text:
    SAFECO INSURANCE COMPANY OF AMERICA, Appellant, v. UNITED PLUMBING & HEATING, INC., Appellee.
    No. 81-73.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 26, 1982.
    Robert A. Hingston of Welbaum, Zook, Jones & Williams, Miami, for appellant.

      John V. Russell, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

We affirm the judgment in all respects except for a modification and reduction thereof in the sum of $5,250, which sum should have been reduced therefrom as conceded by appellee’s counsel in his closing argument before the trial court.

AFFIRMED AS MODIFIED.

DOWNEY and GLICKSTEIN, JJ., and DANIEL S. PEARSON, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MILITARY PARK FIRE CONTROL TAX DISTRICT NO. 4, Appellant, v. David DeMAROIS, Daniel Kraemer, and Military Park Professional Fire Fighters Union, Local 2741, Iaff, Appellees.
    No. 81-195.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    Ronald Sales of Sales & Weissman, and Edna L. Caruso, West Palm Beach, for appellant.
    Edward F. O’Connor of O’Connor, Baylor, Callas & Elliott, Palm Beach Gardens, for appellee David DeMarois.
    Steven Bloom of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, P. A., and Joseph C. Segor, Miami, for appellees Kraemer and Military Park Professional Fire Fighters Union, Local 2741, I.A.F.F.
   ON MOTION TO EXPEDITE

PER CURIAM.

Appellee, DeMarois, has filed a motion to expedite appeal under Section ■ 447.504(5), Florida Statutes (1979) which provides:

Appeals filed under this part shall be heard expeditiously by the district court of appeal to which presented and shall take precedence over all other civil matters except prior matters of the same character.

We are concerned that this statute attempts to create a procedural rule for appellate courts in violation of Florida Constitutional and case law.

Matters of practice and procedure in state courts are solely the province of the Supreme Court. Art. V, § 2, Fla.Const. Powers constitutionally bestowed upon the courts may not be exercised by the legislature. Art. II, § 3, Fla.Const. Thus it has been held that a statute which purports to create or modify a procedural rule of court is constitutionally infirm. Sydney v. Auburndale Const. Corp., 96 Fla. 688, 119 So. 128 (1928); Johnson v. State, 308 So.2d 127 (Fla. 1st DCA 1975), aff’d., 346 So.2d 66 (Fla.1977); Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

A rule of procedure prescribes the method or order by which a party enforces substantive rights or obtains redress for their invasion. Substantive law creates those rights. Practice and procedure are the machinery of the judicial process as opposed to the product thereof. Johnson v. State, supra. There can be no doubt that a rule creating priorities among types of civil matters being processed by the state courts is procedural rather than substantive.

We therefore declare Section 447.504(5), Florida Statutes (1979) unconstitutional.

The motion to expedite is denied.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Jay Russell McNEILL, Appellee.
    No. 81-642.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 27, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Michael J. Dunleavy of Law Offices of Dunleavy & Trick, Fort Lauderdale, for ap-pellee.
   HERSEY, Judge.

The state appeals from an order dismissing an Information in which it was charged that appellee

did . .. unlawfully use, or endeavor to use the property of Daniel Salvatore, to-wit: a 1973 Red Ford Truck motor vehicle, with the intent to appropriate the property to his own use or to the use of any person not entitled thereto, knowing or having reason to know said property was stolen, contrary to F.S. § 812.-014(l)(b), and F.S. § 812.014(2)(b) (emphasis added).

The state contended below and maintains here that the crime charged under the omnibus “Theft” statute is possession of stolen property rather than common law larceny.

Dismissal was based upon failure to include an allegation that there was specific intent to permanently deprive the victim of his property.

Under Section 812.014(1), Florida Statutes (1979), the actual taking or theft of property is defined as obtaining the property with a specific criminal intent. The intent required for the crime of theft is a) to deprive the person from whom the property is taken of a right to that property or a benefit therefrom or b) to appropriate the property to the use of one other than the person entitled thereto.

