text:
    MITCHELL BOYD LOGGING & PULPWOOD and Certified Pulpwood Dealers, Appellants. v. Mitchell S. BOYD, Appellee.
    No. QQ-404.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Rehearing Denied March 27, 1980.
    Bette Towers Miller of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellants.
    J. Randall Hooper of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Hel-pling & Young, Gainesville, for appellee.
   PER CURIAM.

Our interpretation of Section 440.02(2), Florida Statutes, (1975), leads us to the conclusion that an otherwise exempt employer may waive his exemption and bring himself within the protection of the Act by obtaining workmen’s compensation insurance coverage specifically securing the benefits of the chapter. Allen v. Estate of Carman, 281 So.2d 317 (Fla.1973); Strickland v. A1 Landers Dump Trucks, Inc., 170 So.2d 445 (Fla.1964). The remaining issues we find to be without merit. The order of the deputy commissioner is accordingly affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    U. S. STEEL SUPPLY, DIVISION OF UNITED STATES STEEL CORPORATION, Appellant, v. BILL RIVERS CORPORATION, a Florida Corporation, a/k/a Bill Rivers Trailers, Inc.; Ryder Truck Lines, a Florida Corporation; and Atlanta Metal Products, Inc., a Georgia Corporation, Appellees.
    No. OO-258.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.
    Rehearing Denied March 27, 1980.

      Haywood M. Ball and Douglas D. Chunn of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Martin Sack, Jr., Jacksonville, for Bill Rivers Corp., appellee.
    Walter R. Stedeford, Jacksonville, for Ryder Truck Lines, appellee.
   PER CURIAM.

This cause was tried before the circuit judge, without a jury upon (1) the original claim asserted by the plaintiff, U. S. Steel Supply; (2) the counterclaim asserted by the defendant, Bill Rivers Corporation, against the plaintiff U. S. Steel; (3) the cross-claim asserted by the plaintiff U. S. Steel against Ryder Truck Lines, Inc., and Atlanta Metal Products, Inc.; (4) the cross-claim for indemnity brought by the defendant, Atlanta Metal against the defendant, Ryder Truck Lines, Inc.; and (5) the counterclaim asserted by defendant Atlanta Metal against the plaintiff U. S. Steel.

The appellant, U. S. Steel Supply, brings this appeal from a final judgment entered April 13, 1979. The order is affirmed with the exception of the ruling that the interstate commerce nature of the shipment precluded application of § 353.03, Florida Statutes (1977). This ruling was error. Allied Van Lines v. Brewer, 258 So.2d 496 (Fla.2d DCA 1972). The judge’s failure to award attorney’s fees based upon the erroneous ruling is reversed and the cause is remanded for further proceedings consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant/Cross-Appellee, v. Vincent L. RYAN, Appellee/Cross-Appellant.
    No. PP-312.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.
    Rehearing Deniecj March 27, 1980.
    Walter E. Beisler, West Palm Beach, of Anthony J. Beisler, P.A., Fort Lauderdale, for appellant/cross-appellee.
    Micheál A. Edwards of Law Office of Charles L. Rowe, West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

The order of the deputy commissioner is affirmed except with regard to the computation of average weekly wage. The deputy incorrectly included in his formula the state’s contribution to a retirement fund for the benefit of the claimant. The claimant has not completed 10 years of service and is not qualified for regular retirement. The employer’s contribution, at most, entitled the claimant to be eligible for two other disability retirements, if approved by the State Retirement office. There is no showing that at the time of the injury he was receiving any tangible benefit of a real present-day value from the state’s contribution to the fund. See Sunland Training Center v. Thomas, IRC Order 2-3917 (September 19, 1979). The order is reversed on this issue.

The order is affirmed in part and reversed in part and the cause is remanded to the deputy with directions that he recompute the average weekly wage consistent with .this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: PER CURIAM. SHAW, Judge,

text:
    Ann M. COLLIER, Appellant, v. RANCH HOUSE RESTAURANTS, INC., and Maryland Casualty Company, Appellees.
    No. QQ-139.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.
    Rehearing Denied March 25, 1980.
    David F. Roemer, Coral Gables, for appellant.
    Frank M. Hamilton, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant, who had a pre-existing back injury, began working for a Ranch House Restaurant in November 1973. One day in 1974, while waiting tables, she lifted a tray, carried it to the back of the restaurant, and felt a severe popping in her back. She reported the incident to the cashier, who told her to go to a hospital. Ultimately, appellant was diagnosed as having a herniated lumbar disc; she had surgery in June 1974. A neurological surgeon who saw her in 1978 gave her a twenty percent permanent partial disability to the body as a whole, fifteen percent of which he attributed to her accident.

The judge of industrial claims denied benefits on three grounds, which constitute the bases for this appeal: appellant’s claim for benefits listed the date of accident as March 21,1974, yet her initial treating physician and the hospital records show May 1974 as the actual date of injury; all the permanent disability was caused by the preexisting condition and two subsequent automobile accidents; and the initial physician’s files contain no history of an accident at the restaurant.

We affirm as to the third ground. The physician simply said his notes showed no history of the restaurant accident, but he added that he simply could have left out reference to the accident when he made his notes. The doctor’s records do not refute that there was an accident; they simply fail to confirm one.

Appellant’s first two points however, demonstrate error. It is true that the claim lists an incorrect date. It is also true, however, that, the day after the accident, appellant notified the cashier, and the cashier had her fill out a report and go to the hospital. This evidence was uncontradicted by appellees, as was testimony that the cashier was at least the waitresses’ ex offi-cio supervisor.

A line of cases holds such notice sufficient. In Phelps v. Gunite Corp., 279 So.2d 829 (Fla.1973), claimant told his foreman he was quitting because of continued skin irritation from his work. Hester v. Westchester General Hospital, 260 So.2d 505 (Fla.1972), involved notice to a nursing supervisor. And in Drew v. Wellman-Lord Engineering Co., 166 So.2d 136 (Fla.1964), claimant told his general foreman he had suffered an accident, and the next day he repeated this information to his immediate foreman. In the instant case, despite the erroneous date on the claim for benefits, appellant’s report to the cashier was notice to the appellees.

As to the second point, essentially the only basis for finding no compensable disability is that if no accident occurred at the Ranch House on March 21, 1974, no accident ever occurred there. By contrast, the record contains appellant’s testimony that she could perform all her duties before the accident, her account of reporting it to the cashier, the initial physician’s statement that if there had been an accident, it would have aggravated appellant’s pre-existing back condition, and, most telling, the neurosurgeon’s testimony that fifteen percent of appellant’s twenty percent permanent partial disability was “referable to the May of ’74 accident and the subsequent surgery.” The record thus contains competent, substantial evidence to support appellant’s claim but no competent, substantial evidence to support appellees’ contrary position.

Affirmed in part and reversed in part.

SHAW, Judge,

dissenting.

I respectfully dissent. The majority opinion, in this instance, confuses notice and what I perceive as a due process problem. A claim for benefits was filed on January 27, 1975 for an accident that allegedly occurred on March 21, 1974. The employer’s first report of injury lists the date of accident as 3/21/74. Both the request for pretrial conference and the notice of hearing set forth 3/21/74 as the date of accident. It was the testimony of Mrs. Collier that the day after her accident she was taken to Bethesda Hospital for emergency treatment and given an appointment to see Dr. Jones the next day. The hospital records indicate that she was seen on May 23, 1974 and are in accord with Dr. Jones’ records which reflect that she was seen by him on May 24th. The carrier’s attorney, at the final hearing, interposed the following objection:

MR. HAMILTON: Judge, I am going to interpose an objection right now. She said May 24. We are here today about an accident 3-21 — 74. That is on the notice of claim. That is the alleged accident date. There is no reported accident, to my knowledge, in the file of May 21, 1974. From this lady’s testimony she went to the emergency room at Bethesda Hospital the day following the incident and then the next day or day following, she went to Doctor Jones. She tells us it was the 24th of May. I can only conclude there is an attempted amendment of the day of accident to May 21, 1974 and we are not here on an accident of May 21, 1974.
THE JUDGE: Here’s the original claim letter filed by Charles Daniels.
Q (By Mr. Roemer) Who is Janet Kennedy?
A I think she was the manager or cashier, at that time. She moved from a different position from cashier to managing. I don’t recall if Janet Kennedy was the one that sent me.
MR. ROEMER; The records are to the dates that Claimant testified to. I think the date of accident which was filed upon is correct according to what information I have available to me. We would have to go by that particular date or dates.
Q (By Mr. Roemer) Did you say you had two accidents?
MR. HAMILTON: March 21, 1974 is the accident for which the claim was filed.
MR. ROEMER: You said 2—
MR. HAMILTON: That was a substitution of counsel. There were two dates foreign to me.
THE JUDGE: They apparently were in error.
MR. ROEMER: Well, the information contained in the claim letter, 3-21-74, is the one that was filed and that was the one reported and apparently is the correct date.
MR. HAMILTON: I will go into it on cross examination.
THE JUDGE: The claim letter will be received and marked as Judge’s Exhibit No. “L”

It is clear that the claimant chose not to amend her claim, but persisted in her assertion that the date of accident filed upon was correct. The employer/carrier justifiably focused on this date and tailored their defense accordingly. There was no showing that the carrier knew, or should have known, prior to final hearing that it was being called upon to defend against a May, 1974 accident. The employer’s first report of injury dated July 22, 1974 (approximately two months after the May hospitalization) lists the date of accident as-March 21, 1974 and is consistent with the carrier’s statement that their defense was geared to that date. The claimant failed to prove that a compensable accident occurred on March 21,1974. No claim has been filed for a May accident and the carrier’s objection to being forced to defend against such an accident was timely and well-taken. The deputy commissioner, under these circumstances, correctly denied benefits and the order should be affirmed. I would caution, however, that a misstated date of accident will not in every instance result in a denial of benefits. Another set of facts could dictate a different conclusion but, based on the evidence in this case, the order should be affirmed.


text:
    Douglas DILTZ and Victoria Diltz, his wife, Appellants, v. J & M CORP., a Florida Corporation, Appellee.
    No. 79-869.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    Rehearing Denied April 11, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Dubbin, Schiff, Berkman & Dubbin and James M. Schiff, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Association Judge.
   PER CURIAM.

