text:
    BROWARD INDUSTRIAL PLATING, INC. and Risk Management Services, Inc., Appellants, v. Richard WEIBY and The Travelers Insurance Company, Appellees.
    No. XX-125.
    District Court of Appeal of Florida, First District.
    March 11, 1981.

      H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Richard A. Barnett of Krupnick & Campbell, Fort Lauderdale, for appellee Richard Weiby.
    Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee Travelers Ins. Co.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, arguing in part that the Deputy Commissioner (“the Deputy”) erred in finding that the claimant’s illnesses were occupational diseases. We agree and reverse.

The claimant worked for the employer from April 1978 to May 1979. His job involved anodizing aluminum, which consisted of dipping aluminum into tanks that contained various chemical solutions. The claimant testified that the facility was poorly ventilated, and he complained that chemical fumes rose to his face and caused discomfort upon being inhaled.

The claimant stated that he never experienced respiratory problems until he began working for the employer. However, the record clearly shows that the claimant contracted bronchial asthma as a child and that he stated to two treating physicians that he had breathing difficulties in 1977 (i. e., prior to his work with the employer herein).

From December 1978 to July 1979, the claimant was hospitalized 5 times for examination and treatment of his respiratory difficulties. During each hospitalization, bronchial asthma was diagnosed by doctors. Dr. Sherman, an internal specialist, testified that numerous factors can cause such a condition to occur, and he could not say that the claimant’s work conditions caused his bronchial asthma. However, Dr. Sherman essentially testified that those work conditions aggravated the claimant’s respiratory problems.

In October 1979, the claimant’s hands started to swell and turn numb. Dr. Porth, an orthopedic surgeon, diagnosed vasculitis, and he thought that this condition was a delayed but direct result of exposure to noxious gases at work.

In 1980, the Deputy entered his Order, finding in part that the claimant’s bronchial asthma and vasculitis were occupational diseases.

Under § 440.151, Fla.Stat., the following elements must be proven by a claimant to show that he is entitled to compensation for an occupational disease:

(1) the disease must be actually caused by employment conditions that. are characteristic of and peculiar to a particular occupation;
(2) the disease must be actually contracted during employment in the particular occupation;
(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be substantially higher in the occupation than in usual occupations; and
(4) if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public.

See § 440.151(l)(a) and (2). See also Florida State Hospital v. Potter, 391 So.2d 322 (Fla. 1st DCA 1980); Cast Crete Corp. v. Duncan, 383 So.2d 245 (Fla. 1st DCA 1980). In determining whether the claimant has satisfied the preceding statutory requirements, there is no presumption that the claim for compensation comes within the provisions of the occupational disease statute. See § 440.151(l)(e). In this case, the claim did not fall within the provisions of that statute.

The claimant has failed to prove at least two of the foregoing elements. First, he has not shown that his occupation presents a particular hazard of bronchial asthma occurring so as to distinguish his occupation from usual occupations. Nor has he demonstrated that the incidence of bronchial asthma is substantially higher in his occupation than in usual occupations. These statements also apply to the claimant's vasculitis.

Second, the claimant has not shown that the incidence of bronchial asthma, which is an ordinary disease of life, was substantially higher in his occupation than in the general public. In fact, the testimony of the plant’s owner, the plant manager, and the claimant himself, readily indicate that no respiratory problems were experienced by other employees in the past or present. See Potter, 391 So.2d at 323.

While it is clear that the claimant’s illnesses are not occupational diseases within the highly restrictive terms of § 440.151, Fla.Stat., the record does suggest the possibility that the claimant has suffered an aggravation of a pre-existing asthmatic condition, which would be governed by § 440.02(18), Fla.Stat. Similarly, the record does suggest the possibility that the claimant’s vasculitis may be compensable under the exposure theory of accident discussed in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). We remand these matters to the Deputy for his consideration. See Duncan, 383 So.2d at 247.

The appellants have also raised two other issues that must be addressed herein. One issue is whether the Deputy erred in admitting into evidence the deposition of Dr. Patel. One day before this deposition was taken, the carrier’s counsel first received notice of the deposition, and they informed claimant’s counsel that they would be unable to attend. Despite this fact, claimant’s counsel took Dr. Patel’s deposition, noting that the carrier would be given an opportunity to depose Dr. Patel in the future. When Dr. Patel’s deposition was offered into evidence, the carrier’s counsel objected. The Deputy later admitted the deposition into evidence. The appellants argue that the Deputy’s action was erroneous, and we agree.

Fla.R.Civ.P. 1.310(b) requires that reasonable notice of a deposition shall be given to all parties. Here, notice was given to the carrier one day before the deposition was taken. This notice was unreasonable, and Fla.R.Civ.P. 1.330(a) only allows a deposition to be used against a party who was present or represented at the taking of the deposition or who had reasonable notice of it. These factors are absent here. Moreover, the fact that the claimant’s counsel offered to allow the carrier’s counsel to take Dr. Patel’s deposition is meaningless— Dr. Patel was deposed by the claimant, and the carrier was denied an opportunity to cross-examine Dr. Patel. Finally, although Fla.R.Civ.P. 1.330(d) provides that “[a]ll errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice,” this provision clearly relates to the contents of the notice — not the time that the notice is served in.

Another issue raised by the appellants is whether the Deputy erred by ordering them to pay for various medical treatment which apparently was neither requested by the claimant nor reported by various doctors and hospitals. In this respect, the Deputy found that this medical treatment was “reasonable and necessary,” and he ordered that the appellants pay for such treatment. This ruling was erroneous.

Under § 440.13(1), Fla.Stat., the employer is required to furnish necessary remedial treatment. Before the claimant can procure such treatment for himself at the expense of the employer, he is required to request the treatment. Of course, “[t]here may be circumstances under which a claimant could be excused for his failure to request his employer to furnish him with medical attention.” United Electric Co. v. Myers, 134 So.2d 7, 11 (Fla.1961).

On the record before us, there is nothing to indicate that the claimant requested medical treatment. Apparently, the Deputy excused this failure, based solely on his finding that such treatment was “reasonable and necessary.” This finding is meaningless and does not excuse the claimant’s apparent failure to request medical treatment. See Atlantic Cold Storage v. Hernandez, IRC Order 2-3071 (Nov. 22, 1976). We remand this matter to the Deputy for appropriate findings as to whether there was a legally acceptable excuse for the claimant’s failure to request medical treatment.

Section 440.13(1), Fla.Stat., also requires that within ten (10) days after a physician or hospital furnishes their first remedial treatment to the claimant, a report of the claimant’s injury and treatment must be furnished to appropriate entities. The claimant, as well as physicians and hospitals, all share this responsibility, see St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753, 755 (Fla.1966), and the failure to satisfy this responsibility renders a claim for medical, surgical, or other remedial treatment invalid, unless the Deputy, “for good cause,” excuses such a failure. Of course, “the claimant ha[s] the burden to show good cause,” id. In this regard, an employer’s refusal to provide medical services is not good cause which excuses the failure to timely submit the required reports, id., nor does the fact that a claim is being contested constitute such good cause. See Hood’s Dairy v. Severino, 178 So.2d 588, 591 (Fla.1965).

Here, the record does not indicate that the reporting requirements of § 440.13(1), Fla.Stat., were satisfied. The Deputy excused this failure, based solely on his finding that the medical treatment was “reasonable and necessary.” This finding is meaningless. See Hernandez. We remand this matter to the Deputy for appropriate findings as whether there was good cause to excuse the failure to comply with the statutory requirements applicable herein.

The Deputy’s Order is reversed and this cause is remanded for proceedings consistent with this opinion. On remand, the Deputy shall not consider Dr. Patel’s deposition, and he shall rule on the question of whether there was an aggravation of a pre-existing asthmatic condition, as well as whether the claimant’s vasculitis is a compensable injury. In making these rulings, the parties should be permitted to present additional evidence if that is necessary to avoid procedural prejudice. See Duncan, 383 So.2d at 247. Finally, we note that if the Deputy should rule in favor of the claimant on remand, he should also determine the respective responsibilities and duties of the two insurance carriers in this case. See § 440.42(3), Fla.Stat. See also Seasons v. O’Day, 379 So.2d 1024 (Fla. 1st DCA 1980).

SHIVERS and SHAW, JJ., concur.

