text:
    LOTSPEICH COMPANY, a Florida corporation, Appellant, v. NEOGARD CORPORATION, Appellee.
    No. 81-882.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied Aug. 4, 1982.

      Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

In an action for contribution against a joint tort-feasor the trial court’s personal dislike for the terms of a good faith settlement between the tort victim and defendant/third-party plaintiff could be no basis for directing a verdict for the third-party defendant where the reasonableness of the settlement was agreed to by all the parties. Settlement agreements are highly favored in the law and will be upheld whenever possible because they are means of amicably resolving doubts and preventing lawsuits, Pearson v. Ecological Science Corp., 522 F.2d 171 (5th Cir. 1975), reh. denied, 525 F.2d 1407 (5th Cir. 1975), cert. denied in Skydell v. Ecological Science Corp., 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976); Coe v. Deiner, 159 So.2d 269 (Fla. 2d DCA 1964); Russell v. Shelby Mutual Insurance Company, 128 So.2d 161 (Fla. 3d DCA 1961), cert. disch., 137 So.2d 219 (1962), and should not be invalidated or, as here, collaterally defeated by the court, unless there is (1) failure of the agreement to satisfy required elements for a contract, (2) illegality, (3) fraud, (4) duress, (5) undue influence or, (6) mistake, 15 Am.Jur., Compromise and Settlement, § 27, none of which are alleged or shown to be present in this case.

Where the parties to the third-party litigation stipulated on the record that a settlement had been effected with the tort victim, fixing the amount of damages at $600,000.00, and that the settlement would not be an issue in the third-party action for contribution, it was error to direct a verdict on grounds that the third-party plaintiff failed to produce the tort victim for testimony regarding the terms or effect of the settlement.

Pretrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and should be strictly enforced. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla. 1971).

Appellee asserts that the trial court can be affirmed for the reason that there was no evidence presented upon which a jury could have returned a verdict for the appellant. Upon examination of the record we must disagree. There is evidence, though conflicting, or susceptible to different reasonable inferences, tending to prove

third-party plaintiff’s case, therefore the issues should have been submitted to the jury. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979), cert. den., 378 So.2d 347 (Fla.1967).

Reversed and remanded for a new trial.

      . The first $500,000.00 of the settlement was payable upon execution of the release documents and the balance of $100,000.00 was to be paid after trial on the third-party complaint for contribution, to insure that the tort victim, who was moving his residence to Georgia, would return to give testimony. The court’s displeasure with the agreement is expressed several places in the record:
      [at pre-trial conference]
      d: * * * * *
      The Court: You mean to say he has got a hundred thousand dollars riding on the truthfulness of his testimony?
      Mr. Reese [for appellant]: No, no. He is going to get the hundred thousand after this case is finished.
      The Court: Regardless of what his testimony is?
      Mr. Reese: Regardless. Mr. Demahy [for appellant]: It was just to make him accessible, Judge. You can impeach him if he testifies differently.
      Mr. Reese: He has been deposed twice. He is not changing his testimony.
      The Court: I think that is horrible. I really, really do.
      * * * * * *
      The Court: If you have got a guy sitting with a hundred thousand dollars over his head to testify, my God, I’m about to weigh it and throw you out of here. I think it is terrible.
      I am opposed to the Mary Carter agreements. I am opposed to any of those little, cute agreements that we are going to hold a thousand dollars back depending on his testimony.
      Mr. Reese: It is not depending on anybody’s testimony.
      The Court: ...
      Let us try the case. I do not know what I am going to do.
      I am mad, but that jury is sure going to know that you are going to pay him a hundred thousand dollars for being here today. That is the least thing I will do.

      . The reason given on the record for directing a verdict is failure to introduce the release document as evidence—a point which had not been raised by third-party defendant. The trial court denied a motion to re-open the case for the purpose of introducing the original release document, which on these facts, would be an abuse of discretion. Bieiey v. Bieley, 398 So.2d 932 (Fla. 3d DCA 1981); Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975). The proffered release shows that the injured plaintiff gave complete satisfaction to appellee as well as appellant as joint tort-feasors, giving appellant the right to contribution. Woods and G.E.I. C.O. v. Withrow, 413 So.2d 1179 (Fla.1982); § 768.31, Fla.Stat. (1979).
      That the court’s disrelish for the settlement and release terms was the real basis for entering judgment is evidenced by remarks made in response to the motion to re-open the case:
      The Court: Counsel, I already told you I do not take liking to that kind of release. I thought it was bad to start with. So, if you are going to appeal to my equity, to reopen, have the man here.

      . Counsel for appellee made the following comments in opening statement to the jury, confirming the oral agreement as to the issues to be tried:
      Mr. Gaebe: David Frazier [victim] has been fully compensated for his injuries. We have agreed that the payment was reasonable and we have agreed or conceded to the fact that David Frazier probably was injured or was injured as a result of the toxic fumes probably from our product. . .
      These are the issues you will be deciding: Are we negligent? Did we cause this accident? To what extent?


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alexander HARVIN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-672.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied Aug. 4, 1982.
    Alexander Harvin, in pro. per.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellant, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


author: ANSTEAD, Judge.

text:
    Thomas Edward ROSSI, Appellant, v. STATE of Florida, Appellee.
    No. 80-2029.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied July 28, 1982.

      Richard L. Jorandby, Public Defender, and Jon May and Ron McRae, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This appeal presents the issue of whether, when a defendant’s sole defense to the crimes charged is insanity, the state, in an effort to meet its burden of proving the requisite level of intent to commit the crimes and to negate the insanity defense, may produce evidence of a similar criminal act committed by the defendant some ten years previously. The trial judge permitted such evidence to be admitted and this court agrees with his ruling.

Appellant Thomas Edward Rossi was convicted of kidnapping, sexual battery, and two counts of attempted second degree murder. These convictions resulted from a May 23, 1980 incident in which appellant shot and blinded the victim as she was driving on Sample Road in Fort Lauder-dale; kidnapped her under the pretext of taking her to a hospital; committed a sexual battery upon her in his apartment; and fled. After a pretrial hearing, the trial judge ruled that the state could introduce evidence that appellant, on August 21,1970, had struck another woman with his car as she rode her bicycle in New Paltz, New York; kidnapped her under the pretext of taking her to a doctor; sexually attacked her in the woods; and fled. In ruling such evidence admissible, the judge took into consideration the fact that appellant had been imprisoned during most of the period between the two crimes, a factor which he felt made evidence of the earlier crime more relevant than it might otherwise have seemed. The judge also instructed the jury on several occasions that evidence of the earlier crimes was to be considered only for the limited purpose of showing appellant’s “motive, intent, preparation, plan, knowledge, or the absence of mistake or accident” regarding the crimes for which appellant was then on trial.

In his brief appellant states that the “only question before this court is whether appellant’s mental condition in 1970 was relevant to his mental condition in 1980.” The state responds that evidence of the collateral crimes was necessary not only to negate the insanity defense but also to prove the requisite level of intent necessary to convict appellant of the crimes charged.

In Florida a defendant is entitled to be acquitted if he was insane at the time of the offense:

A person cannot be legally punished for an act committed by him while insane, although such act would be criminal if done by a sane person. If by reason of insanity a person is incapable of forming intent, he cannot be regarded by the law as guilty. The mental derangement which will excuse must be of such a nature as to render the one afflicted incapable of forming a criminal intent. (Footnote omitted.)

14 Fla.Jur.2d Criminal Law, § 27 (1979).

Since sanity is the normal and usual condition of mankind and the law presumes that every individual is sane, the burden devolves on the one charged with a crime to overcome such presumption and establish his plea of insanity by showing that he was legally insane at the time of the commission of the act in question. But where an accused has raised a reasonable doubt as to his sanity at the time of the offense, or even where such reasonable doubt appears from the prosecutor’s case, the sanity of the accused must be proved by the prosecution as any other element of the offense, beyond a reasonable doubt. (Footnotes omitted.)

14 Fla.Jur.2d Criminal Law, § 35 (1979). See also State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978).

In essence appellant’s defense in this case was that his actions against the victim resulted from an isolated and temporary mental breakdown. In considering the validity of such assertion we believe the jury was entitled to know that the appellant had engaged in virtually the identical conduct on a prior occasion. This evidence, of course, may give rise to differing inferences. One inference may be that the appellant’s conduct, as opposed to being an isolated instance, was merely one episode in a series of wilful actions. Another inference may be that the alleged mental instability of the appellant is one of long standing and the occurrence of the prior episode simply adds credence to its existence. Regardless of these possibly conflicting inferences, however, we cannot accept the appellant’s contention that the prior act was not relevant to a determination of his mental state at the time of the subsequent act.

We also cannot agree that the prior act was too far removed in time to be relevant. While there may come some point in time after which evidence of a defendant’s past criminal activity is too remote to be relevant, this point in time will vary from case to case. See McGough v. State, 302 So.2d 751 (Fla.1974), Gluck v. State, 62 So.2d 71 (Fla.1952), Crosby v. State, 237 So.2d 286 (Fla.2d DCA 1970), Jones v. State, 398 So.2d 987 (Fla. 4th DCA 1981). Recently, this court determined that evidence of collateral crimes occurring as much as eighteen years prior to the offense for which the defendant was on trial was properly admitted. Espey v. State, 407 So.2d 300 (Fla. 4th DCA 1981). Espey is distinguishable from the case at bar in that it involved a continuing pattern of sexual criminality on the part of the defendant towards his children and grandchildren, whereas the two crimes at issue here were committed upon adult victims and took place at different times and places. In our view, however, the two attacks at issue here were of such remarkable similarity as to render evidence of appellant’s mental state during the earlier attack relevant at his trial for the more recent attack. See Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), pet. for rev. denied 392 So.2d 1373 (Fla. 1981). We agree with the trial court that such relevance is underscored by the fact that appellant was incarcerated for most of the period between the two offenses and hence was precluded from reenacting the offense much sooner than he actually did.

