author: MILLS, Judge.

text:
    Walter Nevin ACTON, II, Appellant, v. FT. LAUDERDALE HOSPITAL and the Insurance Company of North America, Appellees.
    No. XX-129.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1982.
    Rehearing Denied Sept. 23, 1982.

      Frank E. Maloney, Jr., MacClenny, for appellant.
    Michael H. Lax of Lax & Evans, and Steven P. Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appel-lees.
    David M. Redstone, Tallahassee, John D. Rawls, Jacksonville, Robert B. Scharf of Digiulian, Spellacy & Dichiara, Dennis M. Usdan of Nolan & Usdan, Fort Lauderdale, Richard A. Sicking of Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & DeCastro, Miami, David L. Kahn-of Kahn & Gustafson, Fort Lauderdale, Mary Ann Stiles of Des-chler, Reed & Critchfield, Boca Raton, Joseph A. Linnehan, Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, John M. Abramson of Feldman, Abramson, Smith, • Magidson & Levy, Miami, amici curiae.
   MILLS, Judge.

The issue raised by this appeal is whether Section 440.15(3)(a) and (b), Florida Statutes (1981), is unconstitutional because it denies injured workers equal protection and access to the courts guaranteed by Article I, Sections 2 and 21 of the Florida Constitution (1968), and United States Constitution Amendment XIV, Section 1. Section 440.-15(3)(a) and (b) is constitutional under both the State and Federal Constitutions.

This appeal is from a workers’ compensation order finding that the 25 percent permanent partial disability assigned to Acton’s left lower extremity did not qualify him for permanent impairment benefits under subsection (a), which limits benefits to amputations, 80% or more vision loss, or serious head or facial disfigurement, nor was he entitled to wage loss benefits under subsection (b) because he was earning more wages after the accident than he was earning before the accident.

Acton urges that we restore the common law remedies to workers who suffer permanent injuries, arguing that with the adoption of the comparative negligence rule by the Supreme Court of Florida there is no need for this provision of the Workers’ Compensation Act.

Prior to the 1979 amendments to the Workers’ Compensation Act, Section 440.-15(3), Florida Statutes (1977), provided for the payment of permanent partial disability benefits based on a schedule of specified injuries and on the estimated degree of physical impairment or wage earning capacity. The 1979 amendments deleted these provisions and substituted permanent impairment benefits and wage loss benefits.

Equal Protection

Acton’s argument that the compensation law impermissably distinguishes between those injured employees who do not suffer wage loss and those who do is without merit. If a classification is based on some reasonable basis, if it bears a relationship to a legitimate state purpose, then equal protection is not offended, Carr v. Central Florida Aluminum Products, 402 So.2d 565 (Fla. 1st DCA 1981). The purpose of Florida’s return to wage loss has been explained as:

The wage-loss system, adopted by the new law, is thus a return to the basic philosophy underlying workers’ compensation. Through this change, an attempt is being made to provide equity in compensation; reduce subjectivity in determining compensation; reduce the need for attorney involvement and litigation; reduce “doctor shopping” to obtain higher impairment ratings; provide an incentive for injured workers to return to work; and provide an incentive for employers to provide rehabilitation. Florida is the first state to adopt a comprehensive wage-loss system which substitutes wage-loss and impairment benefits for the injury schedule and diminution of wage-earning capacity.

Sadowski, Herzog, Butler and Gokel, The 1979 Workers’ Compensation Reform: Back to Basics, 7 FSU L. Rev. 641, 652-3 (1975). These are clearly legitimate state interests reasonably furthered by the compensation law, Carr, supra.

One of the amicus curiae seeks to raise the constitutionality of Section 440.-15(3)(b) 3 d. Amici do not have standing to raise issues not available to the parties, nor may they inject issues not raised by the parties. Keating v. State, 157 So.2d 567 (Fla. 1st DCA 1963). Acton has no standing on this issue, Eckerd Corp. v. Coker, 411 So.2d 1026 (Fla. 1st DCA 1982) [7 FLW 731], and has not raised this issue.

Access to Courts

Workers’ compensation is a classic example of a statute which terminated common law remedy, but replaced it with a more efficient, if not as potentially lucrative, remedy and is therefore constitutional. Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). The legislature may not abolish common law or statutory rights without providing some alternative unless there is an overpowering public necessity to do so, Kluger, supra.

Acton argues that the replacement offered for his common law remedy is not in any sense better. This would have been frivolous prior to Florida’s adoption of comparative negligence. Common law tort actions were notorious for their inadequacy in an industrial society, primarily because of the defenses of contributory negligence, assumption of the risk, and fellow employee negligence. See Larson. The Wage Loss Principle in Workers’ Compensation, 6 William Mitchell L. Rev. 501; Sadowski, Workers’ Compensation Reform, supra.

While the adoption of comparative negligence has improved the ability of the tort system to handle industrial accidents, there are still important advantages to the workers’ compensation system, and the 1979 amendments were designed to enhance these. Workers’ compensation provides a more certain, although not as lucrative, payment to the injured worker. Litigation expenses, including those borne by the claimant are reduced by the administrative handling of claims. Litigation delays are also reduced. The cost of inevitable injury is spread throughout the industry. The employee is further benefited by not having any recoverable damages reduced by the proportionate fault of the employee. Certainty and efficiency are given in exchange for potential recovery. This satisfies the requirements of Article I, Section 21, Florida Constitution.

We, therefore, hold that Section 440.-15(3)(a) and (b), Florida Statutes (1981), does not violate the equal protection and access to courts guarantees of the Florida and United States Constitutions.

SHAW and JOANOS, JJ., concur.


source: Caselaw Access Project

author: FERGUSON, Judge. BASKIN, Judge

license: Public Domain

text:
    KENT INSURANCE COMPANY, Appellant, v. GLADES LIQUORS, INC., d/b/a Tiny’s Glades Liquors, Appellee.
    No. 81-1599.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Oct. 1, 1982.

      Walton, Lantaff, Schroeder & Carson and Randall W. Dillard and George W. Chesrow, Miami, for appellant.
    Craig W. Lekach; Stephen T. Maher, Miami, for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The insurer appeals from a partial summary judgment finding liability under the provision of a policy of insurance covering loss from “pillage and looting occurring during and at the immediate place of a riot.” The single issue is whether there were issues of fact that the loss was caused by the riot.

Appellant KENT issued to GLADES LIQUORS an insurance policy which included coverage for risk of loss by riot. The policy did not cover loss for burglary.

Because of civil disturbances in scattered areas of Dade County in May, 1980, a large area of the county was designated a riot zone. Vehicular and pedestrian traffic into those areas was restricted or prohibited and county directives required the closing of all liquor stores and service stations in the designated zone. Appellee’s liquor store was within the geographical zone designated as a riot area.

In the early hours of May 20,1980 thieves broke into appellee’s business premises. A sledge hammer was used to remove a two-foot section of concrete block at the rear of the building. The perpetrators took only the most expensive brands of liquors. The crime was reported to the police at approximately 6:00 a. m. In his report, the investigating officer concluded that the theft was a burglary, describing the modus operandi in police jargon as a “wall job”.

Both parties filed motions for summary judgment supported by affidavits. Appellant’s motion was supported by the investigating officer’s report and affidavit opining that the burglary was unrelated to the riot.

After some on-the-record weighing of conflicting evidence the trial court, in discussing the police officer’s reports, concluded:

THE COURT: —Mulinari, indicates this is a burglary and all earmarks of a burglary and perhaps it’s true, but with clarity, it took place during the riot, in the middle of a riot. Law and order was completely broken down.
I’ll rule for the Plaintiff.

Although the crime occurred during, and in the geographical area of the riot, it does not follow as matter of law that the riot was the direct and proximate cause of the loss. It may also be reasonably inferred from the facts that the loss resulted from the more common burglary hazard. See, e.g., Standard Oil Company of New Jersey v. United States, 340 U.S. 54, 71 S.Ct. 135, 95 L.Ed. 68 (1950) (fact of a collision between a private vessel and government minesweeper performing a warlike operation does not as a matter of law bring loss within “war risk” provision of insurance policy); Airlift International Inc. v. United States, 335 F.Supp. 442 (S.D.Fla.1971); aff’d, 460 F.2d 1065 (5th Cir. 1972) (fact of a mid-air collision between civilian and military aircraft over Republic of Vietnam during period of war was not sufficient to establish that loss resulted from a war risk rather than an aviation risk). A mere showing by the insured that his loss occurred within the wide area of the county designated as a riot zone does not relieve him of his burden to show that the loss comes within the provision affording coverage for direct loss at the immediate place of a riot. There must be evidence of an open and tumultuous disturbance by several persons at the site of the loss. See Hartford Fire Insurance Co. v. War Eagle Coal Co., 295 F. 663 (4th Cir. 1924) (mine fire secretly set in early morning not a result of riot though striking mineworkers created civil commotion in other parts of county).

Because there were material issues of fact in dispute on the question of which event — burglary or riot — was more nearly and essentially connected with the loss as its effectual cause, it was error to enter a summary judgment. See Standard Oil Company, supra. A trial court may not decide disputed issues of fact on a motion for summary judgment. Squitieri v. Aetna Casualty & Surety Company, 382 So.2d 730 (Fla. 5th DCA 1980); Gentile v. Abadessa, 267 So.2d 344 (Fla. 4th DCA 1972); Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264 (Fla. 4th DCA 1971).

Reversed and remanded for further proceedings.

BASKIN, Judge

(dissenting).

I disagree with the majority opinion because, in my view, appellee’s policy covered the theft occurring during and at the place of a riot.

The policy stated:
This policy insures against all direct loss caused by:
# * * * H< *
6. RIOT, RIOT ATTENDING A STRIKE OR CIVIL COMMOTION, including direct loss by acts of striking employees of the owner or tenant(s) of the described building(s) while occupied by said striking employees and shall also include direct loss from pillage and looting occurring during and at the immediate place of a riot, riot attending a strike or civil commotion.

