author: PER CURIAM. ERVIN, Judge,

text:
    Deborah S. WHITWORTH, Appellant, v. Victor H. CUCHENS, Appellee.
    No. UU-132.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Rehearing Denied May 11, 1981.
    J. LaDon Dewrell of Dewrell & Blue, Fort Walton Beach, for appellant.
    John A. Bussian, III of Isler, Brown, Smoak & Watson, Panama City, for appel-lee.
   PER CURIAM.

Appellant appeals the trial judge’s denial of her motion for directed verdict on the issue of liability and the denial of her motion for new trial. We affirm.

Appellant’s vehicle was struck from the rear, by a vehicle driven by appellee. The evidence at trial showed that both vehicles were in a line of traffic travelling over a bridge. As appellant’s vehicle reached the top of the bridge, she noticed that construction work on the other side had cars stopped and backed up to the top of the bridge. When she stopped, her car was struck by appellee’s vehicle. Appellant’s daughter was thrown from the back seat, over the front seat, to the front floor board at or prior to the moment of impact. The evidence indicated that the collision of the two vehicles involved minor force. There were no skid marks reported in the highway patrol accident report. However, appellee testified there were several feet of skid marks left by his stop.

Appellee testified that appellant stopped so suddenly he was unable to avoid the collision. Appellant, of course, denied this. We conclude this and other conflicting testimony presented an issue of fact to be determined by the jury, and the court was therefore correct in denying appellant’s motion for directed verdict. See Chiles v. Beaudoin, 384 So.2d 175 (Fla. 2d DCA 1980); Lubliner v. Gabrilowitz, 393 So.2d 46 (Fla. 3d DCA 1981).

In the case of Cowart v. Barnes, 370 So.2d 103 (Fla. 1st DCA 1979), relied on by appellant, the plaintiff was lawfully stopped at a red light when struck by the defendant. The defendant testified he thought plaintiff was going to run the caution light and he tried to do the same. When plaintiff stopped for the red light, defendant ran into plaintiff’s vehicle. Similarly, in Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977), three cars were legally stopped at an intersection waiting to turn left. The defendant was travelling in the same direction with one vehicle between his car and the stopped cars. The car in front of him swerved and avoided the stopped vehicles, but the defendant was unable to stop and struck the stopped vehicles.

In the present case there existed a dispute as to whether appellant’s vehicle had stopped in a legal manner on the highway, and that issue was properly presented to the jury.

As to appellant’s argument on denial of her motion for new trial, we find there was competent substantial evidence to support the jury’s verdict..

Accordingly, the judgment is AFFIRMED.

SHAW and WENTWORTH, JJ„ concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I dissent because this case is indistinguishable from our decision in Cowart v. Barnes, 370 So.2d 103 (Fla. 1st DCA 1979). The evidence presented at trial established that appellant’s vehicle had been in its proper place on the highway and that she had been struck from behind by the appel-lee. Such evidence created a rebuttable presumption that the appellee was negligent. Cowart v. Barnes, supra.

This presumption was not rebutted by the appellee, who did not even establish that the appellant’s vehicle had stopped on the highway at the time of the collision. Neither did he establish that appellant stopped her vehicle quickly. Cf. Chiles v. Beaudoin, 384 So.2d 175 (Fla. 2d DCA 1980). Even if appellee proved at trial that appellant’s vehicle had stopped quickly, such evidence would not have been sufficient to rebut the presumption of negligence. See Cowart v. Barnes, supra; Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977); Kimenker v. Greater Miami Car Rental, Inc., 115 So.2d 191 (Fla. 3d DCA 1959).


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. C. Holley SPENCER, Appellee.
    No. UU-351.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Rehearing Denied May 14, 1981.

      Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    Jack Locklin, Jr., and T. Sol Johnson of Johnson, Green & Westmoreland, Milton, for appellee.
   ERVIN, Judge.

In this declaratory judgment action, Travelers Insurance Company appeals a summary judgment entered against it which determined that appellee had uninsured motorist (UM) coverage with Travelers in an amount equal to the bodily injury (BI) liability coverage available to him under the terms of his partnership policy. We affirm.

In May, 1977, C. Holley Spencer suffered an accident while driving his son’s vehicle — a vehicle which had not been listed in his partnership policy. The other vehicle involved in the accident had liability limits of only $10,000, so Spencer sought underin-sured motorist benefits through his partnership’s policy. The policy carried $300,000 liability limits, but provided that UM coverage was $15,000 per person.

Travelers first contends that Spencer is not entitled to UM coverage under the terms of his partnership policy because such coverage extends only to vehicles listed in the policy. The policy, however, designates Holley Spencer, together with the other partners, as a named insured. A named insured is designated by the rule in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), as a class one insured (i. e., the named insured, his spouse and any relative who was a resident of the same household), and such insureds are entitled to UM coverage “whenever or wherever bodily injury is inflicted upon [them] by the negligence of . . . uninsured [or underinsured] motorist[s].” 252 So.2d at 238. Therefore, any provision in an insurance policy attempting to limit a named insured’s right to UM benefits only as to automobiles listed in his policy must be condemned as contrary to the public policy as expressed in Section 627.727(1).

Travelers next argues that the lower court erred in granting summary judgment against it because there remained unresolved material issues of fact on the question whether the named insured rejected UM coverage in an amount less than that purchased by him for BI liability protection. While the Travelers agent did not obtain a written rejection of a lesser amount of UM coverage, he nevertheless testified that he had received an oral rejection, which may, under appropriate circumstances, satisfy the statute’s requirements. See Glover v. Aetna Insurance Co., 363 So.2d 12 (Fla. 1st DCA 1978). The agent stated that it was his general practice to offer UM coverage in accordance with the statute, and, while he was sure that he had discussed with the named insured his right to reject, this statement was qualified by his responses that he could not recall any instance when he had done so. On the other hand, Spencer denied that he had ever rejected UM coverage in any such lesser sum, and in fact had assumed before the accident that his UM limits equaled his BI limits.

The focal question before us is what type of evidence is sufficient to raise a genuine issue of material fact as to whether the insurer has met Section 627.727(l)’s requirement of offering UM coverage in an amount no “less than the limits of bodily injury liability insurance purchased by the named insured, . . . ”? When a statute commands that its provisions can only be met by following a specific method, and the evidence reveals that its requirements were not observed, summary judgment is appropriately entered because the controversy is considered one of law, and not one involving a disputed issue of material fact. See Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952); Duprey v. United Services Auto Ass’n., 254 So.2d 57 (Fla. 1st DCA 1971). For example, in Locke v. Stuart, 113 So.2d 402 (Fla. 1st DCA 1959), summary judgment was held appropriately granted upon facts showing that a tax deed had incorrectly been issued due to the clerk’s failure to forward notice to the former owner of the land stating that the property was being or would be advertised and sold for taxes, as required by Section 194.18, Florida Statutes (1957). We concluded that once “it was shown without contradiction that the clerk failed to give notice as required by the statute, it follows that there was no issue of fact for determination by a jury.” 113 So.2d at 404.

Similarly, in the case at bar, no disputed issue of material fact remained undetermined. Section 627.727(1) has unifor-mally been interpreted as requiring nothing less than an affirmative, informed rejection by an insured of his right to UM protection. Bernstein v. Liberty Mutual Ins. Co., 294 So.2d 63 (Fla. 3d DCA 1974); Wilson v. National Indemnity Co., 302 So.2d 141 (Fla. 1st DCA 1974); Lumbermen’s Mut. Cas. Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978); American Motorist’s Ins. Co. v. Weingarten, 355 So.2d 821 (Fla. 1st DCA 1978). The statute’s requirements are not met if the agent’s knowledge of rejection is founded only upon his general, routine office practice, and not upon an independent recollection of a specific rejection. See Bernstein v. Liberty Mutual Ins. Co., supra, and American Motorist’s Ins. Co. v. Weingarten, supra. The agent’s testimony in the instant case does not comply with the high statutory duty imposed upon insurers that they specifically obtain an understanding rejection of UM limits in lesser limits than those available for bodily injury protection.

Finally, the appellant argues that the lower court erroneously entered summary judgment against it because there remained a material issue of fact as to whether the plaintiff, by not raising any objection to the UM coverage as issued for an eleven-year period prior to his accident, was estopped from now asserting that his UM coverage should be the equivalent afforded under the BI liability portion of the policy. It bases this contention upon the insured’s testimony that although the insured had required $300,000 of BI liability coverage for no less than 11 years prior to the accident, he never raised any issue that his UM limits of $15,-000 were inadequate until after he was injured in the accident of May, 1977.

We disagree that estoppel and waiver are viable defenses to this type, of action. The doctrines of estoppel and waiver do not in general apply to transactions that are forbidden by statute or are contrary to the public policy. Sherba Bros., Inc. v. Campbell, 361 So.2d 814 (Fla. 4th DCA 1978); Confederation Life Association v. Conte, 254 So.2d 45 (Fla. 3d DCA 1971); State v. City of Hialeah, 156 So.2d 675 (Fla. 3d DCA 1963); Montsdoca v. Highlands Bank and Trust Co., 95 So. 666 (Fla.1923). Moreover, an omission sufficient to imply the doctrine of equitable estoppel means negligent or culpable omission in instances where the party failing to act is under a duty to do so, but, in the absence of such a duty, silence or inaction will not operate to work an estoppel. Pasco County v. Tampa Development Corp., 364 So.2d 850 (Fla. 2d DCA 1978); Thomas v. Dickinson, 158 Fla. 819, 30 So.2d 382 (1947).

Section 627.727(1), as construed by the Wilson-Weingarten line of cases, places no duty upon the insured to initiate a request for UM coverage in an amount equal to that provided in his policy for BI protection limits. The statute, rather, imposes a duty on the insurer to inform the insured of his statutory options so as to enable him to make an informed decision regarding the amount of UM protection, if any, he desires. We conclude that principles of common law estoppel and waiver cannot apply to bar an inactive, silent insured from his statutory right to UM coverage because those principles have since been superseded by the standard established by the statute, which requires nothing less than an informed, affirmative rejection.