       The Deputy based his determination of occupational diseases on the finding that the claimant’s exposure to the chemical fumes exceeded “that of the general public so as to constitute a particular hazard of the claimant’s employment.” This is not the standard for finding an occupational disease. The correct test is as follows: Initially, a peculiar and characteristic employment condition (which in this instance, would be exposure to chemical fumes) must actually cause a disease, and this disease must be contracted during employment. If these elements are proven, the claimant must next demonstrate that his occupation presents a particular hazard of the disease occurring so as to distinguish his occupation from usual occupations, or that the incidence of the disease is substantially higher in his occupation than in usual occupations. The failure to demonstrate one of the last two factors (as in this case) precludes a finding of an occupational disease. For example, it may be possible that a condition of employment causes a disease, but the occupation may not present a particular hazard or higher incidence of the disease occurring when compared to other, more typical occupations. In this event, there would be no true occupational disease.


source: Caselaw Access Project

author: ORFINGER, Judge.

license: Public Domain

text:
    James Henry JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-360.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    Richard L. Jorandby, Public Defender and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Because the failure to give the instruction on penalties was properly preserved for appeal under Tascano v. State, 393 So.2d 540 (Fla.1980), (rehearing denied), and Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), we must reverse the conviction and order a new trial. However, because the evidence of appellant’s guilt is clear and the failure to give the instruction appears to be harmless, we certify to the Supreme Court of Florida the same question already certified in Gee v. State, No. 80-336 (Fla. 5th DCA February 11,1981), viz:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

REVERSED and REMANDED. QUESTION CERTIFIED.

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


author: PER CURIAM. COBB, Judge,

text:
    Richard Paul LAIRD, Appellant, v. STATE of Florida, Appellee.
    No. 80-82.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Laird was found guilty of “escape” in violation of section 944.40, Florida Statutes (1979), and the trial judge sentenced him to five years imprisonment. “Escape” is a second degree felony, for which a court may sentence a defendant to imprisonment for up to 15 years.

Laird had been serving a 475 day sentence for burglary at the Orange County Court Alternative Center, and he was scheduled for release on June 27, 1979, approximately three months after his escape. He was notified that his eighty year old mother, who was living in Ohio, had suffered an accident and was not expected to live. Laird asked for a furlough to see his mother, but his request was denied. While on a weekend furlough within Orange County, Laird telephoned to check his mother’s progress and was told her condition was failing. He hitchhiked to Ohio, but his mother died before he arrived. Laird turned himself in to police in Ohio four months later.

We are powerless to reverse or amend this judgment because there was sufficient evidence to uphold Laird’s conviction, no error occurred in jury instructions, and the sentence imposed was within the legal limits. McInnes v. State, 345 So.2d 781 (Fla. 4th DCA 1977). However, the harshness of the sentence, under the circumstances, deserves comment. Justice should be tempered with mercy and understanding. They appear to have been overlooked in this case.

AFFIRMED.

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

COBB, J., concurs specially with opinion.

COBB, Judge,

concurring specially.

I concur in the result reached by the majority, but decline to join in the comment regarding the sentence. The severity of the sentence is not an issue on appeal, and this court has not been furnished a record or briefs in that regard. There well may be factors properly known to the trial court which are unknown to us. Therefore, consideration of the sentence, other than its legality, is not the appropriate province of this court.

      . § 775.082(3)(c), Fla.Stat. (1979).


author: PER CURIAM.

text:
    Tom CASTLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-354, 80-647.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    James B. Gibson, Public Defender and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).

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


author: COBB, Judge.

text:
    CYCLE DEALERS INSURANCE, INC., a Florida Corporation, Appellant, v. BANKERS INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. 80-629.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.

      Jed Berman of Felder & Berman, Winter Park, for appellant.
    Brian C. Harrington of Fisher & Sauls, P. A., St. Petersburg, for appellee.
   COBB, Judge.

On February 28, 1977, Cycle Dealers Insurance, Inc., and Bankers Insurance Company entered into an agency agreement which appointed Cycle Dealers as an agent of Bankers for certain insurance transactions. On June 8, 1978, Bankers notified Cycle Dealers that as of that date the agency agreement was terminated.

Cycle Dealers sued Bankers in a three-count complaint. Count I of the complaint alleged that the termination was in violation of section 626.471, Florida Statutes (1977), since Bankers did not give Cycle Dealers 60 days notice of its intent to terminate the agreement. Count II of the complaint alleged that Bankers had violated Florida’s Unfair Insurance Trade Practices Act by procuring the names of Cycle Dealers’ clients prior to the termination of the agency agreement and then by communicating with those clients after the termination of the agency agreement in an attempt to induce those clients to take out policies of insurance directly from Bankers. Count III of the complaint alleged a cause of action for tortious interference with a business relationship.

Bankers moved to dismiss all three counts of the complaint. The trial court found that Cycle Dealers was bound by the termination clause contained in the agency agreement and that section 626.471, Florida Statutes (1977), was inapplicable and, therefore, dismissed Count I with prejudice. The trial court also found that the remedy provided by the Unfair Insurance Trade Practices Act is administrative and, therefore, dismissed Count II with prejudice. The trial court denied the motion to dismiss Count III. However, Cycle Dealers voluntarily dismissed Count III. The trial court then entered a final judgment in which it was ordered that Cycle Dealers take nothing from Bankers on Counts I and II, and that Count III was dismissed without prejudice. It is this order which Cycle Dealers is appealing.

Unless they are waived by the parties, the laws and statutes in effect at the time that a contract is entered into are made a part of that contract. Belcher v. Belcher, 271 So.2d 7 (Fla.1972); H. B. Holding Co. v. Girtman, 96 So.2d 781 (Fla.1957); 11 Fla.Jur.2d Contracts § 129 (1979). The contract involved in this appeal provided that it could be terminated at any time. However, it did not waive the statutory notice provision. Therefore, the 60-day statutory notice provision of section 626.471, Florida Statutes (1977), should have been read into the agency agreement, and the trial court erred in finding that it was inapplicable and dismissing Count I with prejudice.

On the other hand, the trial court properly dismissed Count II with prejudice. Cycle Dealers relied upon section 626.9631, Florida Statutes (1977), as its basis for bringing an action under the Unfair Insurance Trade Practices Act. However, that statute only intended to preserve those causes of action that a party had available to him prior to the enactment of that Act.

Accordingly, we reverse the dismissal of Count I, affirm the dismissal of Count II, and remand for further proceedings in the trial court consistent with this opinion.

REVERSED in part; AFFIRMED in part; and REMANDED.

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

      . The agency agreement involved in this case provides in part:
      XII. Termination. This agreement may be terminated by either party at any time by written notice to the other party. Notice to company shall be by registered mail to the home office, 1033 34th Street North, St. Pe-tersburg, Florida. Notice to agent shall be by registered mail to the last known address of agent.
      XVI. Law Applicable. This agreement and performance thereunder shall be construed and determined according to the laws of the State of Florida.

      . Section 626.471, Florida Statutes (1977), provides:
      (1) Subject to the agent’s contract rights, an insurer may terminate its appointment of any general lines agent, life agent, disability agent, or limited license agent at any time. Except when termination is upon a ground which would subject the agent to suspension or revocation of his license under section 626.611 or section 626.621, the insurer shall give at least 60 days advance written notice of its intention to terminate such appointment to the agent, except such 60 days advance notice of its intention to terminate such appointment shall not apply to a life or disability agent, either by delivery thereof to the agent in person or by mailing it postage prepaid and addressed to the agent to his address last of record with the insurer or insurer’s general agent. Notice so mailed shall be deemed to have been given when deposited in a United States Post Office mail depository. As soon as possible and at all events within 30 days after terminating the appointment of an agent (other than as to an appointment terminated by the insurer’s failure to continue or renew it) the insurer shall file written notice thereof with the department, together with a statement that it has given the agent notice thereof as hereinabove provided.

      . That section reads:
      The provisions of this part are cumulative to rights under the general civil and common law, and no action of the department shall abrogate such rights to damages or other relief in any court.


author: MOORE, Judge.

text:
    KASPER INSTRUMENTS, INC., Appellant, v. Pauline D. MAURICE, Appellee.
    Nos. 79-138, 79-550.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.

      Stephen C. McAliley of Brennan, McAli-ley, Hayskar & McAliley, West Palm Beach, for appellant.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellee.
   MOORE, Judge.

These consolidated appeals by the defendant in the trial court, appellant, involve a final judgment for the plaintiff, appellee, entered upon a remittitur after a jury verdict in a negligence suit, and an interlocutory order denying defendant's motion to interview the jurors after trial. The appellant contends that the trial court erred in failing to grant its request for a continuance, in granting the plaintiff a directed verdict on liability, in denying appellant’s motion for a new trial, and in failing to permit an interview of the jurors. We affirm in all respects.