The majority opinion recognizes that the crime occurred during and in the geographical area of the riot, but apparently uncertain as to the proximate cause of the loss, remands for jury consideration. The majority admits that the loss could have resulted from a theft.

I fail to understand how it can be said that a theft, which occurred within an area designated by police as a riot area, does not fall within the coverage of riot insurance, especially when the riot conditions required all of the stores in the area to close and to evacuate their personnel. Although some police protection remained, it is noteworthy that the burglary occurred at the store during the period the owner was forced to remain away and between police inspections.

I see no question remaining for jury consideration. The loss occurred as a direct result of the riot. Fire Association of Phil adelphia v. Evansville Brewing Association, 73 Fla. 904, 75 So. 196 (1917); Allstate Insurance Co. v. Coin-O-Mat, Inc., 202 So.2d 598 (Fla. 1st DCA 1967); Kirshenbaum v. Massachusetts Bonding & Insurance Co., 107 Neb. 368, 186 N.W. 325 (1922).

I would affirm.

      . Section VI(b) of the policy provides:
      RIOT, RIOT ATTENDING A STRIKE OR CIVIL COMMOTION including direct loss by acts of striking employees of the owner or tenant(s) of the described buildings(s) while occupied by said striking employees and shall also include direct loss from pillage and looting occurring during and at the immediate place of a riot, riot attending a strike or civil commotion . . .

      . The store had been burglarized in the same fashion several years earlier.

      .AFFIDAVIT OF CHARLES MULINARI OF THE DADE COUNTY PUBLIC SAFETY DEPARTMENT
      I Charles Mulinari, am the reporting officer, who responded to the scene of the burglary of Glades Liquors. A copy of my report of this incident is attached.
      I investigated the scene of the burglary and determined that this was a burglary, clean and simple.
      I found no evidence, indicating to me, that any public disturbance resulted or was the cause of this particular burglary . . .
      There was no evidence of intentional destruction to the building or its contents, not associated with the breach and entry of the wall and the removal of the selected brands of liquor . . .


author: BARKDULL, Judge.

text:
    William PHILLIPS, Merle Ledbetter, Howard Jones, Monroe Phagan, William Starr, Robert Edwards, Russell Warner, Leonard Michael, Buck McClendon, George Lewis, as Trustees of the International Bridge, Structural, and Ornamental Ironworkers Local 272, Annuity Pay Plan, Appellants, v. Louis OSTRER, Michael Burke, Michael Famiglietti, Thomas Kilgalleon, John Nord, Eugene Bowen, Charles Baker, Martin Bessell, and Robert Sells, individually and as Lead Underwriter for and on behalf of all those certain Underwriters at Lloyds of London, a/k/a Lloyds of London, Ltd., a foreign corporation, and Insurance Company of North America, a foreign corporation, Appellees.
    Nos. 81-1644 to 81-1647.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Sept. 28, 1982.

      Kurzban & Kurzban and Steven M. Weinger, Miami, for appellants.
    Kahn & Gutter and Janis L. Felder and Steven J. Gutter, Fort Lauderdale, Truett & Watkins and Harold Heller, Aronovitz & Weksler and Bernard B. Weksler, Wesley A. Lauer, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Wel-baum, Zook, Jones & Williams and Betsy L. Warwick and R. Earl Welbaum, John M. Goodman, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BARKDULL, Judge.

Appellants, as present trustees of the International Iron Workers Local 272 Pay Plan, brought an action initially on March 13, 1978 against former Trustees of the Plan and an insurance consultant. Amended pleadings added two insurance carriers and ultimately contended that between May 1972 until December, 1974 the former Trustees had committed fraud in paying excess commissions to the insurance consultant by making improper loans of trust funds, by purchasing the wrong type of insurance policies and otherwise breached their fiduciary duties as Trustees. That certain of these acts were covered by policies issued by the insurance carriers. One of these policies was a blanket Honesty Bond issued by the Insurance Company of North America (hereinafter referred to as INA), the other, as a Trustee and Fiduciary policy issued by the Underwriters of Lloyds of London (hereinafter referred to as Lloyds).

Certain of the defendants filed answers raising the defense of statute of limitations, INA defended on the ground that they had no coverage under their policy. Lloyds defended that their policy was void because of a false application made in connection with its issuance.

The pleadings of the plaintiffs alleged that the former Trustees had concealed certain of these acts and they were not discovered until 1976.

Summary judgment was entered in favor of all the Trustees based on the statute of limitations, whether pled by the individual Trustees or not. Summary judgment was entered in favor of the insurance consultant, also, because the statute of limitations had expired even though this defense was not asserted by the salesman. Summary judgment was entered for the two insurance carriers; as to INA, upon a construction of their policy that it did not afford coverage for the causes of action alleged and as to Lloyds because their policy never became effective, having been issued upon a false application.

The appellants filed four appeals from these summary judgments, which were consolidated for record and argument. The appellants urge, first, that the trial court erred in entering a summary judgment for the former Trustees that pled the statute of limitations, because there was a genuine issue of material fact as to concealment, second, that the trial court erred in entering summary judgment for those defendants who had not pled the statute of limitations, third, that the trial court erred in the construction of the INA policy as to coverage, fourth, that the trial court erred in concluding that the application to the Lloyd’s policy was in fact material to its issuance.

We reverse as to all the summary judgments rendered, except that accorded to Lloyds of London.

The evidence is undisputed that, but for the false application, Lloyds would not have issued their policy. Therefore, we sustain the entry of this summary judgment. Life Insurance Company of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967); Arcamonte v. Springfield Life Insurance Company, 353 So.2d 872 (Fla. 3d DCA 1977); Garwood v. Equitable Life Assurance Society of the United States, 299 So.2d 163 (Fla. 3d DCA 1974); Section 627.409 Florida Statutes 1977. As to the entry to the summary judgment finding the causes of action were barred by the four year statute of limitations, the court erred in that there is evidence that certain of the actions occurred within four years of the finding of the initial complaint and therefore, the statute would be inapplicable in the first instance and further that there are material issues of fact as to when the present Trustees should have been put on notice of the alleged wrongful acts. Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979). It was also error for the trial court to grant a summary judgment on the affirmative defense of statute of limitations as to certain of the defendants when this affirmative defense was not pleaded. Affirmative defenses not pleaded are deemed to be waived. Tuggle v. Maddox, 60 So.2d 158 (Fla.1952); Ellis National Bank of Tallahassee v. Davis, 359 So.2d 466 (Fla. 1st DCA 1978); Board of Public Instruction of Collier County v. Travelers Indemnity Company, 190 So.2d 32 (Fla. 2d DCA 1966).

Turning to the summary judgment in favor of INA, the Honesty Bond insured the Annuity fund “against any loss . .. through any fraudulent or dishonest act or acts committed by any of the Employees as defined in Section 3. . . . ” Section 3 defined Employee as “persons (except . . . trustees of the Insured . . . who are not also officers or employees thereof in some other capacity).” This definition was broadened by a Rider, which stated as follows:

The word “Employee” ... shall also include any natural person who is a director, trustee, manager, officer or employee of any Employee Welfare or Pension Benefit Plan covered under the attached bond or policy, while such person is engaged in handling funds or other property of such plan.

The appellants contend that the trial court erred in holding that there was no coverage when the Trustees acted collectively. It being the contention of the carrier that it was only liable when a Trustee acted individually. We find this position of the carrier to be in_error, either in that it defeats the purpose of the policy or is an ambiguous provision which should be construed against the carrier and in favor of coverage. Zautner v. Liberty Mutual Insurance Company, 382 So.2d 106 (Fla. 3d DCA 1980); Drisdom v. Guarantee Trust Life Insurance Company, 371 So.2d 690 (Fla. 3d DCA 1979); Travelers Insurance Company v. Smith, 328 So.2d 870 (Fla. 3d DCA 1976).

Therefore, for the reasons above stated all summary judgments under review are hereby reversed except that granted Underwriters of Lloyds of London which is affirmed. The matter is returned to the trial court for trial on the issues as made between the parties, save and except the defendants, Lloyds.

Affirmed in part, reversed in part and remanded with directions.

      . INA urges lack of proper notice, however, they first denied coverage on other grounds and the record failed to show any prejudice caused by any delay which would defeat a claim. Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla. 1969); Hartford Accident and Indemnity Company v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974); Swiss National Insurance Company, U. S. A., v. Martorella, 239 So.2d 144 (Fla. 4th DCA 1970).


author: PER CURIAM.

text:
    Mario PEREZ, Miguel Diaz, Domingo Morejon, Rolando Alonso and Francisco Hidalgo, Appellants, v. The STATE of Florida, Appellee.
    No. 81-1769.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Sept. 22, 1982.
    Cohen, Kokus & Ostrow and George A. Kokus, Miami, for appellants.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fla. R. Crim. P. 3.190(c)(4); State v. Aaron, 409 So.2d 1214 (Fla. 2d DCA 1982); State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982); State v. Holder, 400 So.2d 162 (Fla. 3d DCA 1981); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). State v. Benitez, 395 So.2d 514 (Fla. 1981).


author: HENDRY, Judge.

text:
    Isaac BEN-HAIN, Benjamin Ben-Hain, and Chikos Lindos, Inc., a Florida corporation, Appellants, v. Alberto TACHER, Appellee.
    No. 81-1955.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Sept. 24, 1982.
    Lopez & Harris, Burnett Roth, Miami, for appellants.

      Hersh & Bernstein and Brian Hersh, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   HENDRY, Judge.

Appellants Isaac and Benjamin Ben-Hain appeal from a final judgment entered upon a master’s report in plaintiff Tacher’s suit alleging illegal and fraudulent actions by the Ben-Hains in connection with the defendant corporation in which the parties were stockholders and officers.