AFFIRMED.

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


author: PER CURIAM.

text:
    LEON COUNTY, Appellant, v. James A. SMITH and Beulah Smith, his wife, Appellees.
    No. VV-225.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Rehearing Denied May 11, 1981.
    F. E. Steinmeyer, III, County Atty., and 0. Earl Black, Jr., Asst. County Atty., for appellant.

      Brian S. Duffy and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellees.
    Walter B. Smith of Green & Fonvielle, P.A., amicus curiae.
   PER CURIAM.

Leon County appeals a final judgment which finds it has taken an easement across the Smiths’ property and is engaged in a continuing trespass across that property. We affirm.

Appellees James A. and Beulah Smith are the owners of approximately 16 acres of land in Leon County, situated on Raymond Diehl Road and bounded on the north by Unit 5 of Killearn Estates. Prior to the development of Killearn Estates, the area was primarily wooded with vegatative cover and most surface water after rainfall flowed into “bottoms” and percolated into the ground. There was a gentle slope in a southerly direction which caused some surface water to flow towards the Smiths’ land, but a ridge along the northern boundary prevented most of the water from flowing onto the Smiths’ land. Only during the most severe storms would water spill over onto the Smiths’ land and the amounts, volumes and concentrations were so dispersed and infrequent as to be inconsequential.

When Killearn Estates Inc. began development of this area it retained Broward Davis and Associates, Inc. to prepare a plat. This proposed plat contained a drainage system designed to collect surface water and transport it east or west to a central ditch and then southerly through the ditch to the Smiths’ property. The outfall point for this water was along the northern boundary line of the Smiths’ property and no provisions were made for transporting the water across their land. In 1968 the plat was submitted to and approved by Leon County and Killearn Estates, Inc. proceeded to construct the roads, streets and drainage systems in accordance with the plan. In 1970 defendant accepted ownership of the drainage system and responsibility for its maintenance and control. About this time plaintiffs began sustaining some run off which caused minimal damage to their property.

As the residential lots in Unit 5 were sold and houses with accompanying hard surfaces built, water that previously would have percolated into the ground was diverted into the drainage system and as development continued, so did the damage to plaintiff’s property. Drainage systems of other lands in which Leon County owned, controlled and maintained drainage easements were directly connected to the Unit 5 drainage system after 1970 and Leon County enclosed this drainage easement, placing a pipe into the ditch, which increased the velocity of the water flow.

Eventually, this drainage carved ditches four to six feet deep into the Smiths’ land; water continued flowing from Killearn Estates for days after the rain stopped and the area in and around the ditches remained a muddy ooze. By late 1974 or early 1975 the situation had deteriorated to the point that the area affected by the flooding was rendered useless and plaintiffs were permanently deprived of all beneficial use and enjoyment of the property.

The Smiths initially filed for injunctive relief, later amending the complaint to allege inverse condemnation. Leon County defended on the grounds that approval of the plat was a discretionary act for which the county was immune and the action for inverse condemnation was barred by the statute of limitations. The court ruled that defendant failed to prove its affirmative defense of the statute of limitations and that in late 1974 and early 1975 the increased amount, rate, velocity and concentration of run off which was due to the installation of a pipe in the drainage easement constituted a taking by Leon County of a portion of this property and a continuing trespass on that property.

We do not here decide whether the county’s approval of the plat would subject it to liability because the county’s actions exceeded this. The doctrine of sovereign immunity does not allow a governmental agency to take the land of a private citizen without giving that citizen recourse through eminent domain or inverse condemnation proceedings. Article X, Section 6, Florida Constitution. State Road Dept. v. Harvey, 142 So.2d 773 (Fla. 2d DCA 1962).

The trial judge correctly found that a taking resulted from flooding which rendered the land useless and permanently deprived plaintiffs of all beneficial enjoyment thereof. Hendry v. State Road Dept., 213 So.2d 23 (Fla. 4th DCA 1968); Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); compare Department of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980). The finding that this damage was not permanent until 1974 is supported by the evidence, see Petroleum Products Corp. v. Clark, 248 So.2d 196 (Fla. 4th DCA 1971) and appellant has not demonstrated that the cause of action accrued earlier so as to give rise to the statute of limitations. Town of Miami Springs v. Lawrence, 102 So.2d 143 (Fla.1958).

Appellant’s argument that the Smiths’ property was the natural drainage basin for Killearn Estates must fail. The trial judge found that this argument was not supported by the testimony and we find no basis in the record for reversing this finding.

Accordingly, the judgment below is AFFIRMED.

MILLS, C. J., and ROBERT P. SMITH and WENTWORTH, JJ., concur.


text:
    WOODCREST APARTMENTS, LTD., a Florida limited partnership, Appellant, v. IPA REALTY PARTNERS RICHARDSON PALMER, 3RD INVESTMENT KG, a foreign limited partnership (being one and the same as IPA Realty Partners Richardson, Palmer Dritte Beteilingungs Gmbh Und Co., KG., a foreign limited partnership), Appellees.
    No. UU-320.
    District Court of Appeal of Florida, First District.
    April 13, 1981.
    Rehearing Denied May 11, 1981.

      Ben H. Wilkinson and Cathi C. O’Hallo-ran, of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellant.
    L. Ralph Smith, Jr., of Peeples, Earl, Smith, Moore & Blank, P.A., Tallahassee, for appellees.
   PER CURIAM.

Appellant Woodcrest Apartments, Ltd. (Woodcrest) appeals a final declaratory judgment in favor of appellee IPA Realty Partners Richardson Palmer, 3rd Investment KG (IPA) holding neither the note nor the mortgage permitted Woodcrest to accelerate the maturity of the secured indebtedness upon IPA’s sale of the property. The lower court concluded the mortgage clause allowing acceleration upon an assignment of rents, issues and profits without Wood-crest’s consent must be construed in the context of further encumbrance of the rents, issues and profits and does not entitle Woodcrest to accelerate maturity upon sale of the property.

We affirm.

Woodcrest sold its apartment complex to IPA, and received from IPA a purchase money mortgage encumbering the property. Paragraph 11(b) of the mortgage reads:

To further secure the payment of the indebtedness hereinabove described, and performance of all other covenants contained in this mortgage, the mortgagor hereby assigns, transfers, and sets over to the mortgagee:
(b) All rents, issues and profits of said mortgaged property from time to time accruing, whether under leases or tenancies, now existing or hereafter created, and the mortgagee shall upon any default of the mortgagor hereunder have the right at its option to receive and receipt therefore and to apply the same as it may elect to any indebtedness secured hereby. In the event the mortgagor should assign the rents, issues, and profits, or any part thereof to any person other than the mortgagee, without first obtaining the consent of the mortgagee, then the entire principal sum secured hereby shall, at the option of the mortgagee become immediately due and payable.

The mortgage and the note contained no express provision prohibiting a sale by IPA of its interest in the property, requiring Woodcrest’s consent to such sale, or providing that such a sale without Woodcrest’s consent would permit Woodcrest to accelerate the maturity of the note secured by the mortgage.

IPA later sold the property, subject to the Woodcrest mortgage, to a third party. In its fee simple conveyance, IPA did not reserve the right to receive rents and profits.

Woodcrest contends IPA’s sale of the property without Woodcrest’s consent violated paragraph 11(b) of the mortgage and gives Woodcrest the right to accelerate. It argues the secured indebtedness was, at Woodcrest’s option, due on sale, and the sale amounted to an assignment of the rents, issues and profits. However, Wood-crest does not allege its security was impaired by this sale.

The mortgage provides that rents, issues and profits were assigned to Woodcrest as further security for the indebtedness. Under the mortgage, Woodcrest cannot exercise its right to receive such rents, issues and profits unless IPA defaults on its obligations under the note and mortgage. IPA’s conveyance, subject to the Woodcrest mortgage, to the third party does not change this provision.

Paragraph 11(b) of the mortgage is concerned only with the further encumbrance of the rents, issues and profits of the property without the mortgagee’s consent and not with a nonconsensual sale of property. A sale of the property to a third party does not constitute an assignment of the rents, issues and profits as contemplated by the mortgage.

However, even if Paragraph 11(b) were construed to be a “due-on-sale” clause, there is no allegation or proof that the mortgagee’s security has been impaired. In First Federal Savings and Loan Association of Englewood v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980), the court noted divergent lines of cases throughout the United States dealing with the issue of due-on-sale clause enforcement. “The common thread running through the various theoretical approaches is that such clauses are considered restraints on the alienation of real property and are enforceable as reasonable restraints only if their enforcement is not inequitable and unjust under the circumstances.” Lockwood, supra, at 158. As to Florida law, the court stated:

Florida courts recognize that a lender has the right to accelerate a mortgage when the violation of the acceleration provision goes to the impairment of the lender’s security. They require that the lender in a foreclosure action bear the burden of demonstrating legitimate grounds for refusal to accept the transferee. By so doing, our courts protect borrowers by providing them with equitable defenses to inequitable accelerations by lenders. Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). This approach is based on the historical purpose of acceleration clauses, which is to protect the security of lenders.

We conclude the trial court was correct. Appellant is not entitled to accelerate maturity of the secured indebtedness because of appellee’s sale of its interest in the subject property.

AFFIRMED.

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


text:
    McDONNELL DOUGLAS and Industrial Indemnity Company, Appellants, v. Lucy HOLLIDAY, Appellee.
    No. UU-128.
    District Court of Appeal of Florida, First District.
    April 14, 1981.

      Janet R. DeLaura, of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellants.
    Douglas A. McDuff, Law Offices of Leland E. Stansell, Jr., P. A., Miami, for ap-pellee.
   PER CURIAM.

