author: MOORE, Judge.

text:
    Dale M. BODEN and Barbara A. Boden, Appellants, v. ATLANTIC FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 80-1459.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.

      James A. Thomas, Miami, for appellants.
    Robert N. Fryer, Jr. and Gerald Morris of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellee.
   MOORE, Judge.

The Bodens, purchasers of a home improvement, appeal from a final summary judgment holding that Atlantic Federal Savings and Loan Association, the assignee of a home improvement installment contract, cannot be held liable for breach of the home improvement construction contract.

The home improvement contract was for the purchase and construction of a swimming pool. The Bodens and the pool company entered into a home improvement installment contract for financing the pool construction. Atlantic Federal Savings and Loan Association, the intended assignee of the contract, supplied the form for the installment contract which contained the following “notice provision” in bold face type:

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

On the reverse side of that page, however, the contract contained the following contradictory language:

Contractor may assign this contract. Buyer agrees that acceptance by an as-signee of an assignment of this contract shall not impose upon assignee any obligation or any liability for breach of this contract.

The pool company executed the home improvement installment contract’s preprinted assignment to the savings and loan association which accepted the assignment and collected installments as they became due.

After the pool was built, the buyers signed a completion certificate. The certificate stated that the pool company had satisfactorily completed the work and that the buyers understood that the financial institution did not guarantee the workmanship. It also authorized the savings and loan association to release funds to the contractor.

The buyers subsequently discovered that the pool failed to conform to depth specifications. They sued the savings and loan association seeking “voiding of the contract” and “restitution of all money paid to defendant.” The buyers moved for partial summary judgment on the issue of whether the savings and loan association, as assignee of the home improvement installment contract, could be held liable to the buyers if a breach of contract is proved. The buyers’ motion was based on the notice provision subjecting the holder of the home improvement installment contract to all claims wllich the buyer could assert against the seller. The savings and loan association then moved for summary final judgment.

The court granted summary judgment in favor of the savings and loan association, relying on the “Home Improvement Sales and Finance Act,” Section 520.60 et seq., Florida Statutes (1979). This act provides that:

No right of action or defense arising out of the transaction which gave rise to the home improvement contract which the buyer has against the home improvement contractor and which would be cut off by assignment shall be cut off by assignment of the contract to any third person, whether or not he acquired the contract in good faith and for value. § 520.88(4), Fla.Stat. (1979).

Savings and loan associations, however, are exempt from this provision. § 520.992, Flá. Stat. (1979). The trial court cited this exemption provision as the basis of the summary judgment.

We find that the trial court erred. The exemption provision does not preclude a savings and loan association from voluntarily subjecting itself to liability by the terms of the home improvement installment contract. We, therefore, must resolve the ambiguity resulting from the conflicting terms on the front and reverse side of the contract.

Application of the common law rules of contract construction provides that the notice provision on the front side of the contract controls over the conflicting provision on the reverse side. Where two clauses of an agreement are repugnant and cannot stand together, the first shall be received and the latter rejected. Florida Power Corporation v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671 (1944). Furthermore, Atlantic Federal Savings and Loan Association supplied the form for the contract. Consequently, any ambiguity should be construed against the association which chose the language. McGhee Interests v. Alexander National Bank, 102 Fla. 140, 135 So. 545 (Fla. 1931). Thus, Atlantic Federal has subjected itself to the bold face “notice provision” notwithstanding the statutory exemption and can be liable to appellants if a breach of contract is proved. Summary judgment, therefore, was entered improperly.

We have also considered the association’s argument that the buyer’s execution of the completion certificate released it from any liability to the buyers. We do not rule on this point because the elements of a release were not properly developed for consideration on a motion for summary judgment.

The summary judgment is reversed and this cause is remanded for further proceedings consistent herewith.

HURLEY, J., and G. KENDALL SHARP, Associate Judge, concur.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    PLAYPEN SOUTH, INC., Appellant, v. CITY OF OAKLAND PARK, a municipal code corporation, and H. Layton Main-guy, Theodore H. Best, Florence B. Loss, H. Kenneth Powell, John P. Torok, and William L. Nash, City Councilmen, Individually, Appellees.
    No. 80-1659.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Nancy Little Hoffmann and Stanley M. Sacks, Fort Lauderdale, for appellant.
    Lewis D. Haines, II, City Atty. and Gordon G. Cooper, Asst. City Atty., Fort Laud-erdale, for appellees.
   DOWNEY, Judge.

Appellant seeks review of a non-final order denying temporary injunctive relief against the enforcement of a City of Oakland Park Ordinance which changes the closing time for all-night or show club establishments from 4:00 a. m. to 2:00 a. m. The appellant contends the implementation of this ordinance will interrupt prime business time and will, therefore, significantly reduce the gross income of its business and cause irreparable injury.

By this action appellant seeks to have the ordinance declared unconstitutional, to prohibit the City from enforcing it and, in the alternative, to compensate the appellant for the inverse condemnation of its property. The three-count complaint alleged, among other things, that the ordinance was effectively taking away a vested property right without due process or equal protection of the law, and that the ordinance was an unreasonable exercise of the police power. The Complaint in this case does not attack the procedures followed in the adoption of the ordinance in question.

In the recent case of Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980), this court set forth the four prerequisites which must be demonstrated by the moving party before a temporary injunction will be granted. It is incumbent upon the plaintiff to prove that:

(1) he will suffer irreparable harm unless the status quo is maintained,

(2) he has no adequate remedy at law,

(3) he has a clear legal right to the relief requested,

(4) a temporary injunction will serve the public interest. 384 So.2d at 735.

Our study of the briefs and record convinces us that the appellant did not meet this burden of proof; in particular, it failed to prove a clear legal right to a temporary injunction, or that the public interest would be best served by temporarily enjoining this ordinance.

The electorate of the City of Oakland Park overwhelmingly voted to reduce the hours for the sale of intoxicants from 4:00 a. m. to 2:00 a. m. The ordinance in question, which is presumptively correct, City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957); Wiggins v. City of Jacksonville, 311 So.2d 406 (Fla. 1st DCA 1975), states that the city council found and determined that surrounding municipalities require closing at 2:00 a. m.; that, as a result, there is a large influx of people from night clubs in other cities into Oakland Park after 2:00 a. m. This migration of people into Oakland Park at that time of night has caused an increased need “for police protection, traffic patrol and response to general neighborhood disturbances to the detriment of the public health, safety and welfare of the residents of Oakland Park.” We thus conclude that to delay the implementation of this ordinance would be in complete derogation of the expressed public will and interest.

With regard to appellant’s right to the relief requested, Section 562.14, Florida Statutes (1979), authorizes municipalities to establish hours for establishments dispensing alcoholic beverages. Thus, the Legislature has delegated to the City of Oakland Park the power to designate closing hours for night clubs selling liquor. In addition to the action of the city council’s passing this ordinance, the city has the added support of the city electorate’s overwhelmingly stating their desire that such action be taken. We conclude that appellant has failed to show that it has a clear legal right to temporary injunctive relief because it has not demonstrated a substantial likelihood of success on the merits. United Sanitation Services, Inc. v. City of Tampa, 302 So.2d 435 (Fla. 2d DCA 1974). See also: Hopkins v. Hamden Board of Education, 29 Conn. Sup. 397, 289 A.2d 914 (C.P.1971); Smith v. Robilotto, 25 A.D.2d 454, 265 N.Y.S.2d 832 (App.Div.1966); Armour & Co. v. United American Food Process, Inc., 37 Ill.App.3d 132, 345 N.E.2d 795 (1976).

Therefore, two of the essential elements to entitle appellant to a temporary injunction are missing. Appellant’s burden on appeal is to demonstrate that the trial judge abused his discretion in denying the temporary injunction. No such showing is made here.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

ANSTEAD and HERSEY, JJ„ concur.


author: PER CURIAM.

text:
    Ralph A. BUFFINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1791.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Ralph A. Buffington, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Hicks v. State, 362 So.2d 173 (Fla.1st DCA 1978).

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Charles Walter TERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-290.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Charles Walter Terrell, Avon Park, pro se, appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

Affirmed on the authority of Hicks v. State, 362 So.2d 173 (Fla. 1st DCA 1978).

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    WEKIWA CONCRETE et al., Appellants, v. Virgil REDDICK, Appellee.
    No. VV-399.
    District Court of Appeal of Florida, First District.
    April 8, 1981.
    Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.

      Thomas R. Mooney of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   PER CURIAM.

In this worker’s compensation appeal, appellants contend the deputy commissioner erred in finding them liable to claimant’s attorney for a reasonable fee because of their failure to protect the attorney’s statutory lien under Section 440.34(3), Florida Statutes (1979). We reverse.

