author: DANIEL S. PEARSON, Judge.

text:
    Harold G. BLATCH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-320.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1951, Harold Blatch was convicted of first-degree murder and sentenced to life imprisonment. Seventeen years later, Blatch, asserting that he had been denied his right to appeal, was accorded a belated appeal. His conviction was affirmed by this court. Blatch v. State, 216 So.2d 261 (Fla.3d DCA 1968). In 1979, Blatch filed a motion to vacate under Florida Rule of Criminal Procedure 3.850, contending for the first time that his retained trial counsel was ineffective and that he was thus deprived of his Sixth Amendment right to counsel and due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

The ineffectiveness of counsel lay, according to Blatch, in his counsel’s failure to move to suppress or object to the admission of Blatch’s confession to the police obtained within several hours of the murder. Blatch contended below, and contends here, that the inadmissibility of this confession was so obvious that any attorney would have sought its exclusion, and the failure to do so was blatant and rendered the proceeding fundamentally unfair.

I.

The Right To Attack The Competency Of Retained Counsel.

Only several months ago we noted in State v. Garmise, 382 So.2d 769, 772 (Fla.3d DCA 1980), that the courts of this state “have consistently held in a long line of decisions that a defendant is precluded from attacking the competency of his privately retained counsel as a ground for collateral attack of his criminal conviction under Fla.R.Crim.P. 3.850.” Once again, following this unbroken line of authority, we held in Garmise that the ineffective assistance of retained counsel did not constitute a ground for Rule 3.850 relief.

We are today of the view that the “long line of decisions” relied upon in Garmise has been undermined by the decision of the United States Supreme Court in Cuyler v. Sullivan, - U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which we believe prevents us from rejecting claims of ineffective assistance for the reason that counsel was retained:

“A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Cuyler v. Sullivan, —.U.S. at -, 100 S.Ct. at 1716.

But Blatch’s claim was brought and his trial was held before Cuyler. We are persuaded, however, that neither of these facts is an impediment to our reaching, as did the trial court, the merits of his claim, since the conclusion that Cuyler must be applied retroactively is inescapable.

Every case affording the right to the assistance of counsel in trial and appellate proceedings has been held to be retroactive. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), declaring the right to counsel at felony trials, was held retroactive in Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); was held retroactive as to prior convictions used to increase punishment in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); and was held retroactive as to prior convictions used to impeach in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Arger- singer v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), declaring the right to counsel at misdemeanor trials involving loss of liberty, was held retroactive in Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 39 L.Ed.2d 197 (1973). Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), declaring the right to counsel at probation revocation hearings, was held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), declaring invalid the use of a guilty plea taken without assistance of counsel, was held retroactive in Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), declaring the right to assistance of counsel on appeal, was held retroactive in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), declaring, the right to counsel at arraignment and plea, was held retroactive in Stovall v. Denno, supra. Since the right to the effective assistance of counsel is the constitutional equivalent of the right to counsel, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the theory upon which retroactivity of the right to counsel is based equally supports the retroactivity of the right to effective counsel.

II.

The State’s Defense That The Claim Is Barred By Laches.

Our determination that Cuyler opens the way for the consideration of Blatch’s claim is only a partial step over the threshold toward the merits. Before going further, we must address the State’s contention that Blatch’s claim is barred by laches. It is apparent that nearly three decades went by before Blatch first made this claim. By 1979, Blatch’s attorney and the trial judge were dead. The State claimed that witnesses required for a retrial were unavailable. At first blush it would seem that the defense of laches, sustainable when there has been a lack of due diligence by the defendant and prejudice to the State, see Remp v. State, 248 So.2d 677 (Fla.1st DCA 1970), might apply to Blatch’s claim. See also Babson v. Wainwright, 376 So.2d 1187 (Fla.5th DCA 1979); Broxson v. Wainwright, 271 So.2d 478 (Fla.1st DCA 1973). But the claim which Blatch asserts, ineffectiveness of retained counsel, was not viable in Florida during the 28 years after his conviction and before the filing of his Rule 3.850 motion. See State v. Garmise, supra.

Under these circumstances, we cannot conclude that Blatch lacked due diligence in failing from 1951 to 1979 to seek collateral relief on the ground that his retained counsel was ineffective. Cf. Bashlor v. Wainwright, 369 So.2d 695 (Fla.1st DCA 1978) (holding that the time interval of 27 years after conviction does not in itself bar a claim where the asserted legal right to appointed counsel on appeal did not ripen until 15 years after the conviction). Had he sought such relief, his motion, predictably, would have been met with summary denial. The exercise of due diligence does not require the doing of an obviously futile act. Cf. United States ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976) (federal habeas corpus petitioners challenging ineffectiveness of retained counsel in Florida state court proceedings need not exhaust state remedies where Florida rule barring relief is firmly entrenched). See Montana National Bank v. Yellowstone County, 276 U.S. 499, 48 S.Ct. 331, 72 L.Ed.2d 673 (1928); City of Miami Beach v. Breit Bay, Inc., 190 So.2d 354 (Fla.3d DCA 1966). Indeed, in 1979, when Blatch finally brought the Rule 3.850 motion under consideration, his attack could have been found by the trial court to be legally foreclosed. Instead, the trial court, perhaps anticipating the coming of Cuyler, reached the merits of Blatch’s claim.

III.

The Standard Of Effectiveness To Be Applied.

Having concluded that Blatch is entitled to challenge the effectiveness of his retained counsel, we must now address the question of the standard by which counsel’s performance is to be measured.

In light of Florida’s long standing rule that no challenge of ineffectiveness could be made where a defendant employed counsel, we are met with the obvious proposition that in our state no standard exists, or ever existed, by which retained counsel is to be judged. Until Meeks v. State, 382 So.2d 673 (Fla. 1980), the standard for measuring whether a defendant was entitled to have his conviction vacated on a claim of ineffective assistance of appointed counsel was, at least from 1964 on, Simpson v. State, 164 So.2d 224 (Fla.3d DCA 1964), whether the representation was so blatantly incompetent as to render the proceeding a farce or mockery. State v. Garmise, supra.

We conclude that in 1951, when Blatch was tried, a standard for retained counsel was nonexistent, and, although not yet announced, the farce and mockery standard, as it came to be known, applied to appointed counsel. Since the teaching of Cuyler is that there is no basis for drawing any distinction between retained and appointed •counsel, and since the distinction extant in Florida in 1951 was between farce and mockery and no standard at all, we could, following Cuyler, obliterate the distinction by applying the farce and mockery standard to judge the performance of retained counsel as of 1951.

We choose, however, to apply the standard recently announced in Meeks v. State, supra, that the appropriate test for judging appointed counsel is “whether counsel was reasonably likely to render and did render reasonably effective counsel based on the totality of the circumstances,” 382 So.2d at 675, since even under this more stringent standard, Blatch’s claim of ineffectiveness of counsel fails. We need not in the present case decide whether the Meeks standard must be applied retroactively.

This does not mean, however, that by employing this standard we will be judging counsel’s conduct with hindsight or that counsel will be deemed ineffective “by virtue of his failure to anticipate future developments in the law,” Meeks v. State, supra, at 676. It is clear that the law relating to the voluntariness of confessions, unlike the law relating to the right to counsel, has not been applied retroactively. See, e. g., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (holding that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 911 (1964), are not retroactive). Therefore, the applicable test for the admission of a confession is the test existing in 1951. If Blatch’s confession was admissible as a matter of law under 1951 standards, then his claim that his counsel was ineffective must fail. Kelly v. Warden, House of Correction, 468 F.Supp. 965, 973 (D.Md. 1979).

IV.

Voluntariness Under 1951 Standards.

Blatch does not contend that his confession was extracted by beatings, force, threats, extended detention or the like. His contention is that the confession was involuntary because unlawfully induced. He relies on a single statement made by the police officer at the outset of the interrogation as seen in the following colloquy:

“Q. What is your name?
“A. Harold George Blatch.
“Q. Where do you live?
“A. 1309 N.W. 63rd Terrace.
“Q. How old are you?
“A. Twenty-three.
“Q. Are you married?
“A. No, sir.
“Q. Harold, under your Constitutional Rights you do not have to tell us a thing, but if you tell us the truth on this whole story it will probably help you a whole lot. You understand?
“A. Yes, sir.
“Q. All right, Harold, tell us just what happened this morning.” (emphasis supplied).

The interrogation concluded:

“[Q.] Since you’ve been arrested have you been treated all right?
“A. Yes, sir.
“Q. Nobody’s threatened you?
“A. No, sir.
“Q. Nobody’s promised you anything? “A. No, sir.
“Q. Everybody’s treated you all right?
“A. Yes, sir.
“Q. You haven’t got any complaints about the way you’ve been treated?
“A. No, sir.” (emphasis supplied).

As we have said, Blatch’s claim of ineffective assistance of counsel must be evaluated in terms of the state of the law in 1951 respecting voluntariness of confessions and not in terms of changes in the voluntariness standard later made. Bonds v. Wainwright, 579 F.2d 317 (5th Cir. 1978); Burston v. Caldwell, 506 F.2d 24 (5th Cir. 1975).