Employer/carrier appeal a workers’ compensation order which found claimant to be temporarily totally disabled. We affirm in part and reverse in part.

The first point raised by appellants is whether the deputy commissioner erred in denying the employer/carrier’s motion to disqualify the testimony of Dr. Priu on the ground he was an examining physician only. We find the record contains competent substantial evidence to support the deputy commissioner’s finding that Dr. Priu was consulted for the purpose of treatment, not merely for an examination or for the purpose of qualifying the physician to testify. It is the duty of the trial court to determine the qualifications of an expert witness on the subject matter on which he testifies and the court’s judgment will not be disturbed on appeal unless a clear abuse of discretion is shown. Vitale Fireworks Manufacturing Company, Inc. v. Marini, 314 So.2d 176 (Fla. 1st DCA 1975). No such showing has been made in the present case, and the order is accordingly affirmed as to this point.

The second point raised by appellants is whether the deputy commissioner erred in finding the claimant temporarily totally disabled. At the hearing before the deputy commissioner claimant testified that she had been meeting her financial needs with the ássistance of her father and by caring for some neighborhood children in her home after school. Claimant testified she received approximately $275 a month from these two sources. The deputy commissioner made no reference to this income in his order finding claimant temporarily totally disabled. It is inappropriate as a matter of law to award temporary total disability benefits to a claimant who is capable of performing some work. La Posada Convalescent Home, Inc. v. Hunter, 8 FCR 222 (IRC Order 2-2431 August 22, 1973), cert. denied, 294 So.2d 653 (Fla.1974). The award of temporary total disability benefits in the present case was improper as claimant acknowledged she was earning some income babysitting in her home.

We note that claimant is now deceased due to an unrelated medical problem. However, Section 440.25(5), Florida Statutes provides that an award of compensation for disability may be made after the death of an injured employee. Accordingly, the cause is reversed and remanded for determination of the temporary partial disability benefits which claimant would have been entitled to.

ERVIN, SHAW and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge. MILLS, Chief Judge,

text:
    James Stephen WALDEN, Appellant, v. STATE of Florida, Appellee.
    No. WW-401.
    District Court of Appeal of Florida, First District.
    April 14, 1981.
    Rehearing Denied May 11, 1981.
    Michael J. Minerva, Public Defender, Melanie Hines Alford and Margaret Good, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment and sentence entered upon a charge of carrying a concealed firearm, alleging error in the denial of a motion to suppress evidence. Appellant was arrested after a police officer discovered the firearm while conducting a protective “pat down.” Appellant (a white male) and a companion were on the streets in a predominantly black “high crime” area in the early morning hours. The police officer had previously observed appellant drinking beer, and upon seeing him “slightly staggering” the officer determined that appellant should be placed in a detoxification center for his own safety. Prior to transporting appellant to the detox center the officer conducted a “pat down” and discovered a firearm in appellant’s boot.

Appellant moved to suppress the firearm as the product of an illegal search. The state contends that the officer was entitled to conduct the “pat down” as an incident of appellant’s custodial detention pursuant to § 396.072(1), Florida Statutes. If appellant were properly placed in protective custody the limited “pat down” conducted would be appropriate. See Boal v. State, 368 So.2d 71 (Fla. 2d DCA 1979). But appellant never consented to the officer’s actions, and § 396.072(1) authorizes non-consensual detention only if the subject is intoxicated and incapacitated. Bennett v. State, 344 So.2d 315 (Fla. 1st DCA 1977). Section 396.072(1) defines incapacity as “immediate need of emergency medical attention, or .. . [being] unable to make a rational decision about [the] need for care.” The present case does not involve such incapacity, and the firearm should have been suppressed as the product of a search which resulted from an illegal detention.

We note that the Florida Supreme Court has not adopted a “good faith” exception to the exclusionary rule, as enunciated in U. S. v. Williams, 622 F.2d 830 (5th CCA 1980). The lower Florida appellate courts are thus precluded from considering such an exception, as it departs from the traditional exclusionary rule which the Florida Supreme Court has repeatedly approved. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

We therefore reverse and remand to the trial court with directions to vacate the judgment and sentence and to discharge appellant.

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

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

MILLS, Chief Judge,

specially concurring:

I concur with the majority decision in this case only because I feel compelled to do so under the decisional law of this State cited by the majority.

Because of the particular facts of this case, I find the result distasteful. It is uncontradicted that the police officer was acting in good faith and in the interest of the defendant by taking him into protective custody for the purpose of transporting him to the Detoxification Center. He had observed him drinking on a public street and subsequently observed him staggering as he walked down the street in a known high crime area. The fact that the defendant was not shown to be incapacitated in a manner defined by the statute does not alter my belief that the conduct of the officer in determining to take Walden into protective custody and in conducting a protective “pat down” for weapons before placing Walden in the police car was reasonable under a common sense view of the facts. If I were free to do so, I would apply a “good faith” exception to the exclusionary rule in a case such as this.


author: COWART, Judge.

text:
    Larry Lee HEGGS, a/k/a Larry Wicks, Appellant, v. STATE of Florida, Appellee.
    No. 79-130.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Rendell Brown of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

At trial the evidence of appellant’s guilt was conclusive. However, the trial court did not give the jury an instruction on penalties (Fla.R.Crim.P. 3.390(a); Tascano v. State, 393 So.2d 540 (Fla.1980) (rehearing denied Feb. 27, 1981) after a request and the point was preserved by a proper and timely objection (Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980)). Appellant was convicted of the offense for which he was on trial. James v. State, 393 So.2d 1138 (Fla.3d DCA 1981). After an examination of all the appeal papers and the entire case it appears to us that the error complained of did not injuriously affect the substantial rights of the appellant (§ 924.38, Fla.Stat. (1979)) and resulted in no miscarriage of justice (§ 59.041, Fla.Stat. (1979)). Notwithstanding, we are constrained (Hoffman v. Jones, 280 So.2d 431 (Fla.1973)) by Tascano to reverse and remand for a new trial, but we certify the following question to be of great public importance (Art. V, § 3(b)(4), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A)(v)) as also certified in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981); Johnson v. State, 394 So.2d 1121 (Fla. 5th DCA 1981), and Haislip v. State, 400 So.2d 473 (Fla. 5th DCA 1981):

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

If the State timely invokes the discretionary jurisdiction of the Supreme Court (Fla.R.App.P. 9.120(b)) to review the question certified the mandate in this case will be stayed until that jurisdiction is remanded.

REVERSED and remanded. Question certified.

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


text:
    ORLANDO SPORTS STADIUM, INC., Pete Ashlock and Russell Coe, operating as P & R Racing; Pete Ashlock, individually; and Russell Coe, individually, Appellants, v. Susan L. GERZEL, John F. Eppright, Robert R. Gerzel and Lynn Eppright, Appellees.
    No. 79-398.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.

      Charles R. Stepter, Jr., of Fishback, Davis, Dominick & Bennett, Orlando, for appellants.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, P. A., Winter Park, for appellees.
   COWART, Judge.

Two minors, by and through one parent each, sued alleging that appellants provided a spectator area at motorcycle races which permitted the minors to wander onto the race track where they were struck by a motorcycle and injured. Damages were claimed for the minors’ injuries and by the parents, individually, for medical expenses and loss of their children’s services. Appellants counterclaimed against the plaintiff-parents and filed third-party complaints against the minors’ non-party parents for contribution claiming the parents negligently failed to supervise and protect their children. The trial court dismissed the counterclaims and third-party complaints on the authority of 3-M Electric Corporation v. Vigoa, 369 So.2d 405 (Fla.3d DCA 1979). The trial court felt bound by S-M but could not agree that a proper result was being reached. The court reasoned that if the doctrine of comparative negligence (Hoffman v. Jones, 280 So.2d 431 (Fla.1973)), was to be fairly applied in this case, the rationale of Shor v. Paoli, 353 So.2d 825 (Fla.1977) (permitting a negligent tortfeasor to seek contribution from a wife whose negligence contributed to the injuries caused her husband), should be extended and applied to permit a third person, whose negligence combines with that of parents to, cause injury to a child, to have contribution from the parents when necessary in order to permit the third person tortfeasor to reduce his financial exposure to the level of his prorata share of the total negligence causing the injury. We agree with the trial judge. Since the trial judge’s reliance on 3-M, that decision has been overruled, Quest v. Joseph, 392 So.2d 256 (Fla.3d D.C.A.1981).

This court has held that there is no logical distinction between the interspousal immunity involved in Shor and the parent-child relationship and therefore, has recognized a tortfeasor’s right of contribution from a mother who was allegedly negligent in operating the vehicle in which her child was injured. Withow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980).

Both the spousal negligence in Shor and the parental negligence in Woods involved the failure of a general duty required of all people, that of properly operating a motor vehicle. See also Mantilla v. Hassanien, 396 So.2d 1135 (Fla.3d DCA 1981). However here, as in Quest, the asserted liability of the parents is based on the alleged failure to properly supervise and protect their children, a duty pertaining exclusively to parents. While we are apprehensive as to the result of some applications of the principle, we are compelled to recognize that parents and others having the immediate custody and control of children too young to exercise judgment to care for themselves, have a duty as ordinary prudent persons to use reasonable care to watch over, supervise and protect them from foreseeable hazards and harm. In doing so, we note with approval the excellent opinion of Judge Schwartz on rehearing en banc in Quest.

This decision passes upon the question as to whether, and under what circumstances, an action for contribution lies against the parents of an injured child. We hereby certify that we believe this to be a question of great public importance so that appel-lees, if they wish, may timely invoke the discretionary jurisdiction of our Supreme Court to review this decision. Art. V, § 3(b)(3), Fla.Const. (1980); Fla.R.App.P. 9.030(a)(2)(A)(v) and 9.120.

Accordingly, the order dismissing the counterclaim and the third-party complaint for contribution from the parents is

REVERSED.