On November 20, 1979, claimant’s attorney notified the carrier that he had been retained to represent the claimant and requested the carrier to send all compensation checks to his office, payable to the claimant and the firm, pursuant to his lien rights under Section 440.34(3). On December 5, 1979, the carrier requested the attorney to forward written instructions from the claimant authorizing this procedure. The carrier also inquired as to whether the deputy commissioner had entered an order approving the fee. On December 11th, claimant’s attorney sent a copy of his contract for representation, signed by the claimant. It authorized the carrier to pay the firm and stated that to the extent the firm was not reimbursed by the carrier, the claimant would pay such costs. In an order of February 28, 1980, the deputy commissioner approved the retainer agreement and ordered the carrier to include the name of the attorney on future payments of compensation. The carrier complied with this request commencing with compensation benefits payable February 15 through February 28. However, the order now appealed awarded an attorney’s fee against the carrier, limited only by the amount of compensation paid after approximately November 20, 1979, until February 15, 1980.

The carrier’s major contention, and the one with which we agree, is that it had no obligation to make checks payable to the claimant and the attorney until the deputy commissioner entered an order approving of the retainer agreement. Section 440.34(3) does not outline a procedure for enforcing the lien, but rather, provides that:

In such cases where the claimant is responsible for the payment of his attorney’s fees, such fees shall be a lien upon compensation payable to the claimant, notwithstanding the provisions of s. 440.-22.

Plainly, it is a prerequisite for a lien that the case be one where the claimant is responsible for paying his own attorney’s fees. Although in most cases a claimant will be responsible for payment, some exceptions cannot be determined until after a claimant prevails on a designated claim. Section 440.34(2)(a), (c) Fla.Stat. (1979). However, in a “bad faith” case, this may involve any type of claim. Section 440.-34(2)(b) Fla.Stat. (1979). Therefore, it is clear that an attorney is not automatically entitled to a lien on compensation for merely representing the claimant. Essentially, the attorney here requested protection of a potential lien in his November letter. However, we refuse to put the carrier in the position of having to forecast or to further investigate the validity of a claimed lien. Rather, we find it necessary that the claimant’s attorney obtain an order from the deputy approving the fee agreement and providing a method for enforcing the lien by means involving minimal burden.

This court has previously assumed that requiring such an order is the proper method of enforcing the attorney’s lien. In East Coast Tire Co. v. Denmark, 381 So.2d 336 (Fla. 1st DCA 1980), this court reviewed the employer/carrier’s appeal of a compensation order approving a retainer agreement which also required appellant carrier to control the method of payment. We stated: “The lien may be protected by providing for periodic payments of compensation jointly to claimant and counsel to whatever extent necessary to secure payment of any fees found to be reasonable, or by other means involving minimal burden.” 381 So.2d at 340.

We disagree with appellee’s assertion that following the above procedure will effectively deny an attorney his lien. As noted in East Coast Tire Co., supra, services need not be fully rendered in order to have a retainer agreement approved as reasonable. Here, claimant’s attorney could have sought earlier approval of his fee arrangement. This would have safeguarded the interests of the carrier, claimant’s attorney, and the claimant. In this regard, the statutory scheme of Chapter 440 protects the claimant from unreasonable retainer agreements or fees by providing that at the hearing level, no fee may be paid until it is approved by the deputy commissioner as reasonable. Section 440.34(1), Fla.Stat. (1979). Further, holding the amount in trust doesn’t change the result. Although it is argued that a portion of the compensation may be held in trust until the actual fee is approved as reasonable, the fact remains that this diminishes the claimant’s necessary minimum living funds. It appears that Chapter 440 was designed to carefully control any such reduction in payment. Therefore, we hold that a carrier or employer is not obligated to send compensation checks to claimant’s attorney or to make them jointly payable to claimant’s attorney and the claimant until the deputy commissioner or court having jurisdiction approves a fee as reasonable and directs the manner of enforcing the statutory lien.

Finally, as noted by appellants, the retainer agreement appears to be improper in that it allows the attorney a percentage of “any and all compensation” paid to the claimant. The fee award should be based upon a percentage of the benefits secured adjusted by consideration of the factors as provided in Section 440.34(1). Munford Inc. v. Wirick, 392 So.2d 377 (Fla. 1st DCA 1981); East Coast Tire Company v. Denmark, supra. Also, it is clear that voluntary and timely payment of additional benefits by the employer/carrier, after unsuccessfully defending the payment of benefits in the earlier stages of the case, is not to be viewed as a financial bonanza for claimants’ attorneys. International Paper Co. v. McKinney, 384 So.2d 645 (Fla.1980); Moss v. Keller Industries, Inc., 393 So.2d 574 (Fla. 1st DCA 1981).

Accordingly, the deputy commissioner’s order holding appellants responsible for payment of a reasonable fee to claimant’s attorney is reversed, and the cause is remanded for proceedings to reconsider the approval of the retainer agreement in light of the aforementioned cases.

SHIVERS, SHAW and THOMPSON, JJ., concur.

      . See Samaha v. State, 389 So.2d 639 (Fla. 1980), upholding the constitutionality of Section 440.34(5)(a), Florida Statutes (1977) (now Section 440.34(4)(a), Florida Statutes (1979)) and explaining the policy exemplified by making it unlawful for an attorney to receive a fee until it is approved.
      [T]he award of fees and the amount thereof must be determined with reference to the rights and equities of the employer, the insurance carrier, and the claimant.... Since a workmen’s compensation claimant’s benefits are limited, allowing an attorney or other person to obtain a portion thereof from a claimant, particularly when it is a substantial sum, would thwart the public policy of affording the claimant necessary minimum living funds and cast the burden of support for that person on society generally.
      There are other statutes which seem geared to protect claimant’s right to compensation. Not only does Section 440.34(4)(a) make it a crime for an attorney to receive a fee without approval, but the carrier/employer is required by Section 440.20(1), Florida Statutes (1979) to make payment of compensation directly to the person entitled thereto. Finally, under normal circumstances, no assignment of compensation is valid. Section 440.22, Fla.Stat. (1979).


author: BASKIN, Judge. DANIEL S. PEARSON, Judge,

text:
    REGAN, INC., a Florida Corporation, Appellant, v. VAL-RO, LTD., a Florida Limited Partnership, et al., Appellees.
    No. 81-286.
    District Court of Appeal of Florida, Third District.
    April 9, 1981.
    Rehearing Denied April 23, 1981.

      Edward C. Vining, Jr., Miami, for appellant.
    Goodman, Dunbert & Hochman and Alan R. Hochman, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Regan, Inc. has appealed a trial court order staying a foreclosure sale. Regan obtained a final judgment of foreclosure in the amount of $61,000 and contends the trial court abused its discretion when it granted appellee’s emergency motion for a ninety-day stay of the sale. We agree and reverse.

The trial court, aware that Val-Ro had executed a contract to sell the subject property for $200,000, apparently sought to afford appellees the opportunity to complete the sale which was conditioned upon investigation concerning adequacy of title and suitability for the type of development contemplated by the buyer. Regan argued that it would be prejudiced by the delay since a foreclosure action had recently been brought by the first mortgagee.

We agree that Regan was prejudiced by the stay and that the foreclosure action pertaining to the first mortgage could overtake Regan’s prior judgment. In light of circumstances disclosing that Val-Ro did not own all the property it had agreed to sell and that the buyer, under the terms of Val-Ro’s contract, was able to withdraw from its obligations if it found the property unsuitable, we find the trial court erred in staying the foreclosure sale. We note that appellees took no appeal from the final judgment of foreclosure, and its validity remains unchallenged. Although a trial court has broad discretion in granting stays, Neale v. Aycock, 340 So.2d 535 (Fla. 1st DCA 1976), cert, denied, 351 So.2d 405 (Fla.1977); Air Comfort Mechanical, Inc. v. Simmons, 252 So.2d 285 (Fla. 2d DCA 1971), we hold that in the circumstances of this case, the court abused its discretion. See Neale v. Aycock, supra; Price v. Hernando Beach, Inc., 286 So.2d 279 (Fla. 2d DCA 1973). We therefore reverse the trial court’s order.

Time for filing petition for rehearing is reduced to three days from the date of this order.

DANIEL S. PEARSON, Judge,

dissenting.

I do not agree that the trial court’s stay of the foreclosure sale to afford Val-Ro, Ltd. an opportunity to sell the property and realize $100,000 in equity constitutes an abuse of the trial court’s discretion, particularly where the only possible prejudice to Regan is “that the [pending] foreclosure action pertaining to the first mortgage could overtake Regan’s prior judgment,” a prejudice which has not yet occurred, may never occur, and, if imminent, one which could be averted by timely action of the trial court.

      . The trial court’s order exceeded the requested ninety-day stay. The February 6, 1981 foreclosure sale was stayed until June 1, 1981.


author: OTT, Judge.

text:
    KENILWORTH INSURANCE COMPANY, an insurance company authorized to do business in the State of Florida, and Dale A. Miller, Appellants and Cross-Appellees, v. Teresa I. DRAKE and State Farm Fire and Casualty Insurance Company, an insurance company authorized to do business in the State of Florida, Appellees, Cross-Appellants and Cross-Appellees.
    No. 79-1373.
    District Court of Appeal of Florida, Second District.
    April 10, 1981.

      A. J. Melkus of Boswell, Boswell & Conner, Bartow, for appellants and cross-appel-lees Kenilworth Insurance/Miller.
    Lee S. Damsker of Gordon & Maney, P. A., Tampa, and Clinton A. Curtis of Curtis & Lilly, Lakeland, for appellee and cross-appellant Drake.
    Arthur C. Fulmer, of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellee and cross-appellant State Farm.
   OTT, Judge.

