author: PER CURIAM. BOOTH, Judge,

text:
    David WALLACE, Appellant, v. WALTON CONTEXT BUILDING and United States Fidelity & Guaranty Company, Appellees.
    No. QQ-232.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.

      Douglas A. McDuff of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees.
   PER CURIAM.

Appellant/claimant seeks review of an order of the judge of industrial claims contending the judge erred in finding his claim time-barred under § 440.19, Florida Statutes (1977). We agree and reverse. In a pretrial stipulation, approved and accepted by the judge of industrial claims on September 29, 1978, the employer agreed that the medical treatment of Dr. Berg was authorized. This stipulation was admitted into evidence at the final hearing on October 26, 1978, as judge’s exhibit one without objection from the employer.

As the Supreme Court stated in Steele v. A. D. H. Building Contractors, Inc., 174 So.2d 16, 18 (Fla.1965):

We think it may be assumed without any violence of logic that when parties agree to facts and induce a deputy to enter an order because of confidence in their joint representation, all of them are in poor position later to represent that they were mistaken about those facts, in the absence of fraud, overreaching or some such element, .

We are aware that the judge of industrial claims may sometimes modify stipulations to prevent injustice, Delta Drilling Company, Inc. v. Wells, IRC Order 2-3708 (1979). However, here, as in Gory Roof Tile v. Wooden, IRC Order 2-3640 (1978) the record does not indicate any request to depart from the stipulation.

Accordingly, we hold that the stipulation was binding, therefore the statute of limitations should have been tolled.

Reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FOOD FAIR STORES, INC., and Group VII Services, Appellants, v. Robert MARTIN, Appellee.
    No. QQ-240.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.

      Carlos E. Casuso, of Underwood, Gillis, Karcher & Reinert, P. A., Miami, for appellants.
    Stephan H. Tarr, Miami, for appellee.
   PER CURIAM.

The order on appeal is affirmed except with regard to the award of Dr. Inclan’s bill for alternative medical treatment which is reversed. The evidence reveals that upon notice of the claimant’s desire for alternative medical treatment, the carrier voluntarily provided the same. Therefore, Dr. Inclan’s bill is not the responsibility of the carrier. Courtelis Co. v. Calizaire, IRC Order 2-3659 (January 16, 1979).

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF RISK MANAGEMENT, Appellant, v. Joan C. DAVIES, Appellee.
    No. QQ-355.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.
    Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for appellant.
    Jon D. Caminez, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

We note that appellee has not filed a separate motion for attorney’s fees, but has instead raised the question of appellate fees in her brief as a point on cross appeal. Under our rules, the proper procedure for requesting appellate attorney’s fees is to file a separate motion no later than the time for service of the reply brief. Rule 9.400, Fla.R.App.P. In the future, failure to follow this procedure will result in a denial of the fees requested.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    William V. GRUMAN, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 79-396.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1980.

      Brooks P. Hoyt of Stichter, Stagg, Hoyt, Riedel & Fogarty, Tampa, for petitioner.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, and Maxie Broome, Jr., Asst. Attys. Gen., Tallahassee, for respondent.
   OTT, Acting Chief Judge.

Following an administrative hearing the Department of Revenue (Department) assessed a documentary tax, penalties and interests totaling $11,432.60 against a transfer of real property by quitclaim deed from appellant to his wholly owned corporation. The hearing officer had recommended to the Department that the assessment be withdrawn on the ground that there was no consideration for the conveyance. The Department rejected that recommendation and ordered the assessment. We reverse that order.

Appellant’s wholly owned corporation, Gulf Standard Corporation, built an apartment complex in Tampa. Appellant and his wife were required to guarantee payments on a 1.85 million dollar mortgage. Gulf Standard became insolvent and conveyed all its assets, including the apartments, to appellant by quitclaim deed. Appellant assumed all the liabilities of the corporation. He made some of the mortgage payments and later quitclaimed the apartments to another wholly owned corporation, Northwest Liquor Industries, Inc., again without any money changing hands.

The Department assessed a documentary tax on both transfers, but later withdrew its assessments on the conveyance from Gulf Standard to appellant because no benefit resulted to appellant, who assumed responsibility for all its debts, and who had been liable for the mortgage payments at all times.

Appellant protested the tax on his conveyance of the property to Northwest Liquor. He claimed there was no consideration for it, that notwithstanding the conveyance he and his wife remained liable on the mortgage and that the fair market value of the apartments was less than the balance owing on the mortgage at the time of the transfer. He requested and got a formal hearing before a state hearing officer.

The Department relied upon language in an analogous provision of the Florida Administrative Code which provides that the unpaid balance of any mortgage on conveyed property is presumed to be part of the consideration for the conveyance. Rule 12B-4.13(7). To rebut that presumption, appellant introduced evidence (1) that Northwest Liquor Industries never made any payments on the mortgage, but instead went into bankruptcy almost immediately after the conveyance, and (2) the mortgage holder thereupon foreclosed on the property and obtained a deficiency judgment against appellant and his wife for over $500,000.