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

      . § *768.31(2)(a), Fla.Stat. (1979).

      . See Annot., 41 A.L.R.3d 904 (1972) [liability of parent for injury to unemancipated child caused by parent’s negligence].


text:
    Tyree Leroy NELMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-371.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

This is another case where the trial court, relying on case law overruled in Tascano v. State, 393 So.2d 540 (Fla.1980) (rehearing denied Feb. 27, 1981), did not give a requested instruction on penalties (Fla.R.Crim.P. 3.390(a)) and the point was preserved by proper and timely objection. Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980). Appellant was convicted of the offense for which he was on trial. James v. State, 393 So.2d 1138 (Fla.3d DCA 1981). After an examination of all the appeal papers and the entire case, including the general weight and quality of the evidence, it appears to us that the evidence of appellant’s guilt is overwhelming, is unquestioned on this appeal and that the errors complained of did not injuriously affect the substantial rights of the appellant (§ 924.33, Fla.Stat. (1979)) and resulted in no miscarriage of justice (§ 59.041, Fla.Stat. (1979)). If, as their oath requires, jurors obey Florida Standard Jury Instruction in Criminal Cases 2.15 and base their verdict only upon the law and the evidence and disregard its consequences, there is no possibility that error in failing to instruct on penalties can contribute to an accused’s conviction. Therefore, the absence of such instruction on penalties in this case cannot have legally affected the result below and the error in not giving such instruction is harmless beyond a reasonable doubt and would be so even if a constitutional right were involved. See Palmes v. State, 397 So.2d 648 (Fla.1981); Campbell v. State, 227 So.2d 873 (Fla.1969), cert. dismissed 401 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); State v. Wadsworth, 210 So.2d 4 (Fla.1968). See also Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977); Jones v. State, 332 So.2d 615, 619 (Fla.1976). We are required (Hoffman v. Jones, 280 So.2d 431 (Fla.1973)) by Tascano to reverse and remand for a new trial, but as in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981); Johnson v. State, 394 So.2d 1121 (Fla. 5th DCA 1981); and Haislip v. State, 400 So.2d 473 (Fla. 5th DCA 1981), we certify the following question to the Florida Supreme Court:

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

If the State timely invokes the discretionary jurisdiction of the Supreme Court (Fla. R.App.P. 9.120(b)) to review the question certified, the mandate in this case will be stayed until that jurisdiction is remanded.

REVERSED and remanded. Question certified.

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


author: SHARP, Judge.

text:
    Harriet G. SITOMER, Appellant, v. Stephen J. SITOMER, Appellee.
    No. 79-2320.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.

      Michael Eric Christiansen, P. A., Fort Lauderdale, for appellee.
   SHARP, Judge.

The wife appeals from the lower court’s order upon the husband’s Motion to Modify the Final Judgment and Exceptions of the husband to the Report of the General Master.

The wife moved for a contempt order on August 2, 1980, alleging noncompliance with the final judgment and arrearages of over $3,000.

The motion was referred to a General Master who filed her report on August 24th. The parties waived reporting of the hearing before the Master. The Master found that the husband had the ability to substantially comply and was in willful contempt. Along with her findings of fact, she made recommendations for payment and for incarceration for noncompliance within 20 days. The same day that the Master’s report was filed, husband moved to modify final judgment alleging change of circumstance and filed exceptions to the Master’s report realleging inability to pay.

The lower court’s order is reversed in that the court should not have considered the husband’s motion to modify when he was in arrears in alimony, child support and attorney’s fees, was facing a contempt recommendation by the General Master, and was coming to court seeking relief with unclean hands. This is not to say that he could not allege illness or business reversal which changed his circumstances between the General Master’s hearing and the Motion for Modification. The record in this case, however, shows that the husband merely re-argued his former contention of inability to pay since entry of final judgment.

Even though the parties waived a reporter at the General Master’s hearing, and the Master made a factual determination that the husband had the ability to substantially comply with the final judgment, the court in its order determined that the husband did not have the financial ability to pay alimony.

It has long been the law in Florida that a trial judge may not reject a master’s findings of fact unless the court concludes that the findings of fact are clearly erroneous. Moncrief v. Hall, 63 So.2d 640 (Fla.1953); Hopping v. Lovejoy, 53 So.2d 704 (Fla.1951); Harmon v. Harmon, 40 So.2d 209 (Fla.1949). “Of course, the master’s findings of fact would be clearly erroneous if the record should fail to contain evidence in support thereof which is both competent and substantial.” Frank v. Frank, 75 So.2d 282, 285 (Fla.1954). There is a significant distinction, however, between a master’s findings of fact and his conclusions of law. The difference was discussed by the court in Bergh v. Bergh, 127 So.2d 481, 486 (Fla. 1st DCA), cert. denied, 133 So.2d 323 (Fla.1961):

We do not construe the rule in Harmon to mean that even though the conclusions of law reached by a special master upon the facts established by the evidence may find support in accepted equitable principles, that such conclusions are binding upon the chancellor when under a different interpretation of the facts the chancellor may reach a contrary conclusion supported by established principles of law which in the exercise of his judicial discretion produces a more equitable solution to the issues posed for decision. The chancellor is an elected constitutional officer to whom the citizens of his circuit look, and upon whom they depend, for the settlement of their disputes. His training in and dedication to the law, and his experience in settling the rights of parties in a fair and impartial manner consistent with justice, far better qualify him to perform important judicial functions than does the training and experience of the average special master. It is the chancellor’s decree which must be entered in the case and for which he is wholly responsible and accountable to those affected thereby. By his oath of office he is bound to see that the decree he enters in a cause approaches as closely as possible his conception of what is right and just under law. His judgment and discretion in this regard cannot be circumscribed nor restrained by the conceptions or legal conclusions of his statutory agent, the special master. As said by the Supreme Court in United States Casualty Company [v. Maryland Casualty Company, Fla.1951, 55 So.2d 741, 744], “The chancellor, of course, should give due consideration to the findings of facts made by a special master and should consider the many advantages which the master had in personally hearing and observing the witnesses * * * However, although the Chancellor may use the services of a special master (he is not required to do so) and receive from him his advisory findings and recommendations, the fact remains that it is the chancellor who under the law is charged with the duty and responsibility of making findings of facts and entering the final decree. . . . ”

Applying these principles to the case at bar, we hold that the trial court was obligated to accept the master’s findings of fact since no record existed from which it could be shown that the findings were clearly erroneous. A master’s findings of fact are clothed with a presumption of correctness. Here, the parties’ stipulation to waive the presence of a court reporter at the master’s hearing had the practical effect of making the presumption of correctness irrebuttable. Consequently, the trial court erred when it failed to adopt the master’s finding that the husband had the ability to comply with the court’s prior order on alimony and child support.

While the court has greater latitude when it comes to accepting the master’s recommended conclusions of law and proposed remedy (purge payment or incarceration), the court must draw conclusions which are consistent with, and supported by, the master’s findings of fact. Again, in the case at bar, the only possible, reasonable conclusion was that the husband was in contempt of court. Since the court failed to reach this conclusion, we are compelled to reverse and remand with instructions for the trial court, exercising its sound discretion, to conduct further proceedings consistent with a finding of contempt.

MOORE and HURLEY, JJ., concur.


author: HURLEY, Judge.

text:
    Josephine C. WAGNER, as Administratrix of the Estate of Peter Alan Wagner, a deceased minor, and Christy Ellen Wagner, a minor by and through her mother and next friend, Josephine C. Wagner, Appellants, v. NOVA UNIVERSITY, INC., a Florida Corporation et al., Appellees.
    No. 79-1634.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 13, 1981.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Harry A. Gaines, Miami, and Allen M. Rubin of Glickstein, Rubin & Ru-binchik, P. A., Hollywood, for appellants.
    Frank M. Hamilton of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee Nova University, Inc.
    Jonathan J. Davis of Walton,. Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee-Department of Health and Rehabilitative Services of the State of. Florida.
   HURLEY, Judge.

This is an appeal from a non-final order concerning venue. Appellants question the propriety of an order transferring two consolidated cases to Leon County for trial. We affirm in part and reverse in part.

Appellant, Josephine C. Wagner, in her capacity as personal representative for the estate of her son, Peter, is the plaintiff in case #76-20760. Christy Wagner is the plaintiff in case # 79-3084, though, because she is a minor, the suit was brought by her mother, Josephine Wagner. Each case shares three of same defendants (Charles and Janet Stevens and Nova University, Inc.), and case #79-3084 has a fourth defendant: the Florida Department of Health and Rehabilitative Services.

At the instance of defendant Nova University, Inc., and over plaintiffs’ objections, the trial court consolidated the cases. Shortly thereafter, defendant Department of Health and Rehabilitative Services elected to exercise its venue privilege and moved to transfer case #79-3084 to Leon County. Again, over plaintiffs’ objections, the trial court granted the department’s motion and ordered the two consolidated cases transferred to Leon County for trial.

At this juncture in the proceedings, the question is not whether the cases were properly consolidated in the first instance, but rather, whether it was an abuse of discretion to continue to enforce the consolidation order when it became apparent that the state would exercise its venue privilege and that the plaintiff in case #76-20760 would be prejudiced thereby. We hold that the trial court erred in failing to sever the claim against the Department of Health and Rehabilitative Services and in transferring case #76-20760 to Leon County.

Consolidation is governed by Rule 1.270(a), Fla.R.Civ.P., which provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

The language of subsection (a), above, duplicates Federal Rule 42(a); its purpose “is to permit trial convenience and economy in administration.” MacAlister v. Guterma, 263 F.2d 65, 68 (2d Cir. 1958). Yet, as noted in the Authors’ Comments to Rule 1.270, “[i]t should not be used to deprive a party of any substantive rights which would be denied unless the actions proceeded separately.”

