text:
    JONES MAHONEY CORPORATION and U.S. Fidelity & Guaranty Company, Appellants/Cross-Appellees, v. John HUTTO, Appellee/Cross-Appellant.
    No. AK-168.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.

      John R. Gierach, Orlando, for appellants/cross-appellees.
    Bill McCabe of Shepherd, McCabe & Coo-, ley, Orlando, for appellee/cross-appellant.
   THOMPSON, Judge.

The employer/carrier (E/C) timely appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred in awarding temporary total disability (TTD) benefits, in awarding wage loss benefits, and in awarding taxable costs to claimant. We agree with the E/C and reverse on all three points. The claimant argues on cross-appeal that § 440.15(3), Fla. Stat. (1979) is unconstitutional. We affirm the point raised on cross-appeal.

Claimant, a mason and general laborer, suffered a compensable injury on March 5, 1980. Dr. Higgins, claimant’s treating orthopedist, said that claimant could return to full employment on September 12, 1980, although he felt claimant could not do cinder block lifting or mason tending at that time. Dr. Lakusiewcz, an orthopedist who only saw claimant in January of 1981, indicated that based on Dr. Higgins’ findings, claimant could have returned to light duty in September of 1980. Dr. Higgins found that claimant reached maximum medical improvement (MMI) on December 11, 1980 with, a 5% disability. However, Dr. Higgins said that under the American Medical Associations Guides to the Evaluation of Permanent Impairment (AMA Guides) claimant would not have a permanent physical impairment. He said that although you can have a limited range of motion with a fractured humerus, claimant did not. Dr. La-kusiewcz also felt that claimant had a 5% permanent impairment of the upper left extremity. However, he also indicated that based solely on the AMA Guides, claimant would not have a permanent physical impairment rating.

Claimant, whose prior work experience included heavy motel maintenance, masonry, washing dishes, and busing tables, indicated he did not begin to search for work on September 12 because he did not feel his arm could handle mason tending. It is unclear from claimant’s deposition testimony and from his hearing testimony exactly when he did commence searching for employment. However, the very earliest he began a work search was early November 1980. When he did commence his work search, he only looked for restaurant work. He located a job busing tables around Christmas of 1980, which he subsequently lost for reasons unconnected with his injury. Claimant then conducted another job search and worked as a general laborer until May 16, 1981, when he began doing masonry work.

The deputy awarded claimant TTD benefits from September 12, 1980 through December 11, 1980, and wage loss benefits from December 12, 1980 through May 16, 1981. The deputy also awarded claimant taxable costs.

The deputy erred in awarding claimant TTD benefits from September 12, 1980 through December 11, 1980. Although Dr. Higgins did not feel claimant could do masonry work as of September 12, he did think claimant was capable of working and released claimant to work with certain restrictions on that date. There was no competent substantial evidence that claimant was unable to work as of September 12, 1980. Accordingly, the deputy erred in awarding claimant TTD benefits from September 12,1980 through December 11,1980. See Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982).

Claimant was entitled to temporary partial disability (TPD) benefits for total wage loss from the commencement of his work search on November 3, 1980 until he reached MMI on December 11, 1980. The deputy erred in awarding claimant TTD benefits from September 12, 1980 through December 11, 1980, but the deputy’s award of benefits for the period November 3,1980 to December 11,1980, was erroneous only in designating the compensation award as TTD benefits instead of TPD benefits. We therefore reverse the award of TTD benefits and modify the order to award TPD benefits for total wage loss for the period November 3, 1980 to December 11, 1980. Holiday Care Center.

The deputy also erred in awarding wage loss benefits. The claimant did not demonstrate the existence of a permanent impairment based on the AMA Guides. On the contrary, Dr. Higgins testified that the claimant had no permanent impairment under the AMA Guides. This case does not involve a permanent impairment which is obviously visible and demonstrable to the deputy. Accordingly, the deputy erred in awarding claimant wage loss benefits based on his finding of permanent anatomic impairment. See Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982); Paradise Fruit Company v. Floyd, No. AF-493 (Fla. 1st DCA August 31, 1982) [7 FLW 1899].

The claimant argues on cross-appeal that § 440.15(3), Fla.Stat. (1979) is unconstitutional. This court held in Rhaney v. Dobbs House, that § 440.15(3) was constitutional.

In conclusion we reverse the award of TTD benefits from September 12, 1980 through December 11, 1980, modify the order to award TPD benefits for total wage loss from November 3, 1980 to December 11, 1980, and reverse the award of wage loss benefits from December 12, 1980 through May 16, 1981.

REVERSED.

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


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Roy MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. AK-260.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.

      Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal has been conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

After reviewing the record, we find no error and affirm. The only issue preserved by Morris’s nolo plea was decided in Morris v. Nimmons, 414 So.2d 568 (Fla. 1st DCA 1982).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: THOMPSON,'Judge. SHIVERS, Judge,

text:
    TAMPA SHIP REPAIR & DRY DOCK COMPANY, self insured, Appellant, v. Kris Edward YOUNG, Appellee.
    No. AK-357.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Edward F. Gerace, Tampa, for appellant.
    Ronald W. Young, Tampa, for appellee.
   THOMPSON,'Judge.

The self-insured employer appeals the order of the deputy commissioner (deputy) finding claimant’s accident compensable, contending the deputy erroneously determined that the claimant’s injury arose out of and in the course of his employment. We agree and reverse.

Claimant was injured in an automobile accident on November 1, 1979 at approximately 3:15 a.m. while on his way to work. Claimant normally worked from 7:30 a.m. until 4:00 p.m., but it was not unusual for him to work overtime. On the day before his accident claimant’s employer requested that he come to work at 4:30 a.m., or three hours before his normal starting time. While driving to work on November 1, claimant was involved in an accident with two drag-racing vehicles approximately 15 miles from his place of employment.

The claimant contends that he was on a special errand for the employer since he was reporting to work early at the employer’s request. Accordingly, he concludes that under Bowen v. Keen, 154 Fla. 161, 17 So.2d 706 (1944), compensation is not precluded by the going and coming rule. The deputy agreed with, this rationale and ruled that the claim was compensable.

However, Bowen is distinguishable from the instant case. In Bowen the employee worked irregular hours, often working both early and late, and sometimes rendered 24-hour service to his employer. His employment involved many duties away from the employer’s place of business. At the time of his injury he was on the way to work early, at his employer’s request, to pick up a truck so he could make two out-of-town business trips for his employer in one day. In the instant case, the claimant worked regular hours from 7:30 a.m. to 4:00 p.m., with the exception of some voluntary overtime, as a rigger at the Tampa Ship Repair and Dry Dock Company. His job did not require travel. At the time of the accident he was driving his own car en route to the employer’s place of business to perform his job. The route taken was selected by him, and it was apparently his normal and usual route to work. He was not on any special errand or mission for his employer, but was merely en route to do his regular job. There was no evidence that he was required to take a different or more dangerous route because of going to work earlier than customary, nor that the highway was more congested or dangerous at this time than it was at the time he usually went to work.

With certain exceptions, injuries sustained by employees while going to or from work do not arise out of and in the course of their employment. Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941); George v. Woodville Lumber Co., 382 So.2d 802 (Fla. 1st DCA 1980). The only circumstances in this case which could even arguably make it an exception to the going and coming rule is the fact that the claimant left for work approximately three hours earlier than normal. The single circumstance of irregular hours is not a sufficient basis for finding that the accident arose out of and in the course of claimant’s employment. Everett Ford Company v. Laney, 189 So.2d 877 (Fla.1966). “Therefore, absent other special circumstances, an employee with irregular hours cannot be considered to be on a special errand when he is simply instructed to perform his usual duties at an irregular time.” Eady v. Medical Personnel Pool, 377 So.2d 693, 696 (Fla.1979). The claimant was not on a special errand or mission for his employer. He was not on 24-hour call, nor do the facts and circumstances of this ease set forth any other recognized exception to the going and coming rule. Accordingly, the finding of compensability was erroneous and is reversed.

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

SHIVERS, J., dissents, with opinion.

SHIVERS, Judge,

dissenting.

I respectfully dissent and would affirm the order of the deputy commissioner finding claimant’s accident compensable.

Our Supreme Court, speaking through Justice Adkins in Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979), clarified the going and coming rule. It does not apply to employees on special missions or errands for the employer. Although there is no general on call exception to the going and coming rule, special errands often arise in the context of calls from the employer. The Eady case discusses favorably, and at some length, the analysis of Professor Arthur Larson, author of The Law of Workmen's Compensation, on this subject.

One special circumstance present in the case at bar is that the overtime work which the employer asked the employee to perform required the claimant to drive to work at a particularly hazardous time, i.e., in the middle of the night. Encountering drag racers, as happened here, is the type of hazard which would more commonly be encountered at 3:00 A.M. than at claimant’s regular time of going to work. Professor Larson states that if overtime work is extended so far into the night as to transform a journey into a substantially more inconvenient or hazardous trip, a case may be made for invoking the special errand rule. 1 Larson’s Workmen’s Compensation Law, § 16.12. Larson cites an Oklahoma case which is factually close to the case sub judice. In Thurston Chemical Co. v. Casteel, 285 P.2d 403 (Okl.1955), a worker who normally started to work at 8:00 A.M. was directed by his employer to appear at 4:00 A.M., and the Oklahoma Court awarded compensation. Larson approved, stating the award was proper due to the onerousness of the trip.