At the agreement of the parties and in-accordance with Florida Rule of Civil Procedure 1.490, the trial court referred the cause to a general master for resolution. Following a three day hearing during which testimony and evidence were presented, the master submitted findings and recommendations in favor of Tacher and assessed damages against the individual appellants. Appellants excepted to the master’s report and moved for rehearing. At the hearing on the motion, appellants presented the court with an excerpt from the transcript of the proceedings before the master. The trial judge, after explaining that the parties had agreed to refer the dispute to the master whose findings were entitled to the same weight as a jury verdict and he would not redecide the entire case since the appellate court would correct any error, did agree to review the excerpted transcript which contained the master’s findings and recommendations, to determine whether they were in conformity with the master’s submitted order and recommendations. The final judgment entered by the court affirmed the master’s recommendations in full. The court thereafter denied appellants’ motion for reconsideration on rehearing and this appeal followed.

Appellants’ sole contention on appeal is that the trial court’s refusal to consider the exceptions raised to the master’s report, or to determine the issues of fact or of law constituted an improper delegation of judicial power to the general master.

They argue that the trial court must examine and consider evidence and determine whether entry of the master’s recommended decree is justified rather than simply rubber-stamping the master’s actions.

Appellants correctly assert that where a cause is referred to a master, unless the parties have stipulated otherwise, the trial court has a duty to examine and consider the evidence for itself and determine whether under the law and facts the findings and recommendations of the master are justified prior to entry of a final judgment in accordance with the master’s report. Lyon v. Lyon, 54 So.2d 679 (Fla. 1951); Little v. Little, 325 So.2d 424 (Fla. 3d DCA), cert. denied, 341 So.2d 1083 (Fla. 1976); Bell v. Bell, 307 So.2d 911 (Fla. 3d DCA 1975). It is also well-settled law, however, that a master’s report is clothed with a presumption of correctness and should be approved and adopted by the trial court unless clearly erroneous or unless it appears that the master has misconceived the legal effect of the evidence. Hemminger v. Hemminger, 391 So.2d 254 (Fla. 4th DCA 1980), petition for review denied, 399 So.2d 1143 (Fla. 1981); Shaw v. Shaw, 369 So.2d 81 (Fla. 3d DCA 1979); Ciccarelli v. Ciccarelli, 352 So.2d 1204 (Fla. 4th DCA 1977).

It follows that where an appellant challenges the sufficiency of the evidence, he has the burden of bringing before the court a complete record of the previous proceedings and in the absence of a complete record, the court must presume that there was sufficient evidence and testimony presented to support the findings made. Firkel v. Firkel, 391 So.2d 351 (Fla. 5th DCA 1980). Accordingly, where no record exists from which it can be shown that the master’s findings are clearly erroneous, or that the master has misconceived the legal effect of the evidence, the trial court is obligated to accept the master’s findings. Sitomer v. Sitomer, 397 So.2d 373 (Fla. 4th DCA 1981); Claughton v. Claughton, 347 So.2d 437 (Fla. 3d DCA 1977).

Here, appellants’ failure to provide the trial court with a complete transcript of the proceedings before the master left the trial court no choice but to accept the master’s report. The trial court’s access to other portions of the record, without knowledge of the actual evidence and testimony presented to the master, is insufficient to enable the trial court to determine whether the master’s findings were justified.

Finding no reversible error in the trial court’s entry of judgment on the master’s recommendations and denial of exceptions to the report, we affirm the final judgment below.

Affirmed.

      . Appellants have not presented their specific objections to the master’s report to this court.

      . Indeed, although appellants sought extensions of time in which to file their brief in this court on the basis that the transcript was incomplete, it appears that the transcript has yet to be included in the record.


author: BASKIN, Judge.

text:
    BISCAYNE ROOFING CO., a Florida corporation, Appellant, v. PALMETTO FAIRWAY CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Porter-Russell, a Florida corporation, and Everett S. Emerson, a Florida corporation, Appellees.
    No. 81-2611.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Sept. 24, 1982.

      Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Lawrence G. Ropes, Jr., Coral Gables, Valdes-Fauli, Richardson & Cobb and William C. Crenshaw, Miami, R.W. Rivenbark, South Miami, for appellees.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

We affirm the portion of the amended final judgment which found subcontractor Biscayne Roofing liable for damages related to the replacement of a roof it installed on Palmetto Fairway Condominium. The damages resulted from Biscayne’s substitution of materials without authorization. Upon discovering the defect, and within the applicable period of limitations, section 95.-ll(3)(c), Florida Statutes (1975), the condominium association filed an action based upon negligence and breach of warranties.

We concur in the trial court’s finding that Biscayne breached its express warranty as well as its implied warranties of fitness and merchantability. Accord Green-way Village South Condominium Associations I, II, III & IV, Inc. v. Roach, 397 So.2d 954 (Fla. 4th DCA), pet. for rev. denied sub nom. Integon General Insurance Corp. v. Greenway Village South Condominium Associations I, II, III & IV, Inc., 408 So.2d 1093 (Fla. 1981). We also agree that Biscayne is liable for its negligent construction. See Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979); Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978). Although damages may also be recovered from a developer for negligent construction of a condominium, see Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981); Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979), the court found that Porter-Russell, the owner-developer of the condominium engaged in no independent act of negligence. Nevertheless, the court determined that Porter-Russell was vicariously liable to Palmetto for Biscayne’s negligence; that Emerson, the general contractor, was vicariously liable to Porter-Russell for Biscayne’s negligence; and that Biscayne therefore must indemnify Emerson, which in turn must indemnify Porter-Russell. General Portland Land Development Co. v. Stevens, 395 So.2d 1296 (Fla. 4th DCA 1981); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980). Indemnification is appropriate when the indemnitees are faultless and the indemnitor is at fault. General Portland Land Development Co. v. Stevens, supra; accord Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla. 1979); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., supra; see F & R Builders v. Lowell Dunn Co., 364 So.2d 826 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 468 (Fla. 1979).

With regard to the cross-appeal, we find error in the amount of attorney’s fees awarded. Unrebutted expert testimony called for an award between $19,000 and $25,000. The trial court’s award of $10,000 is not supported by the record and constitutes an abuse of discretion. We reverse under the authority of Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla. 3d DCA 1979); accord March v. March, 395 So.2d 200 (Fla. 3d DCA 1981); Cowart v. Gilson, 271 So.2d 821 (Fla. 1st DCA 1973); Canal Authority v. Ocala Manufacturing Ice & Packing Co., 253 So.2d 495 (Fla. 1st DCA 1971), cert. denied, 259 So.2d 715 (Fla. 1972).

Affirmed in part, reversed in part, and remanded for redetermination of the amount of attorney’s fees.

      . We reject Biscayne’s assertion that the leaks gave rise to a cause of action at an earlier date.


text:
    James Preston BONNER, Appellant, v. Jennie Elizabeth BONNER, Appellee.
    No. 81-2636.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    Rehearing Denied Sept. 24, 1982.
    Slaughter & Slaughter and William R. Slaughter, Live Oak, for appellant.
    Sylvester P. Adair, Homestead, for appel-lee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Locke v. Locke, 413 So .2d 431 (Fla. 3d DCA 1982).


author: BERANEK, Judge.

text:
    Harold J. POHLAD, Appellant/Cross Appellee, v. FIRST NATIONAL BAR AND GRILL, INC., a Florida corporation, Phillip J. Romano, William A. Lord, Paul L. Gaulden, Charles R. McGraw, E. Llwyd Ecclestone, Jr., Appellees, and William A. Lord and Lord Chumley’s of West Palm Beach, Inc., Cross Appellants.
    No. 81-365.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 30, 1982.

      F. Kendall Slinkman, West Palm Beach, for appellant.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellee/cross appellant, William A. Lord.
    Steven J. Greenwald of L. M. Taylor, Lawyers, North Palm Beach, for ap-pellee/cross appellant, Lord Chumley’s.
    Edna L. Caruso, West Palm Beach, and Slawson & Burman Law Offices, North Palm Beach, for appellee, Llwyd Ecclestone, Jr.
   BERANEK, Judge.

This complex litigation concerns the financial transactions surrounding the opening and closing of four restaurants in the Forum III building in West Palm Beach. The parties in this suit are Ecclestone, the former owner and building manager of Forum III, the various corporations which operated the four restaurants, and the individuals involved in the management and financial backing of these restaurants. The first restaurant to open in the Forum III was the First National Bar and Grill, managed by Phillip J. Romano. In order to finance this endeavor, its corporation, the First National Bar and Grill, Inc., executed a promissory note for $160,000 to the First State Bank of Lantana. Four individuals endorsed this note, Romano, William Lord, Paul Gaulden, and Charles McGraw. Harold Pohlad signed a separate guarantee in favor of the Bank as to any loans by the Bank to the corporation. The corporation also pledged personal property of the restaurant, such as the piano, furniture, dishes, glasses, silverware, freezers, stoves, kitchen utensils, and all other items necessary for restaurant operation, to secure the note. The restaurant was a financial failure and Ecclestone commenced eviction proceedings. A settlement was reached whereby Ecclestone cancelled the restaurant’s lease in return for a $35,-000 promissory note from Romano and a bill of sale conveying to Ecclestone all of the assets of the restaurant, including the personal property securing the note.

Subsequently, a new corporation, At The Forum, Inc., was formed and a second restaurant, Fisherman's Wharf, opened at the site. Ecclestone leased the personal property to the new restaurant with an option to purchase. No disclosure was made of the Bank’s security interest and no notice given of the transfer. A short time later, Eccle-stone sold Forum III to Forum III Associates and assigned At The Forum’s lease to the new owners. Fisherman’s Wharf also failed financially, and Lord Chumley’s Pub agreed to move in as the third restaurant. Forum III cancelled At The Forum’s lease and entered into a direct lease with Lord Chumley’s of West Palm Beach, Inc., in which Forum III Associates warranted title to both the building and the assets. When Lord Chumley’s failed, it sold the personal property lease to the Stutz Club which took over operation of the restaurant. The Stutz Club also failed financially. During these complex transactions, a default on the $160,000 note occurred. Pohlad paid off the Bank and took an assignment of the note and the security agreement.