In his recommended order the hearing officer set forth his findings of fact and conclusions of law, as required by Section 120.57(l)(b)(8), Florida Statutes. He found that at the time of the conveyance the market value of the property was less than the mortgage guaranteed by appellant, that only a “captive grantee” would accept such a conveyance, and that appellant remained liable on the mortgage after the conveyance. He also found, but classified it as a “conclusion of law”, that Northwest Liquor had failed to make the mortgage payments when due. In express reliance upon American Foam Industries v. Florida Department of Revenue, 345 So.2d 343, (Fla.3d DCA 1977), he concluded that since Northwest Liquor did not make the mortgage payments after the transfer of the property, and since the conveyance did not relieve appellant of his liability on the mortgage, no consideration passed and the transfer to Northwest Liquor was subject to only minimal tax. He therefore recommended that the notice of proposed assessment b<? dismissed and the case closed.

The Department rejected that recommendation, asserting as fact its contention that Northwest Liquor had assumed the mortgage and promised to pay it, thus according appellant a benefit which constituted sufficient consideration for the conveyance to justify the documentary tax on the transfer. It also refused to be bound by the hearing officer’s finding that Northwest Liquor had not made payments on the mortgage, taking the position that this was a “conclusion of law”, and thus subject to rejection by the Department under Section 120.57(l)(b)(9), Florida Statutes.

The substituted order proposed by the Department was given final approval by the governor and the assessment of tax, penalties, and interest was allowed to stand.

In support of its order, the Department cites Rule 12B-4.12(2)(e) of the Administrative Code, which provides that a conveyance of premises subject to a mortgage debt, lien or encumbrance constitutes “consideration” for purposes of assessing a documentary tax. We note that this somewhat vague and ambiguous provision has now been supplemented by Rule 12B-4.13(25), which provides that the total consideration for a conveyance includes any mortgage which the grantee “pays or agrees to pay”.

There isn’t a shred of evidence to support the Department’s insistence that Northwest Liquor assumed the mortgage. The face of the deed contains no such provision. The only other evidence on the point came from appellant’s testimony, which denied it. The Department relies solely on the presumption noted (but not relied upon) in Kendell House Apartments v. Florida Department of Revenue, 245 So.2d 221 (Fla.1971), that a grantee of property subject to an encumbrance will “normally” pay it in order to protect his investment. Whatever the validity of that observation may be, we seriously doubt it was intended to apply to a situation where a “captive grantee” accepts property worth less than the balance due on the mortgage encumbering it and, in fact, makes no payment on such mortgage.

Likewise, we find no support in the record for the Department’s assertion that consideration consisted of the appellant’s being relieved of liability on the mortgage, as in Florida Department of Revenue v. DeMaria, 338 So.2d 838 (Fla.1976). The evidence not only belies any express release, it furnishes no basis whatsoever for any claim that appellant benefited by virtue of any mortgage payments made by Northwest Liquor after the conveyance. The hearing officer repeatedly stated in his recommended order that no such payments were made. Regardless of where the statements appear, or how they are labeled, they are undeniably findings of fact—and must be treated as such. 5 Am.Jur.2d 271, § 829, Appeal and Error.

The findings of a trier of fact are entitled to as much weight and respect as the verdict of a jury. Hamilton v. Title Insurance Agency of Tampa, Inc., 338 So.2d 569 (Fla.2d DCA 1976). They may not be ignored or overturned unless review of the entire record reveals a total lack of substantial evidence to support them. Chakford v. Strum, 87 So.2d 419 (Fla.1956). Florida’s Administrative Procedure Act expressly adopted those principles. § 120.57(l)(b)(9), Fla.Stat.

We therefore conclude, and so hold, that the hearing officer’s findings that, in effect, Northwest Liquor never did pay or agree to pay the outstanding mortgage are amply supported by the evidence and constitute findings of fact that are binding upon the Department.

For the reasons which we have discussed, we vacate the order of the Department and remand for the entry of an order consistent with the recommendations of the hearing officer and this opinion.

RYDER and DANAHY, JJ., concur.


text:
    BEASLEY & SON, INC., and Chubb/Pacific Indemnity Group, Appellants, v. Paul NORRIS, Appellee.
    No. QQ-249.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.

      Clifford L. Somers of Miller, McKendree & Somers, Tampa, for appellants.
    William P. Levens of Barrs, Melendi, Williamson & Levens, Tampa, for appellee.
   PER CURIAM.

The employer/carrier seeks review of the judge of industrial claims’ order contending that the judge erred (1) in finding that claimant had not reached maximum medical improvement and in reclassifying his permanent partial disability benefits as temporary total disability benefits; (2) in ordering that claimant be narco-analyzed and furnished a transcutaneous nerve stimulator; and (3) in requiring the carrier to pay for medical tests which were done to rule out tuberculosis as an element in claimant’s disability.

We affirm the provision of the tran-scutaneous nerve stimulator and the payment of the disputed medical bill. We reverse the provision of the narco-analysis and the finding that claimant has not reached maximum medical improvement.

The record does not support a need for the narco-analysis. The claimant is being treated for his complaints, and there is no indication that narco-analysis is here required by the nature of the injury or the process of recovery, § 440.13, Florida Statutes (1977).

Nor is there competent, substantial evidence to support the judge’s finding that maximum medical improvement had not been reached and that claimant continued to be temporarily and totally disabled. Neither the doctors nor the claimant testified that claimant was likely to improve, and all doctors testified he had reached maximum medical improvement.