Accordingly, having found no error by the trial court, we affirm the judgment and sentence.

HERSEY and HURLEY, JJ., concur.

      . In Williams v. State, 110 So.2d 654, 663 (Fla.1959), cert. denied 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), the Supreme Court held that “evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.”

      . The Florida Supreme Court, although treating the issue in a different context, has noted that a defendant pleading insanity may end up proving himself guilty while trying to establish his insanity. Parkin v. State, 238 So.2d 817 (Fla. 1976).


author: DOWNEY, Judge. PER CURIAM.

text:
    Justin V. GIDMAN, Alexander L. Suto, and Steven I. Greenwald, Appellants/Cross-Appellees, v. CATHOLIC SERVICE BUREAU, Cross-Appellant, v. CITY OF BOCA RATON, a municipal corporation, and Jefferson H. Milner, John J. Meyer, Randolph H. Femmer, William Konrad, and Carol G. Hanson, in their respective capacities as members of the City Council of the City of Boca Raton, County of Palm Beach, Appellees.
    No. 81-943.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied Aug. 4, 1982.

      Justin V. Gidman, Alexander L. Suto, Steven I. Greenwald, and Jeffrey Watkin of Suto, Greenwald & Gidman, P.A., Boca Ra-ton, for appellants/cross-appellees.
    Byron B. Mathews, Jr., of McDermott, Will & Emery, Miami, for cross-appellant.
    M. A. Galbraith, Jr., City Atty., Boca Raton, for appellees.
    Robert A. Eisen of Marchbanks, Bell & Eisen, P.A., Boca Raton, for intervenor-Florence Fuller Child Development Center, Inc.
   DOWNEY, Judge.

Appellee, City of Boca Raton, contracted to contribute matching funds for use in the operation of a child day care center. Appellants sued to enjoin the contribution, contending that it is expressly prohibited by the City Charter. From an adverse summary judgment appellants have perfected this appeal.

The record reflects that on September 29, 1980, the City Council of Boca Raton, by resolution, authorized the mayor and city clerk to contract with the State of Florida, Department of Health and Rehabilitation Services for the City to contribute the sum of $29,730.10 to match State and Federal funds to be used for the operation of the Florence Fuller Child Development Center, a tax exempt child care center in Boca Raton, which provides subsidized child care services for individuals who meet the organization’s eligibility requirements for assistance. Appellants, residents and taxpayers of the City, filed a suit for injunction, asserting 1) the City Council exceeded its Charter authority in spending taxpayers’ money for a non-municipal purpose; and 2) the contribution constituted an expenditure of public funds for the indirect benefit of a charitable organization in violation of Section 7.06 of the City Charter. Appellees answered, contending that the contribution did not violate the City Charter because the Florence Fuller Child Development Center was an educational organization and thus did not fall within the purview of the alleged charter limitation. Additionally, the appellees argue the City was authorized to make the questioned contribution under Article VIII, Section 2(b), Florida Constitution, and the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes (1973).

Both parties argued there was no genuine issue of material fact and moved for summary judgment. The trial court granted summary judgment for appellees because it found the Center is an educational organization and is not “a religious, charitable, benevolent, civic or service organization so as to make this a prohibited transaction under the provision of 7.06 of the Charter.” The judgment further provided:

[T]he Court concludes that a functional test should be applied in transactions of this nature and that test should be determined in light of whether or not the service which is being performed on a contractual basis is, in fact, a municipal service of which the City under the Constitution of the State of Florida and its Charter is permitted to engage.

Initially, we would dispose of the last of the above mentioned defenses by simply pointing out that Article VIII of the Constitution and the Home Rule Powers Act, which grant broad powers to municipalities, are both expressly limited. The Constitution authorizes municipalities to exercise “any power for municipal purposes except as otherwise provided by law.” Article VIII, § 2(b) (emphasis added), while the statute provides that “It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter....” § 166.021(4), Fla. Stat. (1979). The Charter provision involved in this case is Section 7.06 of the Boca Raton City Charter, which provides:

7.06 Expenditure of Funds Limited
No city funds shall be expended in any manner whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization.

In view of the foregoing, we hold the broad grant of Home Rule Powers is limited by Section 7.06 of the Boca Raton City Charter.

Thus, it appears the focal point of the controversy between these parties is whether the Florence Fuller Child Development Center is a charitable organization. No one argues that the City’s contribution does not accrue either directly or indirectly to the Center. Appellees’ main argument is that the Center is an educational organization and thus the contribution is not prohibited by Section 7.06 of the Charter.

The affidavit of the executive director of the Center is attached to the appellees’ motion for summary judgment. Paraphrased, it states, in pertinent part, that the Center is a nonprofit educational organization providing infant nursery, preschool, after school, and summer programs for economically disadvantaged children. It is a licensed child care facility employing seventeen teachers, two social workers, one nurse, two cooks, recreational directors and others. The sources of its funds are 61% public, 15% thrift shop, 12% United Way, 8% contributions, and 4% miscellaneous. Finally, the affidavit states that “[t]he Center is a tax exempt organization under section 501(c)(3) of the Int. Rev. Code as an ‘educational, charitable organization.’ ”

The reflections of this record make it quite clear that the Center is an educational organization. While caring for the enrolled children it provides education of various sorts. This, no doubt, is the functional test the trial judge mentioned in the judgment under review. However, that function in no way diminishes the fact that it is also a charitable organization caring for and teaching disadvantaged children. The courts have been called upon from time to time to define the term “charitable organization.” The definition most frequently presented can be found in In re Coleman’s Estate, 66 Idaho 567, 163 P.2d 847, 848 (1945), wherein the court stated:

The distinctive features of a charitable organization are that it has no capital stock and no provision for making dividends or profits, but derives its funds mainly from public and private charity, and holds them in trust to be expended for charitable and benevolent purposes.

Other definitions found in 6A, Words and Phrases, Charitable Organizations, p. 345-348, are:

“Charitable organization” is one organized for some benevolent purpose for benefit of the public or an indefinite class thereof. Michael v. St. Paul Mercury Indem. Co., D.C.Ark., 92 F.Supp. 140, 144.
******
Y.M.C.A. organized to improve spiritual and mental condition of young men and supported as agency of community fund is “charitable organization”. Carpenter v. Young Men’s Christian Ass’n, 86 N.E.2d 634, 324 Mass. 365.
* * * * * *
“Charitable organization” has its origin in donations of benevolent persons or in grants from state, and is conducted, not for pecuniary profit of managers or owners, but for promotion of welfare of others. Stearns v. Association of Bar of City of New York, 276 N.Y.S. 390, 154 Misc. 71.
******
Young Men’s Christian Association of Chicago held a “charitable organization” engaged in charitable work, and its personal property used in conducting hotel, cafeteria, news stand, laundry, and haberdashery not subject to taxation by city, since primary object was charity rather than profit, and services furnished in addition to lodging were merely incidental services necessary to comfort of lodgers. People v, Y.M.C.A. of Chicago, 6 N.E.2d 166, 365 Ill. 118.

We would be remiss, perhaps, if we did not mention in passing that the function served by the Florence Fuller Child Development Center is a laudable one; the services are needed and no suggestion is made that this particular center is anything other than an excellent facility. The issue here, however, is one of capacity and authority for the City to expend taxpayers’ money for this particular purpose. The provisions of section 7.06 of the Charter were ratified by the electorate in Boca Raton in February, 1977, some four years after enactment of the Home Rule Powers Act of Chapter 166, Florida Statutes (1973). So we must assume the people of Boca Raton did not want their tax money contributed to charitable organizations even if such a contribution would otherwise be a proper municipal purpose.

Catholic Services Bureau, Inc., was allowed to intervene in the suit. However, the final judgment dismissed the Bureau with prejudice. That aspect of the judgment is the subject of a cross appeal, which we have considered and found to be without merit.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to enter summary final judgment for the appellants.

REVERSED AND REMANDED, with directions.

HERSEY and DELL, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellees’ petitions for rehearing are denied. However, it appearing that the question involved is one of great public importance, the following question is certified to the Supreme Court of Florida:

Does Section 7.06 of the Charter of the City of Boca Raton, which provides that
[n]o city funds shall be expended in any manner whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization
prohibit the City Council from contracting with the State of Florida Department of Health and Rehabilitative Services, pursuant to which the City is obligated to contribute public funds to the Department to match State and Federal funds to be used in the operation of a child day care center such as the Florence Fuller Child Development Center described in this case?

DOWNEY, HERSEY and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Janet Ann VARGA, Bett Ann Noss a/k/a Beth Ann Nuss, Thomas Robert Burns, David Grayson Bartlett, Frederick Garcia, Timothy John Machamer, Joseph Torregrosa, Carl Marty Gilliespie, James Eugene Hanley, Carl Eugene Warner, and Phillip Lynn Antill, Appellees.
    No. 81-1740.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearings Denied Aug. 11, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Douglas N. Duncan of Foley & Colton, P.A., West Palm Beach, for appellee, Thomas Robert Burns.
    Mark C. Perry, Fort Lauderdale, for ap-pellees, Carl Eugene Warner and Phillip Lynn Antill.
    Richard L. Jorandby, Public Defender, and Charles Peters, Asst. Public Defender, West Palm Beach, for appellee, David Gray-son Bartlett.
    Arthur E. Huttoe and John Lipinski, Miami, for appellees, Janet Varga, Beth Nuss, Frederick Garcia, Timothy Machamer, Joseph Torregrosa, and James Eugene Han-ley.
    Richard G. Ozelie of Law Offices of Richard G. Ozelie, Fort Lauderdale, for appellee, Carl M. Gilliespie.
   PER CURIAM.

