text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Petitioner, v. John William PRYGROCKI, Respondent.
    No. 61574.
    Supreme Court of Florida.
    Nov. 10, 1982.
    Patrice A. Talisman of Daniels & Hicks, Miami, and Goodhart & Rosner, P.A., Miami, for petitioner.
    Lawrence J. Bohannon of Chidnese & Bo-hannon, Fort Lauderdale and J. Patrick Floyd of the Law Office of J. Patrick Floyd, Fort Lauderdale, for respondent.
   OVERTON, Justice.

This is a petition to review Prygrocki v. Industrial Fire & Casualty Ins. Co., 407 So.2d 345 (Fla. 4th DCA 1981), which we find expressly conflicts with Fernandez v. Alonso, 375 So.2d 8 (Fla. 3d DCA 1979) cert. denied, 383 So.2d 1193 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue is whether a pedestrian, who is not the named or contracting insured or part of the insured’s household, but who is “an insured” under the provisions of the personal injury protection coverage of an automobile policy, may claim attorney’s fees under section 627.428(1), Florida Statutes (1979), where there has been a denial of coverage. The district court held that recovery of attorney’s fees was proper, and we approve.

In the instant case, the respondent, John William Prygrocki, a pedestrian, was struck by a motor vehicle insured under a policy issued by the petitioner, Industrial Fire & Casualty Insurance Company. The policy provided that petitioner would pay personal injury protection benefits to the named insured and also provided coverage for medical and other expenses incurred as a result of bodily injuries sustained by “any other person while occupying the insured vehicle or while a pedestrian, through being struck by the insured motor .vehicle.”

Respondent made a claim under the policy, and petitioner originally denied coverage. Respondent then initiated suit to recover the expenses arising from his personal injuries and sought attorney’s fees pursuant to section 627.428(1). After suit was filed, petitioner agreed that respondent was entitled to recover under the policy. Petitioner refused, however, to pay attorney’s fees, claiming that under Fernandez and Roberts v. Carter, 350 So.2d 78 (Fla.1977), respondent was not statutorily entitled to such fees. The trial judge agreed and struck the claim for fees.

The district court reversed, holding that respondent was an omnibus insured under the. personal injury protection coverage of the policy and, as such, was within the class of persons entitled to recover attorney’s fees under section 627.428(1). In so holding, the district court rejected the construction of the statute expressed in Fernandez, which limited recovery of attorney’s fees to the “contracting insured,” a class which includes “ ‘claimants who have a direct first party contractual relationship with the carrier.’ ” 375 So.2d at 9 (citing United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Ins. Co., 369 So.2d 410 (Fla. 3d DCA 1979)).

While we approve the decision in the instant case, we note that much confusion has been generated by the language in Roberts regarding the awarding of attorney’s fees against insurers. In Roberts, the plaintiff brought a personal injury action against an insured defendant, whose insurance company denied liability coverage. Following a determination that the denial of coverage was improper, the plaintiff, a third-party claimant who was not an omnibus insured under the defendant’s policy, sought attorney’s fees. We held that the plaintiff, as a third-party claimant, was not within the class of persons entitled to recover attorney’s fees under section 627.428(1). Having so concluded, we added that “[t]o eliminate any remaining confusion, we ... hold that an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” 350 So.2d at 79 (footnotes omitted).

Rather than eliminating confusion, however, this language, “and especially the phrase ‘contracting insured,’ has created substantial confusion among the appellate courts.” Norfolk v. Nationwide Mutual Fire Ins. Co., 407 So.2d 1014, 1015 (Fla. 5th DCA 1981). Some district courts have construed Roberts as applying beyond the third-party claimant issue considered therein to situations like that of the instant case where an insured, other than the named insured, seeks attorney’s fees. See Howe v. American Indemnity Co., 418 So.2d 1265 (Fla. 2d DCA 1982) (pedestrian insured under motorist’s policy denied attorney’s fees); Tracey v. Florida Ins. Guaranty Ass’n, 414 So.2d 1159 (Fla. 3d DCA 1982) (passenger in automobile driven by unrelated named insured denied attorney’s fees); Fernandez; Aetna Life & Casualty Co. v. Stanger, 367 So.2d 728 (Fla. 4th DCA 1979) (denying attorney’s fees to an insured under an uninsured motorist policy because not the contracting insured); Aetna Life Ins. Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978) (wife insured under deceased husband’s policy denied attorney’s fees). Other district courts, however, have not followed a literal interpretation of the Roberts language, and have awarded attorney’s fees to persons insured under an insurance contract. See Spaulding v. American Fire & Indemnity Co., 412 So.2d 367 (Fla. 4th DCA 1981) (attorney’s fees awarded to passenger in insured vehicle); Earnest v. Southeastern Fidelity Ins. Co., 407 So.2d 995 (Fla. 3d DCA 1981) (daughter who recovered under father’s uninsured motorist policy awarded attorney’s fees); Norfolk (wife of named insured entitled to recover attorney’s fees); United States Fidelity & Guaranty Co. (insurer required to pay attorney’s fees of resident spouse of named insured); Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978) (individual unrelated to named insured recovered attorney’s fees on jury finding that he had permission to use named insured’s car).

Our use of the term “contracting insured” in Roberts was not intended to revise the clear statutory language of section 627.428(1), and prohibit “an insured,” other than the contracting insured, from being entitled to recover attorney’s fees under the statute. The statute is unambiguous in its terms and clearly applies to all insureds under an insurance contract. Section 627.428(1) provides:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

(Emphasis added.) The term “contracting insured,” as used in Roberts, refers to those persons insured under an insurance contract rather than the plaintiff third-party claimant discussed in Roberts. Norfolk; United States Fidelity & Guaranty Co. It is essential that Roberts be read in this manner in order to give the statute its true meaning. Section 627.428(1) provides that attorney’s fees may be recovered by “an insured”- under a contract of insurance. Third-party claimants, as Roberts held, are not within the class of insureds under a contract. Furthermore, the statute does not limit recovery of attorney’s fees to “the” insured. To limit attorney’s fees under section 627.-428(1) to those who have directly contracted with an insurer and paid the premiums for an insurance policy, and to extend Roberts beyond the third-party claimant situation and preclude omnibus insureds from seeking attorney’s fees both misconstrues Roberts and erroneously interprets the statute. The district court in the instant case properly construed Roberts and we agree with the district court that the class of individuals entitled to recover attorney’s fees is clearly expressed in section 627.428(1) as those who are either “an insured or the named beneficiary under a policy or contract executed by the insurer” and that respondent is a member of that class.

For the reasons expressed, we approve the decision in the instant case and disapprove the decision of the Third District Court of Appeal in Fernandez.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD and McDONALD, JJ., concur.

       We note that the legislature amended section 627.428(1), effective October 1, 1982, to expressly include omnibus insureds within the category of persons entitled to recover attorney’s fees. This change was apparently in response to the conflict in the district court of appeal decisions following our decision in Roberts. Section 627.428(1) now reads:
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Mark J. FRIEDMAN, Respondent.
    No. 62711.
    Supreme Court of Florida.
    Nov. 10, 1982.
    Jack Weiss, Discipline Counsel, Tallahassee, and Robert D. Rosenbloom, Asst. Staff Counsel, Miami, for complainant.
    Mark J. Friedman, in proper person, Miami Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment (Public Reprimand) and Entry of Final Order of Discipline to Disciplinary Rules 6-101(A)(l), (2), and (8).

The Respondent attempted to represent an out-of-state client in her efforts to convey a condominium located in Dade County, Florida. By the Respondent’s own admissions, it is clear to this Court that the Respondent failed in his obligation to provide his client with the minimum professional standards demanded by the Code of Professional Responsibility. The Respondent failed to insist on a formal escrow agreement for deposit monies, repeatedly failed to communicate with his client when requested, negligently prepared various closing documents, and failed to initiate affirmative action to associate more experienced counsel on the case. Indeed, based upon the foregoing, his client felt obligated to retain additional counsel for the sole purpose of assisting the Respondent in what appears to be a relatively routine real estate transaction.

We approve the Petition, and we hereby reprimand the Respondent, Mark J. Friedman, for the following: handling a legal matter which he knew or should have known that he was not competent to handle; handling a legal matter without preparation adequate in the circumstances; and neglecting a legal matter entrusted to him; in violation of Disciplinary Rule 6-101(A)(1), (2), and (3) of the Code of Professional Responsibility. The publication of this Order in Southern Reporter shall serve as the Respondent’s public reprimand.

Costs in the amount of $525.85 are hereby taxed against the Respondent.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OVERTON, MCDONALD and EHRLICH, JJ., concur.


text:
    Ralph S. RUYLE and Libby S. Ruyle, Appellants, v. Herman Allen MURPHY and Elaine Marie Murphy, Appellees.
    Nos. ZZ-120, AD-231.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    As Citified on Denial of Rehearing Nov. 24, 1982.
    D. Michael Chesser and John P. Townsend, of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellants.
    Randee Schatz Horvath, of Lorenz, Lungstrum & Heflin, Fort Walton Beach, for appellees.
   PER CURIAM.

Ralph and Libby Ruyle appeal the dismissal of their motion to intervene in child custody modification proceedings concerning their grandson. They also appeal the assessment of the mother’s costs against them.

A final judgment and dissolution of marriage between Herman Allen Murphy and Elaine Marie Murphy awarding custody of the parties’ minor child to the father was entered in Broward County Circuit Court in 1976. Shortly after that judgment, the father left the child in the custody of the Ruyles, the paternal grandparents. The child resided continuously with the Ruyles for the next three years, except for periods of visitation with his mother or father. In October of 1979, the Ruyles attempted to initiate change of custody proceedings in Okaloosa County, seeking legal custody of their grandchild. Service of process was personally had on the father, Herman Murphy, in Texas, and service of process was attempted twice on the mother.