Eventually, suit was filed. Plaintiff, Pohlad, as assignee of the $160,000 promissory note secured by the personal property, sued the maker of the note, First National Bar and Grill, Inc., and the four endorsers, Lord, Gaulden, McGraw, and Romano, for default in payment. Pohlad also brought suit against defendants, Ecclestone, Lord Chumley’s and the Stutz Club, for the wrongful detention of the personal property which secured the promissory note. Prior to trial, default judgments were entered against First National Bar and Grill, Inc., McGraw, and Gaulden for failure to answer. Defendant, Romano, was voluntarily dismissed because he could not be served with process. Lord answered and by way • of defense claimed his liability for costs and expenses was limited. After an extensive non-jury trial, a judgment was entered which awarded Pohlad $108,948.91 against the defaulted defendants; $27,237.23 against these defendants and Lord; and $20,000 against Lord Chumley’s, the total amount to be recovered not to exceed $136,-186.14, plus interest.

On appeal, Pohlad contends that the trial court erred in awarding him only $27,237.23 as against the defendant, Lord, and in failing to award judgment against Ecclestone. Lord and Lord Chumley’s cross appeal. Lord claims the trial court erred in denying him credit for amounts he allegedly paid against the note. Lord Chumley’s asserts error in the court’s finding of $20,000 in waste. This latter finding related to Lord Chumley’s depletion in the value of the personal property securing the note.

As to Pohlad’s first argument, the award against Lord equaled one-fifth of the entire amount due on the note. The trial court expressly ruled Lord was entitled to a set-off under Section 46.011, Florida Statutes (1979). This statute provides for contribution among sureties, accommodation joint makers, and accommodation endorsers. Initially, we find that Lord did not rely on this statute in his answer and claim for a set-off, and thus the trial court erred in applying Section 46.011 in the absence of a basis in the pleadings. Furthermore, even if the statute had been properly pled, it would not have been applicable under the particular circumstances of this case. Lord contends that Pohlad and the other three individual defendants were equally responsible for payment of the promissory note. He relies on the fact that Pohlad gave a general guarantee to the Bank in a separate document. Lord argues the four persons signing the note and the fifth person who guaranteed the debts of the corporation are each equally liable for only one-fifth of the amount of the note. The note, however, speaks for itself. Lord, Romano, McGraw, and Gaulden signed the note as endorsers; Pohlad did not. The payee on the note, First National Bank of Lantana, assigned the note for consideration to Pohlad. Poh-lad was not a co-surety or accommodator with the other defendants within the contemplation of the statute for purposes of contribution. His obligation did not relate to the particular note signed by the other four endorsers. As the assignee/payee of the note, Pohlad could sue any or all of the endorsers for the entire amount of the note as each endorser was jointly and severally liable for the full amount. See Section 673.414, Florida Statutes (1979). We hold that the trial court erred in allowing a set-off and in not awarding Pohlad judgment against Lord for the entire amount. We take no position as to Lord’s rights against the other endorsers on the note.

As to Lord’s cross appeal, it is without merit. Lord claims credit for the various payments allegedly made in a series of complex transactions with Pohlad. The court found against Lord on these claims, which were basically fact questions, and cross appellant, Lord, has not demonstrated error.

Pohlad’s second contention is that the trial court erred in failing to award judgment against Ecclestone. As stated above, the promissory note was secured by tangible personal property. The property consisted of restaurant equipment and furnishings located in the restaurant at the Forum III. When the initial restaurant failed, Ecclestone purchased the personal property with knowledge of the security interest held by the Bank. Thereafter, the property was leased and sold a number of times. Pohlad asserts Ecclestone’s manner of dealing with the security property subjected Ecclestone to liability for various violations of the Uniform Commercial Code. However, Pohlad’s complaint was for wrongful detention of the property. He did not allege any applicable UCC violations, and, therefore, cannot argue these violations for the first time on appeal. Dober v. Worrell, 401 So.2d 1322 (Fla. 1981). Both parties gave conflicting testimony as to wrongful detention and waste and the trial court found as a fact that Ecclestone did not commit waste as to any of the property. The trial court’s finding was supported by competent, substantial evidence, and we find no error.

Lord Chumley’s cross appeals stating the trial court erred in finding that it destroyed, wasted, or lost a substantial portion of the personal property which secured payment of the note while the property was within its control. There was conflicting evidence of waste as to the property in question after the suit was filed, and we find no error in the trial court’s finding.

The judgment of the trial court is reversed as to Lord and remanded with instructions to enter final judgment against defendant, Lord, in the amount of $136,-186.14, plus interest. The judgment is affirmed in all other respects.

AFFIRMED IN PART; REVERSED IN PART.

GLICKSTEIN and HURLEY, JJ., concur.

      . We are frankly unable to understand the nature of this defense as it relates to “costs and expenses.”


author: HURLEY, Judge.

text:
    FIRST STATE INSURANCE COMPANY, Appellant, v. Daniel STUBBS, Appellee.
    No. 80-1621.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Rehearings Denied Sept. 21, 1982.

      Marilyn Pardo Liroff, of Weaver & Weaver, P.A., Fort Lauderdale, for appellant.
    Richard A. Barnett, Hollywood, and Jon E. Krupnick, of Krupnick & Campbell, P.A., Fort Lauderdale, for appellee.
   HURLEY, Judge.

First State Insurance Company (First State) appeals a summary judgment finding that it, as an excess liability carrier, is liable to provide underinsured motorist coverage for appellee Daniel Stubbs. We affirm in part and reverse in part.

Daniel Stubbs was employed by the Bro-ward County Sheriff’s office. While engaged in activities within the scope of his employment, he was seriously injured in an auto accident. The driver of the other automobile had $10,000 in liability coverage. Stubbs’ damages substantially exceeded this amount. Consequently, Stubbs sued his employer’s liability insurers, seeking under-insured motorists’ coverage for his injuries.

The Broward County Sheriff’s office maintained three policies. The first, with Consolidated Mutual Insurance Company, (Consolidated), provided comprehensive auto liability coverage of $25,000 per person/$50,000 per incident with identical amounts of uninsured motorists’ coverage. A second policy, underwritten by Midland Insurance Company, (Midland), provided excess liability coverage of $100,000/$300,-000. The third layer of coverage, written by appellant, First State, provided excess automobile coverage from $100,000 to $2,000,000.

The Sheriff’s office accepted Consolidated’s offer of uninsured motorists’ coverage. At about the same time, the Sheriff’s office rejected Midland’s written offer of uninsured motorists’ coverage of $100,000/$300,-000. First State Insurance Company never offered uninsured motorists’ coverage to the Sheriff’s office.

The undisputed facts at the motion for summary judgment indicated that First State’s policy limited its liability to $2,000,-000 in excess of either (1) amounts recoverable under the underlying automotive liability insurance ($100,000) or (2) $10,000, as the ultimate net loss resulting from any one occurrence not covered by the underlying insurance. Since the court found that First State had failed to offer uninsured motorist coverage, it determined, as a matter of law, that the policy provided $10,000 to $2,000,-000 coverage. It reached this decision by concluding that the accident was an “occurrence not covered by the underlying insurance.”

We agree with the trial court’s determination that First State’s failure to offer uninsured motorists’ coverage equal to its excess liability coverage violated Section 627.727(1), Florida Statutes (1971). That statute required insurance companies to offer uninsured motorists coverage up to 100% of the amount of any liability coverage. Failure to offer uninsured motorists coverage obligates the insurer to provide such coverage in an amount equal to the liability coverage. Aetna Casualty and Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA), cert. denied, 336 So.2d 1179 (Fla. 1976); Lumbermen’s Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978).

We cannot agree, however, with the trial court’s determination of First State’s bottom limit of liability, i.e., $10,000. Section 627.727(1), Florida Statutes (1971), required First State to include uninsured motorist coverage in limits no less than the liability limits, unless rejected by the insured. Since First State failed to comply with the statute, the trial court appropriately employed the remedial device of construing the policy to provide uninsured motorist coverage. But the court erred by requiring First State to shoulder a heavier burden than would have been imposed by the statute in the first instance. First State’s excess policy provided a bottom limit of $100,000 for bodily injury coverage. Yet the trial court went below this figure and established a $10,000 base. We think this was incorrect. First State’s uninsured motorist coverage is coextensive with its liability coverage and, therefore, we hold that First State’s excess indemnity policy provides uninsured motorist coverage for any damages sustained by Mr. Stubbs over and above $100,000.

Accordingly, the judgment is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

DOWNEY and BERANEK, JJ., concur.


author: SHARP, Judge.

text:
    J. R. LEDBETTER, M.D., Appellant/Cross-Appellee, v. Kenneth A. TODD, Appellee/Cross-Appellant.
    No. 81-364.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    E. Clay Parker and Randa M. Owen, of Parker, Johnson, Owen & McGuire, P.A., Orlando, for appellant/cross-appellee.
    Arthur J. Ranson and Mitchell J. Frank, of Robertson, Williams, Duane, Lewis & Ranson, P.A., Orlando, for appellee/cross-appellant.
   SHARP, Judge.

Dr. Ledbetter (the defendant below in a malpractice case) and Todd (the plaintiff) both appeal from a final judgment after a jury trial which awarded Todd twenty two thousand nine hundred dollars ($22,900) in compensatory damages. The judgment was reduced to eleven thousand four hundred fifty dollars ($11,450) because of Todd’s own negligence. Ledbetter argues there was insufficient evidence to support the jury’s finding of negligence on his part, and that he was a proximate cause of Todd’s injuries. Todd cross-appeals the trial court’s failure to award him any medical mediation expenses, and its denial of his motion for additur or new trial because the jury failed to award him any damages for past or future pain and suffering. We affirm the judgment on the verdict, but we agree that Todd’s two points raised on cross-appeal have merit.