The State appeals from an order discharging various defendants charged with trafficking and conspiracy to traffic in marijuana. The trial court found that Rule of Criminal Procedure 3.191 governing speedy trial requires that defendants be brought to trial within ninety days of the denial of a motion to discharge regardless of which side has taken a continuance. In construing Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), to this effect, the trial court overlooked the following statement of the Supreme Court in Fluellen :

We expressly hold that the ninety-day provision in rule 3.191(d)(3) is applicable only after a “pending motion for discharge” has been denied by the court on the grounds of a continuance or delay attributable to the accused. We reject the contention that this ninety-day provision is applicable whenever the state seeks a continuance. Such was not the Intent of the rule, and we recede from the implication in Negron v. State, 306 So.2d 104 (Fla.1974), that this ninety-day provision applied to any continuance by the state. We note that this Court in Negron found that the defendant was entitled to a discharge because the 100-day delay after the state continuance was found to be unreasonable on constitutional grounds.
At 969.

We conclude, therefore, that the trial court erred in its technical application of the speedy trial rule.

The court also found that the defendants’ constitutional rights to speedy trial had been violated. The landmark decision on constitutional speedy trial is Barker v. Win-go, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). There, the United States Supreme Court concluded that constitutional speedy trial questions are to be determined on a case-by-case basis applying the four elements which were there listed as: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted his right to be tried speedily, and (4) prejudice to the defendant caused by the delay. The Barker v. Wingo precedent has been recently discussed with clarity in Judge Cobb’s opinion in State v. Bonamy, 409 So.2d 518 (Fla. 5th DCA 1982), (7 FLW 421).

Although the trial court’s order recites that a constitutional violation occurred, no factual findings are made in support of the conclusion, and our review of the record discloses an absence of evidence on several of the four requirements. We, therefore, reverse the discharge based upon constitutional speedy trial grounds and remand to the trial court for further proceedings. Defendants may reassert their motion for discharge based on constitutional grounds in accordance with the aforecited precedents.

REVERSED AND REMANDED.

BERANEK and HURLEY, JJ., and BURNSTEIN, MIETTE K., Associate Judge, concur.


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. DE ANZA CORPORATION, d/b/a De Anza Mid-Florida Lakes Mobile Home Park, Appellee.
    No. 81-606.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.
    Rehearing Denied July 16, 1982.

      Jim Smith, Atty. Gen. and Joanna R. Martin, Asst. Atty. Gen., Tallahassee, for appellant.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee; and Marybeth Pullum of Pullum & Pullum, Leesburg, for appellee.
   COWART, Judge.

This case involves the sufficiency of a five count civil complaint brought by a state attorney on behalf of the State of Florida and hundreds of named individual lessees of mobile home lots against a mobile home park owner.

The complaint alleges that the mobile home park owner (the defendant-landlord) and its predecessors in title enticed or induced the lessees to buy or place mobile homes on rental lots and thereafter proposed to raise rents as leases expired and reduced services that the lessees were allegedly led to believe would be permanently provided.

Count I of the complaint complains that the lessees now face the dilemma of agreeing to pay higher rentals and accepting reduced services or incurring the costs and expenses of moving their mobile homes to other mobile home parks. It seeks to have the court declare the circumstances a deceptive and unfair trade practice as described in section 501.204, Florida Statutes (1979), and to have the landlord enjoined from reducing services or increasing rental beyond the compounded cost of living increases since the date of such “inducement.” Count II was brought under the authority of section 83.761(4), Florida Statutes (1979), which gives the state attorney authority to seek injunctions of violations of the “Florida Mobile Home Landlord and Tenant Act,” Chapter 83, Part III, Florida Statutes (1979). It seeks to have the court declare the landlord’s prospective rental structure to be “unconscionable” within the meaning of section 83.754 of the Act and to have the increase enjoined because, based on the landlord’s original purchase price, the proposed rent structure and the annual gross return it produces would constitute an “unconscionably high return on defendants’ investment.” Count III also seeks to have the increase declared to be in violation of section 83.754 as “unconscionable.” The state attorney brought Count III under the authority of Chapter 86, Florida Statutes (1979), generally allowing a court to render declaratory judgments. Count IV, under section 83.761, seeks to have the court find that the defendant violated section 83.753 by failing to act in “good faith” with respect to keeping various promises about security, fences, seawalls, and roads that the landlord allegedly made in letters notifying tenants of rental increases and seeks injunction of “further violations” of section 83.753.

The trial court dismissed the complaint; the State appeals the dismissal of Counts I through IV, but not of Count V.

Section 501.207(l)(b), Florida Statutes (1979), the authority for Count I, allows the enforcing authority to bring “an action to enjoin a supplier who has violated — this part.” “Supplier” is defined in section 501.203(3) as “a seller, lessor, assign- or, or other person who regularly solicits, engages in, or enforces consumer transactions." “Consumer transaction” is defined by section 501.203, Florida Statutes, as “a sale, lease, assignment, award by chance, or other disposition of an item of goods, a consumer service, or an intangible.”

State ex rel. Herring v. Murdock, 345 So.2d 759 (Fla. 4th DCA 1977), held that the sale of real estate lots was not a “consumer transaction,” since a real estate lot is not an item of goods, a consumer service or an intangible. For the same reason, the lease of a real estate lot is not a “consumer transaction,” and the trial court was correct in so holding and in dismissing Count I.

Section 83.754, upon which Count II is based, allows the court to declare “a mobile home lot rental agreement, or any provision of the rental agreement, to have been unconscionable at the time it was made.” Section 83.752(4) defines “mobile home lot rental agreement” as “any mutual understanding, lease or tenancy between a mobile home owner and a mobile home park owner” and contemplates that a contract must exist between the parties before it, or any term of it, may be declared to be unconscionable. While Count II generally alleges that defendant’s rent structure was unconscionable because rental was increased at a rate in excess of the cost of living, it does not allege that the lessees were bound by any agreement to pay the increased rental. Also, contract uncon-scionability requires both substantive and procedural unconscionability. Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865 (Fla. 4th DCA), review denied, 408 So.2d 1094 (Fla.1981). Price-value disparity alone is insufficient to establish substantive unconscionability, Mobile America Corp. v. Howard, 307 So.2d 507 (Fla. 2d DCA 1975), in the absence of a comparison between the particular price being paid by one party to the price being paid by another similarly situated consumer in a similar transaction for a similar facility. Land, of course, is always unique. Here, as in Bennett v. Behring Corp., 466 F.Supp. 689 (S.D.Fla. 1979), there is no allegation that the defendant’s schedule of rentals and increases is in excess of the property’s rental value; the complaint alleges only that the defendant is making too much money on its. capital investment. Procedural unconscionability relates to the individualized circumstances surrounding each contracting party at the time of contracting and cannot be established as a general proposition for a whole range of contracts merely containing similar terms between various persons. See Kohl v. Bay Colony Club Condominium, Inc. Therefore, in addition to failing to allege a specific mobile home lot rental agreement, Count II of the complaint fails to contain a short and plain statement of facts sufficient to establish substantive and procedural un-conscionability and the trial court did not err in dismissing it.

As does Count II, Count III seeks to have the rental increases declared to be “unconscionable” within the meaning of section 83.754. However, while Count II was brought under the authority of section 83.761(4), specifically authorizing the state attorney, upon the sworn affidavit of a mobile home park dweller, to seek declaration and injunction of violations of Part III of Chapter 83, the authority for Count III was alleged to be Chapter 86, which allows one to obtain judicial declaration of a fact upon which the existence of an immunity, power, privilege or right exists. § 86.011, Fla.Stat. (1981). The state attorney alleged that his right to seek a declaration that the rental increases were “unconscionable” under Chapter 88 was dependent on the court’s declaring that the increases were, indeed, in violation of the act. The trial court correctly reasoned that Chapter 86 does not provide an independent source of authority for the state attorney to right every perceived wrong or to initiate any controversy merely by seeking a declaratory decree as to a salient fact and that the state attorney has the authority to seek declarations of violations of Part III of Chapter 83 only under section 83.761(4) and only subject to the conditions stated in that section. Accordingly, Count III was properly dismissed.

As noted above, count IV seeks a declaration that the defendant had not acted in good faith in failing to complete certain improvements promised in letters to tenants and, like count II, seeks injunctive relief under section 83.761(4). Section 83.-763 provides that “every rental agreement or duty within this part imposes an obligation of good faith in its performance or enforcement.” This provision is identical to language in the Uniform Commercial Code. § 671.203, Fla.Stat. (1981). The term “good faith” is defined in section 671.201(19), Florida Statutes (1981), identically as in section 83.43(8), as “honesty in fact in the conduct or transaction concerned.” In the context of the Uniform Commercial Code, this provision adds an additional term into the contract that the parties observe honesty in fact and reasonable standards of fair dealing in their transactions. 1 Anderson on The Uniform Commercial Code § 1-203:4 (1970). The mere assertion that one contracting party has not acted in good faith does not state a cause of action; the provision is but directive and descriptive of conduct, and is not a remedy. Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App.1976). The trial court was correct in dismissing count IV and in holding that a cause of action could not be stated on a mere allegation of bad faith without factual particulars as to some reliance by the other party on defaulted promises of the defendant or as to some particular detriment resulting to a particular party from the failure of a supplier to perform a contractual obligation in good faith.

Accordingly, the final order below dismissing the complaint is

AFFIRMED.

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

      . The “Florida Deceptive and Unfair Trade Practices Act,” chapter 501, part II, Florida Statutes (1979).