Teresa I. Drake (hereinafter appellee) was injured in 1977 while riding as a passenger in a vehicle owned and operated by Dale A. Miller (hereinafter appellant) when it collided with a vehicle owned and operated by one Wells, who was uninsured. Ap-pellee’s own insurer, State Farm, provided her with $25,000 in uninsured/underinsured motorist coverage (UMC) and $5,000 in personal injury protection (PIP). Appellant carried $15,000 in liability coverage and $15,000 UMC with Kenilworth under a policy that extended protection to passengers in the vehicle, as additional insureds. However, the Kenilworth policy expressly provided that any payments to a claimant under the liability coverage would reduce any UMC that might be available to that claimant as an insured under the policy.

Appellee filed an action in circuit court for a declaration of (1) her total UM coverage under both policies, and (2) the proportionate liability of the two carriers, whom she named as defendants. She also named appellant as a defendant, but alleged that the accident was caused by the negligence of Wells, who was not included as a party to the suit. The complaint alleged a controversy with the two insurance companies as to whether appellee was entitled to recover the combined UMC benefits, as she contended, or only the larger coverage ($25,-000) provided under her own policy, as contended by both carriers. Appellee requested the circuit court to take jurisdiction and adjudicate liability, damages and all other matters necessary to do full justice and completely resolve all issues in one proceeding. As to the second issue specified in the complaint, the two insurance companies stipulated that they would pay any judgment in proportion to their respective UM coverages. That is, State Farm agreed to pay 25/40 and Kenilworth agreed to pay 15/40.

The insurance companies objected to the maintenance of the suit, claiming that the policy provisions for arbitration were mandatory and binding. Their motions to dismiss were denied and State Farm cross-claimed against appellant and Kenilworth for a determination of whether appellant’s negligence caused or contributed to the accident. A jury was impaneled to decide three questions: (1) the total damages of appellee; (2) the percentage of negligence, if any, attributable to appellant in the accident in question; (3) the percentage of negligence, if any, attributable to Wells (the absent third party tortfeasor). The special advisory verdict returned by the jury assessed appellee’s total damages at $45,000 and apportioned negligence at 60% on the part of Wells and 40% on the part of appellant.

Appellee promptly moved the court to amend her pleadings to conform to proof (and the special verdict) by including an allegation of negligence on the part of appellant. The court denied her motion and also denied, without prejudice, State Farm’s cross-claim. Judgment was then entered in favor of appellee for the full amount of the UMC afforded by both policies ($40,000), less $5,000 in PIP already paid by State Farm, plus $2,500 attorneys’ fees and $2,212 court costs. The insurance companies were ordered to pay the total judgment $39,712, in the proportions specified by their stipulation.

No one appealed from the denial of the cross-claim, but everyone has appealed from the judgment: appellee says that the $5,000 PIP benefits should not have been credited against the UMC and that her motion to amend to conform to proof after the advisory verdict was rendered should have been granted; appellant and Kenilworth claim (and State Farm agrees) that there was no justiciable controversy and therefore the case should have gone to arbitration, and that it was error for the court to “stack” the UMC provided by their two policies; State Farm argues that the $5,000 in PIP benefits it has already paid appellee should be set off against only its share of the liability for UMC. State Farm also claims a $15,000 credit for appellant’s liability insurance with Kenilworth.

We affirm the judgment, but due in part to the peculiar facts of this case, and in part to the scarcity of reported precedent, we deem it advisable to explain our reasoning.

I.

Arbitration. Policy provisions for arbitration are binding insofar as they require referral to an arbitration panel of such issues as liability and damages. Sun Insurance Office, Ltd. v. Phillips, 230 So.2d 17 (Fla. 2d DCA 1970). Questions pertaining to the coverage provided by a policy, however, must be adjudicated by the courts. Midwest Mutual v. Santiesteban, 287 So.2d 665, 667[5] (Fla.1974). Further, once a proper case for declaratory relief has been instituted, a court can and should adjudicate the entire controversy, so as to avoid multiplicity of suits. Travelers Insurance Co. v. Wilson, 371 So.2d 145, 147[1] (Fla. 3d DCA 1979). The court below did not err in denying the motions to dismiss. The insurance companies not only argued the multiple questions of coverage in that court, they continued to do so here. In doing so, they traversed their assertion that there was no justiciable issue.

II.

Stacking. The trial court properly declared that the combined UMC provided by the two insurance policies was available to appellee. “Stacking,” now prohibited by section 627.4132, Florida Statutes, occurs when an owner of several vehicles seeks recourse to the aggregate coverage afforded by separate policies on each of those vehicles. Where, as here, vehicles are separately owned and covered by separate policies issued to separate insureds, the reasons for the rule (and thus the rule) against “stacking” vanish. Cox v. State Farm Mutual, 378 So.2d 330, 333 (Fla. 2d DCA 1980); Stephan v. United States Fidelity and Guaranty Co. and State Farm Mutual Automobile Insurance Co., 384 So.2d 691 (Fla. 2d DCA 1980).

III.

Credits Against UMC. The purpose of UMC is to provide those so insured with a fund from which they can be compensated for injuries sustained in automobile accidents, just as though the tortfeasor had carried that much liability insurance. Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077, 1081[8] (Fla.1978). The coverage available to the insured is not affected by the fact that there may be more than one tortfeasor involved. U. S. Fidelity and Guaranty Co. v. Timón, 379 So.2d 113 (Fla. 1st DCA 1979). Thus, appellee, was covered by UM insurance in the total sum of $40,-000. However, the language of the statute (section 627.727, Florida Statutes (1975), as amended by ch. 266, Laws of Fla. (1976)) is somewhat ambiguous, which has caused widespread controversy. When this accident occurred on April 28, 1977, subsection (1) of the statute (as amended) read, in pertinent part:

The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured under any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

The obvious question is whether the enumerated benefits are a credit against UM insurance, or whether the UM insurance covers those damages which are either over and above or separate and distinct from those damages defrayed by the particular collateral benefits. Our state supreme court chose the first of those alternatives, in a case involving one of the collateral sources enumerated in the statute, i. e., the tortfeasor’s liability insurance, and ruled that the language in question provides a credit against UM insurance to the extent that such collateral benefits are available to the insured. Dewberry, supra, 363 So.2d at 1081.

Accordingly, we hold that the $5,000 in PIP benefits received by appellee constitutes a credit against the UM insurance available to her. Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979); Fidelity and Casualty Co. of New York v. Moreno, 350 So.2d 38 (Fla. 3d DCA 1977); Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978), cert. denied, 381 So.2d 764 (Fla.1980). We are aware, of course, that our sister court in the fifth district disagreed with that rule in State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), and that the fourth district has receded from Florida Farm Bureau in Lackore v. Hartford Accident and Indemnity Co., 390 So.2d 486 (Fla. 4th DCA 1980). It seems to us, however, that Dewberry, supra, cannot be construed so narrowly as to be applicable to only such recovery as may be made from the tortfeasor or his liability carrier, and we reject, for the reasons set forth by the first district in Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979), cert, denied, 389 So.2d 1108 (Fla. 1980), the Bergman theory that the 1979 amendment (see n. 4) should be given retroactive effect.

Whatever the effect Dewberry may have on PIP benefits, there can be no denial that it firmly established that any liability insurance carried by either or both of the tort-feasors must be credited against UMC. Jones v. Travelers Indemnity Co. of Rhode Island, 368 So.2d 1289 (Fla.1979); Dickey v. Grange Mutual, 370 So.2d 1234 (Fla. 2d DCA 1979). In the instant case, however, the difficult question lies at the threshold: has there been a binding determination that appellant was at least partially responsible for the accident? Normally, that question is quite critical to an injured claimant because if offsetting credit against UMC is given for the liability insurance of one who may ultimately be found blameless for the accident, the claimant obviously could be deprived of compensation to that extent.

Here, appellee’s complaint did not specifically allege the negligence of appellant. However, that is not determinative, because State Farm (appellee’s carrier) did raise that issue in its cross-claim and, at the request of both insurers, the jury resolved that question. The problem is that, having obtained that information from the jury, the court failed to use it. Instead the cross-claim was denied without prejudice (presumably to State Farm asserting it in a subsequent action or arbitration proceeding), and that ruling has not been challenged.

We are puzzled by the refusal of the court to include in the declaratory judgment a specific ruling that appellant and Wells were joint tortfeasors. The question of appellant's responsibility could have been adjudicated with finality. There was no necessity, of course, for making a specific allocation of blame between appellant and Wells. Appellee would not be affected because the liability of the tortfeasors would be joint and several, and thus appellant’s entire liability coverage would have been made “available” to appellee had the trial court simply determined that appellant was jointly responsible for her damages, inasmuch as they exceeded his liability coverage. Nor, under the particular facts of this case, was the apportionment of negligence important or even meaningful to the insurers. Had all the parties been before the court, and had the issue of contribution between joint tortfeasors been properly presented, the apportionment could have been significant in terms of their liability inter se, and could have affected the insurers’ subrogation rights. Here, however, Wells was not a party to the proceeding and thus the apportionment was meaningless because it was not binding upon him.

