author: PER CURIAM.

text:
    In re THE FLORIDA BAR. In re PETITION TO AMEND the INTEGRATION RULE, ARTICLE II (LAW FACULTY AFFILIATES).
    No. 62292.
    Supreme Court of Florida.
    Dec. 16, 1982.
    James C. Rinaman, Jr., President, Jacksonville, William O.E. Henry, President-elect, Lakeland, and John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar, and 0. Edgar Williams, Chairman, Integration Rule and Bylaws Committee, Fort Lauderdale, for petitioner.
   PER CURIAM.

This proceeding is before the Court on the petition of The Florida Bar for amendment of the Integration Rule and Bylaws. We have reviewed the proposed amendments and the Bar’s petition in support of them. We grant the petition by adopting the following additions to the Integration Rule and Bylaws.

Article II of the Integration Rule is amended by the addition of the following new paragraph:

8. Full-time faculty members in the employment of law schools in Florida approved by the American Bar Association, who are admitted to practice and are in good standing before a court of any state, may become “law faculty affiliates” of The Florida Bar. Law faculty affiliates may participate in such activities of The Florida Bar as may be specified in the Bylaws, but shall not be entitled to engage in the practice of law, appear as attorneys before the courts of the state, or hold themselves out as possessing such entitlements.

Article II of the Bylaws under the Integration Rule is amended by the addition of the following new section:

§ 6. Law Faculty Affiliates. Every law faculty affiliate of The Florida Bar under the provisions of article II, section 8 of the Integration Rule shall pay fees as set by the Board of Governors, shall be entitled to receive The Florida Bar Journal and The Florida Bar News, and shall have such other privileges and benefits of members of The Florida Bar as the Board of Governors shall authorize. The executive director shall issue to law faculty affiliates such special identification card as may be authorized by the Board of Governors.

In support of the amendment the Bar’s petition states that the new category of “affiliates” allowing law faculty limited participation in Bar activities “would allow the Bar to benefit from a valuable source of talent and energy.”

This amendment, creating the above new provisions of the Integration Rule and Bylaws, will take effect on January 1, 1983. It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM. OVERTON, Justice,

license: Public Domain

text:
    Don M. McCRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 60667.
    Supreme Court of Florida.
    Jan. 6, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.

      Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

By petition for review we have before us a decision of the Third District Court of Appeal, McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), which allegedly conflicts with the decisions of this Court in Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The question presented in this case is the same as that presented in Pitts v. State, 425 So.2d 542 (Fla.1983). Based on Pitts, we approve the decision of the district court in this case.

It is so ordered.

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

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting:

I dissent for the reasons expressed in my dissent in Pitts v. State, 425 So.2d 542 (Fla.1983), as well as the dissent by Judge Hendry in McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981). I find that Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981), control this situation.


author: EHRLICH, Justice. ADKINS, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Randolph Stewart WILSON, Respondent.
    No. 61995.
    Supreme Court of Florida.
    Jan. 6, 1983.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Mary Ellen Bateman, Bar Counsel, Tallahassee, for complainant.
    James L. Harrison, Jacksonville, for respondent.
   EHRLICH, Justice.

This attorney discipline proceeding is before the Court on complaint of The Florida Bar, report of the referee, and petition for review by the Bar. We have jurisdiction pursuant to article V, section 15, Florida Constitution.

The Bar’s complaint alleged that respondent had engaged in illegal conduct involving moral turpitude in that he pressured a client who was incarcerated in the Clay County Jail to make arrangements to have delivered to him one and one-half pounds of cocaine. Subsequently, the cocaine was delivered to respondent who was thereupon arrested by undercover agents. Respondent was convicted by jury trial at Green Cove Springs, Clay County of the offenses of Solicitation to Traffic in Cocaine and Attempted Trafficking in Cocaine and sentenced to serve five years in the Clay County Jail with the special condition that petitioner could be placed on probation for four years and six months after serving six months in the Clay County Jail.

In the proceedings before the referee, the Bar admitted into evidence the judgments and sentences of the two convictions. Respondent testified as to his innocence of the two charges. The referee found that the certified judgments and sentences were proper proof of guilt of the two offenses of which respondent was convicted and therefore respondent was guilty of violating Florida Bar Code of Professional Responsibility Disciplinary Rule 1-102(A)(3) in that he engaged in illegal conduct involving moral turpitude. The referee recommended that respondent be suspended from the practice of law for a period of three years, and thereafter until he shall demonstrate that he is entitled to be reinstated by making the showing required by article XI, Rule 11.11 of the Integration Rule of The Florida Bar. The Florida Bar petitioned for review, seeking review of only that portion of the referee’s report recommending discipline. The Bar requested that this Court disbar respondent.

Respondent argues that the referee’s recommendation is proper in light of the criteria enunciated by this Court in State ex rel. The Florida Bar v. Murrell, 74 So.2d 221 (Fla.1954). There, we reasoned that any discipline imposed on an attorney must be: (1) fair to the attorney; (2) just to the public; (3) designed to correct any anti-social tendencies on the part of the convicted attorney; (4) and severe enough to deter similar conduct by other attorneys. 74 So.2d at 222. The three-year suspension recommended as discipline by the referee does not meet these criteria.

First, disbarment of an attorney after he has been adjudged guilty of two felonies cannot be interpreted as unfair to him. “By the very nature of his professional commitment the lawyer is least expected to be a violator of the criminal laws.” The Florida Bar v. Levenson, 211 So.2d 173, 174 (Fla.1968). If substantial and convincing evidence of mitigating circumstances had been presented, the complexion of the ease may very well have been different. But no evidence in mitigation has been proffered by respondent. His claims of innocence and lack of knowledge are belied by the jury verdict and the specific finding by the trial judge in an order denying a motion to vacate sentence that respondent had the requisite knowledge that the package contained cocaine. The only mitigating circumstance that could be relevant is the fact that respondent had no prior disciplinary record. However, since respondent had only been a member of the Bar for approximately six months prior to his arrest, this evidence is of little value.

Second, mere suspension would not be just to the public. In the case of a conviction of two felonies, the ultimate penalty, disbarment, should be imposed to insure that an attorney convicted of engaging in illegal conduct involving moral turpitude, who has violated his oath and flagrantly breached the confidence reposed in him as an officer of the court, can no longer enjoy the privilege of being a member of the bar. A suspension, with continued membership in the bar, albeit without the privilege of practicing, is susceptible of being viewed by the public as a slap on the wrist when the gravity of the offense calls out for a more severe discipline.

Third, suspension and disbarment may very well have a similar effect toward the correction of a convicted attorney’s anti-social behavior, but disbarment insures that respondent could only be admitted again upon full compliance with the rules and regulations governing admission to the Bar. Fla. Bar Integr. Rule, art. XI, Rule 11.10(5). In the case of a felony conviction, this additional requirement is significant, as it would better encourage reformation and rehabilitation.

Finally, if the discipline does not measure up to the gravity of the offense, the whole disciplinary process becomes a sham to the attorneys who are regulated by it. Disbarment as a result of the conviction of felonies is a message loud and clear to the members of The Florida Bar that this Court will not countenance or permit the conduct for which respondent was convicted. In our view, a suspension does not have the deterrent effect of disbarment.

Respondent was engaged in illegal drug trafficking, a troublesome and serious crime. We have not hesitated in the past to disbar an attorney for similar acts even though a referee recommended less severe discipline. See The Florida, Bar v. Beasley, 351 So.2d 959 (Fla.1977). Illegal behavior involving moral turpitude “demonstrate[s] an intentional and flagrant disregard for the very laws Respondent is bound to uphold, the well-being of the members of society, and the ethical standards applicable to members of the Bar of this State.” In re Gorman, 269 Ind. 236, 240, 379 N.E.2d 970, 972 (1978). See also In re Roberson, 429 A.2d 530 (D.C.Ct.App.1981); In re Thomas, 420 N.E.2d 1237 (Ind.1981); State ex rel. Oklahoma Bar Association v. Denton, 598 P.2d 663 (Okla.1979); Muniz v. State, 575 S.W.2d 408 (Tex.Civ.App.1978). “Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws ... argues recreancy to his position and office.” Ex Parte Wall, 107 U.S. 265, 274, 2 S.Ct. 569, 576, 27 L.Ed. 552 (1883). “The public has a right to expect the most from him who lays the greatest claim to its confidence.” Levenson, 211 So.2d at 174.

Therefore, Randolph Stewart Wilson is hereby disbarred, effective immediately. Costs of these proceedings in the amount of $616.57 are taxed against respondent.

It is so ordered.

ALDERMAN, C.J., and BOYD and OVERTON, JJ., concur.

ADKINS, Justice,

concurs in part and dissents in part:

I would adopt the recommendations of the Referee.


text:
    Timothy Charles PALMES, Appellant, v. STATE of Florida, Appellee.
    No. 62770.
    Supreme Court of Florida.
    Jan. 6, 1983.

