author: BASKIN, Judge. BARKDULL, Judge,

text:
    KNIGHT-RIDDER NEWSPAPERS, INC., a Florida Corporation, d/b/a the Miami Herald Publishing Company and the Miami News, Appellants, v. Blanca Nieve SOSA, as Personal Representative for the Estate of Jose Lanza, deceased, for the benefit of Blanca Nieve Sosa, Santos Lanza and the Estate of Jose Lanza, Appellees.
    No. 80-1987.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    On Rehearing Jan. 12, 1982.
    Adams & Ward and Robert 'C. Ward, Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Rosen & Rosen, Miramar, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We affirm the trial court order granting plaintiff Blanca Nieve Sosa a new trial on the ground that during defense'counsel’s argument to the jury he commented that plaintiff Sosa had received workers’ compensation payments. The record contains no evidence to support his comments.

Jose Lanza was a news carrier for The Miami News. As participants in a newspaper subscription contest, he and several other news carriers were taken to northwest Miami one evening by a Miami News distribution manager. During the evening, the distribution manager saw Jose Lanza and another news carrier “fooling around.” In order to separate them, he ordered the other news carrier into the car. Because Jose Lanza did not want to be left alone in a strange neighborhood, he ran beside the car, pleading to be allowed to enter the car. His pleas were ignored. After a short time, the driver of the moving car felt a bump; Jose was lying in the street. He died a few days later. He was fourteen years old. Blanca Sosa, his mother, the personal representative of her son’s estate, filed a wrongful death action against the publishers of The Miami News, Knight-Ridder Newspapers, Inc.

Knight-Ridder maintained that under Chapter 440, Florida Statutes (1975) its payment of workers’ compensation benefits precluded plaintiff from filing a wrongful death action.

The jury returned special interrogatory verdicts in which it found that during the evening in question the deceased was an employee of Knight-Ridder Newspapers, Inc. and was, at the time of his death, engaged in activities within the course and scope of his employment. The effect of the verdict was a determination that defendant had established the affirmative defense of workers’ compensation liability and was not liable for further damages.

Plaintiff filed a Motion for New Trial. Although the court had originally denied plaintiff’s motion in limine on the question of workers’ compensation payments, it now decided that it had erred in permitting comment during counsel’s argument on that subject. The court ruled:

6. This Court also awards a new trial as it is the opinion of this Court, based upon the disclosures in the record, that there was no evidence presented by the defendants as to who sought to initiate the claim for workmen’s compensation benefits allegedly received by the decedent’s relatives. No evidence was presented by the defendants in this regard. There is no evidence in this record as to who initiated the request for workmen’s compensation benefits after the decedent was killed. While counsel for the defendants argued benefits were properly requested and lawfully paid, there is no evidence in this record of this fact. Counsel for the defendants argued to this Court, outside of the presence of the jury, that the decedent’s brother made the request for workmen’s compensation benefits. Assuming there was evidence of this (of which there is none), this request would be insufficient. See: Bec Construction Corporation v. Gonzalez, 383 So.2d 1093 (Fla.App.1st 1980). In the instant cause the decedent’s brother was not the personal representative for the estate of the deceased. Whether or not workmen’s compensation benefits were properly obtained or were lawfully obtained was kept from the jury.
7. This Court also grants the motion for new trial on the ground that this Court improperly allowed reference to collateral source to be made to the jury. The trial testimony reflects that counsel for the plaintiff agreed only that certain bills “have been paid.” (T.110). In closing argument, counsel for the defendants argued over the plaintiff’s objection overruled by this Court (T.177, 178), that the bills were paid by the workmen’s compensation carrier. The argument advanced by counsel for the defendants was predicated on facts not in evidence for which a new trial be and the same is hereby granted.
8. In view of the above findings, it is this Court’s opinion that the jury has been deceived as to the force and credibility of the evidence and has been influenced by considerations outside the record. Wackenhut Corp. v. Canty [359 So.2d 430 (Fla.App.)], supra, and Cloud v. Fallis [110 So.2d 669 (Fla.)], supra.

We find no support for appellant’s argument that appellee Sosa had admitted the payment of compensation. Although counsel for appellee Sosa conceded that medical bills had been paid, and thereby relieved Knight-Ridder of the burden of introducing the bills, he did not stipulate that Knight— Ridder had paid worker’s compensation benefits to appellee. We therefore agree with the trial court that it was improper for counsel to argue to the jury matters not supported by the evidence.

If the record supports any ground in a motion for new trial, the trial court’s order granting a new trial must be affirmed. City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977). In our view, the admission of argument of matters riot in evidence supports the trial court’s order. Finding no abuse of discretion in the granting of a new trial, Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978); Cloud v. Fallis, 110 So.2d 669 (Fla.1959), we affirm the trial court.

BARKDULL, Judge,

dissenting.

I respectfully dissent.

At trial, the question of workmen’s compensation benefits arose with the defendant newspaper arguing that because it had paid out workmen’s compensation benefits to the plaintiff a wrongful death action was thereby improper and could not be instituted. Pursuant to special interrogatory verdict forms, the jury found that the deceased “. . . was an employee of Knight-Ridder Newspapers, Inc.” The jury also found that the deceased “. . . at the time of his death was engaged in activities within the course and scope of his employment with. . .” the defendant newspaper. The' plaintiff’s subsequent motion for a new trial was granted. This appeal ensued. I would reverse.

The trial court abused its discretion in setting aside the verdict on the grounds that: (1) Confusion was created due to the trial court’s failure to discuss with the jury the effect of the employment agreement between the deceased and the newspaper, and (2) It was improper to allow argument concerning workmen’s compensation payments made to the plaintiff. With regard to the employment agreement, the record demonstrates that the plaintiff never made a request that it be interpreted by the court. The plaintiff’s position throughout was that, whatever effect the agreement had on the determination of whether the decedent had an employee status or an independent contractor status, or some third argument, it was submissible to the jury. The defendant’s counsel made only one comment concerning the agreement, which was insufficient under the circumstances to support an order for a new trial. Also, in rebuttal, the plaintiff’s counsel clearly presented the plaintiff’s position concerning the effects of the contract. Next, with regard to the question of workmen’s compensation benefits, the defendant’s counsel did not state that such benefits were property requested and lawfully paid, but only that such benefits were paid and that the payment for certain bills and expenses came from that source. The trial court was incorrect in stating that there was no evidence to support the claim of the defendant’s counsel, in closing argument, that certain bills and expenses were paid by workmen’s compensation. In fact, the plaintiff admitted that workmen’s compensation payments were made and received.

A new trial should not be granted in absence of a finding that the verdict is against the manifest weight of the evidence (which finding was not made in the instant case), unless the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record which affect substantial rights of the moving party to the extent that a fair trial was not had. Springfield Life Insurance Company v. Edwards, 375 So.2d 1120 (Fla. 3d DCA 1979); Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978); Laskey v. Smith, 239 So.2d 13 (Fla.1970); Hodge v. Jacksonville Terminal Company, 234 So.2d 645 (Fla.1970); North Dade Imported Motors, Inc. v. Brundage Motors, Inc., 221 So.2d 170 (Fla. 1st DCA 1969); Warner v. Goding, 91 Fla. 260, 107 So. 406 (1926). Counsel for plaintiff cannot urge error in failing to give certain instructions if they were not requested. Atlantic Coast Development Corporation v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980); Dixie Farms, Inc. v. Timmons, 323 So.2d 637 (Fla. 3d DCA 1975); Frankowitz v. Beck, 257 So.2d 918 (Fla. 3d DCA 1972); Rule 1.470(b), Fla.R.Civ.P. Counsel for plaintiff cannot now claim error in the special interrogatory verdict submitted to and answered by the jury, because same was prepared by counsel for the plaintiff and any error thereby was induced. Walker v. Senn, 376 So.2d 410 (Fla. 1st DCA 1979); Behar v. Southeast Banks Trust Company, N.A., 374 So.2d 572 (Fla. 3d DCA 1979); Public Health Trust of Dade County v. O’Neal, 348 So.2d 377 (Fla. 3d DCA 1977). There is no error in defense counsel referring to admissions made in open court.

Therefore, for the reasons above stated, I would reverse the order granting a new trial with directions to reinstate the jury verdict and enter an appropriate judgment thereon.

Before BARKDULL, SCHWARTZ and BASKIN, JJ.

ON REHEARING

We reverse the order granting a new trial, with instructions to reinstate the final judgment theretofore entered in accordance with the jury’s verdict, upon the reasoning contained in Judge Barkdull’s original opinion set forth above.

Reversed and remanded, with directions. Judges BARKDULL and SCHWARTZ concur in the above.

BASKIN, J., adheres to her original opinion.

      . The distribution manager and his insurance company were also named as defendants. Plaintiff voluntarily dismissed those claims.