The appellee, Pauline Maurice, commenced this action against the appellant and the driver of appellant’s automobile, Barbara Knudson, for personal injuries sustained by her in an automobile collision allegedly caused by Knudson. Knudson was eastbound. After stopping at an intersection, she proceeded to cross Alternate AIA, was struck by a northbound vehicle, and careened into the appellee’s vehicle. At that time and at the time of filing suit, Knudson resided in Palm Beach County; however, at time of trial she resided in California.

Trial was noticed to commence the week of December 4, 1978. On December 5, the appellant moved for a continuance, essentially alleging that Mrs. Knudson’s child was recuperating from a serious illness and her presence at trial would cause her severe hardship. It was further alleged that her testimony was necessary and material to the issue of liability. Because Mrs. Knud-son had been deposed by the plaintiff and the deposition was available for use at trial, the continuance was denied.

The granting of a motion for continuance is within the sound discretion of the trial court whose decision will not be disturbed absent a clear showing of gross or flagrant abuse. Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973). Under these circumstances we find no abuse of discretion. Moreover, the request for continuance was based on an unsworn motion, it failed to state the substance of Mrs. Knud-son’s expected testimony or how it would differ from her deposition, it failed to state how long Mrs. Knudson’s child’s illness was known by the appellant or when she reasonably expected to be available, and also failed to allege that the deposition testimony did not fully present the defense position. See generally, 11 Fla.Jur.2d, Continuances, § 7, et seq.

Appellant next contends error in the granting of a directed verdict as to liability in favor of the appellee because the jury could have drawn an inference that the collision was an “unavoidable accident”. This doctrine, however, is applicable only when, under some theory of the case, the injury does not result from the negligence of either party. Sirmons v. Pittman, 138 So.2d 765 (Fla. 1st DCA 1962). It is clear that the appellee was in no way negligent inasmuch as she was properly stopped at the intersection. Knudson, however, failed to exercise due care in entering the intersection. Her testimony revealed that she stopped at the intersection, looked both ways, thought she had time to cross in front of approaching traffic, and proceeded to cross. She remembered nothing else and could not estimate the speed of the vehicle which struck her. No attempt was made to prove the total negligence of the driver of the northbound vehicle, nor was there a shred of evidence as to its speed. It is obvious from the evidence that Knudson, at best, was a joint tortfeasor with the northbound driver and would be jointly and severally liable to the plaintiff. Accordingly, it was not error for the trial court to direct a verdict in favor of the appellee on the issue of liability.

Appellant next contends error in denying its amended motion for a new trial, urging that the verdict, as remitted, was excessive, and that the jury was influenced by improper factors. The appellee suffered severe dental injuries. One tooth was missing and never found; two front teeth were broken off at the gum line; and one eye tooth was forced up into her sinus. She was under treatment for approximately thirteen months during which time a bridge was installed to replace the missing teeth and two or three additional bridges will be necessary in the future. She suffered considerable pain and embarrassment due to the injuries and had nightmares for several months after the accident. Estimated future medical expenses approximate $8,000. The appellee suggested to the jury damages totalling $100,000, but after 28 minutes deliberation, the jury returned a verdict of $150,000. The trial court ordered a remitti-tur to $100,000 which the plaintiff accepted.

The appellee suffered severe dental injuries which undoubtedly caused her great physical pain and suffering. She was 18 years old and faces the prospect of continuous dental repair and adjustment which are certain to result in additional pain, discomfort and inconvenience. The attendant personal embarrassment and curtailment of her social life, past and future, are also supported by the evidence. As the Supreme Court stated in Bould v. Touchette, 349 So.2d 1181 (Fla.1977):

[I]n tort cases damages are to be measured by the jury’s discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Lassitter v. International Union of Operating Engineers, 349 So.2d 622, (Fla.1977) approving the reasoning in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970). 349 So.2d at 1184-1185.

Although the verdict, as remitted, is on the high side, we do not find it to be so inordinately large as obviously to exceed the maximum limit of a reasonable range. Additionally, we find no record support for the contention that the jury was improperly influenced. The trial court did not abuse its discretion in denying the motion for new trial and granting a remittitur. See, Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976).

Finally, appellant contends that the trial court erred in failing to allow a jury interview to determine whether the jury improperly based its verdict on matters outside the record. Appellant cites the short period of juror deliberation, the jovial attitude of the jurors, excessiveness of the initial verdict, a misstatement of one of the jurors in voir dire, and the purportedly inflammatory comments of one of the unselected veniremen as factors which improperly influenced the jury. We note that the last of these alleged improprieties was never raised before the trial court and that the “misstatement of one of the jurors on voir dire”, though initially raised below in a motion for rehearing, was abandoned in the trial court upon the appellant’s filing a notice of appeal prior to consideration of the motion. Scott-Whittaker Company v. Joyce Properties, Inc., 155 So.2d 661 (Fla. 3rd DCA 1963). Thus, in determining the propriety of the trial court’s denial of the motion to interview the jury, we consider only the first three factors cited. Although Fla.R.Civ.P. 1.431(g) provides that jury interview shall be allowed under appropriate circumstances, the decision to allow a jury interview is within the discretion of the trial court. As stated in National Indemnity Company v. Andrews, 354 So.2d 454 (Fla. 2nd DCA 1978):

While we recognize the authority of the trial court to order jurors to be interviewed after their verdict is reached in a proper case we say that this does not appear to be such a case for the exercise of that authority. This is not a case wherein a miscarriage of justice will result if the jurors are not permitted to be interviewed or interrogated. The spirit and intent of the rule was to protect and prevent just such from taking place. The rule was not intended to authorize broad hunting expeditions or fishing excursions. The Supreme Court of the United States in considering the advisability of permitting a party to inquire into a jury’s basis for reaching a verdict suggested that to permit the inquiry “would open the door to the most pernicious arts and tampering with jurors.” “The practice would be replete with dangerous consequences.” “It would lead to the grossest fraud and abuse” and “no verdict would be safe.” McDonald v. Pless, 238 U.S. 264, 268, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915). 354 So.2d at 456.

Based on a consideration of the first three factors mentioned above, we find that the trial court did not abuse its discretion in declining to allow a jury interview.

The judgment and order appealed from are affirmed.

LETTS, C. J., and HERSEY, J., concur.

      . The appellee voluntarily dismissed Knudson from the suit.


author: PER CURIAM. DOWNEY, Judge,

text:
    Gordon STENBACK and Clyde Trenary, Appellants, v. RACING ASSOCIATES, INC., Appellee.
    No. 79-414.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.

      Harvey J. Garod of Law Offices of Reas-beck & Fegers, P.A., Hollywood, for appellants.
    George A. Williamson, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment entered pursuant to a directed verdict in a jury trial. Plaintiff/appellant sued defendant for breach of contract. The issue was whether, pursuant to a written lease, defendant was able to deliver an auditorium facility to the plaintiff/lessee in a timely fashion. The trial court concluded on motion for directed verdict that the plaintiff rather than the defendant had breached the lease in an anticipatory fashion. We conclude that this constituted error. The decision made by the trial court was basically one of fact. All evidence must be viewed in the light most favorable to the non-moving party when considering a motion for directed verdict. As stated in Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla.3d DCA 1979), at page 838:

It is well established that a directed verdict should be granted the defendant by the trial court at the close of plaintiff’s case only when it is clearly apparent to the court that no evidence has been submitted on which the jury could lawfully find a verdict for the plaintiff and the conclusion reached by the trial judge under the circumstances is a conclusion of law resulting from the presence of a state of facts that permits no other legal result. MacAlpine v. Martin, 205 So.2d 347 (Fla.2d DCA 1967); Sun Life Insurance Co. of America v. Evans, 340 So.2d 957 (Fla.3d DCA 1976); Florida Rule of Civil Procedure 1.480, Florida Statutes Annotated, Volume 30. However, the direction of a verdict can constitute an encroachment on the right of a litigant to a jury trial and an invasion by the court of the province of a jury which is contrary to constitutional guaranties, where there is any evidence to justify a possible verdict for the non-moving party — even if a preponderance of the evidence appears to favor the movant. See Budgen v. Brady, 103 So.2d 672 (Fla.lst DCA 1958).

We conclude this case is within the above quoted rule and that the trial court erred in directing a verdict.

The case is remanded to the trial court for a new trial.

REMANDED.

LETTS, C. J., and BERANEK, J., concur.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge,

dissenting:

The evidence in this case reflects that appellants contracted to lease the Sportato-rium from appellee from 2:00 p. m. until midnight on June 17, 1973, to present a country western show. Although appellee was having difficulty obtaining a certificate of occupancy prior to the date in question, by approximately 2:00 p. m. on the date for the performance appellee was able to furnish the premises to appellants for the show. However, appellants had become nervous over the possibility the show would not go on. Therefore, appellants set 10:00 a. m. of the day of performance as an arbitrary deadline for the certificate of occupancy. When that time passed appellants cancelled the contract and notified the performers not to come to Hollywood. Appellants then commenced this suit.