While this civil suit was pending in Oka-loosa County, the mother and father jointly approached the court in Broward County, and without notice to the grandparents and without informing the court that a collateral action was pending in Okaloosa County, stipulated that the best interest of the child would be served by shifting custody from the father to the mother. On December 7, 1979, Circuit Judge Futch, in and for Bro-ward County, without notice to the grandparents who had physical custody of the child, entered an order changing custody of the child to the mother. On December 9, 1979, the mother took custody of the child from the grandparents.

Shortly thereafter the Ruyles filed a petition to intervene in the Broward County action and moved to vacate the order changing custody to the mother. On January 24,1980, Judge Futch vacated his order of December 7, 1979, and reestablished the status quo as it existed prior to that order. Judge Futch further ordered that the case be transferred to Okaloosa County where the child had resided since 1976. The transferred case was then consolidated with the proceedings originally brought by. the grandparents in Okaloosa County. Judge Barron, Circuit Judge for Okaloosa County, granted the mother’s motion to dismiss the grandparents’ suit for lack of standing. On December 12, 1980, Judge Barron changed custody of the minor child from the father to the mother without giving the grandparents an opportunity to be heard on the issq,e.

The trial court properly applied this court’s opinion in Shuler v. Shuler, 371 So.2d 588 (Fla. 1st DCA 1979), in dismissing the grandparents’ motion to intervene and petition for modification of custody. Section 61.13(2)(b), Fla.Stat. (1979) indicates that the legislature did not intend grandparents to have legal standing as contestants.

However, we find the trial court erred in refusing to give the grandparents an opportunity to be heard before entering his order modifying custody of the child. This is an equitable proceeding governed by what are the best interests of the child. Before such an order is made, reasonable notice and opportunity to be heard should be given to any person who has physical custody of the child.

A trial court shall have to determine on a case-by-case basis what period of custody would entitle a person to notice and an opportunity to be heard under this statute. However, in the present case it is undisputed that the paternal grandparents had custody of this child for three years. This was more than a sufficient period of time to entitle them to the notice and opportunity to be heard.

The right of a natural parent to custody of a child is secondary to the best interest of the child. Although a grandparent does not have legal standing as a contestant, custody may be awarded to a grandparent if the best interest of the child requires. See, Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979).

This ruling is consistent with the public policy of this state that a trial court should have all relevant information concerning the welfare of the child before it prior to changing the custody of that child. The welfare of the child is the controlling consideration in awarding custody. Only after the court has heard from those who have so had custody of the child would the court be in a position to properly determine the best interests of the child. Accordingly, we reverse the trial court’s order changing custody of the child and assessing costs against the grandparents and we remand for proceedings consistent with this opinion. The award of custody to the mother shall be deemed an award of temporary custody to her. The trial judge, upon request, shall have the power to remand this cause to the court of original jurisdiction, the Circuit Court of Broward County, where the evi-dentiary hearing on modification of custody and further proceedings may be held.

REVERSED and REMANDED.

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

      . See Bailey v. Malone, 389 So.2d 348 (Fla. 1st DCA 1980).


text:
    STATE of Florida, Appellant, v. David G. GOWER and James L. Languein, Appellees.
    No. AC-384.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Rehearing Denied Dec. 14, 1982.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellant.
    J. Victor Africano, Live Oak, for appel-lees.
   PER CURIAM.

This cause is before us on appeal by the State from an order of the trial judge granting appellees’ motion under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, on the authority of Lornitis v. State, 394 So.2d 455 (Fla. 1st DCA 1981), and Shad v. State, 394 So.2d 1114 (Fla. 1st DCA 1981). The trial court dismissed the information charging appellee Languein with possession in excess of 400 grams of cocaine and 100 pounds of cannabis and that count of the information charging appellee Gower with possession in excess of 100 pounds of cannabis. We affirm in part and reverse in part.

Appellees filed a motion to dismiss stating that they were passengers in a van subjected to an agricultural inspection; that cannabis and a brown suitcase which contained a small bag of marijuana were discovered within a large carpet-covered cargo area in the rear of the van; that neither appellee volunteered information pertaining to access into the cargo area or the contents therein; that both appellees denied ownership of the brown suitcase and claimed as their own suitcase within the passenger area of the van; that the residue of a white substance was found in a glass test tube amongst appellee Languein’s^be-longings; and that plant material and five plastic bags containing eleven pounds, three and three-fourths ounces of cocaine was found amongst appellee Gower’s belongings. In its traverse, the State alleged, among other things, that one day subsequent to his arrest, appellee Gower claimed as his own a pair of trousers and a shirt from the aforementioned brown suitcase.

The issue presented for our consideration is whether the facts establish a prima facie showing of possession of the cannabis by appellees and of the cocaine by appellee Languein. We find that the foregoing facts create an inference sufficient to withstand a 3.190(c)(4) motion to dismiss that appellee Gower had the ability to maintain control of or access to the cannabis, and appellee Languein had a possessory interest in and thus the right to maintain control of the cocaine. Accordingly, we conclude that the trial judge erred in dismissing the possession of cannabis charge as to appellee Gower and the possession of cocaine charge as to appellee Languein and reverse. The dismissal of the possession of cannabis charge as to appellee Languein is affirmed.

ERVIN, BOOTH and THOMPSON, JJ., concur.

      . Although not raised on appeal or contested below, the motion to dismiss should have been summarily denied by the, trial judge because it was not sufficiently verified as required by Rule 3.190(c)(4), Fla.R.Crim.P., which contemplates an oath by a person having first-hand knowledge of the facts.


author: JO ANOS, Judge.

text:
    RAVENSWOOD-GRIFFIN VOLUNTEER FIRE DEPARTMENT and Maryland Casualty Company, Appellants, v. Gregg C. NEWMAN and Division of Workers’ Compensation of the Department of Labor and Employment Security, Appellees.
    No. AH-328.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Rehearing Denied Dec. 6, 1982.

      Charles Desmond Crowley, Fort Lauder-dale, for appellants.
    Angelo Marino, Jr., Fort Lauderdale, for appellees.
   JO ANOS, Judge.

Numerous issues are raised in this worker’s compensation appeal, some of which show reversible error committed by the deputy commissioner.

Claimant, Newman, worked for the Rav-enswood-Griffin Volunteer Fire Department about ten hours per week. Simultaneously, he worked at Don’s Pizza and Subs, a restaurant business in which he was a partner. Newman’s severe left knee injury occurred on February 23,1976, when he was called from the restaurant to a fire. While riding to the fire on his motorcycle he was involved in a collision with an automobile.

The first three issues stated by appellants concern the inclusion of Newman’s earnings from self-employment in calculating his average weekly wage. Appellants argue that Newman failed to show that as a partner, he had elected coverage pursuant to Section 440.05(2), Florida Statutes, under the business’s workers compensation insurance policy, and that he thus had failed to establish that he was not excluded from employee status under Section 440.02(2)(c), Florida Statutes. Appellants further argue that even if he had elected, those earnings should not have been included in his average weekly wage. The deputy commissioner found that “Don’s Pizza and Subs carried workmen’s compensation insurance for him and all the employees of the business.” This finding is supported by competent substantial evidence in the form of the claimant’s testimony. When Newman testified that the restaurant had workers compensation insurance which covered him, defense counsel did not inquire further into the matter or attempt to show in some other way that no election had occurred. Appellants, relying upon Wilson v. City of Haines City, 97 So.2d 208 (Fla. 2d DCA 1957), argue that the earnings should not have been included regardless of election. Wilson is not applicable. Wilson does not compel the conclusion appellants suggest because in that case, claimant’s self-employment wages were excluded because they were earned by him as an employer and independent contractor, rather than as an employee, whereas Newman’s uncontradicted testimony can be properly interpreted to mean that he elected and is therefore not excluded from employee status.

Appellants also argue that Dr. Neu-beiser’s assessment of Newman’s permanent impairment as 60% of the leg is without value because he failed to base this assessment on the American Medical Association Guides to the Evaluation of Permanent Impairment. While there was discussion of the need to use the Guides during Dr. Neubeiser’s deposition, this issue was not raised before the deputy commissioner at the hearing which resulted in the order appealed, and thus it was not preserved for appellate review. See Sunland v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

Regarding alleged conflicts in Newman’s testimony, given at his deposition and at hearing, on the amount of his earnings from Don’s Pizza and Subs during the 13 weeks preceding the injury, while some inconsistencies were apparent, at the hearing defense counsel did not cross-examine claimant as to possible conflicts with his deposition testimony or offer any evidence of what Newman actually received during those weeks. Under the circumstances, the deputy could accept the later testimony as competent substantial evidence for his finding as to claimant’s earnings from that business for those 13 weeks.

The record also contains competent substantial evidence to support the deputy’s finding that good cause existed to excuse the late filing of medical reports, and to support the challenged awards of temporary total disability benefits from April 20, 1976, to July 30, 1976, and temporary partial disability benefits from August 1, 1976, to November 13, 1977. Appellants did not challenge the awards of temporary benefits for other periods of time. Appellants did, however, point out that the deputy did not use the statutory formula for computing temporary partial disability benefits; on remand the deputy should conform this award to Section 440.15(4), Florida Statutes (1975).

At the final hearing on this claim, testimony was produced for the first time, as far as the record indicates and according to appellant, as to wages received by Newman from the fire department. Defense counsel moved for a continuance in order to verify the information. We conclude that it was an abuse of discretion to deny this continuance, inasmuch as it appears counsel for E/C may have been misled in this matter through an earlier deposition of claimant. Therefore we reverse and remand with regard to this issue as it affects the determination of average weekly wage.

