text:
    BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Appellant, v. Harry L. WILSON, Appellee.
    No. 80-463.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.

      Robert A. Ginsburg, County Atty., for appellant.
    Dennis M. O’Connor, Peters, Short, Max-ey & Morgan and Gene Short, Coral Gables, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Harry L. Wilson petitioned the Board of County Commissioners of Dade County to approve, as to form, an initiative petition to establish the county’s millage for the fiscal year 1980-81. Approval of form was necessary before an attempt could be made to gather the requisite number- of signatures of electors on the petition needed to activate the provisions of Section 7.01(4) of the Home Rule Charter which required the Board to either adopt the ordinance pursuant to subsection (a) thereof or submit it to the voters via a referendum pursuant to subsection (b). The Board disapproved the petition, as to form, on the ground that the proposed ordinance violated the Florida Constitution. Wilson then applied to the circuit court and obtained an alternative writ of mandamus. The Board contended before the circuit court that the proposed ordinance was unconstitutional. After considering the Board’s return and arguments, the trial court found that the alleged illegality of the proposal was not so clear on its face as to deny relief. Thereafter, it awarded Wilson a peremptory writ of mandamus to coerce the Board’s approval of the petition as to form. The Board appeals from that judgment.

This is the second occasion on which this court has been presented with the question of whether the voters of Dade County may establish, by ordinance, the millage for county operating purposes. Last year, this court, in Wilson v. Dade County, 369 So.2d 1002 (Fla.3d DCA 1979), held that absent a challenge upon constitutional grounds it would not interfere in the election process concerning a proposal which was valid on its face. In the present case, the Board argues that the writ of mandamus was improvidently issued because the initiative petition collides with the Florida Constitution.

Our inquiry is to determine the constitutional infirmity, if any, of the proposed ordinance. Article VII, Section 1(a) of the Florida Constitution provides: “[n]o tax shall be levied except in pursuance of law.” Section 7.01(6)(a) of the Home Rule Charter expressly authorizes electors to utilize an initiative petition and subsequent referendum to adopt an ordinance reducing or eliminating revenue. The Board contends that this section contravenes general state statutes which prescribe the manner and means for the adoption of the county budget. The Board correctly indicates that where the Constitution prescribes the manner and means of performing an act, the manner prescribed is exclusive and therefore performing the act in a substantially different manner is forbidden. Weinberger v. Board of Public Instruction of St. Johns County, 93 Fla. 470,112 So. 253 (1927). The flaw in the argument is that the Constitution does not provide the manner and means for the levy of ad valorem taxes. Under Article VII, Section 1(a), that function has been allocated primarily to the Legislature. The assertion that Section 7.01(6)(a) contravenes the general state statutes as to the manner and means of levying ad valorem taxes simply does not elevate the argument to one of constitutional dimension. It is, in reality, the identical argument which was presented to this court last year in Wilson v. Dade County, supra.

Secondly, the Board contends that the issue is controlled by State ex rel. Keefe v. City of St. Petersburg, 106 Fla. 742,144 So. 313, 671, 145 So. 175 (1933) which held that appropriation ordinances were not amenable to the initiative and referendum process under St. Petersburg’s city charter. We hold that the express provisions of Section 7.01(6)(a) of the Home Rule Charter are so clear and distinct that any reliance on the holding in State ex rel. Keefe v. City of St. Petersburg, supra, is misplaced. Our analysis of the alleged constitutional infirmity of the ordinance proposed pursuant to Section 7.01(6)(a) satisfies us that the argument is unsubstantial.

Again, as we did in Wilson v. Dade County, supra, we find the petition to be valid on its face and consequently we affirm the judgment appealed from on the reasoning and authorities cited therein.

The courts will not interfere with the political processes unless the processes are shown to be clearly without basis in the law. Lalor v. Dade County, 258 So.2d 843 (Fla.3d DCA 1972). If the ordinance is adopted, it will then be time for those parties aggrieved to challenge its validity, including its constitutionality, in a conventional adversary proceeding.

We express no opinion as to the wisdom of the proposed ordinance or its ultimate validity.

This decision is final forthwith and petitions for rehearing are dispensed with.. Cognizant of the persistence of the problem and the public concern for a resolution of the issue, the decision of this court is certified to the Florida Supreme Court as a decision that passes upon a question of great public importance.

Affirmed.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    George Gerald PRICE and Dorothy Vail Price Garchinsky, Appellants, v. Hilda PRICE, Individually and as Executrix of the Estate of George L. Price, Deceased, Appellees.
    No. NN-195.
    District Court of Appeal of Florida, First District.
    April 16, 1980.

      Michael M. Hamlin and Michael B. Swindle, Orlando, for appellants.
    Daniel C. Perri and W. H. F. Wiltshire of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees.
   LARRY G. SMITH, Judge.

Appellants, the adult children of deceased parents, appeal an order adjudging them in contempt of court for their failure to pay an award of attorney’s fees entered against them in a declaratory judgment action. The issue is whether the attorney’s fee award in this case falls within the category of debts for which “no person shall be imprisoned,” Article I, § 11, Florida Constitution, or within the category of awards of alimony, child support, and suit money in domestic relations cases, which the courts of Florida have long since declared to be excluded from the constitutional prohibition. We reverse the trial court’s contempt order because we find the money judgment here is subject to the constitutional provision, precluding the court’s use of its contempt power and a sentence of imprisonment for enforcement.

The litigation between appellants and ap-pellee grew out of the following circumstances: The 1962 divorce decree between the appellants’ parents contained provisions incorporating agreements by their father, George L. Price, to pay to their mother certain sums of money for the support and education of appellants. The divorce decree provided, among other things, for appellants’ father to provide security for his obligations to educate and support appellants by means of his Last Will and Testament, in event of his remarriage. Shortly after the divorce, the father married appellee, Hilda Price. Prior to the remarriage, the father satisfied the requirements of the decree by making the Will as agreed, and by entering into a prenuptial agreement with appellee, also required by the decree, in which she relinquished dower in his estate. Appellants’ mother then died in 1968, subsequent to which their father and appellee cancelled the prenuptial agreement, and their father made a new Will, containing no provision for appellants. After the father, George L. Price, died in 1972, appellants initiated this litigation against their stepmother, Hilda Price, individually and as executrix of the estate of George L. Price, deceased, for a determination of their rights, if any, under the divorce decree and the Will made by their father prior to his remarriage. The trial court found that all obligations of appellants’ father under the divorce decree had been satisfied prior to his death, since both appellants had reached their majority, appellant George Gerald Price had completed his education, and appellant Dorothy Vail Price Garchinsky had married. The trial judge entered an award of $18,000.00 attorney’s fees against appellants, as the losing parties, and upon their failure to pay the first installment, entered the order which is the subject of this appeal, finding appellants in contempt of court and ordering their imprisonment.

We begin our discussion of the issues by observing that since appellants failed to timely perfect an appeal from the judgment awarding attorney’s fees, we are foreclosed from considering whether the award of fees itself was proper. However, this limitation upon our review does not preclude our examination of the basis for the award to determine whether it falls into the narrow category in which enforcement by contempt is permissible.

The applicable statute, Section 61.16, Florida Statutes, provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

Appellee argues, in support of the contempt order, that since the proceeding below was for the enforcement of a divorce decree, it was a “proceeding under this Chapter,” (Chapter 61, Florida Statutes). Therefore, according to appellee, the attorney’s fees were awarded under Section 61.-16. It follows, appellee argues, that appellants are subject to contempt punishable by imprisonment for nonpayment. We must reject these contentions.

We first observe that a “party” entitled to an award of attorney’s fees under the statute must, by its terms, be a party either obligated by the divorce or dissolution judgment to pay certain sums to the other party, or to receive payment from the other party. The appellee, Hilda Price, was neither. It is unnecessary for us to decide whether the estate, under the facts of this case, or any case, would be a “party” within the provisions 'of the statute. Here, it is clear that the trial court based the award and the contempt order upon the erroneous assumption that Hilda Price was a party entitled to make a claim for attorney’s fees under the statute. In this con--nection, although appellee was sued in a dual capacity — both individually and as executrix — neither the order awarding attorney’s fees nor, the contempt order contains any language indicating an intention to award fees to the estate of George L. Price. The contempt order contains the following finding:

. and the court further finds that because the defendant Hilda Price is presently suffering from an advanced stage of cancer and based on prior testimony that she is in financial distress and unable to pay her attorneys (emphasis supplied)

Thus, the court’s contempt order refers only to the medical and financial condition of Hilda Price, making it obvious that the award of attorney’s fees was based upon the financial needs of Hilda, not the estate.