      Thomas B. McCoun of Louderback, McCoun & Helinger, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a circuit court order denying a motion to vacate judgment and sentence filed under Florida Rule of Criminal Procedure 3.850. Appellant is a prisoner under sentence of death imposed upon a judgment of conviction of murder in the first degree. We have jurisdiction.

Appellant previously appealed his conviction and sentence of death. This Court affirmed both. Palmes v. State, 397 So.2d 648 (Fla.1981). The United States Supreme Court denied further review. Palmes v. Florida, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

In this appeal from the denial of the motion to vacate appellant raises the following issues: (1) whether his incriminating statements should have been excluded from evidence on the ground that they were the product of án illegal arrest; (2) whether prospective jurors were excused for cause at trial because of scruples or conscientious concerns about the imposition of the death penalty; (3) whether the prosecutor at the trial made improper comments pertaining to the defendant’s exercise of his right to remain silent; (4) whether appellant was denied a fair trial by the conduct of certain jurors who allegedly formed and expressed opinions concerning guilt before hearing all the evidence; (5) whether the death penalty law is arbitrary as applied in that appellant’s death sentence is a misapplication of that law; and (6) whether appellant was deprived of the effective assistance of legal counsel prior to and during his trial.

Issues (1), (2), (3), and (4) above are not properly raised by a motion to vacate under Rule 3.850. They are all issues which either could have been, should have been, or were raised and decided on appeal. See, e.g., Meeks v. State, 382 So.2d 673 (Fla.1980); Adams v. State, 380 So.2d 423 (Fla.1980); Henry v. State, 377 So.2d 692 (Fla.1979); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

As was set out above, appellant argues that the sentencing statute has been arbitrarily applied in his case and that his sentence is a misapplication of that statute. We conclude as a matter of law that this contention is without merit. The statute, as we have already held by the affirmance of the sentence, was correctly followed. Measured by the applicable standards, the sentence imposed was the appropriate sentence under the circumstances.

Appellant’s contention that he received ineffective assistance of counsel at his trial may be presented by a motion to vacate under Rule 3.850. Smith v. State, 400 So.2d 956, 959 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980). Appellant claims first that the public defender, who was appointed to represent him at his first appearance hearing, improperly failed to render legal assistance to appellant during his interrogations. Appellant contends that if the public defender had communicated with him and offered legal counsel at that time he would not have made the incriminating statements that were later used in evidence. In affirming the judgment and sentence, we found that the public defender was formally appointed at the advisory hearing but that thereafter appellant waived his right of counsel. This finding was made in connection with the conclusion that there was no impropriety in police officers’ interviewing appellant after his indictment without notifying the public defender. We noted that appellant himself requested the interview at which he provided a detailed statement. Since we have already concluded that appellant’s interrogation did not violate his fifth or sixth amendment rights, we decline to now hold that appellant had a constitutional right to have the formally appointed public defender initiate communication with him when he at no time during his interrogation invoked his right to consult with counsel.

Appellant’s next assertion of ineffectiveness of counsel refers to the performance of the lawyer who was appointed appellant’s counsel at his arraignment. Appellant argues that his counsel was ineffective in failing to raise, as a ground for suppression of his incriminating statements, the contention that appellant’s arrest in California was illegal. Defense counsel did move to suppress the statements, but not on the ground that the arrest was illegal. At the hearing below, the lawyer who defended appellant at trial testified that he believed the arrest to have been legal. An attorney should raise any honestly debatable issue that may aid his client’s position, but he is not obligated to raise every conceivable issue, and certainly not when he regards the argument as futile because of its lack of merit. Furthermore, even if the arrest in California had been illegal, this would not have automatically compelled the conclusion that appellant’s statements made several days later in the Duval County jail, after indictment, were excludable from evidence. See Taylor v. Alabama, - U.S. -, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The statements, as we concluded in deciding the initial appeal, were freely and voluntarily made after Miranda warnings. We therefore conclude that the omission of a challenge to the statements as the fruit of an illegal arrest was not a substantial deficiency, measurably below the standard of performance expected of competent attorneys. See Knight v. State, 394 So.2d 997 (Fla.1981).

Next, appellant argues that defense counsel provided ineffective assistance when he did not object to the dismissal for cause of several prospective jurors who expressed views in opposition to capital punishment. The record of the trial and the testimony of the defense lawyer below show that defense counsel did not simply overlook or ignore the issues of juror qualifications as affected by attitudes toward capital punishment, as appellant now charges. Rather, the excusáis were not objected to because they were not legally objectionable. See Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981). Therefore there was no substantial deficiency based on this omission. Knight v. State, 394 So.2d 997 (Fla.1981).

Finally, appellant argues that defense counsel was deficient for failing to object to comments of the prosecutor which appellant says related to appellant's exercise of his right to remain silent. At the hearing below defense counsel testified that he had looked at the transcript showing the comments in question and that he concluded that the reason he did not object was because the comments were neither improper nor prejudicial to his client. We note that at trial appellant testified in his own defense. The record of the trial shows that the comments in question were not objectionable and therefore the failure to object cannot be deemed a substantial deficiency.

Therefore, the order of the circuit court denying the motion to vacate judgment and sentence is affirmed.

It is so ordered.

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


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

text:
    Sidney PRIDGEON, Appellant, v. STATE of Florida, Appellee.
    No. VV-451.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Martin S. Page, of Darby, Peele, Page & Bowdoin, Lake City, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Pridgeon seeks review of his conviction for second degree murder raising three points on appeal, two of which warrant our discussion. First, appellant asserts the trial court erred in instructing the jury on the law of provocation. Second, appellant asserts the trial court erred in failing to rein-struct the jury on the defense instructions after reinstructing the jury on the elements of criminal homicide. We agree with both contentions and reverse and remand for a new trial.

At approximately 2:30 A.M. on August 21,1979, Pope and his daughter-in-law, Barbara, were awakened by barking dogs. After Pope decided to investigate, he and Barbara heard two shots fired from behind Pope’s trailer. Pope had been asked to watch the land located immediately behind his home because some logging equipment parked there had previously been vandalized. After entering Pope’s truck, the Popes saw appellant’s vehicle on a logging road moving toward a paved road. The Popes pursued the vehicle and parked their truck between appellant’s vehicle and the paved road. Shortly before the vehicle began to pass, Pope got out of his truck with a flashlight and shotgun. As the vehicle passed, Pope shined the flashlight in appellant’s face and told him to stop. When the vehicle did not halt, Pope fired a shot striking the rear of the vehicle which then rolled to a stop. Subsequently, appellant got out of his stopped vehicle and fired a rifle shot mortally wounding Pope. On August 30, 1979, appellant was indicted for first degree murder. The cause then proceeded to trial. Following the presentation of evidence, the trial court delivered the jury instructions. Over defense objection, the court included an instruction on the law of provocation. After retiring for deliberation, the jury requested additional instructions on the degrees of homicide. When asked whether either party wanted additional instructions, appellant’s counsel said, “Always want the defense instructions given as well.” The court, however, failed to grant the request. Subsequently, the jury returned a verdict convicting appellant of second degree murder.

The trial court must instruct the jury on all facts claimed to be proved provided the instructions aré supported by competent evidence. Polk v. State, 179 So.2d 236 (Fla. 2d DCA 1965). An instruction on the law of provocation is appropriate only where there is evidence the killing resulted from a sudden passion sufficient to render the killer unconscious of his act. Horn v. State, 116 So.2d 654 (Fla. 2d DCA 1960); Olds v. State, 44 Fla. 452, 33 So. 296 (1902). In this case, we find no evidence which could support the trial court’s instruction concerning provocation.

Further, where a jury is reinstructed on the degrees of homicide, the defendant is entitled to have the court fully instruct the jury on the applicable defenses. Hedges v. State, 172 So.2d 824 (Fla.1965); Castor v. State, 365 So.2d 701 (Fla.1978). The trial court’s failure to do so renders the verdict fatal. Accordingly, the conviction and sentence are reversed and the trial court is instructed to grant appellant a new trial.

McCORD and MILLS, JJ., concur.

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

ROBERT P. SMITH, Jr., Chief Judge,

dissenting.

I do not think the court’s giving of the entire standard charge on justifiable homicide, including the qualification that one who “provokes” the use of force against him cannot justifiably kill in self-defense, was reversible error. The standard charge on justifiable homicide then in common and approved use was wordy and complex, to be sure, but on the whole it was a statement of a defense theory, one central to this trial; and including in that charge a single qualification, that a self-defense killing is not justifiable homicide when the victim’s force was “provoked” by the killer, unless certain other circumstances were present also, does not in my opinion vitiate this conviction. I do not think the cases cited in the majority opinion require this parsing of the standard charge. If defense counsel had requested and the court had refused an elaboration of what is meant by the general phrase, “when the accused initially provoked the use of force against him,” that would be another case.

Nor do I think reversible error has been shown in the court’s repeated instructions to the jury. The jury’s request for additional instructions concerned the degrees of murder, not the degrees of homicide, and without objection the trial court’s response was directed to that subject. Moreover, counsel’s observation before reinstruction, “Always want the defense instructions given as well,” was not an adequate request for particular instructions on noncriminal homicides. Castor v. State, 365 So.2d 701 (Fla.1978). After reinstruction defense counsel had or expressed no further request or objection.