By this appeal, we are asked to review a final judgment of accounting entered in favor of a lessor [J & M CORP.] in an action which it brought against its lessees [Douglas and Victoria Diltz] for alleged breach of the rent and accounting covenants of the lease. The lease provided that the rental due thereunder was six percent of the gross sales that the lessees shall obtain by operation of their Burger King business on the demised premises, but that in no event should the rent be less than $12,000 per month; also, the lease contained certain accounting provisions to enforce the gross sale/rental provisions of the lease. Nowhere in the lease is there any provision that the lessees should operate or use their best efforts to maintain a Burger King business on the demised premises. Compare Mayfair Operating Corp. v. Bessemer Properties, Inc., 150 Fla. 132, 7 So.2d 342 (1942).

Upon expiration of this lease, the same was renewed by the parties for one year. During this one year renewal period with approximately four months to go thereon, the lessees discontinued their Burger King business on the demised premises and moved their franchise to another location several blocks away. The lessees continued to pay the $12,000 rent per month due for the balance of the one year extension of the lease, but declined to pay the lessor six percent of the gross sales of the lessees’ new Burger King business. The final judgment of accounting requires the lessees to do so.

We reverse the final judgment under review upon a holding that: (a) the lessees were not required by the lease to operate or use their best efforts to maintain a Burger King business on the demised premises and, consequently, the lessees did not breach the lease by discontinuing their Burger King business thereon and in thereafter paying the minimum $12,000 monthly rentals; Floste Corp. v. Marlemes, 53 So.2d 538 (Fla.1951); Stemmler v. Moon Jewelry Co., 139 So.2d 150 (Fla. 1st DCA 1962); Annot., 40 A.L.R.3d 971, 975 (1971); (b) the lease contains no provision for the payment of rent based on the gross sales of the lessees’ Burger King business located outside the demised premises, and, accordingly, the trial court had no authority under the lease to require an accounting by the lessees as to such gross sales. Arnold v. First Savings and Trust Co. of Tampa, 104 Fla. 545, 140 So. 660 (1932) (syllabus by court no. 4).

The judgment under review is reversed and the cause remanded to the trial court with directions to enter a judgment for the appellant lessees herein.


author: SHARP, Judge.

text:
    Benito MARRERO, Appellant, v. STATE of Florida, Appellee.
    No. 79-64/T2-6.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Rehearing Denied March 28, 1980.
    Jack 0. Johnson, Public Defender and Michael E. Raiden, Asst. Public Defender, Barto, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   SHARP, Judge.

The appellant was convicted of two counts of breaking and entering with intent to commit a felony, in Hernando County. He filed a belated Notice of Appeal on February 15, 1979, pursuant to the order of the Second District Court of Appeals dated January 30, 1979. The Fifth District Court of Appeals subsequently received this appeal by transfer. The appellant urges that the trial court erred in denying the appellant’s Motion for Discharge pursuant to Florida Criminal Rule 3.191(a)(2). We disagree, and affirm the appellant’s conviction.

The appellant was arrested in Pasco County on September 3, 1975, and was convicted on November 19, 1975 of seven counts of breaking and entering, seven counts of grand larceny, and one count of drug abuse. While being held in Pasco County, in July of 1975, the appellant gave a statement to police officers from Hernan-do County, admitting involvement in thefts of property from the Days Inn Motel, near Brooksville. An information was filed against him by Hernando County authorities on October 8, 1975. He was transported from the Pasco County jail to Hernando for his arraignment on December 2, 1975. On that day he made a request for speedy trial with Hernando, filed in open court. The trial in Hernando County commenced on February 23, 1976, and concluded on February 27, 1976.

The issue in this case, for which we have found no controlling authority, is whether Rule 3.191(a)(2) or Rule 3.191(b)(2) of the Florida Rules of Criminal Procedure apply to the appellant’s demand for speedy trial. Rule 3.191(a)(2) provides that:

every person charged with a crime by indictment or information shall upon demand filed with the court having jurisdiction ... be brought to trial within 60 days ... If such person is serving in Florida ... a sentence of imprisonment for an unrelated crime, the operation of this section shall not be effective until such person is no longer imprisoned and becomes available for trial, nor until such person has abandoned or waived further proceedings under § (b)(2) of this Rule if such have been initiated.

Rule 3.191(b)(2) provides:

. a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information, whether or not a detainer has been filed against such person, shall upon demand filed with the court having jurisdiction be brought to trial within six months .

Under both rules, the event which commences the running of the time for speedy trial is clearly the date of the defendant’s demand for trial. Less clear however, is determination of whether Rule 3.191(a)(2) or 3.191(b)(2) apply to the appellant. The trial in Hernando was not timely if Rule 3.191(a)(2) applies; but it was timely if Rule 3.191(b)(2) applies.

The Florida Supreme Court in Lewis v. State, 357 So. 2d 725 (Fla.1978), held that the application of the speedy trial rules, which govern situations where no demand is made, depends upon the status of the defendant at the time he is arrested or charged with additional crimes. For the state to have the benefit of the longer time period in Rule 3.191(b)(1), the defendants must be imprisoned:

. ‘in a penal or correctional institution of this State or a subdivision thereof’ at the time they are arrested or charged with additional crimes. We further note that this section applies only to those defendants imprisoned in a state or county penal or correctional institution pursuant to a criminal judgment of guilt and does not apply to those defendants being held in jail while awaiting trial.

Id. 728.

Applying the principles of the Lewis case, the Second District Court of Appeals held in State v. Wright, 375 So.2d 299 (Fla. 2nd DCA 1979), that Rule 3.191(b)(1) applied to the situation where the defendant was convicted and being held in the county jail, but had escaped at the time the information charging other offenses was filed. Like Lewis, 'the Wright case dealt with the situation where no demand for speedy trial was made.

The controlling and salient factor in Rule 3.191(a)(2) and Rule 3.191(b)(2) is not the defendant’s arrest or date charges are filed; rather it is the time when the demand for speedy trial is properly filed. The times under Rules 3.191(a)(2) and 3.191(b)(2) are much shorter than those under Rules 3.191(a)(1) and 3.191(b)(1). Rule 3.191(a)(2) expressly contemplates that a defendant may be serving in Florida or elsewhere, a sentence of imprisonment for an unrelated crime. If so, Rule 3.191(a)(2) provides that it shall not apply until such person is “no longer imprisoned and becomes available for trial.” Implicit in the Rule, although not expressly stated, is the inference that it is the time of the demand for speedy trial that determines whether 3.191(a)(2) or 3.191(b)(2) applies. If it were the time of the filing of the information or arrest which controls, the state could be severely prejudiced in bringing a defendant to trial in too short a time period, if he is incarcerated under a criminal sentence by other authorities in Florida, or elsewhere. We hesitate to construe this rule in a manner that could unduly pressure the state in bringing a defendant to trial, when there has been no undue delay by the state. See State v. Smail, 346 So.2d 641 (Fla. 2d DCA 1977).

The appellant was convicted of other felonies and was being held in the county jail in Pasco County at the time he demanded speedy trial in Hernando County. Rule 3.191(b)(2) required that he be brought to trial within six months of his demand. He clearly was brought to trial within that time period. His trial commenced on February 23, 1976, after he demanded speedy trial on December 2, 1975. The trial court’s denial of appellant’s motion for discharge is hereby affirmed.

AFFIRMED.

DAUKSCH, C. J., and UPCHURCH, J., concur.

      . It is clear there would be no violation of Rule 3.191(a)(1) in this case, had the appellant not demanded a speedy trial, because the defendant was brought to trial within 180 days of the information being filed in Hernando County;- and he was not arrested by Hernando authorities until taken by. them to his arraignment on December 2, 1975. State v. Bassham, 352 So.2d 55 (Fla.1977).


author: UPCHURCH, Judge.

text:
    Debbie Lynn MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 78-860/T4-94.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, and Gary S. Israel, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPCHURCH, Judge.

The Appellant was convicted by a jury under an information which charged that:

Debbie Lynn Marshall, on the 29th day of March, 1977, in said County and State, did in violation of Florida Statute 893.-13(l)(a), unlawfully, deliver CANNABIS, commonly known as Hashish, a substance controlled by Florida Statute 893.-08(l)(c).

Two points have been raised on appeal. Our opinion will be limited to the first point. Point II is disposed of by our opinion in Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

Appellant contends that the court could not sentence Appellant as a felon when the information failed to charge a felony. The record reflects that Appellant entered a plea of not guilty, went to trial and moved for a new trial without objection to the information, and made no motion to correct or reduce sentence.

In Patterson v. State, 313 So.2d 712 (Fla.1975), defendant was convicted for the sale of a dangerous drug. The information alleged that the defendant did “unlawfully and knowingly sell and dispense a certain dangerous drug to wit: Cannabis, commonly known as Marijuana, contrary to the provisions of Section 404.02(1), Florida Statutes.’’ The court found as follows:

We have carefully examined the briefs and the record in the case and have heard oral argument by the parties. We con-elude that the Petitioner is correct in his argument (1) that the information was insufficient to charge a felony since it failed to allege (a) that he had been previously convicted of a violation of the Drug Abuse Law, or (b) that the delivery was for consideration, or (c) that the amount of marijuana delivered exceeded five grams; and (2) that under these circumstances, the case should be remanded for sentencing under the misdemeanor provision of the Statute.

