual receipt of an acceptance.

Corbin on Contracts, one of the authorities relied upon in Morrison, in considering option contracts (IA Corbin on Contracts, § 264 (1963)), states:

Must notice of acceptance be received? When contracts are being made by correspondence, it is held in most cases that the contract is consummated at the time and place that the acceptance is mailed. But when, by the terms of an already consummated contract it is provided that one party shall have power to produce certain legal results by giving notice, it is usually held that this means notice received in fact and not merely notice mailed. A landlord’s “notice to quit” must be received by the tenant. The power of termination of a contract of employment, or of any other continuing contract, can be effectively exercised only by bringing home notice to the other party, not by merely mailing it to him. In a contract to ship goods as ordered, there is no duty of immediate performance until an order is received. Of course, it is possible in any case for the parties to agree that the mere mailing of a notice shall be sufficient; it is a question of interpretation whether they have in fact so agreed.
If in an option contract the duty of the promisor is conditional on “notice within 30 days”, does this mean notice received or notice properly mailed? It is believed that, in the absence of an expression of contrary intention, it should be held that the notice must be received. As above explained, the notice is in one aspect a notice of acceptance of an offer; but in another aspect it is a condition of the promisor’s already existing contractual duty. It is more likely to be regarded in this latter aspect by the parties themselves. The rule that an acceptance by post is operative on mailing was itself subjected to severe criticism; and, even though it may now be regarded as settled, it should not be extended to notice of acceptance in already binding option contracts.

For all of these reasons, we find that the considerations found persuasive in Morrison for application of the “deposit acceptance rule” do not apply here and that the better rule, as expressed in Corbin, is that the rule that an acceptance by post is operative on mailing should not be extended to notice of the exercise of existing option contracts, or preemptive rights of first refusal, as is involved in this case. The benefit of this better rule inures to the benefit of all unit owners — when they desire to sell. Accordingly, the judgment below is reversed with directions to enter up judgment in favor of the appellants.

REVERSED AND REMANDED.

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


text:
    Jessie CLINE, Appellant, v. STATE of Florida, Appellee.
    No. 79-219.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant entered a plea of guilty to one count of burglary of a structure and one count of theft of a motor vehicle. The plea resulted from negotiations wherein it was agreed that appellant would receive no more than five year concurrent sentences on both counts.

After finding that the plea was voluntarily and intelligently made, the trial court accepted the plea, adjudicated appellant guilty and sentenced him to a five year term, one year of which was to be served in the county jail, and the remaining four years on probation. After learning that appellant would not accept the probation, appellant came before the trial court, who carefully inquired of appellant if it were true that appellant wished to have the sentence withdrawn. Appellant clearly chose to have his sentence withdrawn and a new sentence imposed, so the trial court honored his request, withdrew the original sentence and imposed a five year split sentence alternative, two and a half years to be served in prison and the remaining two and a half years on probation, less credit for time served.

Appellant contends: (1) that the trial court could not withdraw his sentence and then sentence him to more time in prison; (2) that the sentence was a general sentence on both counts and is thus improper; (3) that the split sentence violates the principles of Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980).

On the first point, appellant relies on cases such as Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978) and Katz v. State, 335 So.2d 608 (Fla.2d DCA 1976) for the proposition that the court cannot resentence a defendant to a longer term of incarceration after he has begun to serve his sentence, without violating his double jeopardy rights. However, in all the cited cases, the alteration in the sentence was involuntary, with the defendant in each case objecting to any change. Here, the defendant requested the court to withdraw the sentence and impose a new one, so the principle of the cited cases does not apply.

Appellant is correct in his assertion that the general sentence on both counts is improper. Dorfman v. State, 351 So.2d 954 (Fla.1977); Price v. State, 393 So.2d 69 (Fla. 5th DCA 1981).

The Supreme Court has revised the opinion in Viilery, (April 23, 1981) [1981 FLW 313] and has made it clear that the split sentence alternative provided for in section 948.01(4), Florida Statutes, prohibits incarceration for a term which equals or exceeds one year, so the last sentence imposed here must be revisited by the trial court.

The sentence is vacated and the case is remanded to the trial court for resentenc-ing.

Sentence VACATED, case REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


author: BERANEK, Judge.

text:
    Charlotte Anne SMITH, Appellant, v. Walter H. SMITH, Appellee.
    No. 79-976.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Ronald A. Luzim of Osinski, Beyer & Luzim, Coral Springs, for appellant.
    Nancy J. Ryan, Sunrise, for appellee.
   BERANEK, Judge.

This is an appeal by the former wife from an order granting modification of a child support obligation previously established at $100 per week by final judgment of dissolution. We reverse. The following chronology appears on the face of the pleadings:

April 14, 1977 — parties divorced, final judgment set child support at $100 per week.
March 30, 1978 — husband found in contempt for failure to pay child support; ruling deferred.
July 10, 1978 — husband’s initial petition to modify child support downward denied by court order. (This order is not the subject of the instant appeal.)
December 28, 1978 — husband held in contempt for failure to pay child support.
March 2, 1979 — husband’s second petition for modification of child support.
April 2,1979 — order appealed from. This order granted modification and reduced child support.

The law of Florida is clear that when a party seeks modification of a prior final judgment to reduce child support the moving party has the rather heavy burden of demonstrating a substantial change in circumstances. Meltzer v. Meltzer, 356 So.2d 1263 (Fla.3d DCA 1978); and Burdack v. Burdack, 371 So.2d 528 (Fla.2d DCA 1979). In the instant case we conclude there was insufficient evidence of a substantial change in the financial circumstances of these parties.

Further, the chronology of proceedings does not support the order granting modification. The parties were divorced in early 1977, and the husband’s continuing ability to pay child support was thereafter reaffirmed in three subsequent court orders. The husband was twice found subject to contempt for his failure to pay child support and his prior petition for modification of child support was denied. The husband’s persistence was finally rewarded when he filed his second request for modification of March 2, 1979. This modification request occurred just slightly over two months after he had been found able to pay child support by the order of December 28, 1978. The husband’s March 2,1979, request for modification did not allege any specific change in the preceding two months but was instead directed at the entire period of time which had elapsed from entry of the final judgment. In the absence of some specific change in the two-month period in question, modification should have been denied. The former husband should not have been allowed to argue that child support should never have been set at $100 per week in the original final judgment. Acceptance of this position rendered the final judgment and the prior three unappealed court orders ineffectual. The initial final judgment on child support was arrived at by stipulation. The trial court may not remake a settlement agreement and should not modify the child support provisions of such an agreement in the absence of a showing of a substantial change in circumstances. Martinez v. Martinez, 383 So.2d 1153 (Fla.3d DCA 1980). The order granting modification is reversed.