In my judgment the appellee was able to furnish the facility within the time frame provided by the contract and appellants’ anticipatory termination of the contract precludes them from maintaining this action. Thus, the directed verdict and final judgment for appellee was appropriate.


author: GLICKSTEIN, Judge.

text:
    The URBAN COMPANY, Appellant, v. Allen SCHNEIDERMAN, Appellee.
    No. 79-1467.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Jeff M. Brown of Lavalle, Wochna, Rutherford, Maher & Truesdell, P. A., Boca Ra-ton, for appellant.
    Joel D. Kenwood and Curtis G. Levine of Baskin & Sears, Boca Raton, for appellee.
   GLICKSTEIN, Judge.

This case is yet another example of parties attempting to squeeze their intentions into the space left them by a form contract rather than expressing them in an addendum which is unconfined in space.

Appellant is a real estate broker and ap-pellee is the owner and seller of an apartment complex in Boca Raton. On its own form appellant prepared a proposed deposit receipt contract and presented it to appel-lee. In its original form, the contract provided, in pertinent part:

BROKER’S FEE: In the absence of any specific agreement between the seller and the broker, the broker has earned his fee for professional services rendered as of the date of the execution of the contract by all parties but shall not be entitled to payment until the date of closing, and in the event the seller refuses for any reason to close, the broker is entitled to and the seller agrees to pay his full fee. The amount of the fee shall be 6% of the purchase price.

Prior to appellee’s signing of the contract appellant struck out the above clause; and at the request of appellee, added to the front of the contract the following language:

BUYERS AGREE TO PAY THE COMMISSION IN THE AMOUNT OF $10,-000.00. NO COMMISSION IS TO BE PAID BY SELLER.

The contract, as changed, was signed by appellee and the prospective buyers. The transaction did not close as a result, according to appellant, of appellee’s unreasonable request.

At trial appellant sought recovery of $10,000 in damages due a third party beneficiary from the party who allegedly breached the contract. Presumably, because of the addition of the last quoted contractual clause, appellant did not pursue a claim against appellee for $10,000 as a real estate commission.

The jury returned the following verdict:

I. What was (were) the intention(s) of the seller and broker in crossing out the paragraph on the back of the contract entitled “broker’s fee” and in writing this language on the front of the contract: “No commission is to be paid by seller.”?
1. To transfer the responsibility to pay the broker’s commission from the seller to the buyer?
2. To indicate that the seller would not be liable for the broker’s commission in the event that the seller refused for any reason to close?
ANSWERS (Only check one below)
(1) #1
(2) #2 _
(3) #1 and #2 | |
(If you check (1), please continue on with your deliberations. However, if you check (2) or (3), please stop here and have the foreperson sign the verdict form below for the Defendant.)
VERDICT FOR PLAINTIFF
II. We, the jury, find for the Plaintiff, The Urban Company, a Florida corporation, and assign damages at Ten Thousand ($10,000.00) Dollars. So say we all this 19 day of January, 1979.

The trial court entered final judgment in accordance with the verdict, then vacated it and granted appellee’s motion for directed verdict. After denial of appellant’s motion for rehearing, this appeal followed.

In directing the verdict, the trial court relied on Curran & MacDonell, Inc. v. Pearre, 202 So.2d 858, 858-859 (Fla. 1st DCA 1967), wherein the parties deleted the following clause from the broker’s contract:

If the transaction shall not be closed because of refusal of the seller to perform, then seller shall pay said commission in full to the broker on demand

and added:

The commission shall become payable only upon closing this transaction.

As can be seen, the stricken language in Curran is comparable to what was stricken sub judice. As for the deletion the First District said:

The services of a “Philadelphia lawyer” were not required by the broker in order for him to comprehend that the seller by so deleting this provision said in effect: “I will not pay you a commission if I refuse to perform.”

Id.

The effect of the deletion and addition in Curran, supra, was to eliminate any commission due the broker from the seller unless the transaction closed. In the present case, the effect of the deletion and addition relieved the seller of any responsibility for the commission regardless of whether the transaction closed or not. This is an extension of Curran, supra; in both cases, the seller was not responsible for the commission.

Accordingly, we affirm.

AFFIRMED.

DOWNEY, J., concurs.

MOORE, J., concurs in conclusion only.


author: BERANEK, Judge.

text:
    Joseph PASSIATORE, Appellant, v. HARTFORD LIFE & ACCIDENT COMPANY, a corporation, Appellee.
    No. 79-2047.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Joseph L. Passiatore, Fort Lauderdale, for appellant.
    James P. Paul of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Fort Lauderdale, for appellee.
   BERANEK, Judge.

Defendant appeals from a final judgment after nonjury trial. Appellant was a general agent of appellee, Hartford Life & Accident Company. Appellant received cash advances on future commissions from Hartford which eventually sued to recover these advances. The trial court entered judgment for $3,987.49 in favor of Hartford, and the former agent appeals asserting an absence of personal liability. Appellant’s position is based upon the rationale of Tannen v. Equitable Life Insurance Company of Washington, D. C., 303 So.2d 352 (Fla. 3d DCA 1974). We find the facts of the instant case clearly distinguishable from those present in Tannen and affirm the final judgment herein.

Appellant here had a general agency agreement with Hartford and a separate and additional agreement providing for an “Accelerated Commission Payment Plan.” The general agency agreement provided for limited advance commissions. The accelerated plan provided for much greater benefits to the general agent and was explicit that such commissions constituted an indebtedness due from the general agent to the company. The accelerated plan also provided that “on termination of this agreement, all outstanding advances shall become due and repayable.” We find the language of the accelerated plan agreement clearly sufficient to impose personal liability. This language is distinguishable from that quoted in the Tannen case.

. In addition, in the instant case, after the appellee demanded repayment of the advance monies from appellant a further agreement was entered into whereby appellant agreed to “work off” the balance due. In the trial court, the appellant asserted this subsequent agreement to be in the nature of a novation of the initial contract. Appellant asserted that appellee’s rights under the earlier contract were thus unenforceable. The trial court found against the appellant on this point as a factual matter and since conflicting evidence was presented on the matter, we affirm the trial court in this regard. The final judgment below is hereby AFFIRMED.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Stephen RAYA, Appellant, v. STATE of Florida, Appellee.
    No. 79-2209.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Frank B. Kessler of the Law Offices of Bennett S. Cohn, Lake Worth, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Coleman v. State, 245 So.2d 642 (Fla.1st DCA 1971).

LETTS, C.J., ANSTEAD, J. and STONE, BARRY J., Associate Judge, concur.


author: HERSEY, Judge. HURLEY, Judge, LETTS, Chief Judge,

text:
    N K FIELDS, Appellant, v. Sally ZINMAN, Appellee.
    No. 80-480.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.

      N K Fields, pro. per.
   HERSEY, Judge.

We have for consideration, inter alia, the question of whether the filing fee required to be paid at the time of filing a notice of appeal or other appropriate pleading in the district court of appeal may be waived in a civil action. We determine that upon a proper finding of indigency the filing fee will be waived.

Appellant, N K Fields, filed his notice of appeal particularly directed to a restraining order entered against him in the lower tribunal. Subsequently he filed pleadings in this Court in the nature of a motion for extension of time within which to pay filing fee, a motion for the appointment of counsel to represent him on appeal, a motion for extension of time for the performance of various steps in the appellate process and ultimately a motion to waive the filing fee and costs.

These motions, with the exception of the motion to waive filing fee, have been or will be disposed of by court orders. Because of the importance of the question of waiver of filing fees to indigent litigants and consequently, to the bench and bar, we treat that issue more fully here.

It would be an understatement to suggest that the law has been unclear as to whether an indigent in a civil matter is entitled to waiver of the filing fee which is ordinarily a prerequisite to the prosecution of an appeal. In view of the paucity of and conflict in authority on this question, we invited the bar to submit briefs as amicus curiae. The response was gratifying and we are indebted to those who participated. Without exception the briefs filed were scholarly, thorough and persuasive.

Our analysis will consist of four phases: statutory authority and legislative intent; precedent and stare decisis; applicable court rules; and conclusions.

I. Statutory authority and legislative intent.

The question before us had its most recent genesis in an amendment to Section 57.081, Florida Statutes (1979) which became effective on July 1, 1980. § 1, Ch. 80-348, Laws of Florida.

Prior to its amendment the first sentence of the statute read:

(1) Insolvent and poverty-stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs, and clerks of the county in which they reside without charge.

The amended statute reads in pertinent part:

Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge.