Nevertheless, we are unable to hold that the trial court erred in refusing to adjudicate the issue raised by the cross-claim. Our hands are tied by the fact that no one appealed from that order. True, appellee has challenged the refusal of the court to let her amend her complaint to conform to proof that appellant and Wells were both negligent, but that is a different matter and we think that as to her such ruling was not prejudicial. The insurance money available to her would not increase if appellant’s negligence were established because, as already noted, recovery from his liability insurance would merely decrease the UMC available to her. Conversely, the failure to establish appellant’s liability cannot decrease the insurance money appellee will receive. We think the court should have permitted her amendment, since the issue was fully tried and resolved, but the denial of her motion was harmless insofar as she is concerned.

In resolving the final question before us we are forced from the shelter of precedent into uncharted seas. When more than one insurer furnishes UMC, which one gets the credit for any collateral benefits received by or available to the insureds? No appellate court in Florida seems to have considered that problem, and the statute provides no answer. It merely directs that various types of collateral benefits are not to be “duplicated,” which Dewberry construed as meaning that such benefits were a credit against UMC.

We have concluded that two or more insurers providing UM coverage should share the net UM liability in proportion to the insurance available to the claimant under their respective policies. Statutory credits should be applied without regard to source. Our rationale is this: each insured pays a distinct premium for each coverage afforded by a policy of insurance; theoretically, at least, each coverage could as easily be provided by a separate policy; in fact, each coverage could be provided by a different insurer without affecting the practicalities and realities of the situation. Why, then, should the fact that one carrier provided collateral benefits from one coverage entitle only it to credit against its share of the liability accruing on a separate coverage?

In the case before us, Kenilworth’s policy contains a provision which reduces the UM insurance available to a claimant by the amount of any benefits paid to that claimant under the liability coverage provided by the policy, and vice versa. Thus, Kenil-worth’s liability is limited to $15,000 for the injury of one person, irrespective of which coverage is charged with the payment. Since appellant’s negligence has been neither established nor asserted by appellee, his liability insurance is not available to her. Consequently, the UMC afforded appellee under the Kenilworth policy cannot be reduced on that account.

Further, neither insurance policy contains a provision for reduction of the UM coverage if benefits are paid a UM claimant under the PIP coverage of that policy/ Accordingly, since the UM coverage provided by the two policies is not subject to reduction pursuant to contractual limitation, the UM insurance available to appellee is the undiminished UM coverage, $40,000. As it works out under the peculiar facts of this ease, the stipulation by Kenilworth and State Farm to share liability in proportion to the coverage stated in their respective policies exactly coincides with their legal obligation to share liability in proportion to the UM insurance available under their respective policies. As we have indicated, such coincidence will not occur in every case.

In view of our conclusion that appellant’s negligence cannot be considered because (1) appellee did not allege it, (2) it is not determined by the judgment, and (3) no one appealed the denial of the cross-claim, we do not reach State Farm’s argument as to the effect of appellant’s liability insurance becoming available to appellee.

The judgment is affirmed.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . Kenilworth’s reliance upon Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966) as support for the proposition that only the higher limits of UMC, i. e., the $25,000 under the State Farm policy, is available to appellee under the express condition of its policy, is truly baffling. That case explicitly holds that such conditions are contrary to public policy and therefore void.

      . Section 16 of ch. 266, Laws of Fla. (1976), provides:
      This act shall take effect October 1, 1976, and shall apply to all claims arising out of accidents occurring on or after said date.

      . It should be noted that the statute does not include other under/uninsured motorist coverage among the specified collateral insurance benefits not to be duplicated. This significant omission has direct impact on the contention made here by both insurers that UM coverage, even by separate insurers in separate policies covering separate vehicles, cannot be combined. The statute, at least, compels no such result.

      .In 1979 the legislature answered that question by again amending the statute, to provide that “Only the underinsured motorist’s automobile liability insurance shall be set off against underinsured motorist coverage.” UMC evidently will provide excess coverage to benefits from the other enumerated sources. But that does not help the present case.

      . Kenilworth was the only party injured by the failure to establish appellant’s negligence. Had Kenilworth paid appellee $15,000 in liability insurance, it would have had no liability to her for UMC (under the provisions of its policy) and therefore could not have been ordered to pay her attorneys’ fees.

      . A similar situation was resolved in Hunt v. State Farm Mutual Insurance Co., 349 So.2d 642, 645 (Fla. 3d DCA 1977) by a terse instruction that the UMI liability “must be prorated.” The proper basis of proration, however, was not specified.

      .We have devised a terminology which has been helpful to us in clarifying and resolving the problems we faced in this case. UM “coverage” is the stated limit of protection furnished by the insurance policy or policies. UM insurance “available” is equal to coverage less any reductions specified by the insurance contract. UM insurance “liability,” where the total claim exceeds total coverage, is the UM insurance available less any statutory offsets.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Russell A. RIZZO, Appellee.
    No. 80-1604.
    District Court of Appeal of Florida, Second District.
    April 10, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   BOARDMAN, Judge.

The state appeals the trial court’s order granting appellee’s motion to suppress evidence. The order was predicated on a finding that the initial stop of appellee’s vehicle was unjustified.

The only witness who testified at the hearing, Officer Hauck, testified that he was sent to the Coats’ residence on Shore Drive to investigate a burglary that had taken place a few days earlier. The victims told Hauck that on their way home that evening they had seen the same car leaving their neighborhood that they had observed the night of the burglary. They described the vehicle as a white, four-door, older model Ford, Chrysler, or Dodge. They also gave the officer the vehicle’s tag number and a description of the driver.

Mrs. Coats told Hauck that when they pulled alongside this vehicle, she noticed that the driver looked very similar to the individual she had seen leaving their house carrying a pair of bolt cutters on the night of the burglary. She described this person as a male in his twenties with frizzy brown hair.

Mr. Coats told the officer that the driver of the vehicle was the same man he had had a conversation with on the evening of the burglary. During his search of the neighborhood on the night of the burglary, Mr. Coats had encountered this man a block and a half from Coats’ residence. The man said he was chasing his girl friend’s dog. Mr. Coats then returned to his house to await the police. While waiting, Mrs. Coats observed an old, white automobile leave the neighborhood.

Immediately after the conversation with Mr. and Mrs. Coats, Officer Hauck proceeded down Shore Drive to a gas station in order to complete his report. A few minutes later he observed a white, older model Dodge or Chrysler matching the description given him by the victims. Although a female was driving the vehicle, Hauck observed that the passenger was a male in his early twenties or late teens with brown frizzy hair. The officer stopped the vehicle, and after the vehicle came to a stop, Hauck noticed that the driver and passenger had switched seats. Neither appellee nor his companion had a driver’s license, so Hauck arrested appellee for driving without a driver’s license and allowing an unauthorized person to drive the car. Appellee’s companion was also arrested for driving without a driver’s license.

The vehicle was blocking the normal flow of traffic and the entrance to a parking lot. Hauck had the vehicle towed from the scene because there was no one to take care of it. During an inventory search of the automobile, Hauck discovered a pair of bolt cutters in the trunk which Mr. Coats later identified as his.

After being advised of his Miranda rights appellee denied committing the burglary, but acknowledged that he had encountered Mr. Coats on the evening of the burglary.

It is well settled that before an officer may stop and temporarily detain an individual for an investigation, he must have a founded suspicion that the person has committed, is committing, or is about to commit a crime. § 901.151(2), Fla.Stat. (1979); C. F. v. State, 394 So.2d 555 (Fla.2d DCA 1981).

Appellee contends that Officer Hauck’s information was insufficient to give rise to such a founded suspicion. He argues that the information given by Mr. and Mrs. Coats must be viewed as an anonymous tip because Hauck had no way to verify the reliability or credibility of the victims. Appellee relies on Smith v. State, 389 So.2d 654 (Fla.2d DCA 1980), and State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979), affirmed, 387 So.2d 963 (Fla.1980). We disagree. Both Smith and Hetland are factually distinguishable. They involved truly anonymous sources. Here Mr. and Mrs. Coats were known to Officer Hauck as the victims, and they had ample opportunity to view both appellee and his automobile. Their descriptions were detailed, and both the vehicle and appellee matched their descriptions. They must therefore be considered reliable sources for the purpose of evaluating the information available to Hauck. See Lachs v. State, 366 So.2d 1223 (Fla.4th DCA 1979).

We hold that the facts available to Officer Hauck gave rise to at least a founded suspicion that appellee had committed a crime. The stop of appellee was therefore proper.

Accordingly, the trial court’s order granting appellee’s motion to suppress is REVERSED and the cause REMANDED.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    David L. TAUNTON, Appellant, v. George TAPPER, Appellee.
    No. TT-87.
    District Court of Appeal of Florida, First District.
    April 10, 1981.

      Daniel S. Bearing, Tallahassee, for appellant.
    William D. Moore and Wilton R. Miller of Bryant, Miller & Olive, Tallahassee, for ap-pellee.
   PER CURIAM.

This is an appeal from an order of the State of Florida Commission on Ethics which assessed attorney’s fees against appellant. We reverse.