The Patterson case cited with approval Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972); cert. discharged 283 So.2d 99 (Fla.1973). Pope also held that in order to charge a felony under section 404.15(1), Florida Statutes, it was necessary to allege facts making the “exception” inapplicable: that the offense of delivery or possession was not a first offense, or that more than the five grams of cannabis was involved. Section 404.15(1) is now found in section 893.13(1)(f), but with the following additional sentence:

For the purposes of this section, “cannabis” shall not include the resin extracted from the plant Cannabis sativa, L, or any compound manufacture, salt, derivative, mixture, or preparation of such resin.

See also State v. Stewart, 358 So.2d 583 (Fla. 2d DCA 1978).

We do not find Patterson, Stewart, or Pope controlling because the substance involved was marijuana (Cannabis sativa) and not hashish as in the case now before us. The case, Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974), recognized that hashish is extracted resin of cannabis. The added sentence in section 893.13(1)(f) quoted above, takes hashish out of the misdemeanor category established by the first sentence of that section. The misdemeanor exception is applicable only to Cannabis sa-tiva, L, commonly known as marijuana, and not to cannabis commonly known as hashish. Section 893.13(1)(a)(2) establishes that the unlawful delivery of any amount of cannabis, commonly known as hashish, is a felony of the third degree because of its inclusion in section 893.03(1)(c), Florida Statutes.

While it would undoubtedly be better form to include in an information after hashish the phrase, “a resin extracted from the plant Cannabis sativa, L,” in this instance it was not necessary. The omission is not such a fundamental defect as would render the information challengeable for the first time on appeal. A variance in an information is fatal only if the record reveals a possibility that the defendant may have been misled or embarrassed in the preparation or presentation of his defense. Sharp v. State, 328 So.2d 503 (Fla. 3d DCA 1976).

The record contains nothing whatever to indicate that the Appellant did not know that she was being tried for a felony, or that she was not aware that the “cannabis” involved was “hashish.”

AFFIRMED.

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


text:
    William E. FAGAN, Appellant, v. Maude FAGAN, Appellee.
    No. 78-2401/T4-280.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Rehearing Denied March 28, 1980.

      Frank M. Townsend of Townsend & Townsend, Kissimmee, for appellant.
    Marvin E. Newman and Jon S. Rosenberg, Orlando, for appellee.
   SHARP, Judge.

The- former husband, William E. Fagan, appeals the lower court’s Order on Motion for Enforcement filed by Maude Fagan, the former wife, to collect arrearages and enforce continuing child support payments for a child of the parties, who was over twenty-one years of age at the time of the enforcement proceeding and at the time the arrear-ages accrued. The appellant argues that the award of arrearages is erroneous because it is retroactive; that the lower court lacks jurisdiction to order arrearages or continuing support for this child; and that the former wife and mother is not the proper party to enforce the support judgment for the adult child. For the reasons stated in this opinion we disagree; and we affirm the trial court’s order.

The marriage of the Fagans was dissolved by a Final Judgment dated August 17, 1973. Custody of the seventeen year-old twins, Bill and Susan, was granted to the wife; and Mr. Fagan was required to pay to the wife child support in the amount of $190.00 per month per child “until such time as each of them becomes self-supporting, married or emancipated (by any other reason than by virtue of reaching the age of eighteen.)” (Emphasis supplied). In addition, the Judgment required the former husband to be responsible for all medical and related expenses for the care and treatment of the son, “occasioned by reason of his mental disorders, disabilities or impairments.” Mr. Fagan made the child support payments for both children until they attained the age of 21 years, when he ceased any further support payments. Mrs. Fagan then sought enforcement of the Judgment to require Mr. Fagan to pay child support for both children from August 1977. The court denied any child support for the daughter, but based on testimony that the son was not capable of being self-supporting, the court required Mr. Fagan to pay child support of $190.00 per month for Bill, and a total of $380.00 per month until the arrearages were paid, plus interest. The lower court required Mrs. Fagan to put the funds so received in a joint savings account in her and her son’s name. At the time of the hearing, the son was living with his mother, and all of the testimony before the Court indicated he would have to continue living in her home, indefinitely, because of mental problems.

Appellant first argues that the trial court erred because the award of arrearages was “retroactive”, relying on Warren v. Warren, 306 So.2d 197 (Fla. 1st DCA 1974). Because of our view of the original Judgment, we do not consider the award of arrearages “retroactive” in this case. Further, the record does not demonstrate any error in the calculation of the arrearages.

Appellant argues that the dissolution court is an improper forum to enforce child-support payments for an adult child. He relies on Perla v. Perla, 58 So.2d 689 (Fla.1952). However since that case was decided, the Florida Legislature passed Florida’s “No-Fault” Dissolution Law, Chapter 61, and many revisions thereto, and Chapter 743 relating to “Disability of Nonage.” Section 743.07(2) of the Florida Statutes provides that the reduction of the age of majority to 18 years shall not prohibit “any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years.” (Emphasis supplied). The statute does not define the term, “court of competent jurisdiction.” Section 61.13 empowers a court in a proceeding for dissolution of marriage to order a parent to pay child support. The court which enters such an order is expressly given “continuing jurisdiction” to modify the child support provisions when required by the best interest of the child, change of circumstances of the parties, or “when the child or any one of the children has reached the age of 18 years.” Sec. 61.13(1), Fla. Stat. (1978). Clearly, the dissolution court is empowered to order child support for a child beyond the age of 18, if he is depen-dant, and such court is the proper forum to determine whether the status of dependency has ended, after the child attains the age of 18 years. Finn v. Finn, 312 So.2d 726 (Fla.1975); George v. George, 360 So.2d 1107 (Fla. 3rd DCA 1978); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). It is also a proper forum in which to enforce child support orders for such adult dependant children.

In this case, we construe the original Judgment entered by the lower court as constituting an order of support for a dependant child beyond the age of “majority.” At the time of the Judgment the age of “majority” was eighteen years, but, the Judgment expressly provided this child’s becoming 18 would not terminate the child support obligation; and it required the appellant to pay all medical expenses for the son occasioned by his “mental disorders, disabilities, or impairments.” No appeal was taken from that order. We must give it full credence, if sustainable. E. J. Smith Co. v. Van Straaten, 106 So.2d 226 (Fla. 3rd DCA 1958); Holiday, Inc. v. Glaser, 121 So.2d 677 (Fla. 3rd DCA 1960).

The issue before this court is thus, whether the evidence was sufficient to sustain the trial court’s finding that the child, at the time of the hearing, continued to be a “dependent” child. Cook v. Cook, 305 So.2d 12 (Fla. 1st DCA 1974); In Re Estate of Donner, 364 So.2d 742 (Fla. 3rd DCA 1978). On this issue the trial court had before it the testimony of Bill’s treating psychiatrist, Dr. James Parsons, and an evaluation by another psychiatrist, Dr. Lloyd Wilder. Both indicated that Bill is not currently able to be self-sustaining because of his mental condition. Dr. Parsons felt his condition was improving; Dr. Wilder was more guarded in his prognosis. At the time of the hearing Bill was able to hold a part-time job, under close supervision at a nursery; and he was attending a local junior college. Both psychiatrists said he needed continuing therapy and a sheltered type of environment to be able to function; and that he was currently not capable of managing his own affairs. The appellant argues that “dependent” child should be equated with an “incompetent” person. We reject that view, and hold that the evidence in this case sustains the trial court’s finding that Bill is a “dependent” child for whom support past the age of 18 years can be required from either or both parents.

Under the circumstances in this case, Mrs. Fagan was a proper party to bring the enforcement suit. She was the person to whom the child support payments were payable and she is the logical person to enforce the order.

For these reasons, the order of the lower court under review is affirmed.

AFFIRMED.

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

      . At the time the Judgment was entered, the “disability of nonage” or age of majority had been changed from 21 years to 18 years. § 743.07(1), Fla.Stat. (1973).

      . § 61.13(1), Fla.Stat. (1978).

      . At the time of the hearing, Bill was living with his mother, and it appeared he would have to continue to live with her indefinitely, because of his condition. She was willing to continue to supply him with a home. The lower court required that the support funds from Mr. Fagan be segregated in a special savings account in Mrs. Fagan’s and Bill’s joint names. The funds were to be used for Bill’s support, care and benefit. Should there be any doubt or problem concerning use of the funds for Bill’s benefit, or should Bill no longer make his home with Mrs. Fagan, there are remedies available to Mr. Fagan. § 61.13(1), Fla.Stat. (1978).


text:
    ANSWER ALL TELEPHONE SECRETARIAL SERVICE, INC., Appellant, v. CALL 24 INC., a Florida Corporation, et al., Appellees.
    No. 79-76/T4-362.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Rehearing Denied March 28, 1980.
    Richard D. Stoner, Stephen C. Sawicki, and Elmo R. Hoffman of Hoffman, Hendry & Stoner, P. A., Orlando, for appellant.
    Steven C. Burrage of Robert D. Melton, P. A., and H. James Brett, Orlando, for appellees.
   SHARP, Judge.

The appellant Answer All Telephone Secretarial Services, Inc. appeals from a final order of the trial court dismissing its complaint with prejudice. Answer All is in the telephone answering service business. It sought damages and injunctive remedies to enforce “non-compete” clauses in employment contracts with six former employees. The six former employees worked as telephone operators or answerers for Answer All. Shortly after they left Answer All they began performing similar services for Call 24, Inc., also an appellee in this proceeding. Call 24 and Answer All are business competitors.