Prior to the enactment of Section 812.014, larceny was defined in Section 812.021, Florida Statutes (1975), as the taking of property from a person “with the intent to unlawfully deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person.”

In comparing the two statutes, it is apparent that the only difference in the definitions of the requisite intent is the deletion in Section 812.014 of the word “unlawfully.” As held in State v. Allen, 362 So.2d 10 (Fla.1978), this omission does not alter the specific criminal intent required. Accordingly, under both statutes, an intent to appropriate property to the use of one other than the owner is equated with the unlawful intent to deprive the owner of his property. Apparently to the contrary is Faisan v. State, 390 So.2d 728 (Fla. 5th DCA 1980) in which, on rehearing, the court narrowly defined the intent required by Allen and Bell v. State, 394 So.2d 979 (Fla.1981) as the intent to permanently deprive the owner of property. Neither Allen nor Bell so narrowly define the required intent. Rather, Allen concluded only that the legislature had not eliminated specific criminal intent from Section 812.014 and Bell held that specific intent is still a requisite element of the crime of robbery. See, also, Baxley v. State (Fla. 5th DCA Case No. 79-36, opinion filed November 25, 1981).

Section 812.014 now encompasses not only the actual theft of property but also the crime of possession of stolen property. State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Houck, 374 So.2d 86 (Fla. 4th DCA 1979). Under the statute it is a crime for one to use the property of another “with the intent to appropriate the property to his own use or the use of any person not entitled thereto.” Therefore, an Information, as the one in the present case, containing allegations of these elements sufficiently charges the crime, including its required specific intent. We note that the Information here also correctly contains the allegation necessary to a charge of possession of stolen property that defendant knew or had reason to know the property was stolen. State v. Houck, 374 So.2d 86 (Fla. 4th DCA 1979).

Accordingly, we reverse and remand with instructions to reinstate the Information, and for further appropriate proceedings.

REVERSED AND REMANDED.

ANSTEAD and DELL, JJ., concur.


text:
    Katherine BULLARD, individually and as parent and natural guardian of Henry Wymer, James Wymer, Baron Wymer, Frank Wymer, Jr., and Diane Wymer, Petitioners, v. Honorable G. Kendall SHARP, Judge, Nineteenth Judicial Circuit, in and for Indian River County, Florida, Respondent.
    No. 81-1578.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    J. Blayne Jennings, Gifford, Brennan & Muschott, Fort Pierce, and Larry Klein, West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

During the course of litigation the parties reached a settlement and entered into a written stipulation evidencing its terms and conditions. Because some of the parties were minors, application was made to the court for approval of the stipulation and settlement as required by Section 744.387, Florida Statutes, 1979. The court refused to approve the stipulation ascribing as grounds for refusal that the court “. . . is shocked by the excessive amount of the settlement. . . . ” The plaintiffs below then filed a petition for writ of mandamus here to compel approval.

The statute in question authorizes the court to approve a settlement “if satisfied that the settlement will be for the best interest of the ...” minor. Implementation clearly requires the exercise of some element of discretion so that mandamus will not lie. State ex rel. Zuckerman—Vernon Corp. v. City of Miramar, 306 So.2d 173 (Fla.4th DCA 1974). We therefore consider whether it is appropriate to treat the petition as one for certiorari. Fla.R.App.P. 9.040(c).

We recently reiterated that the basis for certiorari jurisdiction in this Court is denial of procedural due process or failure to observe the essential requirements of the law. City of Hollywood Employees Retirement Fund v. Allen (Fla.4th DCA Case No. 81—1201, Opinion filed November 25, 1981). Unstated in that case was the threshold requirement that no other adequate remedy, by appeal or otherwise, exists.