REVERSED.

DOWNEY, J., concurs.

HURLEY, J., dissents without opinion.


text:
    ONONTARIO OF FLORIDA, INC., Appellant, v. R. P. TRUCKING CO., INC., Appellee.
    No. 79-2453.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.

      Alexander Myers of Christiansen, Jacknin & Myers, Palm Beach, for appellant.
    V. Craig McCaghren of McCaghren Law Offices, West Palm Beach, for appellee.
   PER CURIAM.

This appeal from a final judgment attacks two orders of the trial court. One granted appellee’s motion for directed verdict at the conclusion of appellant’s case-in-chief and the other sustained an objection to exhibits offered into evidence by appellant. We disagree with both determinations and reverse.

Appellant brought this action allegedly for breach of contract. From what we can glean from the arguments in support of and in opposition to the motion for directed verdict and the trial court’s comments thereon, the motion was granted because appellant failed to prove any damages. However, this court held in Muroff v. Dill, 386 So.2d 1281, 1283 (Fla. 4th DCA 1980), pet. for rev. denied, 392 So.2d 1377 (Fla.1981):

[W]e are of the opinion that the trial court was correct in not directing a verdict. Appellees/cross-appellants were entitled to nominal damages once the breach of contract had been established, notwithstanding the absence of evidence regarding the correct measure of damages.

Accord Price v. Southern Home Ins. Co. of the Carolinas, 100 Fla. 338, 129 So. 748, 751 (1930); Beverage Canners, Inc. v. Cott Corp., 372 So.2d 954 (Fla. 3d DCA 1979). Consequently, the trial court improperly granted the motion.

The second point raised by appellant concerning the exclusion of evidence by the trial court will undoubtedly arise at the new trial and therefore we shall consider the propriety of the trial court’s ruling. Appellant offered into evidence exhibits which constituted a compilation typed by appellee’s secretary from a daily log. Ap-pellee objected on the ground that the original book and daily log were the best evidence. The trial court agreed with appellee that the best evidence rule applied and therefore only permitted the original into evidence. At the time of the offer appel-lee’s owner was testifying, having been called as an adverse witness by appellant. Appellant’s purpose for offering the two compilations instead of the original log was to show inconsistencies among them, thereby bearing on the credibility of the witness and the record keeping of his company. For impeachment purposes the exhibits should have been admitted. The best evidence rule is not applicable where the matter being offered is not used to prove the truth of statements contained therein. See Urga v. State, 104 So.2d 43 (Fla. 2d DCA 1958).

Accordingly, we reverse and remand for a new trial consistent herewith.

REVERSED AND REMANDED.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    Randell Wayne WILKEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-199.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Aiken v. State, 390 So.2d 1186 (Fla.1980).

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


text:
    Fredalice CARTER, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 80-444.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Dominic L. Brandy of Chidnese & Brandy, Fort Lauderdale, for appellant.
    George E. Bunnell of Bunnell, Graham & Denman, P.A., Fort Lauderdale, for appel-lee.
   PER CURIAM.

The Summary Final Judgment entered in this cause is reversed on the authority of South Carolina Insurance Co. v. Kokay, 398 So.2d 1355 (Fla. 1981).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Cheryl Ann RICH, a/k/a Cheryl Ann Garton, Appellant, v. STATE of Florida, Appellee.
    No. 80-470.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Nowlin v. State, 346 So.2d 1020 (Fla.1977).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Martin GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-680.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Robert C. Stone of Stone & Dell, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Goodman appeals from his conviction and sentence for the crime of possession of over 100 pounds of cannabis with intent to deliver.

We first dispose of the sentence which provides for seven years of incarceration to be followed by five years of probation. Split sentences involving both incarceration and probation came under the scrutiny of our Supreme Court in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In that opinion, given retroactive effect, the court determined that such split sentences may not validly impose a requirement of incarceration for more than one year. Goodman’s sentence is violative of that precept.

Of the six points raised which relate to the conviction itself we consider only the first at length. The remaining points either were not adequately preserved for appeal or were not sufficiently meritorious on this record to warrant discussion.

Goodman questions the legality of an initial stop and frisk. This issue was raised in pretrial motions and at trial. We find that the arresting officer had both the authority and the necessary founded suspicion to make the stop in question. Since no evidence is alleged to have resulted from an illegal frisk we consider that aspect of the issue moot.

Goodman was stopped by Sergeant Or-tenzo of the Fort Lauderdale police department at a location outside the city limits. The relevant and material facts essential to an examination into the legality of that stop unfold in the following fashion.

Ortenzo, along with two other officers of the Fort Lauderdale police department, was instructed by his superior officer to go to a certain location within the city limits and to assist the sheriff’s department in making a drug arrest at that location. A van loaded with marijuana was seized and the driver arrested. The police learned that the marijuana had been picked up from the garage of a dwelling located outside the city limits. Sergeant Ortenzo was instructed by a deputy sheriff to proceed to that location and secure the premises. The house in question was located on a dead-end street terminating in a cul de sac, so that there was no through traffic.

Goodman, owner of the dwelling in question, obtained a ride with one Hawkins, a neighbor, and they approached the premises in Hawkins’ automobile. According to Sergeant Ortenzo’s testimony, the automobile appeared to slow as though to pull into the driveway and then suddenly changed course and continued down the street with both male occupants staring intently at the house, even when they passed within two feet of Sergeant Ortenzo. The vehicle negotiated the cul de sac and approached the house from the opposite direction, the occupants continuing to look at the dwelling. At this point, Sergeant Ortenzo stopped the vehicle. There is testimony that a deputy sheriff was at that time in close proximity to the vehicle.

Goodman takes the position that Sergeant Ortenzo was without authority to make this stop outside the municipal limits of the city of Fort Lauderdale. The trial court held that the officer did have such authority and we agree.

Ortenzo had been requested to aid the sheriff’s department in effecting an arrest and in securing premises related causally, if not geographically, to that arrest. By virtue of Section 901.18, Florida Statutes (1979), Ortenzo had, under these circumstances, the same authority as that of the deputy sheriffs. This authority encompassed any lawful act necessary to investigation of circumstances surrounding that arrest and the related premises, including the stop in question here. Another source of Ortenzo’s authority is his position as a municipal officer conducting an investigation outside his territorial jurisdiction, the subject matter of which originated in his own jurisdiction. See State v. Chapman, 376 So.2d 262 (Fla.3d DCA 1979). More specifically, Ortenzo was involved in an investigation which began in the City of Fort Lauderdale with the arrest of the driver of the drug-laden van and led to the premises outside the city limits where the stop, a part of the investigation, was made. For these reasons, either one of which we deem sufficient, the officer had authority to make a stop based upon a founded suspicion.