The Commission received a sworn complaint from appellant alleging that appellee had violated Section 112.313(7)(a), Florida Statutes (1979), by owning and managing a stevedoring company which was directly regulated by the Port St. Joe Port Authority, of which appellee was chairman. After the Commission found the complaint to be legally sufficient, a preliminary investigation was ordered. Fla.Admin. Code Rule 34-5-02. Based upon the preliminary investigation, the Commission found that there was no probable cause to believe that appellee violated Section 112.313(7)(a), and accordingly, dismissed the complaint. Fla. Admin. Code Rule 34-5.06.

Section 112.313(7)(a) provides:

No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee, ... nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

Subsection (b) further provides:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

Chapter 30787, Laws of Florida (1955) created the Port St. Joe Port Authority as a public agency for the development of port and commerce. Section 2 of the act provides that the Authority shall consist of five commissioners. That section also provides, in pertinent part, that: “No more that two (2) of the commissioners shall be persons who are primarily engaged in the maritime business.”

The Commission’s finding of no probable cause was based upon three grounds. First, although the preliminary investigation revealed that appellee was chairman of the Port St. Joe Port Authority and also sole owner of the St. Joe Stevedoring Company, the Commission found there was no violation of Section 112.313(7)(a) under the exception specified in Section 112.313(7)(b) since the special act creating the Authority permitted two commissioners of the Authority to be primarily engaged in the maritime business. The Commission’s investigation revealed that appellee was the only commissioner of the Authority engaged in the maritime business. Second, the Commission concluded there was no violation since the investigation revealed that Port St. Joe Port Authority did not presently have an existing port facility and that the Authority had not issued any licenses to any stevedore company. Finally, the dismissal was based upon the fact that Section 310.28, Florida Statutes (1973), which authorized port authorities to license stevedores, had been held unconstitutional by the Supreme Court in Harrington & Company, Inc. v. Tampa Port Authority, 358 So.2d 168 (Fla. 1978).

Following the Commission’s dismissal of the complaint, appellee petitioned for costs and attorney’s fees pursuant to Section 112.317(8), Florida Statutes (1979). The Commission, in a 5 to 3 vote, found that the complaint was maliciously filed and was frivolous, and accordingly entered its order finding appellant liable for the attorney’s fees incurred by appellee.

Section 112.317(8) provides:

In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney’s fees incurred by person complained against.

This statute authorizes an assessment of costs only when the Commission finds the complaint was filed with a malicious intent and the complaint was frivolous in law or fact. Malfregeot v. Mobile Home Park Owners and Dealers of Martin Co., Inc.,, 388 So.2d 341 (Fla. 4th DCA 1980). In determining whether the complaint was frivolous in law or fact, we find the definition of “frivolous appeal” helpful. Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (Fla.1935), defined a frivolous appeal as follows:

A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. [Citation omitted]. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it, or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i. e., against appellant or plaintiff in error.

The Commission concluded that the complaint filed by appellant was frivolous because it was without basis in fact as the Port Authority had never licensed a stevedore and was without basis in law as the Port Authority had no legal authority to license stevedores. The Commission concluded the complaint was filed with a malicious intent to injure appellee’s reputation because they found that appellant’s failure to research the facts and the law more thoroughly indicated a reckless disregard for the truth of the allegations, thus evincing malicious intent.

We find the Commission erroneously concluded the complaint was frivolous and without basis in law or fact. Admittedly, the Commission found after a preliminary investigation that there was no probable cause to believe appellee violated Section 112.313(7)(a). However, such determination was not made until after factual investigations, legal research, and the Commission’s statutory interpretation and construction of the pertinent laws and statutes. The Commission’s determination that there was no violation of Section 112.313(7)(a) because of the exception set forth in Section 112.-313(7)(b) was dependent upon its factual investigation which revealed that no commissioner of the Authority, other than ap-pellee, was primarily engaged in the maritime business. The Commission’s determination that the complaint was without basis in fact was dependent upon its factual investigation which revealed that no stevedores had been licensed by the Authority. This determination was also based upon the Commission’s apparent construction of the “which is subject to the regulation of” phrase in Section 112.313(7)(a) to require present, as opposed to future, regulation. The Commission’s determination that the complaint was without basis in law was based upon its legal research which revealed that Section 310.28 had been declared unconstitutional. It is thus apparent that though appellant was wrong, the complaint can not be characterized as “completely untenable” or clearly frivolous, as that term is defined in Treat v. State ex rel. Mitton, supra.

Because the Commission erroneously interpreted Section 112.317(8) and a proper interpretation does not support the finding that appellant’s complaint was frivolous, we vacate the Commission’s order assessing attorney’s fees against appellant. § 120.68(9), Fla.Stat. (1979). In light of this determination, it is unnecessary to consider whether the Commission properly interpreted the provision of the statute which requires that the complaint be filed with a malicious intent to injure the reputation of the public officer.

REVERSED.

ERVIN and SHIVERS, JJ„ and WOOD-IE A. LILES (Ret.), Associate Judge, concur.

      . Section 57.105, Florida Statutes (Supp.1978) appears most analogous to the statute at hand. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980) interpreted Section 57.105 as requiring a finding that the action is frivolous, and relied upon the definition of frivolous appeal to resolve this issue.


text:
    Sidney KNIGHT, Appellant, v. COUNTY OF ALACHUA, Appellee.
    No. UU-430.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Peter Enwall, Gainesville, for appellant.
    Dennis R. Long, Asst. County Atty., Gainesville, for appellee.
   PER CURIAM.

Appellant, a nonparty deponent, appeals the trial judge’s denial of his motion for attorney’s fees for successfully securing a protective order concerning a subpoena served by appellee. The trial judge held he was without jurisdiction to rule on the motion for attorney’s fees since appellee voluntarily dismissed the suit below with prejudice. We affirm.

Although Rules 1.280(c) and 1.380(a)(4) Florida Rules of Civil Procedure may have authorized an award of attorney’s fees to appellant in this situation, the award would have required the judge’s exercise of discretion in granting the motion. The effect of the voluntary dismissal was “to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction’.” Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978). Cf. McBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979); see also, Brenda Cain and The State of Florida, Department of Health and Rehabilitative Services v. Sims, 396 So.2d 234 (Fla. 1st DCA 1981). Therefore, the judge was without power to rule on the motion for attorney’s fees.

Accordingly, the order is AFFIRMED.

ERVIN, SHAW and WENTWORTH, JJ„ concur.


text:
    COMMERCIAL CARRIER CORPORATION, Appellant, v. Kenneth W. BENNETT, Appellee.
    No. WW-112.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    William P. Levens of Barrs, Williamson & Levens, Tampa, for appellee.
   PER CURIAM.

Appellant appeals a worker’s compensation order awarding claimant temporary total disability (TTD) benefits, further medical treatment, and attorney’s fees. We affirm the order except as to the award of TTD benefits.

Claimant injured his back and knee in two industrial accidents on February 7, 1978, and March 1, 1978. He came under the care of Drs. Kriz and Miller, who released claimant to work on March 28, 1978. Claimant did not see another physician until he saw Dr. Baker on September 21, 1978. Claimant also returned to work in September 1978.

During the period between his release to work on March 28, 1978, and his return to work in September 1978, claimant testified he was unable to work because of the pain of his injuries. Therefore, he did not try to work during this period.

Dr. Baker testified that as of September 21, 1978, he felt claimant was ready to return to work. However, he also stated he thought claimant had been working since his release to work in March 1978 by Drs. Kriz and Miller. There was no .medical testimony that claimant was unable to work during the period in question because of his injuries. The deputy apparently based the award of TTD benefits on claimant’s testimony that he was unable to work because of his injuries and Dr. Baker’s testimony that claimant was ready to return to work as of September 21, 1978.

Since there was no medical evidence that claimant was unable to work during the period in question due to his injuries, the claimant is precluded from an award of TTD benefits without making a conscientious effort to return to work. Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368, (Fla. 1st DCA 1981). Also, in the absence of medical evidence showing that claimant is unable to work, he could not establish entitlement to TTD benefits merely by testifying that he did not make any effort to return to work because he did not feel able to. Walter Glades Condominium and Federal Insurance Co. v. Morris, 393 So.2d 664, (Fla. 1st DCA 1981).

Therefore, we reverse the order as to the award of TTD benefits and remand with instructions to enter an order consistent with this opinion. On remand, the deputy shall take into consideration the reversal of the award of TTD benefits in determining the reasonableness of the attorney’s fee to be awarded the claimant.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., Associate Judge (Ret.), concur.


author: MILLS, Chief Judge.

text:
    HILLSBOROUGH COUNTY SCHOOL BOARD and Insurance Company of North America, Appellants, v. Jo A. BIGOS, Appellee.
    No. XX-101.
    District Court of Appeal of Florida, First District.
    April 13, 1981.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellants.
    Richard A. Bokor, Tampa, for appellee.
   MILLS, Chief Judge.

The Hillsborough County School Board and its workers’ compensation carrier appeal a determination of the Deputy Commissioner that the contraction of infectious hepatitis by a teacher was compensable under the workers’ compensation law. We reverse.