We find no reversible error as to the other issues raised by appellants. To summarize, we affirm the order of the deputy commissioner except as to the formula for calculating temporary partial disability benefits and the denial of the continuance, with regard to which we reverse and remand for further proceedings bearing on the issue of average weekly wage as it is affected by wages from the fire department, consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


author: LETTS, Chief Judge. DOWNEY, Judge,

text:
    The TRUSTEES OF C.I. MORTGAGE GROUP, Appellant, v. CITY HOUSING CORPORATION, et al., Appellees.
    No. 80-2088.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.
    Rehearing Denied Dec. 21, 1982.
    Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, and Lawrence H. Rogovin of Cohen, Angel & Rogovin, North Miami, for appellant.
    Robert A. Plafsky and Glenn N. Smith of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for appellees.
   LETTS, Chief Judge.

This case should not have been decided by the entry of a summary judgment. There remain many unresolved material issues of fact. We reverse.

The original mortgages held by the Bank were extended by a mutual written agreement which specified that two additional parcels (3 and 4) would be covered by the mortgages. Allegedly by clerical mistake and inadvertence, the actual descriptions of these two additional parcels were omitted from the appellant’s document actually recorded in the public records. Because of this omission and a stipulation with the Bank that the Bank’s mortgage was inferi- or to his, a later and otherwise junior lien-holder successfully claimed priority over parcels 3 and 4 and secured a favorable summary judgment over the appellant’s objections and attempts to amend its pleadings.

Apart from anything else, it is obvious that there is evidence that the later and allegedly junior lienholder had actual knowledge that the prior mortgages had been expanded to include all four parcels regardless of the omission of the description from the schedule attached to the recorded extension instrument. The junior lienholder in fact alleged in initial pleadings the superiority of appellant’s mortgage.

Moreover, mortgage foreclosures are equitable proceedings in which amendments of pleadings, and opportunities to try to reform instruments to reflect their true intent, should be permitted if not encouraged.

In any event, the outstanding issues here preclude summary judgment and permit of an amended complaint and answer to the counterclaim. This cause is reversed and remanded in accordance herewith.

REVERSED AND REMANDED.

BERANEK, J., concurs in conclusion only.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

Chase Manhattan Bank held a mortgage that originally covered only lots 1 and 2, which were improved by an office building. The Trustees of C.I. Mortgage Group held a second mortgage and DeKalb Fulton Corporation held a third mortgage on the same lots. In consideration for the extension of the Chase and C.I. mortgages the parties entered into two “spreader agreements,” dated May, 1975, whereby lots 3 and 4 also became encumbered with the Chase and C.I. mortgages. However, prior to the effective date of the “spreader agreements” City Housing Corporation, as owner, executed an $8,000,000 wrap around mortgage encumbering all four lots. When the C.I. “spreader agreement” was recorded the title company inadvertently failed to include lots 3 and 4 in the property description. However, it seems clear from the record that the C.I. “spreader agreement” was also intended to encumber lots 3 and 4. Of some note is the fact that the Chase “spreader agreement” expressly provides Chase is to have a first mortgage lien on all four lots. The C.I. agreement is silent on the priority of that lien on the lots to which that mortgage was spread.

Chase sued to foreclose its mortgage against all four lots, naming C.I. and De-Kalb, among others, as defendants. C.I. sued to foreclose its mortgage only against lots 1 and 2. These suits were consolidated. DeKalb, which at this point was also the owner and holder of the $8,000,000 wrap around mortgage, filed a counterclaim, claiming a mortgage lien superior to both Chase and C.I. and seeking to foreclose against all four lots. In its counterclaim DeKalb alleged that the C.I. “spreader agreement” was intended to spread the encumbrance of C.I.’s mortgage to lots 3 and 4. Also, in opposition to C.I.’s motion for summary judgment, DeKalb filed the affidavit of Martin Gold, the lawyer who prepared the “spreader agreement.” Gold stated that the parties intended that the C.I. mortgage was to be extended to cover lots 3 and 4. However, oddly enough, in answering the counterclaim C.I. denied any interest in lots 3 and 4. As if that were not enough, after the DeKalb counterclaim was filed, C.I. amended its complaint and once again sought foreclosure only against lots 1 and 2.

The record and appellant’s brief indicate that, since Chase claimed a first lien on all four lots by virtue of its mortgage and “spreader agreement,” C.I. made the tactical decision to claim second priority of its mortgage only against lots 1 and 2. C.I. intended to ultimately buy up Chase’s mortgage and thus be spared proving up its position vis-a-vis lots 3 and 4. Whatever strategy C.I. had in mind, when several days before trial Chase and DeKalb presented the court with a stipulation conceding DeKalb’s mortgage had first priority on lots 3 and 4, C.I. was left with no pleadings claiming a lien on lots 3 and 4 or seeking any relief against said property. Thus, when C.I. moved ore tenus, on November 3rd for leave to amend its pleadings to assert a claim to lots 3 and 4, it came too late. No doubt C.I. was surprised at the Chase/DeKalb stipulation conceding De-Kalb’s priority position as to lots 3 and 4; however, C.I. should have pleaded its own claims and not relied upon Chase’s success in proving its eventual priority. The record does not demonstrate that Chase and De-Kalb did anything in the litigation that was not perfectly proper. Therefore, I am unable to fault the trial judge in refusing to allow the proposed amendments at that late stage of this two and one-half year litigation. As this court said in Versen v. Ver-sen, 347 So.2d 1047 (Fla. 4th DCA 1977), the liberality in allowing amendments pursuant to Florida Rule of Civil Procedure 1.190 diminishes as the case progresses.

The real question presented on this appeal is the trial court’s refusal to allow appellant to amend under the circumstances of the case. However, appellant also contends the trial court erred in granting De-Kalb a summary judgment awarding it a first lien on lots 3 and 4. In my opinion, the final judgment was not the result of a summary judgment as regards lots 3 and 4, but the final resolution of all issues presented to the court on the question of priority of liens on said lots. The November 3rd hearing commenced as a continuation of appellant’s motion for summary judgment on its claim regarding lots 1 and 2. It was intended that, if time permitted, a pretrial conference would also be held. As a result of that pretrial conference and the concession of the parties, it was clear there was no necessity to adduce any further testimony. The parties agreed it was simply a question of preparing the final judgment, filling in the correct figures due on the mortgages, etc., and setting a date for sale.

Accordingly, I am constrained to hold that no reversible error has been demonstrated and the judgment should be affirmed.


author: NESBITT, Judge.

text:
    Ronny Albert ZAMORA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-685.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Dec. 13, 1982.

      Ronald S. Guralnick, Greene & Cooper and Sharon Wolfe, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal from an order denying a motion to vacate a judgment and conviction on the ground of ineffective assistance! of counsel, following a full evidentiary hearing pursuant to Florida Rule of Criminal Procedure 3.850. I

The defendant’s judgment and conviction for first degree murder, burglary of a dwelling, and possession of a firearm while committing a felony and robbery was affirmed here. Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979). Shortly after that appeal was disposed of, Zamora filed the present motion.

The Background

Ronny Zamora was fifteen years old when he entered a neighbor’s home and found the gun with which he shot and killed the elderly female resident. He also stole $400 in cash, some jewelry, and the victim’s automobile. He then assembled some friends and together they had a soiree at Disney World. After the trip, Zamora’s involvement in the crime became known to his parents. His father called a friend, who was a police officer. This off-duty officer obtained Zamora’s confession without first affording him.his Miranda rights. After he was taken into custody, Zamora gave two more confessions to the police. In addition, he made an unsolicited and totally voluntary confession in a letter to his defense counsel’s daughter, stating:

I think that you desire to know what really happened. The reason I went into her house was because I thought I heard someone inside. I don’t care what the police, news or people say, I did not mean to kill her. I want you to believe me and to have faith. Please don’t listen to what anyone says. The other kid took all her stuff, rings, watches and everything. When I shot her, I did not realize what I had done until after.

Zamora also made certain statements to a companion named Cahill with whom he had taken the Disney World trip. These statements can briefly be characterized as incul-patory of all of the crimes with which Zamora was subsequently charged and convicted except as to the murder charge, with regard to which they were exculpatory.

His allegations of ineffective assistance of counsel were specifically stated, as is required, Knight v. State, 394 So.2d 997, 1001 (Fla.1981), and are disposed of separately.

Failure of Defense Counsel to Inaugurate Plea Negotiations

Zamora’s detention and indictment were widely followed by the media and the case readily became a cause celebre. The state attorney publicly announced he would seek the death penalty. In this hapless position, Zamora’s defense counsel did not inaugurate an attempt to plea bargain. There was evidence before the trial court that the assistant state attorneys directly responsible for Zamora’s prosecution would have been willing to consider a plea to second degree murder in lieu of proceeding to trial on the first degree murder charge. The flaw in this argument is simply that the assistant state attorneys were never shown to have any authorization whatsoever to conclude such a negotiation. Furthermore, even after a plea negotiation has been agreed upon, it must still be ratified by the court. This powerful case, magnified by media attention and public clamor and the state attorney’s announced intention to seek the death penalty, makes it entirely too imponderable to consider whether plea negotiations would have been fruitful.

Television Cameras in the Courtroom

During Zamora’s trial, television cameras were present in the courtroom constantly under the general authorization of the Florida Supreme Court. Because Zamora has made no specific claim of prejudice arising from the use of the cameras

and because the use of television cameras during the course of a criminal proceeding is not per se unconstitutional, Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981); In re Petition of Post-Newsweek Stations Florida, Inc., 370 So.2d 764 (Fla.1979), the contention that defense counsel should have objected to the presence of the cameras is. without merit.