The circumstances were these. Blatch, age 23, was not subjected to any physical or mental mistreatment, nor did he complain to his counsel about any. He was interrogated by two officers in the presence of a stenographer several hours after the crime. He was specifically told of his right to remain silent. He confessed immediately. The confession, given in narrative form, was totally consistent with other evidence. The statement, “if you tell us the truth on this whole story it will probably help you a whole lot,” is not a promise and was not perceived by Blatch to be one. The totality of circumstances shows the confession to have been voluntary and trustworthy and, under 1951 standards, clearly admissible. See Frazier v. State, 107 So.2d 16 (Fla. 1958), and authorities cited therein.

V.

The Fourth Amendment Claim.

Blatch’s defense was insanity. It is undisputed that the evidence as to his commission of the crime of murder was overwhelming. Blatch points out, and we agree, that the importance of the confession does not lie in his admission to the crime. The confession, he says, was devastating to his defense because it demonstrated the manner in which Blatch responded to the questions, his attentiveness and understanding of the interrogation, his responsiveness-in a word, his state of mind within several hours after commission of the crime.

It does not appear that Blatch contended in his first appeal to this court that it was the propensity of the confession to demonstrate his lucidity and sanity that caused its admission to be harmful. His challenge then was to the substance or testimonial nature of the confession which, found to be merely corroborative of admittedly overwhelming evidence of the commission of the crime, resulted in this court deciding that the admission of the confession, if error, was harmless. See Blatch v. State, supra.

Blatch’s present contention, since it goes to the non-testimonial nature of the confession, does not implicate self-incrimination rights under the Fifth Amendment. See Collins v. State, 227 So.2d 538 (Fla.3d DCA 1969). See also Greenfield v. State, 337 So.2d 1021 (Fla.2d DCA 1976). It does instead present a Fourth Amendment claim. If the interrogation which served as a seizure of evidence of Blatch’s conduct and behavior was unlawfully induced, then the right of Blatch’s person to be free from unlawful seizure guaranteed by the Fourth Amendment would have been violated. In 1951, evidence seized in violation of the Fourth Amendment was excludable in Florida courts.

However, Blatch’s Fourth Amendment claim is unavailing. The evidence of his conduct and behavior was voluntarily revealed by him. The test for voluntariness, whether in a Fourth or Fifth Amendment context, is the same. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Blatch’s conduct and behavior during the interrogation, even as the words of the confession, were lawfully seized by 1951 standards.

Accordingly, we hold that Blatch’s counsel did not render ineffective assistance to Blatch by failing to move to suppress his statement or to object to its admission.

Affirmed.

      . Blatch’s Rule 3.850 motion relied solely on this ground. Other alleged failures of Blatch’s trial counsel were explored at the hearing, but since they were insignificant and could not, even taken together, demonstrate ineffectiveness, we need not address the State’s contention that Blatch’s claim should have been restricted to the ground stated in his motion. We note, however, that the burden was on Blatch to specifically allege, as well as prove, the ground for relief. Foxworth v. State, 267 So.2d 647 (Fla. 1972), cert. denied, 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973).

      . This view is shared by two of our sister courts. See Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980), and Chambers v. State, 388 So.2d 1259 (Fla. 2d DCA 1980).

      . While the standard for effectiveness of retained counsel underwent dramatic changes in the 1970’s, the courts effecting these changes did not deal with retroactivity. But see Brannan v. Blankenship, 472 F.Supp. 149 (W.D.Va. 1979) (holding that the newly adopted and less stringent “reasonably effective” test should be applied retroactively).

      . At the hearing on Blatch’s motion to vacate, the defense called an expert witness, who testified that any reasonably effective criminal trial attorney would have challenged the admission of Blatch’s confession and that the “inducement” in the opening words of the interrogator should have “jumped off the page” to any experienced criminal attorney. He further testified that any judge with a modicum of trial experience in criminal matters (the judge in the instant case apparently was conducting his first criminal trial) would have sua sponte directed an inquiry into the voluntariness of the statement. He said that the statement revealed a lucid mind soon after the crime and thus severely eroded Blatch’s defense of insanity. The problem, as we see it, is that while the interrogator’s statement might have jumped off the page to any trial attorney experienced in criminal cases in 1979, it would not have jumped off the page in 1951.

      . In Frazier, the court held that the deputy sheriff’s statement to the defendant, “John, we have enough information on you we could have picked you up last night, so you just as well get right and tell us what you know about the case, it will save you a lot of trouble,” did not render the confession involuntary under a totality of circumstances more coercive than found in the present case. While Frazier was decided in 1958, it appears that voluntariness under the totality of circumstances was the test existing in 1951. See Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951); Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949); Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949).

      . In 1951, were the evidence illegally seized, it would have been excludable in Florida courts. Atz v. Andrews, 84 Fla. 43, 94 So. 329 (1922). See also Kraemer v. State, 60 So.2d 615 (Fla. 1952); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (App. Table II). Florida was not one of those states that was compelled by the constitutional imperative of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, (1961), to exclude unlawfully seized evidence. Sing v. Wainwright, 148 So.2d 19 (Fla. 1962). The effect of making the exclusionary rule a part of the Florida Constitution in 1968, compare Art. I, § 12, Fla.Const. (1968) with § 22 Decl. of Rts., Fla.Const. (1885), was not to impose an exclusionary rule, but rather to give the existing exclusionary rule constitutional dimension immunizing it from possible future retreat by the United States Supreme Court from its holding in Mapp. See Norman v. State, 388 So.2d 613 (Fla.3d DCA 1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenna Fae HOPE and Harlon C. Cotton, Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Kentucky Corporation authorized to do business in the state of Florida, Appellee.
    No. TT-418.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Rehearing Denied Nov. 17, 1980.

      Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for appellants.
    Gary B. Lane of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

Appellants, personal injury plaintiffs below, appeal an order of the trial judge granting appellees a new trial on the ground the jury’s verdict was excessive. Appellants presented evidence of the appel-lee’s negligence and damages, including testimony of appellant Glenna Fae Hope, her relatives and friends, concerning her inability to live as previously the lifestyle she enjoyed: she was in continuous pain, no longer able to jog or swim due to muscle spasms in her back and legs, and, because of her injuries, her feet had turned in and she became pigeon-toed. Her chiropractor testified, without objection, that she had suffered a permanent back injury within a reasonable degree of medical certainty which would require treatment for an indefinite period in the future. Evidence was also presented as to the value of appellant Cotton’s automobile, driven by appellant at the time of the accident. The appellee presented no evidence of its own. The jury found appellee 70% negligent and appellant Hope 30% negligent, assessing her damages at $200,000 and appellant Cotton’s damages at $1,500. The trial court’s order on the appellee’s motion for new trial stated that the jury’s verdict was excessive “based on the evidence.”

We agree with the appellant that it was error to grant the motion for new trial. A party áttacking a verdict as excessive “has the burden of showing it is unsupported by the evidence or that the jury was influenced by passion or prejudice.” Bould v. Touchette, 349 So.2d 1181, 1184 (Fla. 1977). Accord Corbett v. Seaboard Coastline R. Co., 375 So.2d 34 (Fla.3d DCA 1979). There was ample evidence demonstrating appellant Hope’s injuries were permanent. The trial judge did not find and the appel-lee does not argue that the jury was influenced by passion, prejudice or matters outside the record. Thus, the order for new trial was erroneous. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980), is not on point. There, the Supreme Court reversed this court’s decision which had reversed the trial court’s order directing a new trial on the issue of damages. However, the trial court had cited more than excessiveness of the verdict “based' on the evidence” in ordering a new trial. The order stated that the jury had considered matters outside of the record and that the plaintiff’s counsel had made an improper “Golden Rule” argument to the jury in closing. In cases such as Baptist Memorial, supra, appellate courts are not to reverse a trial court’s order for a new trial absent an abuse of discretion.

Reversed with instructions that the jury’s verdict be reinstated.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.

      . The order did not state why the court considered the evidence on damages excessive. If it was bottomed on a belief that medical testimony was essential to support a finding of-permanent injury, it was clearly erroneous. The Florida Supreme Court has recently held that expert medical testimony is not a prerequisite to the introduction of mortality tables and the giving of a jury instruction on future damages. Sullivan v. Price, 386 So.2d 241 (Fla. 1980).


author: MOORE, Judge.

text:
    POLICE PENSION BOARD, CITY OF HOLLYWOOD, Petitioner, v. John GAINES, Respondent.
    Nos. 79-2028, 79-2035.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1980.
    Rehearing Denied Nov. 21, 1980.
    -,, , „ „ t n „ ,T . H. Cypen of Gypen & Nevins, Miami Beach, for petitioner.
    William Rodriguez of Panza & O’Donnell, Port Lauderdale, for respondent.
   MOORE, Judge.

This case involves a petition for writ of certiorari in which the petitioner, The Police Pension Board of the City of Hollywood (Board), seeks our writ quashing an order of the circuit court acting in its review capacity. 'We deny certiorari.

The respondent, John Gaines, filed an application with the Board for permanent disability pension benefits as the result of injuries incurred in the line of duty. The Board denied his application and an appeal was lodged in the circuit court. The court reversed the Board’s decision, finding that it was not supported by competent substantial evidence and that it did not comply with the essential requirements of law. The Board was ordered to grant the respondent’s application for a disability pension because he was permanently incapacitated for regular and continuous duty as a police officer.