      . Appellant urges that a lease is an “intangible” within the meaning of that word in section 501.203 because the lease is sometimes (i.e., for tax purposes) considered an item of intangible personal property. This argument misses the point. Even if a lease of land was itself considered an intangible, this statute would only apply to a supplier who sells or assigns leases as a transaction with the consumer and still would not apply to one who sells or leases the land itself.


author: WENTWORTH, Judge.

text:
    A. O. SMITH HARVESTORE PRODUCTS, INC., an Illinois Corporation, Appellant, v. SUBER CATTLE COMPANY, a Florida Corporation and Florida Farm Bureau Insurance Company, an insurance company authorized to do business in Florida, Appellees.
    Nos. AF-458, AF-459.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Rehearing Denied Aug. 3, 1982.

      R. Jeremy Solomon of Booth & Conner, P. A., Tallahassee, for appellant.
    Dewey M. Johnson and Jack A. Harnett of Johnson, Harnett, Curry & Slay, Quincy, for Súber Cattle Company; E. Harper Field and David P. Heath of Field, Granger, San-try & Mitchell, P. A., Tallahassee, for Florida Farm Bureau, appellees.
   WENTWORTH, Judge.

Appellant Harvestore seeks review of a final judgment, entered pursuant to a jury verdict finding negligence and breach of warranty of fitness. Appellee Florida Farm Bureau Insurance Company (FFB) cross-appeals the order of the trial court denying its post-verdict motion for prejudgment interest. We affirm the final judgment, but conclude that the denial of prejudgment interest was error.

Appellant is a company which manufactures specialized high-moisture feed silos called Harvestores. These silos are designed to be oxygen limiting so that the feed remains moist and may be digested more efficiently by cattle. The result is that less feed is required to establish the desired weight gain than if conventional dry feed is used. Appellee Suber Cattle Co. (Suber) purchased two of these Harvestores in 1967 and 1968. In late August of 1975, the grain unloader in one of the Harve-stores became inoperable. In order to get the grain out of that silo, Súber used a substitute auger which permitted air to enter. In November, 1975, a fire began in that Harvestore and the Quincy Fire Department and Gretna Volunteer Fire Department were called to the scene. The firefighters, not knowing how to fight the fire, used water which made the situation worse. Later, an explosion blew the top off of the Harvestore, and as a result, a substantial portion of Suber’s feed mill complex was destroyed by fire.

FFB paid Súber for the property damage but not for any business loss. Therefore, Súber and FFB brought a suit against Harvestore alleging negligence and breach of warranty. FFB sought reimbursement for the sums paid to Súber, and Súber sought recovery for alleged loss of business. The jury verdict in favor of the plaintiffs attributed 10% of the fault to Súber for negligence.

In its first point on appeal, Harve-store argues that the evidence of business loss presented by Súber was too speculative and conjectural as a matter of law to be presented to the jury. While we agree that the business loss damages might have been more definitively established, the evidence was sufficient to form a reasonable basis upon which the jury could have found the existence and amount of damages. The law requires only that the evidence be of “such certainty as satisfies the mind of a prudent and impartial person.” Twyman v. Roell, 123 Fla. 2, 166 So.2d 215, 218 (1936). Inability to give the exact or precise amount of damages does not preclude recovery. Conner v. Atlas Aircraft, 310 So.2d 352 (Fla. 3d DCA 1975). We therefore decline to disturb the jury verdict.

Harvestore next argues that the verdict was contrary to the law and evidence, because of its contention that no evidence was presented on the existence of a dangerous risk requiring a duty to warn; the evidence showed that the Harvestore was almost fireproof, and safer than conventional silos even when used improperly. Therefore, according to Harvestore, there was no duty to provide instructions. Harvestore’s argument would indicate a misunderstanding of the plaintiffs’ allegations. The special risk asserted is the risk involved in failing to strictly observe the directions for use. The testimony substantiates the unique components of the Harve-store in that in order to process the high-moisture feed, the system must be virtually oxygen free. Several witnesses testified that they understood the reason for not allowing oxygen into the system to be that its presence would impede that process. However, there was no evidence that Harvestore warned its customers of the special risk of spontaneous combustion and fire control if oxygen entered the system. It was that unique aspect of the Harvestore silos which was the basis for the assertion of increased risk from spontaneous combustion and which forms the basis for finding a duty to warn.

Finally, Harvestore raises as error the trial court’s failure to give several allegedly requested jury instructions. However, there is no evidence in the record that the instructions were in fact requested or that there was any objection to their omission. We therefore decline to address this point. Fla.R.Civ.P. 1.470(b).

On the cross-appeal, FFB argues that the trial judge erred in denying its motion for prejudgment interest, because its damages were liquidated at the time it issued the last draft to Súber Cattle Company. Harve-store argues that prejudgment interest was not appropriate in this case, because the amount of damages was in dispute and it could not have known what sum was owed until the jury spoke. See McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA 1979).

Initially we note that the persuasiveness of Harvestore’s argument is diminished if not obliterated by our opinion in Bergen Brunswig Corporation v. Dept, of Health and Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982). However, we need not rely on Bergen Brunswig in determining whether prejudgment interest was proper in this case, because the damages incurred by FFB were fixed at the time it paid Súber and were never disputed in the proceedings below. Therefore, even under the traditional principles for awarding prejudgment interest, it was proper here.

Harvestore also argues that FFB was not entitled to prejudgment interest because the jury did not award it and because the rights of the insurer cannot be greater than those of the insured. Since Súber was not entitled to interest, Harvestore maintains that its insurer could not be. Neither of these contentions has merit.

First, prejudgment interest is permissible even though a verdict fails to allow it or indicate a decision to allow interest. Bro-ward County v. Sattler, 400 So.2d 1031 (Fla. 4th DCA 1981). Second, an insurance company may be entitled to prejudgment interest when a cause is based on breach of warranty and negligence even though the insured in not so entitled. Alarm Systems of Florida v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1981) and Singer v. Durbin, 348 So.2d 370 (Fla. 3d DCA 1977). This case presents such a situation because the damages sought by FFB (reimbursement for sums paid) were separate and distinct from those sought by Súber (recovery of uninsured losses). As previously noted, FFB’s damages were fixed as of a prior date and prejudgment interest should have been awarded.

The final judgment is AFFIRMED, but the order denying FFB’s motion for prejudgment interest is REVERSED, and this cause is REMANDED for further proceedings consistent with this opinion.

ERVIN and SHIVERS, JJ., concur.

      . Evidence at trial indicated that the fire could have been contained by either sealing the Harvestore or using 002.

      . This assumes, although we need not so decide, that Súber would not be entitled to interest.


author: MILLS, Judge.

text:
    Melvin YOUNG, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-5.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Rehearing Denied Aug. 4, 1982.
    Melvin Young, pro se.
    Rosa Carson, Asst. General Counsel, Tallahassee, for appellee.
   MILLS, Judge.

We affirm the Commission’s determination of Young’s presumptive parole release date (PPRD). The Commission properly aggravated Young’s PPRD for the use of a weapon in the commission of the crime for which he was convicted, second degree murder. The aggravating factor is not included within the definition of second degree murder. See Florida Administrative Code Rule 23-19.03(l)(a)l.

' SHIVERS, J., and CAWTHON, Victor M., Associate Judge, concur.


author: ANSTEAD, Judge. ANSTEAD, Judge.

text:
    Ignatizo GIULIANO, Petitioner, v. Louie WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 81-2288.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Rehearing Denied Aug. 4, 1982.
    Channing E. Brackey, Howard L. Finkel-stein, and Ronald K. Dallas of Brackey, Finkelstein & Dallas, P. A., Fort Lauder-dale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Judge.

This matter is before us on a petition for writ of habeas corpus which we have concluded should be denied. In many instances we do not write opinions upon the denial of such petitions. However, in view of the sensitivity of the issue presented we believe our disposition of this petition warrants a written opinion.

On March 14, 1977, petitioner Ignatizo Giuliano was charged with possession of cannabis in Broward County, Florida. On April 27, 1979, petitioner was convicted of this charge and sentenced to five years imprisonment to run consecutively to a sentence previously imposed. On July 23,1980, this conviction was affirmed by this court by a panel consisting of Judges Moore, Beranek, and Hurley. Guiliano v. State, 386 So.2d 1329 (Fla. 4th DCA 1980), Case No. 79-1507, rehearing denied September 4, 1980.

On August 30, 1977, petitioner was charged with delivery of cannabis and delivery of cocaine in Broward County. On May 10, 1979, petitioner was convicted of these charges and was sentenced to fifteen years of imprisonment to run concurrently with those sentences previously imposed. On June 11, 1980, this conviction was affirmed by this court by a panel consisting of Chief Judge Letts and Judges Moore and Glickstein. Guiliano v. State, 384 So.2d 1386 (Fla. 4th DCA 1980), Case No. 79-1326, rehearing denied July 23, 1980.

On December 9, 1981, petitioner filed the petition for writ of habeas corpus at issue here, seeking an evidentiary hearing and, alternatively, dismissal of the charges, reinstatement of the appeal, or mitigation of the sentence entered in Case No. 79-1326. Petitioner alleged that his conviction in Case No. 79-1326 was infirm because Judge Glickstein, who sat as a member of this court in that case, had, while in private practice, represented a prosecution witness, Thomas Dubocq, during the trial of Case No. 79-1507. Mr. Dubocq, a reporter for the Hollywood Sun Tattler to whom petitioner had purportedly made incriminating statements, was compelled to testify during the trial after initially claiming a reporter’s privilege under the First Amendment of the United States Constitution.

