author: PEARSON, TILLMAN (Ret.), Associate Judge. SCHWARTZ, Judge

text:
    Marcus EVANS, Jr. and Michael Evans, Minors, by and through their father, Marcus Evans, Sr., Carol Evans and Marcus Evans, Sr., individually and as her husband, Appellants, v. SOUTHERN HOLDING CORPORATION and Insurance Company of North America, Appellees.
    No. 79-675.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 9, 1981.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Tobin & Thomson, Coral Gables, for appellants.
    Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellees.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

The appellants, Carol Evans, Michael Evans and Marcus Evans, Jr., were plaintiffs in the trial court. They claimed damages for personal injury in an automobile inter-sectional collision. The only defendants concerned with this appeal are Southern Holding Corporation and its insurance company, Insurance Company of North America. Southern Holding Corporation was the owner and developer of a subdivision which was under construction at the time of the accident and was the owner of the four corners of land adjacent to the intersection when the accident occurred. The plaintiffs appeal a summary final judgment for the defendant.

The only arguable basis for reversal of the summary final judgment is that an issue of fact remained to be tried as to the liability of the defendant founded upon allegations of the complaint that the defendant contributed to the cause of the accident by allowing high weeds to grow on the southwest corner and by storing heavy equipment on that corner of the property so that the drivers of the colliding vehicles had their view of approaching traffic obscured.

The simple question presented is whether there is a duty on a landowner to maintain his property in a condition so that a motorist approaching a public highway intersection can see other approaching motorists. It must be noted that this question excludes situations where obstructions on private property are in violation of some statute or ordinance. See 39 Am.Jur.2d Highways, Streets and Bridges §§ 365, 462 (1968); 23 Fla.Jur. Negligence § 69 (1959), and compare Bohm v. Racette, 118 Kan. 670, 236 P. 811 (1925). The question also excludes situations where the obstruction protrudes onto public property. See Gulf Refining Co. v. Gilmore, 112 Fla. 366, 152 So. 621 (1933); 16 Fla.Jur. Highways, Streets and Bridges § 119 (1957), and 39 Am.Jur.2d Highways, Streets and Bridges § 359 (1968).

A recent Florida case involving the obstruction of the view of approaching traffic, which is cited by both parties to this appeal, is Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976). This opinion held without discussion that a summary judgment must be reversed when there is an issue as to whether a private driveway of a trailer park was so unsafe because of obstructions as to constitute a trap for lawful users of the private driveway. The proposition advanced by the plaintiffs in the present case is much broader. They urge that we disregard the traditional rule that the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his land and impose upon a landowner for the benefit of motorists using a public street the duty to maintain his property so that the motorist’s view of intersecting traffic is not obstructed. See Prosser, Law of Torts § 57 (4th Ed. 1971); 39 Am.Jur.2d Highways, Streets and Bridges § 462 (1968). We find that no such duty has been established in Florida. See Hardin v. Jacksonville Terminal Co., 128 Fla. 631, 635-36, 175 So. 226, 228 (1937). As our Supreme Court in Bassett v. Edwards, 158 Fla. 848, 852, 30 So.2d 374, 376 (1947) succinctly stated:

“Obstruction of view when motoring on a highway must be observed by all motorists. Every user of the highway is required to exercise reasonable care for his own safety arid protection. It was the truck driver’s duty and also the driver of the automobile to observe the oleander bush at this intersection and to bring their vehicles under such control as the situation required and demanded.”

It is easy to say that the restriction on the use of private property is only that each landowner shall not unreasonably use his property, but the establishment of such duty (as urged by plaintiffs) entails the right in every intersectional collision case for the motorist to charge and litigate before a jury whether the jury thinks the landowner’s use of his land is reasonable. See Rodgers v. Ray, 10 Ariz.App. 119, 457 P.2d 281 (1969). Further, we find no rational basis for such an extension of a duty concept to limit the use of private property. See discussion of the duty concept and the limitation upon the use of land at Prosser, Law of Torts § 57 (4th Ed. 1971).

Having reached the conclusion that the duty alleged as a basis for plaintiffs’ claim of negligence does not create a basis for liability, we find no basis for reversal of the summary final judgment.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my judgment, the facts of this case raise a triable issue as to whether the defendant-landowner breached a duty of care which should be, and in fact has been, recognized by the law of Florida. That duty is the one referred to, albeit in a negative fashion, in Hardin v. Jacksonville Terminal Co., 128 Fla. 631, 175 So. 226 (1937), which is cited by the court. At 175 So. 228, it was said:

there is no liability on the part of a landowner to persons injured outside his lands (which includes persons on adjacent highways), unless the owner has done or permitted something to occur on his lands which he realizes or should realize involves an unreasonable risk of harm to others outside his land, and therefore imposes on him, as an owner or possessor of the land, the duty of abating or obviating the use or condition from which the risk is encountered.

See, Cook v. Martin, 330 So.2d 498 (Fla.4th DCA 1976), cert. denied, 339 So.2d 1170 (Fla.1976).

The majority suggests that the imposition of liability in this case would be improperly contrary to “the traditional' rule that the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his land and impose upon a landowner for the benefit of motorists using a public street the duty to maintain his property so that the motorist’s view of intersecting traffic is not obstructed.” I disagree with this position. In the first place, it was affirmatively alleged and dertionstrated below that at least part of the obstruction to view was caused by the existence of “large trailers, vans, construction equipment, and outdoor toilets” near the intersection. If negligently created or permitted to exist, this decidedly non-“purely natural” defect, see, 2 Restatement (Second) of Torts § 363 Comment b (1965), would give rise to liability under the firmly established principle embodied in 2 Restatement (Second) of Torts § 364 (1965):

Creation or Maintenance of Dangerous Artificial Conditions
A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if
(a) the possessor has created the condition, or
(b) the condition is created by a third person with the possessor’s consent or acquiescence while the land is in his possession, or
(c) the condition is created by a third person without the possessor’s consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.

As to the “natural” condition caused by the growth of weeds, the supposed rule of non-liability is based upon a notion concerning the right to the unrestricted use of one’s land which was founded upon conditions in an overwhelmingly agricultural society and which has therefore long outlived its raison d’etre. See, e. g., Roberts v. Harrison, 101 Ga. 773, 28 S.E. 995 (1897). I see no reason in modern-day life for a blanket rule of law insulating a landowner under all circumstances from responsibility for entirely foreseeable consequences, see, Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980), caused by a negligent failure to eliminate obstructions from his property. As several modern decisions have indicated, I would hold that, on the present record, a jury question has been presented on this theory of the case as well. See, Wisher v. Fowler, 7 Cal.App.3d 225, 86 Cal.Rptr. 582 (1970); Salomone v. Boulanger, 32 Conn.Supp. 115, 342 A.2d 61 (Super.Ct. 1975); 2 Restatement (Second) of Torts § 363(2) (1965), and caveat and comment on subsection (2); compare, Rodgers v. Ray, 10 Ariz.App. 119, 457 P.2d 281 (1969), questioned in Hall v. Mertz, 14 Ariz.App. 24, 480 P.2d 361 (1971).

The Florida case cited by the court for its contrary conclusion, Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374 (1947) does not involve an action against the landowner at all. More important, it embodies concepts of proximate causation, intervening cause, and contributory negligence which no longer obtain in our state. Gibson v. Avis Rent-A-Car System, Inc., supra; Hoffman v. Jones, 280 So.2d 431 (Fla.1973); see, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) (liability for intersection accident arising from negligent maintenance of traffic control device).

Finally, the court states that reversal “entails the right in every intersectional collision case for the motorists to charge and litigate before a jury whether the jury thinks the landowner’s use of his land is reasonable.” So be it. Subject, as in every case, to appropriate superintendence by the court when there is no liability as a matter of law, the determination of whether reasonable care has been exercised in a specific situation is just what juries do and what, under our system, they are for. See, Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980). Every day, juries decide whether a landowner has negligently maintained his premises so as legally to cause injury to persons located on the property. I do not believe that the Republic would fall if they were allowed to make the same decisions as to persons on the adjoining highway.

      . The complaint alleged:
      “8. In addition the Defendant, SOUTHERN HOLDING CORPORATION, caused and permitted a large, dense, and high growth of weeds on its property adjacent to the intersection of S.W. 18th Street and S.W. 122nd Avenue, blocking and obstructing the view of motor vehicles approaching the intersection and constituting a ‘trap’ and nuisance. The Defendant, SOUTHERN HOLDING CORPORATION, caused and permitted large trailers, vans, construction equipment, and outdoor toilets to be parked in violation of law, adjacent to the intersection of S.W. 18th Street and S.W. 122nd Avenue, impairing the view of the motor vehicles approaching the intersection.”