There is competent, substantial evidence that claimant is permanently disabled in excess of his anatomical impairment. Therefore, we remand for a determination of his degree of disability under the criteria established in Walker v. Electronic Products and Engineering Co., 248 So.2d 161 (Fla.1971).

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Angelo CARUSO, Appellant, v. CROWN LIQUORS, INC. and Cosmopolitan Mutual Insurance Company, Appellees.
    No. QQ-307.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.

      Leonard M. Vincenti, Clearwater, for appellant.
    J. Scott Brasfield, of Williams, Brasfield & Wertz, St. Petersburg, and James N. McConnaughhay, Tallahassee, for appellees.
   PER CURIAM.

This appeal and cross-appeal from an order of the judge of industrial claims presents us with four issues. We affirm the judge’s ruling that the employer/carrier should not be required to furnish the claimant with chemonucleolysis, a medical/surgical procedure not available in the United States. We find no reversible error in the method used to calculate the average weekly wage and therefore affirm.

However, we do find error in the judge’s ruling that an injured employee is required to look for work regardless of his physical or mental condition, and in his apportionment of claimant’s disability.

The judge of industrial claims found that Caruso is confined to bed approximately 23 hours a day and is heavily medicated. He found this confinement compatible with Caruso’s diagnosis and condition. Despite this, the judge found “that it is necessary for an injured employee to test the open labor market under any circumstances.” This is a misstatement of the law. The failure of the claimant to seek employment is reasonable and justified under certain circumstances. Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976); Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976). It belies all logic and reason to expect a person who is confined to bed 23 hours á day to actively seek work.

The judge of industrial claims also erred when he apportioned Caruso’s permanent partial disability one-half to the industrial accident and one-half to his pre-exist-ing thrombophlebitis and pulmonary embolism. In Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967), the court ruled that apportionment is proper only when the pre-existing condition is disabling at the time of the accident or at the time of the award. There is no evidence in the record showing that Caruso was disabled from the thrombophlebitis or pulmonary embolism at the time of the accident or at the time of the hearing, and the judge specifically found the condition asymptomatic. The judge further found the industrial accident resulted in a herniated disc which was causing the present symptoms and disability. Such findings are inconsistent with apportionment.

The record, including the judge’s order, indicates Caruso is permanently and totally disabled and the disability is solely attributable to the industrial accident. %

Affirmed in part, reversed in part and remanded for entry of an order consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    The COCA-COLA CO. FOODS DIVISION and General Accident Group, Appellants, v. Neoma M. SUTTON, Appellee.
    No. QQ-487.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.
    Robert E. Sheridan, of Jesse F. Sparks, P. A., Orlando, for appellants.
    H. Guy Smith, of H. Guy Smith, P. A., Lakeland, for appellee.
   PER CURIAM.

Appellants argue that the award of attorney’s fees to appellee’s attorney was error because the claimant was accepted as permanently and totally disabled within 21 days after the claim was filed; appellants further contend that an award cannot otherwise be based upon an adjustment of the average weekly wage and compensation rate. We agree in part and remand for further proceedings.

Employee suffered a compensable accident on May 26, 1976, which was diagnosed as bilateral carpal tunnel syndrome. She returned to full-time work in August 1977, but did not actually perform much work although she received full pay. The employer was aware of her sheltered work situation. On December 6, 1977, the insurance adjuster asked to see her and offered to settle her case with a rating of 50% permanent partial disability of each arm. She was instructed to present the offer to her family and talk it over with them. Dr. Bracket’s letter of November 9, 1977, sent to the adjuster, rated Sutton 50% permanently and partially disabled each arm and translated this rating into 60% of the body as a whole. However, in a letter written December 1, 1977, clarifying the previous rating, the doctor rated Sutton in a manner consistent with the offer made by the adjuster, conspicuously omitting any reference to disability of the body as a whole. On December 8 Sutton saw an attorney and on December 9 she quit work. The attorney filed a claim for permanent total disability benefits on December 21 and after some legal correspondence, the appellants accepted Sutton as permanently and totally disabled on January 9, 1978.

First, there is no basis for the finding in the order that the evaluating physician awarded a rating of 60% of the body as a whole. Rather, the final rating was 50% permanent partial disability each arm. Considering the evidence as a whole, there appears no basis for finding that appellants wrongfully resisted payment. Secondly, the award of attorney’s fees is not based solely on whether the appellants, by unsuccessfully resisting payment, forced the employee to file a claim. Such liability is avoided upon payment of the claim within 21 days of receipt of notice thereof. Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla.1st DCA 1979) Case no. QQ-44, opinion filed November 9, 1979, on rehearing granted December 20, 1979; Carrillon Hotel v. Rodriguez, 124 So.2d 3 (Fla.1960). Furthermore, there was no action taken by appellants which would qualify as filing a notice of controversy. § 440.34(1), Fla.Stat. (1975). ^Accordingly, to the extent a fee award is based upon the procurement of permanent total disability benefits, it is not sustainable.

We find that the judge of industrial claims properly heard the issue concerning the computation of the average weekly wage and compensation rate since the issue was clearly raised in the pre-trial stipulations. Thus, Point II is without merit.

As urged in Point III, we find that the average weekly wage, serving as the basis for determining the compensation rate, was improperly averaged because two weeks vacation pay was counted as compensation for only one week. Additionally, as contended in Point IV, we find that the average weekly wage should be recalculated with specificity so as to facilitate review. See Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976). From our preliminary attempts to review the computation, it appears that the method did not comply with Section 440.14, Florida Statutes (1975).