Consolidation “does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.” Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 53 S.Ct. 721, 728, 77 L.Ed. 1331 (1933) (footnote omitted). “Rather, each suit [maintains] its independent status with respect to the rights of the parties involved.” State Mutual Life Assurance Co. v. Deer Creek Park, 612 F.2d 259, 267 (6th Cir. 1979). See also American Employers Insurance Co. v. J. H. Atkins & Associates, Inc., 332 So.2d 348 (Fla. 4th DCA 1976).

Since the state was not a party to case #76-20760 and inasmuch as change of venue for the convenience of the parties or witnesses was not raised in that case, the plaintiff was entitled to have the case tried in the venue of her choice, /. e., Broward County. Houston v. Caldwell, 359 So.2d 858 (Fla.1978). We do not fault the trial court for its initial decision to consolidate the cases. In fact, that decision appears to have been entirely correct. But, we believe the court erred when, in reliance upon the consolidation order, it transferred both cases to Leon County. When it became apparent that the plaintiff in case # 76-20760 would be divested of her “right” to have that case tried in Broward County, the court, at a minimum, had an obligation to sever the cases so that case #76-20760 could be tried in Broward County.

On the other hand, since the state properly exercised its venue privilege in case #79-3084, it is entitled to be sued in Leon County and, therefore, the claim against it was properly transferred. Department of Health & Rehabilitative Services v. Wagner, 361 So.2d 739 (Fla. 4th DCA 1978). However, venue as to the other claims in #79-3084 is a matter which remains within the sound discretion of the trial court. Liberty Mutual Insurance Co. v. Ford, 392 So.2d 354 (Fla. 4th DCA 1981).

Accordingly, the order on appeal is affirmed in part and reversed in part and the cause is remanded to the trial court with instructions to transfer the claim against the State Department of Health and Rehabilitative Services to Leon County, and to exercise its discretion and determine whether the other claims in case # 79-3084 should remain consolidated with those in case #76-20760 or whether all of the claims in case #79-3084 should be transferred to Leon County.

ANSTEAD and HERSEY, JJ., concur.

      . Rule 9.130(a)(3)(A), Fla.R.App.P.

      . Florida Public Service Comm’n v. Triple “A" Enterprises, Inc., 387 So.2d 940 (Fla.1980); Department of Health & Rehabilitative Services v. Wagner, 361 So.2d 739 (Fla. 4th DCA 1978); Game & Fresh Water Fish Comm’n v. Carlile, 341 So.2d 1015 (Fla. 4th DCA) aff’d, 354 So.2d 362 (Fla.1977).

      .Initially, the state was a defendant in 76-20760 and filed a motion for change of venue which was denied by the trial court. We reversed in Department of Health & Rehabilitative Services v. Wagner, supra note 2. On remand, the trial court gave plaintiff the option of voluntarily dismissing the state or of having the case transferred to Leon County; plaintiff chose to dismiss the state.

      . Section 47.122, Fla.Stat. (1979).

      . See DeFigueiredo v. Trans World Airlines, Inc., 55 F.R.D. 44 (S.D.N.Y.1971).


author: BERANEK, Judge.

text:
    MORGANTI SOUTH, INC., and Federal Insurance Company, Appellants, v. HARDY CONTRACTORS, INC., a Florida Corporation, Adam B. Construction Corp., et al., Appellees.
    No. 79-2324.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Donald J. Beuttenmuller, Jr., of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellants.
    Lawrence H. Feder of Robert E. Dubow, P. A., Dania, for appellee, Hardy Contractors, Inc.
   BERANEK, Judge.

This appeal from a non-final order presents a venue question in the context of a mechanic’s lien action under Chapter 713, Florida Statutes. The trial court refused to change venue from Broward County where the action was filed to Palm Beach County. We conclude the court erred and reverse.

Appellant Morganti South, Inc., was the general contractor on a construction project in Palm Beach County. Hardy Contractors, Inc., supplied materials to the job pursuant to a contract with a sub-contractor. Hardy filed a claim of lien in Palm Beach County asserting non-payment for the materials. The general contractor had posted a payment bond pursuant to Section 713.23, Florida Statutes (1977). The general contractor filed a Notice of Bond and the lien was transferred to the security pursuant to Section 713.24, Florida Statutes (1977). Suit was eventually filed by Hardy Contractors, Inc., in Broward County against Morganti South, Inc., the general contractor, and its surety on the payment bond. There was no attempt to assert a lien against the real estate. The construction project was in Palm Beach County and the claim of lien, the bond, and the Notice of Bond were all filed with the Clerk of the Circuit Court of Palm Beach County. Morganti moved to transfer the case against it and its surety to Palm Beach County, and the trial court denied the motion. Our review of Sections 713.23 and 713.24, Florida Statutes (1977), convinces us that the proper venue for the action against the general contractor and surety on the bond was in Palm Beach County where the security had been deposited.

Appellant Morganti argues that although the action was one on the bond, it was in actuality a suit to enforce a mechanic’s lien and remained an in rem proceeding which should have been brought in the county where the property was located. Appellee Hardy counters that the action on the bond is basically unrelated to a mechanic’s lien, that it is a transitory cause of action and may be brought outside the county where the property is located.

The transfer of a mechanic’s lien from the real estate to a bond does not obviate the necessity of the lien claimant's proving all the prerequisites necessary to enforcement of the lien even though the realty may no longer be encumbered by the lien. On the contrary, the lien claimant must prove all of the conditions precedent to perfection and enforcement of the lien before recovery against the bond can be achieved. Fidelity & Deposit Company of Maryland v. Accel, Inc., 354 So.2d 424 (Fla. 4th DCA 1978) and McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th DCA 1976).

We find it unnecessary to directly answer the question of whether the cause of action is in rem in nature in view of the provisions of Section 713.24(3), Florida Statutes (1977), which states in relevant part as follows:

Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof or any other matter affecting said security. (Emphasis supplied.)

We conclude that this statute is mandatory to the extent that any suit to recover on such security must be brought in the county where the security is deposited. We note that such suits may be brought by a lienor to enforce a bond as here or may seek other relief affecting the security. It would be totally unworkable and impracticable to have suits pending in different counties which might well result in inconsistent rulings regarding additional security, reduction of security, payment or discharge. This would be the result were the above statute viewed as merely directory or permissive.

We conclude that the action must be brought in the county where the security is deposited and that the trial court erred in denying the motion to transfer venue of the action against the general contractor and the surety company. The order is thus reversed and the cause remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

ANSTEAD and HERSEY, JJ., concur.


text:
    Eloise DuBOISE and Leon DuBoise, Appellants, v. JEFFERSON STORES, INC., Appellee.
    No. 80-1217.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    William N. Hutchinson, Jr., Fort Lauder-dale, for appellants.
    Lawrence A. Fuller of Fuller & Feingold, P. A., Miami Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

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


text:
    Wilber AMBROSE, Appellant, v. STATE of Florida, Appellee.
    No. NN-292.
    District Court of Appeal of Florida, First District.
    April 21, 1981.
    Leo A. Thomas, of Levin, Warfield, Mid-dlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Richard W. Prospect, and Doris E. Jenkins, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a conviction of petty larceny of a bicycle. The defendant contends that the trial judge erred in denying his motion for judgment of acquittal, in denying his motion for new trial, in denying his motion to dismiss the indictment or, in the alternative, to challenge the composition of the grand jury, in sentencing him to six months probation, and in failing to give his requested jury instruction. Having examined the record, the arguments of counsel, and the applicable legal authorities, we find that the defendant has not demonstrated reversible error in his conviction for petty larceny. However, we remand to the trial court to reduce the term of probation from six months to sixty days. See, Swift v. State, 362 So.2d 723 (Fla.2d DCA 1978). In all other respects the judgment of the trial court is affirmed.

REMANDED for further proceedings not inconsistent with this opinion.

BOOTH and SHAW, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


text:
    LAKE HIGHLAND NURSING HOME and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Elnora EVERETT, Appellee.
    No. WW-317.
    District Court of Appeal of Florida, First District.
    April 21, 1981.

      Janet L. Brown, of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appellants.
    Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, Edward H. Hurt, of Hurt & Parrish, P. A., Orlando, for appellee.
   PER CURIAM.

The Employer/Carrier appeal a workers’ compensation order which awarded claimant temporary total disability benefits. We find that the award of temporary total disability benefits is supported by substantial competent evidence.

Paragraph one of the decretal portion of the deputy’s order erroneously provides for payment of temporary total disability benefits until claimant shall have reached maximum medical improvement or shall have returned to gainful employment. There is no automatic relationship between temporary total disability and the achievement of maximum medical improvement, or the return to work by the injured party. National Airlines v. Rowley, 9 FCR 262 (1975); Winn Dixie Stores, Inc. v. Hill, IRC Order 2-3645 (1979). Therefore, this portion of the order is hereby amended to confine payment of temporary total disability benefits to the actual period of temporary total disability.

Paragraph two of the decretal portion of the deputy’s order erroneously overlooks the time limitations of Section 440.-13(3)(b), Florida Statutes (1977) in its award of remedial treatment. This portion of the order is amended as follows:

The employer/carrier shall provide to the claimant such care and treatment as the nature of her injury or the process of her recovery may require, under a qualified psychiatrist in the Lake County area who is mutually agreeable to the claimant and the employer/carrier, in the manner and for the time provided by law.

Luv Auto Sales, Inc. v. Murphy, IRC Order 2-3567 (1978), cert. dismissed 373 So.2d 459 (Fla.1979).

As amended, the order is affirmed.

BOOTH and JOANOS, JJ., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


author: MILLS, Chief Judge.

text:
    SPECIAL DISABILITY TRUST FUND, State of Florida, Appellants, v. AETNA CASUALTY AND SURETY COMPANY and Parkway General Hospital, Appellees.
    No. WW-446.
    District Court of Appeal of Florida, First District.
    April 21, 1981.