      . It is significant that Hardin cites the original version of this section of the Restatement with approval. 175 So. at 227.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Erwin HUNTER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1508.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 7, 1981.
    Bennett H. Brummer, Public Defender, and Peter Raben and Karen M. Gottlieb, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin and Calvin L. Fox, Asst. Attys. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980). See also, Youthful Offenders Act, Ch. 80-321, § 1, 1980, Fla. Session Law Serv. 1471 (West) (to be codified as § 958.04, Fla.Stat. [Supp.1980]).


author: DANIEL S. PEARSON, Judge.

text:
    Ann SHERIDAN and Nationwide Underwriters, Inc., Appellants, v. Allen GREENBERG and Woodrow Kaiser, Appellees.
    No. 80-52.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 9, 1981.

      Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellants.
    Joel V. Lumer, Adams & Ward, Neil Cho-nin, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Allen Greenberg, desirous of procuring a workmen’s compensation insurance policy covering himself and other employees of his small lawn mowing business, contacted Woodrow Kaiser, his regular insurance agent. Kaiser, unable to place the policy with the company he represented, called another insurance agent, Ann Sheridan. Kaiser and Sheridan made arrangements for the policy on the telephone, and Sheridan procured a policy for Greenberg through Nationwide Underwriters, Inc.

Greenberg later suffered a job-related injury and filed a workmen’s compensation claim with Nationwide. Nationwide successfully denied coverage, because Green-berg, the employer, was not listed as an insured. Greenberg sued Kaiser, Sheridan and Nationwide, as Sheridan’s principal, for damages arising from their negligent failure to procure coverage for Greenberg. Sheridan and Nationwide cross-claimed against Kaiser, alleging that Kaiser’s negligence was the cause of Greenberg’s damages. The jury returned a verdict for Greenberg against Sheridan and Nationwide, but found Kaiser not negligent. From the judgment entered thereon and a separate award of attorneys’ fees to Green-berg, Sheridan and Nationwide appeal.

The Jury Instruction.

The trial court, over Sheridan and Nationwide’s repeated objections, instructed the jury that:

“An insurance agent who undertakes for compensation or other benefit the responsibility of procuring the issuance of an insurance policy, then that agent must exercise a reasonable degree of skill and care to insure that the coverage sought is appropriate, including all steps necessary to afford coverage.” (emphasis supplied).

Sheridan claims that the instruction misstates the law and that, since it was undisputed that Kaiser received no compensation, the giving of the instruction was tantamount to directing the jury to return a verdict for Kaiser.

An insurance agent who voluntarily, without consideration or expectation of remuneration or reward, agrees to procure a policy is liable for damages that result from his failure to do so. Reed Mfg. Co. v. Wurts, 187 Ill.App. 378 (1914). Reliance by the putative insured on the insurance agent’s undertaking, even if that undertaking is gratuitous, is sufficient to trigger a duty upon the agent to exercise the reasonable skill and care to obtain the appropriate coverage. Colonial Savings Association v. Taylor, 544 S.W.2d 116 (Tex. 1976); Graddon v. Knight, 138 Cal.App.2d 577, 292 P.2d 632 (1956); Lusk-Harbison-Jones v. Universal Credit Co., 164 Miss. 693, 145 So. 623 (1933); Siegel v. Spear & Co., 234 N.Y. 479, 138 N.E. 414 (1923); Couch on Insurance 2d, § 25.33 (1960). See also Restatement (Second) of Torts, Section 323 (1965) (“one who undertakes, gratuitously or for consideration, to render service to another which he should recognize as necessary for the protection of the other’s person” is subject to liability for harm suffered because of the other’s reliance on the undertaking). We hold, therefore, that the instruction was error. We hold further that this error clearly prejudiced Sheridan and Nationwide in their cross-claims against Kaiser.

Attorneys’ Fees.

The issue we now address is whether Greenberg, having recovered judgment against Sheridan and Nationwide for negligent failure to procure workmen’s compensation coverage, may recover attorneys’ fees in this action.

The fundamental rule in Florida is that attorneys’ fees are in derogation of the common law and will only be granted pursuant to a contractual agreement or statutory authority. Any statute allowing an award of fees will be strictly construed. Roberts v. Carter, 350 So.2d 78 (Fla. 1977); Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla. 1975).

In Roberts v. Carter, supra, the Florida Supreme Court held that under Section 627.428(1), Florida Statutes (1975), a part of Florida’s Insurance Code, only persons named in the statute as authorized to recover attorneys’ fees could, in fact, do so. Section 627.428(1) provides:

“Upon .. . judgment ... against an insurer and in favor of an insured or the named beneficiary under a policy ... the . .. court . .. shall [award] . . . attorneys’ fees.” (emphasis supplied).'

The court held that only “the contracting insured, the insured’s estate, specifically named beneficiaries and third parties who have coverage through assignment” may recover attorneys’ fees. See also Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978). The statute’s purpose, according to the court in Roberts, “is to discourage contesting valid claims by insureds against insurance companies.”

Greenberg correctly says that his action against Sheridan does not arise under the Insurance Code and that the trial court’s fee award was not made under Section 627.-428(1). He argues that therefore Roberts is not controlling. His argument proves too much. If the award of attorneys’ fees to him is not pursuant to any statutory authority (it being undisputed that there was no contractual arrangement for fees), there is no authority at all for a fee award.

Greenberg points to Duncanson v. Service First, Inc., 157 So.2d 696 (Fla. 3d DCA 1963), as stating a contrary rule. A close examination of Duncanson tells us otherwise. In Duncanson, a person named Wilson went to Service First, Inc., her insurance agent, to renew her automobile liability policy. Service First undertook to renew the policy, but failed to do so. Wilson was later involved in an automobile collision and was sued by Duncanson. Wilson made a demand upon Service First to defend her against Duncanson’s suit, and Service First refused.

We said in Duncanson that Service First was liable to Wilson to the extent of the prior policy, not only for the amounts assessed against Wilson in Duncanson’s action against her, but also was “required to pay a reasonable attorney’s fee for the defense of the suit instituted by Duncanson against Wilson .... ” 157 So.2d at 699. Duncan-son merely holds that where one of the provisions of an insurance contract is to provide a defense to the insured, a breach of that contract causing the insured to expend attorneys’ fees in providing for his own defense is an element of damages in a later suit against the insurer.

Duncanson does not, therefore, represent a departure from the fundamental rule that attorneys’ fees will be awarded only pursuant to contract or statute. That rule concerns itself with attorneys’ fees for prosecuting or defending the action itself, not attorneys’ fees as an element of damages to be recovered within the action. Where, as here, the fees sought to be recovered by Greenberg were those incurred during the lawsuit against Sheridan and Kaiser, they are not recoverable. Compare Tidwell v. Witherspoon, 21 Fla. 359 (1885) (holding that in an action for malicious prosecution the plaintiff is entitled to recover damages not only for his unlawful arrest and imprisonment, but also for expenses of his defense); Bondy v. Royal Indemnity Co., 134 Fla. 776, 184 So. 241 (1938) (holding that “in order to recover damages, including attorneys’ fees, for the damages consequent upon the improper suing out of the writ of attachment the proceedings must be begun ... as a proceeding to dissolve the attachment and not as a trial of the case on the merits.”); City of Miami Beach v. Bretagna, 190 So.2d 364 (Fla. 3d DCA 1966) (holding in a false imprisonment action that the plaintiff is not entitled to recover attorneys’ fees unless the services were to secure his discharge from the illegal restraint); Susman v. Schuler, 328 So.2d 30 (Fla. 3d DCA 1976) (holding in a slander of title action that attorneys’ fees are recoverable as part of the costs of removing the cloud from the title). See also Ellis v. Flink, 374 So.2d 4 (Fla. 1979) (dissenting opinion) (“attorneys’ fees may be a proper element of damages when they are incurred in litigation or for legal services other than that involved in the main action, which litigation or other legal services were made necessary by the breach or violation being sued upon.”); Martin v. Paskow, 339 So.2d 266 (Fla. 3d DCA 1976); Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973).

Conclusion

Greenberg has not appealed from the judgment of non-liability in favor of Kaiser. Thus, we need not consider the effect of the erroneous jury instruction on Green-berg’s claim against Kaiser. Since the instruction had no effect on Greenberg’s claim against Sheridan and Nationwide, we affirm that part of the final judgment awarding damages to Greenberg against Sheridan and Nationwide Underwriters, Inc.

The erroneous instruction did, however, impact the cross-claim of Sheridan and Nationwide Underwriters, Inc. against Kaiser. We reverse that part of the final judgment entered in favor of Kaiser on the cross-claims of Sheridan and Nationwide Underwriters, Inc. and remand the cause for a new trial on the cross-claims.

Finally, we reverse the order granting attorneys’ fees in favor of Greenberg and deny Greenberg’s motion for attorneys’ fees in connection with this appeal.

Affirmed in part; reversed in part.

      . In order for a proprietor of a business to be covered under a workmen’s compensation policy, notice must be filed with the Division of Worker’s Compensation, § 440.05(2), Fla.Stat. (1975), and he must be listed as an insured on the policy.