We have initial difficulty fitting the facts of this case into that framework. The mere burden of proceeding through litigation does not ordinarily furnish a basis for certiorari intervention. Gadsden County Times, Inc. v. Horne, 382 So.2d 347 (Fla.lst DCA 1980). The rationale for this rule is that ultimately errors may be rectified by an appeal. However, the instant case may be considered unique in that all parties wish to settle but are presumably stymied by the refusal of the trial court to approve the settlement. Whether or not the parties could simply dismiss the litigation and then enter into a stipulation that would protect the guardian of the minors is problematical in view of the language of Section (3)(a) which provides: “No settlement after an action has been commenced by or on behalf of a minor or other incompetent shall be effective unless approved by the court having jurisdiction of the action.” (Emphasis added.) § 744.387(3)(a), Fla.Stat. (1979). We are not called upon to construe the statute in that regard.

Because the remedy of appeal after litigation, on the particular and unique facts of this case, would appear to be inadequate, we address the merits of the petition.

The stipulation requires the sheriff of Indian River County (or his insurer) to pay certain sums of money over a period of time to the minor plaintiffs and others. If the sums are excessive this would seem to inure to the benefit of the minors so that such excessiveness, in the context of the statute in issue, could not be construed as against the best interest of the minor. It therefore could not logically or legally constitute a valid ground for the trial court’s refusal to approve the settlement.

The parties have suggested that a stipulation that is appropriate and proper is binding upon the parties and the court. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971). On the other hand, a stipulation that is unreasonable, against good morals and sound public policy will not be enforceable. Smith v. Smith, 90 Fla. 824, 107 So. 257 (1925). The difficulty is that the trial court has not been requested to enforce the stipulation. We view the sole and very narrow issue before the trial court as whether the settlement is in the best interests of the minors. As a result, an order approving the settlement will not establish the law of the case as to any other aspect of the stipulation nor will it, by necessary implication or otherwise, put to rest questions concerning the public policy considerations which obviously concern the trial court. Those will remain subject to judicial scrutiny upon appropriate application.

With the foregoing rationale established; we determine that excessiveness of the amounts to be received by the minors is not a sufficient ground for withholding the approval contemplated by Section 744.387, Florida Statutes 1979.

Accordingly, we grant the writ.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: WENTWORTH, Judge.

text:
    Gilbert DAVIS, Appellant, v. RAULERSON & SONS, INC., and Florida Farm Bureau Insurance Companies, Appellees.
    No. YY-167.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Ted L. Wells, Tampa, for appellant.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellees.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order by which (1) his attorney was denied fees for services rendered on a previous appeal arising out of the compensable industrial accident, and (2) the employer/carrier was required to pay only 75% of the attorney fee awarded to claimant’s counsel for benefits obtained. We affirm on the first issue and reverse on the second.

On May 25, 1979, an order was entered requiring employer/carrier to pay claimant an increased weekly compensation rate as to temporary total disability benefits. The employer/carrier appealed that order and this court affirmed per curiam. On February 13, 1980, the application for appellate attorney fees filed by claimant’s counsel was denied. No petition for rehearing was filed with respect to that denial. We accordingly decline to re-visit that previously adjudicated issue and conclude that the trial court properly refused to entertain claimant’s motion for appellate attorney fees.

We find merit in claimant’s contention with respect to the fee awarded claimant’s counsel, and conclude that the deputy commissioner erred in apportioning the award between the employer/carrier and the claimant pursuant to § 440.34, Florida Statutes (1978).

On September 12, 1980, the parties entered into a stipulation and joint petition for lump sum payment. Under the terms of that stipulation the employer/carrier was discharged from all present, past and future liability in consideration for which claimant was to receive $1,000 total compensation, which amount included future medical care. The parties further agreed that the deputy commissioner would determine the amount of a reasonable fee for claimant’s attorney. Affixed to the stipulation agreement was an affidavit signed by claimant. The pertinent provision of that affidavit provided as follows:

(7) I understand that the employer/carrier herein will pay my attorney a fee which is to be determined by the Deputy Commissioner. This fee does not come out of my $1,000.