We reverse and remand for a redetermi-nation of the average weekly wage which, we add, may support an award of attorney’s fees if the compensation rate is increased over that which was timely accepted by appellants. Additional evidence may be taken, if necessary, to establish the proper average weekly wage. Reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla.1st DCA).

On the merits, I would concur in the majority’s opinion.


text:
    Danny Benard LOVETT and Harvey Cecil Poe, alias Phillip Michael Jeffers, Appellants, v. STATE of Florida, Appellee.
    No. OO-257.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.
    Michael J. Minerva, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before us on appeal from a final judgment for conviction for dealing in stolen property under Florida Statutes, § 812.019. We find that no evidence was presented at trial to establish the “traffics in, or endeavors to traffic in” requirement of § 812.019, as defined in Florida Statutes, § 812.012, as follows:

“Traffic means:
“(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
“(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.”

Accordingly, we must REVERSE the conviction.

MILLS, C. J., and BOOTH and McCORD, JJ., concur.


author: MILLS, Chief Judge.

text:
    Clifford TYSON, Appellant, v. STATE of Florida, Appellee.
    No. OO-340.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.

      John R. Parkhill, Tampa, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

By amended information, Clifford Tyson was charged with one count of armed robbery and five counts of robbery. All of the offenses charged occurred on different dates and involved different victims. He filed a motion to sever which was denied by the trial court and went to trial on three counts. After his acquittal on two of the counts and the conviction on one count, he brought this appeal challenging the denial of the motion to sever. We reverse.

Without going into the details of the three offenses at issue, we believe that the state’s reliance on Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979), is misplaced. The offenses charged are not connected as is required by Rule 3.151(a), Fla.R.Crim.P. Furthermore, the facts relevant to the offense for which Tyson was convicted were not similar to the facts relevant to the other two offenses; thus, this case is distinguishable from Paul.

Since the conviction is hereby reversed, we need not discuss the alleged error in the written judgment and sentence.

REVERSED and REMANDED for further proceedings consistent with this opinion.

McCORD and BOOTH, JJ., concur.


text:
    William C. BREWER, Appellant, v. Louis CUETO and Nellie Cueto, d/b/a Magnolia Corner and The Retreat, and Employers Insurance of Wausau, Appellees.
    No. QQ-415.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.

      Kurt Preston Hampp, of Jacobs, Robbins & Gaynor, St. Petersburg, for appellant.
    Ivan Matusek, St. Petersburg, for appel-lees.
   PER CURIAM.

Brewer appeals an order of the Judge of Industrial Claims, finding him to be an independent contractor not entitled to benefits under the Florida Workmen’s Compensation Act. He was injured while painting a multi-storied building which the Cue-tos intended to use as a rooming house. The Cuetos denied liability, asserting Brewer to be an independent contractor. Brewer alleged that he was a day laborer, and we agree. There was no contract between the parties for the completion of a specific project; the materials and tools were supplied by the Cuetos; Brewer was paid at the end of each day; and, most important, the Cuetos had the absolute right to terminate their relationship without liability. That is, Brewer could not come back and force a right to complete the job; such a right did not exist. As we stated in Lindsey v. Willis, 101 So.2d 422 (Fla. 1st DCA 1958), whether or not an individual is an independent contractor ultimately turns on the power to control. There, we cited with favor Larson, Law of Workmen’s Compensation, § 44.35, which states in part:

“Such power ... is indisputably an evidential element which tends strongly to show the person employed is not an independent contractor.”

See also 41 Am.Jur.2d 743, § 5, “Independent Contractors, Indicia of Relationship.”

REVERSED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: MILLS, Chief Judge. BOOTH, Judge,

text:
    SPECIAL DISABILITY TRUST FUND and Mary Mans, Appellant, v. UNIVERSITY OF MIAMI and Aetna Casualty and Surety Company, Appellee.
    No. QQ-463.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.

      G. W. Jacobs, Tallahassee, for appellant.
    Roland Gomez of Ress, Gomez, Rosenberg & Howland, P. A., North Miami, for appel-lee.
   MILLS, Chief Judge.

The claimant, Mary Mans, was injured during a lunch hour in March of 1975. Two orders were entered on her initial claim on the same day in November of 1977: one denied and dismissed the claim with prejudice, finding that the accident did not occur during the course and scope of employment in that Mans was on a strictly personal mission, and the other approved a lump sum washout settlement for $25,000.

Subsequently, the employer/carrier, the University of Miami and Aetna Casualty and Surety Company, filed a claim against the Special Disability Trust Fund for the $25,000. The Fund controverted the claim, urging that since the compensation claim was dismissed with prejudice, the employer/ carrier was not required to pay any money and, therefore, the Fund was not responsible for reimbursement. The evidence adduced at the hearing was that Mans had incurred medical expenses after the claim had initially been controverted and that those expenses had been paid under a private insurance policy which excluded workers’ compensation claims. The finding of fact by the Judge of Industrial Claims stated:

“The Order denying this claim as non-compensable was the result of an agreement between all parties herein so as not to expose the claimant to a claim for reimbursement from the medical insurance carrier and also allow a settlement on terms in the best interest of all parties concerned, including the Special Disability Fund.”