The evidence which tended to establish negligent treatment and, in turn, its proximate causation of Todd’s injuries in this case was marginal. But on balance we conclude that these issues were properly sent to the jury for resolution. Todd suffered at work a severe comminuted fracture of his left elbow. He is a young man, and earns his living by manual labor. There were three possible courses of medical treatment then available: do nothing for a time to see how severly the joint was damaged; fuse the bones in the arm, which would make the elbow unbendable; or replace the elbow with a false joint, called a Coonrad device. Dr. Ledbetter elected the third alternative and the evidence is unre-butted that Todd objected to the fusion alternative. The first operation- was not successful, and Dr. Ledbetter did a second surgery, which necessitated removal of additional bone from Todd’s arm.

Todd’s expert witness testified that the selection of a Coonrad device was not appropriate in this case because: (1) Todd is a young man, (2) as a manual laborer he needs strength in his arm which the Coon-rad does not allow; and (3) the success rate for this kind of operation is low. The witness also testified Dr. Ledbetter did not wait long enough before going ahead with the surgery and that the second surgery should not have been undertaken because the additional removal of bone from Todd’s arm made fusion now impossible. The prognosis for Todd’s use of his arm was poor.

The jury concluded that both Dr. Ledbetter and Todd contributed in part to the worsened present condition of Todd’s arm. Compensatory damages were apportioned accordingly. However, the jury awarded nothing for pain and suffering present or future. This cannot be sustained given the logic of the jury’s other findings. See Stevens v. Mount Vernon Fire Insurance Co., 395 So.2d 1206 (Fla. 3d DCA 1981); Anderson v. Chirogianis, 384 So.2d 1289 (Fla. 5th DCA 1980); Meana v. St. Petersburg Kennel Club, Inc., 279 So.2d 329 (Fla. 2d DCA 1973). Even if the jury concluded that, whatever treatment was selected, future pain was unavoidable given the nature of the injury, the two surgeries must have caused some amount of pain and suffering Todd would not otherwise have experienced.

We also conclude that the lower court should have awarded Todd the reasonable costs and expenses of the medical mediation process then required for the plaintiff.

Accordingly, this case is remanded to the trial court for reconsideration of Todd’s motion for additur.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

DAUKSCH and COBB, JJ., concur.

APPENDIX

VERDICT

We, the jury, return the following verdict:

1. Was there negligence on the part of the Defendant, Dr. J. R. Ledbetter, in failing to diagnose and/or properly treat the fracture of the elbow which was the legal cause of loss, injury or damage to the Plaintiff, Kenneth A. Todd?

ANSWER: _No

2. Was there negligence on the part of the Defendant, Dr. J. R. Ledbetter, in performing unnecessary and inappropriate surgical procedures on or about February 16, 1976, and/or May 5, 1976, which was the legal cause of loss, injury or damage to the Plaintiff, Kenneth A. Todd?

ANSWER: Yes

If your answers to questions 1 and 2 are NO, your verdict is for Defendant, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 or question 2 is YES, please answer question 3.

3. Was there negligence on the part of the Plaintiff, Kenneth A. Todd, which was a legal cause of his loss, injury or damage.

ANSWER: Yes

If your answer to question 3 is YES, please answer question 4.

4. State the percentage of any negligence that you charge to:

Defendant, Dr. J. R. Ledbetter 50 %
Plaintiff, Kenneth A. Todd 50 %

5. What is the total amount of damages (100%) sustained by the Plaintiff, Kenneth A. Todd, and caused by the incident or incidents in question?

TOTAL DAMAGES OP PLAINTIFF,
KENNETH A. TODD & 22.900.00

In determining the total amount of damages, do not make any reduction because of the negligence, if any, of Plaintiff, Kenneth A. Todd. If you have found Plaintiff Todd negligent in any degree, the court in entering the judgment will reduce Plaintiff Todd’s total amount of damages (100%) by the percentage of negligence which you found was chargeable to him.

Of the total damages set forth above, please itemize how much of the said total is intended to compensate the Plaintiff for each of the following:

(a) Amount intended to compensate for reasonable expenses for necessary hospital and medical care and treatment.
(1) Amount incurred to date $ 10.500.00
(2) Amount to be incurred in the
future ¡6 4.600.00
(b) Amount intended to compensate for lost working time or loss of earning capacity:
(1) Amount incurred to date $ 5.200.00
(2) Amount to be incurred in the
future $ 2.600.00
(c) Amount intended to compensate for pain and suffering, disability, disfigurement, mental anguish and for loss of capacity for the enjoyment of life.
(1) Amount incurred to date $ -0—
(2) Amount to be incurred in the
future $ -0-
(d) With respect to the amounts set forth above which are intended to compensate the Plaintiff for future damages, please set forth the number of years over which the amounts are intended to provide compensation.

Number of years 1 (One)

SO SAY WE ALL, this 12th day of December, 1980.

      . The Special Verdict form used in this case is set forth in Appendix.

      . Daniels v. Weiss, 385 So.2d 661 (Fla. 3d DCA 1980); Groves v. Leo, 367 So.2d 1031 (Fla. 4th DCA 1979); O'Conor v. Dep’t of Transp., 364 So.2d 84 (Fla. 3d DCA 1978); Hunt v. Palm Springs Gen. Hosp., 352 So.2d 582 (Fla. 3d DCA 1977); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

      . In Carter v. Sparkman, 335 So.2d 802 (Fla. 1976), our Supreme Court held that the Medical Mediation Act was facially constitutional and noted: “We realize that certain items of expense in relation to the mediation attempts will be incurred, but it would naturally follow that such expenses to the extent of reasonableness would become a part of the costs of the judicial proceedings, taxable against the losing party.” id. at 805. While the Supreme Court subsequently held that the Medical Mediation Act was unconstitutional as applied in Aldana v. Holub, 381 So.2d 231 (Fla. 1979), Aidana was applied prospectively by the court and should not be construed to deny prevailing parties the reasonable costs incurred when medical mediation was mandatory.


author: COBB, Judge.

text:
    Clarence Albert ZACKE, Appellant, v. STATE of Florida, Appellee.
    No. 81-859.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 3, 1982.

      Joe M. Mitchell, Jr., and H.S. Henderson, III, Melbourne, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The defendant/appellant, Clarence Albert Zacke, was charged with and convicted of solicitation to commit first-degree murder and conspiracy to commit murder. Zacke raises twelve points on appeal. We find no merit in, nor necessity to discuss, any of these points other than Points X and XI.

The underlying facts, as indicated by the state’s evidence, show that Zacke attempted to procure the murder of one Kenneth Mer-rithew, a key witness in a pending drug case against Zacke. At trial one Gregg Bacon testified that he was approached by Richard Lee Hunt, the alleged co-conspirator and solicitee, in September, 1980, and offered the contract for a hit to be carried out. Bacon then went to law enforcement officials with the plan, and they subsequently contacted Hunt to obtain his cooperation in making a case against Zacke.

Detective Rheuben McGee, of the Melbourne Police Department, testified that he met with Hunt after he had been informed of the offer made by Hunt to Bacon. McGee offered Hunt a chance to avoid criminal charges by cooperating with the police. McGee testified that he instructed Hunt to set up a meeting with Zacke and obtained Hunt’s written consent for the placing of an electronic listening device on his person. Following McGee’s instructions, Hunt met with Zacke at the home of one Roger Williams on September 19, 1980, and again on September 22, 1980, the latter time in Zacke’s truck in a parking lot. Both these meetings were taped. McGee testified he gave instructions to Hunt as to when the meetings were to occur and that his prime function was to get any statements incriminating Zacke for the solicitation and conspiracy charge, but that he did not preclude Hunt getting information on Zacke’s drug charges.

Roger Williams testified that he initially talked to Zacke in May or June of 1980, at which time Zacke was looking for someone who could “break fingers.” Williams attempted to get in touch with a known enforcer, but that attempt failed. On September 14, Williams testified that Zacke called him, telling him that he had witness problems once again. Hunt happened to be present at Williams’ house at the time of the phone call and Williams told Zacke that Hunt had similar problems, and knew people who could take care of them. He then testified he informed Hunt that Zacke wanted to talk to Hunt about what people he knew. Later that day, Zacke and Hunt met at Williams’ home. Williams testified that they discussed different methods of enforcement, with Zacke saying, “I don’t want bones broken, I want to make an example of this guy.” Hunt replied, “Okay,” and Zacke then said he wanted the witness dead. Hunt’s reply to this was, “No problem, I can handle it.” Williams further testified that Zacke identified the victim as a pilot who was supposed to fly some pot for him and who was going to testify. The meeting ended with mutual promises to stay in touch between Zacke and Hunt.

A subsequent meeting was set up for September 19,1980, at which meeting Hunt was wearing a “body bug.” The jurors, listening to the tape at trial, heard Hunt and Zacke agree on a $5,000 price tag for the murder, and heard Zacke give a complete description of where Merrithew could be found and the kind of car he drove, as well as his name, which Zacke clearly spelled out for Hunt. Zacke said he wanted to read about the murder in the headlines, and that he did not have much concern if Merrithew’s children were killed as well. A tape of the September 22 meeting was also played for the jury. At that meeting, Hunt told Zacke the job was done, and he wished to collect.