I would affirm.


text:
    PARADISE FRUIT COMPANY and Mission Insurance Company, Appellants, v. Mary Lucille FLOYD, Appellee.
    No. AF-493.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.

      James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellants.
    John A. Williamson of Barrs, Williamson & Levens, Tampa, for appellee.
   PER CURIAM.

The primary issue in this workers’ compensation appeal is whether the Guides to the Evaluation of Permanent Impairment (AMA Guides) is a mandatory schedule upon which the finding of permanent impairment under Section 440.15(3)(a)3, Florida Statutes (1979), must be based in this case. We find it is.

The use of the AMA Guides in determining the existence or percentage of permanent impairment is mandatory in most cases with some exceptions such as when the permanent impairment is obviously visible and demonstrable to the deputy such as the loss of an arm or when the particular injury was not covered in the guides. See Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982). In this case the treating physician testified that in his opinion. the claimant sustained a permanent impairment, but he admitted on cross-examination that the claimant did not have any limitation of range of motion and that under the AMA Guides an individual must have a limitation of motion in order to have a permanent impairment. Therefore, the claimant did not have a permanent impairment rating under the AMA Guides. Since the AMA Guides cover this particular injury and specify the criteria for determining whether or not it results in any permanent impairment, the AMA Guides must be used and the criteria specified therein must be met in order to find that the claimant sustained a permanent impairment in this case. Accordingly, we must reverse the determination of entitlement to wage loss benefits which was based on the deputy’s finding of permanent anatomic impairment. See Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981).

We must also reverse the deputy commissioner’s award of temporary total disability benefits because the record clearly shows that the claimant did not conduct any work search whatsoever. The testimony by the treating physician that the claimant could not return to work of the type she had been doing before the injury did not excuse a work search. In fact, he stated she was capable of gainful employment. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). There is no evidence to the contrary other than the claimant’s general opinion that she was unable to work.

Furthermore, it appears that the award of temporary total disability benefits may have been made to penalize the employer/carrier for failure to voluntarily provide rehabilitation services. Section 440.49, Florida Statutes (1979), requires that an application for such services be made to the Division of Workers’ Compensation for an evaluation before an award of such services can be sought from the deputy. Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982).

We do, however, find competent substantial evidence in the record to support the deputy’s finding that the claimant’s hospitalization for a rash was emergency in nature.

Accordingly, the order of the deputy commissioner is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

JOANOS, THOMPSON and WIGGIN-TON, JJ., concur.


text:
    CITY OF MIAMI, Appellant, v. Samuel SUMMERS, Appellee.
    No. AI-58.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Rehearing Denied Feb. 8, 1983.
    George F. Knox, Jr., City Atty., Joseph Hackney, Jr., Asst. City Atty., City of Miami, for appellant.
    Jay M. Levy of Silver, Levy & Hershoff, and Ser, DeCardenas, Levin, Busch & Allen, P.A., Miami, for appellee.
   PER CURIAM.

In this worker’s compensation case the employer/carrier challenge the deputy commissioner’s findings, arguing that they are not based on competent substantial evidence. We agree in part and reverse in part.

The deputy commissioner’s finding that claimant suffered a compensable industrial accident on June 27, 1980, is supported by competent substantial evidence, but his finding that claimant was entitled to temporary partial disability payments up until and through the date of the final hearing, October 15, 1981, is not. The medical reports introduced and the claimant’s testimony show that claimant was released to return to work, able to return to work, and did return to work in August of 1980. The fact that his employment was subsequently terminated for reasons unrelated to his industrial injuries is immaterial, as is the fact that he was unable to find employment following his discharge. There was no medical evidence that the claimant was partially disabled after August of 1980. While the claimant testified that he continued to have pain as a result of his injury, he did not testify that this pain prevented him from working. The award of temporary partial disability benefits for the period after the claimant returned to work is reversed.

In all other respects the deputy commissioner’s order is affirmed. Affirmed in part and reversed in part.

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

      . The claimant testified that following his discharge he sought “light work.” It is clear, however, that for a number of years prior to his industrial accident, for reasons unrelated to the accident, he had been performing “light duty” for the employer. There is no indication in the record that the restrictions on his job search were caused by the accident.

      . In fact, no medical evidence was introduced relating to the period of time between August 14, 1980, and the date of the final hearing, October 15, 1981.

      .Cf. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982), 7 FLW 1644 (opinion filed August 2, 1982), which allowed recovery (under Section 440.15(4), temporary partial disability) for temporary wage loss suffered by an employee after termination of temporary total disability, upon being medically discharged as able to work, during the period in which she was still recovering from her injury and conscientiously but unsuccessfully seeking employment.


text:
    Joseph D. FARISH, Jr., and Joseph D. Farish, Jr., as Administrator of the Estate of Joseph D. Farish, deceased, d/b/a Farish & Farish, a partnership, Appellants/Cross Appellees, v. BANKERS MULTIPLE LINE INSURANCE COMPANY and First Marine Bank & Trust Company of the Palm Beaches, as Ancillary Administrator of the Estate of John D. MacArthur, deceased, Appellees/Cross Appellants.
    Nos. 79-2431, 79-2432.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.
    Rehearing Denied Feb. 1, 1983.

      Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellants/cross appellees.
    Michael P. Mullen of Burke, Griffin, Chomicz & Wienke of Chicago, Ill., and Larry Klein, West Palm Beach, for ap-pellees/cross appellants.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for Rosemary Barkett, Ken Slink-man, and Hubert R. Lindsey, amicus curiae in support of appellant.
   PER CURIAM.

Appellants, plaintiffs below, seek reversal of an order which granted appellee Bankers Multiple Line Insurance Company’s (Bankers) motion for new trial and claim further error in their not obtaining a new trial on the claim against the Estate of John D. MacArthur, deceased. Appellees have cross appealed and contend that the trial court erred in denying Bankers’ motion for judgment in accordance with its motion for directed verdict. We have jurisdiction. Fla.R.App.P. 9.030(b)(1); 9.130(a)(4); 9.110(h).

This appeal involves an action for tortious interference with a lawyer’s representation contract in which the jury found against Bankers and awarded appellants Joseph D. Farish, Jr., et al. d/b/a Farish & Farish, a partnership, $50,000 compensatory damages and $2,000,000 punitive damages. The jury also found in favor of the estate of MacArthur and against appellants.

John D. MacArthur, now deceased, was chairman of the board and president of Bankers, a subsidiary of Bankers Life and Casualty Insurance Company (Bankers Life). Bankers insured a vehicle involved in an accident which caused Donald Eugene Smith’s death. MacArthur also owned and lived at the Colonnades Beach Hotel where Jill Smith (Jill) had worked as a waitress for three months prior to her husband’s death. Although the parties disagree as to the sequence of events and as to the interpretation to be placed on the actions of MacArthur and others acting at his direction, the record demonstrates sufficient evidence to support the jury’s verdict in favor of appellants and against Bankers. Neither party has challenged the sufficiency of the evidence.

On March 31,1973, the day following the wrongful death of her husband, Jill executed contingent fee contracts with Farish & Farish, a partnership, for the claims arising out of her husband’s death. The events which followed resulted in this action for tortious interference with contract.

After her husband’s funeral, Jill remained in Illinois and lived with her parents. MacArthur contacted Paul Doolen, Vice Chairman of Bankers Life, and instructed him to see Jill. Doolen saw Jill about three weeks after the accident and offered her a job with Bankers Life and to place her on a group health insurance policy with maternity benefits. Jill was pregnant and she accepted the insurance coverage but rejected the job offer. Doolen testified that group insurance policies require that the insured be a present employee of Bankers Life, which Jill was not, but he said, “MacArthur said what he wanted done and we did it.” Jill told Farish about Doolen’s contact. Farish admonished Jill to have no further contact with Doolen or MacArthur and wrote MacArthur’s attorney and protested MacArthur’s conduct. On June 18th, MacArthur wrote Jill a letter in which he suggested that she had misunderstood his remarks and Doolen’s visit, admitted that he had discussed the legality of the representation contract, and suggested that a settlement could be reached before the baby was born. Jill contacted Farish in July, 1973 and told him she wanted to settle the ease and that she did not want suit filed. However, suit had been filed on June 22, 1973. After this telephone conversation, Jill accepted MacArthur’s offer to provide her with an airline ticket to West Palm Beach. She came to West Palm Beach in August, 1979, and discharged Farish. MacArthur introduced Jill to Evelyn Flack, an attorney with no trial experience in personal injury or wrongful death cases. The evidence demonstrates that Farish’s involvement in the case upset MacArthur, that MacArthur unbeknown to Jill encouraged the owner of the truck involved in the accident to divest the corporation of its assets, that he admitted that he had had Doolen contact Jill to attempt to convince her to fire Farish so that he could settle the case with Jill himself and that MacArthur’s influence on Jill caused her to be uncooperative and antagonistic to Farish in the wrongful death action.