We fail to see any justification for the contention that the suit involved any claim against Hilda Price within the purview of Section 61.16. Furthermore, although the case is not cited by either party, in our judgment appellee is not an “aggrieved party,” one who “has succeeded to the rights of an aggrieved parties,” or “has a pecuniary interest in the exact right protected by the order violated,” so as to be entitled to maintain a proceeding for civil contempt, as in Plante v. Watson, 350 So.2d 1131 (Fla. 2nd DCA 1977). Hilda Price was not a party to the divorce proceeding, and she had no duty or obligation to appellants under the decree. As a beneficiary of her deceased husband’s estate, she no doubt claimed rights to funds or property which constituted the estate. This lawsuit against Hilda was actually filed in her deceased husband’s probate proceeding, although a separate action was also filed, both cases being consolidated by order of the trial court. We think it is obvious that Hilda’s rights and interests were determinable under the probate laws of Florida (Chapters 732-735, Florida Statutes), and not under Chapter 61, which deals exclusively with matters relating to dissolution of marriage.

Although as stated, we can find no basis upon which Hilda Price can be considered a “party” to whom attorney’s fees may be awarded under Section 61.16, Florida Statutes, even if we assume, for purposes of argument, that such an award would be proper, we are nevertheless of the opinion that the contempt remedy is not available here. The statute itself says nothing about contempt. The rule permitting the use of the contempt powers for enforcement of payments in domestic relations cases is of court — not legislative — origin. Phelan v. Phelan, 12 Fla. 449 (1868); Bronk v. State, 43 Fla. 461, 31 So. 248 (1901); State ex rel. Krueger v. Stone, 137 Fla. 498, 188 So. 575 (1939); Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939). The justification for the use of this drastic remedy, as an exception to the constitutional prohibition against imprisonment for debt, has been expressed in various ways; but the approval of its use has consistently depended upon the assumed necessity for special protection and enforcement of rights growing out of the marriage relationship. Thus, in Bronk, the husband’s obligation for alimony was held not a “debt,” in the constitutional sense, but “more in the light of a personal duty due not alone from the husband to the wife, but from him to society . .” (Ibid., at 31 So. 252). A later case, Orr, found the duty to be based upon “disobedience of the court’s order, as well as the necessity of the spouse.” The court in Bronk referred to an earlier case, Phelan, in which the award of “suit money” was traced to the English ecclesiastical courts, the purpose of the award being “to aid the wife to have justice done when she is without means, . . . .” (Phelan, at 456). The constitutional objection to imprisonment for refusal to pay suit money, as contrasted with alimony, was raised as early as 1885, but was not decided. See Sanchez v. Sanchez, 21 Fla. 346 (1885). When the question was finally reached in State ex rel. Krueger v. Stone, the court admitted no distinction between alimony and suit money, and- held the constitutional objection “wholly untenable” (Krueger, 188 So. at 576) on the authority of Bronk, which regarded the duty to pay as one owed to society.

The 1971 legislature, perhaps anticipating a 1978 Supreme Court decision holding a family allowance statute unconstitutional because of its discrimination on the basis of sex (In re Estate of Reed, 354 So.2d 864 (Fla.1978)), amended Chapter 61 to make both alimony and attorney’s fees available to either husband or wife in dissolution litigation. That the wife, as well as the husband, was made subject to liability for alimony and attorney’s fees did not alter the basic principle that only obligations of the parties to the marriage relationship, owed to each other, are to be treated differently from “debts” for which imprisonment may not be imposed under the constitution. It may not be so clear that the use of contempt to enforce a wife’s obligation to pay alimony or attorney’s fees to her husband may be justified in the same “duty owed to society” sense as applied against husbands years ago. But the underlying premise is still the special interest society has in requiring a degree of continuing financial responsibility of one mate, or former mate, for the other (or their offspring), and in preventing one party from being disadvantaged by the other in litigation seeking enforcement of financial obligations growing out of the marriage relationship.

As this court has held, the purpose in awarding fee money in divorce and dissolution proceedings is simply “to ensure that both parties will have reasonably the same ability to secure competent legal counsel.” Valpariso Bank and Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977). There is, significantly, an element of mutuality inherent in this rule; that is, the object is to place the parties on an equal footing in litigation. Here, no one would suggest that appellee-Hilda, not being a party to the marriage out of which this litigation grew, would have been subject to imprisonment for nonpayment of attorney’s fees to the appellants, if appellants had been the winning parties. The reason is simple: No marital duty would be served by such a result. State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (1941), applied this concept in holding that a provision in a divorce decree requiring the husband to make payments to a bank on notes owed by the parties could not be enforced by contempt, because the obligation “was not based upon any marital duty of the husband to the wife.” Cahn, at 258.

The principles we have followed in determining this case have recently been applied by this court in a case relating to contempt as a remedy for enforcement of child support payments. Smith v. Morgan, 379 So.2d 1052 (Fla. 1st DCA 1980), held that a father, whose obligation for child support had been abated because the child began residing with the father, could not be held in contempt of court for his nonpayment of child support arrearages. In its opinion, the court stated:

The extraordinary remedy of contempt is applicable to divorce judgments for child support because of the public necessity for insuring the support of minor children. When the public necessity is no longer present, the purpose and justification for the extraordinary remedy of contempt expires. (Smith v. Morgan, at 1053)

The court also referred to Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), holding that the court has no jurisdiction to enforce child support payments by use of the contempt power on accrued arrearages after the child has reached majority. We reiterate the holdings of these decisions by stating simply that contempt cannot be used where its “purpose and justification” has expired.

Finally, the use of contempt, under the circumstances presented here, simply to vindicate the authority of the court, cannot be justified. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

The order adjudging appellants in contempt is reversed.

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

      . A non-parental custodian of children, entitled to enforce child support provisions of a court order or judgment, would no doubt qualify as a “party” entitled to the benefit of the statute. See Dykes v. Dykes, 104 So.2d 598 (Fla. 3rd DCA 1958), and Rule 1.590, Florida Rules of Civil Procedure.

      . Although on the record before us we are unable to determine with certainty what the estate assets consisted of, we have an indication from a statement in appellee’s brief, which informs us that appellants, if successful in this litigation, would have been entitled to $150,-000.00 from the proceeds of a life insurance policy.

      . See Phelan v. Phelan, 12 Fla. 449 (1868), at 454 — 455, where the court, commenting upon the “many differences” between divorce suits and other chancery cases, acknowledged that “most elementary writers” have designated them as “a suit sui generis and further, “this, like many other of its peculiar incidents, arises from the fact that the public have an interest in these suits, and the duty of the court is to protect that [sic] interests even at the expense of the wishes of the parties themselves”.

      . See footnote 1.


author: RYDER, Judge.

text:
    CRITERION CORPORATION, formerly LaMonte-Shimberg Corporation, a Delaware Corporation, Appellant, v. HUNT PROPERTIES, INC., a Florida Corporation, a/k/a George Hunt Properties, Inc., a Florida Corporation, Appellee.
    No. 79-193.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    David Hyman, Tampa, for appellant.
    C. Lawrence Stagg of Holland & Knight, Tampa, for appellee.
   RYDER, Judge.

We reverse on cross-appeal the grant of summary judgment to appellant Criterion Corporation. A disputed issue of material fact existed below as to the identity of the term “seller” in the contract clause at issue. The contract specifically identified appellant as the seller, but also set out the “seller’s” duties to be those clearly contemplated to be performed by a third party to the contract.

The contract ambiguity was unresolved, and thus appellant failed to carry its burden on motion for summary judgment of proving the nonexistence of any disputed issues of material fact. Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla. 2d DCA 1979).