Hunt, who was scheduled to testify against Zacke at his trial in April, 1981, is missing and presumed dead. Evidence proffered outside the jury’s presence indicated Hunt’s unavailability as a witness was procured by the defendant. The evidence that Hunt’s disappearance was due to Zacke having had him killed was:

(A) One David Russell Burton testified that on February 2, 1981, he met with Zacke in a car outside a Melbourne restaurant, at which time the latter was nervous and tense. Zacke said he had taken care of some business the preceding Thursday (January 29). In response to a question by the prosecutor as to Zacke’s specific statement, Burton’s response was: “Something entailed that he had taken care of a witness against him . . . and then he had to drop a car off at Roger’s place.” Roger was identified as Roger McLaughlin, the operator of an automobile junk business in Kissimmee, Florida. Zacke said he had paid a “key of cocaine” for the job.

(B) Roger McLaughlin confirmed that Zacke had left a 1975 Toyota Célica with him with instructions to demolish it completely. McLaughlin’s girlfriend corroborated Zacke’s delivery of the Toyota to the junkyard.

(C) The state adduced credible evidence that the Toyota Célica belonged to Hunt and that Hunt had not been seen by any friends or associates since January 28, 1981, and that the state had been unable to find him for trial.

(D) One Stephen Bailey testified that he had been an inmate in the Brevard County Jail on February 2, 1981, at which time he first met Zacke as a cellmate. Zacke told Bailey that he had hired Hunt to get rid of an airplane pilot, but then Hunt had gone to the police. This resulted in Zacke going to a man named Clark. Bailey testified: “So, the conversation with William Chansey Clark was about getting rid of Dicky Hunt. Mr. Zacke said that he, at the meeting, that he had, told Mr. Clark that it wouldn’t hurt his feelings any at all if Dicky Hunt was gotten out of the picture; that Mr. Clark said that he would take care of it if Zacke could supply an automatic pistol with a silencer.” After several more meetings, Zacke told Clark not to go ahead with it.

Bailey further testified from his jail cell conversations with Zacke that “the man he had eventually hired to get rid of Dicky Hunt had insisted that he drive the car from Tampa to the junkyard.” Zacke expressed concern that the police would trace the Toyota and find that he had driven it to McLaughlin’s junkyard. He had instructed McLaughlin to burn the Toyota and pour battery acid over it, paying particular attention to identifying marks and numbers, and then to crush the car. Zacke said he wasn’t concerned about Hunt’s body being found, and that he had been able to hire Hunt’s killer at a cheaper price than he usually received because of Zacke’s long association with him.

The appellant’s first point on appeal which we consider is the assertion that the trial court erred in refusing to suppress the taped conversation between the defendant Clarence Albert Zacke and then government agent Richard Lee Hunt which were obtained in violation of the defendant appellant’s Article I, Section 12, rights under the Florida Constitution. In this regard, appellant argues that this provision affords greater protection to individual defendants against electronic interception of communications for evidentiary purposes than any such protection afforded by federal guidelines, constitutional or statutory. He cites the landmark case of State v. Sarmiento, 397 So.2d 643 (Fla. 1981), holding section 934.03(2)(c), Florida Statutes (1977) unconstitutional “insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home. . .. ”

Appellant acknowledges that Sar-miento dealt expressly with a warrantless interception in a defendant’s home, but argues that its application should be extended to the home of a defendant’s friend (i.e., Williams) and the defendant’s truck. The argument is that in such places there is a reasonable expectation of privacy in the intercepted communication, and that this approach is supported by the rationale of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Katz analysis was specifically adopted by the Florida Supreme Court. Sarmiento, 397 So.2d at 645.

Subsequently, a series of district court of appeal opinions have limited application of Sarmiento to the home of a defendant. See Ruiz v. State, 416 So.2d 32 (Fla. 5th DCA 1982) (Sarmiento not applicable to conversation in a parking lot); Miller v. State, 411 So.2d 944 (Fla. 4th DCA 1982); Hurst v. State, 409 So.2d 1059 (Fla. 1st DCA 1982) (body bug used by undercover agent in defendant’s pick-up truck produced admissible evidence); Morningstar v. State, 405 So.2d 778 (Fla. 4th DCA 1981) (not applicable in home of co-defendant); Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981) (Sarmien-to inapplicable to motel room); Pittman v. State, 397 So.2d 1205 (Fla. 1st DCA 1981), review denied, 407 So.2d 1105 (Fla. 1981) (Sarmiento not controlling when conversations took place in a restaurant, an outdoor rural setting and the defendant’s truck).

Now the Florida Supreme Court has answered this question and agreed with the limitation of the Sarmiento case which had been adopted by the district court of appeal cases cited above. Hill v. State,- So.2d - (Fla. 1982) [7 FLW 324], In Hill the majority opinion states:

The instant case is ... distinguishable from Sarmiento because the instant tape recording was of a conversation which occurred in appellant’s back yard, not in the home. We refuse to extend the reasoning in Sarmiento and the protections of article I, section 12, beyond the four walls of the home. . . .

See also K.W. Munroe, Consensual Electronic Surveillance and the Explosive Impact of Sarmiento, 56 Fla. B.J. 355 (April 1982).

We also note that the argument in regard to suppression of the tapes based on an expectation of privacy is applicable only to the conviction of solicitation, not to the conviction of conspiracy. In regard to the latter, the conspiracy was charged through September 18, which period preceded the tapes, and it was supported by the trial testimony of Roger Williams relating the conversation of September 14, 1980, among Williams, Hunt and Zacke. The trial court specifically instructed the jury as to the dates covering the conspiracy count, which precluded the dates of the taped conversations. There was no objection at trial to the failure of the court to give a specific cautionary instruction concerning the tapes, hence this point was not preserved for appeal.

The other point on appeal which merits discussion is the trial court’s admission into evidence of the tapes in regard to the solicitation count in the absence of a showing at trial of Hunt’s consent, subject to cross-examination.

Appellant contends that the presence of a consent form, as here, even with the witness’ attestation as to the voluntariness of consent, is still insufficient to allow for admission of the tapes, relying on Tollett v. State, 272 So.2d 490 (Fla. 1973), and Lopez v. State, 372 So.2d 1136 (Fla. 2d DCA 1979). The state relies on State v. Leonard, 376 So.2d 427 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1115 (Fla. 1980), which allowed tapes in with only a consent form and attesting witnesses when the informant was killed in a police shootout prior to the trial.

In Tollett, the Supreme Court held that wiretap evidence could not be allowed to be presented without an establishment of consent by competent and relevant testimony of a party to the communication, subject to cross-examination. There was no consent form in Tollett as in the instant case; rather, the only showing of consent was the testimony by police officers that the consent was freely given. The informant in that case was unavailable for trial.

In Lopez, tapes were allowed in by the trial court, but the district court reversed, holding that under Tollett cross-examination of a party to the communication as to his alleged consent was required, even when a consent form was present. While Lopez would seem to preclude the admission of the tapes here on the consent issue, Lopez is factually distinguishable in that the alleged consentor had given the defense counsel a sworn statement stating that he and the appellant took narcotics immediately before and during the time the tapes were made, and his continued cooperation with police was due to coercion. He denied ever having been at the site of the taping during the hearing on the motion to suppress, and refused to testify at the trial itself. The involuntariness issue was so clearly presented in Lopez as to vitiate any consent based upon the consent form, leaving only the statements of the police officers themselves to support the claim.

In Leonard, the informant who signed the consent form was killed in a police shootout prior to trial. The trial court granted the motion to suppress the tapes, but the Third District reversed, holding that the consent form and its authentication by the witnesses was sufficient to allow the tapes in. The court reconciled Tol-lett by stating that in Tollett the court’s concern was to prevent hearsay, an issue not arising in Leonard due to the general exception to hearsay when a witness is dead and his out-of-court statement is the only possible proof.

We do not perceive a conflict between Leonard and Lopez. The instant case is governed by the Leonard rationale rather than that of Lopez. Here there is no issue of voluntariness raised in executing the consent, as in Lopez. Moreover, the absence and presumed death of the consenting witness at trial here were shown by substantial, not to say overwhelming, evidence to have been procured by the defendant/appellant, whereas in Leonard the death of the witness was due merely to misfortune.

Accordingly, the convictions are

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Said provision reads:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evi-, dence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence. (Emphasis added).

      . Said section reads:
      It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.


author: COWART, Judge.

text:
    John H. LOWERY, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1095, 81-1108.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 10, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Leonard R. Ross, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant was sentenced to 25 years, split 15 years incarceration to be followed by 10 years probation. He successfully attacked his sentence on the basis of Villery v. Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), and was resentenced to a straight 25 years incarceration. On appeal he claims his resentencing is illegal under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This question was first raised in the dissent in Lauxman v. State, 402 So.2d 432 (Fla. 5th DCA 1981), but since then has been decided many times against appellant’s contention. See Willis v. State, 413 So.2d 1290 (Fla. 3d DCA 1982); Adams v. State, 414 So.2d 1079 (Fla. 1st DCA 1982), question certified, 414 So.2d 1079 at 1081 (Fla. 1st DCA May 26,1982) [1982 FLW 1109]; Jackson v. State, 412 So.2d 384 (Fla. 5th DCA 1982); Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982); Noles v. State, 407 So.2d 370 (Fla. 2d DCA 1981); Williams v. State, 405 So.2d 436, 437 (Fla. 1st DCA 1981); Joyce v. State, 404 So.2d 850 (Fla. 4th DCA 1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

Likewise, the point that the infor-mations charging Lowery with robbery did not set forth the element of mental intent — that Lowery intended to permanently deprive the possessor of the property taken — required by Bell v. State, 394 So.2d 979 (Fla.1981), and were therefore fundamentally defective (see, e.g., Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981)), has been resolved against Lowery on the basis that, by the use of the word “steal” such infor-mations incompletely allege all the necessary elements of larceny. See Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982).

AFFIRMED.

ORFINGER, C. J., and SHARP, J., concur.


text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Appellant, v. MASTER DISTRIBUTORS and Fireman’s Fund Insurance Company, Appellees.
    No. AH-114.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 14, 1982.
    Douglas P. Chanco, Tallahassee, for appellant.
    F. Malcolm Cunningham, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellees.
   PER CURIAM.