The second prong of our inquiry, then, is whether the facts establish the basis for such a founded suspicion. The proper test, articulated in State v. Stevens, 354 So.2d 1244, 1247 (Fla.4th DCA 1978) is defined as:

To justify temporary detention, only ‘founded suspicion’ in the mind of the detaining officer is required .... A ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.

The Stevens court, in addressing the issue of whether mere or bare suspicion is enough to support detention, further stated that:

There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated, to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; any thing incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

Id. at 1247.

We conclude that the actions of Goodman and Hawkins, in light of the officer’s knowledge that the premises had just previously been the repository for a cache of cannabis, were sufficient to justify a stop and investigatory detention.

For the foregoing reasons we affirm the conviction but vacate the sentence and remand for resentencing in conformity with the dictates of Villery, supra.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESEN-TENCING.

ANSTEAD and HURLEY, JJ., concur.


text:
    Arthur SCHREIBER, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 80-1063.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellant.
    Deborah C. Poore of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant/Dr. Schreiber appeals from a directed verdict finding that there was no evidence from which a jury could conclude that he was engaged in the active practice of dentistry on the date he was injured. We affirm.

The relevant portion of the insurance policy provides that coverage will terminate on “the date the insured retires or ceases to be actively engaged in the duties of his profession or occupation.” Appellant sold his dentistry practice in New York in December, 1975, and moved to Florida, where he was injured in January 1977. Although he may have intended to return to New York and resume the practice of dentistry at some point in the future, it is undisputed that he was not actively engaged in the practice of dentistry on the date of his accident. Thus, as a matter of law, appellant was not entitled to coverage under the terms of the disability policy.

AFFIRMED.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. G. B. P., a child, et al., Appellees.
    Nos. 80-1167 to 80-1169, 80-1243 to 80-1247 and 80-1748.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellees.
   DOWNEY, Judge.

These are nine consolidated appeals by the State from orders dismissing petitions for delinquency pursuant to Juvenile Procedure Rule 8.110(e) (1980). In all of the cases a petition for delinquency was filed between thirty and forty-five days after a complaint against the respective juvenile appellant was referred to the intake office of the Department of Health and Rehabilitation Services.

The appellate issue is whether Juvenile Procedure Rule 8.110(e) (1980) or Section 39.05(6), Florida Statutes (1979), controls the time within which a petition for delinquency must be filed against a juvenile after the filing of a complaint referring the juvenile to the Department. During the periods relevant to these appeals Rule 8.110(e) required a petition to be filed within thirty days after a complaint was referred to the Department. The statute allows forty-five days after a reference before the petition must be filed. The issue must be resolved by determining whether the filing time requirement is procedural or substantive. If it is the former, the rule will prevail; if the latter, the statute controls.

The Fifth District Court of Appeal in P. L. H. v. Brownlee, 389 So.2d 649 (Fla. 5th DCA 1980), held the matter was procedural and followed the rule. In a later case, State v. L. H., 392 So.2d 294 (Fla.2d DCA 1980), the Second District Court of Appeal held the manner was substantive and followed the statute. We believe the rationale of the Second District case is superior and align ourselves with the holding of that case. Consequently, we hold that the statute is substantive, and a petition for delinquency is timely if it is filed within forty-five days after a complaint has been referred to the Department.

In State v. J. A., Jr., 367 So.2d 702, 703 (Fla.2d DCA 1979), Judge Grimes pointed out that:

Substantive law prescribes duties and rights under our system of government, and the legislature is responsible for enacting such law. Procedural law concerns the means and methods to apply and enforce those duties and rights, and the supreme court determines procedural law through the promulgation of rules. Benyard v. Wainwright, 322 So.2d 473 (Fla.1975). Substantive law creates, defines and regulates rights, while procedural law is the legal machinery by which substantive law is made effective. State v. Garcia, 229 So.2d 236 (Fla.1969).

The Supreme Court of Florida had an opportunity to resolve the procedural/substantive dichotomy regarding delinquency petitions in S. R. v. State, 346 So.2d 1018, 1019 (Fla.1977), in determining whether the mandatory aspect of the rule should apply or the more permissive aspect of the statute. There the Court said:

The Second District Court of Appeal also held that Section 39.05(7), Florida Statutes (1975), is procedural in nature and therefore subject to the rules promulgated by this Court. Again, we disagree. Section 39.05(7), Florida Statutes (1975), provides a juvenile with a substantive right and substantive statutes supersede procedural rules, State v. Garcia, 229 So.2d 236 (Fla.1969). We therefore hold that dismissal with prejudice is mandatory when a petition alleging delinquency is filed more than 30 days after a complaint is received by the intake office of the Division of Youth Services.

Accordingly, the judgment in each of the consolidated cases is reversed and remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

MOORE and HURLEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    CITY OF TAMARAC, a Florida Municipal Corporation, Appellant, v. Dennis SIEGEL and Ira Cor, Appellees.
    No. 80-1351.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.

      Alan Francis Ruf, Fort Lauderdale, for appellant.
    Charles A. Finkel, Hallandale, for appel-lees.
   ANSTEAD, Judge.

Appellant, the City of Tamarac, granted a special exception to appellees to construct a funeral home at a given location within the city. At the time the exception was granted, appellee Dennis Siegel was the contract vendee for the land in question and title to the property had not yet technically passed to him. Subsequently, the city rescinded its grant of the exception. In an action initiated by Siegel, the trial court held that the city was equitably estopped from rescinding the special exception. On appeal, the main issue raised is whether the doctrine of equitable estoppel may be invoked against a municipality on behalf of parties who do not yet actually own the property affected. We hold that the doctrine may be invoked in such cases and affirm.

Florida case law is clear that the city could be equitably estopped from rescinding the special exception if appellees had owned the property in question. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976). However, there are few Florida cases on point involving persons other than property owners. In Sakolsky v. City of Coral Springs, 151 So.2d 433 (Fla.1963) the doctrine was invoked on behalf of a property owner who apparently held only options to purchase the land in question.