Here, at the end of his regular shift, claimant was instructed to come to work at 4:30 A.M., three hours earlier than the beginning of his regular work day. Based on the suddenness of the assignment and the onerousness of the trip outside his usual and regular working hours, it appears claimant’s journey should be considered as part of the service he was rendering to his employer, thus placing his injury under the special errand exception to the going and coming rule.


author: MILLS, Judge. ERVIN, Judge,

text:
    Fred C. HOUGH and L.H. Hough, Petitioners, v. Louis T. BAILEY, T.B.F. Properties, Inc., and Eugene Loftin, Respondents.
    No. AM-269.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Carl D. Dawson of Dawson, Galant, Sulik, Nichols & Levy, P.A., Jacksonville, for petitioners.
    Gregory W. Johnson of Weil, Johnson & Benson, Jacksonville, for respondents.
   MILLS, Judge.

The Houghs sought to appeal an interlocutory order dissolving a lis pendens. We have treated the appeal as a petition for a writ of certiorari. Cooper Village v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980). We grant the petition and reverse the order.

The Houghs filed a complaint seeking specific performance of an agreement and reformation or cancellation of several deeds as fraudulent. The underlying agreement was between the parties, arising from their relationship as defendants in another suit. This agreement has not been recorded with the clerk of the court as registrar of deeds. Bailey then transferred the subject property to T.B.F. Properties in a recorded instrument. T.B.F. has further alienated the subject property in recorded instruments. A lis pendens was filed on all the subject property.

We are faced with an attack on recorded instruments based on a nonrecorded document'. We are called on to first decide if the action is “founded” on a recorded instrument within the meaning of Section 48.23(3), Florida Statutes (1981), and, secondly, if not, to interpret “the court may control and discharge the notice of lis pen-dens as the court may grant and dissolve injunctions.”

The trial court apparently found that this action was not so “founded.” We agree. Hough, citing Boca Raton Land Dev. v. Sparling, 397 So.2d 1053 (Fla. 4th DCA 1981), argues that an action seeking to set aside a fraudulent deed is founded upon that deed. We are not persuaded. “Founded upon” is commonly used synonymously with “based upon.” It suggests that the right asserted arose from the recorded instrument. The asserted right in this case arose from an unrecorded contract, so it was not so founded. ■

We turn to the impact of Section 48.23(3) upon a lis pendens when the action is not founded upon a recorded instrument. In Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976), the Second District Court of Appeal held that a lis pendens could not be filed under these circumstances without a prior order of court. We think that the better view is that of Cacara v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981):

[W]e hold that the notice of lis pendens was not subject to motion to discharge simply because there was no hearing pri- or to its recording. The notice was, however, subject to the trial court’s control as in the case of an existing injunction. Therefore the burden was on the moving party to establish that the lis pendens was inappropriate to the circumstances and cause of action stated in the complaint.

An existing lis pendens will be inappropriate under the same circumstances that an existing injunction would be inappropriate. Since the court below made no findings on appropriateness, instead dismissing in reliance on Kirk, we reverse the order and remand so that findings on the appropriateness of a continued lis pendens can be made. Whatever further proceedings are needed for this may be held.

The petition for writ of certiorari is granted, the order is reversed, and the case is remanded.

WIGGINTON, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent to the majority’s opinion granting the petition for writ of certiorari. We previously stated in Gadsden County Times, Inc. v. Horne, 382 So.2d 347, 348 (Fla. 1st DCA 1980), that

[cjertiorari will be granted only in cases in which it clearly appears that there is no full, adequate and complete remedy available to the petitioner by appeal after final judgment, as where (a) the trial court has acted without or in excess of its jurisdiction, or (b) its order does not conform to the essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Pullman Company v. Fleishel, 101 So.2d 188 (Fla. 1st DCA 1958); Tallahassee Democrat v. Pogue, 280 So.2d 512 (Fla. 1st DCA 1973); and West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975).

Moreover we recognized that as a general rule, “the burden, vexation, or hazard of defending litigation does not furnish a basis for certiorari intervention.... ” Id.

In the present case,'-the trial judge based his order striking the lis pendens on the authority of Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976); consequently there was clear-cut authority supporting his determination. Whether we consider the view of Cacara v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981), the better view than that of Kirk is immaterial to a consideration of whether or not certiorari review should be granted. In my judgment there has been no showing that the trial judge either acted without or in excess of his jurisdiction, or that his order fails to conform to the essential requirements of law. J would therefore deny the petition for writ of certiorari.


text:
    Dean E. HAHN, Appellant, v. STATE of Florida, Appellee.
    No. AM-331.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Dean E. Hahn, pro se, appellant.
    Jim Smith, Atty. Gen., John W. Tiede-man, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Hahn appeals denial of his motion for post-conviction release, Rule of Criminal Procedure 3.850.

Hahn asserts that his appointed counsel’s failure to advise him that as a resident alien he faced deportation after his guilty plea deprived him of effective assistance of counsel, see Edwards v. State, 393 So.2d 597 (Fla. 3d DCA 1981). We disagree and affirm.

We note at the outset that no record was developed on the factual questions of: 1) is Hahn an alien; 2) what advice was given Hahn; and 3) how many prior convictions does Hahn have. These questions must be answered before prejudice to Hahn could be established.

We do not remand, however, because we decide as a matter of law that Hahn has not alleged ineffective assistance of counsel. In Knight v. State, 394 So.2d 997 (Fla.1981), our Supreme Court announced a four-point test. We focus on the second point. We are of the opinion that the omission complained of by Hahn is not a substantial and serious deficiency measurably below competent counsel. In the northern part of this State, counsel would not reasonably expect his client to be an alien. This possibly distinguishes Edwards, supra, which dealt with an attorney in Miami.

We acknowledge conflict with Edwards.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    COMMISSION ON ETHICS, Appellant, v. L.H. LANCASTER, Appellee.
    No. AN-73.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    Rehearing Denied Nov. 3, 1982.
    Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., Philip C. Claypool, Tallahassee, Commission on Ethics, for appellant.
    Lamar Winegeart, III of Arnold, Strat-ford & Booth, P.A., and Larry Smith of Smith, Hallowes & Richeson, Jacksonville, for appellee.
   MILLS, Judge.

The Ethics Commission appeals the denial of its motion to dismiss or transfer for improper venue and the entry of a temporary injunction against it. We reverse the denial of the motion for change of venue, order that the case be transferred to Leon County, and vacate the injunction.

This case began when various individuals filed a complaint with the Ethics Commission charging Lancaster, the Supervisor of Elections of Clay County, with several acts of sexual harassment against some of his female employees in violation of Section 112.313(6), Florida Statutes (1981). The Commission ordered a preliminary investigation of the charges, and, after it was completed, advised Lancaster of its intent to hold a “probable cause” hearing to determine whether further action was warranted. Section 112.324(2), Florida Statutes (1981), and Rule 34-5.-06, Florida Administrative Code. On the day set for hearing, Lancaster requested that the matter be continued to enable the Commission’s staff to conduct further investigation and to prepare a supplemental report. The Commission granted the continuance and advised Lancaster that the “probable cause” hearing had been rescheduled for 19 May 1982.

On 19 May, Lancaster sought and obtained from the circuit court in Clay County an ex parte order temporarily restraining the Commission from conducting any further proceedings and from making public any information about the charges which had previously been gathered. After a hearing on 27 May 1982, the trial court denied the Commission’s motion to dismiss or transfer for improper venue and entered an order continuing the injunction.

Ordinarily, an action against a state agency or officer must be brought in the county in which the agency has its official headquarters. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978). An exception to that rule is known as the “sword-wielder” doctrine. We hold that this doctrine is inapplicable to the facts of the present case. “The ‘sword-wielder’ doctrine ... applies only where direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff....” Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So.2d 940, 942 (Fla.1980). The Commission’s actions in this case do not constitute an unlawful invasion of any of Lancaster’s constitutionally protected rights. Garner v. Florida Commission on Ethics, 415 So.2d 67 (Fla. 1st DCA 1982). Therefore, venue is proper only in Leon County.

When the trial court improperly denies a motion for change of venue, all subsequent proceedings are void. Board of County Commissioners of Eagle County v. District Court In and For the City and County of Denver, 632 P.2d 1017 (Colo.1981). Accordingly, the injunction is vacated.

Reversed and remanded for transfer to the Second Judicial Circuit of Florida, Leon County, for further appropriate proceedings.

ERVIN and WIGGINTON, JJ., concur.


author: HENDRY, Judge.

text:
    Charlie PARKER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-940.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Charlie Parker, appeals his conviction and sentence for grand theft and possession of cocaine.

On the night of July 22, 1980, Kathy Reynolds and William Bordeaux drove to a street corner in Hialeah to purchase marijuana. When they reached the corner, they stopped their automobile and the appellant approached them and sold marijuana to Bordeaux. The appellant then reached into the automobile and took a gold necklace from Reynolds’ neck. Reynolds told her father about the incident soon thereafter and he promptly reported it to the police who took a report from her. The next day Bordeaux returned twice to the corner where the marijuana sale and the theft of the necklace took place, and observed the appellant. Bordeaux immediately reported to the police that he had seen the appellant at the corner and the police responded and approached the appellant, who then started running. He was caught and placed under arrest. A search revealed cocaine in his possession.

The appellant was charged in one information with three counts: robbery (Count I), possession of cocaine (Count II), and resisting an officer without violence (Count III).

Following pleas of not guilty, appellant moved to sever Counts II and III from Count I. The motion was denied. However, during trial a motion for acquittal was granted as to Count III. The jury returned verdicts of guilt to grand theft on Count I and possession of cocaine, Count II. On motion of the State, the appellant was sentenced as a habitual offender upon a showing that he had been convicted of robbery in 1978. The trial court imposed an enhanced sentence under section 775.084, Florida Statutes (1981) of ten years on each of the two counts, to run consecutively.

In the first point on appeal appellant contends that the trial court erred in denying his motion to sever Count I from Counts II and III because the grand theft on July 22 and possession of cocaine and resisting an officer without violence on July 23 were not connected within the meaning of Florida Rule of Criminal Procedure 3.150(a).