In this workers’ compensation case, the Special Disability Trust Fund of the State Department of Labor and Employment Security (Fund) appeals the deputy commissioner’s finding that the Fund is equitably estopped from contesting the employer/carrier’s claim for reimbursement under Section 440.49(5)(f), Florida Statutes (1978 Supp.). Likewise, appellant argues that the deputy erred by ordering the Fund to provide reimbursement. We reverse.

The essential facts are undisputed. The appellee, employer/carrier (e/c), was defending an employee’s claim for workers’ compensation benefits based on an alleged injury of June 10, 1979. In January 1981, appellee’s attorney discussed the case on the telephone with an attorney for appellant and asked if the appellee could obtain reimbursement from the Fund if it paid a total of $3,000 to settle the claim, in view of the provision of Section 440.49(5)(f)l that reimbursement would not be allowed unless “the total amount otherwise reimbursable to the employer with respect to any case is $3,000 or more . .. . ” Appellant’s attorney replied that it was his understanding that the e/c could obtain reimbursement if a total of $3,000 was paid. Appellee then paid the $3,000 to the claimant in settlement of his claim and filed a claim for reimbursement from the Fund. The Fund denied reimbursement on the claim, relying on the statute.

The doctrine of equitable estoppel is rarely applied against state action, North American Co. v. Green, 120 So.2d 603 (Fla. 1959), but may be applied where there are special circumstances and some positive act on the part of an officer of the state. Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (Fla.1952). In order to raise an estoppel against the state there must be (1) a representation by the party estopped to the party claiming the estoppel as to some material fact, (2) a reliance upon the representation by the party claiming the estoppel, and (3) a change in such party’s position caused by his reliance upon the representation to his detriment. 22 Fla.Jur.2d, Estoppel and Waiver § 80 (1980); Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979). The record before us does not reveal competent substantial evidence to support a finding that the above requirements have been satisfied. See Special Disability Trust Fund v. Aetna Casualty & Surety Co., 397 So.2d 381 (Fla. 1st DCA 1981). First, no claim for reimbursement had been filed against the Fund at the time the conversation occurred. Second, the oral response given by the Fund’s attorney could hardly be viewed as anything more than a legal interpretation of the effect of the statute, not an affirmative representation by the Fund.

Accordingly, we REVERSE and REMAND to the deputy commissioner for further consideration on the merits.

McCORD, ERVIN and JOANOS, JJ., concur.

      . Indeed, the attorney for the e/c testified that the sole purpose of the telephone call was to obtain the Fund’s interpretation of the statute to aid him in determining whether to do any further research on the question.


text:
    Io-Aurelia DUNCAN, Appellant, v. RYDER TRUCK RENTAL, INC. and Department of Labor & Employment Security, State of Florida, Unemployment Appeals Commission, Appellee.
    No. AH-228.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 20, 1982.

      Io-Aurelia Duncan, pro se.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee.
   MILLS, Judge.

Duncan appeals a decision of the Unemployment Appeals Commission (UAC) which reversed an appeals referee’s finding that she was entitled to receive unemployment compensation. We affirm.

Pursuant to Section 443.06(1), Florida Statutes (1979), the appeals referee found that Duncan, in effect, had been discharged by her employer without misconduct on her part and that she was therefore not disqualified from receiving unemployment compensation. This finding was based on an alleged conversation between Duncan and Ryder’s department director. The UAC reversed, holding that the referee’s finding was not based on competent substantial evidence.

The decision of an appeals referee may not be reversed when it is supported by competent substantial evidence. David Clark & Associates, Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980). The appeals referee’s decision was not based on competent substantial evidence. There is no testimony concerning the content of the conversation between Duncan and the department director. Since the UAC may reverse an appeals referee based on evidence in the record, its finding that Duncan left employment voluntarily without good cause attributable to the employer must be affirmed.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    Clifford BARNEY, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AI-208.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 20, 1982.

      Clifford Barney, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

Barney appeals Commission action establishing his presumptive parole release date. We affirm.

There was no error in an aggravation for great bodily injury. Great injury is not a necessary element of first degree burglary. See Lambeth v. Florida Parole and Probation Commission, 411 So.2d 956 (Fla. 1st DCA 1982). .

There was no abuse of discretion in the length of the aggravation.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    Harry BENTON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-313.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 10, 1982.
    Harry Benton, pro se, for appellant.
    John C. Courtney, Asst. Gen. Counsel for Florida Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

Benton appeals the Commission’s action in establishing his presumptive parole release date. Specifically, he complains that the Commission erred in assessing an aggravation fifty-one months above the matrix time range for Benton’s present offense of conviction (i.e., armed robbery). The basis for the Commission’s decision to apply the aggravation was the fact that Benton was on bond for the offense of possession of marijuana at the time he committed the armed robbery. It is Benton’s contention that,- when arriving at the amount of time to be assessed in aggravation, the Commission was, or should have been, confined to the limits of the matrix time range for the possession of marijuana offense (for which Benton was on bond) or, alternatively, for his present offense of conviction, armed robbery. We reject this argument, and affirm.

A “matrix time range” is the range of months found where the offender’s salient factor score intersects with the offender’s severity of offense behavior in the matrix time range table established by Commission rule. Fla. Admin. Code Rules 23-21.02(21); 23-21.09. Decisions to aggravate an inmate beyond his matrix time range are within the discretion of the Commission, subject to the limitations of section 947.-172(2), (3), Florida Statutes and Florida Administrative Code Rule 23-21.10(1), (2). If the Commission deems that appropriate aggravating circumstances exist in a particular case, the amount of aggravation time is also discretionary, and is not required to bear any relationship to the matrix time range for the offense of conviction or for the offense behavior which forms the basis for the aggravation.

The fact that Benton was “on bond” when he committed the offense of conviction is an appropriate aggravating circumstance. Fla. Admin. Code Rule 23-21.-10(4)(a)(2)(a). Under the facts of this case, the Commission did not abuse its discretion in assessing fifty-one months in aggravation.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

       23 21.10 Decision Outside the Matrix Time Range.
      (1) The Commission may render a decision outside the matrix time range based on any competent and persuasive evidence relevant to aggravating or mitigating circumstances if the inmate is furnished a written explanation of such a decision. The requirements of competent and persuasive evidence are:
      (a) that the information is specific as to the behavior alleged to have taken place, and
      (b) the source of the allegation appears to be reliable.
      (2) Information (for example information supporting a count of an indictment that was dismissed as a result of a plea agreement) may be relied upon as aggravating or mitigating circumstances provided it meets the competent and persuasive criteria. However, the following aggravating factors shall not be used:
      (a) element of the crime;
      (b) information included in calculating the salient factor score;
      (c) information included in the severity of offense behavior; or
      (d) charges for which a person was acquitted after trial.


author: SHIVERS, Judge.

text:
    Raul GONZALEZ d/b/a Nationwide Professional Enterprises, Inc., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AH-370.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.

      Ronald L. Fried, Miami, for appellant.
    Steven W. Huss, Tallahassee, for appel-lee.
   SHIVERS, Judge.

Gonzalez appeals a final order revoking his pest control certificate and cards. Appellant asserts that the agency erred in failing to accord him a Chapter 120 hearing and that the evidence did not support the agency’s revocation of his licenses. We reverse and remand.

On February 6, 1981, Gonzalez and the Department of Health and Rehabilitative Services (HRS) entered into a joint stipulation for settlement and consent decree wherein appellant was placed on probation. The stipulation waived the right to a Chapter 120 hearing and agreed that if appellant violated the Pest Control Act or the pest control regulations during the period of probation, the agency in its discretion could enter a final order revoking appellant’s pest control licenses (the pest control certificate and cards). HRS adopted the stipulation in a final order on May 20,1981. Subsequently, HRS made a report documenting several alleged violations of the stipulated agreement and requesting revocation. After reviewing the report, HRS revoked appellant’s licenses without a hearing.

Section 120.60(6), Fla. Stat. (1981) provides in part:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to s. 120.57....

The purpose of this statute is to inform the licensee of the possible revocation and to permit the licensee to respond to the agency’s allegations. Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980). In this case, the stipulation provided for the waiver of a Chapter 120 hearing. The waiver, however, was intended to apply to the allegations pending at the time the stipulation was signed, not to allegations which might arise in the future.

Although the stipulation provided that HRS could revoke Gonzalez’ license in the agency’s discretion, the agency con tin-ued to suffer the burden of demonstrating proof justifying the exercise of that discretion. In this case, the issue of whether Gonzalez actually violated the terms of the stipulation remained outstanding, and Gonzalez was deprived of an opportunity to be heard on that point. The Administrative Procedures Act requires the licensee be given full due process consideration even where consent stipulations are involved.

It is necessary, therefore, for the administrative agency to take into account due process considerations when dealing with stipulations or agreements of the adversarial parties submitted during the course of administrative hearings.

Manatee County v. Florida Public Employees Relations Commission, 387 So.2d 446, 449 (Fla. 1st DCA 1980). Accordingly, Gonzalez is entitled to the requisite notice and a hearing prior to revocation of his licenses. Resolution of this issue makes inquiry into the evidentiary issue unnecessary. The cause is reversed and remanded to the agency with instructions to proceed in compliance with this opinion.

SHAW and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    CARGO OIL COMPANY and Auto Owners Insurance Company, Appellants, v. Kenneth Eugene DUNCAN, Appellee.
    No. AI-486.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Rehearing Denied Sept. 20, 1982.
    Barry D. Graves, of Ritch & Graves, P.A., Gainesville, for appellants.
    Charles Vocelle, of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, P.A., Lake City, for appellee.
   WIGGINTON, Judge.