The issue before us is whether the circuit court, in its appellate capacity, acted in accordance with the essential requirements of law and afforded the Board due process of law. See, City of Winter Park v. Jones, No. 79-1803 (Fla. 5th DCA October 1, 1980). The Board contends that the court departed from the essential requirements of law by reweighing the evidence and by adopting, as controlling precedent, the decision in Board of Trustees v. Sistrunk, 310 So.2d 405 (Fla. 3rd DCA 1975). We disagree.

After undergoing surgery for a herniated disc in his back, Gaines was employed by the City of Hollywood as a police officer. He served several years during which he incurred new injuries to his back and he applied for permanent disability benefits, contending that the new injuries caused his permanent disability. A three member medical board found Gaines “totally and permanently disabled with respect to the job description” and further found that he suffered “an aggravation of a pre-existing condition, estimated to be 10% related to new trauma and 90% secondary to trauma sustained before becoming a member of the Hollywood Police Department.” A fourth doctor could not determine the relative percentages of causation but did determine that Gaines “cannot return to street duty as a patrolman now or ever”. In pertinent part he reported:

[B]y history the patient had been doing quite well prior to his initial subsequent injuries which occurred in the line of duty. The initial injury and subsequent injuries caused progressive problems in his back warranting back surgery. I feel that it is impossible medically to determine specifically, e. g. of ninety percent (90%) versus ten percent (10%), fifty percent (50%) versus fifty percent (50%) of how much of the patient’s problem is due to what was present prior to him being present on the Hollywood Police Force and what occurred since. I can definitely state that it is within reasonable medical probability that if the patient had not sustained the injuries that he sustained while working on the Hollywood Police Force he would be in a position today to continue his normal activities and would not have required surgery that he did in fact require. (Emphasis added).

The pension act of the City of Hollywood does not provide for any consideration of the aggravation of pre-existing physical injuries as determinative of the issue of permanent disability. The act does provide that any police officer who received a medically substantiated, service connected injury, disease or disability, which permanently incapacitates him, shall be entitled to a disability pension. After considering the above evidence, and the criteria for pension disability, the Board denied Gaines’ application for pension, finding his disability to be neither service connected nor total.

As in Sistrunk, Id., we hold that since the pension act made no provision for pre-existing conditions, and since there was no substantial competent evidence that Gaines would have had the permanent disability in the absence of the injuries incurred in the line of duty, the circuit court was eminently correct. It is obvious that the court did not reweigh the evidence. Rather, it explicitly found a total lack of evidence to support the Board’s decision. It was undisputed that Gaines was permanently disabled and that prior to the trauma which he suffered in the line of duty he was able to perform his duties. The sole issue, therefore, was the legal effect of his pre-existing condition. That was a matter of law and Sistrunk, Id., was correctly applied.

The Board’s reliance on City of North Miami Beach v. Flora, 315 So.2d 12 (Fla. 3rd DCA 1975) is misplaced because Flora is distinguishable. Flora was apparently employed pursuant to a contract which required that total disability must be caused by an in-service incident. There was evidence that Flora’s disability was caused by a back injury he had received in the Army and not by the aggravation to the injury. Notwithstanding these distinguishing characteristics, we acknowledge a degree of conflict between Flora and Sistrunk. To the extent that they differ we hold that Sis-trunk presents the better view.

The Board’s final argument is that Gaines was not totally disabled because there was evidence that he could perform desk duties. This position is refuted by the evidence that he was terminated from all duties on the day his disability application was denied. An employing authority which terminates an employee because of a disability is estopped from contending that the disability is not total. See, Nuce v. Board of Trustees, 246 So.2d 610 (Fla. 3rd DCA 1971). But cf.: Shepard v. Dept. of Admin., Div. of Retirement, 361 So.2d 208 (Fla. 1st DCA 1978) (determining total disability requirements under the Florida Retirement System).

Accordingly, the circuit court did not depart from the essential requirements of law. The petition for writ of certiorari is denied.

CERTIORARI DENIED.

DOWNEY and BERANEK, JJ. concur.


text:
    OHIO CASUALTY GROUP, Appellant, v. James C. PARRISH, Jr., Appellee.
    No. 79-2139.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Jones & Foster, West Palm Beach, for appellant.
    Highsmith & Strauss and Shelby Hi-ghsmith, Miami, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We review the trial court’s $276,250 attorneys fee award.

Previously, we remanded to the trial court for rendition of the fee judgment now appealed, and that order has been affirmed. Ohio Casualty Group v. Parrish, 338 So.2d 910 (Fla. 3d DCA 1976), aff’d 350 So.2d 466 (Fla.1977).

We hold that the trial court properly awarded fees in the instant ease, and that, based on our review of testimony and other evidence adduced below, the award was not so excessive as to constitute an abuse of discretion on the part of the trial court. Thus, we affirm.

Affirmed.


author: BASKIN, Judge.

text:
    Marc Leroy HOLLIDAY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-928.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.

      Roy E. Black and Frank C. Furci, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor, Asst. Atty. Gen., Miami, for appellee.
    Before SCHWARTZ and BASKIN', JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

Defendant appeals his conviction and sentence for assault, a lesser included offense of the original charge of sexual battery. We reverse because the trial court committed error in certain evidentiary rulings.

Melinda Mason, a fifteen-year old runaway, testified at trial that defendant Holli-day, a former police officer, picked her up in his van as she was hitchhiking in Miami, drove her to his houseboat and raped her. Miss Mason testified that defendant Holli-day hit her all over her body and that she screamed for at least fifteen minutes.

Miss Mason’s testimony disclosed that she had run away many times and had been admitted to a psychiatric hospital after taking an overdose of medication. She was hospitalized sometime before the alleged rape. She told her doctors that she was a liar and liked to make things up. The dockmaster, whose boat was five feet away at the time of the offense, testified that he was home on his boat and heard no unusual noises. His wife and another resident of the marina also testified they heard nothing unusual.

Defendant’s first issue on appeal questions the testimony at trial of Dr. Phillips, Miss Mason’s psychiatrist. The doctor testified that Miss Mason told him she had been raped, and that, in his opinion, Miss Mason was not a pathological liar. Defendant contends Dr. Phillips’ opinion was inadmissible.

We agree that the trial court committed error in permitting her psychiatrist to testify that Miss Mason was not a pathological liar. The statement was the doctor’s personal opinion, and its admission as evidence was a clear invasion of the province of the jury. Lamazares v. Valdez, 353 So.2d 1257 (Fla. 3d DCA 1978).

Next, defendant contends that the trial court erred in permitting the examining physician, Dr. Thresher, to recount the victim’s version of the event. The prosecutor asked Dr. Thresher:

Did you specifically ask her whether or not the person with whom she had sex-the person that was involved in the rape-had ejaculated?
Did she state to you that the alleged assault-as part of your questioning her-occurred at approximately ten?

We agree that Dr. Thresher’s testimony improperly bolstered Miss Mason’s testimony by corroborating her testimony at trial through the admission of her prior consistent statements. Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977). See also Brown v. Seaboard Airline Railroad Co., 434 F.2d 1101 (5th Cir. 1970). The prior consistent statements elicited were hearsay and did not fall within any exception to the hearsay rule.

Next, defendant argues the trial court erred in refusing to admit defendant’s medical records into evidence. His argument has merit.

After the admission into evidence of blood-stained bedsheets and pillow cases taken from the houseboat, the state called as a witness a crime laboratory technician, who testified that the blood could have been either the blood of Melinda Mason or of the defendant, Mark Holliday. In response, defendant called the custodian of records at Hialeah Hospital as a witness to testify that defendant Holliday had been treated for a chronic duodenal ulcer. Although the state stipulated to the authenticity of the records, it objected on the ground they were not relevant. The court sustained the state’s objection, holding that although the medical records disclosed defendant would continue to bleed subsequent to his discharge from the hospital in 1977, that evidence was inadmissible absent proof that the bleeding continued until the time of the alleged rape.

The trial court erred in ruling that defendant’s medical problem occurred too long before the offense to be relevant evidence at trial. Remoteness of time relates to the weight rather than the admissibility of evidence, unless so far removed from the event as to deprive the circumstances of any evidentiary value. Hopkins v. McClure, 45 So.2d 656 (Fla.1950). See generally Clark v. State, 266 So.2d 687 (Fla. 1st DCA 1972); Crosby v. State, 237 So.2d 286 (Fla. 2d DCA 1970).

Defendant also challenges the prosecutor’s statement in closing argument:

The unfortunate thing is, when it all comes down and you go in to reach your verdict, the real question is: This is a one-on-one situation. This is Marc Hol-liday versus Melinda Mason. She took the stand and she told you what happened.

He cites the trial court’s refusal to grant a mistrial as error.

Although we strongly disapprove of improper comment on any defendant’s exercise of his right to remain silent, we do not believe the comment in this case reached that level. The comment here is sustainable as a comment on the evidence; nevertheless, we caution counsel to avoid treading such dangerous ground.

In conclusion, we hold that the evidentia-ry rulings by the trial court denied defendant a fair trial and constituted reversible error. We reverse and remand for a new trial.


text:
    In re the ESTATE of Eddie JOHNSON, Deceased. Rosetta WILLIAMS, Appellant, v. Irene JOHNSON, Appellee. Irene JOHNSON, Appellant, v. Rosetta WILLIAMS, Appellee.
    Nos. 79-510/T4-436, 80-405.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.

      George C. Kelley, III, Apopka, for appellant.
    Steven C. Burrage, of Robert D. Melton, P. A., Orlando, for appellee.
   PER CURIAM.

