author: PER CURIAM. BOYD, Acting Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. James NEMEC, Respondent.
    No. 58451.
    Supreme Court of Florida.
    Nov. 26, 1980.
    James P. Hollaway, Deputy Staff Counsel, Tallahassee, Theodore Babbitt, Chairman of Grievance Committee 15 “C”, West Palm Beach, and Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, for complainant.
    James E. Weber of Weber & Fulton, West Palm Beach, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against James Nemec a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee filed the following report:

“The four-count complaint filed against the Respondent, James Nemec, arose from his representation of Myrtice Akins and Lavellon W. Akins in their claim for injuries sustained as a result of Mrs. Akins falling in a Winn-Dixie store on or about August 7, 1973.
Through his pleadings, the Respondent admitted the following facts contained in the complaint filed by the Florida Bar pursuant to Article XI of the Integration Rule:
1. The Respondent is, and at all times pertinent to these proceedings was, a member of the Florida Bar.
2. The Respondent represented Mr. and Mrs. Akins in their claim for injuries sustained as a result of an accident in a Winn-Dixie store where Mrs. Akins fell on August 7, 1973.
3. Mrs. Akins first consulted the Respondent concerning this incident on September 17, 1976, at which time eleven months remained before the applicable statute of limitations would bar any action by her.
4. The Respondent timely filed a complaint in the Circuit Court In and For Palm Beach County, Florida, on November 17, 1976.
5. On April 4, 1978, Winn-Dixie, through their attorney, Donald Beutten-muller, made a written offer of $10,000.00 to settle the Akins’ claim.
6. On July 21, 1978, the Defendant in the civil action filed a motion to dismiss the Akins’ claim against Winn-Dixie for failure to prosecute said claim. On July 26, 1978, the Respondent filed a notice of voluntary dismissal and on July 31, 1978, he filed an amended notice of voluntary dismissal stating that the dismissal was taken without prejudice.
7. On July 26, 1978, the Respondent filed basically the same complaint again and it was assigned a different case number. On January 10, 1979, the Circuit Court entered a dismissal with prejudice on the grounds that the statute of limitations had expired on August 7, 1977.
All other allegations of the complaint were denied.
At the commencement of the proceedings the parties entered into the following stipulations:
1. That all persons who treated Mrs. Akins while she was being represented by the Respondent were made an offer by the Respondent to pay one-half of their bill that they had submitted either to Mrs. Akins or Mr. Nemec directly. That all of those persons were eventually paid the full amount of their bill.
2. That all documents admitted in the grievance committee proceedings as exhibits would be admissible in this proceeding.
During the course of the proceeding, conflicting testimony was presented to the undersigned. Where possible, the conflicts were resolved without imputing untruthfulness to any witness. If the conflicts could not be resolved, the Court accepted certain testimony and disregarded other testimony. After doing so, in addition to the admissions made through the pleadings, and the stipulations of the parties, the Referee finds the following facts to exist:
1. The Respondent, James Nemec, overlooked or misconstrued the statute of limitations and as a result Mr. and Mrs. Akins were barred from any relief against Winn-Dixie.
2. Prior to the original case being dismissed, Mr. Nemec conveyed an offer of settlement in the amount of $10,000.00 to Mr. and Mrs. Akins.
3. The Respondent filed the voluntary dismissal which resulted in his clients losing their cause of action against Winn-Dixie without their permission.
4. After realizing his error, Mr. Nem-ec informed his clients of the error, and although they may not have understood, he attempted to explain to them that he was paying them the amount offered by Winn-Dixie from his own funds.
5. They agreed to the settlement with the understanding that all medical providers would be paid in full.
6. The Respondent made no effort to advise his clients that they should seek the advice of another attorney before releasing him from any liability for malpractice. After the settlement was made with his clients, the Respondent, without the full knowledge and understanding of his clients, attempted to settle the bills of the medical providers for less than the amount of their bills.
7. The value of Mr. and Mrs. Akins claim was no more than the amount eventually paid to her, and qualified attorneys practicing personal injury law would have advised her, if they had been contacted, to settle with Mr. Nemec for the amount which she received.
8. Mr. and Mrs. Akins were not injured by the actions of the Respondent and did not initiate the grievance proceedings against him.
Based upon the admissions of the Respondent through his pleadings, the stipulations entered into by the parties, the above findings of fact, and the entire record, the undersigned recommends that the Respondent be found not guilty under Counts I and II of the complaint, and quilty under Counts III and IV of the complaint.
The Respondent was charged in Count I of the complaint with violating Disciplinary Rule 6-101(A)(3), and Disciplinary Rule 7-101(A)(3). At the conclusion of the complainant’s case, the undersigned directed a verdict as to Rule 7-101(A)(3).
Even though the Respondent overlooked or misconstrued the statute of limitations and thereby was negligent, and possibly subjected himself to a malpractice actions, the facts of this case do not appear of sufficient magnitude to warrant conviction of an ethical violation under Canon 6. THE FLORIDA BÁR v. NEALE, 384 So.2d 1264 (Fla.1980).
The Respondent was charged under Count II of the complaint with violating Disciplinary Rule 1-102(A)(4) and the Florida Bar Intergation Rule, Article XI, Rule 11.02(3)(a). This Rule prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Even though there was evidence to indicate that Mrs. Akins did not fully understand what was told to her and explained to her by Mr. Nemec, there was evidence indicating that he attempted to do so and did not intentionally deceive or misrepresent any facts to Mrs. Akins. The Referee did not have the benefit of the testimony of Mr. Akins.
Under Count III of the complaint the undersigned directed a verdict at the close of the Complaint’s ease in chief except as the count related to a violation of Disciplinary Rules 1-102(A)(6) and 6-102(A).
Based upon the foregoing findings of fact, the Referee finds that the Respondent did attempt to exonerate himself from, or limit his liability to his client for his personal malpractice. Even though the Respondent advised his clients of his error, he made no effort to advise them that they should seek the advice of another attorney before releasing him from any liability for malpractice, nor did he explain their possible malpractice claim to them. Instead, he prepared a release which had to be signed before his check to them was negotiable.
Under Count IV of the complaint, the Respondent, by his actions violated Disciplinary Rule 1-102(A)(6) by leading his clients to believe that all bills of the medical providers would be paid in full, and then attempting to settle those bills with the providers for less than that amount. Once the settlement was agreed upon, the Respondent had the obligation to render appropriate accounts to his client regarding those funds, which in effect he was then holding on behalf of his clients. By attempting to settle his client’s obligation to the medical providers for an amount less than shown on the settlement statement, he violated Disciplinary Rule 9-102(B)(3).
Based upon the above, the undersigned, as mentioned above, feels the Respondent should be found guilty of misconduct justifying disciplinary measures under Count III and Count IV of the complaint and based upon the evidence presented to the Court concerning the Respondent would recommend a public reprimand and the payment of costs.
The Referee has not been made aware of any past disciplinary measures though evidence admitted during the course of the proceedings.”

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, James Nemec, is hereby publicly reprimanded, and the publication of this order and judgment shall constitute a public reprimand.

Execution is hereby directed to issue against respondent for costs in the amount of $2,028.48.

It is so ordered.

OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

BOYD, Acting Chief Justice,

dissenting:

I would affirm finding, but would administer private reprimand.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Ronald S. GUNTHER, Respondent.
    No. 58295.
    Supreme Court of Florida.
    Nov. 26, 1980.

      John S. McEwan, II, Chairman of the Ninth Judicial Circuit Grievance Committee “A”, Orlando, David G. McGunegle, Bar Counsel and Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Ronald S. Gunther, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.-06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

“1. On March 9, 1979, Respondent accepted the sum of $100.00 as a fee to form a corporation for his client, Gregory L. McDuffie, plus an additional $118.00 presumably to cover filing fees and other incidental costs... .
2. Articles of Incorporation were prepared by Respondent and filed by him with the Secretary of State on July 13, 1979, which Articles named Respondent as sole director and the sole incorporator. ...
3. Respondent failed to notify his client of the granting of said Charter by the Secretary of State and failed to accept or return any of his client’s telephone calls. ...
4. Respondent failed to have issued 750 shares of $10.00 par stock as agreed to in the Basic Client Information Sheet.. ..
5. Respondent failed to have his client named as President as agreed to in the Basic Client Information Sheet....
6. Respondent failed to deliver the certified Articles of Incorporation to his client....”

The referee recommends that respondent be found not guilty of violation of Disciplinary Rules 1-102(A)(4), 3-104(C), 7-101(A)(2) and 9-102(A) of The Florida Bar’s Code of Professional Responsibility and Rule 11.02(4) of the Integration Rules of The Florida Bar and that he be found guilty of Disciplinary Rule 6-101(A)(3)and recommends that respondent be suspended for a fixed period of one year, thereafter until he shall prove his rehabilitation, and pay the cost of this proceeding, as provided in Rule 11.10(4).

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Ronald S. Gunther, is hereby suspended from the practice of law in Florida for a period of one year, thereafter until he shall prove his rehabilitation.