We are urged to interpret the amendment as encompassing appellate proceedings either because of the so-called “plain meaning” rule of statutory construction or as a matter of legislative intent. Both approaches, while attractive as simplistic solutions, fail to convince us that the amendment does, in fact, change the statute to bring appellate proceedings within its ambit for the first time.

Adverting first to the “plain meaning” rule, State v. Egan, 287 So.2d 1, 4 (Fla.1973) explained:

Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.

Our problem in applying this rule is that the amendment could easily have but obviously did not include specific reference to appeals. One has to suppose that if the real and sole purpose for the amendment was to include proceedings in the appellate courts then the legislature would have taken the trouble to insert words to that effect in the amendatory provision.

Examination of the House Judiciary Committee Report dealing with the amend-atory statute does little to dispel our doubts in this regard. Relevant portions recited in the briefs read:

(1) This bill would expand the actions in which persons may proceed in forma pau-peris to include any judicial or administrative proceedings.
******
(3) Persons would be entitled to free services in counties other than the one in which they reside.

As an earlier section of the committee report explicitly states, the legislative intent would seem to have been to extend the scope of the statute horizontally to bring in “all types of actions in court or administrative proceedings ...” rather than vertically to include appellate proceedings.

Our doubts are not assuaged by affidavits of members of the legislature as to what their subjective intent was since there is no indication that this intent was expressed to other members of the legislature. Even so, subjective intent does not rise to the level of evidence and, in fact, has little probative force in the absence of ambiguity or conflict, which is not demonstrably present in this statute.

Accordingly, we conclude that the amendment had no effect vertically on operation of the statute.

II. Precedents and stare decisis.

This Court, in Harrell v. State, Department of Health and Rehabilitation Services, 361 So.2d 715 (Fla. 4th DCA 1978) held the following:

Along with their petition for certiorari, petitioners have filed a motion and supporting affidavits for leave to proceed in forma pauperis, which we grant.

Subsequently, in Hillman v. Federal National Mortgage Association, 375 So.2d 336, 337 (Fla. 4th DCA 1979) it was held:

As we construe Section 57.081, Florida Statute (1977), it applies only to proceedings in trial courts. A person may not seek appellate review in a civil proceeding without payment of the filing fee required by law unless specifically authorized to do so by the Legislature. Such authorization has been granted in criminal cases. However, we are unaware of any statute extending that privilege to indigent persons involved in civil proceedings.

At least within the fourth district, then, we have conflicting precedents. One or the other of those holdings must be found to have been injudicious. We also make the observation that stare decisis has less vitality in the area of practice and procedure than in the area of substantive law. As one writer succinctly sums up this philosophy:

If the rule involved can be said to be one of procedure rather than substance, the court is not at all reluctant to make a drastic change. See Shingleton v. Bussey, 223 So.2d 713 (Fla.1969).

Gaines, Robert P., “General Appellate Principles,” Florida Appellate Practice (Florida Bar, 1978), p. 75. See also Cottrell v. American, 160 Fla. 390, 35 So.2d 383 (Fla.1948).

It remains only to choose which of the two precedents is the more compelling.

Before doing so, we briefly consider precedents from the other district courts of appeal.

The Second District, in Lee v. City of Winter Haven, 386 So.2d 268 (Fla. 2d DCA 1980) construed Section 57.081 as applicable only at the trial level. The court reasoned that:

Although not mentioned by the parties herein, the statutory history of the section (formerly Section 58.09) reveals that at one time the statute included a paragraph which provided that:
The provisions of this section shall also be applicable to any appeal or other proceeding in the supreme court that originated in said county.
This provision was added in 1955 and omitted in 1957. We can find no indication of whether the omission by the legislature was deliberate but we must presume that it was so. Therefore, we construe Section 57.081 as not applying to appellate cases. Lee at 269; footnotes omitted.

We tend to prefer the following explanation for the statutory change mentioned by the Lee court, proffered by amicus curiae, Florida Rural Legal Services, Inc.:

The statute as it existed before 1955 applied only to courts of counties of over 180,000 population, Section 58.09, Florida Statutes, (1953). The residence of the indigent was irrelevant. It became clear that the statute could not cover appeals to the Supreme Court which was seated in Leon County, which had a population of far less than 180,000. Accordingly the statute was amended as cited in Lee to apply to the Supreme Court.
Then two things happened. First, Chapter 57-248, Section 1, Laws of Florida, created the district courts of appeal. Second, shortly thereafter, Chapter 57-251, Section 1, Laws of Florida amended the in forma pauperis statute to apply to all counties. As a result of these changes in the law, the sentence pertaining to Supreme Court proceedings became superfluous (because the statute already applied to all courts having jurisdiction over the indigent) and irrelevant (because most appeals now lay in the district courts). Accordingly the legislature simply dropped the sentence. Although the legislature would have saved some confusion had it more explicitly applied the statute to appeals, the foregoing interpretation is much more in keeping with the great liberality accorded remedial statutes than is the narrow interpretation in Lee. Footnotes omitted.

The court reiterated its position, apparently en banc, in a recent case involving a petition for writ of mandamus, Latisi v. FLorida Parole & Probation Commission, 382 So.2d 1355 (Fla. 2d DCA 1980).

The third district has not directly addressed the issue although somewhat related questions have been before that court. Brinker v. Ludlow, 379 So.2d 999 (Fla. 3d DCA 1980); Bower v. Connecticut General Life Insurance Co., 347 So.2d 439 (Fla. 3d DCA 1977).

We have found no cases indicating the stance taken by the First District on this question.

The Fifth District Court of Appeal has recently interpreted the statute as encompassing civil appeals. Chappell v. Florida Department of Health and Rehabilitative Services, 391 So.2d 358 (Fla. 5th DCA 1980). We are in agreement with the procedural safeguards outlined by the court in that case.

We were not able to locate any definitive pronouncement on this issue by the Supreme Court. However, our attention has been directed to Adams v. Powers, 278 So.2d 598 (Fla.1973) in which the Supreme Court pointed out that the petitioner would be entitled to proceed in forma pau-peris in that court, in a civil matter, upon compliance with Fla.Stat. § 57.081 F.S.A. We have also been furnished with a copy of an order entered by the Supreme Court in State ex rel. Stegall v. Hartsfield, permitting petitioner in that case to proceed in forma pauperis. Therefore the Supreme Court, by example if not by precept, has clearly exhibited a preference for that eon-struction of the statute which would include appellate proceedings. We are inclined to the view that the district courts of appeal are no less firmly bound by Supreme Court precedent established peripherally than they are by those explicitly mandated.

Having established what the rule is we nevertheless continue our analysis in the belief that the following considerations strengthen the position we plan to take.

III. Applicable court rules.

Rule 2.040(b)(3), Florida Rules of Judicial Administration governs clerks of district courts of appeal. The relevant provision provides:

(3) Filing Fee. In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice, petition, or other initial pleading is filed. The payment shall not be exacted in advance in appeals in which a party has been adjudicated insolvent for the purpose of an appeal....

The rule is thus explicit where the statute is silent. The filing fee is not to be exacted in advance where the party “has been adjudicated insolvent for the purpose of an appeal.”

We emphasize the phrase “in appeals” as opposed to the phrase “in criminal appeals” which could have been used if the Supreme Court had construed the statute as so limited. The language used in the rule bolsters the argument that the Supreme Court does not interpret the statute as limited to criminal appeals.

In view of our resolution of the matter it is unnecessary to reach the constitutional questions raised by amicus curiae and we specifically refrain from doing so.

To the extent that our holding here is inconsistent with Hillman, supra, we recede from that opinion.

In summary, we hold that § 57.081 Florida Statutes (1979), authorizes waiver of the service charge imposed by § 35.22 Florida Statutes (1979) and other specifically enumerated costs under appropriate circumstances.

The procedure to be followed by one who is “insolvent” or “poverty-stricken”, established by Section 57.081, Florida Statutes, 1979, contemplates an application in the lower tribunal to proceed in forma pauperis for purposes of appeal.

We recognize that we have clearly created and do here explicitly create “conflict” jurisdiction with the Lee case, supra, from the Second District Court of Appeal.

This cause is hereby remanded to the lower tribunal for consideration of appellant’s motion to proceed in forma pauperis.

LETTS, C. J., concurs specially with opinion.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

Difficult as it is to gain an accurate perspective on the recent past, I think it can be fairly said that the 1960s and 70s were decades in which America renewed its commitment to equal justice. Abroad, we joined with other nations of the world community and pledged our fidelity to human rights. At home, we endured a bitter and painful struggle so that the ideal of equal justice might be translated into a living reality for all Americans. With these experiences vividly etched in our collective memory, it seems incongruous that in the 80s we are still wrestling with the question whether access to appellate courts can be denied because of economic status. Access to justice is not a privilege of class, it is a right of citizenship. So, in my view, we are long overdue in repudiating the Orwellian notion of equal justice for all who can afford it.