REVERSED and REMANDED for further proceedings.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    THOMAS HARDELL & ASSOCIATES, INC., a Florida Corporation, Appellant, v. NABERS & CRANE, A DIVISION OF BAYLY, MARTIN & FRY, INC., a Florida Corporation, Appellee.
    No. 79-1674.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    David B. Kesler, St. Petersburg, for appellant.
    Guy M. Burns of Jacobs, Robbins & Gay-nor, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

Thomas Hardell & Associates, Inc., defendant below, takes this interlocutory appeal from the trial court’s order denying its motion for change of venue. We reverse.

Appellant is an employment agency specializing in the recruiting and placement of executives with insurance companies and agencies. Its principal and only place of business is in Ft. Lauderdale (Broward County).

During the latter part of 1978, appellant and appellee Nabers & Crane entered into negotiations regarding the placement of an account executive with appellee, which ultimately resulted in the placement of Robert N. Gower with appellee; and appellee sent appellant a check for the agreed amount for appellant’s services.

Appellee subsequently filed a complaint against appellant in Pinellas County alleging that after Gower came to work for appellee he exhibited a series of problems which Nabers considered indicative of mental illness rendering him unfit for employment; that appellant had represented that it conducted background investigations on all applicants; and that in failing to conduct a background investigation on Gower appellant breached its agreement with ap-pellee and was also negligent in checking Gower’s background. Appellant filed a motion for transfer for improper venue, together with an affidavit by appellant’s president in support of the motion. Appel-lee filed an affidavit in opposition to the motion executed by its president averring that appellant and appellee were in repeated contact by telephone and letter and that appellee suffered damages in Pinellas County. The trial court denied appellant’s motion. This appeal followed timely.

Section 47.051, Florida Statutes (1977) provides in pertinent part:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.

Since the location of property is not involved in this case, and since appellant’s principal place of business is in Broward County, the issue is whether the cause of action accrued in Broward County.

In James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla. 2d DCA 1970), this court held that as regards a service contract the cause of action accrues where the services are to be performed. In the instant case, an investigation of Gower’s background would necessarily have been conducted at appellant’s office in Bro-ward County. The mere fact that eventually the benefits of the contract would be enjoyed by appellee in its county of residence is not decisive. Id.; American International Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978). Thus the cause of action here clearly accrued in Broward County, and venue lies only in Broward County.

Accordingly, the trial court’s order denying appellant’s motion for change of venue is REVERSED and the cause REMANDED with instructions to enter an order granting the motion.

OTT and RYDER, JJ., concur.


author: McCORD, Judge.

text:
    Mae BURCH, Appellant, v. Leo A. BRINKLEY, Jr., Appellee.
    No. PP-266.
    District Court of Appeal of Florida, First District.
    April 17, 1980.
    Andrew J. Decker, III of Airth, Sellers & Lewis, Live Oak, for appellant.
    S. Austin Peele of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   McCORD, Judge.

Burch appeals from an order dismissing her second amended complaint with prejudice. The order was based upon the grounds that appellant failed to plead facts in the complaint negativing the application of Sections 689.01 and 83.04. Florida Statutes, to allegations in Counts I and II. We reverse.

The trial judge was correct in ruling that § 689.01 controls the validity of the modification of the written lease agreement alleged in Count I, and that, in the absence of a showing of special circumstances, § 83.04 applied to Counts I and II regarding the alleged extension of the lease. Painter v. Town of Groveland, 79 So.2d 765 (Fla. 1955); Leibowitz v. Christo, 75 So.2d 692 (Fla.1954); Henry v. D. S. M. Co., 352 So.2d 1230 (Fla. 4th DCA 1977); Ledford v. Skinner, 328 So.2d 219 (Fla. 1st DCA 1976). Nevertheless, these two defenses should not have been considered on a motion to dismiss for failure to state a cause of action because they do not appear on the face of the complaint. See Fla.R.Civ.P. 1.110(d). Rather than requiring a plaintiff to negative defenses, the issues should be framed by the complaint, answer, and reply. See Fla.R. Civ.P. 1.100(a) and 1.110(d). This procedure should be followed although we recognize that, if the defenses are not waived, the matter might be disposed of on a motion for judgment on the pleadings or summary judgment, whichever may be appropriate.

Reversed and remanded for proceedings consistent herewith.

LARRY G. SMITH and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    Jean Marie BARRIS, Appellant, v. TOPPERS OF FLORIDA, INC., and Peninsular Fire Insurance Company, Appellees.
    No. QQ-51.
    District Court of Appeal of Florida, First District.
    April 17, 1980.
    Gail A. Gottardo, Jacksonville, for appellant.
    W. Wayne Myers of Cowles, Coker & Myers, Jacksonville, for appellees.
   PER CURIAM.

This is an appeal from a final workers’ compensation order dated April 12, 1979, denying appellant medical benefits for abdominal surgery and temporary disability benefits following such surgery. Appellee cross-appeals, urging that certain diagnostic procedures prior to the abdominal surgery were not compensable.

Appellant had a prior history of pelvic inflammatory disease, which was asymptomatic at the time of her injury. She turned from her work area and walked into a steel rod, striking her abdomen on October 18, 1978. She began bleeding vaginally immediately after the trauma. She came under the care of Dr. Bennett, who prescribed Darvon.

Because of continuing pain and persistent symptoms, appellant came under the care of Dr. Schiwietz. Dr. Schiwietz’s diagnosis was pelvic inflammatory disease and a separate cystic swelling or mass. He felt that the swelling could represent bleeding in the area of the left ligament, possibly caused by the trauma appellant received at work.

The doctor performed other diagnostic tests, including a pelvic laparoscopy, but was still unable to make a diagnosis as to the etiology of the cyst. He recommended that appellant undergo exploratory surgery to determine the cause of the cyst. During surgery, the doctor excised the cyst and performed a total hysterectomy to remove appellant’s diseased structures caused by her pelvic inflammatory disease. The doctor stated that it would have been improper medical procedure not to remove the diseased structures during the abdominal surgery.

After surgery, the doctor was able to determine that the swelling was a congenital parametrial cyst, unrelated to appellant’s accident at work. However, the doctor testified that without surgery, he would have been unable to determine the etiology of the cyst. He also testified that the trauma at work aggravated appellant’s pelvic inflammatory disease.

The JIC found all diagnostic procedures prior to surgery compensable. However, he found the surgery noncompensable, since the purpose of the surgery was to determine the etiology of the cyst, which was found to be unrelated to the trauma. Accordingly, appellant was denied an award for the surgery and temporary disability benefits following surgery.

We disagree and reverse the order, It is clear the doctor felt that the swelling could have been caused by the trauma. In fact, there was no medical evidence to the contrary in the record. Compensability for diagnostic tests and surgery cannot be based upon an after-the-fact determination as to causation. It is the purpose of the diagnosis, as opposed to the ultimate causal relationship of the symptom, that determines whether or not the medical expenses necessary to make the diagnosis are com-pensable. Bridge Lumber Company v. Altman, IRC Order 2-3408 (April 21, 1978); Dura Clad Systems v. Jones, IRC Order 2-3073 (December 3,1976), cert, denied, 348 So.2d 946 (Fla.1977). Also see Banyas v. American Mutual Fire Insurance Company, 359 So.2d 506 (Fla. 1st DCA 1978), for an analogous situation involving Florida’s no-fault auto insurance law.

There was no evidence to support the judge’s finding of noncompensability. The only testimony was that of Dr. Schi-wietz, who stated that the purpose of the surgery was to determine if the trauma caused the cyst. Therefore, we remand with instructions that the surgery be held compensable and for further findings as to appellant’s temporary disability resulting from such surgery. The issue on cross-appeal is affirmed.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: PER CURIAM. ROBERT P. SMITH, Jr., Judge,

text:
    COURT OF FLAGS and Insurance Company of North America, Appellants, v. Wayne OUTLAND, Appellee.
    No. QQ-135.
    District Court of Appeal of Florida, First District.
    April 18, 1980.
    Michael A. Miller and Donna L. Bergh, Orlando, for appellants.
    Steven A. Rissman of Cooper & Rissman, Orlando, amicus curiae, for appellants.
    Thomas R. Mooney and J. Peyton Lea, III, of Meyers, Mooney & Adler, Orlando, for appellee.
   PER CURIAM.