The trial judge ruled that such no-competition clauses in employment contracts are not enforceable under Section 542.12(2), Florida Statutes (1979), unless the employee is competing with the former employer by engaging in a similar business and by soliciting customers of the former employee. Since the appellant could not allege that the appellees were soliciting its former customers, as well as engaging in a competitive business, the lower court ruled no cause of action was stated. We disagree, and reverse the order appealed from, and remand for further proceedings consistent herewith.

The issue involved in this proceeding involves the construction of section 542.12(2), Florida Statutes (1979). It is a novel question for which we find no direct precedent. We also commend the attorneys for both appellant and appellee- for their thorough and exhaustive briefs on this question. The statute provides:

(2) One who sells the good will of a business, or any shareholder of a corporation selling or otherwise disposing of all of his shares in said corporation, may agree with the buyer, and one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the good will from him, and so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction. (Emphasis added)

In Standard Newspapers, Inc. v. Woods, 110 So.2d 397 (Fla.1959), the Florida Supreme Court upheld the constitutionality of section 542.12(2).

By law are condemned contracts under which persons are restrained from pursuing a lawful profession, trade or business, with two paragraphs of exceptions. One relates to partners and is not involved here. Sec. 542.12(3), supra. The other appears to exclude from the operation of the law persons in three categories: those who sell the good will of businesses, shareholders who sell all their stock in corporations, and employees or agents. Persons in the first two classes may agree with the buyers to desist from engaging in a similar business for a reasonable time in a reasonable area, while those in the third class, agents and employees, may assume the same obligations and may further agree not to solicit old customers of the former employer. (Emphasis added)

Standard Newspapers involved the sale of a newspaper in Marion County by the appellant to the appellee, and the appellee’s agreement not to engage in the newspaper business in that county. The Supreme Court’s dictum quoted above concerning employee contracts clearly contemplates that either competition in a similar business or solicitation of old customers may be proscribed in employment contracts.

The injuries which may be suffered by an employer when a former employee departs and commences work for a business rival stem not only from, solicitation of old customers, but use in a rival business of procedures, methods, trade practices, trade secrets and the like. The two may coincide; or one may occur without the other, as in this case. Solicitation is not essential to bring the non-compete contract within the statute, and assuming the contract is reasonable as to time and area (issues not raised in this appeal, and not addressed by this Court) the contracts are enforceable. See Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Royal Services, Inc. v. Williams, 334 So.2d 154 (Fla. 3d DCA 1976); Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla. 3d DCA 1965).

REVERSED AND REMANDED.

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

      . The employment contracts provided:
      “. . Whereas, the Company is engaged in rendering secretarial service for a confidential nature to professional persons and other clients and,
      Whereas, the parties acknowledge that the good will, continued patronage and the list of names and addresses of the Company’s customers constitute its principal asset, same having been acquired through considerable effort and the expenditure of time and money, and
      Whereas the employee is now employed or is about to be employed by the Company to act as a telephone secretary and in connection with her employment and through contact with other telephone secretaries of the Company the employee has become, or will become acquainted with many of the said clients of the Company, their names, addresses and other information regarding service to said customers and will become acquainted with future clients and with other of the Company’s business and confidential matters, and
      Whereas, the parties acknowledge the necessity of the restrictive covenants of the employee, hereinafter set forth, for the reasonable and proper protection of the good will of the Company’s business.
      Now, therefore in consideration of the premises and the mutual promises herein contained, it is hereby agreed as follows:
      (a) That she will not, during her employment with the Company or within two (2) years after the termination thereof, regardless of the time, manner or cause, or lack of cause, of said termination, directly or indirectly, disclose to any person, firm or corporation the name, address or any other information regarding the clients of the Company or divulge any other information concerning the business of the Company that she has or that she shall have acquired during her period of employment.
      (b) That she will not at any time while so employed, or for the period of two (2) years after the termination of her employment . solicit for telephone answering service any clients of the Company . . .
      (c) That she will not, at anytime, while in the employ of the Company, and for a period of two (2) years after the termination of her employment, . directly or indirectly, as principal, agent, employer, employee, director, officer, stockholder, or in any other individual or representative capacity whatsoever, engage in a telephone answering business servicing any subscribers in the area in Orange, Polk, Osceola, Seminole counties, Florida, which is now being served by the central telephone exchange located at Answer All Telephone Secretarial Service, Inc., Orlando, Florida whether by an office and equipment situated outside of said area or within said area.
      (d) The Employee acknowledges that a violation of any covenant contained in the preceding paragraphs will cause irreparable damage to the Company, the exact amount of which will be impossible to ascertain and, for that reason, the Employee further agrees that, in the event of such violation, the Company shall be entitled, as a matter of course, to an injunction, in addition to such other remedies as the Employer may have . . .


author:
ERVIN, Judge.
      BOOTH, Judge,

text:
    CITY OF JACKSONVILLE BEACH, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Jacksonville Beach Fire Fighters Association, Local 2622, Appellees.
    No. NN-398.
    District Court of Appeal of Florida, First District.
    March 4, 1980.
    Rehearing Denied April 8, 1980.
    Michael J. Grogan of Coffman & Coleman, Jacksonville, for appellant.
    No appearance for appellees.
   ERVIN, Judge.

City of Jacksonville Beach appeals an order of the Public Employees Relations Commission (PERC) which included fire lieutenants in a bargaining unit contrary to an agreement between the City and the Jacksonville Beach Fire Fighters Association. We affirm PERC’s order because we find the evidence supports the fire lieutenants’ inclusion in the unit. The issue mentioned in the dissent, that PERC erred by unilaterally including those positions in the bargaining unit contrary to agreement between the parties, was never made a point on appeal. Indeed, the two cases from this court relied upon in the dissent, School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976), and City of Titusville v. PERC, 330 So.2d 733 (Fla. 1st DCA 1976), were not cited in appellant’s brief. That point has now been waived and will not be considered by us for the first time on appeal.

AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., concurs in part and dissents in part.

BOOTH, Judge,

concurring in part and dissenting in part:

I dissent from the majority’s affirmance of PERC’s inclusion of fire lieutenants in the bargaining unit with rank and file firefighters. PERC is mandated by § 447.-307(l)(a), F.S., to determine the appropriateness of a bargaining unit where both parties have entered into a consent agreement. However, PERC may not enlarge the agreed upon bargaining unit unilaterally, School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976); City of Titusville v. PERC, 330 So.2d 733 (Fla. 1st DCA 1976). Here, the Union and the public employer agreed that fire lieutenants would be excluded from the bargaining unit. PERC unilaterally included that position in the bargaining unit contrary to the agreement between the parties, the opinions of this court, its statutory mandate, and its own decisions in Cape Coral Professional Firefighters, Local # 2424, IAFF, AFL-CIO and City of Cape Coral, 4 FPER ¶ 4198 (1978), and Professional Firefighters of Naples, Local # 214, and City of Naples, 4 FPER ¶ 4021 (1978).

Accordingly, I would REVERSE that portion of PERC’s order which includes the lieutenants in the rank and file bargaining unit.

      . Appellant does not seek to set aside the election due to the erroneous inclusion of the four fire lieutenants in the bargaining unit.


text:
    Tammy Sue McCOWEN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-237.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Rehearing Denied April 8, 1980.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for áppellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   PER CURIAM.

The defendant-appellant pled nolo con-tendere to charges of second-degree murder, kidnapping and robbery. Although she reserved her right to appeal the denial of her motion to suppress her confessions to the crimes, we are compelled to dismiss the appeal on the authority of the later-decided case of Brown v. State, 376 So.2d 382 (Fla.1979). As also required by Brown, we direct that the defendant shall be granted the right, if she so desires, to withdraw her nolo plea and to plead anew.

Appeal dismissed.


text:
    Joseph J. HANS, Appellant, v. Robert A. PORLICK, Appellee.
    No. 79-776.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Rehearing Denied April 8, 1980.

      Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro and Joel Lumer, Miami, for appellant.
    Ainslee R. Ferdie, Coral Gables, for ap-pellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Manis v. Miller, 327 So.2d 117 (Fla.2d DCA 1976); Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961); Vogel v. Gruaz, 110 U.S. 311, 45 S.Ct. 12, 28 L.Ed. 158 (1883).


text:
    James Lee AGERTON, Petitioner, v. STATE of Florida, Respondent.
    No. SS-116.
    District Court of Appeal of Florida, First District.
    March 5, 1980.
    Rehearing Denied March 28, 1980.
    Petition for writ of habeas corpus.
    James Lee Agerton, pro se.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus (delayed appeal) is granted. State ex rel. Shevin v. District Court of Appeal, 316 So.2d 50 (Fla.1975). On review of the order denying petitioner’s Rule 3.850 motion, in the light of the transcript of plea and sentencing, the order appealed is

AFFIRMED.

ROBERT P. SMITH, Jr., ERVIN and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    Alfonzo DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. NN-498.
    District Court of Appeal of Florida, First District.
    March 11, 1980.

      Michael J. Minerva, Public Defender, Steven H. Parton, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Appellant appeals the judgment sentence rendered April 11, 1979, which placed him on one year’s probation for resisting arrest without violence. Appellant contends that the trial judge erred in declining to give the jury a requested instruction that they had to find the element of a lawful arrest before they could find appellant guilty of resisting arrest without violence (a misdemeanor). We agree and reverse.

Although appellant was eventually charged with burglary and resisting arrest with violence, he was initially arrested for open profanity. At the time of his arrest, appellant tried to pull away or jerk loose from the arresting officers. The arresting officers forcibly removed appellant to the police car. The evidence is clear, however, that appellant did not hit either police officer.

At the close of the State’s case, the trial court, upon appropriate motion, reduced the charge of resisting arrest with violence to resisting arrest without violence. The jury found appellant not guilty of burglary but guilty of resisting arrest without violence.

Appellant’s arrest for open profanity was clearly unlawful. See Brown v. State, 358 So.2d 16 (Fla.1978), whose holding was reiterated in Brown v. State, 367 So.2d 1008 (Fla.1979).