      Michael J. Rudieell, Lakeland, for appellants.
    Mark J. Mintz of Ress, Gomez, Rosenberg & Howland, North Miami, for appellees.
   MILLS, Chief Judge.

The Special Disability Trust Fund (Fund) appeals from a determination that the sixty-day period during which the employer/carrier (E/C) was required to file an application for hearing from the denial of a claim for reimbursement did not run because the Fund engaged in positive action upon which the E/C reasonably relied in not seeking a hearing within the time required. We reverse.

Section 440.49(2)(g), Florida Statutes, provides, in pertinent part:

If the Special Disability Trust Fund through its representative denies or controverts the claim, the right to such reimbursement shall be barred unless an application for a hearing thereon is filed with the Division at Tallahassee within sixty (60) days after notice to the employer or carrier of such denial or controversion.

It is undisputed that the Fund denied a claim for reimbursement by letter dated 14 September 1978 which was received by the E/C on 19 September 1978. An assistant supervisor at Aetna Casualty and Surety Company, the carrier, testified that she called the Fund on 2 October 1978 and talked to the Fund’s attorney. The attorney is reported to have said that she was missing a portion of the file and that actually three files had been set up using different names or spellings for the claimant. She requested that Aetna send copies of documents that were missing. On that same day the supervisor sent the requested documents with a cover letter saying as follows:

This will acknowledge receipt of your most recent correspondence dated September 14, 1978 in reference to the above captioned file.
Please be advised that we have completely reviewed our file and did find that the Judge of Industrial Claims did find that the employer was aware of the claimant’s pre-existing disabilities and a merger was found to have occurred.
Please review the file again and let us have your thoughts. I am enclosing a copy of Judge William Johnson’s informal ruling for your review.

The next communication was a letter by the E/C to the Fund on 4 April 1979 inquiring as to the “present status of our pending claim.” The supervisor testified that on 30 October 1979 a representative of the Fund called and said that the correspondence sent the previous October had not been received. Finally, on 18 February 1980 the Fund’s attorney wrote in response to the April 1979 inquiry by informing Aetna that since no hearing was requested within sixty days of receipt of a denial of the claim, the file was “now and forever dead.” At the hearing Aetna’s supervisor testified that she relied on the ongoing correspondence, communications, and negotiations with the Fund in not setting the claim down for hearing.

In ruling in the E/C’s favor, the Deputy-Commissioner entered the following finding:

5. I find that there is no issue that the employer/carrier notified the SPECIAL DISABILITY TRUST FUND, of the State of Florida, of the claim for reimbursement and that the SPECIAL DISABILITY TRUST FUND denied the claim by letter of September 14, 1978, which was received by the AETNA CASUALTY AND SURETY COMPANY on September 19, 1978. Thereafter, based on the testimony of Ms. Bonnie Weidman, which I accept, as well as the notes and correspondence in the file of .the SPECIAL DISABILITY TRUST FUND, I find that continuing negotiations occurred and that the AETNA CASUALTY AND SURETY COMPANY had good cause to believe that the denial of the SPECIAL DISABILITY TRUST FUND was recanted based on the fact that the SPECIAL DISABILITY TRUST FUND stated that there was some confusion in the file and that there were three (3) different file names and invited the AET-NA CASUALTY AND SURETY COMPANY, to forward additional information. Thereafter, in fact, the AETNA CASUALTY AND SURETY COMPANY, in support of their belief that negotiations were continuing and ongoing, sent additional correspondence and material to the SPECIAL DISABILITY TRUST FUND and the FUND never advised that they considered the sixty (60) day time period to be running. Thus, I find that the SPECIAL DISABILITY TRUST FUND engaged in positive action upon which the employer/carrier reasonably relied in not seeking a hearing within the sixty (60) days from the date of the original denial of the claim, and thus, the sixty (60) day period for the employer/carrier to file an Application for Hearing did not run.

We disagree. A review of the record reveals to us no competent substantial evidence to support a finding that any negotiations had occurred. The only communications of any kind between the Fund and the E/C which occurred during the sixty-day period during which a hearing was to be applied for was the one phone call followed by the one letter requesting the Fund to review the file again.

The doctrine of equitable estoppel is rarely applied against state action, North American Company v. Green, 120 So.2d 603 (Fla.1959), but may be applied where there are special circumstances and some positive act on the part of an officer of the state. Gay v. Inter-County Tel. and Tel. Co., 60 So.2d 22 (Fla.1952).

While we recognize the principles urged by the E/C, we find them of no avail under the particular facts of this case. Even accepting the testimony that the Fund’s attorney requested copies of certain documents, we fail to see that the Fund's attorney indicated in any way that the denial of the claim was recanted or in any other way took positive action that could conceivably estop the Fund to assert the statute of nonclaim, Section 440.49(2)(g).

Accordingly, this cause is REVERSED.

JOANOS, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


text:
    The COCA COLA COMPANY FOODS DIVISION, Appellant, v. Roxroy FERRON, Appellee.
    No. XX-199.
    District Court of Appeal of Florida, First District.
    April 21, 1981.

      Jesse F. Sparks of Jesse F. Sparks, P. A., Orlando, for appellant.
    Michael B. Murphy of Stanley, Wines & Smith, P. A., Auburndale, for appellee.
   PER CURIAM.

AFFIRMED. However, we note the deputy’s order contains what appears to be a clerical error. In the findings of fact, the deputy found the claimant was temporarily totally disabled from February 21, 1978, through the date of the hearing. However, in the decretal portion of the order the deputy orders temporary total disability benefits from February 21, 1980, and continuing through March 18, 1980, and for as long as the claimant remains temporarily and totally disabled. Therefore, we remand to the deputy commissioner for the correction, if necessary, of this apparent error.

MILLS, C. J., SHAW, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


text:
    Juan FALLADA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-136.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Davis v. State, 138 Fla. 798, 190 So. 259 (1939); O’Bryan v. State, 300 So.2d 323 (Fla. 1st DCA 1974); Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922); Williams v. State, 396 So.2d 267 (Fla. 3d DCA 1981), and cases cited; Slater v. State, 316 So.2d 539 (Fla.1975).


text:
    Ronald CRAIG, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1797.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Bennett H. Brummer, Public Defender, and Roy E. Black, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Malsby v. Gamble, 61 Fla. 310, 54 So. 766 (1911); State v. Segarra, 388 So.2d 1017 (Fla.1980); United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).


text:
    The STATE of Florida, Appellant, v. Russell FOSTER, Appellee.
    No. 80-1026.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Janet Reno, State Atty., and Milton Robbins, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

State v. Acurse, 347 So.2d 828 (Fla.3d DCA 1977).

Affirmed.


text:
    Reinaldo Enrique PORTAL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1088.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Bennett H. Brummer, Public Defender, and Ronald A. Dion, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Dickinson, 370 So.2d 762 (Fla.1979); Johnson v. State, 361 So.2d 767 (Fla.3d DCA 1978), cert. denied, 382 So.2d 693 (Fla.1980); Beasley v. State, 354 So.2d 934 (Fla.2d DCA 1978); Alderman v. State, 281 So.2d 231 (Fla. 1st DCA), cert. dismissed, 284 So.2d 698 (Fla.1973); Fla.R.Crim.P. 3.140(g).


text:
    Robert Battle RAY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1198.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Bennett H. Brummer, Public Defender, and Denis Dean, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See: Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978); Downer v. State, 375 So.2d 840 (Fla.1979); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 840 (1972); Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976).


text:
    Starling ROSS, S.A., Appellant, v. Edilio Xavier DE OLIVEIRA, Appellee.
    No. 80-1865.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Gilbride & Heller and Lewis N. Brown, Miami, for appellant.
    No appearance, for appellee.-
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

The order of dismissal under review is affirmed with one modification. That portion of the above order dismissing the instant action for lack of subject matter jurisdiction is stricken as, in our view, the court had jurisdiction over the subject matter of this cause. See e. g., Art. V, § 5(b), Fla. Const.; §§ 26.012(2)(a), 34.01, Fla.Stat. (1979). In all other respects, the order under review is affirmed although we interpret the instant dismissal to be without prejudice to the plaintiff to attempt, if it chooses, re-service of the defendant under Sections 48.193(l)(g), 48.194, Fla.Stat. (1979), so as to secure personal jurisdiction over the defendant and thereby reactivate the present action. See e. g., Bradford White Corp. v. Aetna Insurance Co., 372 So.2d 994 (Fla.3d DCA 1979).

Affirmed as modified.


text:
    Cheryl B. HARRELSON, Appellant, v. NATIONAL AIRLINES, INC., a Florida Corporation, Appellee.
    No. 80-1590.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    William Francis Sullivan, IV, Coral Gables, for appellant.
    Steel, Hector & Davis and John M. Bark-ett, Miami, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Andrews v. Louisville & Nashville Railroad, 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).


text:
    Haydee DIAZ, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 80-1592.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.

      Alfred H. Fuente, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

Plaintiff Haydee Diaz is the recipient of workers’ compensation benefits from her employer, Metropolitan Dade County, in an amount equal to 70% of her average weekly wage. Her action below sought recovery of the remaining 30% of her average weekly wage from her automobile liability insurance carrier, defendant South Carolina Insurance Company, on the basis of Section 627.736(4), Florida Statutes (1979), under the personal injury protection (PIP) provisions of her policy. Following a summary final judgment for the insurance company, plaintiff Diaz appealed.

With no contention of any genuine issue of material fact being raised, the only issue before us is one of law, concerning whether the defendant PIP carrier was required to pay in benefits the difference between the plaintiff’s average weekly wage and weekly workers’ compensation award so that the claimant would be 100 percent compensated for her loss of wages.