It should be noted that at Flack’s suggestion, Jill resigned as personal representative of her husband’s estate and Jill’s successor rehired Farish to prosecute the action on behalf of the estate. Flack was appointed to the bench in North Florida and Jill hired Lake Lytal to represent her in the wrongful death action. Farish and Lytal tried the case and the jury returned a verdict of $118,000. Hubert Lindsey testified that the case had a jury verdict range of from $500,-000 to $1,000,000, Farish testified that he had evaluated the case at $1,350,000. Appellants asserted that MacArthur’s actions caused them to suffer a reduced fee in the wrongful death action.

Joseph D. Farish, Jr., d/b/a Farish and Farish, a partnership, filed suit against the appellees for tortious interference with contract. The trial court dismissed the original complaint for failure to join an indispensable party. Farish amended the complaint and added the Estate of Joseph D. Farish, deceased, as party plaintiff. On July 5, 1979, during the course of trial, appellees moved again to dismiss the complaint for failure to join indispensable parties and asserted that in 1973, Rosemary Barkett, Lindsey and Ken Slinkman were partners in the appellant law firm. The trial court reserved ruling on the motion but later cited the failure to join indispensable parties as one of the reasons for granting a new trial as to Bankers. In addition, the trial court determined that Lindsey’s testimony should have been excluded because he was an interested party, and that its instruction on punitive damages failed to apprise the jury that it had discretion in awarding punitive damages. The trial court denied appellants’ motion for a new trial on their claim against the Estate of MacArthur.

The parties have raised numerous points on appeal. Appellants challenge the trial court’s order granting a new trial to Bankers and further contend that the trial court erred in holding: that Barkett, Lindsey and Slinkman were indispensable parties; that Lindsey’s testimony should have been excluded because he was an interested party; and that its instruction on punitive damages failed to apprise the jury that it had discretion in awarding punitive damages. Appellants also contend that the trial court erred in failing to grant a new trial as to MacArthur’s estate. Appellees in their cross appeal contend: that the jury verdict in favor of the Estate of MacArthur entitles Bankers to have the judgment against it set aside; and, that Bankers cannot be held liable for punitive damages. Both parties raised additional issues which we need not discuss.

We will first consider whether or not the trial court erred in granting a new trial to Bankers because of appellants’ failure to join Barkett, Lindsey and Slinkman as party plaintiffs.

A dispute exists between Farish and Barkett, Lindsey and Slinkman as to the extent of their interest in Farish & Farish and more particularly as to their interest in the outcome of the case sub judice. The amended complaint named Joseph D. Farish, Jr., and Joseph D. Farish, Jr., as administrator of the Estate of Joseph D. Farish, deceased d/b/a Farish & Farish, a partnership, as party plaintiffs. The trial judge stated in his ruling that Barkett, Lindsey, and Slinkman were indispensible parties, and that he relied upon a stipulation which appellants claim that their counsel erroneously made but which counsel withdrew during an unreported meeting with appel-lees’ counsel. The stipulation stated that the law firm of Farish & Farish, a partnership, filed Federal partnership income tax returns for the years 1973 through 1978 which reflected that Lindsey and Barkett were partners in those years.

Appellees cite Aronovitz v. Stein Properties, 322 So.2d 74 (Fla. 3d DCA 1975), to support the trial court’s order directing a new trial as to Bankers:

Since the common law does not recognize a partnership as a legal entity distinct from and independent of the persons composing it, a partnership cannot, as such without statutory authority, sue in its firm name. All actions by a partnership must be brought in the names of its individual members.... Therefore, the trial court should have granted appellant’s motion to dismiss for failure to join an indispensible party. (Emphasis added.)

Florida Rule of Civil Procedure. 1.210(a) provides in part:

Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause.

The joinder of indispensable parties protects the defendant from the inconvenience and expense of defending multiple separate suits arising out of the same single claim and eliminates the defendant’s exposure to multiple separate judgments arising out of the same claim. Lewis v. Hall, 271 S.W.2d 447 (Tex.Civ.App.1954); Yorkshire Insurance v. United States, 171 F.2d 374 (3d Cir.1948).

This cause of action arose on August 9, 1973 when Jill discharged the law firm of Farish & Farish. Therefore, the statute of limitations began to run at that time and expired on August 9, 1977. Barkett, Lindsey and Slinkman could not have filed a separate law suit on July 5, 1979, when appellees made the motion for new trial. Their presence in the law suit was not necessary to a complete determination of the cause and therefore they were not indispensable parties as contemplated by Florida Rule of Civil Procedure 1.210(a). Further, Barkett, Lindsey, and Slinkman made no attempt to intervene in this case until four months after final judgment had been entered, when they filed a pleading styled “Notice of Intervention.” Six months after final judgment, and two months after plaintiff filed his notice of appeal, one Earl Maxwell also sought to “intervene.” We cannot say what other persons unknown to this court may subsequently appear, claiming a partnership interest in the firm of Farish & Farish and a share of the judgment sub judice. After August 9,1977, any such claims have clearly expired as against appellees, cannot prejudice appellees, and should not be used by appellees to delay the resolution of the claim which was properly before the court below.

We do not construe the holding in Aronovitz, supra, as requiring the joinder of persons who may have an interest in a partnership, when the action is brought in the name of those persons acknowledged as partners and where the passage of time has extinguished the claims against the defendants from those persons claiming an interest in the partnership. Since the law suit was brought in the individual names of the acknowledged partners in the law firm of Farish & Farish and the claims of the disputed partners against appellees had been extinguished by the passage of time, we conclude that the trial court erred in ruling that Barkett, Lindsey and Slinkman were indispensable parties to this cause of action.

Appellants next contend that the trial court erred when it concluded that it should have excluded Lindsey’s expert testimony because of his interest in the law firm of Farish & Farish. We agree. Lindsey’s interest, if any, may have affected the weight of his testimony, but his interest did not preclude its admissibility.

No person, in any court, or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto; ....

Section 90.05, Florida Statutes (1975). The courts regularly permit interested persons to testify as expert witnesses, e.g., a defendant doctor in a medical malpractice case, an engineer or architect in a construction defect case, a defendant lawyer in a legal malpractice case, etc.

We find no merit in Bankers’ contention that Lindsey’s joinder as a party plaintiff would have affected the weight given by the jury to his testimony. After plaintiff’s counsel qualified Lindsey as an expert and began to question him as to the value of the case, defendants objected on the grounds that Lindsey was a partner in Farish & Farish at the time “all this went on.” Plaintiff’s counsel argued that such interest, if any, goes to the weight of the testimony rather than its admissibility, and pointed out that defendants could on cross examination examine the basis for his opinion and any motive Lindsey might have with regard to pecuniary gain. The defendants conducted vigorous cross examination of Lindsey on precisely these matters. Further, in closing argument, defense counsel argued this to the jury:

They just broke up a partnership a few months ago. Lindsey, you will recall, said that they’ve got a pot of money from cases that they, Lindsey and Farish, are gonna split up at a later point in time. Lindsey, it appears was a partner of Mr. Farish at the time that this suit was filed
... Mr. Lindsey, I would submit, has an interest in the outcome of this case, because of that arrangement. Now, that reason, and that reason only is enough to just disregard his testimony.

The record amply demonstrates that appel-lees fully apprised the jury of Lindsey’s relationship to the firm and possible interest in the outcome of the case sub judice. Therefore, the trial court erred in granting a new trial based on the admission of Lindsey’s expert testimony.

Appellants also argue that the trial court erred when it decided that it should have given the Florida Standard Jury Instruction on punitive damages.

The trial court gave the following instructions:

The measure of compensatory damages in an action for tortious interference with contract is the difference between the value actually received by the Plaintiff under the contract and the value the Plaintiff would have received had there been no interference. If you find the plaintiff law firm has failed to prove to your satisfaction damages or loss proximately attributable to wrongful acts of interference on the part of John D. MacArthur or Bankers Multiple Line Insurance Company, then the Plaintiff law firm is precluded from any further recovery of damages in this action.
You are instructed that in Count II of the complaint there is a claim for exemplary or punitive damages, and by this is meant damages which are awarded, if at all, by way of punishment or example to the party, and as a deterrent to others. Exemplary or punitive damages can only be allowed only when it is alleged in the complaint and established at trial that the defendant acted with malice, moral turpitude, wantonness, wilfulness or reckless indifference to the rights of the plaintiff.
If you find that punitive damages should be assessed against either or both defendants, you may consider the financial resources of such defendant in fixing the amount of such damages. In considering the financial resources of any defendant for the purpose of imposing punitive damages, you may not consider reputed financial resources. Your consideration may extend only to the net worth of the defendant. You may assess punitive damages against one defendant and not the others, or against more than one defendant in different amounts.
Let me read that sentence over again. You may assess punitive damages against one defendant and not the other, or against more than one defendant in different amounts.
In determining the amount of punitive damages to be assessed, you should all, you should also consider that punitive damages are punishment of each wrongdoer, by exacting from his pocketbook a sum of money which, according to his financial ability will hurt, but not bankrupt.
An award of punitive damages need not bear any particular relation to the compensatory damages awarded. The greater the defendant’s wealth, the greater it must be, the punitive damages assessed in order to get his attention regardless of the amount of compensatory damages awarded to the plaintiff. (Emphasis added.)