For several reasons, we do not believe these facts now entitle the petitioner to have the affirmance of his conviction in Case No. 79-1326 set aside. First, in Case No. 79-1507 petitioner did not testify in his own behalf; consequently, he had no direct contact with Judge Glickstein and his characterization of their relationship in that case as “adversarial” is simply not justified. Second, although petitioner had notice no later than June 11, 1980, that Judge Glick-stein had actually participated in the unanimous per curiam affirmance of his conviction in Case No. 79-1326, such participation was not challenged in petitioner’s motion for rehearing. Petitioner’s bare boned allegation that he recently became aware of Judge Glickstein’s participation is simply insufficient to justify the delay of more than eighteen months in bringing this matter to this court’s attention. Third, even if an appropriate motion for recusal had been made, in Florida the disqualification of an appellate judge is a matter which rests largely within the sound discretion of the individual involved. Compare the opinions of Justice England in Dept. of Revenue v. Golder, 322 So.2d 1 (Fla.1975) and Dept of Revenue v. Leadership Housing, Inc., 322 So.2d 7 (Fla.1975), ultimately disqualifying himself, with the opinion of Justice Over-ton, In Re Estate of Carlton, 378 So.2d 1212 (Fla.1979), request for recusal denied 1980, rehearing denied 1980, cert. denied Hayes v. Rogers, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980), refusing to disqualify himself. See also Justice Rehnquist’s opinion refusing to disqualify himself in Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972). Fourth, petitioner has lodged no charge of actual bias against Judge Glickstein, and although he correctly points out that the issue of judicial disqualification is properly framed in terms of the appearance of impropriety rather than in terms of the actuality of bias, in our view the connection between Judge Glickstein’s appearance in Case No. 79-1507 and his position as a member of this court in Case No. 79-1326 is simply too attenuated to mandate the voiding of the latter appellate decision. In essence Judge Gliekstein’s efforts on behalf of the newspaper reporter-witness were neutral insofar as the state and petitioner were concerned. In fact, if these efforts had been completely successful the witness would not have testified at all, a result that would have coincidentally benefited the petitioner.

For these reasons, we deny the petition for writ of habeas corpus.

HURLEY and DELL, JJ., concur.

OPINION ON REHEARING

ANSTEAD, Judge.

The petitioner has correctly pointed out in his petition for rehearing that we erroneously noted in our opinion of June 23, 1982 that petitioner did not testify in Case No. 79-1507. In fact, the petitioner did testify in Case No. 79-1507. It is true that petitioner had no direct contact with Judge Glickstein in that case. Moreover, it remains our view that the petitioner has not established that a sufficient adversarial relationship was established between petitioner and Judge Glickstein during the trial of Case No. 79-1507 to mandate the setting aside of the appellate disposition in Case No. 79-1326, the trial proceedings of which neither Judge Glickstein nor his client, Mr. Dubocq, were in any way involved. Having corrected our opinion, we adhere to our previous decision to deny the petition for writ of habeas corpus and otherwise deny the petition for rehearing.

HURLEY and DELL, JJ., concur.


text:
    AMERICAN HOSPITAL SUPPLY, DADE DIVISION and American Motorists Insurance Company, Appellants, v. Timothy McCARTY and the Division of Workers’ Compensation, Appellees.
    No. AG-147.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Rehearing Denied Aug. 11, 1982.
    Summers Warden, Miami, for appellants.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellees.
   MILLS, Judge.

The employer/carrier appeal a compensation order awarding temporary total disability (TTD) and reserving jurisdiction over attorney’s fees. We reverse.

The reports of Dr. Averbuch are not competent substantial evidence to support the award. There being no other medical evidence of temporary total disability, and no work search having been conducted, the award of TTD is not supported by the record. The cause is remanded for further proceedings based on the existing record.

McCORD and SHIVERS, JJ., concur.


author: WIGGINTON, Judge.

text:
    OLAN MILLS STUDIOS and Great American Insurance Company, Appellants, v. Hazel CASH, Appellee.
    No. AI-481.
    District Court of Appeal of Florida, First District.
    June 24, 1982.

      John P. Brooks, of Jones & Langdon, P.A., Gainesville, for appellants.
    Thomas W. Davis, of Barton, Cox & Davis, Gainesville, for appellee.
   WIGGINTON, Judge.

We affirm so much of the deputy commissioner’s order as relates to his finding of permanent total disability and his award of temporary total disability benefits, reasonable attorney’s fees and costs, but strike that portion allowing the employer/carrier a retroactive credit for any Social Security payments that may have been made pursuant to 42 U.S.C. § 423. Bakery Products, Inc. v. Laria, 379 So.2d 1332 (Fla. 1st DCA 1980); Pensacola Buggy Works v. Jernigan, 377 So.2d 245 (Fla. 1st DCA 1979).

BOOTH and WENTWORTH, JJ., concur.


text:
    Betty Owen STINSON and Kent Spriggs, Appellants/Cross Appellees, v. FEMINIST WOMEN’S HEALTH CENTER, INC., Appellee/Cross Appellant.
    No. AE-403.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Rehearing Denied Aug. 6, 1982.

      Joseph C. Jacobs and Robert King High, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants/cross appel-lees.
    Baya Harrison, III, of Fuller, Johnson & Harrison, Tallahassee, for appellee/cross appellant.
   WIGGINTON, Judge.

Kent Spriggs and Betty Owen Stinson, members of the Florida Bar, appeal from a final judgment in which the trial court assessed compensatory and punitive damages against them, determined the amount of their attorneys’ fee for representing the appellee in a previous action, dissolved their charging liens for those fees, and awarded the appellee attorneys’ fees in the action below. We affirm in part and reverse in part.

In the autumn of 1975, Spriggs gnd Stin-son (and another attorney who' is not a party to this appeal) were engaged by the Health Center to represent it in a dispute with the Florida Board of Medical Examiners and a group of individual doctors. The protracted pretrial phase of the ensuing lawsuit progressed through the federal court system until 1979, when the case was remanded for trial. Feminist Women’s Health Center, Inc. v. Mohammad, 415 F.Supp. 1258 (N.D.Fla.1976), aff’d, 586 F.2d 530 (5th Cir. 1978), rehearing denied, 591 F.2d 1343 (5th Cir. 1979), cert, denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979). In January, 1980, shortly before the scheduled trial date, the parties reached settlement and the attorneys each filed a lien on the Health Center’s $75,000 settlement proceeds. After the attorneys and their client failed to agree on the amount of their fees, the attorneys filed this action in circuit court, and the Health Center through new counsel filed a counterclaim. That is the sanitized version of the events leading to this appeal.

Spriggs and Stinson argue that the award of compensatory and punitive damages is unsupported by the record. We cannot agree.

In affirming the award of damages against the appellants, we make the following findings: First, the record supports the judge’s conclusion that at the outset of the action against the doctors, these parties agreed that the attorneys should be paid at the rate of $30 per hour, not $60 per hour as Spriggs and Stinson have claimed. Second, the record supports the judge’s conclusion that Spriggs and Stinson had represented to the Health Center that they would deliver the $75,000 settlement check to the Center and would then look to the Center for payment of their fees; instead, the attorneys’ machinations tied up the check for months. Third, the record supports the judge’s conclusion that Spriggs and Stinson obfuscated, manipulated and deceived their clients in a tortious attempt to take all of the settlement money.

Generally, punitive damages are not awardable unless the offending parties have acted with malice, moral turpitude, gross negligence, reckless indifference to the rights of others, wantonness, oppression, outrageous aggravation or fraud. See 17 Fla.Jur.2d, Damages, §§ 109, 119 and authorities cited therein. The trial judge awarded punitive damages here, finding that Spriggs and Stinson had acted “oppressively and with indifference to the persons and property rights of others,” that their behavior had been “egregious” and “self serving” and “unconscionable.” The trial judge did not err.

As a foundation for punitive damages, the judge properly computed compensatory damages as the interest on the money that would have come to the Health Center, less the agreed-upon fees and costs, at the time of settlement. We reject the appellants’ contention that an award of prejudgment interest is improper under these circumstances. See Bergen Brunswig Corporation, et al. v. Florida Department of Health and Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982). We also reject the appellants’ alternative argument that they, too, should be awarded prejudgment interest. The record shows that the attorneys, not the Health Center, caused the settlement funds to be out of circulation. Accordingly, the trial judge did not err in failing to require the Health Center to pay interest on the attorneys’ fees and costs.

Because the record supports the judge’s computation of the attorneys’ fees, we disagree with the appellants’ argument that their fees should be redetermined on a quantum meruit basis. Similarly, we disagree with the Health Center’s cross appeal argument that the fees should be reduced or not allowed.

Nevertheless, we must reverse the portion of the final judgment that awarded the Health Center its fees in this action. It is fundamental that attorneys’ fees are not recoverable in the absence of a statute or contract which makes them recoverable. Section 713.76(2), Florida Statutes, cited in the final judgment as authorizing the fee award, is inapplicable. By its terms, that statute only permits an award of attorneys’ fees when the offending party has violated Section 713.76(1). Further, the parties’ contract did not provide for attorneys’ fees in the event of breach or default.

The Health Center, citing this Court’s opinion in Howard v. Crawford and Company, 384 So.2d 1326 (Fla. 1st DCA 1980), argues that attorneys’ fees may be awarded when the complaining party proves fraud. However, the attorneys’ fee awarded in Howard had accrued some time earlier, in a different case. That decision manifested the widely-held view that attorneys’ fees are awardable where the wrongful act has forced the aggrieved person into litigation with a third party. See generally 22 Am. Jur.2d, Damages, § 166, “Litigation against third person as result of defendant’s wrongful act.” The Howard opinion did not create a “fraud exception” to the general rule prohibiting the award of fees. Consequently, the trial judge was without authority to enter the fee award below.

Finally we note that the trial court dissolved the attorneys’ liens and directed that full payment be made to the Health Center, which in turn was ordered to pay the appellants their portion of the judgment. Because the appellants perfected their liens before this suit was instituted, we believe that justice would be better served if the judge computed the net award for each party and ordered the clerk to disburse the funds directly.