The common law rule remains that one can resist without violence an unlawful arrest. Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978); Marshall v. State, 354 So.2d 107 (Fla. 2d DCA 1978). Thus, the legality of an arrest remains a factor to be proved in a situation where a defendant has resisted arrest without violence. Morley v. State, 362 So.2d 1013 (Fla. 1st DCA 1978). In the instant case, the jury retired on the question of whether the defendant was guilty of- resisting arrest without violence. Accordingly, the trial judge should have instructed them that proof of the legality of an arrest is an essential element of resisting arrest without violence. Therefore, we must reverse, fully cognizant that on remand the circumstances of this case may require dismissal.

Appellant’s contention that the speedy trial period has run is without merit under the facts of this case. Leeman v. State, 357 So.2d 703 (Fla.1978); Cantanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971).

Reversed and remanded for proceedings consistent herewith.

ERVIN and SHAW, JJ., concur.


text:
    David SPENCER, d/b/a Spencer Company and South Carolina Insurance Company, Appellants, v. Wallace R. BEASLEY, Jr., Appellee.
    No. QQ-328.
    District Court of Appeal of Florida, First District.
    March 11, 1980.

      M. Wayne Myers, of Cowles, Coker & Myers, Jacksonville, for appellants.
    W. Douglas Childs, of Bullock, Sharp & Childs, Jacksonville, for appellee.
   PER CURIAM.

Appellants raise three issues and appel-lee/cross-appellant raises two issues from an order of the judge of industrial claims. After a careful examination of the briefs and the record in this case, we find the appellants have failed to demonstrate reversible error, and, accordingly, we affirm the order.

As to the cross-appeal, we find there is competent, substantial evidence to support the denial of nursing services to the appel-lee. However, we conclude the judge did err in finding the appellee was capable of returning to some work by October 1, 1978.

There is no evidence in the record to support the view that the appellee was able to return to work on October 1, 1978. It was not until November 17, 1978, that ap-pellee was released by his treating physician for light work. Moreover, he attempted to return to work on November 20, 1978, without success. Consequently, there is no competent, substantial evidence to support the finding that the claimant was capable of returning to work on October 1, 1978.

Therefore, the order is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Enrique GUZMAN, Appellant, v. SURGE ELECTRIC, INC., and United States Fidelity & Guaranty Company, Appellees.
    No. QQ-442.
    District Court of Appeal of Florida, First District.
    March 11, 1980.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Ratiner & Glinn, P. A., Miami, for appellant.
    Summers Warden, Coral Gables, for ap-pellees.
   SHIVERS, Judge.

Appellant, Enrique Guzman, brings this appeal from a final workmen’s compensation order entered April 3, 1979, awarding appellant temporary total and permanent partial disability benefits, based on the finding appellant had suffered a 17% permanent partial disability to the body as a whole. The judge of industrial claims found appellant had suffered no loss of wage-earning capacity.

Appellant brings the following points on appeal:

1. Whether the judge erred in finding that appellant failed to establish by competent, substantial evidence that • he suffered a loss of wage-earning capacity.
2. Whether the judge erred in concluding that the initial treating physician, Dr. Piper, did not submit his rating report until March 13, 1978, in that the record reflects a rating report submitted to the carrier on September 1, 1977.

We affirm Point 2 but reverse Point 1. Appellant proved by competent substantial evidence that the compensable accident resulted in some loss of wage-earning capacity.

Appellant, aged 36 with a diploma from a foreign technical school, has a job history in electrical work. On March 31, 1977, the date of accident, he was employed full-time performing heavy electrical work for appel-lee, Surge Electric, Inc., at the pay rate of $6.00 per hour. His work involved climbing ladders, and required the use of both hands. His accident occurred when he fell off a scaffold, resulting in severe fractures of his left wrist and pelvic bone. The treating orthopedic surgeon, Dr. Piper, felt appellant could return to work by May 31, 1977. The doctor initially submitted a rating report on September 1, 1977, reporting that appellant had reached maximum medical improvement on August 31, 1977, with a 25% permanent impairment of the left upper extremity. He also noted that appellant’s left wrist could markedly improve with further surgery. Reevaluating appellant on March 13, 1978, Dr. Piper still believed that appellant reached maximum medical improvement on August 31, 1977. However, bn reevaluation of appellant’s wrist condition, he opined appellant had only a 20% permanent impairment of the left upper extremity, instead of the 25% impairment figure noted previously. Dr. Piper felt appellant had progressed much more than originally anticipated, and surgery was not required at the present time. In explanation of the earlier, higher impairment rating, Dr. Piper testified a mix-up in his records also contributed to his reevaluation.

Appellant attempted to return to work on May 31, 1977, but his employer had no work available at that time. Rehired by the employer on July 1, 1977, appellant’s pay was temporarily increased to $11.25 per hour, because his employer assigned him to a government contract job, and had to pay him the prevailing government wage standard. Appellant could not do the heavy jobs he had previously done, but otherwise performed essentially the same work. After working without problems for several months, he found another full-time job as electrician and mechanic with a different employer. His pay rate for this,job was the prevailing wage of $7.50 per hour, and this job required only light electrical work.

Appellant testified he would probably be making more than his present wages had he not been physically restricted to light electrical work. Few opportunities existed for light electrical jobs within his physical capabilities. Appellant still has difficulty lifting with his injured wrist and experiences thigh pain after eight hours of work. Dr. Piper testified appellant’s wrist condition is progressive, so that further surgery is a virtual certainty, and further arthritic degeneration of the wrist will occur.

On Point 2, we affirm the judge’s order. The parties do not discuss the significance of this point. However, competent, substantial evidence supports the judge’s finding that “appellant reached maximum medical improvement on August 31, 1977, although Dr. Piper did not submit his rating report until March 13, 1978.” Dr. Piper consistently opined that appellant reached maximum medical improvement on that date, in both his narrative reports of September 1, 1977, and March 13, 1978. But the evidence shows that Dr. Piper gave inconsistent ratings regarding appellant’s extent of permanent impairment. Specifically, he revised the first report’s 25% impairment rating in the later report of March 13, 1978, which gave a lower 20% permanent impairment rating. This reevaluation was justifiably based upon his opinion that appellant’s permanent impairment was less than originally anticipated. Thus, the judge correctly found that Dr. Piper did not submit his rating report until March 13, 1978. The record shows Dr. Piper did not submit his final evaluation of the extent of permanent impairment until that date.

On Point 1, however, we reverse the judge’s finding that “claimant has failed to establish by competent, substantial evidence that he suffers a loss of wage-earning capacity.” The record plainly shows appellant’s industrial accident did result in some loss of wage-earning capacity. His physical condition as a result of injuries from that accident has restricted him to a more narrow range of electrical jobs than he once could perform. It is apparent that he now can no longer perform heavy electrical work, and will remain limited to only light electrical jobs, such as his present job. Thus, he is effectively precluded from finding any better paying heavy electrical work, and from taking advantage of the full range of job opportunities for both heavy and light electrical work.

The evidence was neither competent nor substantial to sustain the judge’s finding appellant suffered no loss of wage-earning capacity. The mere fact he apparently returned to work at increased wages is not dispositive on the issue of whether he sustained any loss of wage-earning capacity. Kurtz v. Wall, 182 So.2d 618 (Fla.1966). As the court stated in Walker v. Electronic Products & Engineering Co., 248 So.2d 161 (Fla.1971), the actual wages earned by a claimant after his injury are an important factor for determining loss of wage-earning capacity, but certainly not the sole factor.

Accordingly, we reverse that portion of the order finding no loss of wage-earning capacity. The judge of industrial claims has failed to consider the relevant criteria from Walker, supra, and to determine the extent of appellant’s loss of wage-earning capacity. Consequently, the judge of industrial claims erred by failing to make an award according to whichever of appellant’s disabilities is greater: his disability based on physical impairment, or his disability based on diminution of wage-earning capacity. § 440.15(3)(u), Florida Statutes (1977).

The order is hereby reversed in part and the cause remanded for entry of an order consistent with our opinion.

ERVIN and SHAW, JJ., concur.


author: VANN, HAROLD R.,

text:
    Eleanor M. “Lee” ROSS, Trustee in Bankruptcy for Jack Brock and Aurie Brock, Appellant, v. PITTSBURGH TESTING LABORATORY, a Pennsylvania Corporation authorized to do business in the State of Florida, Appellee.
    No. 79-1043.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Sandler & Sandler and Arthur S. Weitz-ner, Miami, for appellant.
    Wahl & Gabel and George D. Gabel, Jr., Jacksonville, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, HAROLD R.,

Associate Judge.

The appellant, plaintiff in the trial court, seeks review of an adverse summary final judgment entered by the trial court in an action whereby the plaintiff sought damages for a breach of contract and/or negligence of the defendant.

Only one issue need be addressed: Was there a genuine issue of a material fact which, under Florida Rule of Civil Procedure 1.510, precluded the entry of a summary judgment in the case sub judice? We think there is, and we reverse.

The depositions, pleadings and exhibits in the instant case reveal that the plaintiff obtained an option to purchase a certain piece of real property with the intention of building a warehouse thereon to be leased to J. C. Penney. The purchase was contingent upon J. C. Penney’s executing said lease. To facilitate this end, the plaintiff contacted a contractor for bids on construction of the warehouse. The contractor suggested to the plaintiff that soil samples and borings be obtained so as to be able to ascertain the type of construction and soil preparation necessary for construction. The plaintiff informed the contractor that the defendant had made those tests for the previous owner. Thereupon, the contractor contacted the defendant informing its employee of the type of construction to be built and that the plaintiff was the owner of the property. For a fee, the defendant forwarded to the contractor the tests made for the previous owner, along with its recommendation of how the building should be built for the plaintiff on his land. After estimating all costs of the project, including preparation of the soil for the building (based upon the defendant’s land samples), the plaintiff executed all documents necessary for purchase of land and construction of the warehouse. Upon commencing construction, it was discovered that the underground structure was not, in fact, as represented by the defendant’s soil samples. A further test performed by the defendant substantiated that fact. It was therefore necessary that the plaintiff incur additional expense in preparing the building site for construction of the warehouse.