The Judge of Industrial Claims then accepted the representation of the employer/carrier that there really was no dispute as to the compensability of this claim and ordered the Fund to reimburse the employer/carrier.

In challenging the ordered reimbursement, the Fund points out that this claim was resolved at the expense of Blue Cross-Blue Shield, the private insurance carrier, if the claim were in fact compensable, and that the proper method for resolving this situation would have been for the workers’ compensation carrier to reimburse the medical insurance carrier and then to request reimbursement from the Special Disability Trust Fund for those medical expenses and for whatever excess benefits it was required to pay.

The employer/carrier’s defense is that the tactics used in this case minimized the actual out-of-pocket expenditure by them and the amount necessary to be sought as reimbursement from the Fund. Further, it challenges the propriety of the Fund’s concern for the fairness of this procedure to Blue Cross-Blue Shield since, it asserts, to its knowledge Blue Cross-Blue Shield is not a workers’ compensation carrier.

We reject the contentions of the employer/carrier. While we recognize that under Section 440.49(4)(a), Florida Statutes, findings of fact with respect to the claim for compensation shall not be res judicata in a proceeding for reimbursement, this Court refuses to condone and to perpetrate the sharp practices that are exemplified here where the carrier agrees to the entry of contradictory orders so that an ostensibly uninvolved private insurance carrier is required to pay benefits for an injury which was not within the policy coverage. When an employer/carrier engages in such sharp practices, it should be prepared to suffer the consequences. We reverse the order of the Judge of Industrial Claims directing the Special Disability Trust Fund to reimburse the University of Miami and Aetna Casualty and Surety Company.

REVERSED.

McCORD, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: PER CURIAM. SHAW, Judge,

text:
    Arthur Davis MILES, Appellant, v. MONTREAL BASEBALL CLUB and Commercial Union Assurance Companies, Appellees.
    No. QQ-213.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    Janet W. Freeman of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant.
    Harry D. Robinson, West Palm Beach, for appellees.
   PER CURIAM.

Appellant, a professional baseball player in the Montreal Expos’ organization, was assigned in 1977 to the Expos’ West Palm Beach farm club. He had signed a standard player contract requiring him, among other things, to cooperate with and participate in the club’s promotional activities. In August 1977, team members were told a party would be held and the sports media would attend for interviews and pictures. There is competent, substantial evidence to support the judge of industrial claims’ finding that Manager Felipe Alou’s announcement of the press party constituted a directive that the players be there. Appellant went to the party but was not interviewed. He and several other players spent part of the time diving into the Intercoastal Waterway; during one such dive, he hit bottom and suffered paralysis as well as other injuries. The judge of industrial claims found that appellant was injured in an accident arising out of and in the course of his employment but denied benefits because § 440.02(l)(c)3, Florida Statutes (1977), excludes professional athletes from workers’ compensation coverage.

We need not consider appellant’s argument that the statutory exclusion of professional athletes violates equal protection, because there is another ground for reversal of the judge of industrial claims’ order. We find coverage in this case by analogizing its facts to those of a line of Florida cases dealing with the exemption, contained in § 440.02(l)(c)2, Florida Statutes (1977), of agricultural laborers.

In Miranda v. Southern Farm Bureau Casualty Insurance Company, 229 So.2d 232, 235 (Fla.1970), the Supreme Court held that a field foreman, responsible for transporting and supervising farm workers, was covered by Chapter 440:

‘. . . [i]t is the character of labor performed by the employee that must determine its [the agricultural labor exemption] application rather than the character of employer’s business.’

Claimant in another case had been hired to repair and erect new buildings and tenant houses on a farm. His employer sought to evoke the agricultural exemption, but the court rejected that proposition:

. it never was the intent of the agricultural labor exclusion under the Florida Workmen’s Compensation Law to exempt farmers as a class or agriculture as an industry, but merely to exempt the kind of work or labor particularly associated with ordinary farming operations performed on a farm, such as plowing, harrowing, planting, fertilizing, cultivating, harvesting, preparation of farm products for market (e. g., washing and packing, [sic]), feeding, livestock, milking cows, bottling milk, repairing fences, and the like.

Thomas Smith Farms, Inc. v. Alday, 182 So.2d 405, 411 (Fla.1966). (Emphasis in the original.)

Appellant was a professional baseball player and, had he been injured while playing baseball, he could not have received Chapter 440 benefits. The press party he was required to attend was not, however, “the kind of work or labor particularly associated with” playing professional baseball, but was an additional activity imposed upon him by the employer and to the employer’s substantial benefit. See City of Daytona Beach v. Mathias, IRC Order 2-2983 (June 16, 1976), cert. denied, 350 So.2d 458 (Fla.1977).