      . 440.10 Liability for compensation.—
      (1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees, or any physician or surgeon proving medical services under the provisions of s.440.13, of the compensation payable under ss.440.13, 440.-15, and 440.16.
      440.11 Exclusiveness of liability.—
      (1) The liability of an employer prescribed in s.440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.

      . It read, in part, as follows:
      “5. During the course of the litigation this Court rules there existed questions of fact as to the decedent’s status at the time of his death and concluded that the jury should determine the ultimate issue. In making this ruling that the jury should determine the ultimate issue, this Court believes it was the Court’s responsibility to interpret the contract between the minor plaintiff and his employer. This, the Court did not do. There was no issue in this case concerning the fact that the minor plaintiff was an employee for The Miami Herald when the minor plaintiff was delivering newspapers. At the time of the incident sued upon, the minor plaintiff was not within the sphere of the duties contained within the contract. This Court believes it was the Court’s responsibility to make that interpretation of the contract and to so inform the jury pursuant to a proper jury instruction, which this Court did not do. Since counsel for the defendants argued to the jury in closing argument the effect of the contract and its significance to the relationship of the parties, the Plaintiffs Motion for New Trial be and the same is hereby granted.”

      . "... I think this boy was clearly an employee. His employment agreement is in the record and it even says it specifically.”

      . “. .. 1 am not doing my job as a lawyer by telling you there were benefits received and workmen’s compensation. They paid the bills and there were benefits.
      Now, the reason that came into the case is because, and that is the same reason — the reason that that testimony was received was because if you are injured on the job and you are an employee, then you get a certain statutory workmen’s compensation award....”

      .“MR. GINSBERG: I don’t think there is a dispute that they offered workmen’s compensation benefits and it was received. And workmen’s compensation benefits were in fact received.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Trent PITTMAN, Appellee.
    No. 80-1493.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Rehearing Denied Jan. 29, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellee.
    Before HENDRY and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Whitlock v. State, 404 So.2d 795 (Fla.3d DCA 1981).


author: DANIEL S. PEARSON, Judge.

text:
    Arnold P. LEEDS, Appellant, v. CITY OF HOMESTEAD, a municipal corporation organized and existing under the Laws of the State of Florida, Appellee.
    No. 81-44.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Rehearing Denied Jan. 12, 1982.

      Brigham, Reynolds, Byrne & Moore and Celeste Hardee Muir, Miami, for appellant.
    Frank B. Pridgen, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The order under review denied Leeds’ motion to tax as costs the fees of an engineer employed by Leeds to give expert testimony. The engineer’s testimony was that the faulty operation of a sewerage lift station constructed by the City of Homestead on that portion of Leeds’ property taken by the City under its power of eminent domain resulted in the emission of noise, noxious odors and effluent and decreased the value of the adjoining property still owned by Leeds.

The damages to Leeds’ property which were sought to be established by the testimony of the engineer were not damages caused by the taking, but instead, damages resulting from the manner in which the lift station was constructed. Such consequential damages must be sought by a separate claim in tort and are not severance damages recoverable in eminent domain proceedings. Kendry v. Division of Administration, Department of Transportation, 366 So.2d 391 (Fla.1978); Division of Administration, Department of Transportation v. Hillsboro Association, Inc., 286 So.2d 578 (Fla. 4th DCA 1973). While it is true, as Leeds contends, that (a) a landowner’s expert witness fees are recoverable as costs in eminent domain proceedings, Dade County v. Brigham, 47 So.2d 602 (Fla.1950); (b) it is not essential to the recovery of such fees that the landowner succeed in recovering the damages which the expert’s testimony establishes, Hodges v. Division of Administration, Department of Transportation, 323 So.2d 275 (Fla. 2d DCA 1975); City of Miami Beach v. Liflans, 259 So.2d 515 (Fla. 3d DCA 1972); and (c) where the hiring of the expert is necessary to put the landowner on an equal footing with the condemning authority, the fact that the expert does not actually testify (or, in the present case, the ultimate rejection of his testimony) is not an impediment to the recovery of the expert’s fees, Dade County v. Renedo, 147 So.2d 313 (Fla.1962); Cheshire v. State Road Department, 186 So.2d 790 (Fla. 4th DCA 1966), it is nonetheless essential that the expenditure of such fees be reasonably and necessarily incurred in relation to a proper issue in the case. See Hodges v. Division of Administration, Department of Transportation, supra; Che shire v. State Road Department, supra. Because the expert’s testimony related to damages predictably not recoverable in the eminent domain proceedings, we find no abuse of discretion in the trial court refusing to tax the expert witness’ fees as costs.

Affirmed.

      . Leeds had ostensibly sold the land to the City, and the City constructed the lift station. Leeds later disputed any sale and brought a complaint alleging trespass and inverse condemnation. The City, pursuant to a court order that no effective sale had occurred, filed a petition in eminent domain proceedings and declaration of taking so as to legally acquire the land.

      . Leeds’ contention that he was compelled to hire his expert to combat contrary testimony of the City’s experts is totally without merit. The City’s position throughout the proceedings below was that the damages sought to be proved by Leeds through his expert were not recoverable. While the City was prepared to show that the lift station operated properly and did no damage to Leeds’ property, that was a fall back position for the City, not one it was required to prove and Leeds required to rebut.
      Leeds’ alternative contention that his need for an expert was occasioned by the trial court’s initial ruling that it would hear the testimony offered is equally without merit. Leeds did not obtain the expert in reliance on this ruling, and the trial court’s willingness to hear him out, over the City’s continued objection, did not make the expert’s testimony necessary to any real issue and cannot enhance Leeds’ right to recover the cost of the expert.

      . There is neither any factual basis, nor any factual finding, that the condition created by the sewerage lift station constituted an appropriation of, as distinguished from damage to, such property. Compare Kendry v. Division of Administration, Department of Transportation, supra. We cannot say that this question was so close that even though determined against Leeds the trial court abused its discretion in not awarding fees. Compare Hodges v. Division of Administration, Department of Transportation, supra.


author: MILLS, Judge.

text:
    STATE of Florida, Appellant, v. Daniel M. ALCANTARO, et al., Appellees.
    No. AC-182.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.

      Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellant.
    Michael E. Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for ap-pellees.
   MILLS, Judge.

The State appeals the trial court’s dismissal of escape charges against appellees. We reverse.

This case is a consolidated appeal of four cases involving eleven inmates incarcerated at Florida State Prison in Bradford County, Florida. The inmates were charged with escape on various specific dates from 29 May 1980 through 27 September 1980, contrary to Section 944.40, Florida Statutes (1979). The inmates filed various motions to dismiss with two common allegations: (1) the inmates lacked criminal intent to escape, and (2) the State would not be able to prove the inmates were in lawful confinement at the time of their escape because the intolerable prison conditions at Florida State Prison amounted to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 17 of the Florida Constitution. The inmates urged that the trial court’s prior but unrelated ruling, affirmed by this court in Graham v. Vann, 394 So.2d 180 (Fla. 1st DCA 1981), which held that the prison conditions at Florida State Prison amounted to cruel and unusual punishment and ordered an immediate prison inmate population reduction, mandated dismissal of the charges.

The trial court, relying on Vann, supra, dismissed the escape charges and stated at the hearing on the motions to dismiss, “I’m going to find it as a matter of law — a finding, as a matter of law, that the incarceration was cruel and unusual punishment, rather than having a jury find that to be the case as the defense to the crime of escape.” Additionally, the trial court’s order stated:

So then, in the instant cases, the state has charged that the defendants “left” lawful confinement, for which the state seeks the sanction of an adjudication of guilt and the imposition of additional, as opposed to continued, incarceration.
May the state allege lawful confinement in these cases? — surely; can the state prove it as a matter of law? — just as surely not.

We hold, however, the trial court incorrectly attempted to expand what has been recognized as a limited factual defense to the crime of escape, “the narrow but time-honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances,” Helton v. State, 311 So.2d 381 (Fla. 1st DCA 1975), into a general legal defense by allowing defendants to allege the unconstitutionality of prison conditions in general without showing how these prison conditions specifically necessitated the defendants’ escape.

At common law, the defense of duress or necessity was available to the charge of escape but only in very limited factual situations. “Inevitably, severe limitations were affixed to this defense and the general rule evolved that intolerable living conditions in prison afforded no justification for escape.” People v. Lovercamp, 118 Cal.Rptr. 110, 43 Cal.App.3d 823 (1974). See also People v. McKnight, 626 P.2d 678 (Colo.1981); State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319 (1979); and State v. Alberigo, 109 Ariz. 294, 508 P.2d 1156 (1973).