Failure to Suppress Police Confessions

Trial counsel did not seek to suppress any of the confessions made by Zamora. The trial court found that the police confessions were arguably suppressible, but that the letter confession and the admissions to Cahill were admissible. The trial court also found that the admissible statements along with the other evidence against Zamora were sufficient, without consideration of the police confessions, to lead to a guilty verdict. Suppression of the police confessions would only have required the state to alter its strategy and utilize the alternative, formidable evidence against Zamora. Given the letter confession, which unmistakably pointed to the defendant as the murderer, and the “Cahill” admissions, which unmistakably connected him to the remainder of the offenses charged, the trial court ruled, and we entirely agree, that although the police confessions might have been suppressed, the failure to do so in this case was not such deficient conduct as likely affected the outcome of the proceedings. Knight v. State, supra.

Failure to Seek Dismissal of the Indictment

Zamora’s co-defendant, Darrell Agrella, sought and obtained dismissal of the indictment returned against him on the basis that the grand jury was illegally constituted. Although Zamora was indicted by the same grand jury, defense counsel failed to seek dismissal of Zamora’s indictment or to join in Agrella’s motion. However, given our above-stated concurrence in the trial court’s assessment of the evidence against Zamora, we think it rather evident that even had dismissal of the indictment been obtained, any subsequent, properly-constituted grand jury would surely have re-in-dieted Zamora. Therefore, it cannot be successfully argued that the failure to seek dismissal of the indictment was an error which would ultimately affect the outcome of the proceedings. Knight v. State, supra.

The Use of a “Non-defense”

Faced with the existence of a great deal of incriminating evidence, even if some of it were suppressed, and presented with the state attorney’s apparent foreclosure of any plea bargaining possibilities, defense counsel elected to have Zamora plead not guilty by reason of insanity. He embarked on this approach buttressed by the fact that about a week before the commission of the crime, Zamora had displayed some psychiatric disorder upon being examined at his school. Defense counsel put forth that Zamora did not know right from wrong due to “voluntary subliminal television intoxication.” The psychiatrist’s testimony that Zamora was legally insane by the required test for some two to three seconds during the commission of the homicide, was sufficient to permit the issue of insanity to go to the jury. This, in turn, enabled defense counsel to expose the jury to all of the violent contemporary television crime programs in order to attempt to demonstrate the pervasive and deleterious effect such shows might have on a fifteen-year-old.

Zamora, on this appeal, has reserved his most vitriolic assault on his former counsel for use of this “non-defense.” He argues that since “voluntary subliminal television intoxication” is not recognized in Florida as a defense to the commission of a crime, the decision to utilize such a theory falls below the ability of competent counsel. However, Zamora overlooks the fact that the defense was insanity and television intoxication merely the alleged reason therefor. Just because a proffered expert witness for the defense was not prepared to testify that watching violent television programs to excess affects an individual to the extent that he might not be able to distinguish right from wrong, Zamora v. State, 361 So.2d at 779, does not mean that the jury would not believe that such a phenomenon was possible.

Moreover, it was conceded at oral argument before the bar of this court that defense counsel faced the representation of a client who had no defense. In this uncompromising position, defense counsel cannot be faulted for selecting a tack which, by allowing for the presentation of evidence as to the defendant’s unfortunate background, may have at least evoked the sympathy of the jury and a consequent jury pardon, if nothing better. Under the circumstances of this case, Ford v. State, 407 So.2d 907 (Fla.1981); Knight v. State, supra, we cannot say that because defense counsel did not succeed in his efforts he was ineffective.

The Sum of the Parts

Finally, Zamora argues that the aggregate of all the foregoing contentions entitles him to a new trial with different counsel. Although, as has been previously noted, the claim of ineffective assistance of counsel must be set out with specificity, Knight v. State,, supra, our supreme court has intimated that the allegations may be considered in series or in combination. King v. State, 407 So.2d 904 (Fla.1981). Such an inquiry in the instant case does not warrant a finding of ineffectiveness. In fact, certain of the alleged erroneous tactical decisions provide justification for others, and when considered in conjunction are actually supportive of a determination of effectiveness. For example, the non-pursuit of the motions to suppress was based on a decision to employ the insanity defense and demonstrate that only someone intoxicated with television violence and crime-dramas would confess so freely to so many people his participation in a real-life criminal episode.

Zamora’s claim, whether viewed in its individual segments, in different series, or as one entire picture, does not project an image of ineffectiveness.

For the foregoing reasons, we affirm the trial court’s order denying the motion to vacate Zamora’s judgment and conviction.

      . See the discussion in Zamora v. State, 361 So.2d at 779, 780-81.


author: PER CURIAM. HERSEY, Judge, ANSTEAD, Judge,

text:
    CENTURY SURFACING, INC., a Florida corporation, Petitioner, v. METRIC CONSTRUCTORS, INC., a foreign corporation, Respondent.
    No. 82-1078.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Rehearing Denied Dec. 13, 1982.
    Louis N. Scholnik of Graham, Hodge & Larson, P.A., Fort Lauderdale, for petitioner.
    Easley, Massa & Willits, P.A., and Larry Klein, West Palm Beach, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

LETTS, C.J., concurs.

HERSEY, J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

HERSEY, Judge,

concurring specially.

I concur in the majority’s decision to deny the petition for writ of certiorari and I do so specially in order to give visability and perspective to the divergent views held by the panel.

A right to arbitration granted by contract is specifically enforceable by a court upon a parties’ Motion to Compel pursuant to Section 682.03(1), Florida Statutes (1981). The contractual right to arbitration may, however, be waived by express words or by conduct implying such an intent. Petitioner has by implication waived its right as a result of taking positions inconsistent with arbitration.

Initially petitioner filed a motion to dismiss the third party complaint alleging its contractual right to arbitration. Although the appropriate means of raising the issue is by a Motion to Compel, we agree with the second district that a pleading is governed by its substance, so that this motion to dismiss, while technically inappropriate, does not waive petitioner’s right to arbitration. Balboa Insurance Co. v. Mills, 403 So.2d 1149 (Fla. 2d DCA 1981).

Subsequently petitioner filed an answer to the complaint alleging arbitration as an affirmative defense. In an identical situation, the third district held that where a party answered the complaint without demanding arbitration that party waived the right to arbitration, even though the failure to arbitrate was asserted as an affirmative defense. Hansen v. Reynolds, 408 So.2d 658 (Fla. 3d DCA 1981). Additionally I note that petitioner delayed ten months in filing an answer to the initial complaint. The waiver of the right, however, does not necessarily depend on the timing of the motion to compel arbitration. R.W. Roberts Construction Co. v. Masters & Co., 403 So.2d 1114 (Fla. 5th DCA 1981); Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969).

The petitioner also filed a third party counterclaim in two counts seeking arbitration and, alternatively, damages. Count II of this counterclaim is clearly inconsistent with and therefore waives the right to arbitration despite the claim for arbitration in Count I. Romar Transports, Ltd., Inc. v. Iron & Steel Co. of Trinidad & Tobago Ltd., 386 So.2d 572 (Fla. 4th DCA 1980).

Finally, petitioner filed a motion for summary judgment. This too effectively waives petitioner’s right to arbitration because: “[a] party who contests the merits of

a claim by filing a motion for summary judgment accepts the judicial forum. She [or he] may not consistently later claim that only the arbitral forum is satisfactory.” Lapidus v. Arlen Beach Condominium Ass'n, 394 So.2d 1102, 1103 (Fla. 3d DCA 1981).

For the foregoing reasons I agree that the petition for certiorari should be denied.

ANSTEAD, Judge,

dissenting:

I would grant the petition for writ of certiorari and direct the trial court to grant the petitioner’s request that the dispute between petitioner and respondent be arbitrated in compliance with the agreement of the parties. I do not believe that the petitioner’s prior motions to dismiss or subsequent pleading of the arbitration provision as an affirmative defense constituted a waiver of its rights to arbitration. In fact, under this court’s holding in Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973), it would be inappropriate to refer the ease to arbitration until after the filing of an answer by the defendant. While I believe referral to arbitration should be sought as soon as possible, and to that extent disagree with the holding in Mills, I do not believe the petitioner’s failure to seek arbitration before filing motions to dismiss constituted a waiver of its right to arbitrate. I also do not agree with the trial court’s conclusion that the petitioner waived its right to arbitrate by filing a counterclaim at the same time the right to arbitration was asserted. Finally, the petitioner’s motion for summary judgment simply sought a summary disposition by the court of the petitioner’s contractual entitlement to arbitration.


author: ORFINGER, Chief Judge.

text:
    CONSOLIDATED ALUMINUM CORPORATION, etc., Appellant, v. Jack WEINROTH, Cook United, Inc., etc., Appellees.
    No. 81-1303.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1982.
    Rehearing Denied Dec. 1, 1982.

      Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for appellant.
    Jere E. Lober of Lovering, Pound & Lo-ber, P.A., Cocoa, for appellees.
   ORFINGER, Chief Judge.

Appellant complains of error in the trial court’s denial of its motion to vacate a default. We affirm.

To justify a reversal of an order denying a motion to vacate a default, the appellant must demonstrate a gross abuse of the trial court’s discretion. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962); Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977). No such showing is made here.

Appellant contends: (1) that because service of process upon it was defective, the default should have been vacated; and (2) that its subsequent motion to quash the defective service of process should have been granted. In the motion to vacate the default, to which appellant attached its proposed answer and affirmative defenses to demonstrate that it had a meritorious defense, appellant alleged that process had not been served on its proper officers. The record shows that process had been delivered to someone in its corporate headquarters and promptly forwarded by that person to appellant’s Florida attorney. Although having the service copy of the summons and complaint in hand in sufficient time to plead thereto, the Florida attorney took no action, relying instead on the advice of the secretary who forwarded the papers that there had been no service of process. These facts were asserted in the motion to vacate, not as a ground for quashing the process, but in an attempt to demonstrate excusable neglect which would justify vacating the default. The trial court found that the neglect was inexcusable, and denied the motion to vacate the default.