Execution is hereby directed to issue against respondent for costs in the amount of $188.63.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J., dissents.


text:
    Clarence DAVIS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES et al., Appellee.
    No. 58849.
    Supreme Court of Florida.
    Nov. 26, 1980.
    Guy C. Hill, West Palm Beach, for appellant.
    William M. Holland of Holland & Smith, West Palm Beach, for appellee.
   PER CURIAM.

We do not have jurisdiction in this case. The trial court specifically refrained from passing on the constitutionality of § 742.041(2), Fla.Stat. (1977). It then ordered the father to pay support pursuant to § 742.041(1), Fla.Stat. (1977). The Fourth District Court of Appeal transferred this case upon appellant’s motion which asserted that the trial court initially and directly passed upon the constitutionality of the statute. Even under the inherency doctrine, the constitutional challenge must have been to a controlling statute and the decision as to the statute’s validity necessary to the determination of the case. Harrell’s Candy Kitchen, Inc. v. Sarasota Manatee Airport Authority, 111 So.2d 439 (Fla.1959). The cause is transferred to the district court of appeal.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    Edwin C. LEE, Appellant, v. STATE of Florida, Appellee.
    No. WW-69.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Rehearing Denied Dec. 30, 1980.
    Edwin Cooper Lee, in pro. per.
    Jim Smith, Atty. Gen., and Curtis A. Golden, State’s Atty., for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion for post-conviction relief for the reason that the motion is legally insufficient on its face. Appellant’s allegations concerning errors in a pre-sentence investigation report did not meet the standard of specificity required by Wood v. State, 375 So.2d 10 (Fla. 1st DCA 1979); Bohn v. State, 354 So.2d 1233 (Fla. 3d DCA 1978).

AFFIRMED.

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


author: COWART, Judge.

text:
    OFFICE OF the PUBLIC DEFENDER of the NINTH JUDICIAL CIRCUIT In and For ORANGE COUNTY, Florida, Petitioner, v. Honorable J. C. STONE, Jr., Judge of the County Court of the Ninth Judicial Circuit, Criminal Justice Division, in and for Orange County, Florida, Respondent.
    No. 80-1109.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    Rehearing Denied Dec. 16, 1980.

      Harry W. Carls, III, Public Defender, and Anne E. Richards, Asst. Public Defender, Orlando, for petitioner.
    No appearance for respondent.
   COWART, Judge.

This is a petition for a writ of common law certiorari to review a circuit court order denying a writ of certiorari to review a non-final order of a county court relating to discovery in a criminal case.

We deny the petition because it demonstrates neither the jurisdiction of this court nor any basis for a decision that the circuit court exceeded its jurisdiction or departed from the essential requirements of law.

PETITION DENIED.

ORFINGER and COBB, JJ., concur.

      . The petition is not accompanied by an appendix, as required by Florida Rule of Appellate Procedure 9.100(e), containing the order of the circuit court from which it can be determined that the petitioner is the real party in interest, that the circuit court order is final [Fla.R. App.P. 9.030(b)(2)(B)], and that the petition is timely [Fla.R.App.P. 9.100(c)],

      . The petition purports to seek review of a circuit court order, yet the relief sought is the quashing of the county court order, the county court judge is named as respondent and served and all argument is directed toward the action of the county court.


author: ORFINGER, Judge.

text:
    Veroncia G’SELL, Appellant, v. Charles Joseph G’SELL, Appellee.
    No. 79-282.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    Rehearing Denied Dec. 15, 1980.
    Agustín R. Benitez of Greater Orlando Area Legal Services, Inc., Tavares, for appellant.

      Neal D. Huebsch of Huebsch, Bowen Croak, Eustis, for appellee.
   ORFINGER, Judge.

Two issues are raised by the wife in appealing the final judgment of dissolution of marriage. She contends that the trial judge erred in awarding her rehabilitative alimony instead of permanent periodic alimony, and that the award of child support is insufficient.

This marriage of approximately 20 years produced three children, two of whom were minors when the final judgment was entered. What distinguishes this case from most of the reported cases is that we are not dealing with above average available income, but instead are concerned, as was the trial court, with the appropriate distribution of the husband’s earnings of approximately $850 per month, derived from his occupation as an automobile mechanic at which trade he has been employed for about 22 years. He has little prospect for improving his earning capacity.

The trial court awarded custody of the minor children to the wife, gave her the right of possession of the marital home and made provision for the husband to support the minor children until their majority. The wife contends that there was error in the award, but she has not demonstrated an abuse of discretion on the part of the trial court, so the award of support for the minor children is affirmed.

We face a different problem in considering the wife’s contention as to alimony. The wife was 21 years old when she married the appellee, had left school after the seventh grade at age 13, and had never been employed either before or after the marriage. She had no training for any type of employment or occupation and there is no evidence that she is employable. She claims to have health problems which would also interfere with employment. The trial court awarded her rehabilitative alimony of $200 per month for two years without any evidence that she had or could develop any marketable skills during that period, nor that there was any probability that she would be capable of self support at the end of that period.

The principal purpose of rehabilitative alimony is to establish the capacity for self support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), cert. denied 312 So.2d 737 (Fla.1975). As was stated in Reback, the record here is devoid of any evidence that the wife will be rehabilitated in the two year period. Where the prior education, skills or training of the wife do not of themselves show the actual or potential capacity for self support, rehabilitative alimony is improper in the absence of other evidence showing such capacity. Reback, supra; West v. West, 345 So.2d 756 (Fla. 4th DCA 1977).

We reverse the judgment as it pertains to rehabilitative alimony and remand the cause with directions that the trial court enter an award for permanent periodic alimony in such amount as the court shall determine to be appropriate based upon the current needs of the wife and the husband’s ability to pay.

AFFIRMED in part, REVERSED in part and REMANDED with directions.

SHARP, J., and BAKER, JOSEPH P., Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    Stephen PASKIND, Rental Halls of Tampa, Inc., d/b/a Britton Plaza Bingo Hall, Harry John Drajem, Tampa Wheels, Inc., Leslie J. Rothman, Florida Sunspokes Wheelchair Sports and Recreation Association, Inc., Sunshine Wheelchair Athletic Association, Inc., Ronald Johnson, Tampa Bay Suncoasters, Inc., James Mathis, and Charles J. Bickmer as trustee for Britton Plaza, Appellants, v. STATE of Florida ex rel. E. J. SALCINES, Appellee.
    No. 80-413.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1980.
    As Corrected On Denial of Rehearing Dec. 18, 1980.
    Roy E. Black, Miami, for appellants.
    E. J. Salcines, State Atty., and Catherine W. Real, Asst. State Atty., Tampa, for ap-pellee.
   BOARDMAN, Judge.

Stephen Paskind, et al., defendants below, filed this interlocutory appeal from the order of the trial court granting a temporary injunction enjoining them from operating bingo games at 3908 Britton Plaza in Tampa. We affirm.

The state on the relation of State Attorney E. J. Salcines filed a petition for a temporary and permanent injunction against appellants, alleging that they were using the Britton Plaza location for the operation of bingo games in violation of sections 849.09 and 849.093, Florida Statutes (1979), and were therefore maintaining a nuisance under section 832.05, Florida Statutes (1979), and seeking an order declaring the Britton Plaza Bingo Hall a nuisance, a temporary restraining order abating the nuisance, and a permanent injunction. After hearing, the trial court on February 7, 1980, granted a temporary injunction until further order of the court. This interlocutory appeal followed timely.

The facts of this case are that in December, 1978, appellant Paskind, as agent for Rental Halls of Tampa, Inc. (Rental Halls), a Florida corporation for profit, entered into a lease with Charles J. Bickmer, as trustee for the Britton Plaza shopping center. The subject of this lease was a storeroom with approximately 12,000 square feet of space on the 3900 block of South Dale Mabry, in Tampa. This space was to be used by Rental Halls as a meeting and bingo hall for a term of ten years. Rental Halls agreed to make monthly rental payments of $4000.

On September 8, 1979, Rental Halls entered into a sublease with the following nonprofit Florida corporations: Tampa Wheels, Inc., Sunspokes Wheelchair Sports and Recreation Association, Inc., Sunshine Wheelchair Athletic Association, Inc., and Tampa Bay Suncoasters, Inc.

The sublease provided that the room could be used as a meeting and bingo hall; that Rental Halls would provide all equipment and supplies necessary to the conduct of bingo games; and that Rental Halls would advance to the four nonprofit subles-sees monies for merchandise, gifts, the rental of buses or any other transportation costs, and motel rooms for out-of-town guests. Rental Halls would thereafter be reimbursed by the sublessees for all such monies advanced. In return, the sublessees agreed to make rental payments to Rental Halls in the amount of $6020 per week.

Thereafter, each of the nonprofit subles-sees began sponsoring bingo games at Brit-ton Plaza. They shared the same space, each sponsoring bingo games on no more than two prearranged days of the week, with matinees taking place on certain days of the week, all allegedly under the sponsorship of the four nonprofit sublessees.

We agree, in essence, with the trial court’s ruling and in part with the reasoning upon which it was based. Section 849.-093 excepts bingo games from the operation of section 849.09, which generally proscribes lotteries, but the playing of bingo games for money or any other thing of value is permitted only if conducted in conformity with section 849.093.