This general rule, however, has been relaxed somewhat over the years in recognition of the reality of life inside penal institutions. The defense of duress or necessity has now been recognized in cases involving lack of appropriate medical attention, Pavero v. State, 347 So.2d 781 (Fla. 1st DCA 1977); threats of sexual assaults, People v. Lovercamp, supra; Lewis v. State, 318 So.2d 529 (Fla. 2d DCA 1975); People v. Unger, 362 N.E.2d 319 (Ill.1977); and threats of correctional officer abuse, Esqui- bel v. State, 91 N.M. 498, 576 P.2d 1129 (1978). These cases recognizing the defense of duress or necessity contain one common thread: the defendant’s conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable alternative other than to escape. The specific and imminent threat was personal to the defendant and was not a general allegation that the conditions of incarceration were intolerable. See generally Annot. 69 A.L.R.3d 678 (1976).

The appellees have failed to cite any authority for the proposition that intolerable prison conditions in general will support an inmate’s request for an instruction on necessity and we have found none in independent research. We, therefore, decline to so hold. We join the majority of other states which hold that an inmate must put forth evidence of a real, imminent danger of death or great bodily harm, specific to himself, rather than the inmate population in general, before he may claim the defense of necessity. As will be seen in the following discussion, prior case law has also imposed other prerequisites which must be shown in order to claim the defense of necessity or duress.

In Florida, there are two elements to the crime of escape: the physical act of leaving or not being in custody, and the intent to avoid lawful custody. Helton v. State, supra. Intent may be proven by circumstantial evidence. Helton escaped from county jail with other inmates on Christmas Eve. He argued he lacked the requisite intent to escape because he was intoxicated. Without deciding whether intoxication could vitiate the intent requirement, this court held Helton showed the requisite intent to avoid lawful custody by remaining at large for one month and specifically not returning for two weeks after promising by phone to surrender.

As to the requirement of being in lawful custody, the Second District Court of Appeal in State v. Fulkerson, 300 So.2d 276 (Fla. 2d DCA 1974) held, “where one is imprisoned under some color of law, he is not entitled to resort to self help [escape] but must apply for his release through regular legal channels. The possibility of violence incident to a prison break dictates strongly against any other rule.” (Emphasis supplied). Fulkerson was held beyond the statutory maximum of 30 days for holding an out-of-state fugitive. Sixty-five days after his original arrest he was arrested pursuant to a governor’s warrant and he escaped several days later. He argued that he was not in lawful custody since the state had no right to retain him longer than the 30-day statutory period.

In Lewis v. State, 318 So.2d 529 (Fla. 2d DCA 1975), the defendant alleged he was forced to leave custody because of specific threats of sexual assault from his cellmate. He contended that his prior complaints to the prison authorities went unheeded and he was returned to the same cell with his former cellmate. He argued he was trying to report these matters to the circuit judge when he left confinement and also that he lacked the intent to escape because he did not leave the compound but merely climbed the radio antenna. The other inmate he left with successfully escaped. The court held that if Lewis’ allegations were true “this could have been a valid defense insofar as it might establish a lack of willful intent to avoid lawful confinement or at least create a reasonable doubt that there was one.”

Medical necessity was recognized as an arguable defense by this court in Bavero v. State, 347 So.2d 781 (Fla. 1st DCA 1977). Bavero, a lifelong asthmatic, had been reassigned from a medical grade 3 (light duty) classification at Avon Park Institution to a medical grade 1 (physically fit for any manual labor) at Gainesville Road Camp, a hard labor work camp. Upon stating one morning that his asthma prevented him from completing his work duties, he was placed in “the box” for 2V2 hours as punishment and later told he would work like everyone else or be put in the box and forgotten.

Bavero was given a spray mist inhaler for his condition but warned not to use it more than six times a day since overuse could cause cardiac arrest. In order to perform his duties Bavero was forced to use the inhaler two to four times per hour. Bavero made several other attempts to make his condition known to the prison administration but he was not successful. He escaped and argued he was seeking to bring his problem to the attention of the federal authorities in Jacksonville. This court held the proffered testimony regarding his alleged medical necessity should have been allowed to go to a jury on the question of whether he left confinement with the intent to avoid lawful custody:

[A]nd if the jury finds . . . that appellant had reasonable grounds to believe that there was a real, imminent and impending danger to him of death or serious bodily harm if he did not leave the place from which he was confined and that he left because of such danger rather than with the intent to elude lawful authority, the jury should find him not guilty of the crime of escape.

Bavero, supra.

Likewise, in Watford v. State, 353 So.2d 1263 (Fla. 1st DCA 1978), we held:

In summary, we declare the general rule to be that when the State has established its right to legal custody and the conscious and intentional act of defendant of leaving the established area of such custody, the offense of escape is prima facie established. In such circumstances, the only viable defense to such a charge that may be available is necessity involving, as to such defendant, reasonable grounds to believe that he is faced with a real, imminent and present danger of death, great bodily harm, or such type of danger to his health, if he does not temporarily leave his place of confinement. See Annot., 69 A.L.R.3d 678 (1976). (Emphasis supplied).

Following the reasoning in the above cited cases, we specifically adopt the conditions which must be shown prior to an instruction on necessity or duress as enunciated in People v. Lovercamp, 118 Cal.Rptr. 110, 43 Cal.App.3d 823 (1974). In Lover-camp, the court held that a limited defense of necessity is available if the following conditions exist:

(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.

In Lovercamp, an instruction on the defense of necessity was allowed to two female inmates who escaped to avoid a specific threat of forcible sexual attack by a group of lesbians. As noted in Lovercamp, simply alleging an escape to avoid homosexual attack will not suffice to prevent a conviction. Likewise, in this case, simply alleging that the general prison conditions are violent and brutal amounting to cruel and unusual punishment will not suffice to prevent a conviction for escape.

The last Lovercamp criteria, regarding an inmate reporting to the proper authorities when he or she has attained a position of safety, is supported by the United States Supreme Court’s ruling pertaining to the availability of the defense of necessity or duress to a charge of escape from a federal institution: United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

[I]n order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure [footnote omitted] and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force.

We find the trial court’s ruling that the State cannot prove its right to lawful custody because of the ruling in Vann, supra, untenable. A finding that prison conditions violate the United States and Florida Constitutions does not negate the state’s right to legal custody of the inmates. It does, however, as the trial court correctly ruled in Vann, permit the imposition of sanctions, including ordering an immediate inmate population reduction, to mandate compliance with constitutional requirements. Under the trial court’s theory, a ruling such as Vann would give the inmates the opportunity to escape for whatever reason and then raise the finding that the prison conditions did not meet constitutional muster as an absolute defense to the charge. Such a ruling could result in total anarchy in the penal system by encouraging prisoners to escape with the hope of raising general prison conditions as a defense.

Redress for correction of general prison conditions is to be had through traditional legal channels pursuant to the United States and Florida Constitutions as was done in Vann, supra. Every trial for escape is not to be turned into a hearing on the current state of the Florida penal system. See United States v. Bailey, supra. Prisoners are not entitled to invoke the defense of necessity or duress to a charge of escape by introducing evidence as to the general conditions of confinement without first complying with the specific criteria outlined above.

Accordingly, the trial court’s order is REVERSED and REMANDED for proceedings consistent with this opinion.

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


text:
    Ricky STEPHENSON and Carl Griggs, Appellants, v. The STATE of Florida, Appellee.
    Nos. 79-1997, 79-987 and 79-1805.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Rehearing Denied Jan. 13, 1982.
    Bennett H. Brummer, Public Defender and Mel Lámelas, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

These consolidated appeals are brought by Ricky Stephenson and Carl Griggs from their convictions and sentences entered by the Circuit Court in and for Dade County, Florida, pursuant to jury verdicts finding them guilty of certain crimes charged in a multiple count indictment.

Stephenson was found guilty of burglary, kidnapping, sexual battery, possession of a firearm while in the commission of a felony and unlawful possession of a firearm by a convicted felon. In a separate proceeding the trial court revoked the probation on which he had been placed for a prior conviction.

Griggs was found guilty of burglary and kidnapping.

The several grounds relied on by appellants for reversal have been carefully considered in the light of the record, briefs and arguments of counsel, and we find that no reversible error has been shown. The record discloses that the case was fully and fairly tried, that the verdicts are supported by the evidence and that the several rulings of the trial court challenged by appellants did not on the record and under the law constitute harmful error.

Therefore the judgments and sentences appealed are affirmed.

Affirmed.


text:
    Charles LAU, Appellant, v. Barbara Ann LAU, Appellee.
    No. 81-210.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Rehearing Denied Jan. 21, 1982.

      Richard, Tharp & Pemsler, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for ap-pellee.
    Before HENDRY and FERGUSON, JJ. and VANN, HAROLD (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment granting the wife’s petition for modification of a dissolution judgment. The wife has cross-appealed the trial court’s denial of her request to make the increased benefits retroactive to the date of her modification petition.