The deputy commissioner found that counsel for claimant was entitled to a reasonable fee of $2,000, and ordered that seventy-five percent of that amount was to be paid by the employer/carrier and the remainder by claimant.

The terms of the stipulation agreement are plainly intended to be read in conjunction with the affixed affidavit. The parties accordingly agreed to an award of a reasonable fee for claimant’s counsel, the reasonableness of which was to be determined by the deputy commissioner, and further agreed that the employer/carrier would bear full responsibility for that award. We conclude that the statute states an apportionment rule subject to the contrary provision of the parties’ agreement in this case.

The order is therefore reversed insofar as apportionment of the fee is required, and the cause is remanded to the deputy commissioner for entry of an order consistent with this opinion. In all other respects, the order is affirmed.

BOOTH and SHAW, JJ., concur.


author: SHIVERS, Judge.

text:
    Miguel SANTIAGO, Appellant, v. ORR INDUSTRIES, INC., and Travelers Insurance Company, Appellees.
    No. ZZ-113.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Richard A. Kupfer, of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    James A. Reynolds, Jr., of Adams, Coo-gler, Watson & Smith, P.A., West Palm Beach, for appellees.
   SHIVERS, Judge.

Claimant appeals from a workers’ compensation order denying the claim for catastrophic loss benefits and further finding that even if the claimant was entitled to temporary total disability benefits at the 80% catastrophic loss rate, the carrier would be entitled to a credit against further benefits due and owing for money paid the claimant by the employer. We reverse.

Claimant sustained a compensable industrial accident on October 10, 1977, which resulted in the traumatic amputation of three fingers and severe lacerations to his thumb, hand, and fifth finger. At the hearing below, the sole issue was whether claimant was entitled to catastrophic loss benefits under Section 440.15(2)(c), Florida Statutes (1977), and, if so, whether payments made by the employer subsequent to the accident would be credited against catastrophic loss payments found to be due the claimant. Dr. Hoover, treating physician, testified that claimant had a 100% loss of the index, long, and ring fingers, a 50% loss of the fifth finger, and a 25% loss of the thumb, resulting in a 75% impairment of the hand as a whole. The employer/carrier voluntarily paid temporary total disability benefits at the 60% rate from the date of the accident through May 9, 1978, and paid permanent partial disability benefits from the maximum medical improvement date based upon the assigned 75% anatomical impairment.

The deputy commissioner denied catastrophic loss benefits because “there was no amputation of the hand.” The deputy commissioner also found that even if the claimant was entitled to the 80% temporary total disability rate, additional money paid to the claimant by the employer would operate as a credit against any further benefits due and owing since the employer’s actions were not intended as a mere gratuity.

The deputy commissioner erred in denying the award of catastrophic loss benefits under Section 440.15(2)(c). Section 440.15(2)(c) authorizes the award of temporary total disability at 80% of the average weekly wage when the claimant “has sustained the loss of an arm, a leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system.” The deputy commissioner misinterpreted the statute to require a complete amputation of the hand as a prelude to an award of catastrophic loss benefits. Section 440.15(2)(c) does not require that the loss result in amputation or total loss of use so akin to amputation as to amount to the same thing before a claimant may be entitled to catastrophic loss benefits. Van Eyk v. R. N. Hicks Construction Company, 377 So.2d 793 (Fla. 1st DCA 1979); Cumberland Farms Dairy, Inc. v. Szajbler, 390 So.2d 1214 (Fla. 1st DCA 1980). Total loss of use in the workers’ compensation context indicates the inability to perform functions required in an industrial setting. Hicks, supra, at 794.

There is undisputed evidence in the record to support an award of catastrophic loss benefits since the claimant suffered the loss of use of his hand and was temporarily and totally disabled from performing any work during the six months immediately following the accident. It should be noted that the employer/carrier voluntarily accepted the claimant as temporarily and totally disabled but paid temporary total disability benefits only at the 60% rate. Additionally, an award of catastrophic loss benefits is further supported by the record on the ground that the claimant suffered a total loss of use of the hand because of organic damage to the nervous system. Dr. Hoover testified that the amputation of the fingers and the laceration of the hand involved the amputation of nerves which in turn caused the claimant to develop a neu-roma, a painful inflammation of the nerve, requiring surgical excision. Therefore, the denial of the claim for catastrophic loss benefits is reversed.