The trial judge stated that his failure to give Florida Standard Jury Instruction 6.12 constituted error because the instruction as given fails to inform the jury of its discretion to assess punitive damages. The standard jury instruction provides:

If you find for plaintiff and find also that the defendant acted with malice, moral turpitude, wantonness, wilfulness or reckless indifference to the rights of others, you may, in your discretion, assess punitive damages against such defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the defendant, you may consider the financial resources of such defendant in fixing the amount of such damages. [You may assess punitive damages against one defendant and not the others or against more than one defendant in different amounts.]

We find no meaningful difference between the charges given and the standard jury instruction. The emphasized language of the two charges demonstrates that the court informed the jury of its discretion to award punitive damages. The charges given include the elements which form the basis for punitive damages, i.e., the defendants’ malice, moral turpitude, wantonness, wilfulness or reckless indifference to the rights of the plaintiff.

In a related point on cross appeal, Bankers contends that the trial court erred when it charged that “... the greater the defendant’s wealth, the greater it [sic] must be, the punitive damages assessed in order to get his attention regardless of the amount of compensatory damages awarded to the plaintiff.” Taken out of context it would appear that the charge mandates the jury to consider only the relative wealth of the defendant in assessing punitive damages. However, when considered in the light of the totality of the charge, we find no harmful error. Further, this portion of the instruction is a paraphrase of language set forth in Lassiter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977) wherein the Supreme Court considered whether punitive damages must bear any particular relationship to compensatory damages. The Court analyzed the history of conflicting District Court opinions and stated:

The error in embracing [a rule that the amount of punitive damages must bear a reasonable relation to the compensatory damage award] is made apparent in cir-eumstances where the conduct by a very affluent defendant is outrageous by the resultant injury or invasion of legal rights to the plaintiff is minimal, although the conduct has the propensity of causing great harm if continued. Subject to the other limitations mentioned in this opinion, the jury is the best judge of the amount necessary to be assessed in order to make an example of such a defendant and thereby deter him and others from such conduct in the future. The more pecunious the defendant the greater must be the punitive damages assessed in order to “get his attention” regardless of the amount of actual damages awarded the plaintiff. For these reasons we disavow the rule that punitive damages must bear some reasonable relationship to the actual damages awarded by the jury.

Id. at 626. The trial judge used the language in question in the same way as did the Supreme Court, to explain and to emphasize that punitive damages need not bear any relationship to the amount of compensatory damages.

Finally, we will consider together three interrelated points on appeal. Appellants contend that the verdict against Bankers entitles them to a new trial against MacArthur’s estate because it demonstrates that MacArthur interfered with their representation contract. Appellees contend that the verdict in favor of MacArthur’s estate exonerated MacArthur of tortious conduct, thereby entitling Bankers to directed verdict. Appellees contend in the alternative that even if this court permits the compensatory damage award to stand, the award of punitive damages must be reversed under Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). We conclude that by their tactical maneuvering, the parties provided for the result the jury reached.

Appellants’ amended complaint alleged that:

John D. MacArthur, acting in his own behalf individually and in the course and scope of his employment with Bankers Multiple Line Insurance Company and as owner and principle stock holder having dominant control of the defendant .. . set about a course of conduct ... to interfere with [appellants’] contract of employment with Jill Smith as aforesaid.

MacArthur was the president and chairman of the board of Bankers and the sole stockholder of Bankers Life which owned the stock of Bankers. The record contains an abundance of evidence from which the jury could find, and by its verdict did find, that Bankers acted through its officer, MacArthur. As Doolen testified, “MacArthur said what he wanted done and we did it.” The trial court’s instruction to the jury separated the claim against Bankers from the claim against the estate and provided a basis for the jury to find against one defendant and not the other.

In your deliberations you are to consider two distinct claims. The first claim is against Bankers Multiple Line Insurance Co. The second claim is against . . . the Estate of John D. MacArthur, deceased.

The court also instructed the jury that MacArthur could act in two separate capacities.

The court instructs you as a matter of law that any acts by John D. MacArthur in his capacity as a corporate officer of Bankers Multiple Line Insurance Company were the acts of Bankers Multiple Line Insurance Company. Any knowledge possessed by John D. MacArthur in any state of mind entertained by him while acting in his capacity as a corporate officer are likewise attributable to Bankers Multiple Line Insurance Company.
If you believe from the greater weight of the evidence that John D. MacArthur was acting solely in his individual capacity and not as an officer, agent or employee of Bankers Multiple Line Insurance Company, and all the necessary elements are proven by the greater weight of the evidence then liability can only be imposed upon his ancillary estate for such actions.

The court gave no corresponding instruction which would have provided for a verdict against both Bankers and the Estate. During the charge conference, appellees’ counsel tendered the following proposed instruction:

If you believe from a greater weight of the evidence that John D. MacArthur was acting in his individual capacity and all the other necessary elements are proven by the greater weight of the evidence, then liability can be imposed only upon his ancillary estate for such actions.

Appellant's counsel objected on the ground that the instruction does not take into account the fact that MacArthur might act simultaneously both in his individual capacity and in his representative capacity. The judge revised the instruction to read “that John D. MacArthur was acting solely in his individual capacity and not as an officer, agent or employee of Bankers Multiple Line Insurance Company.... ” All parties agreed to this instruction. This conversation is the only time that either party mentioned an instruction on the liability of both MacArthur and Bankers, based on the theory of respondeat superior. Neither party tendered an instruction on respondeat superior, and the judge gave no such instruction. As a result, the instructions gave the jury two options: to find against MacArthur individually, or to find against the corporation on the theory of direct liability. The parties set the stage for this precise result. When the clerk published the verdict, neither party challenged the jury’s finding because of any purported inconsistency in the result.

We conclude that the jury found that MacArthur acted only in his capacity as president and chairman of the Board of Bankers, that Bankers alone should be held directly liable, and that such a finding was permissible under instructions which the parties contemplated. This conclusion disposes of appellees’ contention that the punitive damage award should be set aside under Mercury Motors, supra, in which the Supreme Court reversed an award of punitive damages entered against the corporate defendant. Unlike the case sub judice, the jury therein had found the corporate defendant vicariously liable for the action of a truck driver employee on a respondeat superior theory. Mercury Motors did not consider the question of direct liability of a corporation which acts through an officer.

Accordingly, we affirm the trial court’s denial of the motion for new trial as to the Estate of John D. MacArthur, deceased, and reverse the trial court’s order granting a new trial as to Bankers Multiple Line Insurance Company and remand this case with instructions to reinstate the verdict in favor of the appellants, to enter judgment against Bankers and for such further orders as may be consistent herewith.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

GLICKSTEIN and DELL, JJ., and ALAN R. SCHWARTZ, Associate Judge, concur.

      . After the order granting a new trial but before the time for rehearing, Rosemary Barkett, Hubert Lindsey and Ken Slinkman filed a “Notice of Intervention” as plaintiffs in this action. This court granted appellees’ motion to strike Barkett, Lindsey and Slinkman as appellants, but permitted them to file a brief as amicus curiae.

      . Their status vis-a-vis Farish & Farish has yet to be determined.

      . The Florida Evidence Code has replaced Section 90.05, Florida Statutes (1975), and provides: Every person is competent to be a witness, except as otherwise provided by statute. Section 90.601, Florida Statutes (Supp.1976).

      . However, we note that the trial judge failed to state his reasons for departing from the standard jury instructions as required by In re Standard Jury Instructions, 198 So.2d 319 (Fla. 1967); In re Florida Rules of Civil Procedure, 211 So.2d 174 (Fla.1968); and Form 1.985, Florida Rules of Civil Procedure.- We need not reach this point since neither party has raised this requirement on appeal.


author: DOWNEY, Judge.

text:
    Frank MIGLIORE, Appellant, v. CROWN LIQUORS OF BROWARD, INC., Appellee.
    No. 81-883.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Rehearings Denied Jan. 31, 1983.

      Naomi Behar and Martin J. Sperry of Krathen & Sperry, Fort Lauderdale, for appellant.
    Davis W. Duke, Jr., and John R. Har-grove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appel-lee.
   DOWNEY, Judge.

The issue presented in this appeal is whether a vendor who sells intoxicating beverages to a minor contrary to the provisions of Section 562.11, Florida Statutes (1981) is liable to third persons injured by the intoxicated minor’s operation of a motor vehicle.

On December 2, 1978, appellant Frank Migliore was a passenger in an automobile which was struck by another automobile driven by a seventeen-year-old, Bruce Gahr-ing. Earlier that evening Gahring had consumed eight to ten “Kamikazees,” intoxicating drinks, at the Crown Liquor Lounge owned by appellee. It is alleged that no one at the lounge ever asked his age or demanded any identification. Sometime thereafter, while allegedly intoxicated, Gahring collided with the car in which Mig-liore was a passenger, injuring Migliore. This suit, filed by Migliore against appellee Crown and others, resulted in a final summary judgment in favor of Crown.