Because of our disposition of this case, we need not address appellant’s last point, that the employer waived the statutory exclusion and was estopped to assert it by virtue of having taken out a workers’ compensation insurance policy.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

ERVIN and SHIVERS, JJ., concur.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

The majority opinion holds that a professional baseball player who was injured while attending a press party at the directive of the club manager is entitled to workmen’s compensation benefits under Chapter 440, Florida Statutes. Miranda v. Southern Farm Bureau Casualty Insurance Company, 229 So.2d 232, 235 (Fla.1970) and Thomas Smith Farms, Inc. v. Alday, 182 So.2d 405, 411 (Fla.1966) are cited as support for the opinion. These two cases, however, deal with agricultural laborers who cannot, in my opinion, be analogized to professional athletes. Section 440.02(l)(c)2 and 3, Florida Statutes, provides in pertinent part:

2. Agricultural labor performed on a farm in the employ of a bona fide farmer or association of farmers, who employs 5 or less regular employees and who employs less than 12 other employees at one time for seasonal agricultural labor that is completed in less than 30 days, provided such seasonal employment does not exceed 45 days in the same calendar year. The term “farm” includes stock, dairy, poultry, fruit, fur-bearing animals, fish, and truck farms, ranches, nurseries, and orchards. The term “agricultural labor” includes field foremen, time-keepers, checkers, and other farm labor supervisory personnel.
3. Professional athletes, such as professional boxers, wrestlers, baseball, football, basketball, hockey, polo, tennis, jai alai, and similar players.

Justice Drew, the author of both cited opinions, points out that the wording of the agricultural labor exclusion lends itself to the conclusion that it was never the intent of the legislature to exempt farmers as a class or agriculture as an industry. The exemption hinges upon the labor performed by the employee rather than the nature of the employer’s business. This conclusion is altogether logical and consistent with the wording of the agricultural labor exclusion. The same cannot be said however for the exemption pertaining to professional athletes which appears to exclude a class rather than individuals who happen to be performing as professional athletes at the time the employer seeks to invoke the exclusion. I do not feel that the cited cases are support for a departure from what I see as clear legislative intent. I, therefore, respectfully dissent.


author: PEARSON, Judge.

text:
    Marty KOPF, Appellant, v. FLORIDA REAL ESTATE COMMISSION, as agency of the State of Florida, Appellee.
    No. 79-487.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Stephen T. Maher, Legal Services of Greater Miami, Miami, for appellant.
    Frederick H. Wilsen, Jr., Kenneth M. Meer, John Huskins and Howard Hadley, Orlando, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PEARSON, Judge.

The single question presented on this appeal by the respondent real estate salesman, who was found guilty of several false and fraudulent representations to a single client is whether he may be held to have been guilty of a “course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property . . . may not safely be entrusted to him.”

The findings of the hearing officer, which were adopted by the Commission and which are accepted by the appellant, are in relevant part as follows:

“In November of 1975, Kopf [the appellant] telephoned Mr. Harold E. Triplett, a resident of Pomeroy, Ohio. Mr. Triplett was the owner of two lots in the Cape Coral residential development. Kopf represented to Mr. Triplett that he, Kopf, had a buyer for the Triplett property which was a foreign company seeking tax advantages. Kopf guaranteed that the property would be sold by November 29, 1975.
“November 29 came and went without a closing on the Florida property. This, notwithstanding the fact that Kopf had advised Triplett that the property was already sold and that the $347.20 check that Triplett had sent to Kopf was for closing costs. Triplett tried unsuccessfully to contact Kopf but was advised that the telephone had been disconnected.
“Notwithstanding the fact that FAR [First Allstate Realty Corporation, the company the appellant worked for] had never resold any of its listings Kopf represented to Triplett that he had successfully concluded similar transactions.'
“As to the remaining allegations numbered 1, 3 and 4 above, there was a total absence of evidence and, hence, a failure of proof as to misrepresentations of those facts . . . .”

The hearing officer’s conclusions, which were adopted by the Commission, were:

“Based on the foregoing findings of fact, it is concluded that Kopf violated Subsection 475.25(l)(a), Florida Statutes, by being guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction.
“It is further concluded that by reasons of the foregoing, Kopf is guilty of a course of conduct which shows that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation may not safely be entrusted to him. . . . ”

As a result of these findings and conclusions of law, the appellant’s registration as a real estate salesman was revoked. It is important to note that the first paragraph of the hearing officer’s conclusions, finding the appellant guilty of “misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction” and, therefore, susceptible to punishment under Section 475.-25(l)(a), Florida Statutes (1977), is not contested on this appeal. This section prescribes suspension as the proper punishment.

The question remains, as first stated, whether the same conduct may be considered a violation of Section 475.25(3), Florida Statutes (1977), quoted in footnote 1, supra, which provides for revocation of registration as the proper punishment. We hold that the present conduct does not amount to a “course of conduct” as contemplated by Section 475.25(3). The primary reason we reach this conclusion is that to construe the sections as overlapping destroys the obvious purpose of the legislature in dividing the more reprehensible conduct from the single acts of fraud described in the succeeding section. Cf. the legal tenets in Sunshine State News Company v. State, 121 So.2d 705 (Fla. 3d DCA 1960).

While very little precedent has been cited or found for a legal definition of “course of conduct,” we think that for the purposes of this section a course of conduct must be considered as fraudulent representations in more than one transaction. See, e. g., Warkentin v. Kleinwachter, 166 Okl. 218, 27 P.2d 160, 164 (1933); Superior Merchandise Corporation v. Oser, 8 So.2d 770, 773 (La.App.1942); and cf. Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803, 805 (1976).

Accordingly, the order of the Commission is reversed and the cause is remanded for the imposition of a suspension of license pursuant to Section 475.25(l)(a), Florida Statutes (1977).

Reversed and remanded.