We also reverse the finding that, even if the claimant was entitled to temporary total disability at the 80% rate, the carrier would be entitled to a credit for money paid to the claimant by the employer because the record shows the employer intended to bestow a gift to the claimant with no desire for credit or reimbursement and that the money was not paid as advance compensation. The deputy commissioner first erred in finding that the periodic payments to the claimant by the employer in addition to the temporary total disability compensation paid were not intended as a gratuity. Section 440.20(12), Florida Statutes (1977), states:

If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.

Section 440.20(13), Florida Statutes (1977), provides:

When an employee is injured and the employer pays his full wages or any part thereof during the period of disability . . . and the case is contested by the carrier . . . and thereafter the carrier, either voluntarily or pursuant to an award, makes a payment of compensation .. . the employer shall be entitled to reimbursement to the extent of the compensation paid or awarded ... out of the first proceeds paid by the carrier .... Any payment by the employer over and above compensation paid or awarded . . . shall be considered a gratuity.

Where a claimant is paid his regular wage although he does no work for the employer and before a compensation award, the issue of whether the payment should be credited on the award requires the taking of evidence on the question of whether such payments were intended to be advance payments of compensation or gratuitous payments. Daoud v. Matz, 73 So.2d 51 (Fla.1954). An overpayment of compensation is presumed to be a gratuity unless there is a specific finding that some other reasonable basis exists for the overpayment. Belam Florida Corporation; Federal Insurance Company v. Dallas Dardy, 397 So.2d 756 (Fla. 1st DCA 1981).

There is no evidence to support the finding that the employer’s payments to the claimant in addition to that compensation provided by the carrier were not intended as a gratuity. Instead, the evidence overwhelmingly supports a finding that the employer’s payments were intended as a gratuity. Claimant testified that he was still receiving periodic paychecks from his employer, Walter Orr, while he was receiving checks for compensation from the carrier. He understood the checks to be a gift and stated that he was told by the employer that the extra money was simply to help him and there was no expectation of repayment. Walter Orr, the employer’s president, substantiated the claimant’s testimony. He testified that after the accident he continued to send the claimant periodic paychecks. He testified that he talked to the company accountant about giving the claimant extra money so that he didn’t get into a bind and that they decided to put the claimant’s checks on the payroll so the business could write it off. He did not tell the claimant that the money was a loan and he did not have any intention or expectation of repayment. He further testified that he had no intention of attempting to recover the money paid in addition to the compensation paid.

The deputy commissioner also erred in finding that the employer’s actions were the actions of the carrier and that the carrier was entitled to the credit for the employer’s gratuitous payments. A carrier is not entitled to a credit for the amount paid by the employer to the employee. Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941).

Accordingly, the order denying the claim for catastrophic loss benefits is reversed and remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: McCORD, Judge.

text:
    WALKER IMPERIAL, INC., and American States Insurance Company, Appellants, v. Joan STIDHAM, Appellee.
    No. ZZ-400.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Richard R. Roach, Jr., of Woods & Roach, Lakeland, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from the deputy commissioner’s order awarding temporary disability benefits to appellee. We reverse.

In August 1979, appellee injured the tip of her right index finger in a work-related accident. Her treating physician was of the opinion that by January 2, 1980, appellee had reached maximum medical improvement and that she could return to work at least on a trial basis with no medical restrictions. In February 1980, the treating physician assigned a 15% permanent partial impairment to the finger. Upon being released by the treating physician in January 1980, appellee, who was at that time two months pregnant, began a job search. She testified that several of her potential employers became uninterested in employing her when they learned that she was pregnant and that she had had a workers’ compensation claim. Other potential employers had no job openings. She testified that she felt she was able to perform the various jobs. After failing to find a job elsewhere, appellee moved to her parents’ farm where, during January and February, she took care of the livestock, cut grass, and performed general maintenance in exchange for a reduction in rent. Her father’s testimony indicated that she was still helping with the farm work at the time of the hearing.