Crown contends that the summary judgment was proper because Section 562.-11 does not extend liability to injured third parties, and secondly, because the statutory violation complained of was not the proximate cause of Migliore’s injuries. Migliore, of course, takes the opposite position on each question. We agree with Crown’s contention and hold that a vendor who sells intoxicating beverages to a minor contrary to the provisions of Section 562.11 is not liable to third persons injured by the intoxicated minor’s operation of a motor vehicle.

Under the common law, a person injured by an intoxicated individual had no cause of action against the dispenser of the intoxicating beverage. This appears to be the general rule throughout the country in the absence of a statute creating such liability. United Services Automobile Association v. Butler, 359 So.2d 498 (Fla. 4th DCA 1978). The common law rule has been modified in many jurisdictions by the enactment of “Dram Shop” or “Civil Damages” acts making the dispenser of intoxicating liquors liable to persons injured by intoxicated minors. Although Florida has not enacted a Dram Shop or Civil Damages act, Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963), the common law was modified in Florida in 1935 when the legislature enacted Chapter 16774, Laws of Florida (1935) as part of the beverage law. The section prohibiting the sale of intoxicating beverages to minors, now found in Section 562.11, Florida Statutes (1981), was enacted for the purpose of protecting minors who might become injured as a result of the purchase and consumption of intoxicants. Davis v. Shiappacossee, 155 So.2d at 365; Burson v. Gate Petroleum Co., 401 So.2d 922 (Fla. 5th DCA 1981); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). Since this statute was passed in derogation of the common law, it is to be strictly construed. In Re Levy’s Estate, 141 So.2d 803 (Fla.2d DCA 1962); United Automobile Services Association v. Butler, 359 So.2d at 498. Thus, we conclude that the common law was changed by said statute to the extent that minors were protected against the sale of intoxicants.

In 1963, the Supreme Court of Florida held in Davis v. Shiappacossee, 155 So.2d at 365, that a violation of Section 562.11 constituted negligence per se and gave rise to a cause of action against the dispenser of intoxicants to a minor who was later killed while driving an automobile. The Court analogized the violation of Section 562.11 protecting minors from the sale of liquor to a violation of the statute prohibiting the sale of guns to minors as found in the case of Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959). Tamiami had relied upon Tampa Shipbuilding & Engineering Corporation v. Adams, 132 Fla. 419, 181 So. 403 (1938), a case involving a violation of a statute prohibiting the employment of children under the age of 16. Both Tamiami and Tampa Shipbuilding held that the respective statutes were enacted to protect minors from injuring themselves with guns in the case of Tamiami and from personal injury as well as the adverse effects on their education in the Tampa Shipbuilding case. Thus, the Shiappacossee court held that the cause of action created by violation of Section 562.11 accrued to the minor who was furnished the intoxicants. This position, we believe, was consistent with rules of statutory construction and case law generally. See: Alsup v. Garvin-Wienke, Inc., 579 F.2d 461 (8th Cir.1978); Keaton v. Kroger Co., 143 Ga.App. 23, 237 S.E.2d 443 (1977).

However, since Shiappacossee, several Florida cases have broadened the liability of dispensers for the sale of intoxicants to a minor. One case in particular held that a third party has a cause of action against the dispenser of intoxicants for injuries caused by a minor to whom intoxicants were furnished. In Prevatt v. McClennan, 201 So.2d 780 (Fla.2d DCA 1967), two minors who were imbibing in a tavern got into an argument. One of them pulled a gun and began shooting at the other. The plaintiff was struck by one of the shots and eventually sued the tavern owner. The District Court held that Section 562.11 was passed to “prevent harm that can come or be caused by one of immaturity by imbibing such liquors.” (Emphasis added.) Prevatt purports to rely upon Shiappacossee for that extension of liability to third parties. However, we do not believe Shiappacossee or the rules of statutory construction or other cases support that conclusion. Appellant also considers Burson v. Gate Petroleum Company, 401 So.2d at 922, as following Prevatt. However, in our judgment, the Burson court ruled on the question of proximate cause and held that the liquor sale involved was not the proximate cause of the injury.

One might argue that the court should respond to the threat of drunken drivers on our highways and extend Section 562.11 to include third persons injured by intoxicated minors. We reject that suggestion in favor of judicial restraint and leave the prerogative of modifying the common law rule to the legislature. We agree with the Georgia Court in Keaton v. The Kroger Co., 237 S.E.2d at 443, wherein it stated:

“... We agree with the conclusion of the court in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), that, in the final analysis, the controlling considerations are public policy and whether the court or the Legislature should declare it. We believe that the decision should be left to the Legislature. The Legislature may hold hearings, debate the relevant policy considerations, weigh the testimony, and, in the event it determines a change in the law is necessary or desirable, it can then draft statutes which would most adequately meet the needs of the public in general, while balancing the interest of specific sectors.” To the same effect, see Parsons v. Jow, 480 P.2d 396, 397-398 (Sup.Ct.Wyo.1971), supra; Hall v. Budagher, 76 N.M. 591, 417 P.2d 71, 73-74 (1966) supra; Hamm v. Carson City Nugget, Inc., supra; Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), supra.

It appears to us that the legislature felt the need to create a cause of action for third persons against dispensers of intoxicants for injuries by intoxicated minors when it passed Section 768.125, Florida Statutes (1981). They fashioned a statute which does afford a cause of action for third persons if they are able to prove the furnishing of intoxicants was willful and unlawful. The statute provides:

768.125 Liability for injury or damage resulting from intoxication. — A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

In conclusion, we note that the passage of Section 768.125 would have been totally unnecessary to provide third persons a cause of action against dispensers of intoxicants for injuries by intoxicated minors if such a cause of action was already available to them pursuant to Section 562.11. Certainly, no injured third person would proceed under Section 768.125 and assume its more onerous burden of proof if he could sue under Section 562.11.

Accordingly, the summary judgment entered in favor of the appellee Crown Liquors is affirmed.

AFFIRMED.

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

      . The 1981 provision is virtually identical to the 1978 Supplement provision in effect when the incident occurred except that the drinking age has been raised.


author: HERSEY, Judge.

text:
    In re ESTATE OF Vanchester BROXTON, deceased. Delores Thomas BROWN and Adolphus Thomas, Jr., Appellants, v. Bernice Broxton JOHNSON, as personal representative of the estate of Vanchester Broxton, deceased, Appellee.
    No. 81-1929.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1982.
    Rehearing and Suggestion of Question of Great Public Importance Denied Jan. 24, 1983.

      Alan S. Polackwich and Thomas Thatcher of Smith, O’Haire, Quinn & Garris, Vero Beach, for appellants.
    Vincent A. Lloyd of Lloyd, Brown, Hos-kins & Becht, Fort Pierce, for appellee.
   HERSEY, Judge.

. Delores Thomas Brown and Adolphus Thomas, Jr., appeal an order of the probate court holding that the evidence was insufficient to support appellants’ claim of a right to share in the intestate estate of decedent, Vanchester Broxton, as his lineal descendants.

The conflicting evidence presents a complex factual question and a difficult legal issue which is one of first impression in this jurisdiction. We begin with an overview of the factual conflicts which activate the legal question involving both the applicability of a statute and standing to rely on that statute.

The undisputed facts are that appellants, Delores Thomas Brown and Adolphus Thomas, Jr., are the children of Lillian Thomas Carthon. Lillian’s mother, Ethel Williams, was married to Columbus Johner at the time she gave birth to Lillian. Appellants nonetheless take the position that the natural father of Lillian was in fact Vanchester Broxton. The evidence in support of this position is considerable. There is also evidence, however, that Columbus Johner was the natural as well as the legal father; that yet another individual was the natural father; and that Vanchester Brox-ton could not have been the natural father, being away at school at the time of conception. The mother, Ethel, the putative father, Vanchester, and the alleged illegitimate, Lillian, are all deceased. The controverted facts emerge from the testimony of various witnesses.

In addition to this testimony appellants introduced into evidence a letter written by Vanchester to appellant, Delores Brown. They argue that this letter in which Delores is addressed as “My Little Grand Daughter” and “my sweet little grand daughter” and in which Vanchester refers to himself as “your Grand ... (unintelligible)” satisfies the acknowledgment requirement of Section 732.108(2)(c), Florida Statutes (1979). The pertinent provisions of that statute provide:

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother’s family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father’s family, if:
(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
(b) The paternity of the father is established by an adjudication before or after the death of the father.
(c) The paternity of the father is acknowledged in writing by the father.

Appellants thus maintain that the letter constitutes a written acknowledgment of paternity sufficient to allow them to share in the intestate estate of their purported grandfather.

This statutory remedy is available only where a person is born out of wedlock. Ethel was married to Columbus when Lillian was born and thus Lillian is presumed to be the legitimate child of Columbus. The statute therefore may not literally be applied to the instant factual situation. That is not to say, however, that the policy considerations embodied in the statute might not be applied to accomplish a similar result if other factors make that result desirable. In this case, the trial court apparently treated the letter as simply another link in the chain of evidence with which it was sought to establish Vanchester as the ancestor of appellants. We think this treatment was eminently correct.