The parties were granted a dissolution in 1971. At the time of dissolution, the husband’s annual income was approximately $13,000; the wife had no income. The parties had been married sixteen years. The wife was awarded $350 per month alimony, and the husband was ordered to pay child support of $100 per month for each of the parties’ four children. Exclusive use of the marital home was given to the wife until the youngest child reached the age of majority. Pursuant to the property settlement agreement between the parties, the wife was to make all future mortgage payments on the former marital home, and at the time of sale, all amounts paid by the wife toward the principal would be credited to her and the proceeds from the sale then divided. The husband was to maintain an existing medical insurance policy for the children, and medical expenses in excess of the insurance coverage were to be paid by the wife.

The trial court granted the wife’s petition for modification, finding the wife and minor children had an increased need and the husband an increased ability to provide that need. The modification order granted the wife $600 a month alimony; ordered the husband to reimburse the wife “for her contributions to the mortgage payments, taxes, insurance and repairs to the former marital home at the time the house is sold”; and ordered the husband to share the costs of medical and dental expenses, above those covered by insurance.

There being substantial competent evidence to support the trial court’s order modifying the amount of alimony, we affirm, Zammas v. Zammas, 328 So.2d 519 (Fla.3d DCA 1976); Meltzer v. Meltzer, 262 So.2d 470 (Fla.3d DCA 1972), finding no abuse of the trial court’s discretion.

The record clearly reflects that the allocation by the parties of the responsibility for the mortgage payments, taxes, insurance, house repairs, and children’s medical expenses was part of the property settlement agreement. As has been held on numerous occasions, the property settlement is not modifiable. See, e.g., Rubio v. Rubio, 347 So.2d 1093 (Fla.2d DCA 1977); Gilbert v. Gilbert, 312 So.2d 511 (Fla.3d DCA 1975); Vandervoort v. Vandervoort, 277 So.2d 43 (Fla.3d DCA 1973). Therefore, we reverse that part of the trial court’s order.

Finally, we affirm the trial court’s denial of the wife’s request to make the modified alimony retroactive. The decision to make alimony retroactive is within the trial court’s discretion, Brisco v. Brisco, 355 So.2d 506 (Fla.2d DCA 1978).

Affirmed in part, reversed in part, and remanded.

      . Only two of the four children are still eligible for support, two having reached the age of majority.

      . While the husband is correct that the trial court may not consider the husband’s present spouse’s income in determining the husband’s increased ability to pay, see Schneider v. Schneider, 348 So.2d 612 (Fla. 4th DCA 1977), and even assuming, arguendo, the trial court did so, any error is clearly harmless, because the husband’s income alone, now more than three times greater than it was in 1971, is substantially increased.

      . The trial court also (a) increased child support payments to $250 per child monthly, and (b) ordered the husband to pay the wife $5,000 in attorneys’ fees. The husband has not appealed the increase in child support, and we affirm that part of the order. The wife concedes that absent ample evidence to support the attorneys’ fee award, it was in error. We agree, see Ortiz v. Ortiz, 211 So.2d 243 (Fla.3d DCA 1968); Lyle v. Lyle, 167 So.2d 256 (Fla. 4th DCA 1964), and reverse the award and remand for appropriate hearing. The wife, of course, will be required to prove that the fee is reasonable, that she is unable to pay the fee, and that the husband is able to pay. Woodworth v. Woodworth, 385 So.2d 1024 (Fla. 4th DCA 1980).


author: BARKDULL, Judge.

text:
    SPORTATORIUM, INC., Appellant, v. Mark KAMILAR, Appellee.
    No. 81-1426.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Rehearing Denied Jan. 12, 1982.
    Lanza, Sevier & Womack and James C. Kelley, Coral Gables, for appellant.
    Sweetapple & Kamilar, Miami, for appel-lee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

The appellant brings this appeal, seeking to review an order denying its motion to vacate a default.

The appellee was injured in an altercation at the appellant’s facility in Broward County. As a result of the alleged injuries, he filed the instant suit. Service was perfected on a Lia Damonte, as agent of the appellant, on March 20, 1981. The complaint was given to Gordon Jennings, Comptroller of Sportatorium. He, in turn, sent the complaint and summons to the Adler Agency, where it was received April 1,1981. The documents were returned to Jennings on April 22, with a letter indicating they were no longer insurance agent for the facility. Jennings then learned that Georgetown Agency carried Sportatorium’s coverage. He thereupon forwarded the papers to the Georgetown Agency, which received them on April 28. They were forwarded to Hull & Company, the producing agent, who received them on May 1. Hull & Company then notified the Guaranty National Insurance Company in Englewood, Colorado, which referred the matter to counsel in Dade County.

During the interim, plaintiff caused a default to be entered against the appellant on April 10, 1981. Upon learning of the default, counsel for the appellant contacted the appellee’s counsel on or about May 5 and informed him of his representation of Sportatorium. Sportatorium’s counsel also requested the appellee’s counsel to voluntarily vacate his default. The appellee’s counsel requested that the request be put in writing, which was agreed to. On May 11, appellee’s counsel not having heard from appellant’s counsel filed a motion for final judgment. On May 12 the appellant filed its motion to vacate the default. On May 14 a final judgment in default was entered. On May 26 appellant moved to set aside the final judgment in default, alleging excusable neglect in failure to answer and that it had a meritorious defense, to wit: a denial of negligence, the allegation of negligence of others, and the allegation of comparative negligence or volitional acts of the plaintiff. The motion was accompanied by an answer, affidavit, a motion to dismiss, and a motion to abate alleging improper venue. The cause came on for hearing on the motion to vacate default, after which the trial court entered the order appealed wherein it found the appellant failed to demonstrate the requisite showing of excusable neglect. Therefore, the trial court denied the motion to vacate.

The appellant contends the trial court erred in denying the motion to vacate, on the ground that under the doctrine of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962) and its progeny, the appellant has demonstrated both excusable neglect and a meritorious defense. This failure to grant the motion to vacate default constituted a gross abuse of discretion. As stated in North Shore Hospital, Inc. v. Barber, supra, whether a default should be opened must depend on all the facts and circumstances connected with the case. This being so, under the facts of this case, including the time involved, it would appear that the trial court incorrectly determined that the appellant failed to prove excusable neglect, particularly in light of the established policy to liberally set aside defaults. See: Cunningham v. White, 390 So.2d 467 (Fla.3d DCA 1980).

Therefore, we reverse the order denying the motion to vacate the default, with directions to vacate the default and permit the defendant to file its defenses.

Reversed and remanded, with directions.

      . The appeal is taken from a non-final order, pursuant to Rule 9.130(a)(3)(C)(iv), F.A.R., and Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla.3d DCA 1981).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Dennis VAN PROOYEN, Appellant, v. Sharon Lynn VAN PROOYEN, Appellee.
    No. 81-320.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    Rehearing Denied Dec. 28, 1981.

      Bernard D. Sommers, Maitland, for appellant.
    Lawrence H. Hornsby, Orlando, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Dennis Van Prooyen, appeals from an order denying reconsideration of his petition for modification of the support provisions of a final judgment of dissolution of marriage.

The final judgment of dissolution contained provisions which were based on a separation agreement. These included the husband’s obligation to pay one-half of the mortgage payments on the residence occupied by the wife, $100 per week child support, $50 per week permanent alimony, and one-half the cost of school tuition and hospitalization.

The husband sought modification of the support provisions based on a decline in his earnings and an increase in the wife’s earnings. The court discontinued the mortgage payments but declined to modify the remaining obligations.

The court awarded the wife attorney’s fees. Although no pleading requesting modification was presented by the wife, the court modified the judgment to provide that the husband would be required to pay medical expenses not covered by insurance and one-half of all dental expenses. Nothing to such effect was contained in the separation agreement or the final judgment.

The hearing was not recorded and the only record before us consists of the pleadings and the financial affidavits. We cannot conclude that the trial judge abused his discretion on the basis of the affidavits alone. Facts could have been revealed on direct or cross-examination of the parties which satisfied the trial judge that no modification was warranted. See Williamson v. Williamson, 335 So.2d 346 (Fla. 1st DCA 1976).

As to the modification requiring the husband to undertake an obligation for medical expenses not covered by insurance and dental expenses, the husband contends the court was in error because the wife filed no petition for modification and no evidence was adduced in support of such modification. Ordinarily an adjudication must be responsive to the issues presented by the pleadings. Mouyois v. Mouyois, 97 So.2d 718 (Fla. 3d DCA 1957). Appellant, while acknowledging that Florida Rule of Civil Procedure 1.190(b) permits amendments to conform with the evidence introduced by consent, contends that such a situation did not exist in this case. He alleges that no evidence was introduced by appellee which would authorize the court to permit such an amendment.