We cannot agree and hold that the offenses herein were properly charged in a single information because they were connected in an episodic sense; that is, they were part of the same course of conduct and occurred within a period of a few hours at the very same location. The first offense led to and was connected with the other offenses; that is, the robbery and subsequent investigation led to the arrest and charges of cocaine possession and resisting arrest without violence. Jacobs v. State, 396 So.2d 713 (Fla.1981); Williams v. State, 409 So.2d 253 (Fla. 4th DCA 1982); Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982).

Appellant’s other point relates to the sentence imposed. It is argued that the trial court erred in sentencing him as a habitual felon where no findings of fact which show on their face that an extended term is necessary for the protection of the public appear either in the written order or in the transcript of the sentencing proceedings.

The record shows that at the sentencing hearing the court heard evidence of appellant’s prior conviction of a felony within the previous five years, viewed a document stating that the defendant had not been pardoned for any crimes in the State of Florida, considered the pre-sentence investigation, and allowed an opportunity for rebuttal of any matters raised. The trial court then sentenced the appellant as a habitual offender and stated that “the imposition of sentence under this Section is necessary for the protection of the public from further criminal activity by the defendant.” It does not appear from the record that the appellant objected to the imposition of the enhanced sentence.

We have considered appellant’s contention in the light of the record and the controlling decisions and have concluded that the record is sufficient to support the enhanced sentence. Jones v. State, 387 So.2d 401 (Fla. 5th DCA 1980); Eichhorn v. State, 386 So.2d 604 (Fla. 5th DCA 1980); Stewart v. State, 385 So.2d 1159 (Fla. 2d DCA 1980); McClain v. State, 356 So.2d 1256 (Fla. 2d DCA 1978).

Affirmed.

      . The rule provides:
      (a) Joinder of Offenses. Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on two or more connected acts or transactions.


text:
    Lorenzo MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2246.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Assistant Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Lorenzo Marshall, and a co-defendant, Joseph Theodore Jenkins were charged in a four count information with: (I) kidnapping; (II) armed robbery; (III) sexual battery with the use of a firearm; and (IV) possession of a firearm during the commission of a felony. At trial, the jury returned a verdict finding Jenkins guilty on all counts and appellant Marshall, not guilty as to count I, kidnapping, and count IV, possession of a firearm during the commission of a felony, and guilty on counts II and III, armed robbery and sexual battery with the use of a firearm.

Appellant urges on appeal that the trial court erred in adjudicating him guilty of armed robbery and armed sexual battery (counts II and III) under sections 812.-13(2)(a) and 794.011, Florida Statutes (1981), because he was acquitted by the jury of possession of a firearm during the commission of the felonies (count IV), section 790.07(2), Florida Statutes (1981), resulting in “legally inconsistent” verdicts which, under the rule established by our supreme court in Mahaun v. State, 377 So.2d 1158 (Fla.1979) and Redondo v. State, 403 So.2d 954 (Fla.1981), requires reversal of the convictions for armed robbery and sexual battery with the use of a firearm.

We do not agree that the Mahaun and Redondo cases are controlling in the instant case. The defendants in Mahaun were charged with third-degree felony murder and aggravated child abuse. The jury returned a verdict of guilty of the lesser included misdemeanor of culpable negligence as to Mrs. Mahaun, thereby acquitting her of the felony. The supreme court held that since the felony of aggravated child abuse was an essential element of the felony murder, Mrs. Mahaun could not be convicted on the latter charge.

In Redondo, the defendant was charged with aggravated battery and unlawful possession of a firearm while engaged in the commission of a felony. On the aggravated battery charge, the jury found him guilty of the lesser included offense of simple battery, and guilty as charged of possession of a firearm during the commission of a felony. On appeal, the supreme court reversed Redondo’s conviction on the possession charge, holding that a conviction for unlawful possession of a firearm must stand or fall in conjunction with the underlying felony.

Accordingly, both Mahaun and Redondo involved acquittal of the underlying felony which served as the basis for the felony murder charge in Mahaun and the possession of a firearm during the commission of a felony charge in Redondo, thus necessitating reversal of the latter charges. In the instant ease, we have the reverse situation since Marshall was convicted of the underlying felonies and acquitted of the unlawful possession charge. Marshall’s argument, in a nutshell, is that since the jury acquitted him of possessing a firearm during the other two offenses, then logically and legally he can’t be convicted of armed robbery and armed sexual battery. We disagree. Other than Mahaun and Redondo, which we find inapplicable to the present situation, appellant has not cited, nor have we been able to discover, a single case which mandates this result. No illegality occurs where, as here, a defendant is convicted of an armed felony even though he is not the so-called “trigger-man” during a criminal episode. See, e.g., Zarro v. State, 390 So.2d 811 (Fla. 5th DCA 1980) (where defendant’s accomplice, but not defendant, carried a firearm during robbery, defendant properly convicted of robbery with a deadly weapon, but imposition of mandatory minimum sentence for possession of a firearm during commission of robbery pursuant to section 775.057 improper since the statute requires a defendant to have a firearm in his actual, not vicarious, possession).

Prior to deliberation in Marshall’s trial, the court, without objection from the defense, gave the jury the following standard instruction:

A separate crime is charged in each count of the information. Each crime and the evidence applicable to it must be considered separately. The fact that you may find the Defendant guilty, or not guilty, of one or more of the crimes charged must not affect your verdict with respect to any other Defendant’s crime charged.

Marshall was found guilty of armed robbery and armed sexual battery upon evidence that was clearly sufficient to support the convictions on each of these counts, and was separately sentenced for the crimes. See § 775.021(4), Fla.Stat. (1981). The finding as to count IV is irrelevant since the jury may return inconsistent verdicts. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); McCloud v. State, 335 So.2d 257 (Fla.1976); Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Corbo v. State, 347 So.2d 133 (Fla.3d DCA), cert. denied, 354 So.2d 979 (Fla.1977); Miller v. State, 220 So.2d 652 (Fla.3d DCA), appeal dismissed, 225 So.2d 913 (Fla.1969); Harrell v. State, 194 So.2d 306 (Fla.3d DCA 1967); State v. Trafficante, 136 So.2d 264 (Fla.2d DCA 1961). See also, McCray v. State, 397 So.2d 1229, 1231 (Fla.3d DCA), review granted (Fla.1981) (“where the verdicts ... may be explained on any rational basis, inconsistency furnishes no ground for reversal”).

For the reasons stated the judgment and sentences are affirmed.

Affirmed.

      . Jenkins is not a party to this appeal.

      . Section 775.021(4), Florida Statutes (1981) provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
      According to supreme court interpretations of this provision, see State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981), multiple sentences but not multiple convictions for lesser included offenses are prohibited. Thus, Marshall could have been convicted on the possession charge as well as the armed robbery and sexual battery charges, but not given an additional sentence therefor.

      . Of course, the reason for the “inconsistent” verdicts in this case is, undoubtedly, the jury’s use of its pardon power. Based on the evidence and 'the jury’s other findings, the jury concluded that there was an armed robbery and sexual battery with the use of a firearm, and that Marshall and co-defendant Jenkins (who actually possessed the firearm throughout the incident and was found guilty on all four counts) were the perpetrators. The jury questioned the court concerning the possession charge, and apparently decided not to convict Marshall on this count due to confusion regarding possession and display of a firearm since Marshall was not the triggerman, and therefore only “vicariously” possessed the firearm. As our previous discussion notes, this is no impediment to conviction for the armed robbery and sexual battery with the use of a firearm.


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

text:
    Frank J. SOCKOLOF and Sally Sockolof, Appellants, v. EDEN POINT NORTH CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 81-2311.

    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.

      Becker, Poliakoff & Streitfeld and Robert J. Manne, Fort Lauderdale, for appellants.
    Leff, Pesetsky & Zack and Elliott Zack and Steven R. Dobrofsky, North Miami Beach, for appellee.
    Before NESBITT,. BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The only issues in this case which merit discussion are whether the appellants’ attorney was authorized to settle the case on behalf of his clients and, if so, whether the oral settlement agreement between counsel for the parties was entitled to be enforced by the trial court.

The Sockolofs, unit owners in the Eden Point North Condominium, were sued by the condominium association when they failed to pay an assessment for improvements to common grounds of the condominium. A non-jury trial of the action was scheduled to begin on August 10, 1981. On July 27,1981, the Sockolofs’ attorney moved for a continuance, alleging that his clients “have been called away out-of-town for urgent business matters during that trial week and it will prejudice Defendants' case to proceed with the trial without their presence.” The defendants served notice that their motion would be heard on August 10, 1981, the very day trial was to begin.

On August 10, 1981, the trial judge denied the requested continuance, but partially accommodated the request by specially setting the trial to begin on Friday of that week, August 14,1981, at 1:30 p.m. On the evening of August 13, 1981, counsel for the parties orally entered into an agreement settling the case and cancelling the next day’s trial. Two weeks later the plaintiff-association moved to enforce the settlement, Sockolofs’ counsel moved to withdraw, and Sockolofs’ present counsel moved to appear in the case on their behalf. In that sequence, the trial court granted the respective motions and thereafter denied Sockolofs’ substituted counsel’s ore tenus motion for rehearing. The Sockolofs appeal, and we affirm.

The appellants first contend that the trial court’s failure to allow counsel to be substituted denied them due process under circumstances where existing counsel, who had entered into the settlement agreement, was not in a position to advocate his clients’ claim that the agreement could not be enforced. While we agree that given this apparent conflict, the motions to withdraw and substitute should have been granted before the trial court embarked on the motion to enforce settlement, we do not agree that the Sockolofs were denied due process. The record reflects that the sole contention which the Sockolofs’ new counsel made in his ore tenus motion for rehearing was that the agreement could not be enforced because not in writing. Since we here decide against that contention, the failure of the trial court to allow Sockolofs’ new counsel to advance it at an earlier stage is, of course, harmless.