Employer/carrier appeals a worker’s compensation order approving a lump-sum advancement pursuant to § 440.20(10), Fla. Stat. Before approving such an advancement, the deputy must determine that it is in the best interest of the claimant, is reasonable under the circumstances of the case, and will not materially prejudice the rights of the employer/carrier. § 440.20(10) Fla. Stat.; § 440.20(ll)(d), Fla.Stat. While the judge has broad discretion in such matters, Herndon v. City of Miami, 224 So.2d 681 (Fla.1969), we conclude that the present case involves an abuse of discretion, and we hereby reverse the order appealed.

Claimant indicated that the § 440.-20(10) advancement would be used to purchase savings certificates with an interest rate exceeding the § 440.20(10) 4% discount rate. Claimant testified simply that he desired the advancement so that his spouse would have the money if he were to die before the employer/carrier had fully discharged its worker’s compensation obligations. Under Chapter 440, Fla.Stat., however, worker’s compensation benefits are not intended as life insurance. See George-son v. Oakland Park Rock Co., IRC Order 2-2971 (May 27, 1976) (concurring opinion), cert, denied 339 So.2d 1169 (Fla.1976). The relevant § 440.20(10) inquiry is whether an advancement is in “the best interests of the person entitled to compensation ” [emphasis supplied]. The record in the present case contains nothing to indicate that the claimant’s condition or “interests” were directly affected in any way by his concern over either of the above-noted estate planning or money market considerations. In the context of this case, such factors are in our opinion insufficient to permit an order for a § 440.20(10) advancement.

The award of costs is also reversed. Cf., Gardinier v. Madry, IRC Order 2-3227 (Sept. 13, 1977).

Accordingly, the order appealed is reversed.

LARRY G. SMITH and WENTWORTH, JJ., concur.

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

ROBERT P. SMITH, Jr., Judge,

specially concurring:

I concur in the court’s judgment and opinion reversing this order for a lump-sum payment of discounted future compensation benefits, awarded on account of Outland’s permanent total disability. I wish only to add some additional, perhaps more fundamental, objections to lump-summing in this case.

The award was made pursuant to Section 440.20(10), Florida Statutes (1977), which provides in part:

Upon the application of any party in interest and after giving due consideration to the interests of all interested parties, if a judge of industrial claims finds that it is for the best interests of the person entitled to compensation, said judge of industrial claims may enter a compensation order requiring that the liability of the employer for compensation shall be discharged by the payment of a lump sum equal to the present value of all future payments of compensation, computed at 4 percent true discount compounded annually. . . .

Outland’s purpose in petitioning for a lump-sum payment in lieu of future periodic compensation benefits was to secure capital for investment in the money market. At the time of hearing, bank certificates of deposit were paying short-term interest at an annual rate slightly exceeding 8 percent, and in the intervening period, as we all know, interest rates have dramatically (ominously?) increased. Outland is shown as capable of managing the proposed lump-sum payment of $44,000, that being the present value, computed at “4 percent true discount compounded annually,” of his actuarial expectancy of receiving $80 weekly in compensation benefits for 712 weeks. He successfully operated a bakery and restaurant, a diner, and a consulting service for diner owners in northern cities before moving to Florida in 1960, and he has since held other money-managing positions in this state.

The compensation order granting the lump-sum payment offers a threefold justification: if wisely invested to earn a return substantially exceeding 4 percent interest compounded annually (the interest reciprocal of the statutory discount rate which dates from 1935), the lump-sum advance would produce earnings only slightly less than the present $80 weekly payments, and, unlike the statutory benefits, those earnings would continue to support Outland’s widow when he dies; the capital itself would be available “for emergency situations if and when they arose” during the couple’s lifetime; and it would be “therapeutically beneficial” and potentially profitable for Outland to manage the fund. ■

This lump-sum award has undeniable similarities to the award approved by the Supreme Court in Herndon v. City of Miami, 224 So.2d 681 (FIa.1969), enabling Herndon to buy income-producing real estate. In reinstating the lump-sum order of the judge of industrial claims in that case, which the Industrial Commission had vacated, the Court found substantial competent evidence supporting claimant’s “belief that he has a sound investment” and no evidence that the employer “would be materially prejudiced by the advance payment.” The Court declared that the judge of industrial claims has “vast discretion” in making lump-sum awards under Section 440.20(10).

While on the facts Herndon somewhat supports the payment ordered in this case, it must be noted that the Herndon Court read into Section 440.20(10), as a limitation on the lump-sum payment replacing and discharging liability for “all future payments,” a concern to avoid “material prejudice” to the employer which Commission Rule 16 D then expressed as a limitation on advance payments. Herndon, 224 So.2d at 682. That Rule later became Rule 17(d) of the Workmen’s Compensation Rules of Procedure, see 285 So.2d 601, 607 (Fla.1973), and still later its provisions were enacted as Section 440.20(ll)(d), Florida Statutes (1977). Chapter 77-290, Section 5, Fla. Laws. Thus, while a different construction may have been possible before Herndon, we must now read Section 440.20(10) as requiring both a showing that a lump-sum payment “is for the best interests of the person entitled to compensation” and a showing that the commutation of periodic benefits is not “materially prejudicial” to the employer.

In this case the deputy did not find that the lump-sum payment requested would not materially prejudice the employer. Such a finding is impossible. Moreover, even if the constraints of subsection (ll)(d) were not properly to be read into subsection (10) proceedings, we should yet find that lump-summing of this character is not permissible under Chapter 440, however superficially beneficial to the claimant it may seem.

As the court’s opinion points out, the prospective benefit to a claimant’s widow, achieved through creating an income-producing corpus surviving claimant’s death, is not a suitable objective for lump-summing. I would add that neither the creating of an emergency medical fund nor the founding of a “therapeutically beneficial” avocation is, in the circumstances of this case, a legitimate justification for lump-summing. To the extent this award tends to achieve those several and salubrious objectives, it does so because and only because it is supposed that the fund, without transformation into labor or another form of capital, can rent itself out for a return higher than the discount rate which created the fund in the first place. For reasons we cannot now recover, the 1935 legislature fixed the present value of Section 440.20(10) money at “4 percent true discount compounded annually”; and succeeding legislatures have left the rate unchanged. We must suppose, therefore, that the fluctuating value of money was not intended to be the predominant factor motivating a lump-sum award. If the capacity of money to earn more in passive investment than the discount rate were reason enough to commute the periodic payments which are characteristic of the compensation system, then all awards to financially prudent claimants would be commuted in inflationary times. This cannot be. We do not permit an ill octogenarian to “beat the actuarial tables” by lump-summing an award of lengthy period payments. 3 Larson, The Law of Workmen Compensation, Section 82.72 at p. 15-580 (1976). Neither is it sufficient for lump-summing that, when credit is expensive, the claimant as lender can beat the statutory discount rate.


author: WENTWORTH, Judge.

text:
    G & S PACKING CO. and Florida Farm Bureau Insurance Company, Appellants, v. Elizabeth M. DRIGGERS, Appellee.
    No. QQ-427.
    District Court of Appeal of Florida, First District.
    April 18, 1980.

      Jack A. Langdon and Anthony J. Salzman of Jones & Langdon, Gainesville, for appellants.
    Thomas W. Davis of Barton & Cox, Gainesville, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeals and claimant cross appeals a worker’s compensation order finding permanent benefits had been paid and awarding medical benefits and costs. We reverse in part.

Claimant sustained an industrial accident on April 24, 1975, resulting in injury to her foot. Claimant received medical treatment from various doctors and temporary disability benefits were paid until March 1, 1976. A claim for compensation was filed on October 21, 1977, and claimant’s attorney contacted the treating physician in order to obtain a permanent impairment rating. By a letter dated March 9, 1978, the doctor indicated that claimant’s disability “amounts to not greater than 5% to lower extremity”. Claimant’s attorney forwarded a copy of this letter to the carrier, who received it on March 17, 1978. The carrier took no action upon receipt of this letter. An application for hearing was filed, and the doctor’s deposition was taken on March 14, 1979, at which time the doctor indicated that the claimant had sustained a 5% permanent partial impairment of the foot, or a 2V2% permanent partial impairment of the lower extremity. The carrier accepted this rating and commenced payment of 5% permanent partial disability as of March 22, 1979.