      .Other cases reach the same result by holding that although consideration is required, the requirement is satisfied by the exchange of mutual promises-I’ll get you the coverage; I’ll accept the policy. See, e. g., First National Insurance Agency v. Leesburg Transfer & Storage, 139 So.2d 476 (Fla. 2d DCA 1962); Glisson v. Stone, 4 Tenn.App. 71 (1926); Elam v. Smithdeal Realty & Insurance Co., 182 N.C. 599, 109 S.E. 632 (1921). Had the instruction in the present case used the word “consideration” instead of the words “compensation or other benefit,” and had the court defined consideration to include mutual promises, we might agree with Kaiser that no error was committed.

      . Neither deMarior v. Foley Carter Insurance Company, 386 So.2d 22 (Fla. 2d DCA 1980), nor Cat’n Fiddle, Inc. v. Century Insurance Co., 200 So.2d 208 (Fla. 3d DCA 1967), upon which the parties variously rely, involve gratuitous undertakings.

      . Kaiser argues that the instruction, if error, is harmless in light of the jury’s special findings that Kaiser was not Greenberg’s agent and Kaiser was not negligent. We reject this argument, since the jury may have found no agency and no duty (therefore, no negligence) by being told that a finding of compensation or other benefit was a predicate.

      . The attorneys’ fees section of the Workmen’s Compensation Act, § 440.34, Fla.Stat. (1975), cannot provide the basis for an award here. The insurance carrier was not unsuccessful in resisting the payment of compensation to Greenberg, a predicate to the recovery of attorneys’ fees under the Act.

      . Greenberg’s reliance on Jernigan v. New Amsterdam Casualty Company, 74 N.M. 37, 390 P.2d 278 (1964), a factually parallel case, is also unavailing. In Jernigan, the court expressly declined to decide whether attorneys’ fees were recoverable as of right where the insurance agent failed to procure a workmen’s compensation policy. Instead, the court awarded fees based on the tacit agreement of the insurer to the award.

      . In Ellis v. Flink, the majority discharged the writ of certiorari upon a finding that the conflict required by the Constitution did not exist.


author: SCHWARTZ, Judge.

text:
    THE FLORIDA BAR, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 80-147.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 7, 1981.

      Paige & Catlin, Daniels & Hicks, Lawrence & Daniels and Adam Lawrence, Miami, for appellant.
    Adams & Ward and Robert C. Ward, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

In 1975 and 1976, Ralph L. Johnston, an attorney then practicing in Dade County, effected personal injury settlements on behalf of three separate clients with the Allstate Insurance Company. In each instance, Allstate drew a draft for the agreed amount, payable “through the First National Bank of St. Petersburg” to the client and Johnston as co-payees. Johnston endorsed the drafts with both his own name and, without their knowledge, those of the clients and deposited them in his trust account in the First National Bank of Miami. After Allstate had duly authorized the St. Petersburg bank to make payment, Johnston absconded with all of the proceeds. The Florida Bar, through its Clients’ Security Fund, then reimbursed each client for the 60% share of the settlement to which he was entitled-the total amount less 40% in attorney’s fees due to Johnston. As the clients’ subrogee, the Bar then brought this action against Allstate to recover the amounts it had paid, based on the claim that Allstate had converted the drafts. A jury returned a verdict for Allstate and the Bar appeals from the resulting judgment. Its primary contention is that its motion for a directed verdict at the conclusion of the evidence should have been granted. We agree and reverse the judgment below.

The plaintiff’s theory of the case was bottomed on the clearly established principles that because they were payable “through” a collecting bank, Allstate is deemed the drawee of the drafts involved in this case, Messeroff v. Kantor, 261 So.2d 553 (Fla. 3d DCA 1972); § 673.120, Fla. Stat. (1979), and that a drawee is liable for the conversion of a negotiable instrument when it is paid upon the forged or unauthorized endorsement of a co-payee. § 673.419(l)(c), Fla.Stat. (1979); Annot., Bank’s Liability to Nonsigning Payee for Payment of Check Drawn to Joint Payees without Obtaining Indorsement by Both, 47 A.L.R.3d 537, 546-48 (1973); see, Glasser v. Columbia Federal Savings & Loan Ass’n., 197 So.2d 6 (Fla.1967); First Independent Bank, N.A. v. Stottlemeyer & Shoemaker Lumber Co., 384 So.2d 952 (Fla. 2d DCA 1980); Wilton Manors National Bank v. Adobe Brick & Supply Co., 232 So.2d 29 (Fla. 4th DCA 1970). Under Sec. 671.-201(43), an

“[unauthorized” signature or indorsement means one made without actual, implied or apparent authority and includes a forgery.

The Bar contends, the appellee essentially concedes, and we agree, that there was no showing that Johnston had either actual, that is express, or apparent authority to sign his clients’ names on the drafts. The only and determinative issue in controversy is whether he had the implied authority to do so. We hold that he did not.

It is, of course, clear that the mere existence of the attorney-client relationship does not alone create an implied authority for counsel to endorse his client’s name on a negotiable instrument. Sainsbury v. Pennsylvania Greyhound Lines, Inc., 183 F.2d 548, 553 (4th Cir.1950); Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977); Moran v. Loeffler-Greene Supply Co., 316 P.2d 132, 139 (Okla. 1957); cases collected, Annot., supra, at 548-49. Allstate claims, however, that this rule is not applicable to this case because, unlike the usual situation in which the lawyer similarly possesses no authority to compromise his client’s claim at all, e. g., Bursten v. Green, 172 So.2d 472 (Fla. 2d DCA 1965); Nehleber v. Anzalone, supra, even the appellant does not dispute that Johnston was authorized to settle the cases in question. Not only is there no question raised as to his pre-negotiation authority, see, Coe v. Diener, 159 So.2d 269 (Fla. 2d DCA 1964), but it is clear that, by accepting the proceeds of the settlements, and, through their subrogee, suing Allstate for the “conversion” of those proceeds, the clients have ratified the settlements and may not now question Johnston’s authority to enter into them. Nagymihaly v. Zipes, 353 So.2d 943 (Fla. 3d DCA 1978); Navrides v. Zurich Ins. Co., 5 Cal.3d 698, 97 Cal.Rptr. 309, 488 P.2d 637, 640-41 (1971).

The legal question on which this case turns is therefore the still-narrower one of whether an attorney, specifically authorized to compromise a claim and collect the proceeds, may endorse the client’s name on a check or draft tendered to effect the settlement. The decisions on this question are in clear and irreconcilable conflict. See cases collected, Annot., Authority of agent to indorse and transfer commercial paper, 37 A.L.R.2d 453, 491-97 (1954); 7 Am. Jur.2d, Attorneys at Law § 132 (1980). We believe that the better, and clearly the majority rule is that no such authority exists. E. g., Sainsbury v. Pennsylvania Greyhound Lines, Inc., supra; Crahe v. Mercantile Trust & Savings Bank, 295 Ill. 375, 129 N.E. 120 (1920); Pearcy v. First Nat. Bank in Wichita, 167 Kan. 696, 208 P.2d 217 (1949); Dacus v. Maryland Casualty Co., 40 N.M. 110, 55 P.2d 663 (1936); Central Trust Co. v. Hahn-Jacobsen Co., 4 Ohio Op. 509, 33 N.E.2d 388 (Ohio App.1935); Zidek v. Forbes Nat. Bank, 159 Pa.Super. 442, 48 A.2d 103 (1946). In rejecting the reasoning which forms the basis of the minority view, see, e. g., Bailey v. United States, 13 F.2d 325 (9th Cir. 1926), the court stated in Ro sacker v. Commercial State Bank, 191 Minn. 553, 254 N.W. 824, 825-26 (1934):

The defendant contends that Kass, Zink & Kass could not, by making their [settlement] check payable to plaintiff and Hageman [plaintiff’s attorney], restrict Hageman’s authority to collect in money, and that consequently in the reduction of the claim to money Hageman had a right to indorse plaintiff’s name. We do not regard such contention as sound. The right of Hageman to indorse plaintiff’s name was no greater than it would have been had the company or the receiver remitted direct to Hageman a check payable to the plaintiff. If such had been the case, the authorities are substantially unanimous in support of the doctrine that Hageman would have had no right to indorse and that the bank would be responsible for accepting a forged indorsement. Hageman may have been entitled to collect in cash, but, having received and accepted a check in the form that he did, he might not indorse his client’s name, much less forge it in order to obtain the proceeds.

Johnston’s endorsements of the clients’ names must therefore be regarded as no more than forgeries. When Allstate, as the drawee, paid the drafts on those endorsements, it was therefore, and as a matter of law, liable for their conversion. See also, Louisville & N.R. Co. v. Citizens’ & Peoples’ Nat. Bank, 74 Fla. 385, 77 So. 104 (1917). Smith v. General Casualty Co. of Wisconsin, 75 Ill.App.3d 971, 394 N.E.2d 804 (1979) also so holds on facts which are totally indistinguishable from these.