This argument, of course, also requires an examination of a non-existent record and for that reason would ordinarily fail. However, we do not think that under the circumstances of this case it was proper for the court to permit appellee to ask for a modification for the first time at the hearing. Appellee filed no pleading of any type, either in response to appellant’s petition for modification or in a separate petition seeking modification of the husband’s obligations. Florida Rule of Civil Procedure 1.190(a) provides that a party “may amend his pleading.’’ We think the rule contemplates a pleading of some kind. The parties concede that appellant objected to the modification. Therefore, we conclude that it was error for the trial court to require the husband to pay the children’s medical expenses not covered by insurance and dental expenses absent a pleading requesting such relief and we reverse the order as to such requirement.

AFFIRMED in part and REVERSED in part.

ORFINGER and COBB, JJ., concur.


text:
    Heriberto RIPOLL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2212.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Rehearing Denied Jan. 12, 1982.
    Michael I. Libman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Calixto v. State, 406 So.2d 510 (Fla. 3d DCA 1981); Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978); State v. Padilla, 235 So.2d 309 (Fla. 3d DCA 1970).


text:
    Buford SHEFFIELD, Appellant, v. The STATE of Florida, Appellee.
    No. 81-545.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Rehearing Denied Jan. 11, 1982.
    Carl L. Masztal and John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Jones v. State, 387 So.2d 401 (Fla. 5th DCA 1980); Eutsey v. State, 383 So.2d 219 (Fla.1980); Young v. State, 305 So.2d 307 (Fla.3d DCA 1974); State v. Barber, 301 So.2d 7 (Fla.1974); Shifrin v. State, 210 So.2d 18 (Fla.3d DCA 1974); Rule 3.190(c), Fla.R.Crim.P.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Carl RAGUCCI, Appellant, v. CITY OF PLANTATION, a municipal corporation, and William E. Greene, Chief of Police, Appellees.
    No. 80-1163.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.

      Howard M. Zeidwig, P. A., Fort Lauder-dale, for appellant.
    Frederick C. Heidgerd of Lunny, Tucker & Heidgerd, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant brought the present action against the City and its Chief of Police. In Count I he sought damages for violations of the City’s Charter and Chapter 112, Florida Statutes (1977), which allegedly abridged his civil and statutory rights and deprived him of his property without due process. In Count II he sought injunctive relief, reinstatement and back pay because of the alleged statutory violations. The trial court entered judgment for appellees, finding that they had not abridged appellant’s civil and statutory rights nor deprived him of his property without due process. We reverse.

On September 14,1978, the chief of police of the City of Plantation notified appellant, who was then a lieutenant in the police department, that his services were terminated as of that date. Appellant was given a hearing before a three-member Complaint Review Board pursuant to Section 112.532(2), Florida Statutes (1977). Two of the three members voted to sustain the charges of “gross negligence and dereliction of duty” and “conduct unbecoming a police officer” and recommended that appellant be dismissed. Appellant was represented by counsel and fully participated, in the hearing. It was and is the City’s position that the Board was advisory only.

Appellant, while participating in the above hearing, contended that he should not have been dismissed by the Chief of Police and that the City’s Charter required that appellant be suspended by the Mayor, and be furnished with a notice of the cause of the suspension and of the next regular meeting of the City Council. Further, appellant contended that any removal must be by the City Council. It was the City’s position that Part VI, Chapter 112, Florida Statutes (1977), the so-called Law Enforcement Officers Bill of Rights, had supplanted the administrative procedures of the City’s Charter; and, accordingly, appellant was not entitled to insist that any suspension and removal be decided by the Mayor and the City Council.

We hold that the Law Enforcement Officers Bill of Rights did not vitiate Section 15 of the City’s Charter. The City Charter provided the City’s law enforcement officers with an adjudicatory hearing before the City Council upon the issue of their removal for cause. While the general law makes provision for a Complaint Review Board it says nothing of its power. The City of Plantation has taken the position here that the Board was only advisory, which was our holding in City of Hallandale v. Inglima, 346 So.2d 84 (Fla. 4th DCA 1977). See also Mesa v. Rodriguez, 357 So.2d 711 (Fla.1978). Had the statute provided for an adjudicatory hearing before the Complaint Review Board we would agree that the general law governed.

What is at stake here is due process. Section 15 of the Charter conveyed upon the City’s law enforcement officers a property interest in their employment because it expressly required that their termination be for cause. Thurston v. Dekle, 531 F.2d 1264, 1272 (5th Cir. 1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978), held:

City employment which allows termination only for cause creates a constitutionally protectable property interest. Once created, the employment property interest may not be taken away without due process. (Footnotes omitted.)

See also Johnson v. School Board of Palm Beach County, Florida, 403 So.2d 520 (Fla. 1st DCA 1981) wherein the court held that a teacher “by virtue of his tenure, had a legitimate claim of entitlement to continued employment absent sufficient cause for his discharge, and therefore had a property interest in his continued employment of which he could not be deprived without procedural due process meeting constitutional standards,” and Allison v. City of Live Oak, 450 F.Supp. 200 (M.D.Fla.1978). As for what is due process the Supreme Court held in Board of Regents v. Roth, 408 U.S. 564, 569-570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972):

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. (Footnotes omitted.)

Section 15 of the Charter clearly fulfilled the requirements of Roth, supra, by providing a pre-termination adjudicatory hearing. It was not the intent of the legislature by its enactment of the Law Enforcement Officers Bill of Rights to take away from appellant, who had a property interest in his employment, the procedural due process which Section 15 provided and to substitute in its place an advisory hearing whether pre- or post-termination. Accordingly, appellant was deprived of procedural due process by noncompliance with Section 15 of the City’s Charter and is entitled to be reinstated and to any damages that he may be able to establish that he suffered as a result of the City’s failure to comply with Section 15.

Lastly, we find no merit in appellant’s argument that he was entitled to be informed of an investigation of him by another police agency.

For the reasons given above the judgment is reversed and remanded with directions (a) to enter a mandatory injunction requiring appellees to reinstate appellant and (b) to proceed to a determination of appellant’s damages.

REVERSED AND REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

I concur completely in the majority opinion. Stated simply, the city has the authority to determine the conditions of employment of its employees including the grounds and manner of termination of employment. Under the provisions of Section 15 of the city’s charter authority was vested in the city council to terminate the employment of city police officers. Chapter 112 of the Florida Statutes does not purport to supersede municipal charter provisions such as that involved herein. The city, of course, could amend the charter provisions at any time. However, it is undisputed here that the city made no attempt to amend the charter provisions or to comply with those provisions.

Notwithstanding the failure of the city to previously comply with its own code in terminating appellant, I see no reason, assuming adequate grounds exist, why the city cannot now act to properly terminate appellant’s employment. In addition I believe any damages claimed by appellant should be limited to the difference between what he would have earned as a police officer with the city and what his actual earnings have been in the interim period since his prior discharge. Cobb v. Brautigam, 239 So.2d 125 (Fla. 1st DCA 1970); Rubin v. Shapiro, 198 So.2d 854 (Fla. 3d DCA 1967), cert. denied 204 So.2d 331 (Fla.1967).

      . The letter stated:
      The reason for this termination is the evidence that has been gathered in an Internal Investigation which was started as a result of your conduct and supervision in the incident of discharging your weapon at a wrong address. Furthermore, this office has evidence that over a period of the last year, specifically January 1978, you have been involved in and with persons using your residence for the purpose of Federal violations: namely, the sale of fully automatic weapons and the observation of narcotics on your permises [sic] at the time of the transaction.

      . Section 112.532(2), Florida Statutes (1977) provides:
      (2) COMPLAINT REVIEW BOARDS. — A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members.... The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.

      . Section 15, Chapter 29446, Laws of Florida (1953), being the City Charter, as amended by Chapter 69-1499, Laws of Florida (1969) provided that it was the Mayor’s duty:
      to suspend any appointed officer, except councilmen, at any time for gross neglect or dereliction of duty; provided, however, that the grounds for suspension of a police officer ... shall also include the following: Incompetency, neglect of duty, drunkenness, immorality, failure to obey orders given by proper authorities, insubordination or any other just or reasonable cause, at the same time notifying such officer or police officer in writing the cause of the suspension, and giving him notice to appear at the next regular meeting of the Council and answer thereto.
      Section 15 further provided:
      That when said meeting shall be held, to report such suspension and the cause thereof [sic]. If the Council deems the cause sufficient for removal, it shall remove the suspended officer and the vacancy shall be filled as herein prescribed.

      . The effect of the Municipal Home Rule Powers Act upon the City Charter is recited in Section 166.021(4) and (5), Florida Statutes (1977):
      (4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the Constitution. 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 and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed.
      (5) All existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except as otherwise provided in subsection (4) shall become an ordinance of that municipality on the effective date of this act, subject to modification or repeal as other ordinances.