Resolving these facts and the inferences therefrom against the party seeking a summary judgment and in favor of the party opposing it [Goodman v. Anthony, 269 So.2d 756 (Fla. 3d DCA 1972); Stringfellow v. State Farm Fire & Casualty Co., 295 So.2d 686 (Fla. 2d DCA 1974); U. S. Fire Insurance Company v. Progressive Casualty Insurance Company, 362 So.2d 414 (Fla. 2d DCA 1978)], we find the defendant has failed to show the absence of genuine questions of material facts necessary to grant a summary judgment in its favor. Fletcher Co. v. Melroe Mfg. Co., 261 So.2d 191 (Fla. 1st DCA 1972); Moody v. Seaboard Coast Line RR, 287 So.2d 707 (Fla. 2d DCA 1974); U. S. Fire Insurance Company v. Progressive Casualty Insurance Company, supra.

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

Reversed.


text:
    ORANGE ASSOCIATES, INC., Appellant, v. Mario PRESMAN and Fanita Presman, his wife, Appellees.
    No. 79-1930.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Rehearing Denied April 11, 1980.
    Edward S. Kanbar and Leonard Sussman, Miami, for appellant.
    Mario Presman & Fanita Presman, in pro. per.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Northern Investment Corp. v. Coppock, 134 Fla. 168, 183 So. 635 (1938).


author: HERSEY, Judge.

text:
    CARLON, INC., d/b/a Broward Nelson Fountain Service, Appellant, v. SOUTHLAND DIVERSIFIED COMPANY, d/b/a Little Giant, Appellee.
    No. 78-1368.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Rehearing Denied April 16, 1980.

      Richard W. Epstein of Forkey & Kirsch, P. A., Fort Lauderdale, for appellant.
    James A. McCauley, Fort Lauderdale, for appellee.
   HERSEY, Judge.

This is an action for accelerated rental payments under a written lease of certain fountain equipment consisting of an ice bin with a carbonator and fountain head attached. Appellee paid an amount equivalent to seven months rental and then abandoned use of the equipment, storing it in a room on appellee’s premises.

The equipment was acquired in the expectation that customers of appellee would purchase soft drinks made from the equipment rather than in prepackaged cans. Because of the cost difference to appellee, fulfillment of that expectation would have considerably improved appellee’s profit margin. Apparently, appellee’s customers were creatures of habit and refused to succumb to the entreaties of progress. In any event, the anticipated demand did not materialize, whereupon appellee became disillusioned and attempted to terminate the lease arrangement.

Appellant first complains of the trial court’s determination that the property delivered to appellee’s premises differed in some respect from the description in the written lease agreement. This determination is erroneous since it is clear from the testimony that any alleged difference between the property described in the lease and the property delivered to appellee was totally immaterial to the conflict which developed between the parties. As a matter of fact, the supposed discrepancy was not noted until shortly before trial when appel-lee’s expert witness apparently observed the difference for the first time. Use of the property had long since been abandoned by appellee, and it had been placed in storage. Further, abandonment occurred not because of the manner in which the equipment functioned, but because as one of the principals of appellee testified:

I’m afraid we will have to disconnect this machine and take it out. It isn’t working out. It isn’t catching on like we thought.

Appellant also attacks the trial court’s finding that appellee entered into the written lease agreement with the understanding that the lease could be terminated if the appellee became dissatisfied with the equipment. We conclude that this finding is not supported by competent, substantial evidence.

Appellee’s principal testified that he had certain discussions with an agent of appellant and that upon presentation of the written lease agreement it was signed but not read. This clearly is no defense in an action predicated upon a written agreement.

To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts. The purpose of the rule is to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible.

All Florida Surety Company v. Coker, 88 So.2d 508, 511 (Fla.1956), quoting 12 Am. Jur. Contracts § 137.

Moreover, permitting testimony as to the oral negotiations between the parties violates two well-established legal principles. The first is the parol evidence rule. C. H. Robinson Co. v. L. & M. Brokerage Co., Inc., 344 So.2d 894 (Fla. 1st DCA 1977). This rule serves as a shield to protect a valid, complete and unambiguous written instrument from any verbal assault that would contradict, add to, or subtract from it, or affect its construction. Sears v. James Talcott, Inc., 174 So.2d 776 (Fla. 2nd DCA 1965). The trial court made no finding that the lease agreement was ambiguous, incomplete or unclear. Ambiguity, or lack of clarity, must appear on the face of the contract in order for extrinsic evidence to be admissible. Pearson v. Pearson, 342 So.2d 1018 (Fla. 4th DCA 1977). The second legal principle violated by introduction of testimony as to negotiations is the doctrine of merger. It is established in Florida that presentations, negotiations and conversations which precede and accompany the making of a contract are presumed to have merged in the contract. Windowmaster Corporation v. Jefferson Construction Co., 114 So.2d 626 (Fla. 3rd DCA 1959).

We therefore reverse the corrected final judgment and remand for the entry of a judgment in favor of appellant for the accelerated rental payments.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    JENSEN CORPORATION, a Florida Corporation, Appellant, v. EJNAR JENSEN AND SON A/S, a Danish corporation et al., Appellees.
    Nos. 78-1812, 78-1813.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Rehearing Denied April 16, 1980.
    Earl D. Waldin, Jr., of Smathers & Thompson, Miami, for appellant.
    Dennis Alan Richard, of Richard & Richard, Miami Beach, for appellees.
   PER CURIAM.

While we have given serious consideration to each of appellant’s six points, we find them all to be without merit except Point IV.

Point IV asserts that the trial court erred in entering final judgment for $43,750 on appellee’s permissive counterclaim. Appel-lee conceded at oral argument that the amount of the final judgment should have been $40,000. We concur, and remand to the trial court for entry of an amended final judgment in the sum of $40,000. As amended, the final judgment is affirmed.

AFFIRMED, as amended.

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


author: LARRY G. SMITH, Judge.

text:
    HEALTH APPLICATION SYSTEMS, INC., Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY and State of Florida Department of Health and Rehabilitative Services, a State agency, Appellees.
    No. NN-37.
    District Court of Appeal of Florida, First District.
    March 12, 1980.

      F. Perry Odom, C. Everett Boyd of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    M. Stephen Turner of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, Marion R. Shepard, John M. McNatt of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, Fred W. Bag-gett, Tallahassee, for appellees.
   LARRY G. SMITH, Judge.

This case deals with the sufficiency of pleadings filed in litigation arising from a contractual dispute. Health Application Systems, Inc. (HAS) appeals an order of the trial court dismissing, with prejudice, its counterclaim against appellee, State of Florida, Department of Health and Rehabilitative Services (HRS), and the third party complaint of HAS against appellee, Hartford Life and Accident Insurance Company. The litigation was initiated by HRS, which sued Paid Prescriptions, Inc. (PAID), and HAS, claiming breach of contract and conversion of funds by PAID and HAS under PAID’s agreement with HRS for the furnishing of certain administrative services relating to the Florida Medicaid Drug Program. The issues on appeal are (1) whether HAS’s counterclaim against HRS stated a cause of action based upon an alleged assignment by PAID, to HAS, of certain funds payable under the contract between PAID and HRS; and (2) whether HAS’s third-party complaint states a cause of action against Hartford, in behalf of HAS as a third-party beneficiary of a reinsurance agreement between Hartford and PAID which protected PAID from losses under its contract with HRS. The third-party complaint also sought recovery against Hartford based upon theories of indemnification, contribution, or subrogation. We agree with the trial judge’s ruling that neither the counterclaim nor the third-party complaint state a cause of action, and we affirm the orders of dismissal.

An explanation of the status of the parties and the manner in which the dispute arose will be helpful in understanding the issues. The State of Florida participates in the Medicaid program under Title XIX of the Social Security Act, 42 U.S.C.A. § 1396, et seq. (1974). The State’s program provides pharmaceutical drug benefits to low income individuals. HRS, which is in charge of the program for the State, entered into a contract in 1974 with PAID to administer the program, keep records, and pay the pharmacists providing drugs to Medicaid recipients. PAID was compensated by HRS by fixed rate “premiums” based upon the number of eligible recipients receiving drugs. PAID protected itself against the possibility of loss under the 1974 contract by a “stop-loss” or reinsurance agreement with Hartford. The reinsurance agreement expired on June 30, 1976, the date on which the 1974 contract terminated. Although PAID and HRS entered into a second contract commencing July 1, 1976, no reinsurance- agreement was entered into with Hartford for coverage of this second contract.

PAID’s contractual arrangement with HAS was as follows: PAID subcontracted with HAS for HAS to perform certain duties under the 1974 and 1976 contracts, consisting of the administrative, managerial, and record keeping functions, including preparation of checks and making payments using PAID’s funds. For the services performed, HAS was to receive 9V'¿% of all contract premiums received by PAID from HRS.

The suit filed by HRS against PAID and HAS claims damages relating to the 1976 contract. HRS’s claim is that PAID and HAS breached the 1976 contract and converted funds paid by HRS under the 1976 contract by paying claims owed by PAID under the 1974 contract. HRS claims injury because the contract required PAID to maintain a reserve account for deposit of premiums paid by HRS, from which HRS was to receive the interest earned and 75% of the balance remaining at the expiration of the contract. HRS alleged that as a result of the improper payment of funds by PAID (through HAS), HRS sustained claimed damages in excess of three million dollars. After filing of the complaint, HRS and PAID, settled all claims against each other, and PAID was dismissed from the law suit.