For these reasons, the judgment below is reversed and the cause remanded with directions to enter judgment for the plaintiff-appellant in the amount claimed.

Reversed and remanded.

      . The Messeroff case involved a set of facts virtually identical to this one, but the court considered there only the liability of the collecting banks. It did not deal directly with the issue now before us because the insurance company-drawee , received a summary judgment below which the plaintiff did not appeal.

      . Although Johnston stated that the clients all executed written authorizations, none were produced at the trial. Each client denied that this had occurred, and the defendant’s complete failure to demonstrate that an appropriate search for the documents had been conducted rendered Johnston’s testimony as to their contents plainly incompetent under the best evidence rule. Neylans v. Herndon, 79 Fla. 213, 84 So. 89 (1920); see, Dowd v. Star Manufacturing Co., 385 So.2d 179 (Fla. 3d DCA 1980); compare, Action Fire Safety Equipment, Inc. v. Biscayne Fire Equipment Co., Inc., 383 So.2d 969 (Fla. 3d DCA 1980).

      . There was no showing that the clients, Johnston’s principals, had done or said anything to induce Allstate to believe that he possessed such authority, as the “apparent authority" doctrine requires. Taco Bell of California v. Zappone, 324 So.2d 121 (Fla. 2d DCA 1975), and cases collected; Central Trust Co. v. Hahn-Jacobsen Co., 4 Ohio Op. 509, 33 N.E.2d 388 (Ohio App.1935).

      . The Nehleber case also unfortunately involved a generally similar factual situation with the obvious distinction, however, that the absconding lawyer was not authorized to settle the pertinent claim.

      . At 488 P.2d 641, note 5, the California court makes clear that a ratification of the underlying settlement does not serve also to ratify an unauthorized endorsement of the client’s name on the settlement draft.

      . It bears emphasis that Allstate’s status as the drawee of the instruments is the sole basis of our conclusion and that we do not hold that it remains liable on its agreements to pay the amounts of the settlements. On this question, by far the most persuasive authority is that a debtor drawer is discharged from an underlying obligation by the delivery and endorsement of an instrument in the .manner involved in this case. Hutzler v. Hertz Corporation, 39 N.Y.2d 209, 383 N.Y.S.2d 266, 347 N.E.2d 627 (1976); Narvides v. Zurich Ins. Co., supra; 1 Restatement (Second) of Agency § 178 (1958); see, Louisville & N.R. Co. v. Citizens' & Peoples’ National Bank, 74 Fla. 385, 77 So. 104 (1917) (dictum); see generally, Annot., Forgery by Debtor’s Agent-Discharge, 49 A.L.R.3d 843 (1973). Thus, if Allstate’s draft had instead been a check, it would no longer be responsible to the clients. These results are not, however, in the least inconsistent. See, Annot., 49 A.L. R.3d at 865-67. Compare, e. g., Zidek v. Forbes National Bank, supra (bank liable for payment of check unauthorizedly endorsed by attorney) with Zidek v. West Penn Power Co., 145 Pa.Super. 103, 20 A.2d 810 (1941) (debtor discharged by delivery and endorsement of same check). Indeed, the authorities cited either expressly (see, Hutzler, 347 N.E.2d at 631) or by strong implication (see, Narvides, 488 P.2d at 646) recognize the continued viability of a conversion action against the drawee. (The implication in the Smith case, infra, 394 N.E.2d at 806, that the Hutzler case is somehow contrary to Smith itself, is therefore incorrect.). It is true that it is usually assumed that the drawee is a bank and that the drawee and the maker are not one and the same. But there is no defensible basis upon which the obligations imposed by the UCC may be distinguished according to the identity of the drawee. Furthermore, we agree with the observation in Smith, 394 N.E.2d at 806-07, that imposition of liability upon the drawee is the only effective way to trigger the code’s “loss shifting mechanism” so as to reach the potential obligation of the entity which may be primarily liable, the First National Bank of Miami, to which the forged drafts were first presented for payment. See, Jackson Vitrified China Co. v. People’s American National Bank of North Miami, 388 So.2d 1059, 1060 (Fla. 3d DCA 1980); Messeroff v. Kantor, supra.

      . The 60% of the settlements for which the Bar sued Allstate represents the interest of the clients in the drafts, which is the proper measure of damages in an action for their conversion. See, Page v. Matthews, 386 So.2d 815 (Fla. 5th DCA 1980); Annot., supra, 47 A.L.R.3d at 541, 553-54.


author: BASKIN, Judge.

text:
    Areta ADLER, Appellant, v. Morton ADLER, Appellee.
    Nos. 80-180, 80-225.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 9, 1981.
    Daniels & Hicks and Sam Daniels, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   BASKIN, Judge.

In consolidated appeals by the wife from an Order on Distribution of Monies and Finding of Facts and from an Order Denying Motion for Continuance both entered subsequent to a final judgment of dissolution of marriage, we are asked to determine the correctness of the trial court’s rulings. The trial court ordered the wife to reimburse the husband for mortgage, maintenance, and repair payments on the marital home. In addition, the court ruled that a property settlement agreement provision requiring the husband to pay the minor child’s medical expenses did not include psychiatric care. We reverse the court’s rulings on the mortgage, maintenance, and repair payments and affirm as to the medical expenses.

The final judgment of dissolution of marriage incorporated a property settlement agreement entered by the parties three days earlier. The property settlement agreement provided that upon sale of the parties’ marital home, the net proceeds were to be divided equally “subject to the further conditions herein below set forth for the payment of certain obligations from the Husband’s interest.” The wife and minor child were to live in the home until it was sold. The agreement provided:

5. The Husband shall be responsible for all mortgage payments (which include principal, interest, taxes and insurance) on said residence until the same is sold....

The agreement concluded:

Except as otherwise provided in this Agreement each party releases the other from all other claims and demands, but this is not intended to release in any way the obligations of either of the parties previously incurred voluntarily or by virtue of any prior Court Order.

In the prior court order, the Order Awarding Temporary Allowances, the court stated:

The Husband shall be required to pay the Wife the sum of $275.00 per week and shall also be responsible for and pay the following items as they become due and payable, to wit: .. . the mortgage payment ... medical and dental bills....

In resolving the dispute that arose between the parties after the home was sold, the trial court held that the husband was entitled to receive from the wife $25,8.62. That amount included a requirement that the wife pay $18,500 for half the mortgage payments accruing between the time the husband left the home and its sale, that she reimburse the husband $5,800 for maintenance and repair work, and pay him a credit of $1,562. The order also provided that the child support terms of the property settlement agreement requiring that the husband pay medical expenses excluded the cost of psychiatric care for the minor child.

The property settlement agreement clearly states that the husband shall be responsible for all mortgage payments. This provision is consistent with the earlier temporary support order also requiring the husband to be responsible for the mortgage payments. The husband contends that nothing in the agreement prohibits him from claiming half the mortgage payments as a reimbursement because he is a tenant in common with his former wife. He argues that the agreement creates a windfall for the wife and places disproportionate obligations upon the parties. The husband’s argument is totally devoid of merit. He apparently seeks to overturn the property settlement agreement he voluntarily entered and to avoid its consequences. Such action would render his agreement meaningless as the product of whim rather than of thoughtful planning to determine the parties’ rights. We find no error in the court’s action incorporating the agreement into the final judgment of dissolution. Since the agreement expressed the intent of the parties, the trial court erred in failing to enforce its provisions.

We reverse the trial court’s order insofar as it ignored the property settlement agreement provisions that the husband be responsible for repairs. This includes the $1,800 and $4,000 reimbursement by the wife to the husband for repairs and maintenance of the home. Both awards are reversed.

Turning to the provisions of the property settlement agreement concerning medical expenses to be borne by the husband, we find that upon examination of the testimony, neither the husband nor the wife agreed to include psychiatric care as part of those expenses. The matter was discussed, but no agreement was reached. Thus, the statement in the final order that “the parties intended by the Property Settlement Agreement to exclude as medical expenses the cost of psychiatric care for Neal Adler, the minor child” is accurate only as it pertains to the husband. We note that the husband refused to sign an agreement with the word psychiatry in it. It appears clear that the parties were not in agreement with regard to the payment by the husband of psychiatric medical expenses. We therefore affirm - the trial court’s order as to this issue, noting the understanding between the parties that Mrs. Adler might, in the future, apply for those funds.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . In light of our holding concerning the appeal of the distribution of monies and finding of facts order, we need not decide the issue pertaining to the order denying the motion for continuance.


text:
    UNITED FIVE, INC., Appellant, v. M.V.R.T., INC., Appellee.
    No. 80-435.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 9, 1981.
    Lopez & Harris and Lawrence A. Wan-shel, Miami, for appellant.
    Schwitalla & Lombana and Hector J. Lombana, Coral Gables, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon review of the appeal and cross-appeal, we affirm the final judgment.


text:
    CALVERT FIRE INSURANCE COMPANY, Appellant, v. Stephen H. TARR, Appellee.
    No. 80-638.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Jan. 7, 1981.
    McDonald & McDonald, Miami, for appellant.
    Stephen H. Tarr, in pro. per.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Appellant, insurer of appellee’s aircraft, seeks reversal of a judgment in the amount of $11,002.72 entered in favor of appellee pursuant to a non-jury trial. The judgment resulted from an action in the Circuit Court for Dade County by appellee against appellant on an “all risk” policy of insurance covering appellee’s aircraft.