Accordingly, the final judgment is affirmed in part, reversed in part, and remanded for further proceedings.

JOANOS, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . Under Florida law, punitive damages are recoverable only where actual damages are shown. Martin v. Security Services, Inc., 314 So.2d 765, 772 (Fla.1975), citing McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221 (1943).


text:
    Sarah HARRIS, Appellant, v. Edgar A. SOULES and Leona Soules, Appellees.
    No. AG-429.
    District Court of Appeal of Florida, First District.
    June 30, 1982.
    Rehearing Denied Aug. 11, 1982.
    Andrew J. Decker, III, of Airth, Sellers & Lewis, Live Oak, for appellant.
    William R. Slaughter, II, of Slaughter & Slaughter, Live Oak, for appellees.
   PER CURIAM.

The trial court properly found that appellant failed to adduce competent evidence of a boundary dispute or uncertainty by the parties or their predecessors which was resolved by establishing a boundary through agreement or acquiescence. See King v. Carden, 237 So.2d 26 (Fla. 1st DCA 1970). The order granting judgment notwithstanding the jury’s verdict is

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    VIDA APPLIANCES, INC. and Zurich-American Insurance Company, Appellants/Cross-Appellees, v. James GATES, Appellee/Cross-Appellant.
    No. AI-292.
    District Court of Appeal of Florida, First District.
    June 30, 1982.
    Rehearing Denied Aug. 4, 1982.

      Albert P. Massey, III, of Pyszka & Kes-sler, P. A., Fort Lauderdale, for appellants/cross-appellees.
    Dennis M. Usdan of Abramowitz, Altman & Usdan, Plantation, for appellee/cross-appellant.
   ERVIN, Judge.

In this workers’ compensation appeal, we find that claimant James Gates’ October 1, 1979 accident entitles him to full wage-loss benefits, because he did not limit his income or fail to accept employment, and that under the facts of this case, the deputy commissioner correctly included vacation pay in the computation of claimant’s average weekly wage.

Fifty-nine year old James Gates, the ap-pellee/cross-appellant herein, worked for Vida Appliances as a delivery man. While unloading a truck he slipped and fell, suffering permanent anatomical impairment. Gates had eleven years of schooling but no high school diploma. He had worked only in various menial tasks unloading trucks, painting, doing maintenance work, as a stock clerk, and laboring at construction sites.

Upon reaching maximum medical improvement, his doctor advised that he could return to the job market but that he was restricted to light work. Despite occasional yet persistent pains, he made a rather extensive job search to numerous motels, a mall, supermarket, the state employment service, and other locations. His former employer, Vida Appliances, refused to rehire him for light work. The other job sites at which he applied lost interest in him as soon as he indicated that he was seeking light work, and the state employment service similarly was unable to assist him. The deputy commissioner found this to be a competent, good faith work search.

At the hearing the employer/carrier (e/c) presented testimony by a vocational counselor who indicated that he had conducted a two-hour interview with Gates and reviewed his medical records. The counselor felt certain that Gates was employable in the Broward County job market in a light maintenance job making $175 per week and that such jobs were available. Candidly, the counselor admitted that he knew of no specific jobs available to the claimant, nor had he actually canvassed the job market.

The deputy commissioner also received testimony that the claimant made $180 per week before his injury, received uniforms worth $10 per week from his employer and was paid in cash an additional $360 during a two-week period preceding his injury. According to the employer’s secretary, this sum represented vacation pay which Gates was taking in the form of cash in lieu of actual vacation time off. The secretary stated that this was a common practice among the employer’s truck drivers, and, unlike all other fringe benefits, this was the only benefit, if paid in cash, that was subject to social security and withholding taxes, thereby making it similar to wages.

Based on the foregoing, the deputy commissioner concluded that Gates had an average weekly wage of $220 per week, but that due to the claimant’s employment background, age, education and anatomical impairment, the claimant only had a wage-earning ability of $125 per week. Gates was found to be entitled to wage-loss benefits, but the monthly benefit payments were to be computed based upon his earning ability. On appeal the e/c argues that the finding of claimant’s earning capacity should have been $175 due to the vocational counselor’s testimony, and that the average weekly wage amount could have only been computed by erroneously considering vacation pay. The claimant’s cross-appeal counters that the inclusion of the $125 per week earning ability finding in any computation to determine wage-loss benefits was error.

The computation of the claimant’s earning ability and the correctness of its application to any determination of actual wage-loss benefits are issues that appear inextricably linked. By our finding that the claimant’s cross-appeal is meritorious, the correctness of the deputy’s determination of the amount of claimant’s wage-earning capacity is superfluous. This is because the deputy commissioner found that the claimant had conducted a good faith job search, and there is substantial competent evidence for that view.

Section 440.15(3)(b)(2), Florida Statutes (1979), states that the salary, wages, or other remuneration that a claimant might have earned shall be treated as if they had actually been earned. However, this statutory mandate does not become effective, unless it can be shown that the claimant voluntarily limited his income, by not conducting a competent, good faith job search, or unless he fails to accept employment within his abilities. Since the claimant conducted a competent, good faith job search, the burden is upon the employer to demonstrate that the claimant has refused work or has somehow voluntarily limited his income. Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971, 972 (Fla. 1st DCA 1982).

This view is totally consistent with the Florida Supreme Court’s most recent opinion on the subject of work searches in which the court noted that after a claimant demonstrates “some effort” to obtain work within his limitations, the burden shifts to the employer to demonstrate that suitable employment is available. Wright v. Gulf & Western Products, 401 So.2d 1316, 1318 (Fla.1981); see also Flesche v. Interstate Warehouse, 411 So.2d 919, 926 n. 14 (Fla. 1st DCA 1982). Despite the fact that cases such as Wright and Flesche both involve questions of wage-earning capacity loss and not wage-loss, they do provide some guidance as to the subject of work searches.

The claimant having demonstrated that he had made more than “some effort” to find work, it is apparent that the e/c had the burden of showing that suitable employment was available. The e/c attempted to meet this burden with the vocational counselor’s testimony. While somewhat probative, it was insufficient to carry the burden, because the counselor had neither canvassed the job market, nor could he point to an actual suitable employer who would readily hire the claimant. Therefore, while there may have been some basis upon which to determine claimant’s earning ability to be $125 per week, it was error to apply this finding to in any way limit the dollar amount of claimant’s wage-loss benefits, because the evidence did not indicate that the claimant had failed to accept a job offer or that he limited his income.

With regard to the computation of claimant’s average weekly wage, there appears no way that the $220 per week amount could have been determined by the deputy without inclusion of the additional $360 vacation pay. Belle v. General Electric Co., 409 So.2d 182, 183-184 (Fla. 1st DCA 1982), appears to be supportive of the deputy’s determination to include the vacation pay in computing the claimant’s average weekly wage, although we feel this case provides a much stronger factual basis upon which to affirm. This is because the vacation pay, having been paid, had obviously vested, cf. Pate v. Maddox Foundry & Machine Works, 414 So.2d 524 (Fla. 1st DCA, 1982) petition for rev. docketed, no. 62,090 (Fla., May 20,1982), and was comparable to actual wages, which is of course included in the computation of a claimant’s average weekly wage. § 440.14(l)(a), Fla.Stat. (1979).

This case is therefore AFFIRMED with the exception of the limitation upon the claimant’s right to full wage-loss benefits due to wage-earning ability. We, therefore, amend paragraph two of the decretal portion of the deputy commissioner’s order by striking the words “based upon the Claimant’s ability to earn $125 per week,” so that the claimant may receive the maximum wage-loss benefits subject only to the statutory formula. § 440.15(3)(b)(l), Fla. Stat. (1979).

The order is affirmed as modified.

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

      . While Pompano Roofing is a case dealing with the temporary partial disability wage-loss statutory provision in Section 440.15(4)(b), Florida Statutes, it will be observed that this provision is almost word-for-word the same as the statutory provision relevant to this case. Compare § 440.15(3)(b)(2), Fla.Stat. The case is obviously applicable.

      . It should be noted that the testimony of vocational counselors in the area of employment searches has traditionally been viewed as being of extremely limited probative value. Errol Estates, Ltd. v. O’Neal, no. 2-3031 (IRC, Sept. 7, 1976), cert. denied, 348 So.2d 951 (Fla.1977); Cook v. Hamilton County Bd. of County Comm’rs., no. 2-2984 (IRC, June 16, 1976); but cf. Brooks v. Haines City Citrus Growers Assoc., 382 So.2d 725 (Fla. 1st DCA 1980). The case at bar furnishes support for the traditional rule, because while the counselor was able to testify as to the job market generally, he could point to no specific opportunities available to the claimant.

      . We point out that wage-loss benefits are payable for a particular month only after it has been determined what the claimant’s actual wage-loss was; whether the claimant failed to accept employment or voluntarily limited his income; and if so, in what amount. Assuming that the vocational counselor had been able to point to a specific job with a particular employer that the claimant could fill, it would still have to be shown that the claimant knew of the job availability, could have obtained it, and that it was within his abilities, before the claimant’s past wage-loss benefits could have been limited. In other words, even offering a job to a claimant for the first time at a hearing, which job was previously unknown to claimant, would not act to bar claimant’s previous right to 100% wage-loss benefits. Conversely, it follows that if the claimant did not promptly act on the offer, his right to future full wage-loss benefits would be affected.


text:
    Charles PINKNEY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-391.
    District Court of Appeal of Florida, First District.
    June 30, 1982.
    Rehearing Denied Aug. 6, 1982.
    Charles Pinkney, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

McCORD, SHIVERS and WIGGINTON, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    William A. BAKER, M.D., the Florida Physicians Insurance Reciprocal, and Florida Patients Compensation Fund, Appellants, v. Manuel E. VARELA, Appellee.
    No. AG-252.
    District Court of Appeal of Florida, First District.
    July 2, 1982.