In addition, we question appellants’ standing to adjudicate the paternity of their mother irrespective of whether she was “a person born out of wedlock.” It is one thing to permit Lillian to attempt to bastardize herself for reasons that to her appear good and sufficient. It is quite another thing to grant her lineal descendants standing to do so for their own personal gain.

We are aware of no Florida case permitting a child or more remote lineal descendant to bastardize an ancestor through judicial proceedings. Had appellants prevailed below, this thought-provoking legal question with its attendant public policy considerations favoring legitimacy, would be squarely presented for review. However, the trial court in effect determined that even if the statute applied, the evidence was insufficient to establish paternity. We reach this conclusion because the order on appeal here treats only the sufficiency of the evidence, finds it lacking, and never reaches the question of applicability of the statute. We therefore confine our review to evidentiary matters.

In order to establish paternity after the death of the putative father the evidence must be “clear, strong and unequivocal.” In re Estate of Odom, 397 So.2d 420, 425 (Fla. 2d DCA 1981), quoting In re McCollum’s Estate, 88 So.2d 537, 540 (Fla.1956). In the present case appellants were initially faced with the additional and onerous burden of overcoming the strong presumption of legitimacy. There must be “clear and satisfactory” evidence to overcome that presumption. Gammon v. Cobb, 335 So.2d 261 (Fla.1976). This double burden was not met by appellants. Having reviewed the record, and particularly the conflicting testimony, we conclude that the finding of the court below is supported by substantial competent evidence and we therefore affirm.

AFFIRMED.

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


text:
    Howard E. BRANDENBURG, Appellant, v. Bettye J. BRANDENBURG, Appellee.
    No. 81-1982.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Jan. 24, 1983.

      Craig R. Wilson of Ruffolo & Wilson, West Palm Beach, for appellant.
    Jack Ackerman, P.A., and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution. On appeal the husband is challenging several provisions of the final judgment.

Initially, we find no error in the amount of alimony and attorney’s fees awarded by the trial court to the wife. There is sufficient evidence in the record, including evidence of the disparate earning capacities of the parties and the wife’s need for financial assistance, to support these awards. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We do find error, however, as to several other aspects of the final judgment. During trial, and indeed on appeal, the wife conceded the husband’s entitlement to certain items of personal property. Despite this, the wife was awarded those items. This was error. Upon remand we direct the trial court to award the husband those items designated as items 2, 3, 4, 5, 9,10,11 and 15-24 in paragraph seven of the husband’s counterpetition. We also find that it was error for the trial court to direct the husband to make the wife the irrevocable beneficiary of a policy of insurance the existence of which is not reflected in the record. The husband agreed at trial to make the wife the irrevocable beneficiary of another policy that is referred to in the record. Upon remand we direct that the trial court substitute this policy for the one now referred to in the judgment. Lastly, we direct the trial court to limit the husband’s liability for the wife’s medical expenses to those expenses that are reasonable and necessary. The husband conceded at trial that he had the ability, and indeed, was willing, to secure insurance to provide for the wife’s future medical expenses. That being the case, we believe the trial court acted properly in making the husband responsible for the wife’s expenses, provided they are reasonable and necessary. Should the husband be unable to meet these expenses in the future because of an unanticipated increase in those expenses or a decrease in the husband’s ability to meet these expenses, it will be incumbent upon the husband to seek a modification of this provision.

Accordingly, we affirm in part, reverse in part, and remand this cause to the trial court for further proceedings consistent herewith.

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

BY ORDER OF THE COURT:

ORDERED that the Petition for Rehearing and/or Clarification, filed November 30, 1982, by Appellant is denied. See Thompson v. Thompson, 325 So.2d 480 (Fla. 4th DCA 1975).


author: GLICKSTEIN, Judge. ANSTEAD, Judge,

text:
    In re Matter of Attorney Fees Awarded in State v. Roger Grower. PALM BEACH COUNTY, Petitioner, v. Leon ST. JOHN, Esq., Respondent.
    No. 82-248.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Feb. 2, 1983.
    David M. Wolpin, Asst. County Atty., West Palm Beach, for petitioner.
    Leon St. John of Powell, Tennyson & St. John, P.A., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Respondent was appointed in 1980 to represent an indigent defendant pursuant to section 925.035, Florida Statutes (1979). At issue is whether he was entitled to payment at the conclusion of his services in November, 1981, in accordance with the mandatory fee schedule enacted pursuant to section 925.036(4), Florida Statutes (1980), which was in effect at the time of his appointment, or with section 925.036(2)(d), Florida Statutes (1981), which was in effect at the time his services were concluded. The earlier statute provided for a fee of $2,500; the later — which the trial court applied — $3,500.

Our sister court in Meredith v. St. Johns County, 365 So.2d 740 (Fla. 1st DCA .1978), earlier decided a somewhat similar case; however, the facts there were quite compelling and the ultimate result undoubtedly surprising to the appellee county. The attorney was appointed to represent an indigent charged with a capital offense. At the time of appointment, the statutory maximum fee was $1,000, but before the conclusion of services, the statute was amended to provide a reasonable fee. The trial court awarded a fee of $3,500 based on more than 305 hours of the attorney’s time, including two trials in a complex case. The county contended it should only be responsible for the statutory maximum of $1,000. The appellate court reversed and remanded with direction to award a fee of $6,500, holding such sum to be the minimum fee that could be justified as reasonable under the circumstances.

We believe there are logical reasons to support an award under the statute which existed when the services were completed. First, it is unquestioned that respondent has performed over 100 hours of service to his indigent client; so the effect of our decision is whether he will receive $35 or $25 per hour. As Justice Sundberg pointed out in his concurring opinion in Metropolitan Dade County v. Bridges, 402 So.2d 411, 415 (Fla.1981):

I deem the crux of this matter to lie in the sixth amendment right to counsel. As I read Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it placed the obligation upon the state to supply reasonably effective counsel to indigent defendants in certain classes of criminal cases. Of course, this constitutionally guaranteed right to counsel has been expanded since Gideon to other classes of actions. See, e.g., Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The point is, however, that the state has a constitutionally imposed responsibility, apart from the professional obligation of members of the bar, to provide legal counsel for indigent criminal defendants. It was in recognition and fulfillment of this responsibility that Florida was one of the first states to put in place a state funded, effective public defender system.
I realize that it is the statutory financial responsibility of a county which is in issue here due to the apparent disability of the public defender’s office. But that is of no constitutional moment. Under the dictates of Gideon it is the ultimate responsibility of the state to fund the guarantee of the sixth amendment where indigents are concerned.
To my point then. I concede the authority of the legislature, in its role of protector of the public treasury, to establish reasonable limitations upon the amounts paid to lawyers from public coffers for their appointive representation of indigent criminal defendants. This authority is subject, however, in my opinion, to the special responsibility of the courts to assure that indigent criminal defendants receive effective assistance of counsel. Ineffective counsel is no counsel at all and such representation of the poor would make the promise of the sixth amendment a hollow one indeed.
Hence, should it be demonstrated that the monetary limitation placed by the legislature on the compensation paid to court appointed attorneys representing indigent criminal defendants be so unreasonable as to make it impossible to secure effective counsel to those individuals, then there is no doubt in my mind that it would be the duty of the courts to strike down such limitations in favor of reasonable compensation. In assessing the reasonableness of the compensation for representation of indigents, naturally the lawyer’s professional obligation to aid the poor would have to be taken into account. The test would not be lavish compensation nor that which would be expected from a pecunious client, rather it would be that amount which is fair in light of the lawyer’s professional obligation to the poor and not confiscatory of his time and talents.

Second, the applicable statute, before and after its amendment, provides that counsel be “compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit.” We construe that language to mean the prevailing rate at the time the services were completed — not at the time of appointment. If part of the statute is so construed, the remainder should be. Respondent’s rent and salaries in 1981 are payable as things are, not as they were.

Third, we see a substantial difference between this type of case and one in which an attorney has negotiated and entered into what he perceives to be a reasonable fee contract with his client and subsequently during performance, seeks to renegotiate it. The court-appointed attorney accepts the responsibility, believing the fee may be substantially less than reasonable, because pub-lie policy compels it. The figure is not carved in stone, however, so that the same public policy can easily compel an increase before completion of performance.

Fourth, the application of the 1981 amendment appears consistent with the general practice of setting fees at the conclusion of performance as well as determining, by the use of expert opinions, what would be a reasonable fee at the time the fee is set — not years before. In a dissolution case extending over five years, is the expert to testify what would have been reasonable or what he would have charged in each of the five years of the proceeding? We think not.

Based on the foregoing, we deny the petition.

BERANEK, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially.