In this consolidated appeal, a judgment in a probate case is challenged and an order setting aside the judgment is also challenged. We affirm the order setting aside the judgment and remand the matter to the trial court for the appropriate further proceedings. The appeal from the judgment is moot and therefore is dismissed.

IT IS SO ORDERED.

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


author: SHARP, Judge.

text:
    BUTLER PLAZA, INC., a Florida Corporation, now known as Gulfside Development Corporation, Appellant/Cross Appellee, v. ALLEN TROVILLION, INC., a Florida Corporation, Appellee/Cross Appellant.
    No. 79-1594/T4-672.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant/cross appellee.
    Richard A. Leigh, Orlando, for ap-pellee/cross appellant.
   SHARP, Judge.

Butler Plaza, Inc., the appellant, retained Allen Trovillion, Inc., the appellee, to build a shopping center. As general contractor, Trovillion. performed work outside of the scope of the parties’ written contract. Tro-villion sued Butler to obtain payment for the extra work, plus interest. Butler counterclaimed for defective work on the contract work.

After a non-jury trial, the court awarded damages to both parties, and it allowed Trovillion interest on its awards from December 15,1972 for work done on the Wool-co store and from January 1, 1973 for work done on a manhole referred to as “Manhole D-13.” Butler appealed and Trovillion cross-appealed. We affirm the damages award to each, because the record adequately supports the lower court’s judgment. However, the awards of interest to Trovil-lion were improperly calculated from the dates of completion.

In a contract action, it is proper to award interest from the date the debt was due. Bryan & Sons Corp. v. Klefstad, 265 So.2d 382 (Fla. 4th DCA 1972); Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955). This rule presupposes there is a liquidated amount owing at a specific time. Payment from Butler to Trovillion for the work performed pursuant to their written contract was “due” after the work was complete, and after a payment request (certified by the architect) was submitted to Butler. Similarly, payment for work done beyond the scope of the written contract was due after it was completed and after demand or request for payment by Trovil-lion was made. See Norin Mortgage Company v. Wasco, Inc., 343 So.2d 940 (Fla. 2d DCA 1977). For “extra” contract work, particularly where no set amount was agreed to by the parties, completion of the work alone could not make the sums “due” because the obligor (here Butler) had no idea what amount to pay, nor when, absent a demand or request for payment.

The extra work done on the Woolco store was completed on December 15, 1972, but no demand for payment was made until May 1, 1974. The extra work on manhole D-13 was completed on January 1, 1973, but no demand for payment was made until October 2, 1973. Interest should only run from the dates of demand. Accordingly, the interest portion of the judgment is reversed, and this cause is remanded to the trial court for the purpose of recalculating the award of interest in a manner consistent with this opinion.

AFFIRMED in part and REMANDED.

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

      . U.S. Fidelity & Guaranty Co. v. Darden, 338 So.2d 37 (Fla. 3d DCA 1976); Davis Parks, Inc. v. Poole Engineering Co. of Ft. Walton Beach, 255 So.2d 713 (Fla. 1st DCA 1971).

      . 17A C.J.S. Contracts § 371(8) (1963); 13 Am. Jur.2d Building & Construction Contracts § 18 (1964). See Moon v. Wilson, 100 Fla. 791, 130 So. 25 (1930); 11 Fla.Jur.2d Contracts § 199 (1979).


text:
    L. Melvin TUCKER, Appellant, v. DIANNE ELECTRIC, INC., Appellee.
    No. 79-153.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.

      Blumenthal & Schwartz, P. A., Titusville, for appellant.
    Gary F. Large, Titusville, for appellee.
   SHARP, Judge.

Tucker, a New Hampshire resident, appeals from the trial court’s denial of his motion to set aside its final judgment for damages against him (totaling $3,973.40), which was based on a default. He claims the judgment is void because he was not subject to the jurisdiction of the Florida courts under any “Long-Arm” statute, and he was not personally served by process in Florida. We agree, and accordingly, we reverse this matter for further proceedings.

A judgment which is entered against a party without personal jurisdiction over that party can be collaterally attacked at any time. McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979); Craven v. J. M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969). A motion to set aside a final judgment entered after default pursuant to Florida Rule of Civil Procedure 1.540(b), is an appropriate way to challenge such a “void” judgment. Parish Mortgage Corporation v. Davis, 251 So.2d 342 (Fla. 3d DCA), cert. denied 254 So.2d 789 (Fla.1971).

Tucker filed a motion to quash service on January 26, 1978. The court entered two different orders denying Tucker’s motion to quash: one dated May 22, 1978 and one dated November 22, 1978. Both ordered Tucker to file pleadings within 20 days. Tucker filed a motion for rehearing on November 27, 1978, but he filed no other pleadings. The plaintiff moved for a default judgment on March 19, 1978, which the court granted on May 10, 1978.

Tucker did not take interlocutory appeals from the denials of his motions to quash. Therefore the issue on this appeal is whether the record, at the time the court last denied the motion to quash on November 22, 1978, established a sufficient basis for obtaining personal jurisdiction over Tucker under one of Florida’s applicable “Long-Arm” statutes.

If a plaintiff fails to allege a sufficient jurisdictional basis to acquire personal jurisdiction over a non-resident defendant, the defendant may raise the jurisdictional issue by a simple motion to quash. Or, if the complaint is sufficient, the defendant may challenge the jurisdictional facts by filing affidavits and proofs. Then the plaintiff must counter with affidavits and other proofs to make a prima facie showing that the court has jurisdiction. Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977); Young v. Young, 382 So.2d 355 (Fla. 5th DCA 1980).

Tucker’s first motion to quash should have been granted whether jurisdiction was claimed under section 48.071 or 48.193 because the record failed to show proper service of process on Tucker under either statute. Section 48.193 requires service by a sheriff in Tucker’s state, pursuant to section 48.194. Service under section 48.071 requires proof that copies of the process were sent by registered or certified mail to the defendant. On August 25, 1978, the plaintiff belatedly filed the proof of service pursuant to section 48.071; but has not sought to complete service pursuant to section 48.193.

Dianne Electric’s complaint alleged that Tucker owns a fishing trawler named the Lynne Ellen (also known as the Devil Fish) which arrived in Port Canaveral for repairs. George Joyce, as Tucker’s “agent,” retained the plaintiff to do electrical work. The work was completed in January of 1978, and the plaintiff was not paid. George Joyce was served as Tucker’s “business agent.” By November 22, 1978, Tucker filed proofs challenging the plaintiff’s alleged jurisdictional facts. In an affidavit, George Joyce denied that he was the business manager for Tucker or the Lynne Ellen. In response to interrogatories, he denied he was the captain of the Lynne Ellen when the work was contracted for and performed, or that Tucker authorized him to have the work done.

The plaintiff filed counter proofs consisting of an affidavit alleging that George Joyce engaged the plaintiff to perform the repairs and that he represented he was “in charge” of the Lynne Ellen. The president of the plaintiff stated in his deposition on file that he talked with Tucker in January 1978. aboard the Lynne Ellen. Tucker told him Tucker was the owner, Joyce was the captain, and Tucker was aware that Dianne Electric was doing repair work on his boat.

This status of the record would have been enough to establish jurisdiction over Tucker, under section 48.193(l)(g) had service been accomplished under section 48.194. There was a sufficient showing that Tucker came to Florida and engaged the plaintiff to perform repair service on his fishing boat. His failure to pay when the work was complete was a breach of contract in this state and the suit clearly arose out of that breach of contract. However the record fails to show that service of process on Tucker was ever accomplished pursuant to section 48.194. Strict compliance with the steps outlined in the statutes for obtaining personal jurisdiction over non-residents not personally served in this state is required. McAlice v. Kirsch, Parish Mortgage Corporation v. Davis.

The “reach” of section 48.071 is considerably “shorter” than section 48.193. This section requires allegations and proofs, if challenged, that the person sought to be served “engages in business in this state.” Process may then be served “on the person who is in charge of any business in which the defendant is engaged within this state at the time of service, including agents soliciting orders for goods, wares, merchandise, or services.” § 48.071, Fla.Stat. (1979). The complaint in this case fails to allege that the defendant is engaged in any business in Florida. As such, it was open to jurisdictional attack by the defendant’s motion to quash. The defendant further challenged the jurisdictional basis under section 48.071 through Joyce’s affidavit denying he was Tucker’s agent in charge of Tucker’s business at the time of service. The plaintiff’s counter proofs completely fail to meet these issues. Because the complaint and the plaintiff’s counter proofs fail to establish a prima facie basis for personal jurisdiction over Tucker pursuant to section 48.071, the plaintiff’s motion to quash should have been granted. Hyco Mfg. Co. v. Rotex Intern. Corp., 355 So.2d 471 (Fla. 3d DCA 1978).

For the reasons stated, the order of the trial court denying Tucker’s motion to set aside the judgment is reversed, and this cause is remanded with direction that the judgment and default be set aside and the service quashed, without prejudice to the plaintiff to proceed to obtain service on the defendant in the manner provided by law.

REVERSED and REMANDED.

ORFINGER and COWART, JJ., concur.

      . The appellant labeled this pleading a “Motion to Dismiss and Motion to Set Aside Default,” but for purposes of this appeal, we ruled that it should be treated as a motion for relief from a final judgment pursuant to Florida Rule of Civil Procedure 1.540(b).