About a month and a half after serving the motion to vacate the default and a week after the court denied that motion, appellant filed the motion to quash service of process. The trial court held that by failing to object to personal jurisdiction in its first pleading, that issue had been waived, and although finding the service of process defective, it denied the motion to quash. The trial court was correct in so holding. A defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading, or that issue is waived and defendant has submitted himself to the court’s jurisdiction. Fla.R.C.P. 1.140(b), 1.140(h); Miller v. Marriner, 403 So.2d 472 (Fla. 5th DCA 1981).

Appellant’s motion to vacate the default, with its tendered answer, was not in opposition to the court’s jurisdiction over it, but was in recognition of that jurisdiction. Had the motion to vacate the default been granted, the tendered answer would have been immediately filed, and there would be little question about personal jurisdiction over appellant. The attack on the process filed only after the court denied the motion to vacate the default came too late.

The orders appealed from are AFFIRMED.

COBB and SHARP, JJ., concur.

      . An order denying a motion to vacate a default is an appealable non-final order under Rule 9.130(a)(3)(C)(iv), Fla.R.App.P. as an order determining liability in favor of a party seeking affirmative relief. See Doctor’s Hospital of Hollywood, Inc., v. Madison, 411 So.2d 190 (Fla.1982).


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

text:
    APPALACHIAN INSURANCE COMPANY, an insurance company authorized to do business in the State of Florida, Appellant, v. UNITED POSTAL SAVINGS ASSOCIATION, a Missouri corporation, Appellee.
    No. 81-1296.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 16, 1982.
    Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appellant.
    Herbert A. Warren, Miami, Sibley, Giblin, Levenson & Glasser, Miami Beach, for ap-pellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

United Postal Savings Association sued Appalachian Insurance Company, its property insurer, to recover more than a quarter of a million dollars plus interest, costs and attorneys’ fees for damages to United Postal’s shopping center arising from vandalism and theft. The insured alleged that the vandalism and theft occurred in the approximate four-month period between April 1 and August 3, 1978. The policy of insurance issued by Appalachian provided that United Postal was not entitled to recover under the policy unless its damages from a theft or an act of vandalism exceeded the deductible amount of $1,000. The trial court instructed the jury that it was the insured’s burden to establish that any claim exceeding $1,000 was attributable to a single occurrence of theft or vandalism. The jury, apparently finding, as most certainly the evidence would have permitted it to do, that no single act of theft or vandalism caused a loss in excess of $1,000, returned a verdict for Appalachian. Deciding that its instruction erroneously placed the burden on the insured rather than the insurer, the trial court granted United Postal’s motion for new trial. The insurance company appeals.

Initially, if the trial court’s instruction to the jury was correct in the first instance, the grant of a new trial, based only on the perceived impropriety of the instruction, was error. We need not indulge, or defer to, the trial court’s superior vantage point where all that is at stake is the propriety of a legal ruling, and the appellant need make no special showing to overturn the new trial

order. Nesbitt v. Auto-Owners Insurance Company, 390 So.2d 1209 (Fla. 5th DCA 1980).

The insured, primarily relying on Phoenix Insurance Co. v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970), and Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889 (5th Cir.1959), says that the burden was the insurer’s, the jury instruction was incorrect, and the new trial was properly granted. However, the concern of both Phoenix and Jewelers Mutual was whether the insured had the burden to negative exceptions to an all-risk policy, or the insurer had the burden to bring itself within an exception. The rationale for placing this particular burden on the insurer was explained in Jewelers Mutual:

“If the insurer’s contention is sound, then as a condition precedent to liability, the assured would have to establish by a preponderance the negative of each of these manifold exceptions. Were he required to exhaust the gamut of these provisions what had been purchased and sold as all risks insurance would turn out to be something else. Instead of the policy affording coverage against all causes of damage except those specifically excluded, it would amount only to a named perils cover since the assured to negative the exception would have to establish for this case an actual theft or some other such event not specifically excluded.” 272 F.2d at 892.

In our view, this rationale is applicable only where what is at issue is the risk insured against in an all-risk policy. Where, as here, the issue is not the risk, but the application of a deductible, then the fact that the instant policy happens to be an all-risk policy is totally immaterial.

The question, then, is where the insurer does not contend that the loss arose from a cause that is excepted from the policy, and indeed, as here, concedes that the type of loss is covered, whose burden is it to show that the loss exceeds the deductible amount? We believe this court answered this question in U.S. Liability Insurance Company v. Bove, 347 So.2d 678 (Fla.3d DCA 1977). In Bove, the insured claimed a loss due to theft of jewelry to the policy limits of $16,000. The policy contained a further provision that the insurer shall not be liable for such a loss “in any one occurrence” for more than $500. The trial court placed the burden on the insurance company to show that the loss was attributable to one occurrence. Finding that the insurer failed to satisfy the burden, the trial court entered judgment for the insured. This court reversed. While acknowledging the correctness of the rule of Phoenix Insurance Co. v. Branch, supra, that “the burden is on the insurer to establish that the loss arose from a cause that is excepted from the policy,” the court distinguished the issue in Phoenix from the one under consideration:

“There is no dispute between the parties that the theft is covered by the policy and defendant is not contending that plaintiff’s loss arose from a cause that is excepted from the policy. The phrase ‘in any one occurrence’ sets no limit to the number of losses which the insured may claim, but merely sets a limitation on the coverage as to each loss. Thus, the plaintiff had the burden of proving more than a single theft occurred on April 4.” U.S. Liability Insurance Company v. Bove, 347 So.2d at 680.

Similarly, where, as here, recovery under the policy is limited to a loss from a single occurrence of theft or vandalism resulting in excess of $1,000 in damages, it is the insured’s burden to prove that any single theft or act of vandalism resulted in such a loss. See also Evans v. Pacific National Fire Insurance Company, 367 S.W.2d 85 (Tex.Civ.App.1963) (a deductible provision, being as much a basic part of the policy as the provision which sets the maximum amount of money recoverable under the policy, is not an affirmative defense which must be proved by the insurer).

Accordingly, we reverse the order granting a new trial and remand the cause with directions to reinstate the jury verdict in favor of Appalachian and enter judgment thereon.

BASKIN, Judge

(dissenting).

In its Order Granting New Trial, the trial court stated as its reasons:

THIS CAUSE is before the Court upon the Plaintiffs Motion for New Trial, as amended. The Court has carefully reviewed the Motion and the legal memo-randa submitted by the parties and has reviewed the Court’s charge to the jury. The Court finds that it was in error in refusing Plaintiff’s request that the jury be instructed that the burden of proof is upon the Defendant to prove to what extent its liability is reduced by virtue of the application of the deductible clause under the policy of insurance issued by the Defendant. The Court further finds that the Court was in error in instructing the jury that the burden of proof is solely on the Plaintiff to prove its claim by the greater weight of the evidence. The Court further finds that the jury was misled or confused and that the Plaintiff did not receive a fair trial by virtue of such erroneous instructions. Therefore, in the' exercise of this Court’s discretion, and in accordance with the law as set forth in Castlewood International Corporation v. LaFleur, 322 So.2d 520 (3d DCA 1975) [sic]; Cloud v. Fallis, 110 So.2d 669 (Fla.1959). ...

A trial judge acts within his wide discretion in granting a new trial when he believes his instructions to the jury were incorrect. Martinique Hotel v. Taylor, 139 So.2d 916 (Fla. 3d DCA 1962). The granting of a new trial can be overturned only by a showing of a clear abuse of discretion. Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975).

It is clear that, under an all-risks policy, an insured must prove a loss within the terms of the policy. The insurer must then prove an exception to the loss. Phoenix Insurance Co. v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970). Concerning the appropriate burdens of proof, the court, in Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889 (5th Cir.1959), stated:

There was a loss, and it was established by positive evidence. The assured did not have to go further to demonstrate that such loss was not caused by one of the excepted conditions. To escape the broad undertaking of this comprehensive cover, the insurer had the burden of establishing that, (citation omitted).

Id. at 892. That principle applies to these proceedings. See 31 Fla.Jur.2d, Insurance § 996 (1981).

While technically a deductibility clause may not be an exception to insurance coverage or an exclusion therefrom, inasmuch as it too functions as a limitation on the liability of the insurer, it must be treated the same as other limitations, (citations omitted).

Beaumont-Gribin-Van Dyl Management Co. v. California Union Insurance Co., 63 Cal. App.3d 617, 624, 134 Cal.Rptr. 25, 27 (1976).

Appellee established a loss of $266,159.23 between April 1 and August 3, a period of 125 days. Assuming an “occurrence” of theft or vandalism of once (or even twice) a day, appellee proved a loss within the policy, shifting the burden of limiting liability to the insurer. The trial court correctly recognized that the instructions failed to apprise the jury of the correct burdens of proof. The grant of a new trial was the appropriate means of remedying the defect. Appellant, having shown no abuse of discretion by the trial court, is entitled to no relief.

I would affirm.

      . In Nesbitt, the court reversed an order granting a new trial where the reason for the grant was the trial court’s mistaken view that it had incorrectly instructed the jury “not because of critical evidentiary rulings, improper conduct of a trial participant or other matters which are commonly ones which require the use of discretion on the part of the judge whose decision [in such instances] is given the greatest of deference because of his unique position.” 390 So.2d at 1210.

      . Phoenix relied on Jewelers Mutual Insurance Co. v. Balogh, supra, which for the reasons stated does not apply to the present case.