At common law, no particular form of settlement agreement was essential to its validity; a writing was unnecessary, unless required by statute, National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931). The appellants concede that Florida Rule of Judicial Administration 2.060(g), which requires that procedural stipulations during the course of litigation be written or recorded, expressly does not apply to “settlements or other substantive agreements.” They correctly argue that therefore case law controls, but incorrectly rely upon eases decided under former Florida Rule of Civil Procedure 1.030(d), which during its existence was construed to require that substantive settlements be in writing. See, e.g., Davies v. Canco Enterprises, 350 So.2d 23 (Fla. 3d DCA 1977); Alaimo v. Tirone, 297 So.2d 584 (Fla. 3d DCA 1974). Rule 1.030(d) was repealed effective July 1, 1979, and the settlement agreement here was entered into August 13, 1981. Thus, the common law rule set forth in National Surety Co. v. Willys-Overland, Inc. applies, and the settlement agreement, although not in writing, was enforceable.

The appellants’ challenge to the authority of their attorney to enter into the settlement agreement, while not contained in their ore tenus motion for rehearing, was sufficiently preserved for review when their original trial counsel, explaining how the settlement came about, noted that his clients subsequently questioned his authority to make the settlement.

The record is undisputed that the attorney for the Sockolofs entered into the settlement agreement under the following circumstances:

“MR. WOHL: Your Honor, let me backtrack a second to give you a chronology of events.
“I filed my motion to continue the trial. I came here on calendar call and made a statement to your Honor that my clients were out of town, that it was very difficult for me to get in touch with them, and your Honor denied my motion.
“I then spent a number of hours trying to locate Mr. Sockolof who was, unbeknownst to me, in Canada on matters concerning his health. I told him the set of circumstances. I told him that I was not getting any cooperation from the other defendants in the case. That is Mr. and Mrs. Sachs, who I will get to in a second, and Mrs. Grossberg and Andrews. “And he said to me, ‘Do the best that you can under the circumstances.’
“Since I did not effectively have a client to attend the trial, I presumed, under those circumstances, since the other side was ready to go, that, in fact, I was going to lose the case. And I, since this matter is something that should be, under Florida statute on attorney’s fees, taxed, and court costs, I agreed to try to mitigate the damages in question.
“Whether I had specific authority to enter into this monetary agreement or not, I entered into this agreement.
“Mr. Sockolof finally came back. He was unable to come back because he was, I believe, in a clinic in Canada for the trial.
“Under the circumstances, your Honor, after speaking to Mr. Sockolof and reviewing with him the stipulation, he stated to me that I did not have authority to agree to not only the enforcement portion but also the monetary portion of the stipulation. And I said, under those circumstances, that I had a conflict of interest and I had to withdraw as counsel and I asked them to seek counsel and gave him the entirety of my file to seek other counsel who has a pending motion here for substitution.”

The appellants filed no pleading or affidavit below and made no proffer of evidence challenging the accuracy of their attorney’s account of the events. Indeed, on appeal they make no such challenge and instead assert that their attorney misconstrued the meaning of “Do the best you can under the circumstances.” There is, then, no dispute as to what occurred between the attorney and the client which required resolution. Compare American Life Insurance Co. v. Laucirica, 217 So.2d 869 (Fla. 3d DCA 1969) (where attorney’s authority to settle is a question of conflicting and disputed fact, court- not authorized to summarily enter judgment on purported settlement agreement); Massachusetts Casualty Insurance Co. v. Forman, 469 F.2d 259 (5th Cir.1972); Pearson v. Ecological Science Corp., 522 F.2d 171 (5th Cir.1975); Calhoun v. Cook, 487 F.2d 680 (5th Cir.1973) (evidentia-ry hearing required where material facts concerning authority to settle or existence of agreement in dispute).

It is well established that the mere employment of an attorney to represent a client with respect to litigation or other matters does not of itself give the attorney the implied or apparent authority to compromise or settle his client’s cause of action. Cross-Aero Corp. v. Cross-Aero Service Corp., 326 So.2d 249, 250 (Fla. 3d DCA 1976); Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. 2d DCA 1963). We think, however, that the present case falls within an exception to this general rule. This exception, recognized, although not applied, in Bursten v. Green, 172 So.2d 472 (Fla. 2d DCA 1965), is set forth in Brumberg v. Chunghai Chan, 25 Misc.2d 312, 204 N.Y.S.2d 315 (1959), cited with approval in Bursten v. Green, supra. “[WJhere the circumstances are such that the attorney is obliged to act without delay, and there is not time or opportunity for consultation with the client, the attorney has power to compromise his client’s claim.” 204 N.Y.S.2d at 319. In the Brumberg case, Chan, the client, was served with process in a landlord-tenant action and notified his attorney, Brumberg. Chan then went to Hong Kong on personal business. The case was scheduled for trial after two adjournments. Chan had still not returned to the United States, and his attorney was unable to contact him. The attorney, believing that a trial would result in a final dispossess order being entered against his client, entered into a settlement under which the landlord would waive certain rental payments and Chan would drop his counterclaim against the landlord. The court found that under these circumstances, the attorney was empowered to compromise his client’s claim.

The appellants’ attorney faced a situation not unlike that faced by Mr. Brumberg. Trial was to be the following day, and the Sockolofs were, in his judgment, faced with certain loss, including attorneys’ fees and costs. The settlement reached excluded such fees and costs. While it is true that the Sockolofs’ attorney had the opportunity to, and in fact did, consult with his client, that consultation resulted in the words “Do the best you can under the circumstances.” But these are the very words which are implicit where an emergency exists and no consultation occurs.

We think, then, that the attorney’s power to compromise in the emergency situation turns on the attorney’s obligation to act without delay and that it exists with equal force where there has been no consultation' with the client or where, as here, the result of that consultation is to leave the attorney in exactly the same position as he would have been had no consultation occurred. Thus, when an attorney must act without delay to protect his client’s interests, but is able in this emergency to consult with his client about the compromise or settlement of the matter, the client will not be heard to say that the attorney was without power to compromise or settle the matter which he entrusted to the attorney unless the client has then or before said or done something which affirmatively casts doubt on the attorney’s power to settle. Since that is not the case here, we affirm the judgment of the trial court.

Affirmed.

BASKIN, Judge

(dissenting).

I disagree with the majority opinion which recognizes that apparent conflict on the part of counsel for appellants required the trial court to permit withdrawal and substitution of counsel but concludes that the trial court’s refusal to substitute counsel was harmless error.

Although counsel sought to withdraw and have new counsel substituted prior to the hearing on the motion to enforce the settlement agreement, the court decided not to rule on the withdrawal until after it had ruled on appellee’s motion to enforce the settlement agreement. The effect of the court’s decision was to deprive appellant of the services of counsel. The majority’s suggestion that counsel could not offer legally sufficient grounds for denying enforcement of the stipulation is only speculation and ignores the fact that the court refused to hear further argument:

THE COURT: All right. And at this stage I am going to deny his motion to withdraw until I rule on this thing. And I am going to grant his motion to enforce the settlement which was entered into. After that is done, of course, I will grant him leave to withdraw and you can be substituted.
So I am going to grant your motion to enforce your settlement. And I would enter judgment accordingly.
Having done that, I would grant you leave to withdraw.
MR. MANNE: Your Honor—
THE COURT: You can’t say anything yet. It is frustrating, but you can’t.

Following the court’s ruling:

THE COURT: All right. Now, I want to dispose of this other. You have a motion to withdraw, this matter having been completed?
MR. WOHL: Yes, I do.
THE COURT: Then I grant your motion to withdraw.
And you have a motion to substitute as counsel.
MR. MANNE: That is correct, your Honor.
THE COURT: Then I grant your motion.
There is nothing further to be said on this issue today.
MR. MANNE: Well, I was going to request, in light of the fact that we have Mr. Wohl here, and I would make an ore tenis [sic] motion for rehearing on enforcing the stipulation and allow me to be heard on this stipulation issue.
THE COURT: No. You have a right, ore tenis [sic], to make your motion for rehearing. That is quite proper.
Without argument, I will deny your motion for rehearing.
MR. MANNE: Is there any procedure I can use to present my argument regarding the enforcement of this stipulation?
THE COURT: Absolutely not. Not before this Court. You can take it to the Third District, but that is the only relief you are going to get.
MR. MANNE: With the ore tenis [sic] motion for rehearing, I would assume I am entitled to present some kind of argument.
THE COURT: Well, there is nothing to be reheard. I had the matter argued.
MR. MANNE: Well, I don’t know that you would have had all of the law presented to you.
THE COURT: Well, I don’t grant rehearings. Not just in this case, but in any case. I don’t give rehearings. It is just something that I have ruled.

It is clear from the record that new counsel was present and, upon substitution, could have presented appellant’s position. No delay was required.

[I]n a civil case any attorney of record has the right to terminate the attorney-client relationship and to withdraw as an attorney of record upon due notice to his client and approval by the court. Approval by the court should be rarely withheld and then only upon a determination that to grant said request would interfere with the efficient and proper functioning of the court, (emphasis supplied).