      . Fla.R.App.P. 9.I30(a)(3)(C)(i).

      . §§ 48.071 and 48.193, Fla.Stat. (1979).

      . Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977); First National Bank of Kissimmee v. C. M. Dunham, 342 So.2d 1021 (Fla. 4th DCA 1977).


text:
    James A. TURNER, Appellant, v. Charles H. ALLEN and George J. Allen, Appellees.
    No. 79-447.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    Ann G. Paschall, Brooksville, for appellant.
    Jeannette M. Haag, Inverness, for appel-lees.
   SHARP, Judge.

Turner (a defendant below) appeals from the trial court’s denial of his motion to set aside a default and final judgment. He argues the default was erroneously entered against him without notice by the clerk, pursuant to Florida Rules of Civil Procedure 1.500(a), because he had filed pleadings in the case. Turner contends the final judgment was also erroneously entered against him without notice because it involved the determination of unliquidated damages. We agree on both points, and reverse.

The plaintiffs below (the Allens) sued Turner and Jones for the negligent loss or wrongful conversion of the Allens’ 37 foot boat named the Marel III. Turner filed a motion to dismiss which was granted in part. The plaintiffs filed two amended complaints. Turner’s attorney withdrew, and the attorneys for the parties signed a written stipulation giving Turner a 10 days stay of the proceedings so he could obtain a new attorney. The court approved the stipulation on May 3, 1979. On May 15, 1979, the plaintiffs filed a motion for default against Turner, without notice, and the clerk entered a default against Turner. Based on affidavits to establish the value of the Marel III and other items of damage suffered by the plaintiffs, the court entered a final judgment against the defendant for $11,740.57. No notice was given to the appellant of the Allens’ application for the final judgment.

The power of the clerk to enter a default against a party is set forth in Florida Rules of Civil Procedure 1.500(a). It provides:

When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper. (Emphasis supplied).

If a party files pleadings as Turner did in this case (a motion to dismiss in response to the original complaint and a stipulation for withdrawal of counsel), Rule 1.500(a) is no longer applicable. The default entered by the clerk after the defendant had served and filed pleadings in the case was erroneous, and the court erred by not vacating the default and final judgment. Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974).

The plaintiffs argue that Turner was entitled to no relief from the default and the final judgment as well, because he failed to allege and establish “excusable neglect” and the existence of a “meritorious defense.” Empire Electric Company v. R. J. Hunt Construction Company, 264 So.2d 114 (Fla. 4th DCA 1972). Under Florida’s prior Rules of Court, defaults and judgments entered by clerks without express compliance with the rules were considered null and void. Kroier v. Kroier, 95 Fla. 865, 116 So. 753 (1928); Pan American World Airways, Inc. v. Gregory, 96 So.2d 669 (Fla. 1957); Albert M. Travis Co. v. Atlantic Coast Line R. Co., 102 Fla. 1117, 136 So. 884 (1931). There is no indication in the current Rules that this rule of law was changed. Therefore it is not necessary for a party seeking to set aside a default entered by the clerk contrary to Rule 1.500(a) to assert excusable neglect or the existence of a meritorious defense. Mo-Con Properties, Inc., 289 So.2d at 745. See also Freedman v. Freedman, 235 So.2d 544 (Fla. 3d DCA 1970).

Even if the default had been properly entered against Turner he was entitled to receive notice of the order setting a hearing on damages prior to entry of a final judgment because the claim involved unliquidat-ed damages. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). Florida Rules of Civil Procedure 1.440(c) expressly requires that notice be given under these circumstances:

In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).

For the reasons stated above, the order denying relief from the final judgment and default is set aside and reversed and the cause is remanded.

REVERSED and REMANDED.

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

      . The motion was filed pursuant to Florida Rules of Civil Procedure 1.500(d) and 1.540(b).

      . A separate default was entered against Jones on December 11, 1978.


author: COWART, Judge.

text:
    Valerie FLOYD, Appellant, v. The HOUSING AUTHORITY OF the CITY OF ORLANDO, Florida, Appellee.
    No. 79-506.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    James C. Hauser of Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
    Marie P. Evans of Anderson & Rush, Orlando, for appellee.
   COWART, Judge.

Appellant and other tenants first appealed a partial summary judgment giving the appellee Housing Authority possession of leased premises. While that appeal was pending in this court the appealed judgment was stayed on the condition that the appellant pay her rent into the court registry. The appellant failed to pay as required and defended her failure on the ground that under her lease she was entitled to a rent reduction because of certain facts she considered a hardship. The trial court held against her contentions, vacated the stay order and entered a final judgment of eviction. This second appeal was taken from these later acts of the trial court.

In the meantime, this court has disposed of the first appeal by reversing the partial summary judgment and directing the eviction complaint be dismissed without prejudice. See Quinn v. Housing Authority of the City of Orlando, Florida, 385 So.2d 1167 (Fla. 5th DCA 1980).

The propriety of the trial court’s order vacating the order staying the Housing Authority’s right to possession pending the first appeal is now moot and because the final judgment of eviction is based on the defective eviction complaint and on the reversed partial summary judgment, it must also be

REVERSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    HOUSING INVESTMENT CORPORATION of Florida, S & H Investment and Development Corporation and Samuel Hasner for the use and benefit of Continental Insurance Company, Appellants, v. Kenneth CARRIS, Marilyn Carris, Kenneth Baker, Carris Plumbing, Inc., Southern Plumbing, Inc., and Allstate Insurance Company, Appellees.
    No. 80-97.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    Robert A. Hannah of Pitts, Eubanks & Ross, P.A., Orlando, for appellants.
    David J. Fuller, Orlando, for appellees, Kenneth Carris and Marilyn Carris.
    Marón E. Lovell, Orlando, for appellee, Kenneth Baker.
    Scott J. Johnson of Maguire, Voorhis & Wells, P.A., Orlando, for appellees, Carris Plumbing, Inc. and Allstate Ins. Co.
   COWART, Judge.

Appellee Carris Plumbing, Inc., as contractor, contracted to do plumbing work for appellant S & H Investment and Development Corporation, as owner. The contract provided: “Owner to carry fire, tornado, and other necessary insurance.” The owner insured with Continental Insurance Company. Fire, allegedly caused by the contractor’s negligence, damaged the insured property. Continental paid the loss to the owner who brought this subrogation suit for Continental’s benefit against the contractor for negligent performance. From a summary judgment in favor of the contractor, the owner appeals. We affirm.

In support of its decision, the trial court cited Smith v. Ryan, 142 So.2d 139 (Fla.2d DCA 1962), a similar case but one where the contract provision was in more detail requiring the owner to not only carry insurance but to have the contractor named as a co-insured. Appellants attempt to distinguish Smith because the contract language there is not identical with the language here. We perceive no meaningful difference in the intent of the contracting parties in either case. In both cases the parties foresaw the possibility of loss by fire arising from construction work and in both cases the contract provision was for the purpose of providing protection from that risk by use of insurance.

Likewise, the trial court relied on Weems v. Nanticoke Homes Inc., 37 Md.App. 544, 378 A.2d 190 (1977), which appellants would distinguish because the contract wording, again, is not identical with the contract in this case. The Weems contract required “insurance in the proper amount to cover any and all losses . . ..” We construe the words “necessary insurance” in this case to mean “necessary” to protect the contracting parties from loss on account of the hazards enumerated and to be analogous to the Weems contract language requiring an amount of insurance necessary to protect the contracting parties from any and all loss.

Appellants say the trial court’s disposition is inconsistent with Jackson v. Florida Weathermakers, 55 So.2d 575 (Fla.1951). In Weathermakers the contractor, Weather-makers, agreed to perform work in Jackson’s store and to procure “public liability insurance.” A store patron sued the contractor and store for injuries sustained as the result of a dangerous condition allegedly resulting from the contract work. A jury found the patron’s injury to have resulted from the separate and independent negligence of the store and found the contractor free of negligence. On appeal, on rehearing, the court considered the contract insurance provision to be one of indemnification and to indemnify only against the negligence of the indemnitor (the contractor) and not that of the indemnitee (the store). Since the contractor had been exonerated of negligence by the jury it was held to be immaterial whether or not the insurance had been procured.

In this case, as in Smith and Weems, we do not consider the fire insurance contract provision to be a contract for indemnification, with the resultant shift of risk to one of the parties, but to be a simple contract provision for which the contractor bargained for the purpose of shifting the risk from the parties onto an insurer.

The owner had, as all owners always have, the right to insure his own property for his own exclusive benefit without the consent or agreement of the contractor or anyone else. Therefore, the only reasonably conceivable purpose of a construction contract provision placing an obligation on the owner to carry insurance is to benefit the contractor by providing him protection and exculpation from risk of liability for the insured loss. Although the contractor was not named as an insured, nor does the contract require this to be done, the contract insurance provision is valuable to the contractor for the very purpose this case exemplifies and serves to limit the owner to insurance proceeds even though the loss was caused by the negligence of the contractor.

The trial court correctly construed the contract provisions to accomplish this result. The summary judgment is

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ„ concur.