Turning first to the issues relating to dismissal of HAS’s counterclaim against HRS, we note initially that the counterclaim, although in two counts, essentially is based upon HAS’s allegation that it has a cause of action directly against' HRS by virtue of an assignment by PAID to HAS of 9lh% of the premiums payable by HRS to PAID under the 1974 contract. We conclude, after examination of the pleadings, and the contracts attached as exhibits, that there was no assignment, and that consequently, dismissal of the counterclaim was proper.

The pertinent language of HAS’s contract with PAID, relied upon by it as an assignment, is as follows:

“WHEREAS, PAID desires to subcontract certain of its obligations and to assign certain of its rights under the Third Party Contract to HAS; and “WHEREAS, HAS is willing to assume the obligations hereinafter referred to in consideration of the assignment of that portion of HAS’ rights under the contract hereinafter described;
“1. PAID does hereby subcontract to HAS and HAS does hereby assume and agree to perform all of the obligations imposed upon PAID pursuant to the following provisions of the Third Party Contract .
******
“3. PAID agrees to remit to HAS, or authorizes HAS to retain, as the case may be, nine and one-half (9‘A%) of the gross monthly premiums received by PAID, as the case may be, pursuant to the Third Party Contract . . . ” [Emphasis supplied]

We parenthetically observe that under the Florida Rules of Civil Procedure, and case law interpreting the rule, exhibits attached to a pleading become a part for all purposes; and if an attached document negates the pleader’s cause of action or defense, the plain language of the document will control and may be the basis for a motion to dismiss. Rule 1.130(b), Florida Rules of Civil Procedure; Padgett v. First Federal S & L Ass’n, 378 So.2d 58 (Fla. 1st DCA 1979). See also Trawick, Florida Practice and Procedure, § 6-15 at 75 (1978).

We think it is clear, as argued by HRS, that the contractual provision whereby HAS was to receive 91/2% of the gross monthly premiums “received by PAID”, does not constitute an assignment. A mere agreement to pay a debt out of a designated fund does not operate as a legal or equitable assignment, since the assignor retains control over the subject matter. Miller v. Wells Fargo, 540 F.2d 548, 558 (2nd Cir. 1976). Such an agreement amounts only to a mere promise to pay, and does not meet the’ test of an intention on the part of the assignor to give, and of the assignee to receive, present ownership of the fund, Lone Star Cement Corp. v. Swartwout, 93 F.2d 767, 770 (4th Cir. 1938).

A subcontractor does not, merely by virtue of the relationship with the principal contractor, become an assignee of funds due under the prime contract. Nickel v. Pollia, 179 F.2d 160 (10th Cir. 1950). The rule with respect to subagents is stated in the Restatement of Agency 2d, § 458a as follows:

“If an agent employs a subagent, the agent is the employing person, and the principal is not a party to the contract, except where, by express agreement or otherwise, he becomes a surety. He is not, therefore, subject to pay the agreed compensation, nor is he subject to contractual liability to indemnify the sub-agent . . . ”.

The contract between HRS and PAID contained the following prohibition against assignment without written consent:

“The contractor shall not sell, transfer, assign or otherwise dispose of this contract or any portion thereof, or of right, title or interest therein, without written consent of the State agency . . .”. (Article VIII, J)

HAS’s counterclaim against HRS, alleging that PAID “assigned to HAS” its right to receive 9V2% of all gross monthly premiums, must yield to the specific language of the contract itself, which provides that “PAID agrees to remit to HAS, or authorizes HAS to retain, . . . nine and one-half (9V2%) of the gross monthly premiums received by PAID, . pursuant to the third-party contract”. Under the authorities cited, we hold that this does not constitute an assignment. However, even if it be construed as an assignment, according to the interpretation placed upon the contract by HAS, it would not be enforceable against HRS because of the specific contractual provision between HRS and PAID prohibiting assignment without written consent of HRS. We find nothing in the counterclaim, nor in the attachments thereto, stating that HRS agreed to the assignment. Although HRS consented to the assumption of certain of PAID’s obligations by HAS, as permitted by Article VIII D of the contract, this did not operate as a consent to an assignment under Article VIII J (quoted above), of any portion of the funds accruing to PAID from HRS. Under the circumstances, we must agree with the trial court’s determination that the counterclaim fails to disclose the existence of a duty on the part of HRS to pay to HAS the amounts HRS might have been obligated to pay under its contract with PAID.

We next consider the dismissal of HAS’s third-party complaint against Hartford. We agree at the outset with Hartford’s contention that HAS is not a third-party beneficiary under Hartford’s 1974 stop-loss agreement with PAID. The agreement itself states that it is solely between PAID and HARTFORD. We can find no intent to benefit HAS or any other party except PAID, and the-agreement is not ambiguous. The general rule applicable to reinsurance agreements is that, in the absence of provisions to the contrary, a reinsurance agreement operates solely as between the reinsurer and the reinsured. McDonough Const. Co. v. Pan American Surety Co., 190 So.2d 617 (Fla. 1st DCA 1966). HAS is bound by the provisions of its contract with PAID. HAS had duties relating only to management of the program, and its operations were in no way insured or protected by the reinsurance agreement. HAS is bound by the rule (correctly stated in its brief) that in order to establish a claim based upon the stop-loss agreement, HAS must be shown to be a direct and intended beneficiary of the agreement, not merely an incidental beneficiary. American Surety Co. of New York v. Smith, 100 Fla. 1012, 130 So. 440 (1930); Marianna Lime Products Co. v. McKay, 109 Fla. 275, 147 So. 264 (1933). It is further not disputed by HAS, that in order for this court to find the requisite intent to entitle HAS to sue as a third-party beneficiary, it must be shown that both PAID and Hartford intended to benefit HAS. On this point, HAS is bound by the plain and unambiguous language of the agreements themselves, and its own pleadings, which foreclose a finding of such intent.

We think there is some confusion in HAS’s argument concerning the scope of the Hartford reinsurance agreement. HAS’s brief (page 2) states that if premiums received from HRS exceeded total pharmacy claims paid, PAID made a profit; but if claims exceeded premiums, PAID would suffer a loss. The brief further states:

“To insure its risk of loss under the contract, . . . PAID entered into a reinsurance agreement by which Hartford agreed to reimburse PAID in the event contract claims exceeded premiums.” (HAS brief, page 2)

However, HAS’s brief (page 12) also contains an entirely different statement of this coverage:

“The agreement provides for Hartford to reimburse PAID,should it incur a loss in performing the 1974 contract. Such reimbursement would cover the losses of PAID, including the fees required to be paid to HAS and any other losses suffered by HAS as a result of its subcontract.”

We have examined the pleadings and documents,, but we can find no support for the contention that the reinsurance agreement provided coverage for sums owed by PAID to HAS, nor does it provide coverage for “any other losses suffered by HAS as a result of the subcontract” as argued by HAS. The reinsurance agreement defines “Covered Services” as services “for which a prescription is filled by a pharmacy” during the period covered by the reinsurance agreement. Reimbursement, under the agreement, was at the rate of ninety (90) per cent for covered services arranged, provided, reimbursed or paid for by PAID to the extent that the sum of the cost of such services, plus a claims administration expense allowance equal to 5% of such cost, exceeds 95% of the income received by PAID from HRS. We can conceive of no circumstances under which any payment made by Hartford to PAID would exceed the amount of drug claims actually incurred by PAID. It is therefore difficult to understand the basis for HAS’s argument that the agreement provided coverage for losses sustained by HAS.

HAS has also attempted to allege a cause of action against Hartford based upon indemnity, on the theory that Hartford, not HAS, was responsible for any injury to HRS. HAS argues in this connection that but for Hartford’s wrongful refusal to pay PAID for its alleged loss covered by the stop-loss agreement, PAID would not have been compelled to use 1976 funds to pay 1974 contract claims — thus, HRS would have suffered no loss. We are unable to accept HAS’s allegation that Hartford’s failure to fulfill its obligations to PAID under the stop-loss agreement “caused” PAID to utilize 1976 contract premiums to satisfy its obligations under the 1974 contract. The allegation as to causation is a conclusion which does not follow from the facts alleged. That PAID did (through HAS) wrongfully pay out the 1976 funds is a fact; but Hartford’s failure to pay to PAID funds due under a separate and distinct contract (the 1974 contract) cannot logically be the “cause” of the wrongful payment.

This claim of “implied contract of indemnity” rests also upon HAS’s claim of status as a third-party beneficiary of the stop-loss agreement, a contention we have already rejected. The claim of a right to indemnity must therefore also fall.

We find no basis for the contention that Hartford is guilty of tortious conduct. We fail to find within the allegations of the counterclaim any allegation of breach of duty by Hartford other than that arising under the reinsurance contract, as to which HAS was neither a party nor a third-party beneficiary. Nor is there any allegation of common liability, which would be necessary to support a claim of contribution. Similarly, we can find no basis upon which HAS may recover by way of subrogation against Hartford. The claims of HRS against PAID and HAS arise out of the misapplication of funds paid out by HRS under the 1976 contract, as to which Hartford has no liability.

For the foregoing reasons, the orders of dismissal, with prejudice, are affirmed.

McCORD and SHIVERS, JJ., concur.


text:
    MIAMI DADE WATER & SEWER AUTHORITY and Old Republic Insurance Company, Appellants, v. Robert FUENTES, Appellee.
    No. QQ-153.
    District Court of Appeal of Florida, First District.
    March 12, 1980.
    Douglas A. McDuff, of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellants.
    George M. Nachwalter, of Nachwalter, Christie & Falk, Miami, for appellee.
   SHIVERS, Judge.