      . Beaumont-Gribin-Von Dyl Management Co. v. California Union Insurance Co., 63 Cal. App.3d 617, 134 Cal.Rptr. 25 (1977), relied on by the insured, contains a statement, the thrust of which is that a deductibility clause must be treated as any other limitation in the policy. The context of that statement is, however, that ambiguities, wherever they appear in an insurance policy, will be construed against the insurer. The issue in that case was “whether the word ‘claim’ meant the individual claim of each person harmed by the insured’s act, error, or omission or, the insured’s claim against the insurer for the total liability incurred by reason of a single act, error, or omission on its part.” (emphasis in original). That is hardly the issue in the present case.


text:
    SAFE-T-LAWN, INC., Appellant, v. George H. LOCKWOOD, Appellee.
    No. 81-2746.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 17, 1982.
    Tew, Critchlow, Sonberg, Traum & Fried-bauer and Richard Critchlow, Miami, for appellant.
    Miller & Squire and Joel Miller, Fort Lauderdale, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment below, entered after a non-jury trial, is reversed with directions to enter judgment for the defendant-appellant. We hold that (1) the plaintiff is barred from recovering on the claim asserted for accrued royalties because (a) the record indisputably demonstrates that the debt was voluntarily forgiven and contributed to the defendant, of which Lockwood was an officer, director and stockholder, as an inducement for a third-party to lend funds to the corporation and thus to prevent its financial collapse and (b) the action was in any event time-barred by the untolled running of the five-year statute of limitations, Sec. 95.11(2)(b), Fla.Stat. (1979), prior to the filing of the complaint; and that (2) the claim for royalties on a patent later issued to the plaintiff is likewise precluded because, in two separate agreements, Lockwood specifically assigned the patent rights in question to Safe-T-Lawn.

Reversed.


author: MILLS, Judge.

text:
    Cosme RODRIGUEZ, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-296.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Rehearing Denied Dec. 7, 1982.
    Benedict P. Kuehne of Bierman, Sonnett, Beiley & Shohat, Miami, P.A., for appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Rodriguez appeals the establishment of his presumptive parole release date. We affirm.

Rodriguez’ crime was committed before the adoption of the objective parole guidelines, see Rodriguez v. State, 379 So.2d 657 (Fla. 3d DCA 1980). His ex post facto argument is controlled by Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

The correct offense characteristic and salient factor score were applied.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    A. McD., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2210.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 13, 1982.

      Bennett H. Brummer, Public Defender, and Elliot Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   NESBITT, Judge.

The defendant appeals an adjudication of delinquency upon two counts of battery on a police officer and one count of resisting arrest with violence. The defendant entered a plea of not guilty, contending at trial that the police officers had in fact assaulted the defendant.

The defendant first contends that the trial court improperly sustained the state’s objection when, on cross-examination, defense counsel asked one of the arresting officers, “Have you ever been subject to any disciplinary investigations?” The defendant in a criminal case is accorded wide latitude in the cross-examination of prosecutorial witnesses. Mendez v. State, 412 So.2d 965 (Fla. 2d DCA 1982); Porter v. State, 386 So.2d 1209 (Fla. 3d DCA 1980); Lutherman v. State, 348 So.2d 624 (Fla. 3d DCA 1977). All witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice, or interest. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); D.C. v. State, 400 So.2d 825 (Fla. 3d DCA 1981). The defendant cites several cases for the proposition that inquiry into prior or pending disciplinary action is proper cross-examination. While we are in agreement with those decisions, under the facts of the present case, we find no error.

It is axiomatic that failure to proffer what the excluded evidence would have revealed precludes appellate consideration of the alleged error. Cason v. Smith, 365 So.2d 1042 (Fla. 3d DCA 1978); Seaboard Air Line Railroad Co. v. Ellis, 143 So.2d 550 (Fla. 3d DCA 1962). The Florida Evidence Code, Section 90.104, Florida Statutes (1979) provides:

(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:
(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.

In the present case, no offer of proof was made to indicate the testimony to be elicited from the police officer. The bare question, “Have you ever been subject to any disciplinary investigations?” provides no insight as to its relevancy. Thus, while it is clear that a disciplinary investigation, concerning prior incidents of excessive force or arising out of the arrest of this defendant, would be relevant; it is equally apparent that a prior investigation for something remote in time, or unrelated to excessive force would not be relevant. See Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974) (fact that two years earlier undercover agent became involved in police work in order to prevent criminal charges from being prosecuted against him for his own arrest in a narcotics case, and charges had been dropped six months earlier, was not relevant to show bias). It is in this crucial respect that the instant case is distinguishable from those cited by the defendant. In each of those decisions, the relevancy was apparent from the question being asked or from the proffer that was made. We therefore find that the absence of such .a proffer in the present case precludes our review of the alleged error.

The appellant, in apparent reliance upon Section 90.104(3), Florida Statutes (1979) and Davis v. Alaska, supra, argues that the restriction of cross-examination constitutes fundamental error for which this court must reverse. We disagree. This section can hardly be applied where the party fails to make an offer of proof since, as a result of this failure, there is an absence of material in the record to disclose the error. See Law Revision Council Note to § 90.104(3), Fla.Stat.Ann. (1976).

We next consider the defendant’s contention that the trial court improperly refused to allow inquiry into the substance of conversations which the three arresting officers had with the state attorney in the presence of each other. In Duncomb v. State, 237 So.2d 86 (Fla. 3d DCA 1970), this court held that curtailment of cross-examination on this issue is not improper since

[t]he only value or materiality to the defendants of disclosing that the said state witnesses were interviewed in the presence of each other prior to trial, was that the credibility of those witnesses could be considered by the jury to have been lessened through the possibility that one may have been influenced (beyond his personal observation or recollection) by information supplied by another, during such joint interrogation.

237 So.2d at 87. Once the fact became known, the trier of fact was in a position to consider the credibility of the witnesses.

For the foregoing reasons, we affirm.

      . Mendez v. State, supra; D.C. v. State, supra; Lutherman v. State, supra; Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976).

      . We can only conclude by the absence of a proffer that the attorney was engaging in a fishing expedition during trial. To propound such a question, without knowing what the answer would be, can only serve to taint the minds of the jurors. An attorney who employs such tactics deserves a rebuke from the trial judge.

      . Mendez v. State, supra, (proffer of police officer’s prior suspensions without pay for excessive use of force, as well as pending investigation for pulling a revolver on a traffic violator); D.C. v. State, supra, (evidence that the defendant’s sister had filed a complaint against police officers who arrested defendant); Lutherman v. State, supra, (cross-examination of police officer for police brutality in making the defendant’s arrest); Webb v. State, supra, (proffer that defendant was being framed by the police department because of a pending civil suit for false arrest).

      .Section 90.104(3):
      Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.


text:
    Calvin MORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2414.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 15, 1982.

      Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT, and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

This is an appeal from the summary denial of Morris’ third motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Summary denials of the two previous Rule 3.850 motions were affirmed here. Morris v. State, 392 So.2d 1366 (Fla. 3d DCA 1981); Morris v. State, 348 So.2d 969 (Fla. 3d DCA), cert. denied, 354 So.2d 983 (Fla.1977). Morris’ direct appeal also resulted in an affirmance. Morris v. State, 322 So.2d 489 (Fla. 3d DCA 1975).

Morris and a co-defendant, Swan, were convicted of first degree murder for the beating death of one Honey Reh. Ms. Reh was already suffering from numerous medical disabilities at the time of the beating administered by Morris and Swan. She died seven days later on June 6, 1973.

At trial, defense counsel attempted to demonstrate that Ms. Reh’s maladies, and not the battery, were the cause of death. The first contention in Morris’ most recent Rule 3.850 motion is that trial counsel was ineffective for failure to procure a court-appointed expert witness to aid in the preparation and presentation of this defense. We cannot agree for the following reason.

Upon Swan’s direct appeal, the supreme court held that it was proper for the jury to reach a guilty verdict if it could reasonably be concluded that the wounds inflicted by Morris and Swan materially contributed to Ms. Reh’s death, notwithstanding that she might have withstood the beating had she been free of the pre-existing physical infirmities. Swan v. State, 322 So.2d 485,487 (Fla.1975). In light of this holding, Morris’ general allegations concerning the need for an expert’s assistance and testimony are far too broad, under the standards set forth in Knight v. State, 394 So.2d 997 (Fla.1981), to have necessitated an evidentiary hearing before the trial court.

Morris next asserts that his conviction should be vacated because his parents did not receive notice prior to trial pursuant to Section 925.07, Florida Statutes (1973). This point was raised in both of Morris’ previous Rule 3.850 motions and disposed of in the trial court and here. We need not consider it again.

Morris has presented a third ground, which amounts to a claim of insufficiency of the evidence; and a fourth contention alleges improper prosecutorial comment. Neither insufficiency of the evidence, Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980); Glenn v. State, 271 So.2d 23 (Fla. 2d DCA 1972), nor prosecutorial comment, Adams v. State, 380 So.2d 423 (Fla.1980); State v. Pittman, 401 So.2d 934 (Fla. 1st DCA 1981), pet. for review denied, 412 So.2d 469 (Fla.1982); Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977), are appropriately raised by way of Rule 3.850 collateral attack when a direct appeal has been taken.

Finally, Morris argues that the record does not affirmatively demonstrate that he or his counsel were present, or that Morris’ presence was waived, when the court responded to certain requests from the jury during its deliberations. Ivory v. State, 351 So.2d 26 (Fla.1977), a case decided nearly two years after Morris’ trial and direct appeal were concluded, now dictates that such an occurrence would constitute per se prejudice requiring the reversal of a conviction. However, at the time of Morris’ trial, the rule in this district was that in order to obtain a reversal, it was incumbent upon the defendant to demonstrate prejudice arising from the trial judge’s response to a jury request. See Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976), rev’d, 351 So.2d 26 (Fla.1977). Morris does not allege that any prejudice resulted in his case. Thus, the question becomes: Should the change of decisional law wrought by our supreme court in Ivory be applied retroactively to vacate Morris’ conviction under Rule 3.850? Utilizing the test advanced in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), we answer this question in the negative and hold that the Ivory decision did not result in a constitutional change of such fundamental significance as to justify its retroactive application.