      . § 475.25(3), Fla.Stat. (1977), provides:
      “The registration of a registrant may be revoked if the registrant shall, for a second time, be found guilty of any misconduct that warrants his suspension under subsection (1) of this section, or if he shall be found guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.”

      . Now known as the Department of Professional Regulation, Investigative Services.

      .§ 474.25, Fla.Stat. (1977), provides:
      “(1) The registration of a registrant may be suspended for a period not exceeding [2] years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:
      “(a) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct, and has committed an overt act in furtherance of such intent, design or scheme. It shall be immaterial to the guilt of the registrant that the victim, or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has been settled and paid, after discovery of the misconduct, or whether such victim, or intended victim, thereof, was a customer or a person in confidential relation with the registrant, or was an identified member of the general public; or . . ”


text:
    Charles V. FAILLA, Appellant, v. Maureen M. FAILLA, Appellee.
    Nos. 79-1659, 79-1872.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Snowden, Kornreich, Reichenthal & Mig-dall, Krongold & Bass and Paul H. Bass, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

In these consolidated appeals, the husband seeks review of: (1) an ex parte order, entered without notice, enjoining him from removing assets, claimed by the wife; (2) an order denying the motion to dissolve the restraining order; (3) an order requiring payment of temporary alimony and child support; and (4) contempt orders entered August 28, 1979 and August 30, 1979, respectively, for noncompliance with the temporary support order.

The contempt orders are reversed for failure to recite affirmative findings that: (1) the husband had the present ability to comply with the temporary support order and willfully refused to do so; or (2) that he previously had the ability to comply but divested himself of that ability through fault or neglect designed to frustrate the purpose and intent of the order. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Hamra v. Hamra, 350 So.2d 538 (Fla.3d DCA 1977).

As no abuse has been demonstrated in the entry of the interlocutory orders appealed from, they are affirmed.

Affirmed in part and reversed in part.


author: BERANEK, Judge.

text:
    Gilbert R. PANZER, M. D., Petitioner, v. Debra JOHNSON, as Mother and next friend of Jennifer Johnson, and Doctors Hospital of Lake Worth, Respondents.
    No. 79-2406.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1980.

      Marjorie D. Gadarian, of Jones & Foster, P. A., West Palm Beach, for petitioner.
    Paul Siegel, of Sinclair, Louis, Siegel & Heath, Miami, for respondents.
   BERANEK, Judge.

This is a petition for common law certio-rari in which a discovery order by a judicial referee in a medical mediation matter is attacked. Petitioner contends that the judicial referee’s discovery order will have the effect.of prejudicing him in the subsequent common law action. The circuit judge in the common law action, rather than the judicial referee in the mediation proceeding, must initially rule on this issue. The mediation panel has reached its decision and petitioner does not suggest that decision is jurisdictionally defective or even that the panel’s decision is erroneous. The sole argument is that the judicial referee has refused to seal certain documents which petitioner contends to be within the work product privilege and not subject to discovery. The question of the admissibility of these documents in the common law action has not yet been ruled upon.

We believe the petition for certiorari totally fails to show a jurisdictional basis because the circuit judge hearing the common law case has not yet been presented with this issue.

Certiorari is therefore denied.

DOWNEY, C. J., and GLICKSTEIN, J., concur.


author: BOARDMAN, Judge.

text:
    Julianne J. DROUBIE, Appellant, v. Robert J. DROUBIE, Appellee.
    No. 79-479.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1980.
    N. David Korones of Korones, Downey & Glenn, Clearwater, for appellant.

      George W. Greer, Clearwater, for appel-lee.
   BOARDMAN, Judge.

We affirm the portion of the trial court’s order of modification of the final judgment of divorce increasing the child support payments in this case. The trial court has broad discretion in determining the amount of child support, Kahn v. Kahn, 78 So.2d 367 (Fla.1955), and we cannot say that the trial court abused its discretion here. However, we do feel the trial court abused its discretion in refusing to award the wife attorney’s fees.

The trial court is to consider the financial resources of both parties in determining an award of attorney’s fees. § 61.-16, Fla.Stat. (1977); Gray v. Gray, 362 So.2d 294 (Fla.2d DCA 1978). Here the disparity in the parties’ relative financial positions justifies an award of attorney’s fees to the wife.

Accordingly, the portion of the trial court’s order holding each party responsible for his or her own attorney’s fees and costs is REVERSED and the cause REMANDED with directions to award the wife attorney’s fees'. The order is otherwise affirmed.

HOBSON, Acting C. J., and ORR, GEORGE, Associate Judge, concur.


text:
    BAKERY PRODUCTS, INC. and Shelby Mutual Insurance Company, Appellants, v. Leovaldo LARIA, Appellee.
    No. QQ-451.
    District Court of Appeal of Florida, First District.
    February 21, 1980.
    W. L. Adams, of Pyscka, Kessler & Adams, Fort Lauderdale, for appellants.
    Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugerman, Rosenthal & Zientz, Miami, for appellee.
   PER CURIAM.

The order of the Judge of Industrial Claims is affirmed except insofar as it allows the carrier to take a retroactive social security off-set. The carrier is entitled to the off-set only as of August 18, 1978, the date it first exercised its right under Section 440.15(10), Florida Statutes (1977). Pensacola Buggy Works v. Jernigan, 377 So.2d 245 (Fla. 1st DCA 1979).