In a recent decision the Second District Court of Appeal approved the utilization of the doctrine by a mortgagee who had made substantial loans in reliance upon the rezoning of the property which had been pledged as security for the loans. In Jones v. U. S. Steel Credit Corporation, 382 So.2d 48 (Fla.2d DCA 1979) the opinion concluded:

We agree with the trial court’s decision that, under the compelling facts before the court, the doctrine of equitable estop-pel, as set forth in Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla.2d DCA 1975), although by its terms available only to property owners, in equity and good conscience should be applicable here. As the trial judge stated in ruling on the case, the fact that appellee is a lienor or a successor in title under foreclosure should make no difference as long as appellee has justifiably and in good faith relied upon appellants’ official actions, as it clearly did here, (footnote omitted)

382 So.2d at 49.

We think the same observations are pertinent here. The city was explicitly aware of the status of the appellees at all times and raised no objection to the appellees’ standing to seek a special exception. To the contrary, the appellees met all of the requirements of the city for a special exception and complied in every way with the requests of city officials. The evidence fully supports the trial court’s holding that the city should be equitably estopped from rescinding the special exception granted. We have considered the other issues raised by the city and find no merit therein.

Accordingly, the judgment of the trial court is affirmed.

HERSEY and HURLEY, JJ., concur.

      . Research of other jurisdictions did not reveal a clear majority rule regarding the use of equitable estoppel in situations such as the one in the current case. Rather, the general rule seems to be that “such estoppels cannot be subjected to fixed and settled rules of universal application ... or hampered by the narrow confines of a technical formula.... Each case of estoppel must in the nature of things stand on ... the facts and circumstances of the particular case.” 28 Am.Jur.2d Estoppel & Waiver § 26 (1966).


text:
    Dallas Henry HARTLEY, Appellant, v. Jeanette Janie HARTLEY, Appellee.
    No. 80-1373.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Donald J. Murray, Miami, for appellant.
    Howard B. Herskowitz of Law Offices, Compton & Herskowitz, Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

On appeal Dallas Hartley seeks to have set aside those portions of a final judgment of dissolution which awarded his former wife attorney’s fees and his one-half interest in the marital home as lump sum alimony. We affirm.

This is a long term marriage. The parties were married in 1954 and have two children, both of majority age but who still reside in the marital home with their mother. At the time of dissolution Mr. Hartley was aged 52 and Mrs. Hartley in her mid-forties. Throughout the marriage, Mrs. Hartley was the homemaker for the family and Mr. Hartley the breadwinner. As a result Mrs. Hartley has no particular employment skills. Mr. Hartley earned $26,-000 yearly as an employee of the Federal Aviation Authority, but in 1978 he suffered a work-related injury and was granted a permanent, tax-free disability pension of $1,250 per month, with provisions for periodic cost of living increases.

The couple’s property assets consisted of the marital home valued at $55,000 and encumbered by a $13,000 mortgage payable at the rate of $154 per month, and three undeveloped pieces of property located in the Palatka area. Except for $2,434.56 in cash which the husband had withdrawn from one of the couple’s credit union accounts, neither party had substantial liquid assets. For a short time prior to the final hearing Mrs. Hartley was employed as a bookkeeper earning $640 per month and Mr. Hartley worked part time earning an additional $600 monthly. Neither party was actually employed at the time of the final hearing, although Mrs. Hartley does not dispute the assertion that she could return to the bookkeeping job. In addition, it was disclosed that Mr. Hartley had suffered through periods of depression and had recently displayed violent tendencies towards his wife.

The trial judge awarded Mr. Hartley’s interest in the marital home to Mrs. Hart-ley as lump sum alimony, and directed that Mr. Hartley pay a substantial portion of Mrs. Hartley’s attorney’s fees. No periodic alimony was awarded. Mr. Hartley was awarded full ownership of the three undeveloped pieces of property located in the Palatka area, admittedly of modest value, and was also permitted to keep the $2,434.56 which he had withdrawn from one of the couple’s credit union accounts. Mr. Hartley alleges that the trial judge abused his discretion in fashioning the awards of lump sum alimony and attorney’s fees. We disagree.

In Florida a trial judge possesses broad authority upon the dissolution of a marriage to fashion an equitable distribution of the marital partners’ financial resources based upon the needs and abilities of the partners and a consideration of the role played by each during the course of the marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Section 61.08, Florida Statutes, provides the trial court may consider “any factor necessary to do equity and justice between the parties” in determining the amount and form of alimony to be awarded in a dissolution proceeding.

Once decided, a property disposition fashioned by a trial court in a dissolution proceeding should not be disturbed on appeal if “reasonable men could differ as to the propriety of the action.” Canakaris, supra, at 1203.

In Canakaris, trial judges were freed from previous technical restraints imposed on the utilization of lump sum alimony as a tool to help fashion an equitable solution to the financial problems created by dissolution:

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.

382 So.2d at 1201. We have interpreted Canakaris as imposing considerable limitation on appellate review of a lower court award of lump sum alimony:

The Canakaris court pointed out that in making the determination to award lump sum alimony the trial judge is exercising a broad discretion to ensure equity and justice between the parties. Appellate courts were admonished to exercise restraint and caution in reviewing the trial court’s exercise of its discretion and to keep hands off unless that discretion is exercised in an arbitrary, fanciful or unreasonable way.

Nusbaum v. Nusbaum, 386 So.2d 1294, 1295 (Fla. 4th DCA 1980).

In deciding to award Mr. Hartley’s interest in the marital home as lump sum alimony, the trial judge was apparently influenced by evidence of Mr. Hartley’s poor health and his status as a retired worker receiving $1,250 per month for life, with periodic cost of living increases. A trial judge may properly consider the husband’s health in determining whether to award a wife lump sum alimony as an alternative to periodic alimony. Nusbaum v. Nusbaum, supra; Caidin v. Caidin, 367 So.2d 248 (Fla.3d DCA 1979), cert. denied 381 So.2d 765 (Fla.1980). The usually unspoken but sometimes very legitimate fear, of course, is that if periodic alimony is ordered and the husband dies shortly thereafter, his former wife may be left destitute. In addition, the trial court could consider the relatively low expense for monthly maintenance of the marital home compared to the expense that would face the wife with her modest earning capacity in renting or purchasing a new home in today’s market place. The award also ensures that the parties enjoy a fair degree of independence from one another, a concern which, in light of the evidence of Mr. Hartley’s violent tendencies, we believe may properly have been considered.