The trial court’s summary denial of the motion to vacate was proper.

Affirmed..

      . It is clearly recognized that a change in the law is a ground appropriately raised by way of a motion to vacate pursuant to Rule 3.850. See Williams v. State, 421 So.2d 512 (Fla.1982); Antone v. State, 410 So.2d 157 (Fla.1982); Alvord v. State, 396 So.2d 184 (Fla.1981); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).


text:
    Maximo BRAVO and Yero Cilega, Appellants, v. The STATE of Florida, Appellee.
    No. 81-2585.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 16, 1982.
    Bennett H. Brummer, Public Defender and Stephen Loffredo, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Leeman v. State, 357 So.2d 703 (Fla.1978); Richardson v. State, 246 So.2d 771 (Fla.1971); Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978); Shockey v. State, 338 So.2d 33 (Fla.3d DCA 1976); Bivins v. State, 313 So.2d 471 (Fla.4th DCA 1975); Morgan v. State, 303 So.2d 393 (Fla.2d DCA 1974); Parks v. State, 206 So.2d 431 (Fla.3d DCA 1968).


text:
    Kenneth ALCORN and Sam Shelton, Appellants, v. The STATE of Florida, Appellee.
    No. 82-1111.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 13, 1982.
    Carl Di Bernardo and Daniel Hanford, Miami, for appellants.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Mock v. State, 385 So.2d 665 (Fla.2d DCA 1980); Horton v. State, 375 So.2d 1112 (Fla.3d DCA 1979); State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978).


author: BASKIN, Judge.

text:
    ARRANCO SHOES BY CARMEN, INC., a Florida corporation, Appellant, v. CALZADOS MILADY, S.L., a corporation, Appellee.
    No. 82-1262.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 8, 1982.
    Silver, Levy & Hershoff and Jay M. Levy, Miami, for appellant.
    William Phillips and Henry W. Ciar, Miami, for appellee.

      Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Finding no excusable neglect which. might justify appellant’s failure to respond to process properly served upon its employee during the lengthy period appellant’s business was left in the care of its employee, and finding no abuse of discretion by the trial court, T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1980); Williams v. Stack, 366 So.2d 872 (Fla. 4th DCA 1979), we affirm the trial court’s denial of appellant’s Motion to Set Aside Default and Default Judgment.

We remand, however, for a new trial on the question of damages. Appellant was not afforded notice of trial on the issue of damages. Tallman Pools of Georgia, Inc. v. Wood, 399 So.2d 112 (Fla. 1st DCA 1981); Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980); Fla.R.Civ.P. 1.440(c).

Affirmed in part, reversed in part.


text:
    The GOLDRYN CORPORATION, Terrence E. Ryan and Jerome H. Goldfarb, Appellants, v. BOGER REST. CORPORATION and Lewis Katz, Appellees.
    No. 82-1695.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Dec. 15, 1982.
    Samuel I. Burstyn, Miami, for appellants.
    Tew, Spittler, Berger & Bluestein, Coral Gables, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Colon v. Lara, 389 So.2d 1070 (Fla. 3d DCA 1980).


author: HURLEY, Judge.

text:
    VES CARPENTER CONTRACTORS, INC., et al., Appellants, v. CITY OF DANIA, a municipal corporation, et al., Appellees.
    Nos. 81-499, 81-1089.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 30, 1982.

      Constance J. Kaplan, Jesse H. Diner and Jay Cohen of Atkinson, Golden, Bacen & Diner, P.A., Hollywood, for appellants.
    Frank C. Adler and Robert B. Dunckel of Adler, Tolar & Adler, Fort Lauderdale, for appellees.
   HURLEY, Judge.

Ves Carpenter Contractors, Inc. (“Ves”) appeals a judgment which found that Ves had been illegally required to pay water and sewer impact fees but which denied Ves restitution of those fees. We have concluded that the trial court should have ordered restitution of those fees paid within the statute of limitations period and, accordingly, we affirm in part and reverse in part. «

From February 1973 through July 13, 1976, the City of Dania (“the city”) collected impact fees for sewer and water services. These fees, however, later proved to be illegal because the city commission had not adopted a proper enabling ordinance or resolution.

On July 13, 1976, in an effort to rectify the situation, three of the five members of the city commission voted to enact “Ordinance 99,” an emergency ordinance, which authorized the imposition of impact fees. Even though the vote was three to zero, the ordinance was ineffective and subject to attack because an emergency ordinance must pass by a two-thirds vote of a municipality’s governing body in order to be valid under Florida law. Section 166.041(3)(b), Florida Statutes (1981).

The appellant Ves, a real estate developer, instituted a class action suit against the city on August 29, 1977, challenging the validity of the impact fees, seeking injunc-tive relief, and seeking restitution of the fees paid. A lengthy series of pre-trial maneuvers occurred which we need not detail here. Suffice it to say that the city’s last pre-trial amended answer asserted lach-es as an affirmative defense but failed to assert the statute of limitations even though the city’s prior answer and amended answers had raised the statute of limitations defense. In addition, Ves was allowed to represent the class of entities that paid fees under the invalid July 13th emergency ordinance, Ordinance 99, but was not allowed to represent the class that paid fees prior to July 13, 1976.

At the conclusion of a bench trial, the court permitted the city to amend its answer in order to assert the statute of limitations which had been omitted after an earlier amendment. The court then found that Ves was barred by the statute of limitations from recovering fees paid prior to August 29, 1973. As to the fees paid after August 29,1973, the court found that the fees were illegal because they had been collected either without an enabling ordinance (pre-July 13,1976) or under an illegal ordinance (post-July 13, 1976). The court also found that Ves had paid these fees without passing the cost on to its customers, but concluded that Ves could not recover the fees because it had not overcome the presumption that the fees had been paid voluntarily. As for the class action, the court found that Ves had violated a due process requirement by failing to notify the members of the plaintiff class and, as a result, the court decertified the class. Lastly, by a post-judgment order, Ves was awarded certain trial costs.

In addressing the propriety of the trial court’s actions, we start by examining the prerequisites for recoupment of an illegal tax or fee. In North Miami v. Seaway Corp., 151 Fla. 301, 9 So.2d 705 (1942), the Florida Supreme Court established the standards that a taxpayer must meet in order to recover taxes already paid. The taxpayer must demonstrate that (1) the tax was illegal and void, not merely irregular; (2) the tax must have been paid under compulsion or the legal equivalent; (3) the tax must have been paid and received by the municipality, and (4) the party must not have elected to proceed with any other remedy against the tax assessor or collector.

In the present case, Ves satisfied elements (1), (3), and (4). The question on appeal is whether the trial court was correct in concluding that the fees were not paid under compulsion or duress. In this respect we note the Supreme Court’s observation in North Miami v. Seaway Corp., supra, at 707, that “fpjayment [of a tax] to avoid onerous penalties is generally considered as involuntary and compulsory.” Applying this concept to the case at bar, we must determine whether the city’s refusal to issue building permits unless the sewer and water fees had been paid in full amounted to an onerous penalty so as to render payment involuntary and, thus, recoverable.

Guidance on this point is found in New Smyrna Inlet District v. Esch, 103 Fla. 24, 137 So. 1, rehearing denied, 103 Fla. 24,138 So. 49 (1931), a case which involved an improperly created special taxing district. The district collected special assessment taxes to construct and maintain an inlet channel. When Esch and others sued to recover the assessment taxes the district asserted that the taxes had been paid voluntarily and were not recoverable. The Supreme Court ruled for the taxpayers and held that, since the taxes had been paid to avoid a cloud on the owner’s property, such payments were involuntary. The court reasoned that when a special benefit assessment tax is illegally enacted, and the assessment is collected along with other government taxes, a taxpayer has no choice but to pay. Consequently, the court determined that there was sufficient coercion to enable the taxpayers to recoup the illegally paid taxes.

We too have held that “payment of a tax is deemed involuntary where the penalty exacted for non-payment is so severe that it constitutes coercion and duress.” Broward County v. Mattel, 397 So.2d 457, 460 (Fla. 4th DCA 1981). Mattel involved the threat of an injunction plus civil and criminal penalties against a lawyer who initially refused to pay an illegally excessive occupational license tax. We found this to be sufficiently coercive to justify recovery of the monies paid. Our ruling was predicated on the theory that “payment of an illegal tax, even without protest, in order to avoid forfeiture of the right to do business is not a voluntary payment.” Ibid.

Applying these principles to the case at bar, we hold that sufficient economic coercion was brought to bear against Yes to require a finding that the fee payments were involuntary. Prior to purchasing the land for the development, Ves had requested and received a statement of the fees which would be required in order to pull building permits, etc. The city failed to include the sewer and water fees on this list. Ves learned of these fees only after it had purchased the property and had made a substantial financial commitment to its development. Because the fees in question were collected along with other legitimate fees which were necessary to obtain building permits, certificates of occupancy, etc., Ves was required to pay all of the fees if it wished to engage in any construction at all. In retrospect, it is clear that Ves paid the impact fees to avoid the imposition of a substantial burden upon its property rights. This amounted to coercion and duress sufficient to justify Ves’ recovery of the illegally exacted fees. Accordingly, we reverse the trial court’s blanket denial of restitution to Ves.

Next, we consider Ves’ contention that the trial court abused its discretion by allowing the city to amend its pleadings after trial to include the statute of limitations affirmative defense. The city, apparently through inadvertence, failed to re-plead the statute of limitations in its last pre-trial amended answer. Ves, however, has failed to demonstrate that the trial court’s action constitutes reversible error. Rule 1.190(e), Fla.R.Civ.P., states that the pleadings may be amended at any time “in furtherance of justice” if the substantial rights of the parties are not affected. Ves has been unable to demonstrate any prejudice as a result of the court’s ruling because the city consistently alleged laches as an affirmative defense and, under Section 95.-11(6), Florida Statutes (1981), the laches period and the statute of limitations period applicable to this case are identical. Thus, Ves’ substantial rights were not affected by the trial court’s order permitting the amendment.