      John Moffitt Howell, Howell & Howell, Jacksonville Beach, for appellants.
    Jeffrey D. Dunn, Jacksonville, for appel-lee.
   LARRY G. SMITH, Judge.

Having received an adverse jury verdict in a medical malpractice action, appellants seek review of the award of attorney’s fees to plaintiff-appellee, and costs expended by appellee in the prosecution of the suit. Ap-pellee in his action recovered a judgment of $15,000.00, and the court awarded attorney’s fees of $20,000.00, together with costs expended in the amount of $5,785.79. Appellants contend that the award of attorney’s fees is clearly excessive, and not in accordance with the guidelines established by Florida case law. As for the matter of costs, appellants contest the propriety of the award as to certain items. They also contend that certain fees and allowances for medical advisory service and expert witness preparation and testimony were improper or exorbitant, and were not supported by affidavit or testimony as to reasonableness. We affirm.

On the attorney’s fees issue, appellants argue that an award of attorney’s fees “must bear a reasonable relationship to the results obtained.” Ruwitch v. First National Bank of Miami, 327 So.2d 833 (Fla. 3rd DCA 1976); Lumbermens Mutual Casualty Company v. Quintana, 366 So.2d 529 (Fla. 3rd DCA 1979); All-Star Insurance Corporation v. Scandia, Inc., 321 So.2d 575 (Fla. 3rd DCA 1975); and Meeks v. State Farm Mutual Automobile Insurance Co., 460 F.2d 776 (5th Cir. 1972). In these cases the courts view the “results obtained” solely in terms of the monetary judgment recovered. We do not agree that the monetary recovery is the only criteria by which results obtained may be judged in an award of attorney’s fees under Section 768.56(1), Florida Statutes (Supp.1980).

The character of the litigation involved in the above cited cases is galaxies apart from a medical malpractice action, so far as an award of attorney’s fees to a prevailing plaintiff is concerned. In Lumbermens, the issue was coverage under a “resident of the same household” clause in a liability insurance policy, in which the maximum (and actual) recovery was limited to $15,000.00. An attorney’s fee award of $20,000.00 was held excessive. Meeks also involved automobile insurance litigation.

In Ruwitch, an action on a contract of guaranty, the parties had stipulated that a reasonable attorney’s fee would be $17,-500.00, based on a judgment of $120,000.00. On an earlier appeal, error was found in the amount of the judgment for damages, reducing it to $22,352.46 (291 So.2d 650, at 653). On remand, the trial court re-determined reasonable attorney’s fees as directed by the appellate court, but reduced the amount to $15,000.00, which was only $2,500.00 less than the original award. This was held error, and the appellate court reduced the fees to $8,000.00 (327 So.2d 833).

In All-Star, the trial court set aside a jury verdict of $60,000.00 recovered for losses under several fire insurance policies, and entered judgment for $135,000.00, the aggregate face amount of all policies. Based upon this latter figure, as the amount recovered, the trial judge awarded attorney’s fees of $30,000.00. The appellate court reinstated the jury verdict for $60,-000.00, and ordered reassessment of attorney’s fees based on the reduced amount.

None of the above cases furnish a guide for assessment of plaintiffs attorney’s fees in medical malpractice cases. We agree, as a general proposition, that “reasonable” attorney’s fee awards should take into account the benefits achieved through the litigation. 12 Fla.Jur.2d, Costs, § 36. However, we are unable to accept appellants’ argument that the dollar amount of recovery controls the award of attorney’s fees in every type of case, nor that an award is per se “unreasonable” merely because the fee exceeds the recovery. By way of illustration, we note the recent decision of the Fifth District in La Ferney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534 (Fla. 5th DCA 1982), ordering an award of attorney’s fees of between $4,300.00 and $5,800.00, although the recovery (under Chapter 501, Florida Statutes, “Florida Deceptive and Unfair Trade Practices Act”) amounted to only $2,665.31 compensatory damages.

We do agree, in principle, that litigation expenses ought not to be out of proportion to the wrong sought to be redressed, or the benefits reasonably to be expected. But it is not realistic to expect or demand a balancing of expense and effort with the end results in every case. Obviously, the skill and zeal with which a case is prosecuted, or defended, can have a direct bearing on the expense and effort required by the opposing side. A case that is unreasonably defended could well justify extraordinary prosecutorial efforts, and vice versa. However, no doubt the trial courts, as well as this court, will be sensitive to over-prepared and over-tried cases by either side, particularly when excessive costs or attorney’s fee demands are made.

It appears to us that in reviewing a plaintiff’s attorney’s fee award under the statute, certain factors peculiar to this kind of litigation merit consideration. The Florida Legislature, in enacting the unique attorney’s fee statute in question, specifically distinguished medical malpractice litigation from ordinary tort litigation. It appears to us that there are grounds for distinguishing plaintiff’s attorney fee awards in such cases from awards in ordinary tort litigation. Appellants’ expert witness admitted that plaintiff’s counsel in medical malpractice litigation shoulders a heavy burden, even exceeding that of defense counsel in the same case. Furthermore, the statute itself, which was intended as a deterrent to unjustified prosecution or defense of medical malpractice claims, may not in actual operation achieve the even-handed results which were no doubt sought through its enactment. This is so because in the absence of such a statute juries awarding damages to an injured patient would be very likely, consciously or unconsciously, to take into account the legal expense incurred by the plaintiff, and adjust their award accordingly. Thus, it does not necessarily follow that a losing defendant will incur any additional liability by reason of the statute. On the other hand, the same cannot be said in the case of a losing plaintiff. Therefore, in a somewhat oblique fashion, the statute itself imposes an even heavier burden and responsibility upon plaintiff’s counsel who undertakes a medical malpractice action.

We can take judicial notice that in most instances, if not all, plaintiff’s' counsel will be required to undertake medical malpractice litigation on a contingency basis. Counsel must therefore be concerned with the proper evaluation and prosecution of a claim to a successful conclusion for his client’s benefit, and his own economic survival. By virtue of the attorney’s fees statute he must also be concerned that his client might suffer the additional impact of an attorney’s fee award in event his preparation and diligence in handling the case should prove unsuccessful. Thus, it is reasonable to expect more screening, evaluation and care than is required in other less volatile areas of litigation. Under these circumstances, we are less inclined than we might be in other types of litigation to accept appellants’ “comparative” approach to attorney’s fee awards. Implicit in appellants’ argument on this point is the notion that malpractice plaintiff’s attorneys should be required, in effect, to subsidize patient’s litigation, except in cases likely to produce a relatively high monetary award, a proposition that we are unable to accept.

No abuse of discretion has been shown in the trial court’s award of attorney’s fees based on the evidence as to the number of hours expended in preparation and trial, the skill and expertise demanded and exhibited by plaintiff’s counsel, the nature and complexity of the litigation, the results obtained, and the several other factors touched upon at the attorney’s fees hearing.

In their second point, appellants seek reversal of the cost award because of the trial judge’s failure to itemize the costs allowed. See, Mac Neill v. Marks, 61 So.2d 648 (Fla.1952); Sims v. Barnes, 289 So.2d 753 (Fla. 1st DCA 1974). The only written order mentioning costs is the final judgment, which awards lump sum costs in the amount of $5,785.79. Plaintiff’s motion to tax costs contains an itemization of costs totalling $7,174.49. Appellants filed objections to the motion, pointing out certain deficiencies in the manner in which the items were stated, and specifically objecting to certain items. It was also urged that the motion was not sworn to, and that the fee sought for plaintiff’s expert witness was clearly excessive, and not supported by any evidence at the trial or otherwise. At the commencement of the hearing on the motion to tax costs, and objections thereto, counsel for appellees specifically brought to the trial court’s attention the fact that there were no affidavits, receipts, and “there is nothing to verify the payment of costs or the reasonableness of those payments.”

Although we agree that the presentation on application for assessment of costs was lacking, we fail to find reversible error in the trial judge’s award of costs. We first note that an itemization of costs awarded, when less than the full amount requested in the motion to tax costs, would facilitate appellate review of particular items. However, we note that an item by item objection was made before the trial court below, rulings were obtained on various items, and no request was made for further itemization in the final judgment. Furthermore, no petition for rehearing was presented to the trial court, although an itemization of costs could easily have been secured in this manner. We therefore find the failure to itemize costs either in the final judgment or other order has not been preserved for appellate review. 3 Fla.Jur.2d, Appellate Review, § 92.

In response to appellants’ arguments concerning the cost award, we point out that the cost of copies of depositions, when the facts warrant it, may be taxable. ' International Patrol and Detective Agency, Inc. v. Aetna Casualty & Surety Co., 396 So.2d 774 (Fla. 1st DCA 1981). Appellants also complain of a cost item of $1,262.50 paid to the National Medical Advisory Service for a “probable cause” determination received by plaintiff’s counsel prior to filing the suit. However, the hearing transcript clearly reveals that the trial court disallowed this item of cost, which is apparently reflected in the reduced amount appearing in the final judgment.

Finally, with respect to the absence of evidence to support the reasonableness of the expert witnesses charges, we have noted appellants’ objections below, and their argument here that such evidence is required. See Lafferty v. Lafferty, 413 So.2d 170 (Fla. 2nd DCA 1982). However, we have viewed the lengthy argument and discussion between the court and counsel at the cost hearing, and we have concluded that despite the formal objections raised, it appears that the award of the expert witness fees and allowances in question was left to the discretion of the court based upon the arguments presented and authorities cited to the court. Although the intentions of counsel might have been otherwise, it appears to us that the record is at least susceptible to this interpretation. It would have been a simple matter to advise the trial court, by means of a motion for rehearing, of this asserted error in the procedure followed. This was not done. Furthermore, the amounts involved are not of such magnitude as to indicate grossly excessive charges or overreaching.