Fisher v. State, 248 So.2d 479, 486 (Fla.1971). In the case before us, substitute counsel was ready and willing to argue. Withdrawal and substitution of counsel pri- or to the hearing on the motion to enforce the settlement would not have interfered with the efficient and proper functioning of the court. The trial court’s action in delaying the hearing on the motion to withdraw until after the hearing on the motion to enforce the settlement constituted a clear abuse of discretion. The procedure followed by the court deprived appellant of legal representation, Oliver v. Michigan State Board of Education, 508 F.2d 178, 187 (6th Cir.1974) (Weick, J., dissenting), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975); Roberts v. Anderson, 66 F.2d 874 (10th Cir.1933), and constituted a denial of due process of law. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Counsel for appellant informed the court that because his client had challenged his authority to settle, he had a conflict of interest. Whether counsel was actually authorized to settle presented a question of fact which should have been decided by the trial court.

The trial court’s annoyance was a natural consequence of the announcement, first, that the case had been settled and removed from the court’s trial docket, followed by a later statement that trial was required; nevertheless, this court must exercise caution to insure that litigants are not deprived of their day in court and counsel of their choice.

For these reasons, I would reverse the final judgment enforcing the stipulation and remand for an evidentiary hearing to determine the validity of the stipulation after substitution of counsel has been effected.

      . The appellants’ claims that the trial court erred in denying them a continuance of the trial and that the settlement agreement was too indefinite to be enforced are without any merit whatsoever. The denial of continuance was clearly within the trial court’s discretion, and the only part of the settlement which the trial court enforced was clear and definite.

      . The appellee-association advances one further basis for affirming the attorney’s authority. Relying on Rushing v. Garrett, 375 So.2d 903, 906 (Fla. 1st DCA 1979), it says that “apparent authority may arise when the actions of the principal, reasonably interpreted, cause a third person to believe in good faith that the principal consents to the acts of the agent.” The record here, however, contains no evidence that appellee’s counsel relied on any action of the principals, the Sockolofs.


author: PER CURIAM.

text:
    AMERTEC-GRANADA, INC., Appellant, v. OLD REPUBLIC INSURANCE COMPANY, Appellee.
    No. 81-2389.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Underwood, Gillis, Kareher, Reinert & Valle and Stephen E. Tunstall, Miami, for appellant.
    Pyszka & Kessler, Greene & Cooper and Joan M. Bolotin, Miami, for appellee.
    Before HENDRY and NESBITT, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

The final summary judgment under review is affirmed on the ground that no coverage is afforded under Old Republic’s liability policy for Amertec’s personal contractual expenses. The contractual liability endorsement provides coverage for the purpose of indemnifying a third party for damages in tort, not for business expenses directly incurred by the insured as a result of its contractual obligations. Continental Insurance Co. v. Bussell, 498 P.2d 706 (Alaska 1972). See also Aetna Casualty and Surety Co. v. Hanna, 224 F.2d 499 (5th Cir.1955); International Surplus Lines Insurance Co. v. Devonshire Coverage Corp., 93 Cal.App.3d 601, 155 Cal.Rptr. 870 (Ct.App.1979); Garden Sanctuary, Inc. v. Insurance Company of North America, 292 So.2d 75 (Fla.2d DCA 1974); Haugan v. Home Indemnity Co., 86 S.D. 406, 197 N.W.2d 18 (1972).

Affirmed.


text:
    SHREVE LAND COMPANY, INC., a foreign corporation, Appellant, v. J & D FINANCIAL CORPORATION, a Florida corporation, Appellee.
    No. 81-2499.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.

      Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Mark A. Marder, Elizabeth Bowen, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Shreve Land Company, defendant below, appeals from a final judgment entered against it following a non-jury trial in J & D’s action for payment for goods delivered to Shreve.

In January, 1979, Shreve contracted with Pac-Dor, Incorporated, for the purchase of 103 doors for a construction project in Louisiana. The contract called for a single shipment and provided that Shreve would pay $11,483 for the doors after receiving payment from the owner of the project. On April 8, 1980, Pac-Dor assigned its interest in the purchase price due from Shreve to J & D which made an initial payment of $3,500, and agreed to pay an additional $6,145.72 on collection of the full $11,483. Pac-Dor’s president warranted that the net balance of $11,483 was then due and owing although the doors had not yet been shipped. Subsequently Pac-Dor shipped 55 doors to Shreve and issued an invoice for $6,320. Pac-Dor and J & D then entered into a second agreement on April 28, 1980 by which Pac-Dor assigned its interest in the $6,320 receivable for the 55 doors to J & D for an additional $924 (or a total of $4,424). Despite the fact that it had not yet completed its agreed performance under the January contract, Pac-Dor warranted that the $6,320 receivable was not subject to any setoff or defense by Shreve. Pac-Dor notified Shreve of the assignment on May 19, 1980.

At trial, Jack Carmel, President of J & D, testified that he was told by Gary Hinton, Shreve’s project manager, prior to the shipment of 55 doors, that Shreve would accept and pay for the partial shipment so long as the remainder of the doors were promptly delivered. Hinton testified that he advised Carmel that if the rest of the doors were not received, Shreve would have to buy them elsewhere and deduct the amount of such purchase from the contract price. The remaining doors were not delivered and Shreve notified J & D and Pac-Dor of its intent to set off the indebtedness.

J & D instituted suit against Shreve to recover the $6,320, together with interest, costs and attorney’s fees. Shreve answered and counterclaimed for damages resulting from Pac-Dor’s failure to fully perform the contract. The counterclaim was voluntarily dismissed, but the breach of contract setoff, in excess of J & D’s claim, was asserted as the sole defense. After hearing testimony and evidence, the trial court issued a memorandum decision, finding that Shreve had accepted partial delivery of the 55 doors and was liable for payment. Judgment was entered for J & D in the amount of $6,320 plus pre-judgment interest and attorney’s fees. Shreve then filed this appeal, alleging error in the trial court’s failure to allow it a setoff for Pac-Dor’s breach, and error in the pre-judgment interest and attorney’s fees awards.

The law is well settled that an assignee succeeds to his assignor’s rights under the assignment of a contract and takes it with all the burdens to which it is subject in the hands of the assignor. If the assignee seeks to enforce the contract, he must show that all conditions have been performed either by himself or the assignor. Florida East Coast Ry. Co. v. Eno, 99 Fla. 887, 128 So. 622 (1930); Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22 (Fla.2d DCA 1979); Morton v. Morton, 307 So.2d 835 (Fla.3d DCA), cert. denied, 324 So.2d 90 (Fla.1975); Prestress Erectors, Inc. v. James Talcott, Inc., 213 So.2d 296 (Fla.3d DCA), cert. denied, 219 So.2d 702 (Fla.1968). This rule extends to counterclaims and setoffs against the assignor which the debtor can establish to reduce the sum recoverable against him. Nusbaum v. Riskin, 136 So.2d 1 (Fla.2d DCA 1961).

Applying this principle to the present case, we find that Shreve properly asserted a setoff against the debt owed to J & D for the loss it suffered as a result of Pac-Dor’s failure to deliver the full 103 doors as agreed. J & D argues, however, that Shreve agreed to and accepted delivery of the partial shipment and was therefore liable to pay for it. Shreve concedes that it waived the one shipment requirement of the contract with Pac-Dor, but argues that the setoff defense was dependent on whether or not it waived the requirement of full delivery of the 103 doors, which it most emphatically did not. We agree.

Ordinarily, acceptance of the 55 doors would make Shreve liable for payment under section 672.607(1), Florida Statutes (1979). However, since Shreve notified both Pac-Dor and J & D of the nonconformity within a reasonable time as required by section 672.607(3)(a), Florida Statutes (1979), it was entitled to deduct all or any part of the damages from the price of the 55 doors under section 672.717, Florida Statutes (1979). Adam Metal Supply, Inc. v. Electrodex, Inc., 386 So.2d 1316 (Fla.2d DCA 1980).

In computing the measure of damages, we look to section 672.712, Florida Statutes (1979), which allows a buyer to “cover” a breach by purchasing, within a reasonable time and in good faith, substitute goods for those due from the seller. The measure of damages is the difference between the cost of cover and the contract price along with any incidental damages less expenses saved. Since there is no dispute that the breach required Shreve to pay $13,581 to another supplier to obtain the remainder of the doors, and Shreve received only $11,483 for the doors from the owner of the construction project, it was entitled to set off the entire $6,320 owed to J & D under the assignment. Accordingly, we reverse and remand the case with directions to enter judgment for Shreve. Our reversal makes it unnecessary to reach the other issues raised.

Reversed and remanded with directions.


author: GLICKSTEIN, Judge.

text:
    Tony SAAVEDRA, Appellant, v. STATE of Florida, Appellee.
    No. 80-1427
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Harvey D. Rogers, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged with and convicted of trafficking in over 2,000 but under 10,000 pounds of cannabis and for possession of methaqualone with intent to sell or deliver them. He raises three points on appeal, two of which require discussion.

First, appellant correctly maintains that he is entitled to reversal and remand for a new trial because of the trial court’s refusal to instruct the jury on penalties as required by Taseano v. State, 393 So.2d 540 (Fla.1980), and Murray v. State, 403 So.2d 417 (Fla.1981). Appellant’s counsel informed the trial judge that he was “obligated to tell the jury what the penalties are.” When the trial judge disagreed, counsel replied that it was his understanding the rules were mandatory. This exchange sufficiently preserved the issue for appellate review and comports with the decision of this court in Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981). Therein we held:

If a jury instruction is requested and the basis for the request verbalized to the court and made a part of the record, failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review.

Id. at 1237. See also Austin v. State, 406 So.2d 1128 (Fla. 4th DCA 1981). Thus, under Williams, which dealt with a trial court’s refusal to instruct the jury on the defense of alibi, placing a trial court on notice satisfies the “underlying purpose” of Florida Rule of Criminal Procedure 3.390(d).