Claimant’s injury has necessitated the use of orthopedic shoes which were prescribed by her doctor. Although the carrier had paid the full costs of such shoes, and professes its willingness to continue to do so in the future, during settlement negotiations it was suggested that, for purposes of determining a settlement amount, only the difference in price between orthopedic shoes and regular shoes should be considered.

At the commencement of the hearing on May 16, 1979, the claimant’s attorney indicated that a change of physician was desired. There was some uncertainty as to whether this issue had been properly noticed for hearing and the deputy commissioner initially indicated that he would “go ahead and hear” the issue, but later stated that the issue was not properly noticed and thus would not be heard or determined. An order was entered on June 1, 1979, awarding the claimant a change of physician, orthopedic shoes, and costs. It was also found that claimant’s attorney is entitled to a fee, taking into consideration that he obtained a change of physicians.

Appellant asserts error (1) in awarding a change of physician, and (2) in awarding orthopedic shoes. The basis for attorney’s fees is argued both by appellant and by appellee on cross-appeal.

As to the appellant’s first issue, under prior construction of the law the deputy commissioner may award only such benefits as were properly claimed. CECO Corp. v. Lavin, IRC Order 2-2975 (June 11, 1976). When benefits have been requested, the request need not be renewed before the deputy commissioner in order to satisfy due process notice requirements. Bay Plumbing Inc. v. Harbin, 337 So.2d 799 (Fla.1978). The appellant in the present case has not alleged prejudice or surprise. However, the deputy commissioner by express statement clearly excluded the “change of physician” issue from the scope of the hearing, and the record reflects no waiver by appellant of the express objection to hearing that issue. The deputy commissioner should not have ruled on the issue or made any award with respect thereto. LaMar Coffee Shop v. Taylor, IRC Order 2-3531 (September 11, 1978); Adams Packing Assoc, v. Reedes, IRC Order 2-3139 (April 20, 1977), cert, denied, 353 So.2d 673 (Fla.1977).

On appellants’ second point, the deputy commissioner properly accepted a statement by the carrier’s attorney that responsibility for the full costs of orthopedic shoes had never been denied. Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla.1976). He should not then have proceeded to award that benefit, since this was not a contested issue. But since the carrier has conceded its continuing responsibility to provide such shoes, both before the deputy commissioner and on appeal, it would appear that error in making the award was harmless except for potential effect on any attorney’s fee which may be due.

As to the question of attorney’s fees, an award of fees under the statute applicable to this claim is warranted if the employer/carrier “shall decline to pay a claim on or before the 21st day after they have notice of same . . § 440.-34(1), Fla.Stat. (1973). This 21 day “notice of a claim” provision begins to run upon notice of an employee’s disability rating where there was “no possible way that the employer could know, prior to being notified, that the physician’s examination . would result in a permanent partial disability rating.” Lehigh Portland Cement Co. v. Branch, 319 So.2d 13 (Fla.1975). However, as indicated in Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970):

An employer who does not exercise his right to investigate and who forces the burden of proving liability on the claimant to the extent the claimant requires assistance of an attorney for depositions or other actions, is not protected from payment of attorney’s fees by ignorance resulting from failure to investigate liability.

In the present ease claimant’s attorney was forced to actively seek the doctor’s opinion as to any permanent disability, which the doctor expressed as “not more than 5%” in a letter which claimant’s attorney forwarded to the carrier. This letter was sufficient notice to require the carrier to investigate and accept the claim within 21 days if it wished to avoid liability for attorney’s fees. The carrier did not accept any disability rating until after the doctor’s deposition by the claimant’s attorney almost a year later. In such circumstances, the deputy commissioner should award a fee for the effort of claimant’s attorney in securing this benefit. Osteen v. Georgia-Pacific Corp., IRC Order 2-3383 (March 24, 1978), cert, denied, 367 So.2d 1123 (Fla.1979); Thomas v. Lindsiey Lumber, 8 FCR 52 (1973), cert, denied, 281 So.2d 193 (1973).

Although the deputy commissioner merely found entitlement to a fee, without an award of any specific amount, the effect of his findings is to predicate the fee only upon the attorney’s services regarding the “change of physician” issue. Clay Hyder Trucking Line v. Atherton, IRC Order 2-3827 (May 21, 1979), indicates that the present appeal is an appropriate time to address the issue of what benefits should be considered in connection with the attorney’s fee. Neither the erroneous “change of physicians” award nor the uncontested orthopedic shoes award should be considered in determining the amount of the fee, but as indicated above the award of permanent benefits should be considered for that purpose.

The order is accordingly affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

McCORD and LARRY G. SMITH, JJ., concur.


author: ERVIN, Judge.

text:
    Willie B. THOMAS, Appellant, v. T & T TRUCKING and Insurance Company of North America, Appellee.
    No. QQ-489.
    District Court of Appeal of Florida, First District.
    April 18, 1980.
    R. Cory Schnepper of Ser, De Cardenas, Levine, Busch & Allen, Miami, for appellant.
    R. Dennis Comfort of Jones & Langdon, Gainesville, for appellees.
   ERVIN, Judge.

Claimant Thomas appeals a judge of industrial claim’s order finding him entitled to no greater benefits than those volunteered by the employer and carrier, and denying him attorney's fees and costs. The employer and carrier had voluntarily accepted Thomas as 5% permanently, partially disabled. We reverse and remand on the issues of payment of medical bills and attorney’s fees, and remand for clarification on the question, of merger.

Claimant, a truck driver, was twice com-pensably injured: Once, while employed by Tavilla Company, and second the subject of the present claim, while in the course of employment with T and T. Claim litigation with Tavilla was concluded with the entry of a final order approving the parties’ joint stipulation, which, among other things, provided that Thomas be paid a lump sum amount of $1750 for temporary and permanent disability.

We agree that the JIC erred in failing to make a finding on whether Thomas’s prior disability merged with the permanent partial disability received in the second accident “to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury . alone . . . .” Section 440.-15(5)(c). Aside from the prior adjudication of permanent partial disability and lump sum compensation, the medical evidence raised the issue of merger to the extent that the order is unclear without specific findings as to whether it applied. Dr. Gilbert saw Thomas on December 8, 1978 and found him 15% permanently, partially disabled, assigning 10% to the lower back sprain, 5% of which was due to the February accident and 5% to the August accident. Dr. Aron stated Thomas was 5% permanently partially disabled as a result of the August accident. When he learned Thomas had previously injured his back and was rated 10% permanently partially disabled, he stated he would find Thomas 15% permanently, partially disabled, adding the 5% attributable to the August accident to the existing 10% permanent partial disability. Other medical testimony was similar. Under the circumstances, we agree the JIC should make a specific finding as to whether a Section 440.15(5)(c) merger occurred, and, in the case of a positive finding, should apply the deduction of benefits provisions, unless it is found the resulting compensation is “less than that allowed for the degree of disability that would have resulted from the subsequent injury ... if the previous disability had not existed.” Id.

We also agree with Thomas that the judge erred in failing to rule specifically on whether the employer-carrier was responsible for Dr. Snyder’s medical bills. There was no record of his ever being deauthor-ized by the employer-carrier. Moreover, we agree that Thomas’s attorney secured payment of certain of Dr. Snyder’s bills through February 1, 1978, which the employer-carrier had resisted paying up until the date of the final hearing.

On remand, the deputy will make appropriate findings regarding whether merger occurred under Section 440.15(5)(c), and whether the carrier is responsible for Dr. Snyder’s medical bills, and will award Thomas a reasonable attorney’s fee based on benefits secured.

Reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and SHIVERS, J., concur.

      . Dr. Chariff, a chiropractic physician who treated claimant for his first compensable accident, assigned a 10% permanent partial disability to the body as a whole, 7'h% attributable to the back and 2lh% to the ankle.


author: OTT, Judge.

text:
    Michael J. BOVE, Jr., Appellant, v. PBW STOCK EXCHANGE, INC., Appellee.
    No. 79-563.
    District Court of Appeal of Florida, Second District.
    April 18, 1980.

      John K. Patterson of Livingston, Patterson & Strickland, P.A., Sarasota, for appellant.
    Robert C. Widman of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for appellee.
   OTT, Judge.