For the foregoing reasons, the judgment appealed is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.

      . Section 768.56(1) provides, in part, that the court “shall award a reasonable attorney’s fee to the prevailing party” in medical malpractice cases, unless the losing party is insolvent or poverty-stricken. The law provides that before initiating such an action, “it shall be the duty of the attorney to inform his client, in writing,” of the provisions of this section.

      . Whether the particular distinction made by the Legislature is a valid one is a matter we are not here called upon to decide.

      . The avowed purpose of the attorney’s fees provision is to “screen out claims lacking in merit and ... enhance the prompt settlement of meritorious claims . .on the theory that “individuals required to pay attorney’s fees to the prevailing party will seriously evaluate the merits of a potential medical malpractice claim .. .. ” Preamble, Chapter 80-67, Laws of Florida (1980).

      . The specialized nature of this type of litigation is evident from the extensive legislative treatment it has received in the recent past. See, for example, Section 768.44, Florida Statutes Annotated (1982 annual pocket part), medical liability mediation panels, declared unconstitutional in operation, Aldana v. Holub, 381 So.2d 231 (Fla.1980); Section 768.45, medical negligence, standards of recovery, Section 768.46, medical consent law; Section 768.48, itemized verdict; Section 768.49, remittitur and additur; and Section 768.50, collateral sources of indemnity.

      . The disallowance of this expense has not been cross-appealed, and we express no opinion as to the propriety of this ruling by the trial judge.


text:
    S. Harold ROACH on behalf of the Estate of Huldah C. Roach, Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. AB-64.
    District Court of Appeal of Florida, First District.
    July 2, 1982.
    Joseph R. Moss, P.A., Cocoa, for appellant.
    Diane K. Riesling, Asst. Div. Atty., Div. of Retirement, Tallahassee, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

The Division of Retirement moves to dismiss this appeal on the ground that the notice of appeal was not timely filed. The Division states that final agency action occurred on December 29,1980, that a motion for rehearing was denied January 20, 1981, and that the notice of appeal was not filed until February 2, 1981. The Division contends that since the motion for rehearing did not toll the time of rendition of the final order, see Systems Management Associates, Inc. v. Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981), this appeal must be dismissed. We deny the motion to dismiss because the Division has not favored us in the certified record or otherwise with a copy of the appealed order bearing its clerk’s indication of the date the order was filed for record.

In Bank of Port St. Joe v. Department of Banking and Finance, 362 So.2d 96 (Fla. 1st DCA 1978), this Court pointed out that appellate jurisdiction is invoked by filing a notice within 30 days of rendition of the order sought to be reviewed, Fla.R.App.P. 9.110(b), and before an order is rendered it must be filed with the clerk of the lower tribunal, Fla.R.App.P. 9.020(g). The Court found no proof that the order sought to be reviewed had ever been filed with the clerk, and therefore remanded the cause to the agency for the purpose of holding a hearing to determine whether the order had been rendered. In Speed v. Florida-Department of Legal Affairs, 387 So.2d 459 (Fla. 1st DCA 1980), the notice of appeal was filed on May 15, 1978; the order appealed was dated April 6, 1978. However, there was nothing in the record to indicate if or when the order was filed, and the cause was remanded for a determination of the filing date.

When the orders on appeal in the above cases were entered, section 120.52(9), Florida Statutes (1977), read as follows:

“Order” means a final agency decision which does not have the effect of a rule and which is not excepted from the definition of a rule .... An agency decision shall be final when reduced to writing.

Subsequently, section 120.52(9) was amended by Chapter 79-299, section 1, Laws of Florida, and the following underlined language was added:

An agency decision shall be final when reduced to writing and filed with the person designated by the agency as clerk. The clerk shall indicate the date of filing-on the order.

The obvious purpose of requiring an agency clerk to indicate the date of filing on an order is to establish with certainty the date of rendition, thus eliminating the necessity of remanding cases for fact-finding proceedings on that issue. Since the timely filing of the notice of appeal is jurisdictional, the filing date of the final order is of vital importance. By amending section 120.52(9), the Legislature recognized that the filing date of an order should not be subject to dispute and directed that the agency’s clerk indicate the date of filing on the order.

In this case, the Division did not transmit to this Court, in its official record of the proceedings or otherwise, a copy of the order, if there is one, bearing the filing date noted by the Division’s clerk. In that circumstance, we decline to assume a particular filing date which is the predicate for the Division’s motion to dismiss the appeal as untimely. Because the statutory direction was quite clear, we decline to remand the case for a determination of the filing date, as we did in Speed; and we likewise will decline to revisit the matter should the Division at this stage attempt to cure the defect.

The Division’s motion to dismiss is DENIED.

ROBERT P. SMITH, Jr., C. J., and McCORD and ERVIN, JJ., concur.


text:
    Wallace E. MILLER, M.D., Appellant, v. Marion COONEY, Appellee.
    No. 81-524.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 4, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for appellant.
    Sams, Gerstein & Ward, Greene & Cooper and Joan M. Bolotin and Marc Cooper, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Refusing to admit into evidence in defense of a medical malpractice case an alleged admission of the plaintiff that he removed certain surgical apparatus con-. trary to his physician’s advice, was not reversible error.

First, the admission in part was merely cumulative, and second, it was immaterial as to the time of the alleged comparative negligence on the part of the patient Perrett v. Seaboard Coast Line Railroad Company, 299 So.2d 590, 592 (Fla.1974); Atlantic Coast Line Railroad Company v. Campbell, 104 Fla. 274, 139 So. 886 (1932); Short v. Allen, 254 So.2d 34 (Fla. 3d DCA 1971).

There were three possible times when the injury to the plaintiff could have occurred. When he was in the hospital and then twice after he was released. The alleged admission was to the activity of the patient while in the hospital. Yet in proof of his claim for injuries, the evidence related to alleged negligence occurring after he left the hospital. It was clear from this evidence that his condition developed after he left the hospital. The issue of comparative negligence was submitted to the jury (with neither side requesting special interrogatory verdicts) and the jury in fact, found the plaintiff to be 20% negligent. The alleged admission was immaterial evidence that could have prejudiced the jury and the trial court was correct in refusing its admission into evidence. We find no error in denial of motion for remittitur. Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Lassiter v. Internal Union of Operating Engineers, Local No. 675, 349 So.2d 622 (Fla.1977); Allstate Insurance Company v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979).

Final judgment affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Robert B. CUSHING, D.D.S., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY, Appellee.
    No. 81-987.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 4, 1982.
    Finley, Kimble, Wagner, Heine & Under-berg and Fred N. Kellner, Miami, Richard G. Cushing, New York City, for appellant.
    Deborah J. Miller, Tallahassee, for appel-lee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

A warrantless, routine administrative search of a pharmacy conducted by the Department of Professional Regulation pursuant to Sees. 465.017, 893.09(1) and 893.-07(4), Fla.Stat. (1979) revealed several suspect prescriptions for quaaludes written by the appellant, Dr. Robert Cushing, an oral surgeon. As a result, a three-count administrative complaint was filed against him. The hearing officer found Cushing guilty of improperly prescribing the drug in the incident charged in Count III and recommended dismissal of Counts I and II. On review, the Board of Dentistry adopted the hearing officer’s findings and recommendations in all respects.

There is no merit whatever in either of Dr. Cushing’s attacks upon the finding of guilt as to Count III. His first contention that the search of the pharmacy was invalid must be rejected out of hand both because (a) the appellant had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and therefore may not assert the claim, United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and (b) on the merits of the issue, the statutorily-authorized search effected below was in fact constitutionally permissible. United States ex rel. Terraciano v. Montanye, 493 F.2d 682 (2d Cir. 1974), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42 L.Ed.2d 114 (1974); see, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Federman v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, 414 So.2d 28 (Fla. 3d DCA 1982).

There is likewise no basis for the assertion that the findings against the appellant are unsupported by substantial, competent evidence, DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); Section 120.68(10), Fla.Stat. (1979), nor the contention that the patient to whom Dr. Cushing dispensed the quaaludes was improperly permitted to testify to the circumstances surrounding that prescription. Frantz v. Golebiewski, 407 So.2d 283, 284, n.2 (Fla. 3d DCA 1981) and cases cited (no Florida doctor-patient or dentist-patient privilege); see Morrison v. Malmquist, 62 So.2d 415 (Fla.1953). Finally, we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980). Accordingly, on the appeal of Dr. Cushing, we affirm the determination below.

By cross-appeal, the appellee seeks to challenge alleged errors committed by the hearing officer which underlay his recommendation that Counts I and II be dismissed. Since, however, the Board adopted these very recommendations in the order now before us, the agency is thus essentially attempting to appeal from itself. It is very clear that this cannot be done, see Section 120.68(1), Fla.Stat. (1979), and the cross-appeal is therefore dismissed for lack of jurisdiction.

Affirmed, cross-appeal dismissed.

      . The officer recommended and the Board imposed a fine and a one-month suspension of Cushing’s license to practice dentistry.

      . No privilege against self-incrimination was asserted by either the patient or the appellant.


text:
    Herman KELLY, Appellant, v. Thomas FUNDORA, Appellee.
    No. 82-239.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 11, 1982.
    Herman Kelly, in pro. per.
    William O. Mehrtens, Jr., Miami, Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Robertson v. Industrial Insurance Co., 75 So.2d 198, 199 (Fla.1954).


text:
    Richard Carl BENSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1205.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

An “auxiliary deputy sheriff” as defined in section 943.10(6), Florida Statutes (1981), is a “law enforcement officer” within the meaning of section 784.07, Florida Statutes (1981), prohibiting the assault or battery of law enforcement officers.

AFFIRMED.

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