      . Other cases have recently reached this same conclusion. See Tuxedo Plumbing & Heating Company, Inc. v. Lie-Nielsen, 245 Ga. 27, 262 S.E.2d 794 (1980); Morsches Lumber, Inc. v. Probst, 388 N.E.2d 284 (Ind. 3d Ct.App. 1979).


text:
    Mary Ellen JOHNSON, Appellant, v. JOHNSON CHRYSLER/PLYMOUTH, INC., f/k/a Al Johnson Motors, Inc. and Al Johnson, Appellees.
    No. 79-938.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.

      Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellant.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee A1 Johnson.
   PER CURIAM.

The trial court dismissed appellant’s claim on a promissory note with prejudice on the grounds that the claim was barred by the statute of limitations. Ordinarily, the statute of limitations should be set out as an affirmative defense, although the defense may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint. Roehner v. Atlantic Coast Development Corporation, 353 So.2d 925 (Fla. 4th DCA 1978). In this case, we do not believe appellant’s pleadings revealed on their face that her claim was barred. In our view the pleadings sufficiently alleged the existence of a valid note, an agreement to extend the due date on the note, and a failure to pay the note within the extended period. Any matters going to the validity of the note or the extension thereof should be affirmatively set out as defenses to the claim.

Accordingly, this cause is reversed and remanded for further proceedings in accord herewith.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: LETTS, Chief Judge.

text:
    CHELSEA TITLE & GUARANTY COMPANY, a corporation, and Martin County Title Company, Inc., a corporation, Appellants, v. Virginia A. TURNER, Individually and as Executrix of the Estate of Carl H. Turner, Deceased, et al., Appellees.
    No. 79-528.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.

      William C. Owen, Jr., of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellants.
    Walter M. Meginniss of Crary, Buchanan & Meginniss, Stuart, for appellee Turner.
   LETTS, Chief Judge.

This appeal protests the mathematics of a judgment calculating the buy out proceeds of a sale by one stockholder to another. It also protests an interest award. We reverse on both issues.

We will not embark on a long dissertation of the facts of this case and intend only to amend the mathematics. The trial court awarded a bottom line figure, for the sale of corporate stock by the selling stockholder, in the sum of $37,500. In so doing the court found three things:

(1) That the seller of 50% of the stock in a corporation to the other 50% stockholder was entitled to one-half of the fair market value of the corporation;
(2) That the fair market value of the entire corporation was $75,000; and
(3) That the same seller personally owed, and was required to pay, the corporation $10,000 and then as half owner thereof be credited for half of that sum owed.

We find this language plain and unambiguous. Therefore, the seller shall receive $37,500 plus $5,000 or a total of $42,500. In turn said seller must account for the $10,-000 owed, so that the net receipt from the sale shall be $32,500, not $37,500 as calculated by the trial court.

The purchasing shareholder also contends that the trial court erred in awarding the seller a return of 10% per annum on the sum awarded. A person to whom a debt is owed is entitled not only to the payment of the principal of the debt but also to interest at the lawful rate. Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955); Vacation Prizes, Inc. v. City National Bank of Miami Beach, 227 So.2d 352 (Fla. 2d DCA 1969). Under Section 687.01, Florida Statutes (1977), interest shall be assessed at the rate of 6% per annum.

Accordingly, we reverse the trial court amending the final judgment to award prejudgment interest to the appellees at a rate of 6%.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

BERANEK and HURLEY, JJ., concur.


text:
    Mark H. FELDMAN, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 80-58.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.

      Joel L. Kirschbaum of Esler & Kirsch-baum, P. A., Fort Lauderdale, for appellant.
    H. Reynolds Sampson, General Counsel, and Margaret-Ray Kemper, Tallahassee, for appellee.
   PER CURIAM.

This appeal centers on whether the Department of Transportation properly overruled a determination by hearing officer that the petitioner was entitled to certain moving expenses when he was forced to relocate his medical office because of nearby road improvements made by the Department in Broward County. Under the Department’s regulations the petitioner was not entitled to moving expenses if he maintained a “second office” in the county which second office was not affected by the road improvements.

At issue before the hearing officer was whether petitioner maintained a second office. The evidence revealed that at one time the petitioner had maintained a different office within Broward County but had sold this office to his former partner well before the road project commenced. Under his agreement with the former partner, the appellant still maintained some slight contacts with that office. However, the hearing officer found that such contracts did not constitute a second office.

Obviously at least one of the purposes of the regulation in question is to deny moving expenses to someone who has another existing office available if displaced by the Department’s road project. The hearing officer found, and there is evidence to support his finding, that the petitioner had no such “second office” available.'

Although Section 120.57(l)(b)(9), Florida Statutes (1979) allows the Department to reject or modify the conclusions of law of the hearing officer, it can only do so if a complete review of the record reveals that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Moreover, even if the Department does so find after review it must state its grounds for so finding “with particularity” which it did not do in the case now before us.

Appellee erroneously contends that the conclusion as to whether appellant maintained a second office is one of law. An affirmative finding would necessarily mean that appellant would not be entitled to certain moving expenses under the Department’s regulations.

A conclusion of law is one arrived at by the application of fixed rules of law. Ultimate facts are those found in that vaguely defined area lying between eviden-tiary facts on the one side and conclusions of law on the other and are the final resulting effects which are reached by the process of logical reasoning from the evidentiary facts. See generally 43 Words and Phrases, Ultimate Fact, pp. 4-14 (1969).

Here, there is no dispute as to the evidentiary facts concerning appellant’s connection with the other office. The only issue upon which the hearing officer and the Department differed was as to the effect to be given these evidentiary facts; thus the two differed in their resolution of the ultimate fact. That being so, in reviewing a finding of fact of the hearing officer, albeit a finding on the ultimate fact issue, the department reversed the decision of the hearing officer where there was some competent substantial evidence to support the hearing officer’s conclusion. This was improper even though we ourselves might have ruled in a manner contrary to the conclusion reached by the hearing officer.

Accordingly, this cause is reversed and remanded for reinstatement of the hearing officer’s findings.

REVERSED AND REMANDED.

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


author: OTT, Judge.

text:
    Robert H. MEADOWS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1110.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1980.

      Thomas J. Hanlon, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of attempted burglary and possession of burglary tools. We reverse the conviction as to both counts and order a new trial.

Appellant retained a Chicago attorney to represent him and, as required by Florida law, associated Mr. Gregg, a member of the Florida Bar. Trial was scheduled for March 27, 1979. Gregg appeared on that date and moved the court to permit him to withdraw, on the grounds that he had been unable to obtain any cooperation from the Chicago chief counsel and therefore had been unable to participate in the development of a defense. The court signed an order permitting Gregg to withdraw and trial was continued until April 3rd.

At the new time set for trial Gregg again appeared, as a personal favor to appellant, and requested a continuance because appellant had just fired his Chicago attorney for failure to prepare for trial, and needed time to obtain new counsel. The court denied a continuance and instead informed Gregg that his motion to withdraw, which previously had been granted, had been reconsidered and denied, so that Gregg was now counsel of record for appellant. Gregg, protested that he was totally unprepared for trial and, in addition, was due in another court on another case that morning. The court first ordered him to be ready to start selecting a jury at 9:30 that morning, but later relented and granted a continuance until the next morning so that Gregg would have an opportunity to take the depositions of eight prosecution witnesses. The next morning, having taken the depositions, Gregg again protested that he was unprepared for trial and requested a continuance, which was refused.

We believe that the court abused its discretion in forcing the case to immediate trial. While the court was understandably exasperated by a feeling that it (and probably defense counsel) was being manipulated by a “ring-wise” defendant, nevertheless the court also knew that Gregg had previously withdrawn from the case because he had not been permitted to assist in preparing a defense for the case, and that the out of state chief counsel had now been fired for failing to do so. Thus, on the morning set for trial the court knew that no one had prepared a defense for the accused. Under those circumstances, we believe that the court committed reversible error in ordering the case to trial without affording appellant a reasonable opportunity to prepare his defense. Lightsey v. State, 364 So.2d 72 (Fla.2d DCA 1978); Sumbry v. State, 310 So.2d 445 (Fla.2d DCA 1975).

Appellant also complains about the admission, over his objection, of certain evidence. Following his arrest at the scene of an attempt to break into a closed restaurant, appellant requested the police in writing to impound for safekeeping his automobile which was parked at a nearby motel. An inventory of the vehicle by the police turned up various burglary tools.

Shortly after he was associated into the case, Gregg served the State Attorney with a demand for all statements and other physical evidence intended for use in the trial. The state did not respond. At the trial, the state presented appellant’s written authorization to impound and search his vehicle and also moved the admission into evidence of various tools taken from his person and from his vehicle. Defense objection, on the grounds that the state had failed to give notice of such evidence within 15 days after demand, as required by Rule 3.220, Florida Rules of Criminal Procedure, was denied. The court refused to hold a hearing to determine whether appellant had been prejudiced by the withholding of such information, and instead summarily ordered the various exhibits into evidence.

We think that the court committed prejudicial error in refusing to hold the hearing required by Richardson v. State, 246 So.2d 771 (Fla.1971). Wilcox v. State, 367 So.2d 1020 (Fla.1979).

The judgment is reversed and the case is remanded to the court below for a new trial.

HOBSON, C. J., and RYDER, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Willie Leroy ROYAL, Appellant, v. STATE of Florida, Appellee.
    No. 79-2118.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1980.
    Thomas Sabella, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Willie Leroy Royal appeals a 15-year sentence for third-degree murder.