Appellant sued appellee for damages, alleging in one count a wrongful conversion of appellant’s property, a seat on appellee’s stock exchange. A second count alleged a tortious interference with appellant’s endeavors to sell that seat to a third party. After extensive pretrial proceedings and discovery, appellee’s motion for summary judgment was granted as to both counts, without specification of grounds.

We are satisfied that the present record reveals issues of fact which will have to be resolved by trial. There are conflicts in the evidence thus far presented which preclude summary judgment on the count for conversion. In its present (admittedly incomplete) state, the evidence (although in substantial conflict) could support a judgment for appellant on that count. The facts favorable to appellant are as follows.

In 1969 appellant paid appellee $16,500 for a seat on appellee’s stock exchange, and put up a $5,000 trading account deposit. Since he personally was not a licensed trader, he formed an association with a licensed broker named Byrne. Pursuant to appel-lee’s rules, the seat was formally taken in Byrne’s name. Their firm, Byer, Inc., was actually listed as the member of the exchange. Everyone, including appellee’s officers and directors, knew that appellant was the “de facto” owner of the seat.

Within six months controversy between appellant and Byrne led to a material reduction in Byer, Inc.’s ratio of assets to liabilities, whereupon appellee suspended the corporation from membership in the exchange. Byrne then wrote to appellee, resigning from membership in the exchange (on behalf of both himself and Byer, Inc.), reminding appellee that appellant was the equitable owner of the seat, disclaiming all further involvement or responsibility in the matter, and directing all further inquiries to appellant or his attorney. Thereafter, appellee refunded the $5,000 trading account deposit to appellant’s attorney.

In 1971 appellant had an offer from one White to purchase the seat for the sum of $16,500. Appellee refused to process the application for transfer unless Byrne, as legal owner of the seat, signed the request and authorized payment of the consideration to appellant. Byrne refused to do so and White thereupon purchased a membership elsewhere.

In 1972 appellant and his attorney corresponded with appellee for a time'regarding transfer of the seat into the name of either appellant or his nephew, a registered stock representative, but nothing concrete was ever accomplished.

In 1974 appellee notified Byrne that its bylaws provided for the continuation of annual dues of $600 even after the expulsion or death of a member, and that as a consequence he owed $2,400 in back dues. Byrne did not respond, so a few months later appellee notified him that if the delinquent membership dues were not paid his seat on the exchange would be sold to the highest bidder or purchased by appellee as a “treasury seat”. Byrne replied to that notice, again advising appellee that he had been merely the nominal owner of the seat and that the matter of the back dues should be taken up with the equitable owner, appellant.

At no time did appellee contact or advise appellant or his attorney of the dues delinquency or its “purchase” of the seat. Instead, in 1975 appellee notified Byrne that the seat had been purchased by the exchange for $1,000 and it enclosed with that notice a demand for some $2,500 allegedly owing for six years’ dues, less credit for $1,000.

Not long thereafter appellant’s attorney wrote to appellee inquiring whether any progress had been made toward transferring the seat to appellant. He requested that appellee at least send some written confirmation of appellant’s interest in the seat. Getting no response, the attorney wrote again a couple of months later, this time promising legal proceedings if no answer were forthcoming. Two weeks later appellee wrote to the attorney advising him that the seat had been sold for nonpayment of dues and that Byrne, as the legal owner, had been given all the notice required by the bylaws. The letter further stated that there was still a balance owing of $2,535.75 for back dues and, consequently, there were “no funds due Byrne or any other person claiming through him.”

Appellant filed this action in 1976, alleging an unlawful conversion of the exchange seat and an unlawful interference in his plan to sell that seat to White. He claimed both compensatory and exemplary damages. Appellee moved for summary judgment on the grounds that (1) the statute of limitations barred recovery and (2) in any event, as a matter of law the facts would not support judgment for appellant. The trial court agreed and entered judgment in favor of appellee on both causes of action.

We find no error in the judgment on the cause of action for interference with business opportunity, which accrued (if at all) in 1971 and thus was barred by 1976. Therefore, we affirm the judgment as to that count.

The wrongful sale of another’s property is a conversion. Klein v. Newbur-ger, Loeb & Co., 151 So.2d 879 (Fla. 3d DCA 1963). An equitable owner can maintain the action. Commercial Credit Co. v. Willis, 126 Fla. 444, 171 So. 304 (1936). The statute of limitations is four years (§ 95.11(3), Fla.Stat.) and it begins to run at the time of the conversion, except where the latter is fraudulently concealed. Neff v. General Development Corp., 354 So.2d 1275 (Fla. 2d DCA 1978).

Appellee purportedly “bought” the exchange seat in 1975. This suit, filed in 1976, was well within the statute of limitations. Apart from the procedural point, it would appear from the record before us that the trial court’s appraisal of the merits of the case was simply that appellee’s bylaws gave its officers authority to sell a membership upon continued default in dues, that a default in fact occurred, and that appellee then proceeded in strict compliance with the bylaws in liquidating the seat.

It may well be that appellee’s bylaws expressly permit what amounts to a confiscation of an exchange seat in satisfaction of dues assessed after a member (through no apparent fault of his own) has been declared ineligible for continued membership. If so, we doubt that courts would or should intervene to correct conditions which were freely self-imposed, even though they prove harsh and inequitable in practice. Harper v. Hoecherl, 153 Fla. 29, 14 So.2d 179 (1943). We are, however, impelled to observe that the dues allegedly justifying the confiscation of the seat here were assessed for the years after not only the suspension of membership, but after Byrne resigned. The record before us does not reveal whether the bylaws also sanction this oddity.

To come to the nub of the main error made by the trial court, we believe that irrespective of any proof and finding that appellee had a right to sell the seat, it had no right to do so without letting appellant know what was happening. Appellee admits that it knew at all times that appellant was vitally concerned and affected in all matters pertaining to the membership, that Byrne was completely disinterested and that there was controversy, friction and ill will between appellant and Byrne. Yet, knowing all this, appellee deliberately liquidated the membership after notifying only Byrne.

Appellee’s officers and directors stand in a fiduciary relationship to the shareholders (members) and are bound to exercise the highest degree of fidelity and fairness in all their dealings with them. They may not take the slightest advantage of those they represent, and when their dealings with those who repose trust and confidence in them come under judicial scrutiny they bear the burden of demonstrating that they acted fairly and in good faith. See, generally, 8 Fla.Jur.2d Business Relationships § 295 et seq.; 19 C.J.S. Corporations § 761 et seq.

We are not to be understood as prejudging this case, or anticipating what the evidence will reveal when it finally comes to trial, but the record reveals what may be a breach of faith by appellee, without excuse or explanation.

At this point the record suggests that, separate and apart from the question of fiduciary duty, appellee’s course of dealing with appellant, Byrne, and Byer, Inc. was such as to lead appellant to reasonably and justifiably believe that appellee recognized him as the true owner of the exchange seat and that he would be notified of any. proceedings or occurrences affecting it. Such conduct estops appellee from now claiming that it was not required to give such notice. Southeastern Sales & Service Co. V. T. T. Watson, Inc., 172 So.2d 239 (Fla. 2d DCA 1965).

The summary judgment on appellant’s cause of action for conversion is reversed and the case is remanded for trial. The summary judgment on the cause of action for interference with a business opportunity is affirmed,

HOBSON, Acting C. J., and SCHEB, J., concur.

      . The gravamen of this count is that appellee refused to transfer the seat to White when appellant requested it. But Byrne was the legal owner of the seat and his authority to transfer it may very well have been required. Appel-lee’s refusal to proceed solely on appellant’s directive was more prudent than wrongful. Byrne may have arbitrarily abused his power, but appellant (not appellee) was the one who put him in position to do so.

      .Whether appellee deliberately tried to conceal the sale from appellant, whom it knew to be the person directly (and most) concerned, is therefore irrelevant to this aspect of the case. Of course, such conduct could have a bearing upon the question of appellee’s good faith in the matter, and may properly be considered at the trial in connection with the questions of fiduciary duty and estoppel, hereinafter discussed, and also in connection with appellant’s claim to punitive damages.