It is appellant’s contention that the trial court erred in entering judgment for appel-lee because the loss did not occur under the terms of the policy of insurance and that the damage was due to deterioration which was not covered under the policy.

In our review of the issues presented for decision, we have given due consideration to the applicable principle that a judgment of the trial court reaches the appellate court clothed with a presumption of correctness. The facts herein constituted a question for the trial judge sitting as a trier of the facts and were resolved adversely to the appellant. The record reveals that although the testimony is conflicting there is substantial evidence to support the judgment. Appellate courts must give effect to the findings of a trier of facts, if they rest on substantial, competent evidence and their legal effect was not misinterpreted by such trier of facts. First Atlantic National Bank v. Cobbett, 82 So.2d 870 (Fla.1955). No reversible error having been demonstrated, the judgment appealed is affirmed.

Affirmed.


author: ORFINGER, Judge.

text:
    Kerry L. ENGLE, and Rex Denver Hall, Appellants, v. STATE of Florida, Appellee.
    Nos. 79-369/T4-409, 79-596/T4-409A.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Russell E. Crawford, Orlando, J. Cheney Mason, Orlando, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   ORFINGER, Judge.

Appellants each pleaded nolo contendere to a charge of carrying a concealed firearm, specifically reserving for review their right to appeal the denial of a dispositive motion to suppress. We find error and reverse.

On February 12, 1978, a maid cleaning a motel room which appellants had occupied for several days discovered what she thought were automatic rifles under the bed and some marijuana in an ashtray. When she reported this to the management, the Orange County Sheriff’s office was called. While the record is not clear as to the precise sequence of events, it does appear that several deputies arrived in response to this call and after some surveillance, entered appellants’ room without a warrant and removed the weapons and some other items found therein. This was the first entry and the product of that search is not directly involved in this appeal. Deputy Slimmick, who testified at the suppression hearing, said that he arrived later with two other deputies, all in plain clothes, and in the beginning they were assigned the task of watching appellants’ room from the parking lot.

After waiting approximately 30 minutes and observing no activity, Deputy Slimmick and his partners went into the motel and concluding that there was no appropriate place to watch without being noticed, decided to wait in the appellants’ room for the occupants to return. At that stage they did not know the identity of the occupants. After obtaining a key from the desk, they entered the motel room, again without a warrant. About 20 minutes after this second entry, the deputies were advised by radio that the rifles had been checked and were found not to be automatic weapons. About 30 minutes after this second entry, appellant Engle entered the room and was confronted by the officers with drawn guns who, after identifying themselves, frisked him and found a .22 caliber handgun on his person. Appellant Hall entered about a minute later, was also confronted and frisked and was also found to be carrying a concealed .22 caliber handgun. Appellants moved to suppress the handguns as evidence on the ground that they were illegally seized and in furtherance of an illegal arrest. At the hearing on the motion it was conceded by the State that no warrant had been obtained nor was any effort made to obtain a warrant.

We can put to rest any contention that the first warrantless entry into the motel room might have been proper. The State concedes that the record fails to support the legality of the initial entry. The State further concedes that it cannot in good faith argue that the prosecution met the burden of demonstrating the reasonableness of the warrantless search of the motel room and the subsequent seizure of the rifles and other items. The State also concedes that if the second entry into the room had been made for the purpose of searching the room and had items seized as a result of that search been the subject of the motion to suppress, the State “would again be hard pressed to argue the necessity of a warrant-less search and seizure given the time frame involved and the absence of any indication in the record that an attempt was made to secure a warrant.” But, says the State, the handguns were not found as a result of either of the warrantless entries, but as a result of independent factors. With this proposition we cannot agree.

All searches conducted without a warrant are per se unreasonable unless conducted within the framework of a few specifically established and well delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The burden is upon the State to show that a warrantless search comes within one of the recognized exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The five basic exceptions to the requirement for a search warrant are: (1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk. Raffield v. State, 333 So.2d 534 (Fla. 1st DCA 1976).

Consent and hot pursuit are not involved here. Neither can the State contend that the search of appellants was in connection with a lawful arrest. First, the arrest was not made until after the search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Additionally, although not decided until after the order was entered in the case sub judice, the United States Supreme Court has now held that in determining the validity of an arrest without a warrant, it will apply the same principles as it does in determining the validity of a search without a warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The rule emanating from Payton, is that a warrantless arrest in the suspect’s home is an unreasonable seizure absent exigent circumstances. The record here is devoid of any showing of exigent circumstances. Since a guest in a hotel room is entitled to the constitutional protection against unreasonable searches and seizures, Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Sheff v. State, 329 So.2d 270 (Fla.1976), it is clear that a search of appellant’s person in the motel room was unreasonable absent exigent circumstances, and therefore unlawful. The absence of exigent circumstances also eliminates the probable cause exception.

The State makes one more valiant effort to sustain this search when it says that any taint existing as a result of the warrantless entries into the room was attenuated by the fact that the frisk resulted from factors totally independent of these entries, and attempts to find comfort in Wong Sun, supra, which holds evidence to be admissible if obtained by means sufficiently distinguishable so as to be purged of the primary taint of an illegal search. But the State can find no comfort in that theory. To accept it, we would have to conclude that the officers were in the room for a reason unconnected with the original entries and that would be engaging in fantasy. There is no showing of an independent intervening act of the appellants that would dissipate the original taint of the illegal entries. Sheff v. State, supra.

The State says that despite all else, once the officers confronted the appellants in their motel room, they had a right to frisk appellants for their own safety and appellants are being charged with carrying the weapons found in the frisk, not for anything else that might have been found in the room as a result of the illegal entries, relying on section 901.151, Florida Statutes (1976) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A cursory view of the statute and Terry quickly reveals that neither applies or is intended to apply to a warrantless invasion of a person’s residence. Both the statute and the Terry decision rest on the exigent circumstances of a street confrontation-“necessarily swift action predicated upon the on-the-spot observation of the officer on the beat, which historically has not been and as a practical matter could not be subjected to the warrant procedure.” 88 S.Ct. at 1879. There are no exigent circumstances and no circumstances which make the “stop and frisk” rule apply. There was ample time and opportunity to secure a warrant and no excuse at all is offered for its absence.

In view of the State’s inability to show an exception to the warrant requirement, the order denying the motion to suppress is quashed, the judgment of conviction is reversed with directions to discharge the appellants.

REVERSED with directions.

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

      . The deputies visually searched the room but the results of that search are not revealed by this record nor is any issue raised which might have resulted from any such search.


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    FLORIDA INSTITUTIONAL LEGAL SERVICES, INC., Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. PP-148.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 8, 1981.

      Richard A. Belz, Gainesville, for appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Florida Institutional Legal Services, Inc. (FILS) appeals from action by the Commission, expressed in its counsel’s letter which we treat as the appealable equivalent of a final agency order, Rice v. Dept. of Health and Rehab. Serv., 386 So.2d 844 (Fla. 1st DCA 1980), in part granting and in part denying FILS’s petition for agency rule-making on various subjects and “to provide the minimum public information required by s. 120.53.” Section 120.54(5), Florida Statutes (1979). The Commission’s voluntary accession to several FILS requests leaves for our consideration only the limited issues of (1) whether FILS had standing to petition for Section 120.54(5) remedies; if so, (2) whether the Commission was bound to grant the petition for compliance with Section 120.53, requiring rules of organization, practice, and procedure, rules for the scheduling of hearings and prescribing a public agenda, and public information resources including “a current subject-matter index” of rules and orders; and (3) whether the Commission is bound to adopt a rule directing that a Commissioner or the Commission rather than its hearing examiner panels conduct the prison interviews which the Commission accepts as evidence in parole rescission matters.

Petitions for Section 120.54(5) relief may be initiated by “any person regulated by an agency or having a substantial interest in an agency rule . . . . ” That rather liberal test of standing-in contrast to somewhat more restrictive standards written elsewhere in the APA, see Dept, of Offender Rehab. v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. den., 359 So.2d 1215 (Fla.l978)-includes all prisoners, for they are not barred from Section 120.54(5) remedies by the restrictions stated in Section 120.52(10). Comer v. Parole and Probation Comm’n, 388 So.2d 1341 (Fla. 1st DCA 1980). Standing is also afforded FILS, a legal services corporation which by contract with the Commission provides indigent inmates representation and other legal services in parole matters, and which therefore has a “substantial interest” in rules and information of the kind sought. Having standing to petition for the agency action authorized by Section 120.54(5), and being aggrieved by the Commission’s refusal in part to grant the relief petitioned for, FILS is “a party who is adversely affected by final agency action” and is entitled to a Section 120.68 appeal.