I concur in the judgment of the court, but base my decision upon the plain meaning of the recently amended Section 57.081(1), Florida Statutes (Supp.1980) and upon the wording of Rule 2.040(b)(3), Fla.R.Jud.Adm. In selecting this decisional course I would

observe that the notion that access to courts may be predicated upon a litigant’s financial status bristles with federal and state constitutional questions, but as noted by the majority, we do not reach these issues for we are obliged to avoid constitutional rulings where a statutory ruling would suffice. Singletary v. State, 322 So.2d 551 (Fla.1975); Freedman v. State Board of Accountancy, 370 So.2d 1168 (Fla. 4th DCA 1979).

Turning to the statute, we find that effective July 1, 1980, Section 57.081(1) was amended to read in pertinent part as follows:

Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge.

Without belaboring the obvious, I believe that the phrase “any judicial ... proceeding,” is sufficiently clear and descriptive to require reliance on the plain meaning rule which was set forth by the court in State v. Egan, 287 So.2d 1, 4 (Fla.1973):

Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.

Justice Sundberg restated the rule in Reino v. State, 352 So.2d 853, 860 (Fla.1977) when he wrote:

The language of the statute is clear and unequivocal, and thus, legislative intent may be gleaned from the words used without applying incidental rules of construction. Words used by the legislature are to be construed in their “plain and ordinary sense.” The legislature is presumed to know the meaning of the words it utilizes and to have a working knowledge of the English language. (Citations omitted).

The majority seems to concede that the language of Section 57.081(1) is clear and unequivocal but, nonetheless, avoids the plain meaning of the statute on the ground that the Legislature could have been more specific, more precise. Although the language is clear, it could have been clearer. Ante, at 1135. Such a gloss, in my view, subverts the rule. Moreover, I am aware of no limitation which prevents the Legislature from enacting generic, all-embracing legislation. This is the clear import of “any judicial ... proceeding,” and I would suggest that we are not at liberty “to invoke a limitation or to add words to the statute not placed there by the Legislature.” Chaffee v. Miami Transfer Company, 288 So.2d 209, 215 (Fla.1974).

Consequently, I would apply Section 57.-081(1) as written, and would hold that it encompasses civil appeals. See Chappell v. Florida Department of Health & Rehabilitative Services, 391 So.2d 358 (Fla. 5th DCA 1980); Kleinschmidt v. Estate of Kleinschmidt, 392 So.2d 66 (Fla. 3d DCA 1981). Since the amendment to Section 57.081(1) is remedial in nature, I would apply the statute, as amended, to the present appeal even though it was filed prior to the effective date of the amendment. This is consistent with the general principle that remedial statutes are entitled to retrospective application. See City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); Grammer v. Roman, 174 So.2d 443 (Fla. 2d DCA 1965). It is also consistent with the rule that an appellate court will apply the law as it exists at the time of the appeal. Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla.1966).

Further, I join in the court’s remarks concerning Rule 2.040(bX3), Fla.R.Jud.Adm. However, inasmuch as the rule and the statute are in harmony, we need not confront the thorny question as to which is controlling. Cf. State v. Lane, 45 Fla.Supp. 145 (Fla. Palm Beach Cty.Ct.1977).

Finally, I think it is important to note that the right we recognize today is not illusory. Having gained access to the court, an indigent appellant need not face expulsion by dismissal of his appeal simply because he is financially unable to pay for the preparation of the record. If utilized in good faith, Rules 9.200(a)(3) and (b)(3), Fla. R.App.P., should afford an expeditious and inexpensive method for appellate review. See, for example, Kuenstler v. Andreasen, 386 So.2d 896 (Fla. 1st DCA 1980), but note the caveat in Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980).

LETTS, Chief Judge,

concurring specially-

Like Judge Hersey I do not think the language of the statute is unequivocal although I do think it was intended to include appellate proceedings. Certainly I do not find Judge Hurley’s paraphrase of Judge Hersey’s interpretation of the statute (clear but could have been clearer) to be accurate.

      . In 1975, approximately 1,225,000 persons in Florida had incomes below the poverty level. This group comprised 14.4% of the state’s population. Florida Statistical Abstract 78 at 136 (R. Thompson ed. 1978). During the same year 11.0% of Florida families had incomes below the poverty level. Id., at 604.

      . Art. I, § 21, Fla.Const.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Willie Frank LAWSON, Appellee.
    No. 80-555.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Stephen R. Keroff of Keller & Keroff, P. A., West Palm Beach, for appellee.
   HERSEY, Judge.

The state appeals from an order granting a motion to suppress evidence. The only witness at the suppression hearing was Police Officer Mark Alexander. The facts on which the order was based were of necessity derived from his testimony.

According to Officer Alexander, on the evening of January 2,1980, at approximately 10 o’clock, he and his partner observed a Ford Thunderbird parked in front of a “No Loitering” sign in the private parking lot of the Florida Bar. Although the car had been parked for at least five minutes, defendant and a passenger continued to occupy it.

The Florida Bar is located in a high crime area. Because problems frequently developed from persons loitering in the parking lot, “No Loitering” signs were posted by the management and the police were given permission to prevent loitering. Therefore, the officers approached defendant’s vehicle and advised the occupants that they would have to go in the bar or leave the area.

The passenger immediately departed. Defendant stepped out of the vehicle and in doing so revealed a brown paper bag on the front seat. Officer Alexander asked defendant what was in the bag, whereupon defendant seized it and hurriedly left the area, leaving the car door open.

Officer Alexander entered the automobile to look for evidence of ownership. There he observed a plastic bag containing white powder, subsequently identified as cocaine. He also found a rental agreement between the defendant and Hertz Corporation and the defendant’s drivers license.

The trial court found that the officers believed the vehicle had been abandoned and that the contraband discovered was in plain view. However, the court also found that the vehicle was lawfully parked, that the officers were without knowledge as to how long the occupants were sitting in the vehicle, and that the officers never afforded the defendant an opportunity to dispel any alarm or concern by asking him to identify himself or explain his presence and conduct. Based on these latter findings, the court held that the initial “stop” was invalid as violative of the Stop and Frisk law and that therefore the search was illegal. All items taken from the vehicle were suppressed.

Appellee argues that the ruling on the motion to suppress comes to this Court clothed with a presumption of correctness. Further, appellee claims that this court is required to resolve any doubt as to the reasonableness of the search in favor of a defendant whose property was searched regardless of the trial court’s ruling. We concur with both propositions. The problem comes in applying those propositions to this case.

The act of defendant in hastily leaving the scene without saying a word to the police officers sufficiently evidences an intention to abandon the vehicle. See Sharpe v. State, 370 So.2d 42 (Fla. 1st DCA 1979). Thus, Officer Alexander had a lawful right to be in the car investigating its ownership and could validly seize the cocaine which was in plain view. Neary v. State, 384 So.2d 881 (Fla.1980); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980). Even if the evidence was not in plain view, the officer had a right to search once the property was abandoned so that there was no longer a reasonable expectation of privacy cognizable by our jurisprudence. State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979) cert. dism. 383 So.2d 1200 (Fla.1980). Classification of the search as unreasonable under these circumstances could be justified only in the derivative sense that causes the search to be tainted if the initial stop was illegal. The presumption of correctness does not embue the search with any additional aura of unreasonableness not cast upon it by the exclusionary rule. However, an otherwise voluntary abandonment of property cannot be tainted or made involuntary by a prior illegal police stop. State v. Oliver, supra. Thus, even assuming that defendant was illegally stopped, the subsequent seizure of cocaine from the car is not tainted because the vehicle was voluntarily abandoned.

Nevertheless, we have examined the stop to determine whether the evidence, viewed through the perspective of the presumption of correctness, sustains the trial court’s view.

In support of the order, defendant argues that there was a seizure of his person because “the police officer was not going to give [defendant] the right to stay where he was.” This argument presupposes that defendant had the right to be where he was. The evidence demonstrates, though, that defendant did not in fact have the right to remain in his vehicle while parked in the Florida Bar lot. The management of the Florida Bar had posted “No Loitering” signs indicating that patrons were to go into the bar or leave the area and had given the police permission to enforce these instructions by so informing occupants of parked vehicles in the lot. It matters not in this instance how long defendant was actually sitting in his car. The officers were not investigating a charge of loitering; rather, they were simply advising defendant of the management’s policy relative to the privately owned parking lot. They were not obliged to ask anything further. The question as to the contents of the brown paper bag which followed has no legal consequences. It was not answered, nor are the contents of that bag in issue here. It may explain defendant’s hasty departure, but we view it as otherwise irrelevant and immaterial. Defendant’s departure rendered moot any supposed requirement that under these circumstances he should have been given an opportunity to identify himself and to explain his presence in the posted, private parking lot of a bar in a high crime area.