      . We are aware of the exceptions to that general rule, but our decision here obviates the need for lengthy discourse on the possibility that the exchange is so “tinged with public interest” as to render it amenable to judicial supervision. McCune v. Wilson, 237 So.2d 169 (Fla.1970); State v. Florida Yacht Club, 106 So.2d 207 (Fla. 1st DCA 1958).

      . We note that the officers of all voluntary associations are similarly bound. 7 C.J.S. Associations § 18.


author: FORET, Judge.

text:
    John C. GRIMSLEY, Plaintiff-Appellant, v. Mary TAGERT, Defendant-Appellee.

    No. 7766.
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 1980.
    Ronald C. Gossen, Lafayette, for plaintiff-appellant.
    Thomas E. Guilbeau, Lafayette, for defendant-appelleé.
    Before FORET, CUTRER and STOKER, JJ.

        Editor’s Note: The opinion of the Court of Appeal of Louisiana in de la Vergne v. de la Vergne, published in the advance sheets at this citation (382 So.2d 455), was withdrawn from bound volume publication at the request of the court.

   FORET, Judge.

MOTION TO DISMISS

On March 18, 1980, we ordered the plaintiff-appellant to show cause, on or before April 1, 1980, why his appeal should not be dismissed as being untimely perfected. No response has been made.

The record shows that the above captioned lawsuit was tried on September 27, 1979. Immediately after hearing the evidence, the trial court orally stated that the plaintiff’s suit would be dismissed and that a formal judgment would be signed accordingly.

Formal judgment was rendered and signed on October 29, 1979.

According to LSA-C.C.P. art. 1974, the delay for applying for a new trial is seven days exclusive of legal holidays. The delay begins to run on the day after the judgment was signed.

The delay for taking a devolutive appeal, pursuant to LSA-C.C.P. art. 2087, is sixty days from the expiration of the seven day delay for requesting a new trial.

In the present case, the order of appeal was signed on January 25, 1980, well beyond the time limit for a devolutive appeal. Accordingly, this appeal must be dismissed as being untimely.

APPEAL DISMISSED.


author: SAMUEL, Judge. PER CURIAM.

text:
    Frederick YOUNGBLOOD v. BELDEN CONCRETE PRODUCTS, a Division of Marine Concrete Structures, Inc. and United States Fidelity and Guaranty Company.
    No. 10294.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied April 18, 1980.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Defendant employer and its compensation insurer appeal from a judgment awarding plaintiff workmen’s compensation benefits of $65 per week for nine weeks and $265 for medical expenses over and above benefits already paid.

These facts are uncontested: Plaintiff was injured in the course and scope of his employment by the defendant, Belden Concrete Products, on November 13, 1974 when he was struck on the shoulder by a heavy piece of iron. On the day of the accident, he was seen in the emergency room at Ochsner Foundation Hospital by Dr. Gerald L. Davis, an orthopedic surgeon. He was treated by Dr. Davis until he was discharged as able to return to work on February 3, 1975. He was paid compensation benefits of $65 per week from the date of the accident until his discharge by Dr. Davis.

At the trial plaintiff’s only evidence for further compensation was his own testimony and a bill for $265 from a Dr. Henry M. Evans. Defendant introduced the testimony of Alvin Brown, a foreman (whose testimony is not pertinent to the issues before this court) and the medical report of Dr. Davis. The trial court held the matter open for the purpose of receiving the depositions of Dr. Irving Redler, an orthopedic surgeon, who examined plaintiff for defendant on one occasion, January 24, 1975, and Dr. Evans, plaintiff’s physician. The deposition of Dr. Redler was received but no deposition [or medical report] was introduced relative to Dr. Evans. Having thus taken the matter under advisement, the trial court awarded plaintiff nine weeks compensation from February 3, through April 6,1975 and medical expenses of $265. Plaintiff testified on April 5, 1975 he was discharged by Dr. Evans, a physician of his own choice, whom he had seen after being discharged by Dr. Davis.

In this court appellants contend: (1) The matter has prescribed; and alternatively, (2) plaintiff failed to prove his inability to work after February 3, 1975.

Relative to appellants’ first contention, the same issue of prescription was here on plaintiff’s appeal from a judgment maintaining defendant’s exception of prescription. We overruled the exception and remanded the matter for a trial on the merits. The issue of prescription having been determined by us, that determination is final as to this court.

We agree with appellants’ second contention. The evidence in the record is insufficient to support a judgment for compensation beyond the date of plaintiff’s discharge by Dr. Davis.

Plaintiff’s unexplained failure to call Dr. Evans as a witness creates a presumption that the witness’ testimony would be unfavorable to the plaintiff. Dr. Evans was plaintiff’s personal and treating physician who possessed peculiar knowledge of material facts pertinent to a resolution of this litigation. We recognize that no presumption would arise where the case was held open for the purpose of taking the doctor’s deposition (see Trahan v. Travelers Insurance Company, La.App., 241 So.2d 609), but the fact that the deposition was never taken prior to judgment does not therefore overcome the presumption. Nor is the adverse inference here overcome by other sworn testimony.

Plaintiff’s own testimony, in addition to being self-serving, is vague, confusing and inconclusive; in all parts pertinent hereto it is entirely unsupported by any other evidence. Dr. Evans’ itemized bill for services from November 30 through April 5, contains no information relating it to this accident or to any injuries in particular and offers no opinion or prognosis.

Dr. Davis’ deposition states he saw plaintiff the day of the accident. X-rays of the shoulder joint and neck revealed no fractures, nor was there evidence of any motor loss. The left arm was placed in a sling and heat and rest were ordered. Plaintiff returned the next day. The sling was removed and heat and exercises were recommended three times daily. Plaintiff was reexamined November 22, December 4, and 26, 1975, January 16, and February 1, 1976. On each occasion he complained of pain in the shoulder and inability to lift his arm past 90°, but the doctor found no medical evidence to support these complaints. He recommended plaintiff see another physician because he had nothing further to offer as to future care or diagnosis. He had suggested an electromyogram but plaintiff refused to have a needle stuck in his arm.

From Dr. Davis’ deposition, we find plaintiff was uncooperative, an “impassive individual . . . just sits there complaining of pain in the left shoulder.” The doctor concluded plaintiff was not actively interested in strengthening his shoulder or else his pain pressure was so low he was unable to exercise voluntarily.

We note that plaintiff is 23 years old, 6 feet 3 inches tall, weighs 170 pounds and had no trouble finding laboring jobs in construction work after the accident, although he was not rehired by the defendant-employer.

Dr. Redler’s deposition states he found no abnormality in plaintiff’s shoulder following examination and x-rays of January 24, 1975. He was of the opinion plaintiff deliberately resisted efforts to raise his arm beyond 90°. There was no deformity of the shoulder or the arm and the circumference of each arm was similar, indicating no shrinkage or atrophy and that plaintiff was using his left arm as much as his right arm.

In Dr. Redler’s opinion there was no evidence of disability to support plaintiff’s continued complaints of pain in his left shoulder. Thus, the results of Dr. Redler’s examination and Dr. Davis’ conclusion that plaintiff could return to work on February 3,1975, constitute the only competent medical evidence in the record. Nor does plaintiff’s own unsupported testimony establish to our satisfaction that he was disabled beyond that period for which he was paid by the defendants.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendants, Belden Concrete Products, A Division of Marine Concrete Structures, Inc., and United States Fidelity and Guaranty Company, and against plaintiff, Frederick Youngblood, dismissing plaintiff’s suit at his cost in both courts.

REVERSED.

PER CURIAM.

In an application for rehearing, the defendants-appellants call our attention to the fact that our decree erroneously refers to them as “Belden Concrete Products, a Division of Marine Concrete Structures, Inc. and United States Fidelity and Guaranty Company”. The application seeks no other relief. We find we were in error as stated by the defendants-appellants. Accordingly, our original decree is corrected to read as follows:

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendants, Marine Concrete Structures, Inc., Belden Concrete Products Division, and Fidelity and Guaranty Insurance Company, and against plaintiff, Frederick Youngblood, dismissing plaintiff’s suit at his cost in both courts.

      . Youngblood v. Belden Concrete Products, La. App., 349 So.2d 439. Defendants applied for writs to the Supreme Court which were denied because the matter was not final.