Among the provisions of section 849.093 is the following:

(9) Bingo or guest games shall be held only on the following premises:
(a) Property owned by the nonprofit organization;
(b) Property owned by the charity or organization that will benefit by the proceeds;
(c) Property leased full time for a period of not less than 1 year by the nonprofit organization or by the charity or organization that will benefit by the proceeds;
(d) Property owned by and leased from another nonprofit organization qualified under this section; or
(e) Property owned by a municipality or a county when the governing authority has, by appropriate ordinance of resolution, specifically authorized the use of such property for the conduct of such games.

Appellants obviously do not meet the conditions of subsections (9)(a), (b), (d), or (e); they make no contention otherwise. The issue before us, then, is the correctness of the trial court’s interpretation of subsection (9)(c).

We hold that the trial court was correct in concluding that appellants were in violation of section 849.093(9)(c). That subsection clearly states that the property must be leased full time by the qualified, nonprofit organization or charity that will benefit by the proceeds. We think it is significant that this subsection makes reference to a charity or organization only in the singular form, although these terms are used in the plural form in two other subsections of section 849.093.

One of the fundamental rules of statutory construction is that the legislative intent must be ascertained and effectuated and that intent must be gathered from consideration of the statute as a whole rather than from any one part thereof. State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979). When the bingo exception is read as a whole, it is clear that the legislature never intended the bingo exception to include the operation of a large-scale, commercial bingo operation such as the one we now consider.

There can be no doubt that the legislature intended that the nonprofit organizations that run these bingo games be the primary beneficiary of the proceeds of these games. Section 849.093(2) states that the entire proceeds, less actual business expenses, shall be donated by such organizations to certain specified, worthy endeavors. See Carroll v. State, 361 So.2d 144 (Fla.1978). The legislature inserted the full-time lease limitation in this subsection to prevent the diversion of proceeds to profit-making entities through the conduit of rents and expenses.

This intent can be easily ascertained by examination of the remaining subsections, all of which require that the actual owner of the property be a nonprofit organization, to wit: the organization which will directly benefit from the proceeds of the bingo activities (subsections (9)(a) and (b)), another nonprofit organization qualified under section 849.093 (subsection (9)(d)), or a county or municipality (subsection (9)(e)).

It does appear, as the trial court found, that appellant Rental Halls is both the true operator and chief financial beneficiary of the bingo games at Britton Plaza. The disparity in the rental obligations of Rental Halls ($4000 per month) and the nonprofit sublessees ($6020 per week) strongly indicates a violation of the legislative intent. However, there being no evidence in the record concerning Rental Halls’ net profits, we reach no conclusion on this issue. While the evidence does not support the trial court’s finding, such a finding was not necessary to support the trial court’s order, and we do not rely on it in deciding this case. This court’s opinion is based solely on our construction of the statute in question.

Finally, we do not agree with the trial court’s ruling that the mere fact that bingo games are conducted more than two days a week at the same location is necessarily a violation of section 849.093(4), which provides: “The number of days during which such organizations as are authorized hereunder may conduct bingo or guest games per week shall not exceed two.” As we read section 849.093(4) and (9), bingo games could be held more than two nights a week at the same location under a setup similar to that involved here as long as no single organization conducted bingo games more than two nights a week-but only if the actual owner of the property were a qualified nonprofit organization pursuant to subsection (9)(d). This, of course, is of no help to appellants, since the owner of Brit-ton Plaza is not such a nonprofit organization. See State ex rel. Reno v. Lusardi, 362 So.2d 1067 (Fla. 11th Circuit, 1978), aff’d sub nom. Community Art Alliance, Inc. v. Reno, 372 So.2d 1169 (Fla. 3d DCA 1979). In that case a profit organization sublet certain premises to a charitable organization. Subsequently, the charitable organization sublet the same premises to other charitable organizations for two nights per week each. The circuit court ruled that the sublease arrangement violated the full-time lease provision of the bingo exception, declared the bingo hall a nuisance, and issued a temporary restraining order abating the nuisance.

Accordingly, the temporary injunction issued by the trial court is AFFIRMED.

SCHEB, C. J., and HOBSON, J., concur.


author: McCORD, Judge.

text:
    JESS PARRISH MEMORIAL HOSPITAL and All Risk Corporation of Florida, Appellants, v. Jane M. ANSELL, Appellee.
    No. SS-157.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Rehearing Denied Dec. 30, 1980.
    C. Thomas Ferrara of Pitts, Eubanks & Ross, Orlando, for appellants.
    Gabriel H. Blumenthal of Blumenthal & Schwartz, Titusville, for appellee.
   McCORD, Judge.

Appellants, employer/earrier, appeal from a workers’ compensation order in which the deputy commissioner found that appellee Ansell’s disability, based on a loss of wage-earning capacity greater than the 5% anatomical rating assigned to her by her treating physician, amounted to a 25% permanent partial disability of the body as a whole. In reaching that figure, the deputy commissioner took into consideration group medical and group life insurance benefits supplied by the employer when computing appellee’s average weekly wage. However, when computing appellee’s present wage, the deputy commissioner apparently did not take into consideration certain fringe benefits which appellee now receives. We reverse and remand for reconsideration of the evidence relating to appellee’s present fringe benefits and redetermination of the percentage of disability based on wage-earning capacity loss.

On September 19, 1978, appellee injured her back in a work-related accident, while working for appellant Jess Parrish Memorial Hospital as a dietary hostess. Of the three orthopedic surgeons who treated or examined appellee, one was of the opinion that she suffered no residual disability, another was of the opinion that she had sustained a 2% permanent partial impairment, and the third, Dr. Flynn, was of the opinion that she suffered a 5% permanent partial impairment as a result of the accident. The deputy commissioner accepted the 5% rating given by Dr. Flynn.

The evidence showed that appellee’s base salary for the 13 weeks preceding her accident at the hospital was $113.64. The deputy commissioner tacked onto her average weekly wage the $5.72 value of the group medical and life insurance benefits which she received while working at the hospital. Therefore, the deputy commissioner found her average weekly wage to be $119.35. Appellants urge that inclusion of the insurance benefits in the average weekly wage determination was error because such benefits are not covered by the following description of “wages,” as provided by § 440.-02(12), Florida Statutes:

Wages means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, %(3)27

In July 1979, appellee obtained a job at Knox-McRae Child Care Center as a day care assistant, earning $75 a week. In addition to her earnings, she is allowed to take her own child to the center without paying the normal $20 a week charge. Prior to her accident, she had had to pay someone to take care of her child while she worked at the hospital. Appellee and her child also receive lunch five days a week at the nursery at no charge. Apparently, in computing loss of wage-earning capacity suffered by appellee, the deputy commissioner considered her present weekly wage to be $75, without giving consideration to the free child care and free lunches which she now receives.

We find no error in the deputy commissioner’s inclusion of the value of insurance benefits in determining appellee’s average weekly wage. We realize that fringe benefits which employees receive from an employment contract often have significant value and may be included as a “similar advantage” in a deputy commissioner’s determination of average weekly wage. Compare Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970), in which the court expanded the definition of wages to include the value of uniforms furnished to the claimant by the employer.

Although the deputy commissioner’s inclusion of the life insurance benefits in his computation of average weekly wage was not error in this cause, his exclusion of fringe benefits when determining present wage was error. If appellee’s fringe benefits at the hospital are to be considered, then her fringe benefits at her present job must also be considered in making a fair comparison for wage-earning capacity loss purposes. The evidence shows that she received $20 worth of child care per week plus free lunches for herself and her child. When the value of those fringe benefits are added to appellee’s $75 weekly wage, it becomes clear that appellee has not suffered as great a loss of wage-earning capacity as found by the deputy commissioner.

We remand to the deputy commissioner for the taking of additional evidence, if necessary, to determine the value of the lunches received by appellee and her child, the value to her of the child care furnished to her child and for recomputation of loss of wage-earning capacity in light of these considerations.

We have considered appellants’ argument relating to the adequacy of appellee’s job search and find it to be without merit.

Reversed and remanded for further proceedings consistent with this opinion.

MILLS, C. J., and THOMPSON, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Ballard William EASTON and Goodville Mutual Casualty Company, Appellants, v. William Jones BRADFORD, Appellee.
    No. 79-1588.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 18, 1980.

      Michael S. Rywant of Shackleford, Farri- or, Stallings & Evans, P. A., Tampa, for appellants.
    Steven T. Northcutt of Levine, Freedman, Hirsch & Levinson, P. A., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellants Ballard William Easton and his insurer, Goodville Mutual Casualty Company, appeal an order granting appellee Bradford’s motion for a new trial in a vehicular negligence action. Appellants also contend that the trial court improperly admitted a certain medical bill into evidence in the absence of testimony from a medical expert as to the reasonableness of the bill.

The relevant facts are as follows: Prior to opening statements at the jury trial, appellants admitted liability for the accident and the cause was tried solely on the issue of whether appellee Bradford surpassed the no-fault threshold and the matter of damages, if any. During the trial, a medical bill from Dr. Urquiza was admitted into evidence over appellants’ objection. Bradford testified that his treating physician, Dr. Sierra, had referred him for physiotherapy to Dr. Urquiza in an effort to alleviate the pain from injuries received in the accident. He stated that he had not paid the bill.