We therefore hold that there was neither a stop nor a seizure of defendant’s person. The exclusionary rule thus does not apply. There was no poisonous tree in the first instance to bear the forbidden fruit. The evidence, untainted by illegal action, should have been ruled admissible.

The order granting the motion to suppress is reversed and the cause is remanded.

REVERSED AND REMANDED.

LETTS, C. J., and BERANEK, J., concur.


text:
    STATE of Florida, Appellant, v. William BYHAM, Appellee.
    No. 80-610.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    David H. Bludworth, State Atty., and Moses Baker, Jr., Asst. State Atty., West Palm Beach, for appellant.
    Gary S. Israel and Richard W. Springer of Kohl, Springer, Springer & Garrison, Palm Springs, for appellee.
   GLICKSTEIN, Judge.

The State appeals an order granting a motion to suppress. We reverse.

On December 4, 1979, John Thomas Irvine, a police officer with the Town of Palm Beach, was operating his motorcycle when he observed three youths standing on the sidewalk in a huddle-type position. As he approached and passed the youths, one of whom was appellee, he could see them passing around some type of cigarette. At the hearing on the motion to suppress evidence the officer testified:

The way they were passing it, the way they were holding it and the way they attempted to conceal it, as I passed, was the way that normally people would act when they’re smoking or trying to conceal marijuana cigarettes.
Q And in your vice training, okay, and experience, have you seen people smoking marijuana?
A Yes, sir.
Q Okay. And do they usually pass it around amongst themselves?
A Yes, sir.
Q Okay. Do they hold it in any particular way?
A They cup it in a manner such as the— the end that you would inhale off of is this way and the fire is this way (indicating), up in the palm of your hand.
Q Okay. And is that basically what you saw the Defendants in this little — the Defendant, and these individuals, do?
A Yes.

He further testified that as he turned his motorcycle around he saw one of the youths throw the object they had been smoking onto the sidewalk and crush it. When the officer approached the youths he observed the spot where the object had been thrown and saw a green vegetation burn stain on the white sidewalk about a foot from where the three had been standing.

At that point the officer concluded the object tossed to the ground was marijuana. He based that conclusion on his prior experience as a narcotics officer involved in sixty-seven (67) arrests for possession and sale of marijuana, cocaine, hashish and PCP, and as an observer at least one hundred times of people smoking and passing around a marijuana cigarette.

Based on his conclusion, Officer Irvine searched appellee, who was barefoot and carrying tennis shoes. In one of the shoes the officer found a small metal can which contained marijuana and a cube of hashish. Whereupon he placed appellee under arrest.

The trial court found that the search of appellee was not incident to his arrest and suppressed the evidence found in the search. We disagree. The search was incident to a lawful arrest. Prior to any search Officer Irvine, based on his observations, training and experience, had probable cause to arrest appellee for possession of marijuana. Probable cause exists “where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.” Benefield v. State, 160 So.2d 706, 708 (Fla.1964).

The fact that the search preceded the arrest does not impair our conclusion that the search was incident to a lawful arrest. Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977); State v. Forbes, 353 So.2d 638 (Fla.3d DCA 1977).

Accordingly, we reverse the trial court’s order and remand for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.


text:
    Jeanne RODEWALD and Allstate Insurance Company, Appellants, v. Jacquelyn LAWTON and James Lawton, Appellees.
    No. 80-880.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Michael B. Davis of Walton, Lantiff, Schroeder & Carson, West Palm Beach, for appellants.
    Hubert R. Lindsey, West Palm Beach, for appellees.
   PER CURIAM.

The defendant appeals an order granting plaintiff a new trial on damages in a personal injury suit growing out of an automobile accident. We relinquish jurisdiction and remand to the trial court for the purposes of compliance with Rule of Civil Procedure 1.530(f), which provides as follows:

(f) Order Granting to Specify Grounds. All orders granting a new trial shall specify the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.

We conclude that the various alternative possibilities recited in the order granting new trial herein are insufficient in light of the rule’s requirement that the order “specify the specific grounds therefor.” The matter is thus remanded to the trial court for further proceedings in accordance with the above cited Rule of Civil Procedure and in accordance with Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978). The Supreme Court specifically required therein that an order for new trial contain reasons which must be articulated for the grant of a new trial to the extent that an appellate court may fulfill its review function. Upon completion of these further proceedings, either party may give notice to this court as to the necessity for a resumption of jurisdiction.

REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    GENWAY CORPORATION, Appellant, v. Richard FOX, Appellee.
    No. 80-1183.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Conrad Damon of Beyer, Lemer & Pu-der-Harris, North Palm Beach, for appellant.
    B. Jeane Crippen of Jones & Foster, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment assessing damages against the appellant for breach of an employment contract. We find no error by the trial court except in the computation of damages. The parties agree that the trial court made a $200.00 error in favor of appellee in computing the damages. We agree. Accordingly, the judgment against the appellant is affirmed but this cause is remanded with directions to the trial court to correct the final judgment in accord with the terms of this opinion.

LETTS, C. J., ANSTEAD, J., and STONE, BARRY J., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    John D. RAULERSON and Lillie May Raulerson, his wife, Appellants, v. Arthur W. HAMM, Jr. et al., Appellee.
    No. 80-1358.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.

      Anthony T. Young, P.A., Okeechobee, for appellants.
    Lester Jennings and Frank W. Zaremba, Miami, for appellee Arthur W. Hamm, Jr.
   DOWNEY, Judge.

Appellants seek reversal of an amended judgment granting specific performance of a contract for the sale of real property and awarding a brokers commission.

The evidence reflects that appellee, Arthur W. Hamm, Jr., entered into a contract with appellants for the purchase of land in Okeechobee County. When appellants refused to perform Hamm instituted this suit for specific performance. Without reciting the peculiar facts in detail, suffice to say that eventually it became apparent the appellants could not convey the entire parcel. Therefore, the trial court amended the final judgment (over which it had retained jurisdiction) to require the appellants to convey the amount of property to which they had title.

We have considered appellants’ points on appeal directed to that portion of the amended judgment requiring specific performance of their undivided three-fourths interest in the parcel in question and find no reversible error demonstrated.

While the litigation was progressing appellants requested the trial court to add Allen Real Estate, Inc., as a defendant in the action since Allen had a claim for a brokerage commission arising out of the contract in question. The court ordered Allen to be added as a party plaintiff. Thereafter, Allen filed a motion for sanctions, alleging, among other things, that it was entitled to a brokerage commission for the sale of the property and demanding that the commission be paid and that it be authorized to credit the $10,000 which it held in its trust account toward that commission. Copies of that motion were served upon counsel for appellants and counsel for Hamm, but no pleadings were ever directed to said motion. Finally, Allen moved for summary judgment on the motion for sanctions on the ground there was no genuine issue of material fact. Appellants objected to said motion for summary judgment, contending that Allen had never filed any complaint to recover its brokerage commission so that responsive pleadings could be filed to frame the issue between Allen and appellants.

Somewhat reluctantly we feel compelled to agree with appellants on this point. Appellants were not required to respond to the motion for sanctions. Had Allen filed a complaint for the brokerage commission, appellants would have been required to plead thereto and allege any defense to said claim. Under the circumstances the claim for the brokerage commission was not ripe for decision.

Accordingly, that part of the judgment awarding Allen Real Estate, Inc., a brokerage commission is reversed and the cause is remanded for further proceedings on Allen’s claim. The remainder of the judgment is affirmed in all respects.

AFFIRMED IN PART AND REVERSED IN PART, and remanded.

BERANEK and GLICKSTEIN, JJ., concur.


author: SHARP, G. K., Associate Judge.

text:
    In re ESTATE of Anna C. ANDERSON, Deceased.
    No. 80-1409.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Raymond W. Gearey of Ruden, Barnett, McCloskey, Schuster & Russell, Fort Laud-erdale, for appellant Allan E. Anderson.
    Larry F. Witte of Grimditch, Bentz, Witte & Wunker, P. A., Pompano Beach, for appellee Larry F. Witte, as Personal Representative of the Estate of Anna C. Anderson, Deceased.
   SHARP, G. K., Associate Judge.