Mr. Hartley suggests that this arrangement was unfair because it stripped him of his only substantial asset, his interest in the home. He suggests that an award of permanent periodic alimony coupled with an award to the wife of exclusive possession of the home would be more equitable. However, in our view, he overlooks the fact that his substantial tax-free pension is a major resource that is left untouched by the trial court’s award. In addition, in view of the difference in ages of the parties and the health of the husband, it is doubtful that he would ever receive any actual benefit from his interest in the home if the wife were given exclusive possession. In any case, the trial court is not bound to fashion a perfect remedy, only a reasonable and fair one, and we believe it has done so here.

In sum, we believe this case exemplifies the intelligent use of lump sum alimony as a device that may be employed by a trial court to see that justice is done between the parties under the principles of Canakaris, supra. We also believe that the trial judge properly exercised his discretion in directing that Mr. Hartley pay a substantial portion of Mrs. Hartley’s attorney’s fees.

Accordingly, the judgment of the trial court is affirmed.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    ALAN RESTAURANT CORP., a Florida Corporation, d/b/a Danny’s Restaurant, Appellant, v. Selma WALDER and Irving Walder, her husband, Appellees.
    No. 81-568.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.

      Bruce F. Simberg of Conroy & Simberg, P. A., Hollywood, for appellant.
    No appearance for appellees.
   DOWNEY, Judge.

This is an appeal by Alan Restaurant Corporation from an order denying its motion to dismiss the personal injury complaint of Mr. and Mrs. Walder.

The Walders filed a complaint seeking money damages from the Corporation on the grounds that one of its employees as a result of negligent conduct had inflicted personal injuries on Mrs. Walder. Attempts at gaining jurisdiction over the Corporation by personal service on its resident agent, Alan Gardner, were unsuccessful. On October 6, 1980, the Walders filed a motion asking the circuit court to enter an order allowing for service of process by publication against the Corporation pursuant to Section 49.051, Florida Statutes (1979). On November 7, 1980, the court (Latimer, J.) entered an order granting that motion. Thereafter the Walders made service of process by publication pursuant to Chapter 49, Florida Statutes.

On December 10, 1980, the Corporation filed a motion to dismiss the complaint for insufficiency of process, insufficiency of service of process, insufficiency of jurisdiction over the Corporation, and improper service on the Corporation as named. On January 14, 1981, the Walders filed a motion for default.

After holding a hearing on the motion to dismiss and the motion for default the court (King, J.) on February 18, 1981, entered an order denying both motions. The order specified that Judge King would not review Judge Latimer’s order of November 7,1980. This interlocutory appeal followed. We have jurisdiction. Rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure.

The Corporation contends that the order denying its motion to dismiss should be reversed because service of process by publication is not a proper means of obtaining personal jurisdiction over a defendant, since Section 49.011 does not authorize service of process by publication in a personal injury negligence action for money damages.

The Walders have not filed a brief to assist us in deciding this appeal.

Section 49.011 authorizes service of process by publication in only twelve types of actions or proceedings. Personal injury negligence actions are not included in the foregoing list of actions and therefore ser-vice of process by publication is unauthorized in negligence actions. Drake v. Scharlau, 353 So.2d 961 (Fla.2d DCA 1978); Condotel Bahamas, Ltd. v. Leavell Bahamas, Ltd., 276 So.2d 189 (Fla. 4th DCA 1973); Jones v. Denmark, 259 So.2d 198 (Fla.3d DCA 1972).

Nonetheless, dismissal of an action is inappropriate when a plaintiff has made improper use of Chapter 49 in attempting to gain personal jurisdiction over a defendant. Condotel Bahamas, Ltd. v. Leavell Bahamas, supra; Jones v. Denmark, supra. We therefore affirm the order denying the Corporation’s motion to dismiss. However, this affirmance is without prejudice to the Corporation’s seeking to quash service of process.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.

      . (1) To enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within this state;
      (2) To quiet title or remove any encumbrance, lien or cloud on the title to any real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within this state;
      (3) To partition real or personal property within the jurisdiction of the court;
      (4) For dissolution or annulment of marriage;
      (5) For the construction of any will, deed, contract or other written instrument and for a judicial declaration or enforcement of any legal or equitable right, title, claim, lien or interest thereunder;
      ie) To reestablish lost instruments or records which have or should have their situs within the jurisdiction of the court;
      (7) In which a writ of replevin, garnishment or attachment has been issued and executed;
      (8) In which any other writ or process has been issued and executed which places any property, fund or debt in the custody of a court;
      (9) To revive a judgment by motion or scire facias;
      (10) For adoption;
      (11) Wherein personal service of process or notice is not required by the statutes or constitution of this state or by the Constitution of the United States;
      (12) In probate or guardianship proceedings wherein personal service of process or notice is not required by the statutes or Constitution of this state or by the constitution of the United States.


author:
      DOWNEY, Judge.
      MOORE, Judge,

text:
    L. Rupert WILLS, Appellant, v. Violet E. WILLS, Appellee.
    No. 80-1782.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Myron B. Berman, North Miami Beach, for appellant.
    Jeffrey P. Swayman of Kaplan & Jaffe, P. A., Hollywood, for appellee.
   DOWNEY, Judge.

This appeal involves an interlocutory order awarding visitation rights with Beverly Ann Wills, the twelve year old adopted daughter of the appellant. Beverly was adopted by appellant and his first wife in 1972 when she was three and one-half years old. Her adoptive mother died in April of the following year and in November of that same year the appellant married the appel-lee. Beverly, although never adopted by the appellee, was raised by and knew this woman to be her mother. In March of 1980 the husband filed a petition for dissolution of the marriage.

In these dissolution proceedings the General Master recommended that appellee be granted visitation privileges with Beverly. It is significant that the Master found ap-pellee was Beverly’s “psychological mother.” The trial court adopted the Master’s recommendation and granted appellee visitation privileges while the dissolution proceeding was pending. That order is the subject of this appeal.

We have not been afforded the benefit of a transcript of the proceedings before the Master. Nevertheless, we would assume the evidence was substantial because of the General Master’s rather unique finding that appellee was the “psychological mother” of the child.

This is not a case of the court’s finding that a non-parent should have custody of children as against their parents, although that, too, can be done in appropriate circumstances. Cone v. Cone, 62 So.2d 907 (Fla.1953), modified 68 So.2d 886 (Fla.1953); Johnson v. Johnson, 114 So.2d 338 (Fla. 1st DCA 1959). Rather, under the peculiar circumstances of this case the court obviously felt that the best interests of the child, and that is the polestar to be followed, required that the erstwhile stepmother visit the child, at least for the time being.