This cause is before us on appeal from the order of the deputy commissioner awarding claimant permanent total disability benefits, remedial treatment and attendance under the care of Dr. Andrew C. Bass, reimbursement for medical travel, costs and a reasonable attorney’s fee. The employer/carrier challenge the deputy’s finding of permanent total disability as a result of the accident, the authorization of Dr. Bass, and the granting to claimant of an alleged “hearing de novo.” Only the first two awards merit discussion.

We reverse the order of the deputy finding claimant permanently and totally disabled as a result of the accident. On the contrary, the medical evidence unequivocally established that claimant was totally disabled before the accident and wholly incapable of any but the most sheltered employment. The accident, in regard to either condition, was wholly irrelevant.

As to the deputy’s authorization of Dr. Bass, we amend the order to read Dr. Irvin C. Bembry instead. Shortly before the hearing, claimant moved for change of physicians to Dr. Bembry. The pretrial stipulation noted that one of the issues was change of physicians. At the hearing, the parties stipulated to Dr. Bembry as thereafter being claimant’s treating physician. Yet, the deputy, with no explanation, appointed Dr. Bass.

This is not a case in which the facts are at variance with, and show good cause for, modification of the stipulation. Cf. Wright v. Golf Drive Residence, Inc., 412 So.2d 884, 887 (Fla. 1st DCA 1982). Although this problem could have been eliminated by prompt application to the deputy, we take this opportunity to amend the order to reflect the physician contemplated by the parties. Genuine Parts Company v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982).

SHIVERS and SHAW, JJ., concur.


text:
    James M. DONOHOE, Jr., Appellant, v. ALACHUA COUNTY, Appellee.
    No. AJ-35.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Rehearing Denied Sept. 14, 1982.
    James M. Donohoe, Jr., of the Law Firm of Forbes & Donohoe, Gainesville, pro se.
    Debbie Sinclair Ruskin, Asst. County Atty., for appellee.
   MILLS, Judge.

This is an appeal from an order of the trial court granting attorney’s fees to Dono-hoe, who, pursuant to Section 27.53(3), Florida Statutes (1979), was appointed to represent an indigent defendant in a criminal case. We affirm.

After representation ended, Donohoe filed a motion requesting $3,986.00 in attorney’s fees. Concluding that this amount was excessive, the trial court granted $3,300.00.

Donohoe contends that the trial court erred in refusing to grant him $3,986.00. This contention is without merit. Counsel appointed pursuant to Section 27.-53(3), Florida Statutes (1979), are not entitled to a fee as a matter of right. The grant or denial of a fee rests in the sole discretion of the trial court. Gant v. State, 216 So.2d 44 (Fla. 1st DCA 1968).

Donohoe’s contention that the trial court abused its discretion in refusing to grant a rehearing without explanation is likewise without merit. Stoner v. W. G., Inc., 300 So.2d 268 (Fla. 2d DCA 1973).

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    J.C. LENIER, d/b/a J.J. & C. Construction, Inc. and Insurance Company of North America, Appellant, v. Paul SCHULSTEAD, Appellee.
    No. AJ-113.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Rehearing Denied Sept. 20, 1982.
    Bruce A. Epple of Jones & Foster, P.A., West Palm Beach, for appellant.
    J.J. Goodmark of Goodmark & Goodmark, West Palm Beach, for appellee.
   MILLS, Judge.

The employer/carrier appeal a compensation order finding that there was an employment relationship at the time of Schul-stead’s accident. We affirm.

There is competent substantial evidence in the record to support the order.

BOOTH and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    CITY OF PANAMA CITY, Appellant, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND and Jimmy and Johnny Patronis, Appellees.
    No. AC-127.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.

      Stephen H. Kurvin of Sale, Bryant, Thompson & Kurvin, Panama City, for appellant.
    Henry Dean, Tallahassee, for appellee Board of Trustees of the Internal Improvement Fund.
    Michael Egan of Roberts & Egan, Tallahassee, for appellees Patronis.
   McCORD, Judge.

On September 26, 1978, the Board of Trustees of the Internal Improvement Trust Fund, pursuant to Section 253.129, Florida Statutes, issued to Jimmy and Johnny Patronis a disclaimer to a formerly submerged, now filled, parcel of land adjacent to the Patronises’ property in Panama City, Florida. On May 8, 1980, the Trustees, pursuant to the aforesaid statute, issued a second disclaimer to the Patronises for an adjacent parcel of land. The City of Panama City challenged the earlier disclaimer by a petition for administrative hearing pursuant to Section 120.57, Florida Statutes, filed sometime between June 9 and June 12, 1980. Panama City challenged the later disclaimer by a petition bearing a certificate of service dated July 11, 1980. The date of filing is not apparent from the record. By these' petitions, Panama City seeks to have the Trustees set aside their disclaimers for these two parcels of property. A DOAH hearing officer dismissed the two petitions on the separate grounds of lack of jurisdiction and lack of standing by Panama City. We affirm.

Panama City’s claim of standing to challenge the Trustees’ action in'issuing the disclaimers rests upon Section 253.111, Florida Statutes. This statutory provision essentially provides that if an application is filed with the Trustees to purchase state-owned land, and the Trustees decide to sell that land, they must, prior to sale, notify the Board of County Commissioners of the county in which the land is located that the land is available to the county for a public purpose. § 253.111(1). The county then has ninety days within which to adopt a resolution devoting the land in perpetuity to public purposes and providing for a preliminary plan of development. § 253.111(2) and (3). Upon receipt of such a resolution, the Trustees are to “convey to the county such land upon such terms and conditions at such price as the (Trustees) shall determine ...” Section 253.111(5). Panama City claims that it is the assignee of Bay County’s rights under Section 253.111 by virtue of a resolution by the Bay County Board of County Commissioners that purports to convey all of the county’s right, title, or interest in the disputed property to Panama City. This resolution, however, was not adopted by Bay County until June 10,1980.

We find Panama City’s claim of standing to be too tenuous and conjectural to support its action. Compare Florida Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). One must assume, among other things, that Bay County’s rights under Section 253.111 may be lawfully assigned to Panama City, a proposition that cannot be reasonably inferred from the statute. Moreover, even if we were to infer such an assignable right, Bay County’s resolution was not enacted until after the Trustees had issued the disclaimers to the Patronises. Hence, we conclude that Panama City has alleged no specific, real, and immediate harm or injury in fact demonstrating that it is “substantially affected" any more than the general public by the Board of Trustees’ disclaimers. See Grove Isle, Ltd. v. Bayshore Homeowners’ Assn., Inc., 418 So.2d 1046 (Fla. 1st DCA 1982). Stated differently, Panama City’s interest in the filled land is not “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n. of Data Processing Serv. Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970).

Having determined that Panama City does not possess the requisite standing to pursue this action, we find no need to address the appellees’ alternative argument regarding the untimeliness of the City’s respective petitions.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and MILLS, J., concur.

      . Questions have occurred to us regarding the propriety of this proceeding under the Administrative Procedure Act. Appellant’s petitions seek to have appellee set aside appellee’s two disclaimers to real property. Can appellee any more set aside a delivered disclaimer than it could set aside a delivered deed to real property? Is not a delivered disclaimer a fait accom-pli which only the circuit court could set aside and cancel in an appropriate legal action? These questions not having been raised on this appeal, we do not answer them since their answer is not necessary to our disposition and will leave their determination to a future appropriate case.


author: SHAW, Judge.

text:
    WEST FLORIDA HOSPITAL and Ideal Mutual Insurance Company, Appellants, v. Catherine R. WASHINGTON, Appellee.
    No. AH-307.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    Rehearing Denied Oct. 1, 1982.
    J. Nixon Daniel, III of Beggs & Lane, Pensacola, for appellants.
    John L. Myrick of Kinsey, Myrick, Troxel & McKenzie, P. A., Pensacola, for appellee.
   SHAW, Judge.

The appellants claim that the deputy commissioner has misconstrued Dolphin Tire Co. v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), as requiring the employer/carrier to pay attorney’s fees under section 440.-34(2)(c), Florida Statutes (1979), when “the major part of the claim is contested and the claimant prevails.” We agree with appellants and reverse. In Dolphin Tire fees were awarded because the carrier denied that the claimant suffered a compensable catastrophic injury as defined by section 440.15(2)(b), Florida Statutes (1979), and the claimant prevailed in obtaining compen-sable benefits. Dolphin Tire construed the controversion of the catastrophic loss claim as a denial of an injury for which compensation benefits were payable, not as the denial of attendant benefits to a compensa-ble injury.

The claimant urges, under the rationale of Dolphin Tire, supra, that an attorney’s fee is sustainable where the carrier accepts the injury as compensable but denies that there has been a wage loss. On the contrary, the case cautions against a construction that would authorize an attorney’s fee “where the only issue is over the average weekly wage or some other incidental benefit where the carrier does not deny that an injury occurred for which benefits are payable and the claimant is not forced to prove his injury and entitlement to compensation.” Id. at 37. The fact that some benefits were denied does not justify an attorney’s fee award under section 440.-34(2)(c), especially where, as here, the employer/carrier paid temporary total disability benefits until the date of maximum medical improvement. See Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981); City of Miami v. Wright, 414 So.2d 24 (Fla. 1st DCA 1982); E. C. Goldman Roofing and Risk Management Services, Inc. v. Rogers, 418 So.2d 426 (Fla. 1st DCA 1982). Wage loss is an incidental benefit, the denial of which does not constitute denial of a compensable injury for which the employer/carrier is liable.

REVERSED.

ROBERT P. SMITH, Jr., C. J., and ERVIN, J., concur.


text:
    Juan Antonio BORRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-907.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Sept. 27, 1982.
    Martin Lemlich, Miami Beach, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Zirkle v. State, 410 So.2d 948 (Fla. 3d DCA 1982); Davis v. State, 386 So.2d 1287 (Fla. 3d DCA 1980); Chester v. State, 298 So.2d 529 (Fla. 3d DCA 1974), cert. denied, 310 So.2d 304 (Fla.1975).