At a jury instruction conference held pri- or to final argument, both parties submitted their proposed instructions. After the conference, but before the jury was impanelled for closing arguments, the court gave both parties an opportunity to state any objections they might have to the proposed instructions. The only objection noted was that of appellants regarding the court's refusal to give a requested instruction on personal injury protection benefits.

After the jury was charged, the court gave an additional opportunity for the parties to advise if there were any further instructions. At that time both parties indicated that there was no other instructions that they wished the jury to be given. During deliberations, the jury submitted a question to the court relative to filling out the verdict form. The question as stated by the foreman was: “If we award no permanent injuries, can we award damages?” The court instructed the jury to answer both questions on the verdict form. After the jury again retired to deliberate, appel-lee’s counsel requested for the first time that the court instruct the jury as to a serious, nonpermanent injury. The court refused this request contemporaneously with the jury’s indication that it had arrived at a verdict. The jury found that appellee Bradford had not sustained a permanent injury and awarded him $7,500 in damages.

Following a hearing on appellee’s motion for a new trial, the court entered an order finding, in pertinent part, that the omission of the issue of serious, nonpermanent injury from the verdict form was brought to the court’s attention while the verdict was still under the control of the jury, and that appellee’s objections was timely made. The court found that the omission of that issue from the verdict form did not afford appel-lee a fair trial on all the issues and that appellee was entitled to a new trial on the sole issue of whether he had sustained a serious, nonpermanent injury.

In view of the extensive testimony elicited regarding appellee’s physical condition from the date of the accident to the time of trial, we hold that evidence of non-permanent injuries was properly presented to the jury for determination upon instruction by the court. Appellee’s counsel pointed out the deficiency in the jury charge and verdict form before the jury returned its verdict. Thus, the trial court correctly exercised its sound discretion in granting a new trial. Appellants’ argument that the objection to the omission of the jury instruction was untimely is correct only as it applies to preserving the point for appellate review. We concur with the decision in Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974), in which the court held that a party’s failure timely to object to the form of a verdict does not “diminish the authority of the trial judge to grant a motion for a new trial in the exercise of his sound discretion. ...”

As to the admission of the medical bill into evidence, we refer to the case of Garrett v. Morris Krischman & Company, 336 So.2d 566 (Fla.1976), in which the supreme court held that “expert medical testimony [is] not required in order to render .. . medical bills inadmissible in evidence.” In that case, the plaintiff’s testimony was the only testimony which authenticated the medical charges as being reasonable and related to the accident. In a footnote, the court noted that the plaintiff testified the bill had been paid. 336 So.2d at 571 n.8.

The Third District Court of Appeal evidently found this footnote to be of great significance on the question of the reasonableness of medical expenses. In Cason v. Smith, 365 So.2d 1042 (Fla. 3d DCA 1978), that court cited Garrett for the proposition that “expert testimony ... is not necessary to justify the admission of the bills, when, as in Garrett, they have been paid.” We are not convinced that the Garrett decision placed Florida firmly within the jurisdictions which hold that evidence of payment of medical expenses is prima facie evidence of the reasonableness of those expenses. This is particularly true in the case sub judice where appellee testified repeatedly that he was unable to afford various medical procedures recommended by his physician. The fact that he did not pay Dr. Urquiza’s bill is, in our opinion, more likely attributable to his financial condition than to the reasonableness of the charges. Ap-pellee’s testimony that his treating physician referred him to Dr. Urquiza for physiotherapy and his detailed description of the treatment procedures clearly related the therapy to the accident. At that point, the trial judge properly placed the question of the necessity and reasonableness of the charges within the purview of the jury. Any evidence to the contrary could have been presented by appellants to offset the weight of the appellee’s testimony.

For the reasons stated, we hold that the trial court did not abuse its discretion in granting appellee a new trial on the sole question of serious, nonpermanent injuries and that Dr. Urquiza’s medical bill was properly admitted into evidence.

AFFIRMED.

RYDER and DANAHY, JJ., concur.'

      . The First District Court of Appeal held that the plaintiffs testimony alone relating to the medical bills to the accident was sufficient predicate to allow the jury to resolve the question of whether the bills were reasonable and necessary. Polaco v. Smith, 376 So.2d 409 (Fla. 1st DCA 1979).


author: HURLEY, Judge. LETTS, Chief Justice,

text:
    Joseph AIELLO, Appellant, v. STATE of Florida, Appellee.
    No. 79-2231.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 31, 1980.

      Richard L. Polín and Don R. Allen, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Defendant, Joseph Aiello, appeals his convictions and sentences imposed after three verdicts of guilty of engaging in common bookmaking schemes contrary to Section 849.25(3), Florida Statutes (1975). We affirm in part and reverse in part.

The information charged the defendant with three separate counts of bookmaking in violation of Section 849.25(3), Florida Statutes (1975). Subsection one of the statute defines “bookmaking” as “the taking or receiving of any bet or wager.” Subsection three of the statute lists three types of activity which, if proven, will upgrade the penalty for bookmaking from a first degree misdemeanor to a third degree felony. The activities are: (1) receiving or accepting more than five bets in any one day; (2) receiving bets totaling more than $500.00; or, (3) engaging in a common bookmaking scheme with three or more persons.

Through a statement of particulars, the state advised the defendant that he was being charged with the last mode of activity, i. e., engaging in a common bookmaking scheme with three or more persons. The state further specified that count one allegedly occurred on November 21, 1975, count two on November 22, 1975 and count three on November 23, 1975. The case was tried by a jury which found the defendant guilty of all counts. The court thereupon adjudicated the defendant guilty of each count and imposed a sentence of three concurrent prison terms of eighteen months, followed by three years probation and a fine of $1,250.00.

I

Though neither party to this appeal has suggested that the imposition of three sentences may constitute multiple punishments for a single crime, we conclude that such is the case. Moreover, the error is fundamental and, consequently, may be considered on appeal despite the lack of an objection below. Mims v. United States, 375 F.2d 135 (5th Cir. 1967); Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), aff'd 363 So.2d 331 (Fla.1978).

It is a basic precept of constitutional law that the double jeopardy clause of the Fifth Amendment protects against multiple punishments for the same offense. Illinois v. Vitale, - U.S. -, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Whether an information charges multiple conspiracies or a single ongoing conspiracy depends upon analysis of the proof adduced at trial, but it is certain “that a single agreement to commit an offense does not become several conspiracies because it continues over a period of time.” Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). Indeed, this rule was laid down over thirty years before Braverman by Mr. Justice Holmes in Unit ed States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124,126, 54 L.Ed. 1168 (1910), when he said:

But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one.

The state is not free to arbitrarily decide whether there is one agreement or several. United States v. Palermo, 410 F.2d 468 (7th Cir. 1969). The issue must be resolved by an analysis of the proof adduced at trial. As the court noted in United States v. Perez, 489 F.2d 51, 57 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974), distinguishing between one overall conspiracy and several separate conspiracies is “a frustrating and challenging task.” The court further held that:

In essence, the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy. Id. at 62.

Turning to the evidence in the case at bar and viewing it in the light most favorable to the state, and giving the state the benefit of all inferences to be drawn therefrom, Tegethoff v. State, 220 So.2d 399 (Fla. 4th DCA 1969), we find proof of only one common bookmaking scheme. The record is replete with continuing instructions on how each participant was to fulfill his role in accepting and transmitting bets. Indeed, the key participants remained the same throughout the three day conspiracy. The evidence portrays the defendant Aiello as the head man and operational core of an ongoing bookmaking ring. No other interpretation is possible. Thus, as a matter of law, the defendant could not be convicted nor sentenced, for more than one offense. Therefore, defendant’s convictions and sentences for counts two and three must be reversed.

II

Defendant’s major thrust on appeal is the contention that the evidence adduced at trial is insufficient to establish a common bookmaking scheme with three or more persons. He argues that at best, the state proved his involvement with three individual bettors which, as a matter of law, is inadequate. The state accepted defendant’s characterization of the evidence and maintained that individual bettors may be counted to satisfy the statute’s numerical requirement of three or more persons. We believe the state’s position is incorrect, but we need not treat this issue exhaustively since the evidence presented at trial conclusively shows that the defendant engaged in a common bookmaking scheme with three or more persons who, themselves, were also engaged in taking or receiving bets. In other words, they were more than individual bettors.

In Tegethoff v. State, supra, the court enunciated the appropriate appellate standard by which a claim of insufficiency of evidence should be measured:

In examining a record to determine the sufficiency of evidence, an appellate court need only find substantial competent evidence to support the verdict. The verdict and judgment carry a presumption of correctness; hence, all inferences to be drawn from the evidence are to be drawn in favor of the verdict and judgment. Id. at 400.

Since the defendant apparently failed to object to the manner in which a single conspiracy was charged in three counts, and because he was fully advised of the dates and individuals involved, we view the information as charging a single common scheme extending from November 21,1975 through November 23, 1975. Given the defendant’s contention that the evidence adduced at trial was insufficient to support a conviction, our task on appeal is to determine whether the state’s evidence established a common bookmaking scheme between the dates specified, and with three or more persons from those listed on the statement of particulars, who satisfy the statute’s requirements.