Several jurisdictions have awarded visitation privileges to a non-parent where the evidence demonstrates it is in the best interest of the child involved. See: Collins v. Gilbreath, 403 N.E.2d 921 (Ind.App.1980); Simpson v. Simpson, 586 S.W.2d 33 (Ky.1979).

There are several cases in Florida which hold that an order granting visitation rights to a non-parent of a child whose custody has been awarded to a fit parent is unjustified and unenforceable. Tamargo v. Tamargo, 348 So.2d 1163 (Fla. 2d DCA 1977); Sheehy v. Sheehy, 325 So.2d 12 (Fla. 2d DCA 1975); Rodriguez v. Rodriguez, 295 So.2d 328 (Fla. 3d DCA 1974). Furthermore, the Supreme Court of Florida held years ago in Parker v. Gates, 89 Fla. 76, 103 So. 126 (1925) that an award of visitation to a non-parent who had cared for the child over an extended period was “not warranted by the evidence.” A similar result was arrived at by the Third District Court of Appeal in Lee v. Kepler, 197 So.2d 570 (Fla. 3d DCA 1967) based upon evidence that such visitation was. not in the child’s best interest.

It seems to us that if an adequate record can be made demonstrating that it is in the child’s best interest that such visitation be authorized the trial judge’s discretion in the matter is sufficiently broad to allow him to authorize visitation with a non-parent. Certainly this type of visitation, contrary to the wishes of the custodial parent, should be awarded with great circumspection. But if the welfare of the child is promoted by such visitation and there is no other substantial interest adversely affected the trial judge should be allowed that latitude.

In any event, the order under review is an interlocutory order entered during the pendency of the dissolution proceeding. We have no transcript of the evidence adduced before the Master and considered by the trial judge. Under those circumstances it would appear improvident of this court to interfere in that temporary action of the trial court.

HERSEY, J., concurs.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

Although, under the facts of this case, I have a great deal of sympathy for the conclusion reached by the majority, I must respectfully dissent.

The result here places us in direct conflict with the Supreme Court’s decision in Parker v. Gates, 89 Fla. 76, 103 So. 126 (Fla.1925). The majority apparently distinguishes Parker because visitation there was “not warranted by the evidence.” In doing so, the complete holding of the Court is overlooked, and in my opinion, that holding dictates a contrary conclusion. The Court said:

... as it is not warranted by the evidence and the law applicable thereto, and cannot legally be enforced against the wishes of the child’s mother. (Emphasis added). Parker, at 126.

In dealing with visitation rights of grandparents, several cases have held that a non-parent of a child whose custody has been awarded to a fit parent has no such rights as they are unjustified and unenforceable. Tamargo v. Tamargo, 348 So.2d 1163 (Fla. 2nd DCA 1977); Sheehy v. Sheehy, 325 So.2d 12 (Fla. 2nd DCA 1975); Rodriguez v. Rodriguez, 295 So.2d 328 (Fla. 3rd DCA 1974); Lee v. Kepler, 197 So.2d 570 (Fla. 3rd DCA 1967). Each of these cases relies on Parker, supra.

The legislature has now granted authority to the trial court to award visitation rights to grandparents if it is in the child’s best interest. § 61.13(2)(b), Fla.Stat. (1979). It has not granted similar rights to a non-parent.

I would reverse.


text:
    D. W. FRANKLIN, Jr., et ux., Appellants, v. Quincy A. BOATRIGHT, et al., Appellees.
    No. LL-135.
    District Court of Appeal of Florida, First District.
    June 25, 1981.
    J. W. Harrell, of Harrell & Perrine, Jacksonville, for appellants.
    Daniel I. McCranie, of Penland, McCranie & Shad, Jacksonville, for appellees.
   PER CURIAM.

Appellants complain that the trial court erred in awarding the appellees a statutory way of necessity pursuant to Section 704.-01(2), Florida Statutes (1977) across their land. They further urge that the definition of the word “practicable” in Section 704.03, Florida Statutes (1977), when applied to the facts of this case, is arbitrary, unreasonable and violates their constitutional right to due process and equal protection of the laws. We affirm.

The evidence in the record supports the trial court’s determination that appel-lees are hemmed in within the meaning of Sections 704.01(2) and 704.03 because they are not afforded any practicable route of ingress and egress to the nearest practicable public or private road without the use of bridges, embankments, or substantial fill. With respect to appellants’ contention that appellees’ lots border on easements that do give access to public roads, there was ample testimony in the record that the easement on the west runs adjacent to Pigeon Creek and crosses over property which is mud and muck and that the easement on the east crosses over rough terrain, a pond area, and more mud and muck. Further, we would note that before making his ruling the trial court actually viewed the property.

Appellants’ argument concerning Section 704.03 centers around their contention that this case is indistinguishable from South Dade Farms v. B & L Farms, 62 So.2d 350 (Fla.1952), which considered the propriety of allowing an adjoining landowner to use his neighbor’s private roads because the dedicated sites and common-law easements were not “practicable,” not being improved, and held that Section 704.01 was unconstitutional as it violated the prohibition against taking private property without just compensation. However, we note that the constitutionality of Section 704.01 was upheld in Deseret Ranches of Florida, Inc. v. Bowman, 349 So.2d 155 (Fla.1977), which found that the objections raised in South Dade Farms were cured by the enactment of Section 704.04 providing for compensation to the servient owner. Although we view the dissent by Justice Sundberg in Deseret as well-reasoned, we are bound to follow the precedent of the majority of the Supreme Court in Deseret. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). With respect to appellants’ argument regarding the application of Section 704.03 to this case, we note the expert road builder testified that it would take 11,666 cubic yards and several culverts before a road could be built along the route proposed by appellants. One neighbor who has lived in the area in question for forty years testified that “it would take half the dirt in Nassau County” to fill the area in where appellants argued the proposed road could go. Therefore we cannot agree that Section 704.03 has been arbitrarily and unreasonably applied to the facts of this case. The remainder of appellants’ argument under this point is without merit.

Accordingly, the final judgment appealed is affirmed.

MILLS, C. J., and LARRY G. SMITH and SHIVERS, JJ., concur.

      . (2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON LAW RIGHT. — Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when any land or portion thereof outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, and electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.

      . 704.03 “Practicable” defined. — For the purposes of this chapter the word “practicable,” as used in s. 704.01, shall be held and construed to mean “without the use of bridge, ferry, turnpike road, embankment, or substantial fill.”


author: McCORD, Judge.

text:
    Kenneth HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. UU-382.
    District Court of Appeal of Florida, First District.
    June 25, 1981.
    Michael Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals the trial court’s revocation of his probation and the subsequent sentence. We affirm in part, reverse in part, and remand.