As an agency subject to the Administrative Procedure Act, Turner v. Wainwright, 379 So.2d 148 (Fla. 1st DCA 1980), aff’d, 389 So.2d 1181 (Fla.1980), the Commission is bound to adopt the practice and procedure rules which Section 120.53 states “each agency shall” adopt, and the Commission must, in the words of Section 120.54(5), “provide the minimum public information required by s. 120.53.” We do not construe Sections 947.07 and 947.071 as exempting the Commission from the uniform requirements of Section 120.-53. The Commission is therefore obliged to adopt rules for the preparation of an agenda meeting the specificity standards of Section 120.53(l)(d) and the model rules, Fla.Admin.Code R. 28-2.03, and the Commission must also maintain a current subject-matter index, identifying for the public any rule or order issued or adopted after January 1, 1975, including the functional equivalents of orders such as that which we review today, declaratory statements issued by the Commission pursuant to Section 120.565, and Commission determinations of presumptive and effective parole release dates, parole rescission determinations, parole revocation orders, and other final agency decisions which are equivalent to “orders.” Section 120.52(2), (9).

We need not reach the remaining questions, which are whether the Commission must make substantive rules particularizing “aggravating and mitigating circumstances” as employed in Section 947.172(2) and “good cause in exceptional circumstances” as employed in Section 947.173(3). The Commission having announced its intention to conduct rulemaking in respect to those statutory standards, we need not consider whether it is obliged to do so, nor the extent of substantive rulemaking which we may order. See FEA/United v. PERC, 346 So.2d 551 (Fla. 1st DCA 1977).

Appellant’s final argument is that the Commission is obliged to adopt a rule of practice or procedure specifying that a Commissioner or the Commission, rather than a hearing examiner panel, will conduct the fact-finding interviews, usually in a prison setting, which inform the Commission in its decisions to rescind effective parole release dates previously fixed by the Commission. Demar v. Wainwright, 354 So.2d 366 (Fla.1978) requires the Commission, when rescinding paroles previously granted prisoners who are not yet released, to comply with the due process standards specified for parole revocation in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Parole revocation hearings are conducted bythe Commission or a Commissioner. Section 947.23. From that it does not follow that the Commission or a Commissioner must perform all similar functions in rescission cases. Morrissey requires only that the hearing body be “neutral and detached.” The Commission’s existing Rule 23-16.091, citing Demar and by that reference Morrissey, is notice of the standards to be observed in rescission proceedings. FILS has not shown a legal entitlement to further rulemaking on the subject.

The Commission’s order is AFFIRMED in part and REVERSED in part.

SHAW, J., concurs.

BOOTH, J., specially concurs with opinion. '

BOOTH, Judge,

specially concurring:

The opinion in Turner v. Wainwright, 379 So.2d 148 (Fla. 1st DCA 1980), affirmed, 389 So.2d 1181 (Fla.1980), mandates the result here as to applicability of the Administrative Procedures Act, Florida Statutes, Chapter 120, to the Parole and Probation Commission and standing under that act. I, therefore, concur.

       Section 947.07, enacted long before the 1974 APA, provides:
      The commission shall have power to make such rules and regulations as it deems best for its governance, including among other things rules of practice and procedure and rules prescribing qualifications to be possessed by its employees.
      Section 947.071 provides:
      It is the intent of the Legislature that all rulemaking procedures by the commission shall be conducted pursuant to the Florida Administrative Procedure Act, chapter 120.


author: WENTWORTH, Judge.

text:
    WESTERN LIQUORS CORPORATION and Maryland Casualty Company, Appellants, v. Audrey De Masso STUDER, Appellee.
    No. SS-45.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 7, 1981.

      Charles Desmond Crowley, Fort Lauder-dale, for appellants.
    Lawrence M. Kukey of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellee.
   WENTWORTH, Judge.

This is an appeal from an order of the deputy commissioner directing the employer/carrier to “supply the claimant with treatment by Dr. Hoover or under his direction as he deems necessary.” Employer/carrier asserts that the order is an award of lifetime treatment and argues that it effectively overcomes or waives the limitations period found in Section 440.13(3)(b), Florida Statutes (1975) (current version at Section 440.19(2)(b), Florida Statutes (1979)). We disagree with that construction of the order and affirm the deputy commissioner on evidentiary issues argued by appellant.

Section 440.13(3)(b), Florida Statutes (1975) provides that all rights to remedial attention are barred unless a claim for them is made within two years of the date of the last payment of compensation or the date of the last remedial attention furnished by the employer, or within two years of an award of medical treatment. Section 440.13(1), Florida Statutes (1975) provides, “subject to the limitations specified in paragraph (3)(b), the employer shall furnish to the employee such remedial treatment ... for such period as the nature of the injury or the process of recovery may require ....” An order for continuing treatment may not be used to nullify the statutory limitations period. Luv Auto Sales v. Murphy, IRC Order 2-3567, cert. dismissed, 373 So.2d 459 (Fla.1979). While an order for medical treatment should ordinarily track the language of the statute (Ford v. Hood’s Dairy, Inc., 143 So.2d 13 (Fla.1962)), the failure to do so is not necessarily reversible error. Such orders should ordinarily be read as awarding benefits in the manner and time provided by law, i. e., “for such period as the nature of the injury or the process of recovery may require.” Cf. Ocala Jai-Alai, Inc. v. Johnson, IRC Order 2-3783 (April 24, 1979) (concurring and dissenting opinion). That construction necessarily encompasses the limitations period to which Section 440.13(1) is expressly subject. Therefore, as appellee concedes, should a claimant not require treatment within two years of the award of medical treatment or within two years of the date of the last remedial attention furnished by the employer or the date of the last payment of compensation, the statute may bar rights to further medical attention unless waiver is established by affirmative evidence other than the ambiguous phraseology of an order for benefits. See Platzer v. Burger, 144 So.2d 507 (Fla.1962), decided under a former statute which did not contain the proviso of the current law expressly making Section 440.13(1) subject to the limitations period of Section 440.13(3)(b).

AFFIRMED.

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

      . Section 440.13(1), Florida Statutes (1979) reads “subject to the limitations specified in S. 440.19(2)(b)_” Chapter 79-40, 1979 Florida Laws, moved Section 440.13(3)(b) to Section 440.19(2)(b) in substantially the same form.


author: THOMPSON, Judge.

text:
    ST. JUSTE MEZADIEU, Appellant, v. T & R STORE FIXTURES and Florida Farm Bureau Insurance Companies, Appellees.
    No. SS-204.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 8, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Pyszka, Kessler & Adams, Miami, for ap-pellees.
   THOMPSON, Judge.

The appellant challenges an Order awarding attorney’s fees, arguing in part that the Deputy Commissioner (“the Deputy”) erred in determining the amount of benefits obtained for the appellant by his attorney. We agree and reverse.

In February 1977, the appellant was involved in a work-related accident. The employer/carrier voluntarily paid temporary total disability benefits until November 1977, and then paid permanent partial disability (“PPD”) benefits for approximately one month. At that point, the employer/carrier resisted the payment of the remaining PPD benefits. However, this resistance was abandoned after the attorneys herein attended hearings and the Deputy indicated that the basis for resistance was invalid. Thereafter, the employer/carrier resumed paying PPD benefits to the extent of $3,000.00 and subsequently reached an additional lump sum settlement for $2,664.50. The Deputy later entered his Order, finding inter alia that the benefits obtained for the appellant amounted to $2,664.50, and that all other benefits were voluntarily provided by the employer/carrier.

Section 440.34(1), Fla.Stat. (1977), provides in part that the employer/carrier shall be responsible for the payment of a claimant’s attorney’s fees if they should “resist unsuccessfully the payment of compensation . . . . ” This provision is applicable to this case. The employer/carrier cannot resist paying benefits thereby forcing the issue to an unsuccessful hearing, and then claim afterwards that their remaining payments were voluntary. See Torres v. Eden Roc Motel, 238 So.2d 639, 642 (Fla. 1970). Thus, the Deputy erred in finding that the employer/carrier voluntarily provided the $3,000.00 in PPD benefits referred to above.

We have considered the remaining points raised by the appellant and find them to be without merit. Accordingly, we reverse the Deputy’s Order and remand this cause with instructions to the Deputy to reconsider his award of attorney’s fees in light of the total amount of benefits actually obtained for the claimant by his attorney.

MILLS, C.J., and McCORD, J., concur.


text:
    Edgar Ray BRANNON, Appellant, v. MARION COUNTY SHERIFF’S OFFICE and Associated Indemnity Corporation, Appellees.
    No. TT-61.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 12, 1981.
    Gavin D. Lee of Nance, Cacciatore & Sisserson, Melbourne, for appellant.
    Pattillo, MacKay & McKeever, Ocala, for appellees.
   THOMPSON, Judge.