Second, because the case must be tried again, appellant’s point directed to the trial judge’s instruction upon criminal conspiracy is equally relevant. Appellant is incorrect in his argument that he was entitled to the standard jury instruction on criminal conspiracy before the jury retired to begin its deliberations. Appellant was not charged with conspiracy; therefore, any relevance thereto would emanate from two sources:

[A.] [E]vidence would ... [be] admissible to prove a conspiracy to commit the offense [with which appellant was charged] on the theory that the principal crime charged may be in part, at least, established by proving formation and execution of [a] pre-existing conspiracy out of which the offense charged was accomplished.

Brown v. State, 130 Fla. 479, 484, 178 So. 153, 156 (1938).

[B.] Every act and declaration of each member of a conspiracy is the act and declaration of them all, and is therefore original evidence against each of them. Mercer v. State, 40 Fla. 216, 24 So. 154 (1898); Roberson v. State, 40 Fla. 509, 24 So. 474 (1898); Farnell v. State, 214 So.2d 753 (2nd DCA Fla.1968). However, before the “co-conspirator rule” may be invoked there must first be independent evidence of the existence of a conspiracy, and of the objecting party’s participation in it. In other words, proof of a conspiracy is necessary for the purpose of establishing the criminal liability of the conspirators for the unlawful acts of their co-conspirators in furtherance of the common cause.

Honchell v. State, 257 So.2d 889, 890 (Fla.1971) (footnote and citations omitted; emphasis original).

There are actually two instances wherein instructions on conspiracy should be considered if co-conspirators’ statements are to be introduced; namely, a preliminary, cautionary instruction and any final instruction. As for the former, should appellant, on retrial, question the sufficiency of the independent evidence of conspiracy, the jury should be instructed, if requested before the presentation of evidence, as to the definition of conspiracy and as to the necessity for independent evidence of the existence of a conspiracy and of appellant’s participation in it.

At the conclusion of all of the evidence the trial judge must then decide whether the independent evidence introduced by the prosecution

has demonstrated the defendant’s participation in a conspiracy by a preponderance of the evidence. If the prosecution has not prevailed on this point, the judge must decide whether a cautionary instruction will cleanse the record of prejudice or whether a mistrial is required.

United States v. Grassi, 616 F.2d 1295, 1300-01 (5th Cir.1980), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980). On the other hand, if the prosecution prevails on this point, it would appear that the only final instruction to which appellant would be entitled is that on “accomplices” as provided by Florida Standard Jury Instruction in Criminal Cases 2.04(b).

There appear to be at least three reasons for not further instructing the jury on conspiracy prior to their retirement. First, as stated in Boyd v. State, 389 So.2d 642, 647-48 (Fla. 2d DCA 1980):

The failure to give any instruction at all on the subject of conspiracy may not be prejudicial to a defendant, since it effectively eliminates one theory upon which a jury could find him guilty.

(Citation omitted.) Second, section 90.-105(1), Florida Statutes (1979), is patterned after Federal Rule of Evidence 104(a) and imposes the responsibility of determining preliminary questions as to the admissibility of evidence upon the trial judge. Therefore, the jury plays no role in the decision whether to admit a co-conspirator’s declaration. See United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). This is true at the time the cautionary, preliminary instruction is given as well as at the conclusion of the evidence. If the trial judge leaves it in, there is no need to instruct the jury other than with respect to an accomplice, as we have discussed. Third, appellant is not charged with conspiracy; and the facts of this case do not require the prosecution to prove all of the elements thereof beyond a reasonable doubt.

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.

      . Effective July 1, 1979, section 90.803(18)(e) was enacted, which provides that the following can be offered against a party as an admission:
      A statement by a person who was a cocon-spirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
      The alleged offense in this case took place on June 17, 1979; therefore, the statute does not apply, although it codified existing law.

      . Should appellant not question the sufficiency of the independent evidence, the instruction would be meaningless. Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980).

      . Our sister court, in Tresvant v. State, 396 So.2d 733, 740 n. 10 (Fla. 3d DCA), pet. for rev. denied, 408 So.2d 1096 (Fla.1981), noted that no “Florida court has announced a test for the quantum of independent proof of conspiracy;” then it traced the spectrum in the courts from “slight evidence” to “substantial.”

      . Instruction 2.04(b) provides:
      You should use great caution in relying on the testimony of a witness who claims to have helped the defendant commit a crime. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant.
      However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendant’s guilt, or the other evidence in the case does so, then you should find the defendant guilty.
      The term accomplice was defined in Newton v. State, 178 So.2d 341, 345 (Fla. 2d DCA 1965), as follows:
      The usual test by which to determine whether or not one is an accomplice of an accused on trial is whether or not he could be prosecuted and punished for the crime with which accused is charged.
      In United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978), the court said:
      After a ruling on the record that the out-of-court declaration is admissible under Rule 801(d)(2)(E), the court may submit the case to the jury. The court should not charge the jury on the admissibility of the coconspirator’s statement, but should, of course, instruct that the government is required to prove the ultimate guilt of the defendant beyond a reasonable doubt. An appropriate instruction on credibility should be given, and the jury should be cautioned with regard to the weight and credibility to be accorded a coconspirator’s statement.
      Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if made by “a coconspirator of a party during the course and in furtherance of the conspiracy.”

      . The present case is factually dissimilar from Boyd, upon which appellant relies. In that case, appellant was charged with importation and possession of cannabis, on the theory that those involved in the off-loading of the cannabis in Glades County (while appellant was out of the country) were his co-conspirators in a scheme to import the cannabis from South America. Quite candidly, the decision is somewhat confusing in that our sister court first said that if a final instruction were given on conspiracy, it would have to contain, at a minimum, the definition thereof, an explanation of the legal consequences of proving it and an admonition that the jury is to determine if it has been proven beyond a reasonable doubt. It then said, however, the state is not required to prove all of the elements of conspiracy if appellant is not charged therewith. It later said the jury must find that a conspiracy was established.
      In the present case the culpability is not vicarious. Appellant was identified by a witness as the individual deplaning from the suspect aircraft at the time of the offense; and his fingerprints were found inside.


text:
    VANTAGE VIEW, INC., Appellant, v. BALI EAST DEVELOPMENT CORPORATION, etc., et al., Appellees.
    No. 81-289.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Kay Latona of Becker, Poliakoff & Streit-feld, P.A., Fort Lauderdale, for appellant.
    Julio C. Alonso of Meyer, Weiss, Ross, Arkin, Shampanier, Ziegler & Barash, P.A., Miami Beach, for appellee, Bankers Trust Co.
   GLICKSTEIN, Judge.

Appellant, a condominium association, brought an action against appellee, Bankers Trust Company, and others for breach of implied warranty, negligence, and strict liability arising out of a number of construction defects and deficiencies. The trial court dismissed with prejudice in the same order' appellant’s amended complaint and second amended complaint against Bankers, ostensibly basing its dismissal on appellant’s failure to allege facts- which would justify holding Bankers liable for the acts of its subsidiary, Real-Prop Investors Atlantic, Inc. Appellant does not appeal that part of the order which dismisses the count concerning strict liability, but argues the counts based on implied warranty and negligence state a cause of action. We agree; therefore .we reverse and remand.

Appellant’s complaint alleged alternative theories of recovery against Bankers: that Bankers and Real-Prop were jointly and severally liable as developers ; or, in the alternative, that Bankers was liable for the acts of its subsidiary as the developer of the condominium. The trial court, appellant correctly contends, considered only the latter theory of recovery. In Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971), this court stated:

“If a complaint states a cause of action upon any ground, a motion to dismiss the complaint for failure to state a cause of action should be denied. * * ”

Id. at 633 (emphasis original), citing Regan v. Davis, 97 So.2d 324 (Fla. 2d DCA 1957), as quoted in Lytell v. McGahey Chrysler-Plymouth, Inc., 180 So.2d 354, 355 (Fla. 3d DCA 1965).

As to the count alleging breach of implied warranty, appellant claimed:

5.2 The Developers (BALI EAST, BANKERS TRUST and REALPROP), impliedly warranted to the Condominium’s unit owners that each Condominium parcel was reasonably fit for its intended purpose and merchantable, and that the Condominium building and improvements were constructed in accordance with the plans and specifications filed as a matter of public record.
5.3 The Developers breached the aforesaid implied warranty by failing, in constructing the Condominium building and improvements, to comply with the requirements of the South Florida Building Code, failing to construct in accordance with proper and approved construction plans and specifications, and failing to employ good design, engineering and construction practices, as a direct and proximate result of which the Developers constructed the Condominium building and improvements and sold parcels thereof to the unit owners with the defects and deficiencies set forth in Exhibit “A”.

These allegations state a cause of action. See Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA), aff’d, 264 So.2d 418 (Fla.1972); B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1977); David v. B & J Holding Corp., 349 So.2d 676 (Fla. 3d DCA 1977).

Concerning its count for negligence, appellant’s second amended complaint alleged the following:

6.2 At all times material hereto, the Developers (BALI EAST, BANKERS TRUST and REALPROP), by themselves and through their agents, servants and employees, designed, constructed, supervised, inspected and approved for occupancy the Condominium building and improvements, and were under a duty to the members of the Association to use reasonable care in so doing.
6.3 At all times material hereto, the Developers, by themselves and through their agents, servants and employees, undertook to construct the Condominium building and improvements, and were under a duty to members of the Association to do so in accordance with the South Florida Building Code, proper and approved plans and specifications, and proper design, engineering and construction practices.
6.4The Developers were careless and negligent in designing, constructing, supervising, inspecting and approving for occupancy the Condominium building and improvements because of their failure to comply with the requirements of the South Florida Building Code, failure to construct in accordance with proper and approved construction plans and specifications, and failure to employ good design, engineering and construction practices, as a direct and proximate result of which the Developers constructed the Condominium building and improvements and sold parcels thereof to the unit owners with the defects and deficiencies set forth in Exhibit “A”.