On February 5, 1980, appellant pled nolo contendere to a charge of delivery of more than 20 grams of cannabis. In determining appellant’s understanding of his plea, the trial judge informed appellant that he would be subject to a five-year term in prison, which appellant indicated he understood. After entry of the plea, the trial court withheld adjudication and placed appellant on probation for a period of two years.

Shortly thereafter, appellant was charged with violation of Condition 6 of his probation, which prohibited him from using intoxicants to excess. The affidavit of violation also charged appellant with resisting arrest. After a hearing, the trial court entered an order of revocation of probation finding both grounds had been proven. The court thereupon sentenced appellant to six years in prison, no more than four of which shall be served by imprisonment and a period of not more than two years shall be served in a community program, pursuant to the Youthful Offender Act, Chapter 958, Florida Statutes.

Appellant first contends that the trial court erred in revoking his probation for disorderly intoxication when the proof did not show the elements of disorderly intoxication, and disorderly intoxication was not the offense charged in the affidavit of probation violation. Contrary to appellant’s assertion, however, the trial court did not revoke appellant’s probation for disorderly intoxication. The proof supports a finding that appellant did use intoxicants to excess. Therefore, the trial court was justified in revoking appellant’s probation on that ground.

Appellant next contends that the trial court erred in revoking his probation for resisting arrest without violence because the State did not prove the legality of his arrest. We agree on this point, but inasmuch as the revocation was proper on the other ground, such error does not alter the result.

As his final point, appellant contends that the trial court erred in sentencing him to a six-year term under the Youthful Offender Act. The record shows that, at the time of entry of his nolo contendere plea, appellant was informed that his maximum exposure was five years in prison. If appellant was unaware of the greater penalty to which he was actually exposed at the time of the entry of his plea, his sentence must either be reduced to not more than five years or he must be allowed to withdraw his plea. Compare McCullough v. United States, D.C., 231 F.Supp. 741 (1964). Upon remand the trial court may hold a hearing to determine whether or not at the time of appellant’s plea he had knowledge of the greater penalty to which he was exposed under the Youthful Offender Act.

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

BOOTH and SHIVERS, JJ., concur.


text:
    Joseph PEARSON, Appellant, v. CITY OF MIAMI BEACH and Risk Management Services, Inc., Appellees.
    No. UU-499.
    District Court of Appeal of Florida, First District.
    June 25, 1981.

      Marvin J. Kristal, North Miami, for appellant.
    Richard Hodges, Miami, for appellees.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

In this workers’ compensation case, the injured employee, although awarded permanent partial disability equal to the anatomical disability rating of the treating physician, contends that fhe deputy commissioner erred in failing to award appellant permanent partial disability for a wage-earning capacity loss in excess of the anatomical disability rating.

The relevant portion of the deputy commissioner’s order contained the following finding:

“(6) Although claimant submitted into evidence a long list of places where he sought employment over a short span of time, he admitted that there had been no return to work and therefore, no opportunity to test his earning capacity on the open labor market and it is therefore found that his permanent disability on loss of wage earning capacity basis does not exceed his disability on the basis of a physical impairment as evaluated by the treating physician.” (e. s.)

While an injured employee, in order to justify an award of compensation for diminution of wage-earning capacity in excess of physical impairment, has the burden of proving that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement, Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978), by a good faith work search, Pasco County v. Green, 382 So.2d 798 (Fla. 1st DCA 1980), he is not required to have first returned to work, where, as in this case, there is no evidence of availability of work within the claimant’s capabilities.

Appellant offered competent, substantial evidence to establish a loss of wage-earning capacity in excess of the anatomical disability rating, and also evidence that after reaching maximum medical improvement he had applied without success to approximately twenty-two separate employers for work within his physical limitations. The credibility and sufficiency of that evidence to establish a good faith work search on the part of appellant remains a factual matter to be determined by the deputy commissioner upon remand.

That part of the compensation order dated March 20, 1980, pertaining to the claim for loss of wage-earning capacity in excess of physical impairment is reversed, and this cause remanded to the deputy commissioner for further proceedings on that part of the claim including, in the discretion of the deputy commissioner, the taking of further evidence on that issue.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MILLS, C. J., and WENTWORTH, J., concur.


author: WENTWORTH, Judge.

text:
    Dr. Joseph VEY, Appellant, v. BRADFORD UNION GUIDANCE CLINIC, INC., et al., Appellees.
    No. YY-53.
    District Court of Appeal of Florida, First District.
    June 25, 1981.
    Rodney W. Smith, Gainesville, for appellant.
    Stephen A. Rappenecker, Norm J. LaCoe, Gainesville, for appellees.
   WENTWORTH, Judge.

This is an appeal from an order entered September 3, 1980, by a DOAH hearing officer dismissing Bradford Union Guidance Clinic, Inc. (“BUGC, Inc.”), as a party to Chapter 120, Florida Statutes, proceedings before the Florida District III Mental Health Board. The only issues presented here by appellant, Dr. Vey, are (1) that the hearing officer lacked authority to enter the order of September 3, 1980, dismissing BUGC, Inc., upon its motion for rehearing of the order of August 12,1980, denying such dismissal; and (2) that the September 3 order erroneously found that BUGC, Inc., was not an agency under § 120.57(1), Florida Statutes. We affirm.

An earlier appeal resulted in a decision by this court which reversed the Board’s order denying Vey’s request for de novo determination of an employment grievance (already heard and denied by a Clinic personnel committee). Vey v. District III Mental Health Board, 376 So.2d 1210 (Fla. 1st DCA 1979). We found that “the Mental Health Board’s election to act as a review board was unauthorized by its own rules and by the Administrative Procedure Act, Chapter 120, Florida Statutes. Appellant is entitled to a fair and impartial formal hearing conducted pursuant to the procedures provided by Section 120.57(l)(b), Florida Statutes, ...” Confusion has apparently resulted from the further direction that the proceeding should be conducted before a DOAH hearing officer as provided by § 120.57(l)(a). Whatever generated that direction, the court held only that the Board’s function was not appellate in nature, and that the Board was required, as an agency subject to Chapter 120, to act on Vey’s petition after the necessary hearing. The remand plainly permitted determination of all ensuing issues between the parties on both procedure and merits, and the terms of the remand therefore did not pre-determine the issue of employer status for either the Board or clinic, or any other issue beyond that above quoted.