      . See note 2, supra.

      . By our decision in City of Hallandale v. Inglima, 346 So.2d 84 (Fla. 4th DCA 1977) we did not intend to preclude an employing agency from making the action of such Board adjudicatory and not advisory. The Attorney General in 76-38 AGO said:
      Since no quasi-judicial powers or duties are prescribed by statute for any such complaint review board, any such board that might be established in connection with s. 3 of the act is not, by the terms of Ch. 74-274, made an “adjudicatory board” or one vested with quasi-judicial powers, duties, or functions.
      However, a municipality, under the authority of the Municipal Home Rule Powers Act (Ch. 166, F.S.), can create such a board in conjunction with the complaint processing and investigative system mandated by s. 3 (s. 112.533, F.S.) of the act and prescribe its powers, duties, and functions so as to grant the board such quasi-judicial powers necessary to give the findings and determinations of any such board the status of final adjudications, or, in its sound discretion, it may limit such board’s findings to an advisory or recommendatory status.

      . Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) later held that a post-termination hearing was sufficient to protect due process interests. Accord City of Fort Lauderdale v. Campbell, 362 So.2d 716, 718 (Fla. 4th DCA 1978).

      . See West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla. 3d DCA 1979).

      . The record reflects that the City Attorney represented to the trial court without objection:
      We have otherwise stipulated with Mr. Ze-idwig [appellant’s attorney] that should the Court determine that the termination was improper, that we would set at another date testimony on the damages that would flow.
      Therefore, we do not consider the appropriate measure of damages nor any mitigation thereof.


author: DAUKSCH, Chief Judge.

text:
    John G. PARRY, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 81-474.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 7, 1982.

      Walter A. Ketcham, Jr. of Walker, Buck-master, Miller & Ketcham, P. A., Orlando, for appellant.
    H. A. Rigdon, Jr., Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment for the insurance company in a suit by the insured to require the insurance company to pay for a theft loss of a boat. The appellant urges, and we agree, that the trial court erred in refusing to direct a verdict for appellant.

Appellant left his boat and trailer at an automobile service station to display it and offer it for sale. The boat was secured by a lock in some manner and appellant told his insurance agent he had it for sale at the service station. Appellant was the only person who had a key to the lock which secured the boat. The appellant had sold other property from this service station location and the insurance agent gave his consent to place the boat there for sale.

One morning appellant drove into the station to buy gas for his car and was told by the attendant that the boat was missing. Appellant appeared “upset and distraught” and waited for about one hour and a half for the owner of the station to come to work. When the station owner came it was determined the boat must have been stolen so the police were called and an insurance claim was made.

The insurance claim was denied on the basis that the company felt the appellant was responsible for the theft of the boat. The appellee presented evidence that appellant bought a new boat shortly before this subject boat was stolen and that he intended to use the proceeds of the sale of his old boat to pay the ninety-day note he owed for money borrowed to purchase the new boat. Appellee also offered evidence that appellant had in the past submitted an “altered” bill to another insurance company regarding a lightning loss claim. Appellant denied it was an altered bill and it was established that the insurance company paid a portion of that claim but not all of it. As one of the points on appeal, appellant urges that the allowing of the evidence regarding this other claim was error. However, appellant failed to object to this evidence so the error, if it was error, was not preserved for our determination. The fact that appellant made a motion in limine and a general objection before the testimony is not sufficient to preserve the error for review. The specific question must be objected to when asked at trial or the error is waived. Swan v. Florida Farm Bureau Insurance, 404 So.2d 802 (Fla. 5th DCA 1981).

As to the legal sufficiency of the evidence to permit the case to go to the jury, we must conclude it was abundantly clear that appellant had suffered the loss by theft as claimed and there was no evidence appellant procured or caused the theft as was contended by the appellee. Although appellee attempted by inference to prove appellant’s complicity by pointing to the previous contested lightning loss claim, and even though it established the fact that appellant was indebted for a new boat purchased before the loss qf the old boat, and it established the fact that appellant waited an hour and a half after the boat was discovered missing, these are hardly proof of appellant having stolen his own boat. Taking these inferences either separately or together they do not amount to competent substantial legal evidence to prove appel-lee’s asserted defense.

We have examined the evidence in a light most favorable to appellee and in accordance with the standard for review by appellate courts in making such a review. We must conclude from that examination that there was no rational predicate for the jury’s verdict and the trial judge should have directed a verdict for the appellant when requested. Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st DCA 1975); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975); Clements v. Plummer, 250 So.2d 287 (Fla. 1st DCA 1971); Corum v. Warren, 200 So.2d 829 (Fla. 1st DCA 1967).

REVERSED for entry of judgment for appellant.

ORFINGER and COWART, JJ., concur.


author: SHARP, Judge.

text:
    SUN CHARM RANCH, INC., etc., et al., Appellants/Cross-Appellees, v. The CITY OF ORLANDO, etc., Appellee/Cross-Appellant.
    Nos. 79-501, 80-44.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 6, 1982.
    James E. Foster and Carl W. Hartley, Jr., Orlando, for appellants/cross-appellees.
    Jon M. Wilson, Orlando, for appel-lee/cross-appellant.
   SHARP, Judge.

Sun Charm Ranch, Inc., and other landowners appeal following a jury trial in which they were awarded fifty-one thousand five hundred dollars ($51,500) for the taking of their property. The City of Orlando (the condemning authority) cross-appeals the award of two appraiser fees to Sun Charm by the lower court and the procedure followed in the case of allowing Sun Charm to call an appraiser originally retained by the City (but not expected to be called at trial) as its witness on the issue of fair compensation. Sun Charm claims the trial court erred in not permitting it to bring out on the direct examination of this expert or by way of rehabilitation the fact that he was originally employed by the City. The questions in this case are apparently ones of first impression in this State. We affirm the lower court’s rulings in all respects.

I. SHOULD A CONDEMNEE BE ALLOWED TO CALL AN APPRAISER ORIGINALLY RETAINED BY THE CONDEMNOR AS ITS WITNESS ON THE ISSUE OF FAIR VALUE OR JUST COMPENSATION?

The weight of authority presently allows the condemnee to call the condemn- or’s expert witness at trial and present to the jury that witness’ opinion on value. The traditional barriers to this practice— work product privilege, attorney-client privilege, and “unfairness” — have been substantially eroded in this context. In Florida, however, a remnant of the “work product” privilege remains in the form of a procedural rule which requires a showing of special or exceptional circumstances before a party can depose an adversary’s expert witness who is not to be used at trial.

Permitting the landowner to call the condemnor’s appraiser as his witness at trial is consistent with Florida’s long-standing tradition of vigilantly protecting the interest of persons whose land is being taken from them by the power of eminent domain. This vigilance has produced rulings which discriminate against the condemnor in such proceedings, and favor the landowner. We refrain from expressing any opinion as to whether or not the condemnor should be allowed to call at trial as its witness, an appraiser the landowner retained but did not plan to call at trial.

In this case, the City’s expert, Mr. Pinel, was originally retained by it in 1976 to make an appraisal of the parcel in connection with a project which was later abandoned. When the current eminent domain proceeding got underway he was retained again by the City to assist in the analysis of the various expert opinions on value involved with the multiple parcels, although he was not scheduled to be a witness for the City because of a “conflict of interest” which had developed since his original employment. In order to be able to testify, Mr. Pinel was required by the court to update his original appraisal. At trial, he testified that the landowners’ parcel was worth sixty-six thousand dollars ($66,000), and another appraiser for the landowner testified it was worth sixty-one thousand to sixty-four thousand eight hundred dollars ($61,000 — 64,800). The City’s appraiser testified it was worth fifty-one thousand five hundred dollars ($51,500) — the amount awarded by the jury.

The City argues it was error (although possibly “harmless” in this case) to require Mr. Pinel to update his 1976 appraisal, and to assess the City with his expenses. Because Mr. Pinel was in fact being retained by the City in connection with these same condemnation proceedings, although not as a prospective witness, he clearly must have been well aware of the current value of the land, and there was no showing by the City of any untoward expense or hardship on Mr. Pinel’s part, to update his prior opinion under these circumstances. We therefore conclude that the trial court did not err in requiring his testimony, or in allowing the expenses thereof to be assessed against the City.

II. SHOULD THE CONDEMNEE, WHO HAS CALLED AN APPRAISER AS HIS EXPERT WITNESS, BE ALLOWED TO BRING OUT ON DIRECT EXAMINATION OR ON REDIRECT TO REHABILITATE THE WITNESS, THE FACT THAT THE WITNESS WAS ORIGINALLY RETAINED BY THE CON-DEMNOR?