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Manuel VELASQUEZ, etc., et al., Appellants, v. BERKELEY FLORIST SUPPLY CO., etc., et al., Appellees.
    No. 79-674.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and Alan R. Dakan, Miami, for appellants.

      Richard Hardwick, Coral Gables, Daniels & Hicks, Miami, for appellees.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

The appellees having confessed error in the entry of the final judgment in view of the voluntary non-suit taken by the plaintiffs, the final judgment under review be and the same is hereby reversed. Fears v. Lunsford, 314 So.2d 578 (Fla.1975).


author: SHARP, Judge.

text:
    Joyce A. YATES, Appellant, v. ROLLER SKATING RINKS INCORPORATED, a Florida Corporation d/b/a Pirates Cove Skating Center, Appellee.
    No. 79-493.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    T. G. LaGrone, Orlando, for appellant.
    Sutton G. Hilyard, Jr., Orlando, for appel-lee.
   SHARP, Judge.

The plaintiff, Joyce A. Yates, filed a Motion for Default against the defendant in a civil action seeking damages. The basis for the default was failure of the defendant to file responsive pleadings timely. The trial court entered a default against the defendant on August 14, 1979, pursuant to Rule 1.500(b) of the Florida Rules of Civil Procedure. Upon motion and after a hearing the court set aside the default on November 19, 1979 and allowed the defendant to defend the litigation. The plaintiff timely filed a Notice of Interlocutory Appeal of the trial court’s order setting aside the default. The defendant/appellee filed a Motion to Dismiss the interlocutory appeal with this court. We agree with the appel-lee that this appeal should be dismissed.

The jurisdiction of this court is governed by the new Appellate Rules, effective March 1, 1978. Rule 9.130 of the Florida Rules of Appellate Procedure provides interlocutory appeal jurisdiction to review certain kinds of “non-final” orders of lower tribunals, but limits them to those categories specified in the Rule. This kind of interlocutory order is not among those listed by the Rule.

The Committee Note to Rule 9.130 volunteers:

. Other non-final orders entered by a lower tribunal after final order are reviewable and are to be governed by this rule. Such orders include, for example, an order granting a motion to vacate default.

The implication is that such non-final orders are reviewable under this Rule, in some circumstances. Clearly they were generally reviewable under prior (but now superseded) Appellate Rule 4.2, which expressly provided: “. . . appeals may be prosecuted . . . from orders granting or denying motions to vacate defaults . . .” (In re Florida Appellate Rules, 211 So.2d 198 (Fla.1968)). The omission of orders regarding defaults from Rule 9.130 must have been intentional. To include them as one of the categories of orders generally reviewable by interlocutory appeal by judicial construction would do violence to an obvious deletion.

The order in this case was not entered pursuant to Florida Rules of Civil Procedure 1.540(b), nor did the order set aside a final judgment as opposed to a simple default. It is not reviewable by interlocutory appeal. Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979); Sec. Motors v. Fiat Motors of North America, 373 So.2d 396 (Fla. 1st DCA 1979). See also Moody v. Moody, 371 So.2d 553 (Fla. 2d DCA 1979). Absent an extraordinary situation not posed by this case, this kind of order is also not reviewable by means of petition for common law certiorari, and we decline to treat this appeal as an application for a common law writ of certiorari. Leib-man v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979).

APPEAL DISMISSED.

COBB and UPCHURCH, JJ., concur.

      . No final judgment had been entered pursuant to Rule 1.500(e), Florida Rules of Civil Procedure.

      . Rule 1.500(e) Florida Rules of Civil Procedure.


author: SCHWARTZ, Judge.

text:
    BRICKELL BAY CLUB CONDOMINIUM ASSOCIATION, INC., etc., Appellant, v. Michael FORTE et al., Appellee.
    No. 79-2148.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 1980.
    Podhurst, Orseck & Parks, Sinclair, Lewis, Siegel & Heath, Miami, for appellant.

      Hall & Hauser, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   ON MOTION TO DISMISS CROSS-APPEAL

SCHWARTZ, Judge.

The appellant has moved to dismiss the cross-appeal on the ground that the notice of cross-appeal was untimely filed. As expressly permitted by order of this court, the notice of cross-appeal was served and filed beyond the 10 day period provided by Fla.R. App.P. 9.110(g). The present motion is based on the contention that this provision is jurisdictional and therefore, of course, not subject to extension in any way. We do not agree.

While this previously undecided question of the proper interpretation of the “new” appellate rules is certainly not free from difficulty, we believe that, since the jurisdiction of the appellate court is invoked by the filing of the initial notice of appeal, Fla.R.App.P. 9.110(b), the notice of cross-appeal is properly regarded as no more than a subsequent procedural step in the appellate process. As such, and notwithstanding the hybrid nature of its name, the notice of cross-appeal is much more closely analogous to the cross-assignments of error it was designed to replace, see committee note to Fla.R.App.P. 9.110, than to a notice of appeal. Therefore, just as in the case of assignments and cross-assignments of error under the “old” rules, e. g., Coggan v. Coggan, 161 So.2d 550 (Fla.2d DCA 1964), the time for its filing is not jurisdictional and may be extended by order of court.

Motion denied.

      . We reach this conclusion notwithstanding the no-doubt inadvertent omission in the new rules of an equivalent to Fla.App. Rule 3.5(d), which specifically so provided.