The appellant challenges a worker’s compensation order, contending in part that the Deputy Commissioner (“the Deputy”) erred in determining the basis for the appellant’s rate of compensation. We agree and reverse. Upon consideration of the briefs and the record, we find that pursuant to § 440.15(5)(c), Fla.Stat. (1975), the rate of compensation should be based on the appellant’s average weekly wage as of September 1, 1976.

The appellant has requested an award of attorney’s fees for representation on this appeal. This request was presented in the appellant’s brief, rather than by filing a separate motion, and therefore it must be denied. See Fla. Dept. of Comm., Div. of Risk Management v. Davies, 379 So.2d 1313 (Fla. 1st DCA 1980); Wallace v. Walton Context Building, 383 So.2d 729 (Fla. 1st DCA 1980); Munroe Memorial Hospital v. Thompson, 388 So.2d 1338 (Fla. 1st DCA 1980). Parenthetically, we note that although the Florida Workers’ Compensation Rules of Procedure do contain provisions regarding appellate proceedings, those Rules are not all inclusive on this subject. To the extent to which those Rules are silent with respect to appellate procedure, the Florida Rules of Appellate Procedure are fully applicable to proceedings before this court. See, e. g., Davies, 379 So.2d at 1313; Fidelity & Casualty Co. of New York v. Scott, 386 So.2d 315, 316 (Fla. 1st DCA 1980). Cf. Malyn v. Atlantic Federal S & L Ass'n, 384 So.2d 957 (Fla. 1st DCA 1980).

The Deputy’s Order is reversed and this cause is remanded with instructions to base the appellant’s rate of compensation on his average weekly wage as of September 1, 1976.

ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret.), Associate Judge, concur.


author: BERANEK, Judge.

text:
    Norma N. HEMMINGER, Appellant/Cross-Appellee, v. Michael J. HEMMINGER, Appellee/Cross-Appellant.
    No. 79-2149.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 6, 1981.
    James A. McCauley, Fort Lauderdale, and James H. Walden, of Walden & Walden, Dania, and S. Robert Zimmerman, Pompano Beach, for appellant/cross-appel-lee.
    C. Lavon Ward, Fort Lauderdale, for ap-pellee/ cross-appellant.
   BERANEK, Judge.

Ex-wife, Norma N. Hemminger, seeks review of a final order granting ex-husband, Michael J. Hemminger’s, petition for modification of a property settlement agreement as it relates to alimony.

The final dissolution decree, entered February 13, 1975, incorporated a property settlement agreement awarding Norma Hem-minger $200 per week alimony plus $500 per year, beginning March 15,1976. The agreement, drafted by Norma’s attorney, specifically provided: “%y(3) The husband represents that he is employed by Hemminger, Inc., which is in the general contracting business and enjoys a salary income of approximately $25,000 per annum. The husband further represents that he has no income in addition to his employment by his corporation. ... ” In April of 1978, and several times thereafter, Norma moved the court to find Michael in contempt for decreasing the alimony and child support payments and failing to pay alimony arrearag-es. The court referred the motion to a general master. Michael responded to the contempt motion, admitting the decrease and claiming inability to pay due to financial reversals. He included therein a petition for modification of the alimony provision of the property settlement agreement, alleging a substantial change in his financial circumstances and claiming the agreement had been procured through undue influence. Norma moved to strike the “response” as an improper cross-motion to her motion for contempt and further stated that Michael had misrepresented his income in the property settlement agreement. The court struck Michael’s response but permitted the pleading to stand as “Husband’s supplementary petition to modify the final judgment.” The court referred this to another general master.

Regarding enforcement of the final dissolution judgment by contempt, Norma obtained two orders (October 16, 1978, and March 16, 1979), ratifying and adopting the general master’s finding that Michael had failed to pay the alimony, although he had the ability to do so. Michael did not appeal either of these orders.

On June 21, 1979, the general master entered his report on modification, finding no sufficient change in Michael’s financial circumstances and recommending that the petition be denied. Michael filed exceptions to the report, contending the evidence established his inability to pay and his wife’s ability to support herself. On September 6, 1979, the circuit court entered its final order rejecting the master’s recommendations and finding as follows:

1. ... Although not specified in the General Master’s report the question of whether or not the Husband’s income at the time of the property settlement agreement was $25,000.00 a year or more than double that is a crucial issue in this ease. The Husband’s contention that he was, in fact, making substantially in excess of $25,000.00 at the time is amply supported by the evidence.
2. The Husband’s income at the time of the hearing before the General Master in March, April and May, 1979, was substantially lower than it was at the time of the property settlement agreement, so that his support obligation to the wife should be reduced.

The court reduced the alimony payments to $100 per week, but continued the yearly $500 payments. Wife petitioned the trial court for rehearing, which it denied. The wife appealed, raising four points. We reverse.

We basically conclude that the trial court erroneously substituted his judgment on factual matters for that of the master on issues which should not have been considered at all.

The husband is in an anomalous position. He signed an agreement stating his income to be $25,000 per year. While the evidence showed that at the time of the “modification proceedings” he was earning $28,000 per year, he claims this was a reduction because the $25,000 figure was wrong and should have really been $75,000. He argues that since he was actually earning $75,000 instead of the stated $25,000, he is entitled to modification.

The husband’s inconsistent position is never spelled out in any pleading; therefore, we initially hold the trial court erred in even considering it. The trial court’s ruling had the effect of setting aside the entire settlement agreement and prior final judgment without support in the pleadings or the evidence.

The trial court also erred in setting aside the master’s factual findings. The June 21, 1979, master’s report reached the factual conclusion that Michael had not sustained a financial change in circumstances sufficient to warrant modification. The trial judge should approve the master’s factual findings and recommendations unless the master has misconceived the legal effect of the evidence. Fodor v. Fodor, 379 So.2d 466 (Fla. 4th DCA 1980). The trial court should not overturn a master’s factual findings unless they are clearly unsupported by the evidence and clearly erroneous. Ciccarelli v. Ciccarelli, 352 So.2d 1204 (Fla. 4th DCA 1977). Here, there was evidence in the record before the master supporting the conclusion that there had been no significant reduction in income. The appellant/wife had moved for contempt for the appellee’s failure to pay alimony arrear-ages several times prior to his petitioning for modification. In fact, appellant had previously obtained two orders of the circuit court ratifying and adopting the general master’s finding that the appellee had failed to pay the alimony although he had the ability to do so. The appellee failed to appeal the court’s prior contempt orders finding him able to make the payments.

We conclude the trial court erred in setting aside the findings of the master and in granting modification to the husband. We do not consider the various other points raised by the appellant because it is unnecessary to reach them.

The order granting modification is reversed and the matter remanded to the trial court with directions to confirm the master’s report and for entry of an appropriate order in accord with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and HERSEY, JJ., concur.


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    James R. HUGHES and Sonia B. Hughes, Appellants, v. Collette L. RUSSELL, Appellee.
    No. 79-2451.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 6, 1981.

      Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, Pruitt & Pruitt, and Larry Klein, West Palm Beach, for appellants.
    Andrew F. O’Connell of O’Connell & Cooper, P. A., West Palm Beach, for appellee.
   BERANEK, Judge.

Plaintiff/appellee sued defendants/appellants for the return of an $18,500 deposit on a contract for the sale of appellants’ home to appellee. Although plaintiff’s suit was based upon the existence-of a contract between the parties, the trial court declared the contract void yet ordered defendants to return the deposit. We reverse.

The facts are basically uncontested. Mr. Russell, a New York resident, visited Palm Beach briefly while on his way to Europe for a business trip. He briefly inspected a home owned by Mr. and Mrs. Hughes and decided that he and his wife would purchase it. The agreed price was $185,000. Mr. Russell instructed his wife, who was in New York and had never seen the home, to execute and return the deposit receipt contract upon receipt from the sellers who were preparing it. Mr. Russell also told Mrs. Russell to make the necessary deposit of $18,500.

The contract prepared by Mr. and Mrs. Hughes referred to Mr. and Mrs. Russell as the purchasers. The unsigned contract was mailed by the sellers to New York and Mrs. Russell alone signed it on May 26,1978, and placed the ten per cent deposit in trust with the broker. She returned the contract to Florida where the sellers executed it on May 30, 1978.

Thereafter, prior to closing, Mr. Russell retained a general contractor to inspect the house. Based on the contractor’s report which described the property in need of numerous repairs, the Russells decided not to close the transaction. Mrs. Russell filed suit to terminate the contract and for the return of her $18,500 deposit. The complaint alleged the existence of the contract but did not rely upon the contractor’s report as a basis for terminating the contract. Instead, the complaint alleged that the contract was subject to termite and plumbing inspections and that the reports of the exterminator and the plumber were unsatisfactory. Based on these two reports, the complaint alleged that plaintiff elected to terminate the contract and retake the deposit.