      . Vidrine v. Sentry Indem. Co., La.App., 341 So.2d 558; Malbroux v. Guice, La.App., 322 So.2d 390; Scroggins v. Fishing Tools, Inc., La.App., 236 So.2d 505; Evers v. State Farm Mutual Automobile Ins. Co., La.App., 187 So.2d 217; Stockstill v. Barge Thompson Corporation, La.App., 184 So.2d 98.

      .See Malbroux v. Guice, supra, note 2; Evers v. State Farm Mutual Automobile Ins. Co., supra, note 2.


author: CUTRER, Judge.

text:
    Roland PARKER, Plaintiff-Appellee, v. KROGER’S, INC., Defendant-Appellant.
    No. 7521.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Rehearing Denied April 25, 1980.
    Scofield, Bergstedt, Gerard, Hackett & Mount, Benjamin W. Mount, Lake Charles, for defendant-appellant.
    D. Michael Mooney, Lake Charles, for plaintiff-appellee.
    Before CUTRER, STOKER and LA-BORDE, JJ.

      . The proper name of defendant is: Kroger Company, Inc.

   CUTRER, Judge.

This is a workmen’s compensation suit. Defendant, Kroger Company, Inc. (Kroger), appeals the judgment of the trial court awarding Roland Parker benefits for temporary total disability, medical expenses arising from the work related injury, penalties and attorney’s fees.

The issues on appeal are: (1) Whether Kroger proved its affirmative defense of intoxication; and (2) whether plaintiff is entitled to penalties and attorney’s fees.

THE QUESTION OF INTOXICATION OF PLAINTIFF

Roland Parker brought this suit against his former employer, Kroger, for workmen’s compensation benefits due to injuries received in an accident while driving a truck for Kroger. Kroger had refused payment after demand and defended the suit based on LSA-R.S. 23:1Q81, which provides, in part, as follows:

“No compensation shall be allowed for an injury caused ... (2) by the
injured employee’s intoxication at the time of the injury, .
“In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

Parker was employed by Kroger to drive an eighteen-wheel truck for Kroger stores in Lake Charles. He had been so employed for approximately 17 years. Parker left on a “run” on the afternoon of July 3, 1978 and returned at approximately 6:00 A.M. the following day. He then went home and slept until noon. Parker stated that he arose around noon and began cooking for a barbeque at his home for friends and relatives. During the period from about 12:30 P.M. to approximately 4:00 P.M., Parker said he consumed from four to eight cans of beer. He stated that he consumed no more beer after about 4:00 P.M. because he realized he had to work that night.

At approximately 7:00 P.M., Parker reported to work. After reporting to work and making several telephone calls, Parker began his run to Houston, Texas to pick up a load of produce and then return to Lake Charles. He started the run at approximately 8:30 P.M.

Parker was proceeding west in an eighteen-wheel truck on the innermost lane of the three westbound lanes of Interstate 10. At about 8:45 P.M., immediately past the Maplewood-Sulphur exit, he ran through a barricade, collided with a State of Louisiana, Department of Transportation and Development (State) road repair truck, and then hit two other State vehicles before coming to a stop. According to Parker, the speed of his truck was 60 to 62 miles per hour. The barricade and other warning devices, including kerosene flares, flashing lights on the road repair truck, orange 18" cones, and signs indicating road work were set up to indicate road repair on the inside westbound lane of Interstate 10. The road repair was necessitated because of a buckle or blowout in the pavement which had occurred earlier in the afternoon. The road was dry and it was becoming dark. Parker was seriously injured, especially his left leg.

Exactly what caused Parker not to see the barricades is a matter of some dispute. At trial, Parker testified that just before the collision, he had momentarily taken his eyes off the road to replace the microphone of his citizen’s band radio which he was attempting to use. When he looked back it was too late to avoid the barricade. Parker had previously told an investigator for Kroger’s insurer that he may have dozed off or fallen asleep at the time of the accident.

Parker was taken to a hospital at 10:12 P.M. Pursuant to a request by State Trooper Jerry Lee Bowden, a blood sample was taken from Parker to test the blood alcohol level. The results showed that the level of alcohol in the blood was .104 percent. In its reasons for judgment, the trial court stated as follows:

“The defendant has failed to prove that the plaintiff was intoxicated. As proof' of intoxication, defendant relies upon plaintiff's admission of drinking four to eight beers from noon until four or five o’clock the afternoon of the accident; the blood alcohol study made by Dr. Cook later that evening, whereby the blood alcohol content was determined to be 104 milligrams per cent; the statement of the plaintiff, Tm afraid that’s exactly what happened’ in response to the question of defendant's investigator, ‘Then, had you dozed off, fell asleep, or what had happened?’; testimony of witnesses that they smelled alcohol on plaintiff’s breath after the accident; testimony that a beer can was found in the truck cab after the accident; the facts of the accident itself, in which plaintiff went past warning signs through a barricade.
“The court heard no testimony, expert or otherwise, concerning the effect the consumption of four to eight beers over a period of four to five hours has on an individual; and, in particular, the likely effect on this individual. There was no evidence or description of plaintiff’s manner of walking, speech, appearance, etc. prior to or after the accident which would indicate intoxication.
“The fact that the blood alcohol study resulted in a finding of 104 milligrams per cent is of no significance. The presumption created by[LSA-]R.S. 32:662 cannot be considered because that section specifically states that it has no application to a civil action. And, there was no expert testimony as to the meaning of the test results except only to the extent that Dr. Cook testified, ‘I would say, in my opinion, that 104 milligrams per cent, anyone would have some effect on them
“In short, the items relied upon by defendant, either singularly or collectively, to prove intoxication, failed to do so. Defendant has proven negligence but not intoxication. Defendant having failed to prove intoxication, it goes without saying that it has failed to prove that intoxication was the proximate cause of the accident.”

We have carefully examined the record and find, not only does the record support the trial judge but we fully agree with his findings that defendant has failed to prove that Parker was intoxicated at the time of the accident.

PENALTIES AND ATTORNEY’S FEES

We next proceed to the question of whether penalties and attorney’s fees should be awarded.

The defendant’s reason for denying compensation in this case was that Parker’s intoxication was the cause of the accident and injury. The defendant contends that a serious question of fact existed which justified their refusal to pay compensation, citing Thompson v. Natchitoches Parish Hospt. Ser. Dist., 335 So.2d 81 (La.App. 3rd Cir. 1976), writs den., 338 So.2d 298 (La. 1976); Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974).

The trial judge, in his oral reasons for denying defendant’s motion for a new trial, pointed out that:

"Based upon the jurisprudence and the wording of the statute and the facts that they [defendant] had available to them, their action was extremely capricious and arbitrary in refusing to pay compensation. ”

The trial judge further pointed out that Kroger was relying on a presumption that a .104 percent blood alcohol reading would render Parker intoxicated. The court correctly stated that such presumption does not apply to civil cases.

Defendant’s adjuster, Huey Littleton, who investigated the accident, testified that, after his initial investigation, he felt that it was:

. . questionable as to whether or not Parker would be qualified to receive compensation. There was a question as to whether or not he was intoxicated and whether or not if in fact he was intoxicated if the current jurisprudence would justify him being compensated. ”

He stated that he “called the grey area to their [Kroger’s] attention for guidance." This information was given to Fred Thompson who is employed by, and has charge of claims against, Kroger. Thompson asked Littleton for further information. Little-ton stated that he had obtained the blood alcohol report which showed a .104 percent. Littleton relied on the presumption that a reading of as little as .10 percent establishes intoxication. In speaking of his understanding of the affect of the report, he testified as follows:

“It is our understanding that that report did show that he was inebriated at the time the test was conducted.”

The adjuster erroneously relied on the presumption of LSA-R.S. 32:662.

The information available to Kroger did not justify a refusal to pay the workmen’s compensation claim. The trial of the suit failed to present any serious factual dispute as to the intoxication question. For those reasons, we conclude that the' trial court correctly awarded penalties and attorney’s fees.

For the above reasons, the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.

      2. LSA-R.S. 32:662(A)(l)(c) provides:
      “c. If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages .
      “This section has no application to a civil action or proceeding.” (Footnote ours)

      . These cases are cited for the well settled rule that employers are not to be penalized for taking their case to court for judicial resolution of a close factual question.