These, too, recite elements of a legally cognizable action against a developer. See Wittington Condominium Apartments, Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla.1976). Accordingly, the trial court, in failing to examine all theories advanced by appellant, committed error.

The final issue in this case is whether appellant alleged sufficient facts to avoid dismissal of an action seeking to pierce the corporate veil of Real-Prop, Banker’s subsidiary. We hold that it did. In reaching our conclusion, we hearken back to the analysis and collection of authorities by the late Circuit Judge W. Troy Hall, Jr., in Waterman Memorial Hospital Association v. Rigdon, 32 Fla.Supp. 154 (Cir.Ct. Lake County 1969), which the writer of this opinion has long admired. He said in considering a motion to dismiss:

Much of the time of this and other courts is consumed in hearing such procedural matters. This in large part results from the fact that professional customs and practices have a tendency to linger long after they are supposed to have been changed by duly promulgated rules, statutes or decisions.... It may well be that early common law pleading rules had certain advantages over the rules of modern pleading. The fact remains, however, that the rules have changed, F.R.C.P. 1.110(b) requires “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” The Black’s Law Dictionary definition of “ultimate facts” includes the following—
“The logical conclusions deduced from certain primary evidentiary facts ... Those facts found in that vaguely defined field lying between evidential facts on the one side and the primary issue or conclusion of law on the other ... The final resulting effect reached by processes of legal reasoning from the evidentiary facts.”
Id. at 155.
The nature of this “vaguely defined field” is such that confusion may be, to a certain degree, inevitable. Perhaps the most helpful method of ascertaining the type of pleading required under present rules is to examine the forms which are appended to them. Sometimes a page of the concrete is worth more than a volume of abstract semantics. No set of forms could cover every situation but the forms were apparently intended to illustrate what, is required. Each is obviously a “short and plain statement” and contains only a few sentences. Although there are no doubt a few exceptions, we assume that generally speaking the forms show the general type of pleading required and that other types would be the exceptional cases — not vice versa.

Id. at 156 (footnote omitted) (emphasis supplied).

The ultimate facts alleged in paragraph 3.2(a) are that Bankers established Real-Prop as a mere instrumentality and a sham to mislead creditors. We start with the following text recited by Judge Hall for determining the sufficiency of a complaint:

In Conley v. Gibson, supra, the U.S. Supreme Court also laid down the test which has become the standard criterion in federal courts for determining the sufficiency of a complaint, and that is that a complaint “should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” This same quotation was set out with approval and italicized in the Florida case of Martin v. Highway Equipment Supply Co., Inc., supra [172 So.2d 246 (Fla. 2d DCA 1965) ].
The U.S. Court of Appeals for this, the fifth circuit, has, in numerous cases in recent years, been reversing trial judges for dismissing complaints. Most of such cases, incidentally, originated in Florida. (See Barber, infra.) In Arthur H. Richland Co. v. Harper, 5th Cir., 302 Fed.2d 324, the court declared, through Judge Brown—
“This is another case proving that final disposition of a civil action on the basis of bare bones pleading is a tortuous thing. How a standard so simply expressed, so often repeated, is apparently so often overlooked without even so much as a mention is hard to understand.”

Id. at 159.

We said earlier that the ultimate facts alleged by appellant are: (1) the parent established the subsidiary as a mere instrumentality and a sham; and (2) the parent did so to mislead creditors and to avoid liability. As for the first allegation, we are not enamoured with the word “instrumentality” but there is authority for its use. We interpret such word to be the equivalent of “alter ego” or “agent”; and we hold that in order to state a cause of action against a parent corporation for the acts of its subsidiary, it is sufficient to allege the latter to be the alter ego or agent of the parent.

An early decision which serves as a primary basis for our holding is Berkey v. Third Ave. Ry., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926), wherein the late Justice Cardozo said:

The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor.... We say at times that the corporate entity will be ignored when the parent corporation operates a business through a subsidiary which is characterized as an “alias” or a “dummy.” All this is well enough if the picturesqueness of the epithets does not lead us to forget that the essential term to be defined is the act of operation. Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent Where control is less than this, we are remitted to the tests of honesty and justice.

(Emphasis supplied.)

We also agree with the principle recited in Baker v. Raymond International, Inc., 656 F.2d 173, 181 (5th Cir.1981), that the parent corporation, to be liable for its subsidiary’s acts under the alter ego or agency theory, must exercise control to the extent the subsidiary “manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.”

This principle of parent liability is not alien to Florida law. Beginning with Mayer v. Eastwood-Smith & Co., 122 Fla. 34, 43, 164 So. 684, 687 (1935), the Supreme Court of Florida wrote:

The overwhelming weight of authority is to the effect that courts will look through the screen of corporate entity to the individuals who compose it in cases in which the corporation was a mere device or sham to accomplish some ulterior purpose, or is a mere instrumentality or agent of another corporation or individual owning all or most of its stock, or where the purpose is to evade some statute or to accomplish some fraud or illegal purpose.

(Emphasis supplied.) Next, in Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941), the Supreme Court of Florida reversed the trial court’s dismissal of a complaint against two parent corporations in a negligence case. The complaint alleged the bus involved in the suit was operated by company A, which was the wholly owned subsidiary of companies B and C. Plaintiffs alleged the subsidiary corporation used the authorizing certificates of the two parent corporations in the operation of the bus and was

so organized, operated, owned and controlled as to be the mere instrumentality, adjunct and simulacrum [of companies B and C]; ... [as well as] the mere alter ego of [these companies].

Id. at 237, 1 So.2d at 254. The court, quoting liberally from an Alabama decision, noted:

[I]t is well settled that the legal fiction of distinct corporate existence may be disregarded in a ease where a corporation is so organized and controlled, and its affairs are so conducted as to make it merely an instrumentality or adjunct of another corporation.

Id. In conclusion, the Supreme Court of Florida announced:

It is apparent then that the theory of a subordinate or servient corporation being controlled by and being liable to a superi- or or dominant corporation for its acts, so that the latter could be held liable in an action at law for the negligence of the former, is in force in this State.

Id. at 237-38, 1 So.2d at 254-55.

Thereafter, in Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849, 852 (Fla.1971), the supreme court, citing Mayer v. Eastwood-Smith & Co., wrote:

So it is that courts will look through the screen of corporate entity to the individuals who compose it in cases in which the corporation is a mere device or sham to accomplish some ulterior purpose, or is a mere instrumentality or agent of another corporation or individual owning all or most of its stock, or where the purpose is to evade some statute or to accomplish some fraud or illegal purpose.

(Emphasis supplied.) We reiterated this holding in Tiernan v. Sheldon, 191 So.2d 87, 89 (Fla. 4th DCA 1966), cert. dismissed, 200 So.2d 183 (Fla.1967). More recently the supreme court held that proof of fraud was unnecessary in order for an individual stockholder to be held liable for a contractual obligation made in the name of his corporation. Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973). In Levenstein the supreme court reversed the Third District Court of Appeal’s holding that when an individual deals through the instrumentality of his solely owned corporation, his protection from liability is absolute absent fraud. In so holding, the court stated,

There may be cases such as this one where the nature of the relationship between the individual and his alter ego, his corporation and their activity is so completely personalized that the ingredient of actual fraud is unnecessary in order for the individual to be held liable for a contractual obligation made in the name of his corporation.

Id. at 860. Most recently, we followed this reasoning in Fenick v. Robertson, 406 So.2d 1263 (Fla. 4th DCA 1981).

Although Levenstein involved a one-man corporation, there is nothing in the opinion to prevent an extension of the rule to a different context, such as between two corporations. Such extension apparently did occur in McLain v. Daps Discount Auto Parts Store, Inc., 354 So.2d 1230 (Fla. 1st DCA 1978). The plaintiff in McLain sought to hold Daps, a Florida corporation, liable for a foreign judgment rendered against Discount Auto Parts, Inc., an Alabama corporation, on the theory that Daps was the alter ego of Discount. The court, in holding .the trial court erred in instructing the jury that it could award only nominal damages if it found for plaintiff, wrote:

If a corporation is found to be the “alter ego” of another corporation, the separate corporate identities are disregarded and the two corporations are considered as one entity.

Id. at 1232.

A problem arises because a substantial line of authority exists in Florida that holds:

The rule is that the corporate veil will not be pierced, either at law or in equity, unless it be shown that the corporation was organized or used to mislead creditors or to perpetrate a fraud upon them.

Riley v. Fatt, 47 So.2d 769, 778 (Fla.1950). Other cases add the prevention of injustice to the foregoing misdeeds which permit piercing the corporate veil. As our sister court said in Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448, 454 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976):

“In order to establish that a subsidiary is the mere instrumentality of its parent, three elements must be proved: control by the parent to such a degree that the subsidiary has become its mere instrumentality; fraud or wrong by the parent through its subsidiary, e.g., torts, violation of a statute or stripping the subsidiary of its assets; and unjust loss or injury to the claimant, such as insolvency of the subsidiary.”

If all of the three foregoing elements must be proved, then they must be alleged. It is plain that in the present case, the third element was not alleged; namely, “unjust” loss to the claimant.

While we are unable to reconcile the two lines of authority which we have discussed, we choose to follow the decision of the supreme court in Barnes, Mayer, Aztec and Levenstein which have held it sufficient to allege domination and control without the necessity of alleging improper purpose or unjust loss. Similarly, we reaffirm the decision of this court in Tieman wherein we said:

Florida decisions uniformly hold that courts will look through the screen of corporate entity to the individuals who compose it in cases in which the corporation was a mere device or sham to accomplish some ulterior purpose, or is a mere instrumentality or agent of another corporation or individual owning all or most of its stock, or where the purpose is to evade some statute or to accomplish some fraud or illegal purpose, or where the corporation was employed by the stockholders for fraudulent or misleading purposes, was organized or used to mislead creditors or to perpetuate a fraud upon them, or to evade existing personal liability.