An examination of decisions outside Florida shows that courts have reached different conclusions on this issue. In City of Baltimore v. Zell, 279 Md. 23, 367 A.2d 14 (1977), the court characterized this question as a kind of “routine background” question attorneys are permitted to ask for the purpose of establishing the status and credibility of a witness. This view appears to miss the point that such a revelation is such a powerful nugget of information it is anything but “routine.”

In Arkansas State Highway Comm’n v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972), the court recognized the strong impact of this information, but concluded that it was highly relevant and legitimate. This holding is consistent with Arkansas’ common law rule that a party can attack an adversary in any ease by showing he consulted an expert and then failed to call him.

Florida has no common law rule similar to Arkansas’, and we are reluctant to adopt a version of it for our State. The relevancy of this evidence is the inference that the party who fails to call an expert is covering up harmful evidence or concealing bad facts. But there are many other reasons why an expert consulted prior to trial may not be called: inadequate background and qualifications; ability to testify in court not as good as another available expert’s; scheduling problems; fees too high; testimony cumulative to another expert’s. Further, expert opinion is not “fact.” It is supposed to help the fact-finder discern the truth of the matter in controversy. Such opinions often vary and at trial, the experts may absolutely contradict one another. So long as it is legitimate and honest, each party should be free to seek out and produce at trial the expert testimony most favorable to his case. We question the fairness of a rule that would require a party to explain and apologize to the jury for not having called an expert witness to testify.

Most jurisdictions do not permit this line of questioning. In State v. Biggers, 360 S.W.2d 516 (Tex.1962), the court said the fact of prior employment was not relevant to the issues in the case and it could only serve to create the unjustifiable impression with the jury that the condemnor was suppressing evidence.

And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence. 360 S.W.2d at 518.

Agreeing with Texas, the court in State ex rel. Smith v. Wilkinson-Snowden-McGehee, Inc., 571 S.W.2d 842 (Tenn.App.1978), pointed out that there was no real harm done in excluding such testimony, but its allowance could do much harm. It noted that jury verdicts in cases where this testimony was allowed often come in very close to the “rejected” expert’s appraisal, demonstrating that juries tend to give too much weight to that witness’ testimony.

In Logan v. Chatham County, 113 Ga.App. 491, 148 S.E.2d 471 (1966), the Georgia court rejected the allowance of this testimony because it would be too prejudicial and harmful to the party not calling the witness.

Neither party to a condemnation case is bound by rejected opinions of expert witnesses employed by them to appraise realty being condemned and cannot be prejudiced by the admission in evidence of rejected appraisals made at their instance. 148 S.E.2d at 473.

This view appears to us to be the better reasoned and we adopt it for our court. Allowing a party to bring out the fact that an expert was first hired by the condemnor and then rejected would tip the scales of justice too heavily against the condemnor. If the condemnor is trying to cover up or hide harmful testimony, the antidote is the rule followed in this case of allowing the condemnee to call the witness and present his testimony.

Even though the rule barring on direct examination the fact that an expert witness was originally retained by the adverse party may be controlling in this State, Sun Charm argues it should have been allowed to present this fact on rebuttal to rehabilitate Mr. Pinel’s testimony. There is some authority for this view. However, Sun Charm did not proffer this testimony to the court following Pinel’s cross-examination and it failed to argue its admissibility at that point to rehabilitate Mr. Pinel. Therefore, this issue is not properly preserved for appeal. Even if it had been, we question whether the fact of prior City employment would have been relevant to “rehabilitate” Mr. Pinel under these circumstances. His lack of bias, veracity, and credibility were not in any way challenged on cross-examination-just the method of valuation he employed in making part of his appraisal.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . The trial court also ruled Sun Charm could not ask any questions of this witness which would establish he had been originally retained as an appraiser by some unidentified party other than Sun Charm. A clear inference the jury could draw from this is that the witness was retained by the City, and therefore we consider the two rulings as being essentially the same, differing only in degree of directness.

      . Arkansas State Highway Comm’n v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972); Town of Thomaston v. Ives, 156 Conn. 166, 239 A.2d 515 (1968); Urban Renewal & Community Dev. Agency of Louisville v. Fledderman, 419 S.W.2d 741 (Ky.1967); Rancourt v. Waterville Urban Renewal Auth., 223 A.2d 303 (Me.1966); City of Baltimore v. Zell, 279 Md. 23, 367 A.2d 14 (1977); State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966); State v. Biggers, 360 S.W.2d 516 (Tex.1962). But see 5 Nichols, Eminent Domain 18-281 (3d Rev.Ed. 1980).

      . Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455 (1962).

      . Fla.R.Civ.P. 1.280(b)(3)(B).

      . Pinellas County v. Carlson, 242 So.2d 714 (Fla.1970); Shell v. State Road Dep’t, 135 So.2d 857 (Fla.1961); Cheshire v. State Road Dep’t, 186 So.2d 790 (Fla. 4th DCA), cert. denied, 192 So.2d 493 (Fla.1966).

      . See Pinellas County v. Carlson; Shell v. State Road Dep’t.

      . See Zuberbuhler v. Div. of Administration, State Dep’t of Transp., 344 So.2d 1304, 1308 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978). But see Logan v. Chatham County, 113 Ga.App. 491, 148 S.E.2d 471 (1966).

      . Hungerford v. State Road Dep’t, 212 So.2d 782 (Fla. 2d DCA 1968).

      . See Dade County v. Renedo, 147 So.2d 313 (Fla.1962); Cheshire v. State Road Dep’t, 186 So.2d 790 (Fla. 4th DCA 1966).

      . Annot., 71 A.L.R.3d 1119 (1976).

      . 5 Nichols, Eminent Domain 18-282 (3d Rev.Ed. 1980).

      .Mr. Pinel’s testimony was challenged on cross-examination because he based his opinion, in part, on a higher land use than the current zoning for the parcel allowed, and there was no showing it could or would be used for the higher use. Accordingly, the trial judge struck that part of Pinel’s testimony dealing with the “reproduction” or “cost” method of valuation. However he allowed the balance of Pinel’s testimony dealing with value based on “market” and “income” to stand. Some one

      . Cf. State v. Biggers, 360 S.W.2d 516 (Tex.1962) (Right to use fact of prior employment to shore up testimony after impeachment).

      . St. Joe Paper Co. v. United States, 155 F.2d 93 (5th Cir. 1946); see Browder v. DaCosta, 91 Fla. 1, 109 So. 448 (1925); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980). hundred pages of Mr. Pinel’s testimony remained for the jury’s consideration.


text:
    Marc MORGANSTINE and Helena Morganstine, his wife, Appellants, v. Hubert L. ROSOMOFF, M.D., Appellee.
    Nos. 80-434, 80-554.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 12, 1982.

      Spence, Payne, Masington & Grossman, Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The plaintiffs-appellants seek review of a jury verdict and judgment for the defendant doctor in this medical malpractice case. Plaintiffs appeal this judgment on the basis of erroneous evidentiary rulings by the trial court and the court’s failure to give requested jury instructions, each of which is alleged to constitute prejudicial error requiring a new trial. We hold that reversible error has been demonstrated because of the court’s refusal to instruct the jury on the effect of a fraudulent misrepresentation of a material fact in obtaining consent to perform surgery. We find that the evidence presented at trial required the granting of such charge and reverse the judgment under review.

Plaintiff Dr. Marc Morganstine, an osteopathic physician, consulted with several neurologists after receiving a spinal injury that resulted in temporary paralysis. After extensive diagnostic procedures, including several myelograms (in which dye is injected into the patient’s spinal canal and x-rays taken), it was determined that Morgan-stine’s spinal cord was being compressed at two places in the cervical region. Morgan-stine selected Dr. Hubert Rosomoff, the ap-pellee, to perform an anterior diskectomy and fusion at two levels of Morganstine’s cervical spine. Morganstine experienced paralysis in his extremities for several hours following the operation and ultimately sustained a permanent weakness on the right side of his body. Morganstine and his wife Helena filed an action for damages against appellee, charging him with negligent failure to perform a post-operative myelogram and reoperate, failure to obtain Morganstine’s informed consent, and breach of an express warranty purportedly made by Dr. Rosomoff that no risks accompanied the operation if he performed it. A written consent form signed by Morganstine prior to surgery was introduced into evidence. Each side presented favorable testimony by expert witnesses on the question whether Dr. Rosomoff’s failure to perform a post-operative myelogram was within the acceptable standard of care. The jury returned a verdict for Dr. Rosomoff and the court entered a final judgment. The motion for a new trial was denied and plaintiffs’ appeal from the final judgment was consolidated with an interlocutory appeal from a cost judgment entered for the defendant.

At the conclusion of the trial, the court instructed the jury in the language of the first sentence of subsection (4)(a) of Section 768.46, Florida Statutes (Supp.1976), as follows:

A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, be conclusively presumed to be a valid consent.