Subsequent to the entry of an order waiving juvenile jurisdiction, an information was filed in circuit court charging appellant with second-degree murder. After trial, the jury returned a verdict of guilty of murder in the third degree and the court set sentencing for September 13, 1979. Appellant filed a motion for a new trial, which motion was denied. Sentencing was continued until September 17 in order to have representatives of HRS present. On that date, the trial judge adjudicated appellant guilty of murder in the third degree and imposed a sentence of five years imprisonment. The following day, while appellant’s attorney was unavailable, appellant was brought before the court in the presence of the attorney who had assisted at trial. The court set aside the five-year sentence and imposed the maximum sentence of 15 years, explaining that either the sentence had been misunderstood or the court had been mistaken in imposing the five-year sentence.

On September 19, appellant’s trial counsel appeared before the court to be heard on the matter of resentencing. At that time appellant’s counsel made an oral motion to set aside the 15-year sentence. The court denied the motion and reimposed the 15-year sentence.

Florida Rule of Criminal Procedure 3.800 provides, (a) that a court may at any time correct an illegal sentence, and (b) that a court may reduce a legal sentence within certain time limits. There is no provision in the rules of criminal procedure for the subsequent enhancement of a legal sentence.

In view of the fact that the original five-year sentence was a legal sentence, the trial judge erred in resentencing appellant to 15 years imprisonment.

For the reasons stated, we hereby set aside the 15-year sentence and remand this cause with instructions for the trial judge to reinstate the original five-year sentence.

BOARDMAN and RYDER, JJ., concur.


author: DANAHY, Judge.

text:
    LOCH HAVEN HOMEOWNERS’ ASSOCIATION, INC., etc. et al., Appellants, v. Robert B. NELLE and Vicki Nelle, Appellees.
    No. 79-2212.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1980.

      Paul C. Zempel of Zempel & Denbo, Tarpon Springs, for appellants.
    William H. Walker, St. Petersburg, for appellees.
   DANAHY, Judge.

We are asked to decide whether the reservation by subdivision developers of the right to approve exceptions or variations with respect to restrictions placed by them on a residential subdivision renders those restrictions unenforceable by the subdivision lot owners inter sese. The trial judge in this case ruled that such a reserved power precludes enforceability by the developers’ grantees and entered a final judgment on the pleadings against subdivision lot owners who sought an injunction against an alleged violation of the restrictions by other lot owners. We disagree with the trial judge, and reverse.

The restrictions at issue here were placed on Loch Haven subdivision by a duly recorded instrument signed by the developers and entitled “Loch Haven-Restrictions.” They are comprehensive and detailed, ranging from minimum floor area to type of construction, from set-back requirements to placement of garbage containers, from size and finishing of garages to outdoor clothes drying limitations. Among others, the restrictions contain the following general provisions:

g. These covenants and restrictions are real covenants and restrictions and are to run with the land, and shall be binding on all parties and owners, and on all parties claiming under them ....
h. If any person, firm or corporation, or their heirs, successors or assigns, shall violate or attempt to violate any of the restrictions before their expiration, it shall be lawful for any other person or persons owning any part or parcel of any above described land to prosecute and proceeding [sic] at law or in equity against the person violating or attempting to violate any such covenant or restriction and to either prevent him or them from doing [sic] or to recover damages or other dues for such violation.
k. The Developer shall have the right and authority to approve exceptions or variations from these restrictions without notice or liability to the owners of other lots or any persons or authority whatsoever.

Our supreme court has adopted the general rule that restrictions as to use which are placed upon land by a common grantor for the benefit of all of the grantees of such common grantor, and which are part of a general scheme of development and improvement, are enforceable in equity by any remote grantee from the common grantor against any other grantee. Vetzel v. Brown, 86 So.2d 138 (Fla.1956). The essential ingredient of enforceability is the finding of the existence of a building scheme, which depends on the intent of the common grantor. 5 R. Powell, The Law of Real Property, ¶ 679 (1979). Courts initially viewed the reservation of a power to amend restrictions as negating the existence of a general scheme or plan of development and, accordingly, held that restrictions subject to such a reserved power are not enforceable by one remote grantee against another. E. g., Curronor Woods Property Owner’s Ass’n v. Driscoll, 106 Ohio App. 95, 153 N.E.2d 681 (1957). Two of our sister courts have adopted that view. Finehum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966); Ortega Company v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965). But cf. Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665 (Fla. 4th DCA 1974) (reserved power to amend elaborate restrictions is valid so long as it is exercised in a reasonable manner so as not to destroy the general scheme or plan of development).

The more modern judicial attitude-and the one we adopt-is that the reservation of the right to amend restrictions is only one factor to be considered in determining whether the grantor intended to establish a uniform plan of development, and that all language of the restrictions should be considered in arriving at the grantor’s intention. E. Sevier City Utility Dist. v. Wachovia Bank, 570 S.W.2d 850 (Tenn.1978); Hail v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962); Kreppel v. Tucker, 225 N.Y.S.2d 708 (Sup.1962); Goldberg v. Paul, 14 Misc.2d 988, 178 N.Y.S.2d 349 (Sup.1958); Reichman, Residential Private Governments: An Introductory Survey, 43 U.Chi.L.Rev. 253, 292 (1976); Annot., 51 A.L.R.3d 556, 646 (1973).

Reviewing the restrictions involved in the case before us, we find that an intent on the. part of the Loch Haven subdivision developers to establish a general plan or scheme of development is clearly reflected in the provisions that the restrictions are to be considered covenants running with the land and that any subdivision lot owner shall have the right to bring a proceeding against any person who violates any of the restrictions. Accordingly, we hold that the restrictions are enforceable by the subdivision owners among themselves notwithstanding the reserved power of the developers to approve exceptions or variations. We express no opinion as to the merits of this suit, only the opinion that appellants are entitled to remain in court at this stage of the litigation.

REVERSED AND REMANDED.

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


author: WENTWORTH, Judge.

text:
    Robert E. FOX, Appellant, v. W. S. BADCOCK CORPORATION, and American Mutual Liability Insurance Company, Appellees.
    No. RR-279.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.

      Robert 0. Stripling, Jr., of Avera & Stripling, Gainesville, for appellant.
    Charles Vocelle, of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appel-lees.
   WENTWORTH, Judge.

Appellant raises three points for review in his appeal from a workers’ compensation order. One point is raised on cross-appeal. We affirm except with respect to the cross - appeal.

Appellant suffered a compensable accident on November 18, 1974, resulting in a herniated lumbar disc. The carrier made temporary total disability payments from December of 1974 until August of 1975 when appellant reached maximum medical improvement. The carrier accepted appellant’s physician’s rating of 15% permanent partial disability based on physical impairment, and paid permanent disability compensation for this disability.

A claim for compensation was filed on November 4, 1976, alleging appellant was disabled in excess of 15% of the body as a whole as the result of his loss of wage earning capacity. The claim was denied because claimant had not sufficiently recovered from a non-industrial auto accident to ascertain whether he could compete in the open labor market. That order, dated March 29, 1977, was not appealed.

On February 15, 1979, a petition for modification of the March 1977 order was filed. After a hearing the judge of industrial claims entered the order now before us, finding appellant had sustained a 15% permanent partial disability to the body as a whole and awarding compensation for that, disability together with an attorney’s fee for securing the award. The judge specifically found that appellant had not made a genuine effort to return to gainful employment and therefore denied any benefits based on diminution of wage earning capacity.

Appellant asserts error in the findings (1) that appellant did not suffer a diminution in wage earning capacity, and (2) that the cost of a certain deposition was not a reasonably taxable cost, and contends (3) that the basis for the attorney’s fee was improperly limited. On cross-appeal the employer/carrier argues that the judge of industrial claims erred in awarding any attorney’s fees.

As to the first point raised by appellant, the record contains competent substantial evidence to support the judge’s finding that appellant’s work search was inadequate. The order is accordingly affirmed as to that point.

The expense of depositions may be taxed as costs when a claim is successfully prosecuted. Section 440.30, Florida Statutes. In this case the claimant was not successful in securing an award greater than that which was voluntarily accepted by the employer/carrier, and the deposition cost was properly rejected.

We find the point raised on cross-appeal requires reversal and moots appellant’s third issue, supra. In order to justify an award of attorney’s fees under the applicable statute, counsel must secure a benefit for his client. Thomas v. City of Vero Beach, 365 So.2d 133 (Fla.1979); Section 440.34(2), Florida Statutes (1979). Here counsel failed to secure any additional benefits or compensation for the claimant. Therefore, the award of attorney’s fees was improper. The award of compensation which had been paid would appear otherwise to be harmless error.

The order is accordingly affirmed except with respect to the award of attorney’s fees. The award of attorney’s fees is reversed.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Lamar CRUTCHFIELD, Appellant, v. STATE of Florida, Appellee.
    No. SS-295.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED. See State v. Daniels and Phillips, 389 So.2d 631 (Fla. 1980).

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    Daniel H. HINES, Appellant, v. David V. KEEN, Huey Porrier and Stonewall Insurance Co., Appellees.
    No. SS-395.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Charles L. Hoffman, Jr. of Shell, Fleming, Davis & Menge, Pensacola, for appellant.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees.
   WENTWORTH, Judge.

Daniel Hines, plaintiff in a suit arising from an automobile accident, appeals the trial court’s order granting summary judgment in favor of two of the defendants, David Keen and his insurer, Stonewall Insurance Company. The trial court determined as matter of law that ownership of the vehicle was transferred from Keen to co-defendant Huey Porrier before the accident. We reverse.