The linchpin in the state’s evidence was a series of fifteen intercepted telephone conversations between the defendant and an individual named Angelo Congiunti. Mr. Congiunti’s home telephone had been tapped pursuant to a court order, the validity of which is not before us. After listening to the tape recorded telephone conversations, the jury heard Captain Joseph Pierce of the Broward County Sheriff’s Office explain several of the terms used during the conversations. Captain Pierce also offered his opinion on the structure of the bookmaking organization and the roles of the various participants. Viewing this body of evidence from the Tegethoff perspective, there is substantial competent evidence to support a finding that Mr. Aiello was the “head man” or “banker” of an ongoing bookmaking operation which had interlocking connections with other bookmaking organizations. Angelo Congiunti served as Aiello’s “clerk”, the person responsible for manning the phones, accepting bets and reporting to the head man or banker. The evidence also shows that the Aiello group transferred most of its bets to another bookmaking organization run by a person known as “Jigger”. Thus, the foregoing evidence establishes that the defendant, Aiello, was engaged in a common bookmaking scheme with at least two other individuals, viz., Angelo Congiunti and Jigger. The evidence further discloses that Jigger often communicated with the Aiello group through an assistant known as “Joe”. However, we do not consider Joe as the third participant in the common bookmaking scheme since the state failed to list his name on its statement of particulars.

The evidence, however, does provide a third individual by the name of “Billy” who meets the criteria for a member of a common bookmaking scheme. A brief synopsis of the testimony will suffice to demonstrate that Billy was more than an individual bettor; he was a bookmaker in his own right who accepted bets and, in turn, placed them with the Aiello organization. In call # 5 on November 22, 1975, between Angelo and the defendant, Angelo relates that Jigger instructed him to call off some bets because of a mistake in the point spread. Angelo then says, “Now I called Billy, I said, ‘Bill— he said, ‘How am I going to get it off?’, he said, ‘Who am I going to call to get it off, the guy’s got the bet in.’ ” In call # 11, made on the same day, Angelo reports Billy’s bets as follows: “Pittsburgh plus 9, a 100 times, that’s $5,1 mean $500; then he’s got Tennessee minus 2 and V2 again, 10 times, that’s $50; then he’s got California minus a point and xk again, 20 times, that’s $100.. . Then he’s got Penn State minus 4, . . . only 10 times though, $50; then he’s got Michigan State minus 7.. ., for twenty times, $100.. .. Now you put down this here, ‘Jack C-o-r, Jack Cor,’ that’s Billy, but I put him under another name... . He’s got Pittsburgh plus 9, $200... . ” Later in the same conversation, Angelo states: “Billy’s got to call me back anyway, he might have more stuff. I told him no later than quarter to one, I got to call it in.”

In call # 16 on November 23, 1975, Angelo tells the defendant of Billy’s inquiries as to when he will be paid. Angelo quotes Billy as saying, “You know, I don’t know, should I send in a lot of action?” Angelo responded, “Look, what can I tell ya, you know.” Angelo, referring to Billy, then said to the defendant: “Ya, I mean, you know, he wants me to be on beck and call, like, he wants me like, if he calls at ten o’clock, I’m here with the spread, you know, a call like at two in the morning, you know what I mean? He wants me to be around like for twenty hours while he’s taking action.” (Emphasis supplied).

With respect to the last quoted conversation, Captain Pierce testified that taking “action” refers to accepting a bet. (Tr. 93). Thus, by evaluating the evidence in the light most favorable to upholding the jury’s verdict, and construing all inferences to be drawn therefrom in favor of the verdict and the judgment, we find that the state proved Billy to be a bookmaker and not a mere bettor. The prosecution thereby met its burden of establishing that the defendant, Aiello, engaged in a common bookmaking scheme with three or more persons, viz., Angelo Congiunti, Jigger, and Billy, all of whom were also involved in taking or receiving bets. Since the judgment of conviction for count one is supported by substantial evidence, it is affirmed.

Accordingly, the judgment of conviction and sentence for count one is affirmed. The judgments of conviction and the sentences imposed for counts two and three are reversed and the cause is remanded to the trial court with instructions to vacate and set aside the judgments and sentences for counts two and three.

ANSTEAD, J., concurs.

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

LETTS, Chief Justice,

concurring specially:

I concur and in so doing commend Judge Hurley for his usual excellence in going to the trouble of playing the tapes which establish the accuracy of the majority opinion’s version of the facts. However, this information could never have been deduced from the briefs as filed nor was any argument based thereon.

I would warn all who come before us that there will be few occasions when we can afford the time to unearth the truth in such a manner.

      . Section 849.25(3), Florida Statutes (1975) provides:
      “Whoever engages in bookmaking to the extent that in any one day he receives or accepts more than five bets or receives bets totaling more than $500, or engages in a common bookmaking scheme with three or more persons, is guilty of a felony of the third degree, punishable as provided in [section] 775.082, [section] 775.083, or [section] 775.084_

      . If individual bettors could be counted as members of a common bookmaking scheme, then each bettor would be equally as culpable as the bookmaker himself and would be subject to prosecution for a second degree felony. This result cannot have been intended since there are separate statutes specifically covering bettors as distinct from bookmakers. (See for example Section 849.14) Further, if the State’s interpretation is accepted, the first part of Section 849.25(3) which makes it a second degree felony to engage in bookmaking to the extent that in any one day the bookmaker receives or accepts more than five bets would be meaningless. If bettors are to be included as part of a common bookmaking scheme, then any time a bookmaker receives or accepts three bets in a day, (from three separate bettors) rather than five bets, he can be convicted of a second degree felony under the common scheme portion of the subsection. Such a result cannot have been intended for it renders the five bet minimum mere surplusage.

      . The statement of particulars contained the following list of alleged co-participants:
      Count I: Angelo Congiunti, Jigger, Billy, and/or Eric.
      Count II: Angelo Congiunti, Jigger, Billy, Eric, and/or Day.
      Count III: Angelo Congiunti, Billy, Eric, Ray, Buddy, and/or Johnny Sicatano.


author: DAUKSCH, Chief Judge.

text:
    Robert P. NESBITT and Government Employees Insurance Company, Appellants, v. AUTO-OWNERS INSURANCE COMPANY, Appellees.
    No. 80-255.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 16, 1980.

      Toby S. Monaco of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, P. A., Gainesville, for appellants.
    Wayne C. McCall of Ayres, Cluster, Curry, McCall & Briggs, P. A., Ocala, for appel-lees.
   DAUKSCH, Chief Judge.

This is an appeal from an order granting a new trial in a negligence case. It is also a cross-appeal from an order denying a motion “for judgment in accordance with motion for directed verdict.” We reverse the order for new trial, affirm the order denying judgment for appellee and remand this matter to the trial court with directions to reinstate the jury verdict and enter judgment for appellant on the verdict.

The issue is whether the trial judge abused his discretion in granting the new trial. In reviewing orders granting new trials this court is bound to the standard that only upon a clear showing of abuse of discretion may such an order be reversed; and the burden which an appellant must carry to overturn such an order is greater than that required to reverse an order denying a new trial. Castlewood Int’l Corp. v. La Fleur, 322 So.2d 520, 524 (Fla.1976); Cloud v. Fallis, 110 So.2d 669 (Fla.1959). In reaching our decision to reverse the order we are mindful of that standard and we know about the better perspective the trial judge has when trial proceedings are involved. However, the reason this order for new trial was granted stems from the interpretation of words in a statute as compared to the standard jury instruction, and the wording of the special verdict form in this case. The reason for the awarding of the new trial was not because of critical evidentiary rulings, improper conduct of a trial participant or other matters which are commonly ones which require the use of discretion on the part of the judge whose decision is given the greatest of deference because of his unique position.

The reason the trial judge felt the jury had been misled by the instruction and the verdict form was because the instruction, and special verdict, were, he said, “contrary to section 768.31(2)(e).” We presume it was his determination the wording of the Standard Jury Instruction was not in sufficient conformity with the statute so as to properly explain the law to the jury.

The statute says:
768.31 Contribution among tort-feasors.—
(2) RIGHT TO CONTRIBUTION.—
(c) There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.

The law of contribution among tortfeasors is statutory, unknown to the common law, and “is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury.” Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977), affirmed 353 So.2d 825 (1978). Because the legislature created the law of contribution it sets the limits of its applicability and the quoted portion is meant to prevent an intentional tortfeasor from having others share the payment for injuries suffered as a result of his tortious conduct. This is true even if another tortfeasor participates in some way to cause the injury, as in this case.

The Special Verdict found the percentage of negligence attributable to appellant (who now seeks to have the verdict reinstated by this appeal) to be forty percent (40%) and that attributed to appellee’s insured to be sixty percent (60%). The Special Verdict also posed the question “Did Earl I. Tillman intentionally (willfully and wantonly) or with reckless indifference to the rights of others, cause or contribute to the injuries to Ethel Nesbitt?” The jury answered “yes” to this question and emphasized their conclusion by underlining the words “reckless indifference” and “rights of others.” Apparently, it is the jury’s having underlined those words which triggered the ap-pellee’s concern over the asserted deficient instruction and special verdict.