Jo A. Bigos is a physical education teacher in an elementary school who came down with infectious hepatitis in January of 1979. She attributed her hepatitis with having been in contact with one Jamie Knipper who was shown also to have had infectious hepatitis in January of 1979. She recalled that before the Christmas vacation in December of 1978 Jamie had come up to her in class and said that he didn’t feel well and she had touched his face to see if he had a fever on at least one and possibly more than one day.

Infectious hepatitis is easily transmitted, usually through contact with body fluids, such as saliva. Claimant testified that Jaime was in the last class before lunch and that when she went to lunch she did not always have time to wash her hands before eating.

The incubation period for infectious hepatitis is two to six weeks. Bigos testified that there were other students who came down with hepatitis around the same time, but she did not know their names and there was no evidence introduced as to any students' other than Jamie.

Dr. Worth Boyce, who was accepted as an expert in gastroenterology, testified that he could not say within a reasonable medical probability who got what from whom; Jamie could have gotten the disease from Bigos or vice versa, or both of them could have gotten it from someone else. He said one cannot prove medically that one particular person transmitted infectious hepatitis to a second person although a presumption can be made based on history. He specifically stated that hepatitis is a common virus infection. As for whether teachers are more likely to get hepatitis than others, Dr. Boyce stated, in essence, that he knew of no scientific basis for saying so, but it would be reasonable to assume that a person who is around a large group of people is more likely to get hepatitis than anyone else.

Bigos made the claim for workers’ compensation benefits under three theories: occupational disease, trauma (entry of virus), or exposure. The order of the Deputy Commissioner stated as follows:

There were obvious opportunities for the passage of the hepatitis bacteria to be passed from Jamie to the Claimant and the incubation period and periods of illness fit almost precisely to lead to the unerring conclusion, in the absence of any other cause of the infection of Type A hepatitis in the Claimant, that this infectious hepatitis was passed from Jamie Knipper to the Claimant while the Claimant was in the course and scope of her employment and arising out of such employment.
I therefore find that the Claimant, Jo A. Bigos, suffered an injury (Type A hepatitis, viral type) arising out of and in the course of her employment on or about January 15, 1979, and that she thereafter suffered temporary disability and medical expenses.

We reverse the finding of compensability because the facts in the record fail to show a causal connection between Bigos’ contraction of hepatitis and her employment. Under the Supreme Court’s ruling in Harris v. Josephs of Greater Miami, 122 So.2d 561 (Fla.1960), where the injury at issue involves a disease as distinguished from an external occurrence to an employee such as an automobile accident, the “claimant must prove a causal connection other than by merely showing that it is logical that the injury arose out of claimant’s employment. . .. There must be some clear evidence rather than speculation or conjecture establishing a causal connection between the claimant’s injury and her employment.” (122 So.2d at 562) See also D’Avila, Inc. v. Mesa, 381 So.2d 1172 (Fla. 1st DCA 1980). The evidence here falls short of this standard because the testimony of the doctor is based entirely on history and on what could possibly have occurred. He was unable to state, for example, that even if the incidents of hepatitis by Bigos and Jamie were causally related, it could be determined which one caused the illness in the other. Under these circumstances, we find that there was no competent substantial evidence to support the finding that the infectious hepatitis was passed from Jamie to Bigos or the resulting finding of a causal connection between her injury and her employment.

REVERSED.

SHAW and JOANOS, JJ., concur.


text:
    Mary L. LAWSON, Appellant, v. OKALOOSA MILLS DIVTSION/Vanity Fair and Liberty Mutual Insurance Company, Appellees.
    No. TT-126.
    District Court of Appeal of Florida, First District.
    April 14, 1981.

      Dale E. Rice, Crestview, for appellant.
    J. Nixon Daniel, III, Pensacola, for appel-lees.
   PER CURIAM.

Claimant appeals two Workers’ Compensation orders, the first awarding benefits for a 40% permanent partial disability of the body as a whole and the second supplemental order denying reclassification of benefits voluntarily paid during the period from March 31,1977, to November 30,1977. The issues are whether the deputy’s characterization of claimant’s disability requires a finding that she is permanently totally disabled and whether the benefits paid during the period from March 31, 1977, to November 30, 1977, should have been reclassified as temporary disability payments which could not be credited against permanent disability benefits. We have determined that the appeal is meritorious.

While employed as a garment worker at Okaloosa Mills, claimant, who is forty-five years old, suffered two work-related accidents: the first on August 9, 1976, when her foot slipped and she fell to the floor injuring her back; the second on September 14, 1976, when her chair slipped back and overturned and she again injured her back. Before these accidents, in April, 1976, an orthopedic surgeon, Dr. Kerr, determined claimant suffered from a herniated disc at the L5-S1 level and recommended surgery, but she was reluctant to have the operation. Between the April diagnosis and the accidents later in the year, claimant improved with conservative treatment.

After the second accident, claimant ceased working at Okaloosa Mills. Temporary total disability benefits were paid from September 15, 1976, through March 31, 1977. From March 31, 1977, until November 30, 1977, claimant received payments which were characterized as permanent partial disability benefits in the order of December 12, 1979. For thirty-five weeks, from November 30, 1977, to May 3, 1978, claimant received rehabilitative compensation and from May 4,1978, to December 26, 1978, she received temporary total disability benefits.

Claimant attended classes at Okaloosa-Walton Junior College from January, 1977, until June, 1978, receiving a clerical certificate, but not completing her bookkeeping course. Her school attendance overlapped the thirty-five weeks from March 31, 1977, to November 30, 1977.

The first date of maximum medical improvement was December 12, 1977, but claimant’s pain continued and she had the back surgery in June, 1978, reaching maximum medical improvement from the surgery on December 27, 1978. Subsequently, claimant attempted to locate suitable work, although Dr. Kerr had restricted her to light work at which she would sit and stand at will. She performed some part-time work as a local agent for a film distributor.

In the order of November 29, 1979, the deputy commissioner found that claimant was able to do light housework, but would occasionally be bedridden. The deputy further found claimant capable of light work at minimum wage, but “her periodic episodes of disabling pain may prevent her from keeping jobs for significant periods of time. Therefore, she will occasionally be unemployed.” Claimant was found to have incurred a 40% permanent partial disability of the body as a whole on her physical impairment, education, and vocational skills.

On appeal claimant correctly contends the deputy’s findings that she may be prevented from keeping jobs for significant periods of time, and will therefore at such times be unemployed, compel the conclusion that she is permanently totally disabled. The findings demonstrate that claimant has shown her inability to uninterruptedly perform even light work. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960) (now codified in Section 440.15(l)(b), Florida Statutes, 1979). Following such a showing, the employer/carrier must show that suitable work is available. The employer/carrier presented the testimony of one potential employer who had interviewed claimant for a temporary position. This employer stated he would have hired claimant for the position had there not been a more qualified applicant. This testimony, which was not referred to in the deputy commissioner’s order, does not show that suitable employment was available to claimant. The witness’ testimony did not detract from the evidence that claimant could not keep a job for a significant period of time.

As to the second point, payments of compensation made before the date of maximum medical improvement are not properly classified as permanent disability payments. Since the first date of MMI was December 12, 1977, the payments made after March 31, 1977, and before November 30, 1977, should have been reclassified as temporary disability benefits.

The deputy commissioner, in the order of December 12, 1979, found that during the period from March 31 to November 30, 1977, claimant was not temporarily totally disabled, having failed to test her employa-bility in the marketplace during the period of attendance at rehabilitative educational classes. A claim for temporary total disability includes a claim for temporary partial disability, however, and voluntary payments must be reclassified as payments for temporary disability.

Claimant points out that if these voluntary payments had been properly classified as temporary disability payments, they could not have been credited against permanent disability payments ultimately found to be due. Voluntary advance payment of compensation is gratuitous except with regard “to payments in the amount of and within the time for disability compensation of that class ultimately found to be due.” Schel v. City of Miami, 193 So.2d 170 (Fla. 1966); Diplomat Hotel v. Badini, IRC Order 2-3494 (August 2, 1978); Tampa Wholesale Co. v. Gores, IRC Order 2-3720 (February 26, 1979). The payments made between March 31, 1977, and November 30, 1977, were improperly classified as permanent disability benefits and cannot be credited against other permanent disability benefits.

In summary, as to point one, the deputy commissioner’s findings compel the conclusion that claimant is permanently totally disabled, therefore the portion of the November 29, 1979, order finding her permanently partially disabled is reversed. As to point two, we reverse and remand for reclassification of benefits and recomputation in light of Schel of the credit allowed the employer/carrier in the order of December 12, 1979.

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

      . The deputy commissioner correctly noted that the thirty-five weeks rehabilitation compensation paid from November 30, 1977, to May 3, 1978, could not be offset against either temporary total or permanent partial disability benefits.


text:
    FORT PIERCE UTILITIES and Aetna Casualty & Surety Company, Appellants, v. Edmond J. BLOTNEY, Appellee.
    No. UU-420.
    District Court of Appeal of Florida, First District.
    April 14, 1981.

      Robin A. Lloyd, Sr., of Jones, Foster & Moss, Vero Beach, for appellants.
    Vincent A. Lloyd, of Lloyd & Brown, Fort Pierce, for appellee.
   PER CURIAM.