The order now appealed was entered by the hearing officer on September 3, 1980. It recited an August 26 motion by BUGC, Inc. for rehearing of an order entered August 12, 1980, based on motions by the Board and BUGC to dismiss, to which Vey filed no response. The August 12 order made findings from the pleadings and statutes and held (1) that all facts pleaded in the complaint showed Vey’s employer was BUGC, Inc., (2) that BUGC was not a state agency, (3) that Vey had no employment relationship with the Board and Vey’s petition should be dismissed because “the Board has taken no action ... which will affect Dr. Vey’s substantial interest,” and:

Had this case not come here via the District Court of Appeal, First District, I would grant the Motions to Dismiss Dr. Vey’s Petition. I do not believe that a Section 120.57(1) hearing is the proper forum to resolve employment disputes between private employers and their employees. The Court however, has spoken in this matter and whatever the wisdom of its holding, the decision is the law of this case ... For this reason the Motions to Dismiss must be and are DENIED.
The September 3 order on appeal states: Because the Clinic was not a party to the case of Vey v. District III Mental Health Board, it is not bound by the rule of that decision. McGregor v. Provident Trust Co. of Philadelphia [119 Fla. 718, 162 So. 323]. For the above reasons and for the reasons set out in the Order of August 12, 1980, ... It is ORDERED that the Second Amended Complaint inasmuch as it seeks to make the Bradford-Union Clinic, Inc., a party to these proceedings is dismissed. The Second Amended Complaint is not dismissed as to the Respondent, District III Mental Health Board.

Appellant Vey’s first issue asserts the hearing officer lacked authority, based on motion for reconsideration, to alter his August 12 order denying motions to dismiss because no statute or rule provides for rehearing motions as to such orders. Conceding the lack of authority for the motion and acknowledging its inefficacy for tolling purposes, we conclude that under the recited circumstances the hearing officer acted properly in re-determining the merits of BUGC’s motion to dismiss which had been denied by interlocutory order three weeks earlier. In analogous situations where the lack of provision for reconsideration of an agency order foreclosed any stay of a prior order, the Florida court has recognized an administrative power to control and modify orders by timely action “before an appeal from the original order of the administrative body has been lodged or before such order has become final by lapse of time without a timely appeal.” Mills v. Laris Painting Co., 125 So.2d 745 (Fla.1961), quoting with approval from 73 C.J.S. Public Administrative Bodies and Procedure, § 156. The cited text, § 157, also states “without reference to statutory authority therefor and subject to some restrictions and limitations, it has been held that an administrative agency may correct or amend its orders” within the time they remain under its control, citing Leonard Bros. Transfer & Storage Co. v. Douglass, 32 So. 156, 159 Fla. 510; and State ex rel. Burr v. Seaboard Air Line Ry. Co., 111 So. 391, 93 Fla. 104. Appellant presents no authority or facts countering the application of this principle and we accordingly affirm.

Appellant’s second point urges error in the determination that BUGC was not an agency subject to § 120.57(1), Florida Statutes. Section 120.52(1) provides that “agency” means

(a) the governor ... (b) each other state officer and each state department, departmental unit ..., commission, regional planning agency, board, district, and authority, ... (c) each other unit of government in the state ... to the extent they are expressly made subject to this act ....

The above definition does not in terms encompass a private entity which contractually agrees to provide services for a state agency. In State Road Department v. Cone Brothers Contracting Co., 207 So.2d 489 (Fla. 1st DCA 1968), the court indicated that a private entity which contracted to provide services for a state agency does not thereby become a state agency itself. Under the terms of the agreement in the present case the Mental Health Center was required to honor BUGC’s personnel decisions, and, while BUGC received public funding, it was also authorized to receive private payments. The contractual agreement also refers to BUGC as an independent contractor. See also Fla. AGO 078-106 (rendered 8/15/78), expressing the opinion that a private service provider does not become a state agency by subcontracting to perform services for a state agency.

Although this court has previously determined that appellant was entitled to a Chapter 120 hearing, see Vey v. District III Mental Health Board, 376 So.2d 1210 (Fla. 1st DCA 1979), the court at that time did not consider whether appellee clinic, BUGC, was a state agency or a proper party to such proceeding on remand. Appellee was not a party before the district court and the order appealed correctly concluded that the decision had no collateral estoppel or res judicata effect as to appellee. In addition, as above noted, the earlier decision and opinion of this court did not reach the issue of the sufficiency of the petition to assert employer status for the Board, the review being confined to error on the face to the Board’s order denying de novo consideration of the petition.

The order appealed is accordingly affirmed.

SHIVERS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. W. D. ATKINS, Jr., Respondent.
    No. 60881.
    Supreme Court of Louisiana.
    Jan. 27, 1981.
   RESPONSE TO MOTION FOR REINSTATEMENT

Now into Court comes the Louisiana State Bar Association, Petitioner, in the above numbered and captioned matter, appearing herein through the Committee on Professional Responsibility and its Executive Counsel, Thomas 0. Collins, Jr., who, in response to the Motion for Reinstatement filed by W. D. Atkins, Jr., does represent as follows.

(1) Petitioner admits the statements made in Motion under Paragraph # 1.

(2) In connection with Paragraph # 2, the Committee suggests that the best evidence as to the content of the judgment of the United States District Court for the Western District of Louisiana, Lafayette/Opelousas Division, dated November 6, 1980, are the records of that Court.

(3) That the Committee admits that Article XV, Section 8(6) does provide “An attorney will be reinstated immediately on the reversal of his conviction for a serious crime that has resulted in his suspension, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney.” It is further noted that said Article XV has, by Rule XIX of this Honorable Court, become the rule governing matters touching upon discipline and disbarment of members of the Bar.

Further, in response to the Motion filed by W. D. Atkins, Jr., the Committee is of the opinion that upon the furnishing of evidence deemed sufficient by this Court of the reversal of the conviction in question, it would be appropriate for this Court to reinstate Mr. Atkins, as set forth in Article XV, Section 8(6).

WHEREFORE, the Committee prays that the above response be deemed sufficient and after due proceedings had, that this Court take the appropriate action indicated.

LOUISIANA STATE BAR

ASSOCIATION

COMMITTEE ON PROFESSIONAL

RESPONSIBILITY

Sam J. D’Amico, Chairman

Roland J. Achee

Wood Brown, III

Leonard Führer

Carrick R. Inabnett

Harold J. Lamy

Alfred S. Landry

A. Russell Roberts

John B. Scofield

Thomas 0. Collins, Jr.,

Executive Counsel

BY: /s/ Thomas 0, Collins. Jr.

Thomas 0. Collins, Jr.,

Executive Counsel