Hines was injured as a result of a hit and run accident in which he was struck by a vehicle registered to David Keen. Hines filed suit against Keen and his insurer, Stonewall Insurance Company, and against Huey Porrier who, Hines alleged, was the hit and run driver. In answer to the allegation that Stonewall Insurance Company was the insurer of the vehicle owned by Keen on October 13, the date of the accident, Keen stated that the “insurance company coverage is admitted ...” and in his cross-claim, directed against Stonewall Insurance, Keen alleged he had insurance coverage with Stonewall at the time of the accident. In answer to interrogatories, the insurance company stated Keen had advised it that the vehicle had been stolen and involved in the accident while in possession of the thief. But in his answers to interrogatories, Keen stated Porrier purchased the vehicle about a month before the accident by paying $50.00 down, owing a balance of $150.00; title was transferred, Keen stated, by executing the proper forms on the back of the certificate of title. However, at deposition Keen said he had sold the car to Steve Carroll; with Porrier’s help and transferred the title after receiving the $150.00 balance in December, 1978. In June, 1979, the Department of Highway Safety and Motor Vehicles indicated title was still in the name of David Keen. Porrier, at deposition, said he thought he had bought the car from Keen “around November” of 1978. Porrier stated that he was supposed to pay Keen the $150.00 balance, that he gave partial payments, and that before he paid the full amount he “sold” the car to a third party whom he identified as Carroll Strawberry and Keen signed the title directly over to Strawberry. Later in the deposition Porrier said he had started paying on the car before the October 13 accident. During the fall of 1978 Keen and Porrier lived together.

The question of whether and when a sale is actually consummated is of course a question of law to be determined from the evidentiary facts, and that issue may be proper for summary judgment by the court without a jury unless the facts or inferences are materially disputed. Hogan v. Keen, 349 So.2d 175 (Fla. 1st DCA 1977); Register v. Redding, 126 So.2d 289 (Fla. 1st DCA 1961). Also the retention of legal title to secure payment does not preclude a determination that beneficial ownership was transferred. McCall v. Garland, 371 So.2d 1080 (Fla. 4th DCA 1979). We conclude, however, that the trial court erred in relying on the latter principle to support summary judgment in this case. The pleadings and facts in evidence appear to us to be contradictory and susceptible of conflicting conclusions as to whether the actions by Keen and his alleged purchasers accomplished a transfer of ownership before the accident occurred.

The judgment is accordingly reversed and the cause remanded for further proceedings.

JOANOS, J, and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    SILVER SPRINGS SPORTSWEAR and Allstate Insurance Company, Appellants, v. Lucille MARLIN, Appellee.
    No. SS-453.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.

      Donna C. Wyatt, of Cooper & Rissman, Orlando, for appellants.
    Daniel L. Hightower and Steven H. Gray, of Hightower & Gray, Ocala, for appellee.
   PER CURIAM.

In this worker’s compensation appeal we find error and reverse the deputy commissioner’s award of compensation to the claimant’s husband for unskilled nursing services furnished by him to the claimant prior to the date of the claim, June 4, 1979. There was no request for nursing services as required as a prerequisite to recovery under Section 440.13(1), Florida Statutes (1977). Further, although the deputy commissioner’s order contains a finding that the carrier “either knew or should have known that the claimant was in need of attendance services from approximately the time of her [3rd] surgery which occurred in November, 1976,” we are unable to find competent substantial evidence to support this finding. On the contrary, we find that even the treating physician was unaware of the claimant’s need for unskilled nursing assistance until after the claim was filed; and the carrier’s first knowledge of such a need came when it received Doctor Cau-then’s letter of June 19, 1979.

The evidence relied upon by appel-lee, consisting of various medical and progress reports disclosing claimant’s neu-rogenic bladder and bowel dysfunctions, double vision, and inability to bear weight on her right leg, does not suffice to confer knowledge that the nature of claimant’s injuries required nursing services. Neither these reports nor the January, 1978 request by Dr. Cauthen for a wheelchair for the claimant disclose physical ailments or disabilities that would prevent the claimant from being able to care for herself without assistance other than that normally provided by family members. See Lance v. Witters Construction, 270 So.2d 4 (Fla.1972); City of Miami v. Brownlow, 9 F.C.R. 360 (1976) cert. denied 339 So.2d 1167 (Fla. 1976).

We find no error in the award of five hours of unskilled nursing service per day in that the services rendered by claimant’s husband, who quit his job so as to be able to care for his wife, went beyond those normally provided on a gratuitous basis by family members. See Craftmen’s Village v. Benach, 8 F.C.R. 372 (1974), cert. denied 302 So.2d 762 (Fla.1974); Edward L. Nezelek v. Terlizzese, 9 F.C.R: 328 (1975). Our determination that the deputy commissioner did not commit error in failing to award more than five hours of unskilled nursing services per day disposes of appellee’s cross-appeal.

AFFIRMED in part and REVERSED in part, with directions to the deputy commissioner to enter an amended order limiting recovery of unskilled nursing services to those services provided subsequent to the filing of the claim.

LARRY G. SMITH and SHIVERS, JJ., and MASON, ERNEST E., Associate Judge (Ret.), concur.


text:
    Edward WHITE, Appellant, v. PINEBREEZE FARMS, INC. and Florida Farm Bureau Insurance Company, Appellees.
    No. SS-476.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Wm. Wade Hampton, Gainesville, for appellant.
    R. Dennis Comfort, of Jones & Langdon, Gainesville, for appellees.
   PER CURIAM.

We affirm the order of the deputy commissioner holding that appellant was an independent contractor and therefore not eligible for workmen’s compensation benefits from appellees.

So affirming the deputy commissioner’s finding that appellant was an independent contractor at the time of his injury, we hold that the issue raised in the cross-appeal is moot.

LARRY G. SMITH and SHIVERS, JJ., and MASON, ERNEST E. (Circuit Judge, Retired), Associate Judge, concur.


text:
    AMERICAN PAPER CHEMICAL PRODUCTS et al., Appellants, v. Clarence BRIGHT, Appellee.
    No. TT-25.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Eugene E. Williams and Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellants.
    L. Barry Keyfetz, Miami, for appellee.
   PER CURIAM.

Employer/carrier appeals a workers’ compensation order which we affirm except insofar as the award of 8% interest applies to delinquencies which accrued prior to July 1, 1978; interest on such delinquencies is properly awarded at a rate of 6%. Miami-Dade Water and Sewer Authority v. Caravasios, 377 So.2d 56 (Fla. 1st DCA 1979); § 55.03(1), Florida Statutes.

As to-delinquencies accruing on or after July 1, 1978, interest is properly awarded at a rate of 12%. Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA, 1980); § 440.20(7), Florida Statutes (1980). However, by failing to cross-appeal or otherwise assert error as to this portion of the award, claimant has consented to the award of interest at a rate of 8%.

The order appealed is amended so as to award 6% interest on delinquencies which accrued prior to July 1, 1978; the order is affirmed as amended.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: BOOTH, Judge.

text:
    CASINGS, FLORIDA, INC. and American Mutual Insurance Company, Appellants, v. John L. WILLIAMS, Appellee.
    No. TT-131.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Eugene N. Betts, Fort Lauderdale, for appellants.
    T. J. Cunningham, West Palm Beach, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from an order of the Judge of Industrial Claims awarding $25,000 in attorney fees without specifying any basis therefor. Appellee argues that a review of the transcript of the hearing for attorney fees indicates that the judge took into account the factors enunciated in Lee Engineering and Construction Company v. Fellows, 209 So.2d 454 (Fla. 1968), and that Tinsley v. City of St. Petersburg, 373 So.2d 675 (Fla.1979), permits this court to affirm the award where it is clear from the record that the factors in Lee Engineering were considered.

The record reveals that, at the end of the hearing, the judge stated: “When you come into the courtroom it becomes Lee Engineering and the Canon of Ethics . . . . ” This, however, is the only indication that the judge took the requisite criteria into account. In Tinsley, the Florida Supreme Court held (373 So.2d at 676):

A review of the JIC’s order reveals that every factor prescribed by this Court in Lee Engineering was expressly considered by him in reaching the conclusion that a fair and reasonable fee was $22,-500.... [T]he award in Volpe was reversed because the IRC was at a loss to determine the basis of the JIC’s award in view of the fact that there was nothing in the order awarding the fee which indicated that Lee Engineering had been followed and there was no competent evidence of the number of hours spent by claimant’s counsel. In the present case, neither of these problems exist as the JIC expressly considered all the factors in Lee Engineering after first determining that competent and substantial evidence supported a finding that petitioner’s counsel had spent 250 to 300 hours obtaining benefits. (e. s.)

The order here fails to reveal any factor upon which the judge relied in arriving at the award and is, therefore, on its face insufficient. Under Tinsley and authorities cited therein, the appellate court is not required to review the record and speculate on the basis of the award.

Accordingly, the order below is reversed and the cause remanded for entry of a new order in compliance herewith.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.

      . Volpe v. Sirozotti and Natale Nobili Construction Co., IRC 2-3171 (1977).

      . Lamar West Florida, Inc. v. Corbett, IRC 2-3367 (1978), and Dade County Department of Health v. Barager, IRC 2-3343 (1978).