Employer/carrier appeal a worker’s compensation order which awarded claimant temporary total disability benefits, permanent partial disability benefits, future palliative medical treatment, hospitalization expenses, statutory penalties, and attorney’s fees. We affirm in part and reverse and remand in part.

Employer/carrier contend the deputy commissioner erred in awarding claimant temporary total disability benefits from the date of his accident, October 20, 1978, until the date of maximum medical improvement, November 6, 1979, with credit for all compensation or wages paid during this period of time. Employer/carrier argue, in part, that this award was erroneous because the evidence shows that claimant was working full-time from November 14, 1978 until March 4,1979, and received full wages until April 15, 1979.

Temporary total disability is the healing period during which a claimant is by reason of the injury totally disabled and unable to work. Concord Realty Corp. v. Romano, 159 Fla. 1, 30 So.2d 495 (Fla.1947). It is error to find entitlement to temporary total disability benefits during periods where the claimant is working full-time in non-sheltered employment. Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979); Westinghouse Electric Corp. v. Williams, 379 So.2d 1032 (Fla. 1st DCA 1980); Standard Construction & Associates v. Kinsler, 394 So.2d 1083 (Fla. 1st DCA 1981) [1981 FLW 568]; MJM Construction Co. v. Roberts, IRC Order 2-3387 (March 31, 1978). The evidence here fails to support claimant’s entitlement to temporary total disability benefits from November 14, 1978 until March 4, 1979. Further, it was error to order the carrier to pay claimant temporary total disability benefits from March 4, 1979 until April 15, 1979 since the payment by the employer of claimant’s full salary during such period of time exceeds the requirements of the Worker’s Compensation Law. Brevard County Board of County Commissioners v. Brubaker, IRC Order 2-2682 (July 9, 1974), cert, denied, 312 So.2d 760 (Fla.1975). We find no error in the award of temporary total disability benefits from April 15, 1979 until the date of maximum medical improvement, November 6, 1979, since this award is supported by substantial competent evidence.

We have considered the numerous other issues raised by employer/carrier and find no reversible error. Accordingly, that portion of the order awarding temporary total disability benefits from November 14, 1978 until April 15,1979 is reversed and remanded for further consideration consistent herewith. All other portions of the appealed order are affirmed. .

AFFIRMED in part and REVERSED in part.

ERVIN, BOOTH and JOANOS, JJ., concur.


text:
    Ronald CORBITT, Appellant, v. JONES PLUMBING et al., Appellee.
    No. XX-208.
    District Court of Appeal of Florida, First District.
    April 14, 1981.
    Gerald Feuer, Miami, for appellant.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellee.
   PER CURIAM.

The court has considered the petition for writ of common law certiorari and respondent’s response to this court’s order to show cause. Petitioner has failed to demonstrate a departure from the essential requirements of law in the order holding claimant’s entitlement to compensation benefits was fixed by the statute effective on the date of the accident and not by the prior law on the effective date of the insurance contract between employer and carrier.

Accordingly, the order to show cause is discharged and the petition is denied.

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


text:
    The STATE of Florida, Appellant, v. Daniel OBERHOLTZER, Appellee.
    No. 80-1400.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    No appearance, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Christian v. State, 303 So.2d 405 (Fla.3d DCA 1974), cert. denied, 314 So.2d 778 (Fla.1975).


text:
    Richard WADE and Michael Wade, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1123.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender and Stuart Gitlitz, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Goodley, 381 So.2d 1180 (Fla.3d DCA 1980); Husted v. State, 370 So.2d 853 (Fla.3d DCA 1979).


text:
    Michael PHILLIPS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1521.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before. HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); § 810.07, Fla.Stat. (1977).


author: BASKIN, Judge.

text:
    GENERAL INSURANCE COMPANY OF FLORIDA, Appellant, v. Johnnie SUTTON and Cynthia Sutton, individually and as husband and wife, Appellees.
    No. 80-1346.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.

      Thompson & Clark and Robert Schwartz, Miami, for appellant.
    Gilmour, Morgan & Rosenblatt and Thomas J. Morgan, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the Final Declaratory Judgment entered by the trial court which determined that appellees’ insurance policy afforded them uninsured motorist coverage. Our holding is predicated upon our determination that at the time appellee Johnnie Sutton signed the contract for insurance coverage at the direction of appellant’s employee, he was not advised that he was also rejecting uninsured motorist coverage. His belief that he was obtaining the full coverage he requested was borne out by the face of the policy he was furnished, which showed uninsured motorist coverage.

Although an insurance company is not required to explain uninsured motorist coverage to an applicant unless requested to do so by the applicant, Lopez v. Midwest Mutual Insurance Co., 223 So.2d 550 (Fla.3d DCA 1969), and an applicant may not contest his signed rejection of coverage by contending that he signed the rejection without reading it, Alejano v. Hartford Accident and Indemnity Co., 378 So.2d 104 (Fla.3d DCA 1979), under section 627.727, Florida Statutes (1971) uninsured motorist coverage must be offered. Fla.Admin.Code Rule 4-28.02 (repealed 1979). The documents under consideration fail to disclose that appellee was offered that coverage. Favored statutory construction upholds the furnishing of uninsured motorist coverage. Hartford Accident and Indemnity Co. v. Sheffield, 375 So.2d 598 (Fla.3d DCA 1979).

Affirmed.


text:
    Armando MONNAR, Appellant, v. The STATE of Florida, Appellee.
    No. 79-470.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Crim.P. 3.191(d)(3)(ii).


text:
    GENERAL PLASTICS CORPORATION, a Florida Corporation, Appellant, v. Frank A. CIANFLONE and Theresa Q. Cianflone, his wife, Appellees.
    No. 80-1101.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    William A. Ingraham, Jr. and Bertram A. Sapurstein, Miami, for appellant.
    No appearance, for appellees.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Reversed on the authority of Cheezem Development Corp. v. Maddox Roof Service, Inc., 362 So.2d 99 (Fla.2d DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979).


text:
    Robert McGRIFF, Appellant, v. Annie McGRIFF, Appellee.
    No. 80-1404.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Valencia M. Abner and Luis Vidal, Legal Services of Greater Miami, Miami, for appellant.
    No appearance, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The order holding the appellant-father McGriff in contempt for failure to make child support payments is reversed because neither the evidence nor the findings in the order comply with the requirements of Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976). Accord, Hammond v. Sandstrom, 376 So.2d 466, 467 (Fla.3d DCA 1979), and cases cited.

In the light of the clear and unrebutted showing that McGriff’s financial circumstances had undergone a substantial change for the worse after the final judgment, we likewise find an abuse of discretion in the denial of his petition to reduce the support award itself. Eisinger v. Eisinger, 95 So.2d 502 (Fla.1957). The cause is remanded to the trial court for determination of the appropriate amount of reduction.

Reversed.


text:
    Carl PIERCE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-49.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender and Alan Dakan and Robin H. Greene, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the trial court’s denial of defendant’s motion to suppress evidence seized from defendant’s motel room because the evidence supports the trial court’s finding that defendant had vacated the premises and that the landlord’s consent to search removed the requirement that a search warrant be obtained. Furthermore, the issue raised on appeal following defendant’s plea of no contest does not appear to be dispositive. Brown v. State, 355 So.2d 138 (Fla. 3d DCA 1978), approved, 376 So.2d 382 (Fla.1979).


text:
    The STATE of Florida, Appellant, v. Suzanne DeCONINGH, Appellee.
    No. 80-1812.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.

      Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Kurt Marmar, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the order entered by the trial court suppressing a blood sample taken from defendant to determine alcohol content following her admission to police that she had shot her husband. The taking of blood by police as a standard procedure in homicide cases without reasonable cause to believe the blood would lead to desired evidence has been condemned as a Fourth Amendment violation. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). No justification for the intrusion appears from the circumstances of this case. See Jones v. State, 343 So.2d 921 (Fla.3d DCA), cert. denied, 352 So.2d 172 (Fla.1977).

Defendant’s cross-appeal of the suppression order insofar as it denied her motion to suppress “all tangible evidence” seized from her house is dismissed. State v. Clark, 384 So.2d 687 (Fla. 4th DCA 1980).


author: FERGUSON, Judge.

text:
    SOUTHEAST FIRST NATIONAL BANK OF MIAMI, a National Banking Association, Appellant, v. Philip J. SCUTIERI, Jr., Appellee.
    No. 80-2012.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.

      Steel, Hector & Davis and Darrey A. Davis, Miami, for appellant.
    Tew, Spittler & Berger, Miami, for appel-lee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is from an order of the trial court directing appellant-bank to pay appel-lee-depositor a sum representing an amount purportedly earmarked for a specific purpose. We reverse.

On April 18,1980 Southeast First National Bank of Miami sued Sundale Associates Ltd., the Sunrise Club, Inc., and Philip Seu-tieri, Jr. to foreclose a series of mortgages. Scutieri, as president of Sunrise Club, executed the notes and personally guaranteed payment. By order dated May 15,1980 the trial court appointed a receiver to manage the affairs of Sunrise Club.