The statute does not have the words “or with reckless indifference to the rights of others” as do the instruction and the verdict. Appellee, who succeeded in convincing the trial judge to grant a new trial, asserts these words add to the statutory limits and change the meaning of the statute. Appellee says that by adding those words, and because the jury emphasized them on the special verdict form, the appel-lee was wrongfully, and not in accordance with the statute, prevented from recovering the contribution it was due. Appellant argues the words “or with reckless indifference to the rights of others” are merely defining what conduct is legally included within the definition of “intentional.” It is appellant’s position, with which we agree, that willful or wanton conduct or conduct which displays a reckless indifference to the rights of others is tantamount to intentional conduct for the purposes of this statute. It is understandable there may be a lack of proof that a tortfeasor formed a specific intent to injure another, but his conduct may be of such a willful, wanton or reckless degree as to amount to the “intention” mentioned in the statute. In this case the evidence showed the appellee’s insured was driving while under the influence of alcohol. Although that in itself may be dangerous or even reckless and come up to the standard intended by the statute and the jury instruction, it does not necessarily do so. It depends upon the facts of the case, the degree of the “influence” and that ultimately is a jury question. The jury decided the evidence was sufficient on this point and its decision should be affirmed.

In reaching our conclusion that the instruction and the verdict form were not so improper as to require, or allow, a new trial, we have considered various definitions of the respective words and those considerations led us to our conclusion.

The statute says “.. . intentionally (willfully or wantonly) ...” Black’s Law Dictionary 1418 (5th ed. 1979) defines wanton as

Reckless, heedless, malicious; characterized by extreme recklessness or foolhardiness; recklessly disregardful of the rights or safety of others or of consequences. Means undisciplined, unruly, marked by arrogant recklessness of justice, feelings of others, or the like; willful and malicious. In its ordinarily accepted sense connotes perverseness exhibited by deliberate and uncalled for conduct, recklessness, disregardful of rights and an unjustifiable course of action, (cits, omitted).

It defines “wanton act” as

One done in reckless disregard of the rights of others evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another, and is more than negligence, more than gross negligence, and is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action, equivalent in its results to wilful misconduct.

Id. at 1419. Various cases have defined the operative words in a manner consistent with our opinion here.

It is our opinion the Standard Jury Instruction was an appropriate instruction for this case, applicable to its facts and a reasonable, not misleading, definition and explanation of the statute. The trial judge was correct in giving it and the special verdict form was appropriate so we must reverse the order appealed and remand the matter for judgment for the plaintiff.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.

      . Appellee’s insured.

      . The first time of record the appellee raised the question of the instruction and the verdict form was in its motion for new trial but we are not going to hold appellee’s failure to object of record against it because appellant’s counsel quite graciously agreed that appellee did object sufficiently at trial even though it does not appear in the record. We shall accept that concession as putting the issue before us as we are permitted to do, within the intent of Rule 9.200(a)(2), Florida Rules of Appellate Procedure. Mr. Monaco is commended.

      . See Ingram v. Pettit, 340 So.2d 922 (Fla.1976); Carraway v. Revell, 116 So.2d 16 (Fla.1959); Auto Specialties Mfg. Co. v. Boutwell, 335 So.2d 291 (Fla. 1st DCA 1976); Mendoza v. Farrell, 199 So.2d 750 (Fla. 3d DCA 1967).


text:
    V. J. T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2415.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender and William Liston, Legal Intern, for appellant.

      Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and PEARSON, DANIEL, JJ.
   PER CURIAM.

The findings of delinquency which are under review by this appeal are affirmed upon a holding that: (1) the appellant has failed to attack the finding of delinquency on the petit larceny count entered below, and, indeed, concedes in his brief that this finding should be affirmed; and (2) the appellant has failed to preserve for appellate review the sole ground which he now urges in attacking the sufficiency of the evidence to support the finding of delinquency on the burglary count entered below because: (a) this ground was admittedly never raised in appellant’s oral motions for judgment of acquittal made at trial; and (b) this ground, contrary to appellant’s contention, was never raised in appellant’s oral motion to vacate [see Fla.R.Juv.P. 8.230] made subsequent to trial as said motion merely raised a conclusory and vague collage of grounds, essentially relating to the constitutionality of the burglary statute, and referred only slightly and in a confused manner to the failure of the state to prove the burglary element of entering or remaining in the subject vehicle [which, in any event, is quite different from the contention now raised on appeal, based on State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979), that the state failed to establish the burglary element of an intent to commit an offense therein]. Daley v. State, 374 So.2d 59 (Fla. 3d DCA 1979); Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977); G. W. B. v. State, 340 So.2d 969 (Fla. 1st DCA), cert. denied, 348 So.2d 948 (Fla.1977).

Affirmed.


text:
    Eleanor May McAndrews ARCHIBALD, Appellant, v. Matthew Pierce ARCHIBALD, Appellee.
    No. 80-27.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    McDermott, Will & Emery and J. Michael Fitzgerald, Miami, for appellant.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff and Arthur M. Simon, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

This is an appeal by the wife from a final judgment dissolving a marriage. The final judgment awarded her $50,000.00 in lump sum alimony and $750.00 per month in permanent alimony. The only point on appeal is that the court erred in not awarding her a special equity in an interest the husband held in a hotel located in Jamaica, B.W.I.

In the final judgment under review, the trial judge made the following finding.

“3. The Court finds that since the inception of the marriage in 1956, the funds of the parties were intermingled in the acquisition of several hotels in Jamaica and Europe. The acquisition of the sole remaining Hotel owned by the Husband; however, did not require any funding. The same was acquired by the Husband with no cash investment. That upon the sale of Montego Hotel, the proceeds of sale were ultimately divided between the parties at their final separation in 1972. “The Court finds that the Wife after the separation from the Husband in 1972, has no special equity in the Husband’s present holdings.. .. ”

Although we might have reached a different result, the findings of the trial judge comes to us with a presumption of correctness. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Storer v. Storer, 353 So.2d 152, 153 (Fla. 3d DCA 1977). We are not permitted to substitute our judgment as to the facts for his. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Monzon v. Monzon, 349 So.2d 195 (Fla. 3d DCA 1977); Koken v. Neubauer, 374 So.2d 49 (Fla. 3d DCA 1979). He is in the best position to make an equitable distribution of any assets acquired during the marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Examining the record in light of these principles, we find no error in the final judgment of dissolution under review; therefore, the same is affirmed.

Affirmed.


text:
    CUMBERLAND FARMS DAIRY, INC. et al., Appellants, v. Robert W. SZAJBLER, Appellee.
    No. SS-277.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Rehearing Denied Dec. 30, 1980.
    Walter E. Beisler, West Palm Beach, and Anthony J. Beisler, Fort Lauderdale, for appellants.
    Richard W. Groner, West Palm Beach, for appellee.
   MASON, ERNEST E., (Ret.), Associate Judge.

This is an appeal from an order dated October 29, 1979, by Deputy Commissioner David A. Danielson. The deputy ruled that the claimant/appellee, Robert W. Szajbler, suffered an industrial accident on May 21, 1979, in which he became temporarily totally disabled due to a “catastrophic loss” as defined by Section 440.15(2)(c), Florida Statutes (1978). The deputy awarded compensation at the rate of eighty percent (80%) of the claimant’s weekly wage until he completed training or until November 21, 1979, whichever occurs first.

From this order the appellant contended that the claimant could have only suffered from a catastrophic total loss of use of either his leg or his foot based on the evidence in the record. The appellant claims that the evidence indicates that the claimant did not suffer a “total loss of use” of either his leg or foot as defined by Section 440.15(2)(c), Florida Statutes (1978). The appellant further contends that even if the claimant did suffer such a loss, the deputy’s findings are deficient, because the deputy did not specify to what part of the body the claimant incurred a catastrophic loss.

This Court recently clarified the meaning of the term “total loss of use” in Section 440.15(2)(c), Florida Statutes (1978). See Van Eyk v. R. N. Hicks Construction Co., 377 So.2d 793 (Fla. 1st DCA 1979). The record set out competent substantial evidence to demonstrate a total loss of use of the foot as set forth in the statute and clarified by Van Eyk, supra. Therefore, we affirm as to the first point, but we agree with the appellant as to the second point. The deputy has failed to adequately specify to what part of the body the claimant has suffered a total loss of use.

We suspect that the deputy intended to find a total loss of use to the foot. However, the deputy’s order did not state this. Therefore, we must remand the order for clarification on this issue by the deputy commissioner.

AFFIRMED in part and REMANDED for proceedings not inconsistent herewith.

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

      . Whether or not there is competent substantial evidence to sustain a finding of a total loss of use to the leg or any other part of the body, is a question we do not reach in this opinion.


author: RYDER, Judge.

text:
    Manuel SABINA, Maria Sabina, his wife and Neri Blanco, Appellants, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellee/Cross Appellant, v. HILLSBOROUGH INSURANCE SERVICES, INC., Appellee.
    No. 79-1601.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1980.
    Rehearing Denied Dec. 18, 1980.

      Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, and Gold-ner, Reams, Marger, Avis, Piper & Kiernan, P. A., St. Petersburg, for appellants.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellee/cross appellant.
    W. M. Carson and Gary W. Nicholson of Carson & Guemmer, Tampa, for appellee.
   RYDER, Judge.