The trial court refused, despite a request by plaintiffs’ counsel, to read the final qualifying sentence of the subsection:

This presumption may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature.

When evidence exists to support a litigant’s theory of the case, he is entitled to a jury instruction to that effect, even though evidence of the opposing party controverts the theory. Corbett v. Dade County Board of Public Instruction, 372 So.2d 971 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla.1980); Seguin v. Hauser Motor Co., 350 So.2d 1089 (Fla. 4th DCA 1977); Gallagher v. Federal Insurance Co., 346 So.2d 95 (Fla. 3d DCA), cert. denied, 354 So.2d 980 (Fla.1977). Failure to give a requested instruction does not automatically, however, require reversal. Rather, in determining whether the trial court erred, the requested jury charges must be interpreted in light of the evidence, pleadings and other instructions to see whether, as a whole, the instructions fairly state the law, or whether the jury may have been misled. Grimm v. Prudence Mutual Casualty Co., 243 So.2d 140 (Fla.1971); Llompart v. Lavecchia, 374 So.2d 77 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980); Wages v. Snell, 360 So.2d 807 (Fla. 1st DCA 1978).

In the instant case, the record shows that Dr. Rosomoff testified that he fully advised Morganstine of all risks associated with the surgery, and the record contains a written consent form signed by Morgan-stine. An instruction to the jury on the first sentence of Section 768.46(4)(a) was thus indicated. Morganstine testified, however, that Dr. Rosomoff assured him that there would be no complications. There was also evidence in the record to indicate that Dr. Rosomoff’s statement, if made, wasn’t true since Dr. Rosomoff testified to writing an article in which he described a number of complications experienced by his patients following surgery. Whether any complications would be experienced by Mor-ganstine following surgery was certainly a material factor in his decision to undergo the procedure. Since Morganstine testified his consent to the surgery was fraudulently obtained, this issue, though controverted, should have been submitted to the jury for resolution by charging them on the second sentence of Section 768.46(4)(a), rather than having been determined by the judge as a matter of law. See Sullivan v. Price, 386 So.2d 241 (Fla.1980); Latin American Shipping Co. v. Pan American Trading Corp., 363 So.2d 578 (Fla. 3d DCA 1978). Accord, Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981). Cf. Caputo v. Taylor, 403 So.2d 551 (Fla. 1st DCA 1981).

The trial court’s refusal to read to the jury the last clause of Section 768.-46(4)(a) was compounded by its refusal to instruct the jury on Section 768.45(3)(b), Florida Statutes (Supp.1976). The latter paragraph is an express exception to Section 768.45(3), defining accepted standards of care in cases of medical intervention, which was read to the jury. Paragraph (b) states that the provisions of Section 768.-45(3) apply only when the medical intervention is undertaken with the informed consent of the patient obtained in compliance with the provisions of Section 768.46. Since the complaint and evidence raised a question as to the validity of the consent, the failure to instruct the jury on the exception to Section 768.45(3) may have been misleading. Indeed, under the circumstances of this case, the jury should be read Section 768.46 (entitled the “Florida Medical Consent Law”) in its entirety. The provisions of Section 768.46, virtually incomprehensible even as a whole, become even more misleading when read in piecemeal fashion, as done in this case.

Viewing the jury instructions in their entirety and in light of the pleadings and evidence, we find that omission of the requested instructions amounted to a directed verdict in the defendant’s favor on the issue of consent. Accordingly, the error raised cannot be considered harmless, and the judgment under review must be reversed along with the cost judgment in favor of Dr. Rosomoff.

Having determined that reversible error occurred in the trial below, it is not necessary to our holding to dispose of plaintiffs’ remaining points on appeal. However, to avoid needless errors in the event of retrial, we have examined plaintiffs’ other assignments of error. We agree that Dr. Oscar Sugar’s testimony concerning the statistical incidence of improvement of postoperative patients with and without re-my-elogramming, based on unverified out-of-court writings, constituted hearsay and should not have been allowed. Auletta v. Fried, 388 So.2d 1067 (Fla. 4th DCA 1980). See also Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966). However, the admission into evidence of Dr. Arthur Surloff’s testimony was not erroneous. The Florida Supreme Court has specified that under the provisions of paragraph (c) of Section 768.-45(2), the trial court is required to make a determination that a proffered witness does not possess the training, experience, or knowledge to testify on the prescribed standard of care before refusing to allow such testimony when the witness does not otherwise qualify as a “similar health care provider.” Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981).

Reversed and remanded for new trial.

      . The complaint also charged Dr. Rosomoff with negligence in performance of the initial surgery, but this aspect of the case was abandoned by the plaintiffs at trial.

      . 768.45 Medical negligence; standards of recovery, etc.—
      (3)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of an accepted standard of care, show that the injury was not within the necessary or reasonably forseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with an acceptable standard of care by a reasonably prudent similar health care provider.
      (b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 768.46. [e. s.]


author: NESBITT, Judge.

text:
    Omar TRUEBA, Orlando Trueba and Homero Trueba, Appellants, v. Edward PAWLEY and Pershing Industries, Inc., etc., Appellees.
    Nos. 80-1488, 80-1489.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 21, 1982.
    Grable & Dieguez and Anthony Dieguez, Hialeah, for appellants.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, Robert G. Maxwell, Miami Springs, for appellees.
    Before SCHWARTZ, NESBITT and VANN, HAROLD R. (Ret.), Associate Judge.
   NESBITT, Judge.

In a prior appearance by the parties to the present action, Trueba v. Pershing Industries, Inc., 374 So.2d 47 (Fla.3d DCA 1979), we affirmed the dismissal of the natural sons’ action claiming damages for emotional distress in connection with the disturbance of their father’s remains by the defendant cemetery company. However, the proceeding was returned to the trial court for a determination as to whether the decedent’s remains should be disinterred in order to conclusively identify the remains of the decedent.

While the appeal was pending in the first action, plaintiffs filed a second complaint based on an alleged disturbance of the grave-site in August of 1978. The trial judge entered a final order dismissing the complaint with prejudice. A short time later, the trial court, on remand of the first decision, dismissed the action insofar as the issues presented were resolved by the second case. Plaintiffs appeal both decisions, which have been consolidated for purposes of this appeal.

The final judgment in the second case was entered without a formal trial or full evidentiary hearing. Despite this fact, the trial court proceeded with a twelve-page order containing detailed facts which are not supported by sufficient evidence in the record. While it is not the province of this court to substitute its judgment for that of the trier of fact; where the judgment is not supported by substantial evidence, we have no alternative but to reverse. Adams v. McDonald, 356 So.2d 864 (Fla. 1st DCA 1978). In light of the lengthy record, we find that there is sufficient undisputed evidence from which this court can conclude that a mandatory injunction requiring disinterment should be issued.

It was conceded by the defendant cemetery company that shortly after the decedent’s death, his sons purchased a burial plot in which the decedent’s remains were to be interred. Instead, the decedent was buried in the wrong plot by the cemetery company and the remains were later moved to the proper location. None of the plaintiffs witnessed the transfer and, consequently, there is an understandable and legitimate concern of the family about the location of their father’s remains. Under the principles governing disinterment, there was sufficient justification so as to warrant a court of equity to lend its aid to the plaintiffs. See generally, Keck v. Levingston, 75 Cal.App.2d 846, 171 P.2d 933 (1946); Annot., 21 A.L.R.2d 472, Corpse — Removal and Disinterment (1952). This is not a case where close family members merely wish to exercise fanciful, whimsical, or morbid curiosity by disinterring the body. Furthermore, in equity, where the family members who have a right to decide about the disposition of the body are in accordance, their wishes should be complied with over the interest of a stranger. McEntee v. Bonacum, 66 Neb. 651, 92 N.W. 633 (1902). See also, Herzl Congregation v. Robinson, 142 Wash. 469, 253 P. 654 (1927).

Appellees’ argument that the appellants’ action is barred by the clean hands doctrine is without merit. Since the plaintiffs had a legitimate concern about the decedent’s final resting place, the fact that disinterment might furnish the plaintiffs with an evidentiary basis to maintain an action for damages does not violate the equitable maxim.

Consequently, we grant a mandatory injunction for disinterment but return the cause to the trial court to fashion, in the exercise of its discretion, a decree of disinterment that will not only protect the family’s legitimate concern about the true identity and final place of remembrance of their loved one but, at the same time, will assure the defendant cemetery company of protection against needless and spurious claims. In all other respects, the order dismissing the complaint with prejudice regarding damages is reversed and reinstated with directions to the trial court to grant the plaintiffs leave to file an amended or supplemental complaint for such damages as they may be entitled to after issuance of and compliance with the mandatory injunction.

This decision renders it unnecessary to reach the other issues on appeal.

Reversed and remanded.