The defendants filed an answer and counterclaim admitting the existence of the contract but asserting plaintiff to be in breach thereof and seeking to retain the deposit as liquidated damages under the contract.

The case proceeded to trial. At the conclusion of the trial, the court announced thát the contract was void because it had not been signed by Mr. Russell. Based on this finding that the contract was unenforceable, the Court ordered return of the deposit. In its final judgment, the court concluded the agreement between the parties was incomplete and unenforceable because one of the intended parties, Charles Russell, never signed it. In so ruling, we conclude that the trial court committed reversible error.

Husbands and wives stand equally before the law in regard to their ownership and disposition of property. Article X, Section 5 of the Florida Constitution, provides that there shall be no distinction between married men and women in the holding or disposition of their property. Section 708.-08, Florida Statutes (1979), provides in relevant part:

(1) Every married woman is empowered to take charge of and manage and control her separate property, to contract and to be contracted with, to sue and be sued, to sell, convey, transfer, mortgage, use and pledge her real and personal property and to make, execute, and deliver instruments of every character without the joinder or consent of her husband in all respects as fully as if she were unmarried.

In the instant case, Mrs. Russell was totally capable of contracting on her own behalf, despite the fact that her husband had.initially contemplated being involved in the sale. Mrs. Russell signed the deposit receipt contract on May 26, 1978. The Hugheses accepted and signed it May 30, 1978. The deposit was paid and a binding contract resulted. No party to the contract contended otherwise in the pleadings or trial below.

The trial court erred in basing its conclusion upon an issue which had never been the subject of a pleading. Both plaintiff and defendants/counterclaimants affirmatively pleaded the existence of the contract and, indeed, both the complaint and counterclaim were based upon the enforceability of the contract. We, thus, reverse the final judgment and remand the cause to the trial court for further proceedings which should include a new trial on all issues framed by the pleadings. We are aware that the trial court made certain comments during the trial to the effect that Mr. and Mrs. Hughes had complied with the contract, but these comments are not contained in the final judgment. The appellants urge we should reverse and enter judgment for them. We do not go this far because clearly the trial court never reached the issue of whether buyer could properly terminate the contract based on the termite and plumbing inspections. These factual issues are yet to be decided.

We reverse and remand for a new trial on the issues as established by all of the pleadings.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and MOORE, JJ., concur.


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    Momcilo VELICKOVICH and Zorica Velickovich, his wife, Appellants, v. Roland RICCI and Gloria M. Ricci, his wife, Appellees.
    No. 80-52.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 7, 1981.

      Charles W. Musgrove, West Palm Beach, for appellants.
    Bosso & Bosso, Riviera Beach, and Larry Klein, West Palm Beach, for appellees.
   BERANEK, Judge.

This is an appeal by defendant/landowners from a final judgment which granted a mandatory injunction requiring appellants to remove a five-foot concrete block wall from their real property. We affirm.

A deed restriction governing the real estate provided that no building, including a fence, could be constructed without first submitting the plans and specifications to a designated committee for approval. Immediately after appellants began construction of the wall, a neighbor brought the deed restriction to their attention and objected to the wall because it substantially impaired his waterfront view. The appellants had not complied with the deed restriction by seeking committee approval. Suit was filed against appellants by the neighbor to enjoin construction of the wall.

The reasonableness of the deed restriction which provided a review procedure and for arbitration of disputes is not here challenged and was not contested before the trial court. At the time of the hearing for a temporary injunction, the wall was approximately 25 to 30% complete. As the lower court noted, appellants completed the wall with full knowledge of the deed restriction after the litigation had been instituted. Appellants had been warned that they proceeded with construction at their own risk.

On appeal it is asserted that ap-pellees had an adequate remedy at law for damages thus an injunction was improper relief and further that a balancing of conveniences militated against the granting of an injunction. The decisional law is to the contrary, and we find no demonstration of reversible error or any abuse of discretion. Injunctive relief is a proper means of enforcing a restrictive covenant affecting real estate. Pilafian v. Cherry, 355 So.2d 847 (Fla. 3d DCA 1978), cert. denied 361 So.2d 834 (Fla. 1978); Thompson v. Squibb, 183 So.2d 30 (Fla. 2d DCA 1966), and Coffman v. James, 177 So.2d 25 (Fla. 1st DCA 1965). Because of the unique nature of each piece of real property, violations of restrictive covenants cannot be easily remedied by money damages. Coffman v. James, supra. Here, there was also substantial evidence that the plaintiff’s property was diminished in value by his neighbor’s wall. The cost of removing the wall was less than the dimin-ishment in value thus the balancing of relative conveniences test is inapplicable.

Appellants also assert the trial court erred in taxing costs. The attack on the order taxing costs has an independent basis in that appellants argue the costs arose from certain depositions which were not introduced into evidence. We have no jurisdiction to consider this issue. The final judgment was entered and thereafter a notice of appeal was filed. Eight days after the filing of the notice of appeal, the court entered the order taxing costs. No notice of appeal or amended notice of appeal was filed directed to the order taxing costs. As such, we conclude we do not have jurisdiction to review it. This court cannot review judicial acts of a trial court taking place after the filing of a notice of appeal unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate appellate proceedings. Geraci v. Kozloski, 377 So.2d 811 (Fla. 4th DCA 1979). Florida Rule of Appellate Procedure 9.110(h) provides:

(h) Scope of Review. The court may review any ruling or matter occurring prior to filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.

Here, the single notice of appeal was timely as to the final judgment but not timely as to the final order taxing costs. We do not consider the notice of appeal a proper premature notice in accordance with Williams v. State, 324 So.2d 74 (Fla. 1975).

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.


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    Mark Glen SCHROEDER, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-141, 80-153.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    As Corrected On Rehearing Jan. 6, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen H. Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Juvenile defendant appeals the sentences imposed for armed robbery in two separate cases on grounds that the trial court erred in failing to follow the sentencing procedures in Section 39.111, Florida Statutes (1979). These appeals are consolidated for the purpose of this opinion.

On May 30, 1979, the grand jury returned three indictments against defendant, a 17 year old juvenile. Two of the indictments charged defendant with committing armed robberies on May 20, 1979. The other indictment charged defendant with two counts of armed robbery on May 17, 1979. The robberies occurring on May 20 were prosecuted separately with Judge Grossman as the trial judge. The robberies occurring on May 17th were tried before Judge Price. On October 22, defendant pled guilty before each of the judges and adjudication and sentencing were deferred.

.On January 11, 1980, Judge Price entered an order pursuant to Section 39.111, Florida Statutes (1979), finding the imposition of adult sanctions against the juvenile defendant appropriate. On the same day, Judge Price sentenced defendant to three years in State prison on each charge to run concurrently with each other and with any sentence imposed by Judge Grossman in the other case. Judge Price specifically sentenced defendant as a youthful offender.

On January 17, six days after Judge Price’s order, judgment and sentence, Judge Grossman entered judgment and sentence in the other prosecution. Defendant was again sentenced as a youthful offender, this time to six years on each of the two counts the last two years suspended, to run concurrently. Judge Grossman did not, however, enter an order pursuant to Section 39.111 finding adult sanctions appropriate.

Defendant appeals Judge Price’s sentence arguing that his order pursuant to Section 39.111 did not sufficiently address the mandatory criteria under the statute. He appeals the sentence imposed by Judge Gross-man asserting as error the failure to enter any order determining the suitability of adult sanctions. The State counters that the criteria under Section 39.111(6) need not be followed where the juvenile defendant has been charged by indictment. The Third District has so held in Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980). The First District has decided to the contrary and rejected Postell in Goodson v. State, 392 So.2d 1335 (First Dist. Fla.App.1980) but has certified the question on rehearing (Opinion filed October 27, 1980).

Initially, we find Judge Price’s order determining the suitability of adult sanctions to be sufficient. The order specifically addresses each of the six criteria under Section 39.111(6)(c). Defendant was thus under a lawful sentence as an adult (youthful offender) at the time he came before Judge Grossman for sentencing in the other case.

Though we find Postell the better-reasoned approach, we need not and specifically do not choose between Postell and Good-son in deciding this case. Regardless of whether Section 39.111(6) is mandatory after an indictment, the practicalities of the instant case lead us to conclude there was no need for such an order in the second sentencing. Defendant was already under a valid sentence to state prison imposed by Judge Price. If concurrent juvenile sanctions were imposed in the other case, defendant would still have to serve his adult sentence. In short, since defendant was subject to a 3 year state prison sentence for armed robbery, there was no necessity to further consider whether adult or juvenile sanctions were appropriate for other separate armed robbery convictions.

We, therefore, conclude no order under Section 39.111 determining the suitability of adult sanctions was necessary after defendant was validly sentenced as an adult to a term in state prison.

The judgments and sentences are affirmed.

AFFIRMED.

MOORE and GLICKSTEIN, JJ., concur.