Id. at 87 (emphasis supplied). This result comports with the purpose of the corporate law, which is to insulate an investor (in this case the parent corporation) from personal liability for the torts of a separate corporate entity which is not the alter ego or agent of the investor. At the same time it gives efficacy to the tort principle that a tort-feasor should be held accountable for the injuries it causes. In light of the foregoing precedents and policy reasons, we reverse and remand for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY and DELL, JJ., concur.

      . The term “developer” as used in appellant’s pleadings is substantially the same as the definition given in section 718.103(13), Florida Statutes (1977). Paragraph 3.3 of appellant’s second amended complaint alleged:
      BANKERS TRUST and REALPROP (“Developers”) were jointly and severally the Developers of the real property and all improvements thereon now known as Vantage View, A Condominium, located in Broward County, Florida, by virtue of having created and/or sold units in the ordinary course of their business, or in the alternative, BANKERS TRUST is liable for the acts of its subsidiary, REALPROP, as Developer of the Condominium.
      Section 718.103(13), Florida Statutes (1977), defines developer as:
      a person who creates a condominium or offers condominium parcels for sale or lease in the ordinary course of business, but does not include an owner or lessee of a unit who has acquired his unit for his own occupancy.

      . See also the adoption of such definition of “ultimate facts” by this court in Feldman v. Department of Transportation, 389 So.2d 692 (Fla. 4th DCA 1980).

      . The foregoing allegations were actually part of the last sentence of the critical paragraph. The entire paragraph contained mostly “evi-dentiary facts”:
      3.2(a) Defendant, BANKERS TRUST COMPANY, hereinafter referred to as BANKERS TRUST, is a corporation organized and existing pursuant to the laws of the State of New York, and is registered to do business in the State of Florida. BANKERS TRUST wholly financed its subsidiary REALPROP INVESTORS ATLANTIC, INC., hereinafter referred to as REALPROP, with a Fifty Thousand ($50,000.00) Dollar cash contribution on June 8, 1977; subsequently BANKERS TRUST has advanced Three Hundred Ninety-Four Thousand ($394,000.00) Dollars to REALPROP from June 1977 through May 1978, under an ongoing agreement to keep approximately a Fifty Thousand ($50,000.00) Dollar balance in REALPROP’s bank account. BANKERS TRUST also paid the expenses incurred on the formation and incorporation of REAL-PROP, with no arrangements made for repayment. Although REALPROP’s net loss through June 30, 1980 was in excess of Three Hundred Forty Thousand ($340,000.00) Dollars, BANKERS TRUST continues to assure that REALPROP retains Fifty Thousand ($50,000.00) Dollars in its bank account, which may be withdrawn by the single signature of any of six persons, five of whom are Assistant Vice-Presidents in both BANKERS TRUST and REALPROP. When REAL-PROP’s bank balance exceeds Fifty Thousand ($50,000.00) Dollars, the excess is repaid to BANKERS TRUST. Every director of REAL-PROP from its inception was, during his/her tenure also a director of BANKERS TRUST. None of REALPROP’s directors were paid as such. Every officer of REALPROP from its inception was during his/her tenure also an officer of BANKERS TRUST. No salaries were ever paid to its officers by REALPROP. BANKERS TRUST supplies to REALPROP without charge the services of employees and management personnel and bookkeeping services with regard to the assumption of mortgage debt by REALPROP. BANKERS TRUST formed REALPROP with the intention of acquiring title to properties which might be acquired because of loans made or held by BANKERS TRUST, and to hold, lease, operate, improve, assign, transfer, exchange or in any way deal with such acquired property. BANKERS TRUST established REALPROP as a mere instrumentality and a sham to mislead creditors and to avoid tort or implied warranty liability, undercapi-talizing it, using BANKERS TRUST’S own directors and officers to control and direct REALPROP and its policies.
      It is hoped that the Bench and Bar will heed Judge Hall’s plea that “evidentiary facts” need not and should not be alleged whereas ultimate facts must be alleged. The problem arises solely because of a persistence on the part of the Bar to include more than “ultimate facts” and a propensity on the part of the Bench to require it. As he points out:
      Florida appellate courts have held repeatedly that federal cases interpreting Federal Rules of Civil Procedure are pertinent and persuasive in interpreting similar Florida rules. Delta Rent-A-Car, Inc. v. Rihl, Fla.App. 4th, 218 So.2d 467; Crump v. Goldhouse Restaurants, Inc. Fla., 96 So.2d 215, 65 ALR 2d 637; Savage, v. Rowell Distributing Corp., Fla., 95 So.2d 415; Hammac v. Windham, Fla.App. 1st, 119 So.2d 822; Brown v. Ripley, Fla.App. 1st, 119 So.2d 712; Booker v. Smith, Fla. App.2d, 108 So.2d 790; Davis v. Davis, Fla.App. 1st, 123 So.2d 377. This court is unable to determine any essential difference between the federal and Florida rules on the subject of the procedural sufficiency of complaints. The Florida rule, 1.110(b), is substantially the same as the federal rule, 8(a). Both require only "a short and plain statement.” The Florida rule says that a complaint shall “state a cause of action” and the federal rule uses the words “a claim upon which relief can be granted,” but the Florida Court of Appeal, 2nd District, in Martin v. Highway Equipment Supply Co., Inc., 172 So.2d 246, declared—
      “Rule 1.11(b), Rules of Civil Procedure, 30 F.S.A... provides that the defense of ‘(6) failure of the pleading to state a claim upon which relief can be granted,’ which language of the federal rule is nothing more or less than the definition of a ‘cause of action.’ Both rules mean the same”.
      See also Gold Seal Company v. Weeks, D. of C., 209 Fed. 2nd 802, holding the federal “claim” phrase means “cause of action.”
      The requirement for stating “ultimate facts” is not expressly set forth in the federal rules but it is there by implication. Cyc. of Fed. Proc., § 14.175.
      The leading federal decision on the procedural sufficiency of complaints is Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, a labor relations case where the U.S. Supreme Court declared through Mr. Justice Black—
      “The respondents also argue that the complaint failed to set forth specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that ‘all pleadings shall be so construed as to do substantial justice,’ we have no doubt that petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” (Italics added.)
      In an official order of the Florida Supreme Court dated January 21, 1950 the court approved the federal pleading forms which had been adopted by the U.S. Supreme Court a number of years earlier and the introduction to which stated that they were for “illustration only.” More recently the Florida Supreme Court has approved Florida pleading forms which are in a number of cases identical with, and in the other cases very similar to, the federal forms.

        Id. at 157-59.

      . Jefferson County Burial Soc’y v. Cotton, 222 Ala. 578, 582, 133 So. 256, 259 (1930).

      . See also Charter Air Center, Inc. v. Miller, 348 So.2d 614 (Fla.2d DCA), cert. denied, 354 So.2d 983 (Fla.1977); St. Petersburg Sheraton Corp. v. Stuart, 242 So.2d 185 (Fla.2d DCA 1970), Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla.3d DCA 1977), and Ryan v. Wren, 413 So.2d 1223 (Fla.2d DCA 1982). In St. Peters-burg the Second District Court of Appeal said the trial court erred in refusing to grant a directed verdict in favor of I.T. & T. because the evidence did not establish that a subsidiary was the “alter ego, adjunct, agency or instrumentality of I.T. & T.” 242 So.2d at 190. No mention was made of thé failure to prove any other element.

      . Accord Futch v. Southern Stores, Inc., 380 So.2d 444 (Fla. 1st DCA 1979); Delta Air Lines, Inc. v. Wilson, 210 So.2d 761 (Fla.3d DCA 1968); Sirmons v. Arnold Lumber Co., 167 So.2d 588 (Fla.2d DCA 1964).

      . Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963). This court said in Computer Center, Inc. v. Vedapco, Inc., 320 So.2d 404, 406 (Fla.4th DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976):
      Courts are reluctant to disregard the corporate entity unless it is necessary to prevent fraud, illegality, or injustice. However, the corporate veil will be pierced when it is shown that the corporation is a mere device or sham used to mislead creditors or for fraudulent purposes.

      . We consider it significant that in Unijax it was the parent corporation which was attempting to persuade the court that its subsidiaries were merely its instrumentalities in order that it could assert an action in its own name to recover on an insurance policy. Very different considerations are at stake when it is the parent corporation itself which is attempting to disavow the corporate fiction which it created. See Gulfstream Land & Development Corp. v. Wilkerson, 420 So.2d 587 (Fla.1982) (parent corporation cannot claim immunity of subsidiary under Worker’s Compensation Law).

      . As for the proof thereof, see National Bond Fin. Co. v. General Motors Corp., 341 F.2d 1022, 1023 (8th Cir.1965), which held:
      The question of whether a corporation is an instrumentality or an alter ego of another corporation presents primarily an issue of fact to determine upon the basis of the facts of each individual case.

        Accord, Fish v. East, 114 F.2d 177 (10th Cir.1940), which recognized a number of determinative circumstances which will induce a court to disregard the corporate form of a subsidiary. See also Markow v. Alcock, 356 F.2d 194 (5th Cir.1966); Bay Sound Transp. Co. v. United States, 350 F.Supp. 420 (S.D.Tex.1972), aff’d, 474 F.2d 1397 (5th Cir.1973); Reininger, The Corporate Veil in Florida — Armor or Lace?, 54 Fla.Bar J. 202 (1980); Annot., 16 Proof of Facts 2d 679 (1978); Annot., 7 A.L.R.3d 1343 (1966).