Manuel Sabina, Maria Sabina and Neri Blanco appeal from the finding that Manuel Sabina rejected uninsured motorist coverage in his policy with General Accident. We reverse.

Appellants sued General Accident seeking a determination that the insurance policy included uninsured motorist coverage and seeking recovery thereunder for injuries resulting from an automobile accident. General Accident impleaded Hillsborough Insurance Services, the agent writing the policy, alleging that if Manuel Sabina’s rejection of uninsured motorist coverage was invalid, then the invalidity was a result of Hillsborough’s negligence in writing the policy.

The issue of coverage was tried separately, and the parties presented conflicting factual testimony. Both counsel for the appellants and appellees requested instructions to the jury that Florida Statutes require uninsured motorist coverage to be knowingly rejected by the insured if deleted from the policy. Nevertheless, the court instructed the jury that the deletion was valid if “uninsured motorist coverage is rejected by an insured named in the policy.” Counsel for appellants made timely objection to the omission of the word “knowingly.” The jury returned a special interrogatory that found Manuel Sabina had signed a rejection, and the court entered judgment for appellees.

Appellants argue that the court erred in failing to instruct the jury that a rejection must be knowingly made. We agree. A rejection of uninsured motorist coverage required by Section 627.727(1), Florida Statutes (1977), must be knowingly made. Wilson v. National Indemnity Company, 302 So.2d 141 (Fla. 1st DCA 1974). See United States Fidelity & Guaranty Company v, Darden, 338 So.2d 37 (Fla. 3d DCA 1976).

The judgment for appellees is REVERSED and the case REMANDED for a new trial. Pursuant to the agreement of the parties, we also REVERSE and REMAND the derivative third party action against Hillsborough Insurance Services for new trial.

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


author: CAMPBELL, Judge.

text:
    CAPE CORAL MEDICAL CENTER, INC., a Florida nonprofit Corporation, Appellant, v. NEWS-PRESS PUBLISHING CO., INC., d/b/a Fort Myers News-Press, Appellee.
    No. 80-615.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1980.
    Rehearing Denied Dec. 10, 1980.

      Robert L. Donald and Harvey Rollings of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, for appellant.
    Steven Carta of Smith, Carta & Rings-muth, Fort Myers, for appellee.
    Joy M. Packer of Rahdert & Packer, St. Petersburg, for amicus curiae Times Publishing Company.
   CAMPBELL, Judge.

Cape Coral Medical Center, lessee from Cape Coral Health Authority, appeals from the entry of a final summary judgment which determined the Medical Center to be a public agency and, therefore, subject to section 286.011, Florida Statutes (1979), the Sunshine Law, and section 119.01, Florida Statutes (1979), the Public Records Law. News-Press Publishing Co. cross-appeals from an order striking its request for attorney’s fees.

We have examined the Medical Center’s appeal and find that we are not required to address here whether every nonprofit private lessee from a governmental, hospital authority lessor is required to disclose its records pursuant to section 119.01, Florida Statutes (1979), and/or section 286.011, Florida Statutes (1979). The legislature has provided an answer in this particular case through chapter 75-354, Laws of Florida, the special act which created the Cape Coral Health Authority.

Chapter 75-354, Laws of Florida, provides the following:

Section 4.
(5) ... All meetings of the authority as well as all records, books, documents and papers shall be open and available to the public in accordance with s. 286.011, Florida Statutes.
Section 1.... The authority may lease a project or projects to a health facility for operation and maintenance in such manner as to effectuate the purposes of this act, under an agreement of lease in form and substance not inconsistent herewith.... (Emphasis added.)

The legislature, in creating the Cape Coral Hospital Authority, provided that the agreement of lease must be consistent with the provisions of the chapter. We interpret this requirement to include the disclosure provisions in section 4(5). Accordingly, we affirm the trial court’s entry of summary judgment.

Although we affirm the entry of summary judgment, we do find merit in News-Press’ cross-appeal.

In its complaint News-Press requested attorney’s fees as provided for in sections 119.12(1) and 286.011(4), Florida Statutes. The Cape Coral Medical Center moved to strike the request for attorney’s fees. The court granted the motion to strike prior to the hearing on the motion for summary judgment.

Section 119.12(1), Florida Statutes, provided for an award of attorney’s fees to the plaintiff if the court finds that the agency-defendant unreasonably refused to permit inspection of its records. Section 286.011(4), Florida Statutes, provides for an award of attorney’s fees when the court finds that the agency violated section 286.-011. Each of these provisions for an award of attorney’s fees involves a question of fact. A trial court may properly determine a factual question on a motion for summary judgment but not on a motion to strike.

Accordingly, we remand to the trial court for re-examination of the issue of attorney’s fees. We affirm the final summary judgment.

SCHEB, C. J., and GRIMES, J., concur.

      . Section 3.
      (2) “Authority” or “health facilities authority” means the public corporation created by this act or any board, body, commission, or department of a county or municipality, succeeding to the principal functions thereof or to whom the powers conferred upon each authority by this act shall be given by law.

      . Section 3.
      (8) “Health facility” means any private corporation organized not for profit or any public corporation authorized by law to provide hospital or nursing home care services ....

      . The legislature is able to provide for disclosure and has done so here. The legislature could also eliminate the disclosure requirement if it so desired.

      . Although chapter 75-354, section 4(5), Laws of Florida, expressly refers to only section 286.-011, Florida Statutes, the language of section 4(5) referring to “records, books, documents and papers” implies compliance by the Authority with the requirements of chapter 119. Also the Authority, by its definition, falls within section 119.011(2), Florida Statutes. See footnote 1.

      .As the policy behind chapter 119 and the policy behind section 286.011 are similar, we believe that they should be read in pari mate-ria. In so reading these provisions, we find that the violation necessary for an award of attorney’s fees under section 286.011(4) is an unreasonable violation just as the refusal to permit inspection necessary for an award of attorney’s fees under section 119.12(1) is an unreasonable refusal.


author: JOANOS, Judge.

text:
    FLORIDA DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. Linda Sue KIMMICK, Appellee.
    No. WW-115.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.

      Steven W. Huss, Tallahassee, for appellant.
    Virlyn B. Willis, Jr., Lake City, for appel-lee.
   JOANOS, Judge.

Appellee, Kimmick, petitioned the Circuit Court in Columbia County to open her adoption records. She notified appellant, Department of Health and Rehabilitative Services (HRS), by filing a copy of the petition with counsel for the department. HRS responded to the petition by moving to dismiss the action for improper venue, arguing that as an affected party it could assert the state agency venue privilege recognized in Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978). HRS sought to have venue transferred to Leon County. In the order appealed from, the trial judge denied HRS’s motion.

HRS asserts that Florida Statutes (1979), Section 63.162(2) which states in pertinent part “. .. the Department shall be permitted to present to the court a report on the advisability of disclosing or not disclosing information pertaining to the adoption”, grants party status to HRS for the purpose of asserting a venue privilege. We disagree. The statute does not treat HRS as a party in these proceedings. It allows that agency to present its position concerning opening the adoption records much in the same way that HRS makes recommendations and reports in adoption proceedings. See Fla.Stat. (1979) §§ 63.-112(2)(b) and 63.122(6). Furthermore, the issue of whether or not to disclose information from the file is under the continuing authority of the court in which the judgment of adoption was entered as it is that court which has custody of the case file. That court is obviously the court referred to throughout Section 63.162 of the Florida Statutes. It would be unreasonable to construe it otherwise. The complexity that would occur in having an adoption judgment entered in the Columbia County Circuit Court but having further issues involved in the same file considered only by the Leon County Circuit Court is unnecessary and not the intent of the statute.

We note that nothing prevents HRS from entering these proceedings at the trial or appellate level as a permissible party. However, since the proceeding is not brought against HRS, the right of a state agency to be sued in the county of its headquarters as discussed in the Carlile case, supra, is not applicable to a proceeding under Section 63.162(2).

The order appealed from is AFFIRMED.

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


author: WENTWORTH, Judge.

text:
    CITY OF TAMPA, Appellant, v. David GREEN, Appellee.
    No. TT-47.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    James A. Sheehan, Tampa, for appellant.
    William P. Levens, Tampa, for appellee.
   WENTWORTH, Judge.

The self-insured employer appeals a workers’ compensation order which we affirm.

Claimant, a garbage man for the city of Tampa, sustained a fractured skull when he fell off a garbage truck while on a new route. Although the other trucks were equipped with both vertical and horizontal handrails, this truck, which claimant had never worked before, had only a vertical handrail at claimant’s station. Claimant testified that he fell off the truck when it made a sharp turn a little faster than usual, and he reached for the missing handrail. The driver testified that there was a small bump in the road at the point of the accident.