I readily concur in the majority decision and in Judge Glickstein’s opinion except that I am unwilling to say that an attorney will always be entitled to charge a fee for past services rendered predicated upon the current value of those services.


author: GLICKSTEIN, Judge.

text:
    WIMBLEDON TOWNHOUSE CONDOMINIUM I ASSOCIATION, INC., Cross-Appellant, v. Bernard KESSLER and Marilyn Kessler, his wife, Cross-Appellees.
    No. 80-1673.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearings Denied Feb. 7, 1983.
    Edward S. Polk of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for cross-appellant.
    Christopher C. Cloney, Fort Lauderdale, for cross-appellees.
   GLICKSTEIN, Judge.

In July, 1979, cross-appellant/condominium association sued cross-appellees/unit owners for removing their garage door and substituting sliding glass doors without the approval of the board of directors. The complaint sought injunctive relief to require the unit owners to restore the exteri- or portion of their townhouse unit to its original condition.

After the parties had jousted for one year, the unit owners filed an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442, whereby they offered either to paint the sliding glass door the same color as the garage doors in the complex, or in the alternative, to construct a wooden facade on the exterior side of the sliding glass door, which facade would duplicate the appearance of the original garage door. They also offered to pay the association’s costs incurred in filing the action, serving process and reporting. The offer was not accepted.

The parties went to trial the following month. As a result, the unit owners were ordered to replace the garage door with one like the original or one as similar in appearance as possible to the original within thirty days. Although the association’s attorneys attested to 40 hours of legal services expended in this matter from the commencement of services until the offer of judgment was made, the trial judge — with almost thirty years in service as a circuit judge in Broward County — recognized the absence of any reasonable basis for so much time in a case of this nature. He awarded an attorney’s fee of $1,500 for pre-offer services, which the association did not appeal. The trial court refused to award any attorney’s fees for services performed after the offer of judgment, notwithstanding the contention by the association’s attorneys that they had expended 38 additional hours in this matter since the offer of judgment. Apparently, it was the trial court’s reasoning, with which we agree, that the action was brought because the association was complaining about exterior appearance. When the unit owners agreed to restore that appearance in their offer of judgment, that should have ended the dispute on the merits, terminating the necessity for any additional costs and attorney’s fees.

Florida Rule of Civil Procedure 1.442 provides that if the offeree declines to accept the offer of judgment and the judgment obtained by the offeree is not more favorable than the offer, he is responsible to the offeror for the latter’s costs. Implicit within that conclusion is that the unsuccessful declining offeree shall not recover his post-offer costs or attorney’s fees. The trial court concluded that the ultimate award was not more favorable than the offer in this case and, in addition to refusing to award the association post-offer attorney’s fees, awarded the unit owners post-offer costs.

The association argues that the final award was more favorable than the offer because it permanently enjoined the unit owners from further violations of the declaration of condominium and ordered their compliance therewith; required replacement of the garage door by the unit owners within thirty days; authorized the association to make the replacement if the unit owners failed to do so in a timely fashion; ordered the unit owners not to deny the association access if it was necessary for it to replace the garage door; authorized the association to assess the unit owners for any costs incurred by the association in the replacement; declared the association’s entitlement to a lien for the assessment; and retained jurisdiction for the purpose of enforcing any such lien.

The reason we agree with the trial court is that the meaningful happenings upon which the association relies as establishing an award more favorable than the offer would have been available to the association if the offer had been accepted — specifically the ability to enforce the judgment pursuant to Florida Rule of Civil Procedure 1.570. The association still would have been entitled to pre-offer attorney’s fees upon acceptance of the offer because it would have been the prevailing party, placing it within the scope of section 718.303(1), Florida Statutes (1979).

We do not minimize the importance of a uniform exterior appearance to condominium associations; and we underscore the significance to the association’s well-being that each unit owner abide by the rules. Nevertheless, the amount of time logged by the association’s attorneys in this case compels us to suggest — as the able trial judge recognized — that it is inappropriate to expend so much professional time on an internal squabble of this nature, a defect in the shirt not warranting reinvention of the loom. We hope the attorneys of this district will consider including in future condominium documents some provision for a prompt, inexpensive method of arbitrating these aesthetic and other internal disputes.

AFFIRMED.

HERSEY and WALDEN, JJ., concur.

      . “Facade” has been defined as the front or forward outer surface of a building. Webster’s New Collegiate Dictionary 406 (1981); Roget’s II The New Thesaurus 356 (1980). The fact appears to be uncontradicted that the garage door was inoperable before the change in appearance and neither the trial court nor the parties were concerned with operational use. The concern was appearance.

      . Florida Rule of Civil Procedure 1.570, as it read when the offer of judgment was made, provided:
      Final process to enforce any judgment may be by execution or other appropriate process or proceedings if the judgment is solely for the payment of money. If the judgment is for the performance of any specific act, as for example, for the execution of a conveyance of land or the delivering of deeds or other documents, the judgment shall prescribe the time within which the act shall be done and upon affidavit that the judgment has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which he shall not be discharged except upon a full compliance with the judgment and the payment of all costs or upon a special order of the court enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate to compel obedience to the judgment. When a judgment is made for a conveyance, release or acquittance of land or any interest therein and the party against whom the judgment is entered does not comply therewith by the time prescribed, then such judgment shall be considered to have the same operation and effect as if the conveyance, release or acquittance had been executed conformably to it; notwithstanding any disability of such parties by infancy, lunacy, coverture or otherwise. If any other judgment, injunction or mandatory order for the specific performance of any act or contract is not complied with, the court may hold the disobedient party for contempt or may sequestrate his property or order that the act required be done, so far as practicable, by some other person appointed by the court at the cost of the disobedient party and the act, when so done, shall have like effect as if done by such party.
      See also Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976). As for the injunctive relief contained in the final judgment, we consider it superfluous in light of the relief provided by Florida Rule of Civil Procedure 1.570 and the limited scope of the parties’ controversy as contained in the association’s complaint.

      . See also Parliament Ins. Co. v. That Girl In Miami, Inc., 377 So.2d 1011 (Fla. 3d DCA 1979). There is authority to the contrary under corresponding Federal Rules of Civil Procedure 68. See Gamlen Chem. Co. v. Dacar Chem. Prods. Co., 5 F.R.D. 215 (W.D.Pa.1946).
      In determining the entitlement to post-offer attorney’s fees, cross appellants have not raised — therefore we have not considered— whether an offer that does not include pre-offer attorney’s fees should be considered as less favorable, for the purpose of Florida Rule of Civil Procedure 1.442, than an ultimate judgment, which does include pre-offer attorney’s fees. The following statement appears in That Girl In Miami, Inc., a short, per curiam opinion:
      If an insurance company wants to make an offer of settlement which includes attorney’s fees, it should do so.
      377 So.2d at 1011 (emphasis original). However, in Wisconsin Life Ins. Co. v. Sills, 368 So.2d 920, 922 (Fla. 1st DCA), cert. dismissed, 373 So.2d 461 (Fla.1979), the court said:
      We hold that the offer of judgment was effective to arrest costs as of October 31, 1977, and therefore that the insurer’s liability for attorneys’ fees did not accrue beyond that date. The efficacy of the offer of judgment was not lessened by its failure to include in the stated dollar sum an estimate for attorneys’ fees incurred to that point, or by the insurer’s failure to submit explicitly to a judgment for attorneys’ fees as well as for costs. The purpose of Rule 1.442 is to encourage defendants to acquiesce in claims discovered during litigation to be meritorious and to shift to the claimant the financial burden of carrying on litigation beyond the point where an appropriate offer of judgment on the merits is made.
      The terms of Rule 1.442 do not require that the defendant concede liability for attorneys’ fees, either in fact or in amount. The purposes of the rule would appear to be better served by allowing attorneys’ fees, like costs, to be determined by the Court independently of the merits. A defendant would require prophetic powers to estimate the amount of fees to be awarded for his adversáry’s services. Moreover, an insurer defendant who correctly estimates and offers to concede its liability for the benefit in issue should not be required to acquiesce also, in liability for attorneys’ fees accrued to the date of the offer of judgment or else incur continuing liability for still more fees. Rule 1.442 permits the defendant both to settle on the merits and to contest all costs, including attorneys’ fees. See Hernandez v. Travelers Ins. Co., 331 So.2d 329 (Fla. 3d DCA 1976).
      Although our sister court stated in the Wisconsin Life Insurance Company case that it is unnecessary to a valid offer of judgment that the offeror tender costs, there is authority to the contrary, Scheriff v. Beck, 452 F.Supp. 1254 (D.Colo.1978). See 12 C. Wright & A. Miller, Federal Practice and Procedure § 3002, at 57 (1973), which makes the following statement with respect to the offer:

        It must be unconditional and must include ‘costs then accrued’.
      Attorneys fees are not taxable costs under Florida Rule of Civil Procedure 1.442. Insurance Co. of N. Am. v. Twitty, 319 So.2d 141 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 22 (Fla.1976). Accord Greenwood v. Stevenson, 88 F.R.D. 225 (D.R.I.1980); cf. Waters v. Heublein, Inc., 485 F.Supp. 110 (N.D.Cal.1979), and Scheriff v. Beck.

      The assessment of post-offer costs is mandatory if the judgment is not more favorable than the unaccepted offer. Santiesteban v. McGrath, 320 So.2d 476 (Fla. 3d DCA 1975).