The next point on appeal concerns the propriety of the trial court’s post-trial decertification of the class. This ruling resulted from the court’s finding that Ves had failed to notify the other members of the plaintiff class as required by Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977). Frankel relied on the United States Supreme Court holding in Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), and held that individual notice must be provided to those members of the class who can be identified through reasonable effort. Although Frankel was decided in January of 1977, eight months before Ves filed its complaint, Ves contends that it did not have to follow Frankel because the existing rules of civil procedure did not provide for a notice requirement. This is patently erroneous. Ei-sen and Frankel announced a constitutional due process requirement that overrides inconsistent procedural rules. Since the error was incapable of being cured in this case, the trial court had no choice but to decertify the class once it discovered this fundamental procedural defect.

Finally, Ves has appealed the trial court’s decision to allow the city to pay its attorneys’ fees from the impact fee fund. Ves has also challenged the adequacy of the amount of costs it was permitted to recover. Since both of these decisions were predicated on the court’s denial of restitution, they should be revisited on remand.

Accordingly, (1) the judgment is affirmed insofar as it declared the illegality of the fees and denied Ves restitution of fees paid before August 29,1973, because of the statute of limitations; (2) the judgment is reversed insofar as it denied Ves restitution of fees paid after August 29, 1973, and (3) the cause is remanded for further proceedings consistent with this opinion and in which the trial court should revisit the question of attorney’s fees and costs.

GLICKSTEIN and DELL, JJ., concur.

      . Testimony at trial indicated that the city’s consulting engineers had presented the city commission with a numerical basis for the impact fees. The commission adopted the fees on February 5, 1973, but failed to do so in the proper manner, i.e., through a valid written ordinance or resolution.

      . We recognize that there is a distinction between an impact fee and a tax. See Contractors and Builders Association v. City of Dunedin, 329 So.2d 314 (Fla.1976). However, once the illegality of either is established, the prerequisites for recovery are the same.

      . North Miami v. Seaway Corp., 151 Fla. 301, 9 So.2d 705, 707 (1942), offered this justification for the above criteria:
      Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the state should furnish him with legal remedies to recover it. Ignorance or mistake of the law by one who voluntarily pays a tax illegally assessed furnishes no ground for a recovery.
      Frankly, we are unpersuaded by this rationale. People pay taxes because of civic obligation and a keen awareness of the potential penalties for violating the tax laws. Thus, we respectfully suggest that it is sophistic to characterize a payment made in error as a voluntary payment. The only justification to retain such a payment should be a showing of severe financial hardship on the part of the governmental entity. Further, to argue that a tax paid pursuant to an illegal or void law is also a voluntary payment, totally lacks persuasiveness. If any presumption should be indulged, it is that the legislative branch of government enacts valid laws. Therefore, when a particular law is invalidated, taxpayers who in good faith have relied upon the law and paid a required tax, should be entitled to an automatic refund. This view, however, is not the law of Florida and, since we are bound to follow the dictates of our Supreme Court, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973), we have attempted to adhere scrupulously to the criteria set forth in North Miami v. Seaway Corp., supra.

      . The court’s express holding was that “[w]here the levy of an illegal tax may become a cloud upon title to real estate, payment of the tax to avoid the cloud or to avoid the imposition of substantial burdens upon property rights of the owner is not a voluntary payment.” 137 So. at 4.

      . Although appellee has not suggested that the Supreme Court’s ruling in Contractors & Builders Association v. City of Dunedin, 329 So.2d 314 (Fla.1976), should preclude recovery in this case, it is appropriate to note the critical distinction between the two cases. Dunedin involved a municipal ordinance which established and authorized the collection of water and sewer connection charges. On appeal, the Supreme Court held that the ordinance was defective because it failed to include necessary restrictions on the use of the collected monies. Nonetheless, the city was allowed to retain the monies because the defect could be cured by subsequent legislation. The ordinance in the case at bar, however is not merely defective, it is absolutely void. Consequently, it cannot be cured by remedial legislation. See 13 McQuil-lin, Municipal Corporations § 37.93 (3d ed. 1971).


text:
    Arthur A. GRIESSER and Ted F. Zuech, Appellants, v. INDIAN RIVER COUNTY SHERIFF’S DEPARTMENT, and Sheriff R.T. “Tim” Dobeck, Appellees.
    No. 82-191.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 14, 1982.
    Richard J. Saliba and Wayne R. McDo-nough, Vero Beach, for appellants.
    Margaret Mann Blanton of Samuel A. Block, P.A., Vero Beach, for appellees.
   PER CURIAM.

Affirmed on the authority of Szell v. Lamar, 414 So.2d 276 (Fla. 5th DCA 1982) and Blackburn v. Brorein, 70 So.2d 293 (Fla.1954)

LETTS, C.J., and DOWNEY and WALDEN, JJ., concur.


text:
    STEWART TITLE GUARANTY COMPANY, Appellant, v. John A. DRAGSTREM and Janet K. Dragstrem, Appellees.
    No. AI-132.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 8, 1982.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn, Boyer & Nichols, and Crider & Hel-wig, Jacksonville, for appellant.
    Gary A. Benson of Weil, Johnson & Benson, Jacksonville, for appellees.
   PER CURIAM.

The cause below involved an oral commitment to issue a title insurance policy. The jury found in favor of appellees. We have considered the eight issues raised by appellant on appeal and find each of them to be without merit. Accordingly, the judgment below is affirmed.

McCORD, BOOTH and WENTWORTH, JJ., concur.


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

text:
    Brian Keith SANFORD, Appellant, v. STATE of Florida, Appellee.
    No. AJ-162.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 7, 1982.
    Michael Allen, Public Defender, Carl S. McGinness, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Williams v. State, 110 So.2d 654 (Fla. 1959).

SHIVERS and THOMPSON, JJ., concur.

ROBERT P. SMITH, Jr., C.J, dissents with opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting.

I would reverse the judgment of conviction and require a new trial. The “other crimes” evidence admitted at appellant’s trial for burglary and robbery at the Ramada Inn on August 19, 1981, consisted of proof that appellant committed a similar robbery six days earlier at the same motel. On each occasion, appellant and a confederate knocked at the door of one of the motel rooms and robbed the woman occupant when she admitted them. On each occasion, but by different means, the perpetrators assured themselves that the male occupant was not in the room. In my opinion, this “other crimes” evidence proved nothing of consequence about the identity of the perpetrator of the August 19 crimes. Neither episode bore distinguishing characteristics; on the prior occasion, the intruders were masked, but on the latter occasion they were not. The two offenses were similar only in the ways many crimes of this character, committed by many different persons, are similar. The evidence, therefore, was not probative. Instead, it was highly prejudicial, and in my opinion it should have been excluded. Drake v. State, 400 So.2d 1217 (Fla.1981). See also Cotita v. State, 381 So.2d 1146, 1151 (Fla. 1st DCA 1980) (dissenting opinion), pet. for rev. den., 392 So.2d 1373 (Fla.1981).


text:
    GOLD KIST, INC., Appellant, v. Larry ADCOCK, Appellee.
    No. AK-7.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Rehearing Denied Dec. 22, 1982.
    Charles Vocelle, Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellant.
    Robert 0. Stripling, Jr., Gainesville, for appellee.
   PER CURIAM.

The employer/self-insured’s argument that the doctrine of res judicata bars the deputy commissioner’s award of temporary total disability benefits is unavailing. The deputy commissioner’s previous order only adjudicated claimant’s right to temporary disability benefits through June 5, 1981. This litigation involves a claim for compensation benefits from June 7, 1981. However, because the parties agree that the order should have awarded benefits from June 7, 1981, rather than April 8, 1981, we modify the deputy’s order accordingly. In all other respects, the deputy’s order is AFFIRMED.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


text:
    Ronald OSBRACH, Appellant, v. Jill OSBRACH, Appellee.
    No. 82-762.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Dec. 16, 1982.
    Elizabeth S. Baker, Miami, for appellant.
    Melvin A. Rubin, Miami, for appellee.
    Before HUBBART, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

There is evidence in the record to support the trial court’s finding that the appellant had the ability to pay the child support payments previously ordered and that he willfully failed and refused to do so. Accordingly, the trial court’s order of contempt and commitment and order denying the appellant’s petition for modification and denying in part relief from judgment are

Affirmed.


text:
    BARNETT BANK OF ORLANDO/WINTER PARK, N.A., Appellant, v. FLORIDA FREE ENTERPRISES, INC., Appellee.
    No. 82-292.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1982.
    J.P. Carolan III and Bradford Swing of Winderweedle, Haines, Ward & Woodman, Winter Park, and Arky, Freed, Stearns, Watson & Greer, P.A., Miami, for appellant.
    James G. Decker of Stewart & Decker, P.A., Fort Myers, for appellee.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Dalton & Cottrell, Fort Myers, amicus curiae for River Towers Condominium Ass’n, Inc.
   PER CURIAM.

We find no merit in appellant’s contention that the trial court erred in dismissing with prejudice its fourth amended complaint. Appellant, Barnett Bank of Orlando/Winter Park, N.A., in its complaint only sought foreclosure of a mortgage given by the appellee, Florida Free Enterprises, Inc., and did not allege a cause of action on the promissory note executed by the appellee on July 5, 1973. We accordingly affirm the trial court’s dismissal of the foreclosure action without prejudice to appellant’s filing an action on the promissory note.

SCHEB, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.