This appeal is from an Order of the Judge of Industrial Claims finding that claimant suffered a compensable back injury on July 26, 1976; that claimant reached maximum medical improvement on April 18, 1978; and that claimant was temporarily and totally disabled between July 26, 1976, and December 13, 1976, and again between January 24, 1977, and April 17, 1978. Appellants argue that the findings as to the maximum medical improvement date and as to the period of temporary total disability are not supported by competent, substantial evidence. We agree and reverse.

The only active treatment received by claimant after February 11, 1977, was for a condition unrelated to the accident. On June 2, 1977, claimant was examined by a Dr. Ortiz who was of the opinion that claimant had reached maximum medical improvement and was left with a 15% permanent partial impairment of the body. On April 18,1978, claimant was re-examined by Dr. Ortiz who repeated the opinions expressed following the examination of June-2, 1977. Between June 2, 1977, and April 18, 1978, claimant was re-examined by two doctors who had previously examined claimant. Neither doctor offered claimant treatment. The record does not support the findings that claimant reached maximum medical improvement on April 17, 1978, and that claimant was temporarily and totally disabled between June 2,1977, and April 17, 1978. We hold that claimant reached maximum medical improvement on June 2, 1977; that permanent partial benefits are to begin on that date, and that the award ■ of temporary total benefits for the period after June 2, 1977, is reversed.

The order is reversed and remanded for proceedings consistent herewith.

ERVIN and SHAW, JJ., concur.


text:
    SECURITY ALUMINUM WINDOWS and United States Fidelity and Guaranty Company, Appellants, v. Marion SMITH, Appellee.
    No. QQ-248.
    District Court of Appeal of Florida, First District.
    March 12, 1980.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Kevin R. O’Connell, of Spencer & Taylor, Miami, for appellee.
   PER CURIAM.

Appellants, Security Aluminum Windows and United States Fidelity and Guaranty Company, bring this appeal from a final workers’ compensation order entered July 14, 1978. The order awarded appellee, Marion Smith, permanent total disability benefits. Appellants present the following points on appeal:

1. Whether there is competent, substantial evidence to support a finding that claimant is permanently, totally disabled.
2. Whether there is competent, substantial evidence to support an award for attendant services of $35 per day to claimant’s daughter for essentially household duties.
3. Whether the trial judge’s failure to give adequate notice of trial constitutes denial of due process of law.

We reverse and remand for new trial on Point 3.

Appellee, aged 49 with a ninth grade education, has a job history in heavy labor. On May 12, 1977, she injured her back at work making windows for appellant employer, after she bent over to pick up some aluminum. Claim was made for all workers’ compensation benefits to which appel-lee might be entitled, including nursing services. Several hearings were held before the deputy commissioner, the last on July 11, 1978. The appellants did not receive written notice of this hearing until July 10, 1978. The appellants properly objected that they had received inadequate notice of this hearing.

The deputy commissioner found that ap-pellee had a 20% permanent partial impairment of the body as a whole due to her low back injuries, but that she was permanently and totally disabled because of her total loss of wage earning capacity as a result of the industrial accident. He also found that ap-pellee’s daughter was entitled to $35.00 per day from May 24, 1977, until July 22, 1977, for attendant services rendered to appellee. However, he did not specifically make an award for such attendant services in the decretal portions of the order.

As to Point 3, we agree with the appellants that the last hearing on the cause should not have been held where written notice was not received until only one day before the hearing. Although no new issues were explored or developed at the last hearing, appellants still had a right to full and adequate notice. § 440.25(3)(a), Fla.Stat. (1977); Lundy’s Market, Inc. v. Wexler, IRC Order 2-3739 (March 20, 1979). On Point 3, the order is accordingly reversed, and the case is remanded for new trial, rendering unnecessary our addressing the merits of Points 1 and 2.

REVERSED and REMANDED.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: COBB, Judge.

text:
    STATE of Florida, Petitioner, v. David Scott CRITZER, Respondent.
    No. 79-115.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Rehearing Denied March 28, 1980.
    Steven Wallace, Asst. State’s Atty., and Lawrence A. Kaden, Staff Legal Asst., Orlando, for petitioner.

      H. Scott Gold, Asst. Public Defender, Orlando, for respondent.
   COBB, Judge.

The state petitions this Court to issue a writ of common law certiorari to review a final order of the circuit court of the Ninth Judicial Circuit sitting in its review capacity. The circuit court affirmed a county court’s order dismissing the state’s Notice to Appear which had charged defendant with petit theft in violation of Section 812.-014, Florida Statutes (1977). The county court stated that the Notice to Appear failed to state the essential elements of the crime of petit theft.

We find that the notice to appear was sufficient to inform the defendant of the nature of the offense charged. Compare, Martinez v. State, 368 So.2d 338 (Fla.1978).

We doubt that the legislature and Florida Supreme Court intended Notices to Appear issued under field conditions by law enforcement officers to be held to the same strict standards as are indictments and in-formations. Prosecution of misdemeanors by Notices to Appear is given a special section in the Rules of Criminal Procedure, as is prosecution in county court for violation of ordinances by affidavit or docket entries. See McElroy v. Brown, 311 So.2d 786 (Fla. 4th DCA 1975), cert. denied, 319 So.2d 30 (Fla.1975). Moreover, Rule 3.125(g) specifically lists what, is required to appear in a valid notice to appear. The Notice' to Appear sub judice named the offense, the statute number, and included a narrative which was sufficiently detailed to enable the defendant to prepare a defense without being embarrassed. The requirements of Rule 3.125(g) were satisfied. See The Florida Bar. Re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977); In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Art. V, § 2[a]), 281 So.2d 204 (Fla.1973).

For these reasons, the petition for writ of certiorari is granted; the order of the circuit court is vacated and the cause is remanded with directions to the circuit court to vacate the order of the county court and remand with directions to reinstate the notice to appear.

It is so ordered.

CROSS and ORFINGER, JJ., concur

      . See Rules 3.125, 3.140(a)(2), Fla.R.Crim.P.


text:
    Thomas C. GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 79-712.
    District Court of Appeal of Florida, Second District.
    March 12, 1980.

      David A. Demers, of Demers & Demers, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On this appeal Thomas C. Gray, having pled nolo contendere to the crime of robbery reserving his right to appeal, challenges the denial of his motions to suppress certain tangible evidence and his confession.

Appellate review of issues arising out of a plea of nolo contendere is allowable only if the issues raised are dispositive of the case, Brown v. State, 376 So.2d 382 (Fla.1979); First Amendment Foundation of Florida, Inc. v. State, 364 So.2d 450 (Fla.1978). We temporarily relinquished jurisdiction of the case to the trial court for a determination of whether the ruling on appellant’s motion to suppress the tangible evidence was dispositive of the case. Gray v. State, 379 So.2d 435 (Fla.2d DCA 1980).

This court has now been duly notified of the trial court’s determination that its ruling on the motion to suppress tangible evidence standing alone is not disposi-tive of the case. Accordingly, on the authority of Brown v. State, supra, this appeal is dismissed. However, the trial court must allow appellant thirty days from the date of issuance of our mandate within which to withdraw his plea, Brown v. State, supra, and shall grant any such motion unless the state is able to establish prejudice as a result of the delay caused by this appeal. See Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA 1980).

GRIMES, C. J., BOARDMAN and RYDER, JJ., concur.

      . As a matter of law, the ruling on appellant’s motion to suppress his confession may not be considered dispositive of the case for the purpose of this appeal, as we stated in our prior opinion. Gray v. State, 379 So.2d 435 (Fla.2d DCA, Feb. 1, 1980); Brown v. State, 376 So.2d 382 (Fla.1979).


author: BOARDMAN, Judge.

text:
    David Lee CLINGAN, Appellant, v. Margaret R. DUFFEY, Appellee.
    No. 79-883.
    District Court of Appeal of Florida, Second District.
    March 12, 1980.

      Lydia S. Castle, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Rodney G. Gregory, Asst. Atty. Gen., Tallahassee, for appellee.
   BOARDMAN, Judge.

The trial court awarded child support ar-rearages and ordered appellant husband to continue paying $100 per week support for his five children pursuant to a decree of modification of the original divorce decree entered in 1972. We reverse.

Two of the children were over nineteen years of age and three of the children were under age nineteen at the time of the entry of the trial court’s order. The 1972 modification decree was entered pursuant to a stipulation that the husband was to pay $100 per week child support, “said sum to be proportionately reduced when and as each such child ceases to be maintained by the mother during the minor dependency of said child, or thereafter.” The wife sought an increase in child support, but the trial court granted - the husband’s motion to strike the wife’s motion for an increase.

The status of a person, i. e., the age of majority, is established by the law of the domicile of that person. 10 Fla.Jur.2d Conflict of Laws § 6 (1979); 16 Am.Jur.2d Conflict of Laws § 12 (1979). The children of the parties here are domiciled in Alabama, and under the law of that state one attains the status of an adult at age nineteen and loses his or her claim to child support. Ala.Code 1975 tit. xxvi, ch. 1, § i; Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978). Thus the trial court erred in refusing to proportionately reduce the weekly child support amount to reflect the termination of the husband’s duty to support Lee Ann and Karin Lynette, both of whom were over nineteen on the date of the trial court’s order entered on March 22, 1979, nunc pro tunc to February 14, 1979.

We find no merit to the other issues raised by the husband.

Accordingly, the trial court’s order is REVERSED. The cause is REMANDED with directions to reduce the future payment amount to $60 per week and to reduce the amount of arrearages by $20 per week from the date of Lee Ann’s nineteenth birthday to the date of her marriage (from which time the husband was given appropriate credit on the arrearage amount) and by a further $20 per week from the date of Karin Lynette’s nineteenth birthday to the date of the trial court’s order.

GRIMES, C. J., and SCHEB, J., concur.