Claimant was taken to the hospital and a blood alcohol test was eventually administered more than seven hours after the accident occurred. The employer sought to introduce into evidence medical records containing the results of the test. However, the laboratory technician who performed the test could not be located and, upon objection by claimant’s attorney, the deputy commissioner refused to admit the test results into evidence. Section 92.36, Florida Statutes (1975), the statutory provision applicable at the hearing in this case, provides that business records may be admitted into evidence in the appropriate circumstances, and various medical tests and examinations, contained in hospital reports, have qualified as business records under § 92.36. See e. g., Jaime v. Vilberg, 363 So.2d 386 (Fla. 3rd DCA 1978); Exchange National Bank of Tampa v. Hospital & Welfare Board of Hillsborough County, 181 So.2d 9 (Fla. 2d DCA 1965). However, the statute provides for admissibility only “if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission,” and the trial court “retains much discretion as to the admissibility of particular entries or papers ... . ” Brevard County v. Jacks, 238 So.2d 156 (Fla. 4th DCA 1970); accord, Lea Industries Inc. v. Raelyn International Inc., 363 So.2d 49 (Fla. 3rd DCA 1978); see generally, Mastan Co. v. American Custom Homes Inc., 214 So.2d 103 (Fla. 2d DCA 1968). In the present case the deputy apparently concluded that the “method and time of preparation” of the test had not been shown to be sufficiently reliable to justify its admission into evidence. This determination was a matter within the deputy’s discretion.

In attempting to introduce the blood alcohol test results into evidence, the employer sought to invoke § 440.09(3), Florida Statutes, which provides that

“no compensation shall be payable if the injury was occasioned primarily by the .intoxication of the employee .... If there was at the time of the injury 0.10% or more by weight of alcohol in the employee’s blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee.”

In addition, the deputy expressly found that, even if the blood alcohol test results should be admitted into evidence, claimant’s injury was nevertheless occasioned primarily by the absence of a horizontal handrail on the truck. Although admitting that he had been drinking heavily during the weekend preceding the accident, claimant testified that he was sober when he reported to work at 6 a. m., and that he performed his job in the usual manner until falling off the truck around 11:30 a. m. This testimony was corroborated by claimant’s co-workers, although it was noted that claimant had taken frequent drinks of water and had begun to “slow down” shortly before his accident. The record facts in this case (including the bump in the road, a sharp fast turn, and the absence of the usual handrail) provide “substantial evidence” for the deputy’s conclusion that claimant’s injury was not occasioned primarily by intoxication.

The order appealed is affirmed.

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


text:
    DAVIDSON LUMBER COMPANY and American Hardware Mutual Insurance Company, Appellants, v. Willie Dwight SMITH, Appellee.
    No. TT-277.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    John F. McMath, Miami, for appellants.
    Gerald B. Shaw, Miami, for appellee.
   PER CURIAM.

The employer/carrier appeals from a worker’s compensation order determining the compensability of Appellee’s injuries and awarding him ten percent (10%) permanent partial disability of the lower left extremity. Appellee, in turn, cross-appeals the Deputy Commissioner’s determination of his average weekly wages and resultant compensation rate. We affirm as to the issues on appeal and reverse on the cross-appeal. Since Appellee had been employed less than thirteen weeks and there is no evidence of a similar employee’s wages, the calculation of Appellee’s average weekly wage should be based on the full-time weekly wages, including overtime, for the weeks that he did work. Section 440.14(4), Florida Statutes (1977); See Imperial Frame Corp. v. Santos, IRC Order 2-3043 (October 13, 1976). Our review of the record reveals an average weekly wage of $176.81 and a weekly compensation rate of $106.09.

Accordingly, the Deputy Commissioner’s order is modified to reflect an average weekly wage of $176.81 and a resultant weekly compensation rate of $106.09. Otherwise, the order is AFFIRMED.

ROBERT P. SMITH, Jr. and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


text:
    The COCA-COLA COMPANY-FOODS DIVISION (self-insured), Appellant, v. Alfred WARREN, Jr., Appellee.
    No. TT-292.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Jesse F. Sparks, Jr., and Robert E. Sheridan, Orlando, for appellant.
    Edward H. Hurt of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

We reverse and remand for reconsideration of the award of attorney’s fees. See Casings, Florida, Inc. v. Williams, 389 So.2d 705 (Fla. 1st DCA 1980). Otherwise, the order is affirmed. R. H. Coody & Associates, Inc. v. Shelton, 352 So.2d 852 (Fla.1977). See also Redmer Sons Co. v. Waugh, 377 So.2d 815 (Fla. 1st DCA 1979).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr. and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


text:
    LAKE TYLER APARTMENTS and Aetna Insurance Company, Appellants, v. Patricia BURNETTE, Appellee.
    No. TT-301.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Herbert A. Langston, Jr., and James M. Hess, of Driscoll, Langston, Layton & Kane, Orlando, for appellants.
    Sam E. Murrell, Jr., Orlando, for appellee.
   PER CURIAM.

The Deputy Commissioner’s order is amended to provide that temporary total disability payments shall continue so long as the claimant remains temporarily totally disabled. See City of Panama City v. Long, IRC Order 2-3403 (April 19, 1978). Otherwise, the order appealed from is

AFFIRMED.

ROBERT P. SMITH, Jr. and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


text:
    Sandra M. SMITH, Appellant, v. Lynn E. SMITH, Appellee.
    No. TT-311.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Michael Jones, of Selby, Chesser, Win-gard, Barr & Jones, Fort Walton Beach, for appellant.
    Patricia S. Warren, Fort Walton Beach, for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

The Wife appeals from a final judgment of dissolution of marriage, contending that the trial court erred by failing to require the Husband to pay one-half of the ownership expenses on the home during its use and occupancy by the Wife and the minor children; by ordering that one-half of the monthly mortgage payments, taxes, and hazard insurance premiums on the marital home required to be paid by the Wife during her exclusive occupancy will be considered “fair rental” for the use of the Husband’s one-half interest in the property; by awarding only $350.00 per month child support; and by failing to award the Wife’s attorney a reasonable fee for his representation of her in the dissolution of marriage proceedings.

The trial court’s order, in pertinent part, provides:

The Respondent [husband] shall pay to the Petitioner [wife] as and for rehabilitative alimony, a sum equal to one-half of the monthly house payment, including the escrow payment for taxes and insurance, for a period of one (1) year from the date of this decree or until she remarries or moves out of the house, whichever first occurs.
The Petitioner is awarded exclusive possession of the marital homeplace . .. so long as she remains unmarried and maintains the home for the minor children of the parties. The title to the marital homeplace shall be in joint names as tenants in common, and the Petitioner will be required to maintain the mortgage payments, taxes and hazard insurance upon the home during her exclusive occupancy. One-half of the monthly payments will be considered “fair rental” for the use of the Respondent’s one-half interest in the property.

By ordering that one-half of the monthly payments will be considered “fair rental” for the use of the Husband’s one-half interest in the property, the trial court is impermissibly requiring the Wife to build her husband’s equity in the property. Waskin v. Waskin, 346 So.2d 1060 (Fla. 3rd DCA 1977); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). On the contrary, a wife who pays all the ownership expenses on jointly-owned property is entitled to a credit against the husband’s one-half of the proceeds upon the sale of the property. Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979); See Schatz v. Schatz, 356 So.2d 892 (Fla. 3rd DCA 1978). Therefore, we direct that the judgment be amended to provide that the Wife is entitled to a credit against the Husband’s one-half of the proceeds upon the sale of the jointly-owned property-

Considering the circumstances of this case, we find no error in the trial court’s award of child support or in its award of attorney’s fees to the Wife. Accordingly, the judgment as herein amended is AFFIRMED.

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


text:
    STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. Lou KING and Ronnie King, Appellees.
    No. UU-52.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Thomas E. Stone, Madison, and Joseph R. Boyd, of Boyd, Harris & Smith, Tallahassee, for appellant.

      Chriss Walker, Tallahassee, for Lou King, appellee.
   WENTWORTH, Judge.

This is an appeal from an order requiring a portion of child support money, remitted following legal efforts by the Department of Health and Rehabilitative Services, to be paid directly to the custodial parent for current obligations accruing after termination of HRS assistance, although the remaining money was insufficient to reimburse the department for public assistance previously paid on behalf of the dependent child. We affirm.

The legislatively declared public policy behind the child support enforcement provisions of our statutes is to maintain children from the resources of the responsible parents, thereby relieving the burden currently borne by the general citizenry through public assistance programs. § 409.2551, Florida Statutes. The law provides that any payment of public assistance money made for the benefit of any dependent child creates a debt due and owing to the department by the responsible parent. § 409.2561, Florida Statutes. However, that section specifically provides that “[pjriority shall be given to establishing continuing reasonable support for the dependent child.” This provision is not inconsistent with the federal statutes asserted by the department as governing its aid to families with dependent children. 42 U.S.C.A. § 654 provides in pertinent part:

A state plan for child support must — (5) provide that, in any case in which child support payments are collected for a child with respect to whom an assignment under section 602(a)(26) of this title is effective, such payments shall be made to the State .. . and shall not be paid directly to the family except that this paragraph shall not apply to such payments .. . for any month in which the amount collected is sufficient to make such family ineligible for assistance under the State plan - (e. s.)

Upon consideration of the record facts and applicable law, we conclude the trial court here properly ordered that the children’s present support needs were to be met before HRS was reimbursed. The order is accordingly affirmed.

ERVIN and SHAW, JJ„ concur.