Appellant, Allan Anderson, is the personal representative of his father, David Anderson’s estate. David’s wife, Anna, died on January 18, 1980, in Broward County, leaving her estate to assorted friends and relatives not including her husband, who had previously been declared incompetent and was the ward of his son, Allan Anderson. Husband was living with his son in South Carolina and died shortly after his wife on March 16, 1980, never having exercised his right to take elective share under the Florida Probate Code. The issue presented is whether a personal representative may exercise the right of election.

Section 732.210, Florida Statutes (1979), provides:

By whom exercisable. — The right of election may be exercised:
(1) By the surviving spouse,
(2) By a guardian of the property of the surviving spouse. The court having jurisdiction of the probate proceeding shall determine the election as the best interests of the surviving spouse require.

Appellant seeks to have this court extend the statute to include the personal representative of the estate of a surviving spouse. This was not the intent of the statute.

The elective share is a substitute for dower and curtesy, which were abolished by Section 732.111, Florida Statutes (1979). The purpose of dower and curtesy was to insure provision for the surviving spouse’s needs. When the surviving spouse dies, no like purpose remains.

The only reason for allowing the personal representative of the surviving spouse to make the election would be to increase the estate and benefit the heirs and devisees of the surviving spouse.

In re Estate of Pearson, 192 So.2d 89 (Fla. 2d DCA 1966) determined that enriching the surviving spouse’s estate and passing something on to kinspeople has no place in the court’s consideration. The reasoning set forth in In re Estate of Pearson, supra, as applied to the elective share is still sound.

We hold that the elective share is for the express purpose of caring for the surviving spouse and not to augment the estate for the benefit of heirs.

For the above reasons, the order appealed from is affirmed.

AFFIRMED.

MOORE and HURLEY, JJ., concur.


text:
    KANAWHA INSURANCE COMPANY, Appellant, v. Erma L. MORRISON, Appellee.
    No. 80-1718.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Romney C. Rogers of Rogers, Morris & Zeigler, Fort Lauderdale, for appellant.
    Peter A. Portley of Portley & Sullivan, Pompano Beach, for appellee.
   PER CURIAM.

The order of the trial court denying appellant’s motion to dismiss for lack of jurisdiction is reversed. It is suggested that investigation of the cause of death by agents of appellant in Florida or that refusal of appellant to pay under its double indemnity clause constitutes a breach of the insurance contract in Florida so that jurisdiction attaches. Neither suggestion has merit. Payment of premiums for life insurance by mail from Florida to a foreign insurer is similarly insufficient to justify in personam jurisdiction over the foreign insurer. That aspect of Section 626.906 Florida Statutes (1979) refers to and its effect is limited to a situation where the insurance contract is entered into or delivered in the State of Florida. Parliament Life Insurance Company v. Eglin National Bank, 333 So.2d 517 (Fla. 1st DCA 1976), Drake v. Scharlau, 353 So.2d 961 (Fla.2d DCA 1978) and Kentucky Farm Mutual Insurance Company v. Mills, 367 So.2d 673 (Fla.2d DCA 1979).

We therefore remand the cause with instructions that the complaint be dismissed.

REVERSED AND REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. OTT, Acting Chief Judge,

text:
    SUPERIOR PAVING INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 79-1997.
    District Court of Appeal of Florida, Second District.
    March 11, 1981.
    Christy F. Harris, Lakeland, for appellant.
    H. Reynolds Sampson, Gen. Counsel and Margaret-Ray Kemper, Appellate Atty., Dept, of Transp., Tallahassee, for appellee.
   PER CURIAM.

Petition for review denied.

RYDER and DANAHY, JJ., concur.

OTT, Acting C. J., dissents with opinion.

OTT, Acting Chief Judge,

dissenting opinion.

I dissent.

The question presented here concerns the proper interpretation and practical effect of a provision governing the computation of allowances for freight rate increases under standard Department of Transportation contracts for road construction.

Section 9-5.5 of such contracts reads, in pertinent part:

Section 9-5.5. Method of Determining Adjustment:
The amount of any contract adjustment to be made under the provisions of this Article will be determined as follows:
(a) For any applicable material, the base freight cost increase or decrease shall be the product of the theoretical weight of the material shipped at the increased or decreased rate, [multiplied] by the change in rate. [Emphasis supplied.]
(e) Weights used in calculating the amount of any adjustment will be based on the final contract pay quantities and the theoretical weights shown below.
(1) Limerock Base (sq. yd. pay unit) ... 100 lbs. per sq. yd. inch.

Simply stated, and subject to certain conditions not applicable here, those provisions direct that in situations where freight rates are increased during the course of a job, the contractor is entitled to the increased rate on materials hauled after the increase becomes effective. But the allowance is not based upon the actual weight of materials hauled; instead, it is based upon the “theoretical” weights of such materials — i. e., a set standard weight of the particular material when compacted to the Department’s specifications. If 100 tons of limerock, for example (the material involved here), compacts into 184 sq. yds. of 10 " base, which weighs only 92 tons according to the standards specified by the contract, the allowance for any rate increase would be based on the 92 tons and not on the 100 tons actually furnished by the contractor.

Neither party to this appeal quarrels with that theory. Their dispute focuses on the manner in which those calculations are made. Although the complexities of engineering concepts and calculations are not to be deprecated, the narrow issue on this appeal requires only an application of the cardinal principle governing the interpretation of contracts: the language used should be given its plain meaning whenever possible.

To avoid distractions from the precise issue before us, it is essential to bear in mind that the formula with which we are dealing was devised solely for use in ascertaining allowances for changes in freight charges. Other than that, it has nothing at all to do with the price to be paid for materials furnished under the contract. In other words, the example given above was solely for the purpose of illustrating how the contractor would be compensated if, during the progress of a project, he was faced with increased freight rates. I intended no intimation whatever that he would be paid for the materials on some “theoretical weight” basis. His total net receipts under the contract might be affected, but only by any increase or decrease in what he was allowed for freight charges.

The parties debate at great length such things as the propriety of using a “first in, first out” method of inventory accounting, and the reasonableness of the standard weights adopted by the Department for various materials. Those arguments merely muddy the water and obscure the real nub of their controversy, which is rather simple and is best illuminated by a hypothetical example which avoids odd numbers.

Suppose a contractor agreed to furnish the limestone needed in a project for $5.00 per ton, which included and was predicated upon a freight rate of $8.00 per ton. He delivered 900 tons and then the freight company he was using increased the rate to $3.50 per ton. Thereafter, he delivered another 100 tons to complete the job. The Department then inspected the project, conducted tests on the compacted limerock, and determined that the theoretical weight of the 1,000 tons of shipped material was 920 tons.

The contractor would receive, of course, $5,000.00 for the 1,000 tons of material actually shipped. The question is, and this case asks, how much should he receive because of the extra $.50 per ton he had to pay for freight on the last 100 tons shipped?

The Department takes the position that under section 9-5.5 the base freight cost increase under those circumstances would be only $10.00, i. e., $.50 per ton times 20 tons, the amount by which the theoretical weight of all limestone shipped for the project exceeds the actual weight of the limestone shipped before the rate was increased. The State Road Arbitration Board agreed with, and the majority of this court affirms, that interpretation of the contract.

I agree with the reasoning of the contractor, who asserts that if the proven compaction quotient in the hypothetical were 92% (920/i,ooo), then the theoretical weight of the 100 tons shipped after the rate increase would be 92 tons, resulting in a base rate cost increase of $46.00 if the contract provision is properly applied.

That is precisely the computation directed by section 9-5.5. There isn’t one word in that section that either directs or sanctions a comparison of (1) the theoretical weight of all the materials shipped for the entire project with (2) the actual weight of the material hauled before the rate was increased. In my opinion that is strictly a meaningless, apples-and-oranges comparison. Why would anyone be interested in what was shipped before the rate increase? The contractor has no problem at all with those shipments — he is concerned with the extra $.50 he had to pay on the last 100 tons.

What the statute explicitly and quite plainly states is that only two factors are involved in the computation: (1) the change in rate and (2) the theoretical weight of “the material shipped at the increased ... rate." (Emphasis added.) That doesn’t seem to me to be all that complicated, and I would reverse the arbitration order with instructions to the board to make a common sense application of the clear language of the contract in the manner urged by appellant.


text:
    KIRKLAND MASONRY, INC., and Ivy Nixon, Appellants, v. Brenda L. LOREY et al., Appellees.
    No. 80-2296.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Magill & Reid and Ronald L. Buschbom, Miami, for appellants.
    Horton, Perse & Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Upon the plaintiffs/appellees’ confession of error filed in this cause, the partial summary judgment on liability entered below in favor of said plaintiffs/appellees is reversed and the cause is remanded to the trial court for further proceedings. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966); see Fla.R.App.P. 9.130(a)(3)(C)(iv).