Section 627.736(l)(b), Florida Statutes (1979), as amended by Chapter 77-468, Section 33, Laws of Florida, is applicable to the facts of this case. It provides that PIP benefits are limited to 60 percent of the wage loss. Section 627.736(4), Florida Statutes (1979), provides that PIP benefits “. . . shall be primary, except that benefits received under any worker’s compensation law or Medicaid ... shall be credited against ...” PIP benefits. We hold that where the weekly compensation under the worker’s compensation law equals or exceeds 60 percent of the weekly wage, no PIP benefits are payable.

The plaintiff relies upon Comeau v. Safeco Insurance Company of America, 356 So.2d 790 (Fla.1978), and Charter Oak Fire Insurance Company v. Regalado, 339 So.2d 277 (Fla.3d DCA 1976), for a contrary result. We believe that Comeau does not support a recovery of 100 percent of the loss, inasmuch as that case held that the total aggregate limit of PIP benefits payable was not reduced by the amount of workers’ compensation benefits received and that the PIP carrier was required to supplement workers’ compensation benefits until it had paid the limit of liability under its policy. Here, the limit of liability was for 60 percent of the wage loss. Charter Oak held that PIP benefits were not limited to exclude all payments for medically-related expenses payable under workers’ compensation. The opinion did not deal with the percentage liability of the PIP carrier for wage loss.

Accordingly, the judgment of the trial court, holding that PIP coverage is limited to 60 percent of the wage loss, is affirmed.

Affirmed.


author: BASKIN, Judge.

text:
    SAVE BRICKELL AVENUE, INC., a corporation not for profit under the laws of the State of Florida, on its own behalf and on behalf of all others similarly situated, Appellants, v. The CITY OF MIAMI, Florida, a municipal corporation and political subdivision of the State of Florida, and Kiona N.V., owner and applicant, Appellees.
    No. 80-2169.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellants.
    Fine, Jacobson, Block, Klein, Colan & Simon and Stuart L. Simon, Miami, for appel-lees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We treat this appeal as a petition for certiorari, quash the order under review, and remand the cause for further proceedings consistent herewith. Save Brickell Avenue, Inc. v. City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981); Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981). Certiorari granted.


text:
    PENINSULAR SUPPLY COMPANY, Appellant, v. John A. ALLEN, Appellee.
    No. 81-188.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    M. Ross Shulmister, Fort Lauderdale, for appellant.
    No appearance, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

The order under review which transfers venue in this cause is reversed and the cause is remanded to the trial court for further proceedings. This disposition is compelled, in our view, by the following authorities: Sheffield Steel Products, Inc. v. Powell Bros., 385 So.2d 161 (Fla. 5th DCA 1980); Davis v. Dempsey, 343 So.2d 950, 952 (Fla. 3d DCA 1977); Velez v. Mell D. Leonard & Associates, 338 So.2d 896 (Fla. 2d DCA 1976).

Reversed and remanded.


text:
    STATE of Florida, Appellant, v. Leander Alexander SKINNER, Appellee.
    No. SS-165.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Jim Smith, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellant.
    Lacy Mahon, of Mahon, Mahon & Farley, Jacksonville, for appellee.
   PER CURIAM.

This appeal by the State of Florida from the trial court’s order dismissing the information against appellee presents a single issue: Did the trial court commit error in granting appellee’s motion to dismiss charges of dealing in stolen property on the ground that the property alleged to have been stolen was, in fact, not stolen property?

Subsequent to the ruling here complained of, this court ruled upon the identical issue in Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980). That case holds that in a prosecution under Section 812.019, Florida Statutes (1977), proof of the stolen character of the goods is not essential to proof of the offense of “endeavoring to traffic in stolen property” (378 So.2d at 119). See Section 812.028, Florida Statutes (1977), and State v. Dickinson, 370 So.2d 762 (Fla.1979).

REVERSED and REMANDED.

BOOTH, LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    Donald H. REED and Mary L. Reed, his wife, Appellants, v. Cassie DYAL, a/k/a Mrs. L. W. Dyal, Appellee.
    No. VV-478.
    District Court of Appeal of Florida, First District.
    April 22, 1981.

      Jerry R. Poole, Callahan, for appellants.
    John Paul Howard, Jacksonville, for ap-pellee.
   PER CURIAM.

We hold that the trial judge correctly determined that appellants are indebted to appellee for the sum of $15,000.00, together with interest and court costs, and correctly entered a final judgment impressing an equitable lien or mortgage on appellants’ property, and foreclosing the same. It is immaterial that there were no specific “terms” nor provision for “acceleration” of the entire principle amount due. It is undisputed that appellee advanced the money to appellants, for the making of repairs on a home on appellants’ real property, payment to be secured by a first mortgage on the property in favor of appellee, with terms of repayment and interest rate to be agreed upon. Since the money was advanced upon condition that appellants would execute and deliver a mortgage on the property and appellants failed to do so, and failed to make repayment of part or all of the sums advanced, they cannot now assert as a defense any lack of specificity in the transaction, and they are not equitably entitled to have the court make an agreement for them.

We reverse that portion of the final judgment of foreclosure awarding attorney’s fees to appellee’s attorney, because we find no basis in the record for award of such fees. Except as to the award of attorney’s fees, the final judgment of foreclosure is affirmed.

BOOTH, LARRY G. SMITH and THOMPSON, JJ„ concur.


author: WENTWORTH, Judge.

text:
    PEACOCK FRUIT AND CATTLE CORPORATION & Commercial Union Assurance Co., Appellants, v. Clarence E. PRESCOTT, Appellee.
    No. WW-180.
    District Court of Appeal of Florida, First District.
    April 22, 1981.

      B. C. Pyle of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Paul A. Gamba, Stuart, for appellee.
   WENTWORTH, Judge.

The employer/carrier appeals urging that the deputy erred in failing to apply the statute of limitations to the injuries sustained in 1974, in holding Commercial Union responsible for a 28% permanent partial disability (from a total 60% award against three carriers for separate accidents, on authority of Tolvanen v. Eastern Air Lines, 287 So.2d 299 (Fla.1973)) on a wage earning capacity loss basis, and in awarding compensation at the rate of $126.00 per week for the disability attributable to the 1974 injuries.

After careful consideration of the record and arguments presented we find no error with respect to Points I & and II and affirm. However, there is merit in appellant’s third point above stated, controverting application of the compensation rate in effect at the time of the last of the several accidents from which claimant reached maximum medical improvement in 1979.

In pertinent part, Section 440.-12(3), Florida Statutes (1978), states: “The provisions of this section as amended effective July 1, 1973, shall govern with respect to disability due to injuries suffered after June 30,1973 and prior to January 1,1975.” Section 440.12(2), Florida Statutes (1973), governing appellant’s accident, provides that compensation shall not exceed $80.00 per week. The weekly rate of compensation to be awarded is a matter of substantive law fixed by the statute in effect at the time of the accident. Sullivan v. Mayo, 121 So.2d 424 (Fla.1960), Walker and LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977). We conclude appellee’s reliance upon the provisions of Section 440.15(5)(c) is inappropriate. In view of the determination of a common date of maximum medical improvement the deputy in this case as in Tolvanen, supra, did not apply merger principles controlling preexisting permanent conditions and “did not, of course, make an apportionment within the contemplation of F.S. Section 440.02(19), F.S.A., which was not applicable.” Tolvanen, supra at 301.

The order is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

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


text:
    SHERATON TWIN TOWERS and Insurance Company of North America, Appellants, v. Hernando CASAS, Appellee.
    No. WW-370.
    District Court of Appeal of Florida, First District.
    April 22, 1981.

      Donna L. Bergh, Orlando, for appellants. Thomas R. Mooney, of Meyers, Mooney & Adler, Orlando, for appellee.
   PER CURIAM.

The order of the Deputy Commissioner imposing a ten percent penalty on permanent partial disability benefits, pursuant to .Florida Statutes, Section 440.20, is reversed. Kuhle v. Kirk, 177 So.2d 329 (Fla.1965). The award of interest at the rate of six percent per annum on attorney’s fees, as voluntarily agreed to by the parties, is affirmed, as is the award of interest on costs computed from the date of entry of the Deputy’s original order. The cause is remanded to the Deputy for reconsideration of the award of attorney’s fees in the light of this court’s decision reversing penalties.

BOOTH and JOANOS, JJ., concur.

ERVIN, J., concurs and dissents with opinion.

ERVIN, Judge,

Concurring and Dissenting.

I would affirm the order of the deputy commissioner in its entirety. It is true that Kuhle v. Kirk, 177 So.2d 329, 330 (Fla.1965), construed Section 440.20(5) “to apply only to delinquent payments of compensation for temporary disability and death benefits.” It is also true that the benefits ultimately awarded here were permanent, not temporary, and that the date of maximum medical improvement, as ultimately determined, coincided precisely with the date on which the employer/carrier (e/c) had accepted claimant as 25% permanently, partially disabled (PPD). Nevertheless, I consider that the e/c should be estopped, because of its actions, to deny that the benefits which it had voluntarily agreed to pay claimant were anything other than temporary. A brief summary of the facts is required.

Claimant was injured in an industrial accident on January 2, 1975, and was later released from his treating physician’s care with a permanent physical impairment rating of 20% of the body as a whole. On May 9, 1978, the e/c filed a WCC-4 form accepting the claimant as having a 25% PPD of the body as a whole. Later, a claim was filed seeking to have claimant determined permanently, totally disabled (PTD). At the hearing, the e/c did not contest claimant’s entitlement to the 25% rating which it had accepted, but only took issue with the claimant’s contention that he was PTD. Following an order by the judge of industrial claims finding that the extent of claimant’s disability was as claimant had asserted, the e/c took an appeal, and during its pendency, on November 27, 1978, terminated the benefits which it had previously agreed to pay. The net effect of the e/c’s decision to terminate was that claimant did not receive any disability benefits between November 27, 1978 and March 14, 1980, or until after the Supreme Court had affirmed the orders of both the judge of industrial claims and the Industrial Relations Commission.