Sunrise Club maintained a regular checking account with Southeast, from which it paid operating expenses. Scutieri is authorized to sign on the account.

On June 4,1980 Scutieri filed a motion to compel the bank to pay him the sum of $8,087.68 representing a deposit of April 17, 1980 into the checking account of Sunrise Club. Scutieri claims that he had erroneously submitted to Southeast for payment a tax bill on property owned by him personally, and that upon realizing that mistake had made the cash deposit to pay the bill.

Because of overdrafts caused by Scutieri who wrote all checks in the Sunrise account, the total amount in the account on April 17, 1980 and all times thereafter was always less than the amount of the subject deposit. Seven days after April 17, 1980 the account was again overdrawn as Southeast continued to honor checks written by Scutieri to pay the operating expenses of the Sunrise Club.

Scutieri’s agent, Jacqueline Simmons, testified that she had made the $8,087.68 deposit and that she told the bank teller the cash deposit was to be earmarked for paying taxes. The bank teller receiving the deposit testified that she does not know Jacqueline Simmons and does not remember the deposit. She further testified that she had no authority to earmark or segregate funds deposited in a checking account. The internal control manager of Southeast testified that funds can be held for a specific purpose only by setting up a special account for that purpose which was not done in this case.

It is undisputed that Southeast did not use or otherwise benefit from the disputed funds. The funds were used only to pay checks issued against the Sunrise account for its operations.

The trial court determined that Scutieri was entitled to immediate possession of the funds, but reserved the right of Southeast to set-off the amount against debts of Scu-tieri due the bank. Scutieri was not required to post bond, nor was there a showing that he was unable to post bond.

Southeast contends that (1) Scutieri failed to show any legal duty or contractual obligation of the bank to provide or maintain in a special account funds for the payment of taxes on Scutieri’s personal property and (2) that Scutieri is barred by equitable estoppel in that the funds deposited by him for alleged payment of real estate taxes were used to pay the business expenses of the Sunrise Club on authority of Scutieri.

In Coyle v. Pan American Bank of Miami, 377 So.2d 213 (Fla.3d DCA 1979), this court held:

“The law is ... well-settled that a deposit in a bank made in the ordinary course of business is presumed to be a general account. The burden is upon the depositor to overcome this presumption and to establish by proof that the deposit was made upon such terms or under such conditions as to constitute a special account or an account for a specific purpose. The character of the deposit as a general or special account is determined by the express or implied contract between the bank and the depositor at the time that the deposit is made when considered in connection with the conduct of the parties and all the other attendant circumstances. Bryan v. Coconut Grove Bank and Trust Co., 101 Fla. 947, 132 So. 481 (1931); Grillo v. City National Bank, 354 So.2d 959 (Fla.3d DCA 1978).

The evidence here tending to show the existence of an oral agreement between Scuti-eri and Southeast Bank to create a special deposit is woefully lacking. The testimony of Scutieri’s agent, Jacqueline Simmons, is that she told the teller that “the purpose of these funds was earmarked for taxes only.” There is no evidence that the bank agreed or was committed to accept the deposit for the purpose of paying taxes on Scutieri’s personal property. We find without merit Scutieri’s argument that a deposit of the exact sum of a tax bill creates a presumption of intent sufficient to create a duty of the bank to earmark funds deposited in a general account for a special purpose. See, e. g., Aetna Casualty and Surety Company v. Bank of Palm Beach and Trust Company, 373 So.2d 687 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1189 (Fla.1980)'(notice of third party interest in deposited funds not enough to earmark funds for unpaid bills).

Because we find there is no special deposit, we must next consider whether Scutieri should be estopped from asserting a right to immediate possession, use, and benefit of deposited funds without posting a bond and without a showing that he is unable to give bond.

Although a bank normally has a duty to repay a depositor funds deposited in a general account, Grillo v. City National Bank of Miami, supra (Fla.3d DCA 1978), we know of no law which requires a bank to pay depositor funds which the depositor has, in effect, already withdrawn. Id. The difficulties here were created by Scutieri’s commingling of business and personal funds and his overdrawing the business account where he had deposited his personal funds. The bank was entitled to rely on the fact that having deposited the funds in a general account, demanded and received such funds once, Scutieri would not demand the same funds again. As between two innocent parties, the one responsible for the situation should bear the loss. Parsley Brothers Construction Company v. Humphrey, 136 So.2d 257, 259 (Fla.2d DCA 1962); Eulette v. Merrill, Lynch, Pierce, Fenner and Beane, 101 So.2d 603 (Fla.3d DCA 1958). See also, United Contractors, Inc. v. United Construction Corp., 187 So.2d 695 (Fla.2d DCA 1966). When Scutieri has intentionally overdrawn his account for use and benefit of a corporation owned and controlled by him and when the bank has reserved a right of set-off and has instituted mortgage foreclosure proceedings against him, we hold that Scutieri should be estopped from claiming a right to immediate possession, use and benefit of the deposited funds.

Reversed.

      . We have jurisdiction pursuant to Fla.R. App.P. 9.130(a)(3)(C)(ii).

      . There is a contention by Scutieri that Southeast was obligated by terms of the loan agreement to honor Sunrise’s overdrafts. It appears that the bank sought to accommodate the depositors, regularly cautioning against the practice and threatening not to continue paying on overdrawn checks.


text:
    Bartley KIMERLING, Appellant, v. Reginald J. BROWN and Emilia L. Brown, his wife, Appellees.
    No. 80-1749.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Moore, Kessler, Roth & Beckerman and Stephen F. Kessler, Miami, for appellant.
    Carlos & Abbott and Jack L. Weitzman, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. American Agronomics Corp. v. Boss, 309 So.2d 582, 584 (Fla. 3d DCA), cert. denied, 321 So.2d 558 (Fla.1975); Duprey v. United Services Automobile Ass’n, 254 So.2d 57, 58 (Fla. 1st DCA 1971).


text:
    Marvin MORRIS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-2254, 80-387.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Marvin Morris, in pro. per.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The appellant, acting pro se, has appealed from judgments and sentences entered against him upon the revocation of five terms of probation. We have carefully examined, but have found no merit in the issues and contentions raised by the appellant. Addressing the points asserted in the appellant’s brief, we hold as follows:

1. Morris represented himself, at his request, at the revocation hearing, see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). No harmful effect has been demonstrated as a result of the court’s failure to permit him to do so at an earlier stage of the proceedings below. Section 924.33 Fla.Stat. (1979).

2. The apparent claim that the evidence against him was insufficient because of alleged inconsistencies of the state’s witnesses and the failure to preserve or introduce physical evidence of the spoils of the crime, is totally without substance. Russ v. State, 313 So.2d 758 (Fla.1975), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975); Holland v. State, 129 Fla. 363, 176 So. 169 (1937); see State v. Sobel, 363 So.2d 324 (Fla.1978).

3. In the absence of a proper motion for recusal under Section 38.10, Fla. Stat. (1979), the trial judge correctly declined to disqualify himself. See, Crosby v. State, 97 So.2d 181 (Fla.1957).

4. The state’s alleged failure to comply with the provisions of Section 949.11, Fla. Stat. (1979) is totally immaterial to the validity of the convictions under review. See, Grose v. Stack, 286 So.2d 220 (Fla. 4th DCA 1973).

Affirmed.

      . The contentions initially raised in the reply brief are both untimely and without merit. See, Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980).


text:
    VILLAS OF KEY WEST, LTD., Appellant, v. John H. HARNISH, Appellee.
    No. 80-1559.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Taylor, Brion, Buker & Greene and James W. Moore, Miami, for appellant.
    Neblett & Sauer and John N. Moore, III, Key West, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We find no abuse of discretion in the trial court’s refusal to permit the Villas of Key West to deduct from appellee’s security deposit expenses the Villas incurred in transferring the liquor license appellee allowed to become delinquent. The trial court had previously ordered appellee to do all things necessary to effectuate the license transfer in a judgment that was never appealed. Its subsequent rulings denying the Villas’ Motion to Tax Costs and entering a post-judgment order in favor of appellee are within the contemplation of the original judgment. In the absence of either a pleading requesting reimbursement or a motion for rehearing directed to the original judgment, we do not dispute the court’s interpretation of its own order. We find no error in the court’s refusal to grant costs which were not requested by appropriate pleadings.

Affirmed.


text:
    Kenneth Wayne DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-603.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Kenneth Wayne Davis, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBARD, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, Kenneth Wayne Davis, 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.


text:
    Aaron WRIGHT and Otis Knight, Appellants, v. The STATE of Florida, Appellee.
    No. 80-594.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender and Andrew Kassier, Legal Intern, for appellants.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the trial court’s denial of defendants’ Motion for Discharge pursuant to Florida Rule of Criminal Procedure 3.191. Defense counsel’s request for a continuance for the purpose of affording him additional time to review discovery materials he received several days earlier was properly charged to defendant. See Rubiera v. Dade County, 305 So.2d 161 (Fla.1974); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977).


text:
    Jeffrey SACHS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2406.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See e. g, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted by § 933.19, Fla.Stat. (1979); Hetland v. State, 387 So.2d 963 (Fla.1980).