In my view it is precisely this type of arbitrary action by e/cs which Section 440.-20(5) was designed to remedy. Had the e/c complied with its voluntary agreement to pay claimant benefits based upon its decision that he was 25% PPD, it would have been obligated to pay weekly disability amounts for a total period of 87.5 weeks of compensation from the date of the agreement. Instead of doing so, however, it unilaterally abrogated its stipulation approximately 29 weeks folio wing ■ its acceptance. By its own actions, the e/c obviously considered itself not bound by the “permanent” label it placed upon the agreement, and I would consider it now estopped from arguing that the agreement was anything other than one obligating it to pay temporary benefits.

The equitable principle of estoppel has been incorporated into the workers’ compensation law in many contexts. I see no reason why estoppel should not be applied within the penalty context. Estoppel is a multifaceted concept; it pertains to situations involving much more than affirmative representations made by the party sought to be estopped. An estoppel can also arise by virtue of positive acts or conduct, or even due to silence, acquiescence, or delay. And, more to the point, it can arise from one party’s inconsistent legal positions, if such conduct is detrimentally relied upon by the other party. See Fla.Jur.2d, Estoppel and Waiver, § 49.

In the case at bar the claimant should have been aware that there would be a justified delay in receiving benefits authorized by the deputy’s award in excess of the voluntary payments which he had been receiving during the e/c’s appeal of the award. See Section 440.27(2), authorizing the stay of an order awarding disability or medical benefits during the pendency of an appeal. However, he had no reason to expect that he would be without any benefits during the appeal, especially since there was no dispute that he was partially disabled. Indeed, the e/c defended on the basis that claimant was no more than 25% PPD, the amount of disability which it had voluntarily consented to pay. It is precisely this kind of inconsistency in legal positions which cries out for the imposition of an equitable estoppel.

Finally, I consider that the disallowance of penalties in situations where the e/c first accepts, then rejects, a voluntary determination of disability is contrary to the spirit of the Workers’ Compensation Law since an e/c could use the threat of terminating voluntary payments as a subtle means of economic coercion, thereby forcing a claimant to settle below the true value of his claim. An e/c should not be permitted to present the claimant with such a Hobson’s choice. Although there is no evidence in the record concerning what motivated the e/c to cease paying benefits, the e/c no doubt was cognizant, as stated by the deputy commissioner, “what the effect of terminating all compensation to a claimant, pending an appeal, would have on his ability to provide for his and his family’s needs.” The imposition of a penalty as a means of compensating claimant for the inconvenience caused to him and his family by the nearly 16-month delay in reinstating payments is a sanction which, in my judgment, was contemplated by the legislature.

To conclude: Kuhle has no application to the circumstances before us because the e/c’s conduct estops it from asserting its voluntary agreement was one other than to pay temporary benefits. I would therefore treat the suspended voluntary payments as temporary benefits, the late payment of which is subject to a penalty within the ambit of Kuhle.

      . Section 440.20(5), Florida Statutes, provides: If any installment compensation payable without an award is not paid within 14 days after it becomes due, ... there shall be added to such unpaid installment an amount equal to 10% thereof, which shall be paid at the same time as, but in addition to, such installment of compensation, unless notice is filed under subsection (4), or unless such non-payment results from conditions over which the employer or carrier had no control....
      A virtually identical provision is now contained in Section 440.20(7), Florida Statutes (Supp. 1980).

      . It appears from a review of the cases relating to the question of penalties that an e/c may avoid the assessment of penalties if its accepted date of MMI corresponds with that ultimately determined in an adjudicated award. See Kuhle, supra, at 331, and Kuhle’s progeny, Massey v. Haynie, 180 So.2d 331 (Fla.1965); Walt Disney World Co. v. Kahle, IRC Order 2-2455 (March 7, 1974); Winn Dixie Stores v. Reese, IRC Order 2-3380 (March 24, 1978) and Judicial Administrative Commission v. Marks, 394 So.2d 211 (Fla. 1st DCA, 1981). Nevertheless, none of those cases has considered the question whether an e/c may be subjected to penalties — despite its prior voluntary acceptance of an MMI date which is later retrospectively confirmed by an order of adjudication — if it terminates the disability benefits it had agreed to pay.

      . For instance, carriers under certain circumstances have been estopped to deny employment status. See, e. g., Miami Dolphins, Ltd. v. Tucker, IRC Order 2-2615 (1974); Blumberg v. American Fire and Casualty Co., 51 So.2d 182 (Fla.1951); Dyalwood, Inc. v. Thomas, 122 So.2d 314 (Fla.1960). Another line of cases has established that a carrier can be estopped to assert the statute of limitations as a defense. See, e. g., Howanitz v. Biscayne Electric, Inc., 139 So.2d 678 (Fla.1962); Engle v. Deerborne School, 226 So.2d 681 (Fla.1969); Pate v. Bay County School Board, IRC Order 2-3076 (December 9, 1976).

      . The difference between promissory estoppel and equitable estoppel is that, as to the former, the representation is promissory rather than pertaining to an existing fact. South Inv. Corp. v. Norton, 57 So.2d 1 (Fla.1952); Southeastern Sales and Service Co. v. T. T. Watson, Inc., 172 So.2d 239 (Fla. 2d DCA 1965).

      . See, e. g., State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950).

      . See, e. g., Hillsborough County v. Memorial Heights Development Co., 114 Fla. 251, 154 So. 188 (1934).

      . See, e. g., South Miami v. State, 140 Fla. 740, 192 So. 624 (1939).

      . In a situation where the penalty provisions are applicable, a carrier must normally controvert the right to compensation within 21 days “after it has knowledge of the alleged injury or death.” Fla.Stat. § 440.20(6). See also Florida Erection Services, Inc. v. McDonald, 395 So.2d 203, no. VV-150 (Fla. 1st DCA, 1981).

      . In a sense the carrier may be said to have treated its voluntary payments in a manner akin to the seldom awarded temporary partial compensation provided in Section 440.15(4), Florida Statutes. As to these benefits, Professor Alpert states that “[temporary partial disability may follow or be proceeded by temporary total disability or by any other kind of disability.” L. Alpert, Workmen’s Compensation Law, § 11-2 (3d ed. 1978). Alpert also notes that there is no definition in Chapter 440 for “permanent” disability. § 11-18. He cites Dennis v. Brown, 93 So.2d 584 (Fla.1957), for the proposition that a claimant can be awarded temporary total benefits in connection with an industrial accident even though he was permanently totally disabled in connection with a previous accident. The Dennis court justified its conclusion as follows:
      Workmen’s compensation acts are but statutory creations. Few statutes have achieved perfection in accomplishing their purpose. The statutes themselves may not evince a perfect logic. For instance, many provide that for a permanent and total disability a man shall be compensated at a percentage of his salary for a certain maximum number of weeks, instead of a period based upon some formula with respect to his remaining life expectancy. Due to the impossibility or impracticality of providing for every conceivable factual situation, application of the statute to achieve a known purpose of legislation may sometimes create a technical inconsistency. We feel that workmen’s compensation acts were designed to remove from the workman himself the burden of his own injury and disability and place it on the industry which he served. Such acts should be liberally construed with the interest of the working man foremost. 93 So.2d at 588.


author: PER CURIAM. JO ANOS, Judge,

text:
    AGRI-BUSINESS, INC. and Florida Farm Bureau Insurance Company, Petitioners, v. Calvin BRIDGES, Respondents.
    No. WW-411.
    District Court of Appeal of Florida, First District.
    April 22, 1981.

      Marjorie D. Gadarian, of Jones & Foster, West Palm Beach, for petitioners.
    J. J. Goodmark, of Goodmark & Good-mark, West Palm Beach, for respondents.
   PER CURIAM.

The court has considered the petition for writ of common law certiorari, the response to the petition and the reply to that response. Petitioners seek review of an order of the deputy commissioner compelling the disclosure of the carrier’s entire case file on the ground the file may contain evidence of the carrier’s bad faith in the handling of the claim. Respondent argues that since there is no case law in the area of bad faith in workman’s compensation cases, excess liability of insurance carrier cases involving bad faith or recklessness are analogous. With this we disagree. In an excess liability case the insurance company participates not only on its own behalf, but also on behalf of its insured. Therefore, the insured is entitled to all materials and documents prepared by the insurance company while acting on behalf of the insured. Stone v. Travelers Insurance Company, 326 So.2d 241 (Fla. 3d DCA 1976). No such relationship exists between the claimant and the carrier in a workman’s compensation case. Therefore, the excess liability insurance cases are not analogous.

Respondent points out that when a party requesting production demonstrates a compelling necessity for the documents to be exhibited in order to reach the merits of the case, disclosure of the work product of an opposing party may be compelled. Such a necessity may be established by showing that: (1) the underlying evidence has been damaged, disassembled, changed, or is inaccessible to the same examination by respondent; (2) that the withholding of the information and the documents sought would defeat the interest of justice; or (3) that the information is not as readily available to respondent as it was to petitioner. Travelers Insurance Company v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972). The record in the present case clearly reflects that no such showing was made before the deputy commissioner. Therefore, there is no competent substantial evidence which can support the deputy commissioner’s finding that the present case falls within an exception to the work product exclusionary rule.

The order compelling discovery is quashed and the case remanded to the deputy commissioner for proceedings consistent with this opinion.

WENTWORTH, J., and LILES, WOOD-IE A. (Ret.), Associate Judge, concur.

JOANOS, J., concurring specially.

JO ANOS, Judge,

concurring specially.

I agree with the majority that work product is not subject to discovery except upon a showing of compelling necessity as set out in Travelers Indemnity Company v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972). However, I would suggest that in a proceeding seeking attorney’s fees based upon an allegation of bad faith in a workers’ compensation case, the claimant should also be required to make some preliminary showing that there is reasonable cause to believe that bad faith has occurred.