After the hearing, the DC found appellant entitled to temporary partial disability benefits for January and February and to temporary total disability benefits from March 1,1980, until June 8,1980. He made no ruling on the date of maximum medical improvement.

The only medical evidence in the record (the testimony of the treating physician) indicates that appellee had reached maximum medical improvement and was able to return to work by January 2, 1980. Even appellee’s own testimony shows that she could have worked after January 2, 1980, if she could have found a job. She testified that she felt she could perform just about any job within her experience, and she actually did do farm labor for her parents. The evidence does not show that her inability to obtain a job was due to her injury. Thus, an award of temporary total or temporary partial disability after January 2, 1980, was error. Compare Lehigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981).

REVERSED.

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


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. PARKWAY GENERAL HOSPITAL and the Aetna Casualty and Surety Company, Appellees.
    No. ZZ-411.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Robert M. Mack, Tallahassee, for appellant.
    Mark J. Mintz, of Ress, Gomez, Rosenberg & Howland, P.A., North Miami, for appellees.
   SHIVERS, Judge.

The Special Disability Trust Fund appeals from a workers’ compensation order awarding the employer/carrier partial reimbursement under Section 440.49(4)(e) for temporary total disability and permanent partial disability benefits paid to the claimant. We reverse.

The claimant suffered a compensable accident on March 10, 1978, which resulted in a 5% permanent partial disability to her right thumb. At the time of the accident, claimant had a preexisting permanent impairment to her left arm, rendering it useless, which merged with the subsequent permanent impairment to her right thumb, producing a 60% permanent partial disability of the body as a whole. The employer had prior knowledge of the claimant’s preexisting impairment and the parties stipulated claimant’s preexisting left arm impairment contributed to her temporary total disability following the accident since it was a major factor in her inability to work. The parties also stipulated that the medical treatment received by the claimant as a result of the accident was rendered exclusively to the right thumb and she received no medical treatment to her left arm or shoulder as a result of the accident. The employer/carrier paid $2,414.29 in temporary total disability benefits, $3,680.40 in permanent partial disability benefits, and $538 in actual medical bills. Pursuant to a washout stipulation, the employer/carrier also paid $250 for future medical benefits.

The employer/carrier filed a claim for reimbursement under Section 440.49(4)(e), Florida Statutes (1977), from the Special Disability Trust Fund (Fund) for temporary and permanent compensation benefits paid to the claimant, contending the preexisting condition contributed to her need for temporary total disability benefits. The Fund argued that since there was no evidence claimant’s preexisting impairment contributed to her need for medical benefits following the accident, Section 440.49(4)(e) was inapplicable and the employer/carrier were not entitled to reimbursement for temporary total disability benefits paid to the claimant. The Fund further argued that since the employer/carrier were eligible to receive reimbursement of permanent compensation benefits only, and since reimbursement of the last 60% of the permanent compensation benefits paid by the employer/carrier would be under the $3,000 threshold requirement for reimbursement established by Section 440.49(4)(f), Florida Statutes (1977), the employer/carrier were entitled to no reimbursement at all.

On December 24, 1980, the deputy commissioner entered the appealed order denying reimbursement of medical benefits but awarding the employer/carrier reimbursement for $3,415.38 based upon the temporary disability and permanent partial disability compensation paid to the claimant.

The Fund is correct in arguing the deputy commissioner erred as a matter of law in awarding the employer/carrier reimbursement for 50% of the $2,414.29 in temporary total disability benefits paid to the claimant because there was no basis for the finding that the claimant’s preexisting permanent impairment to the left arm contributed to her need for both temporary disability and remedial treatment. Section 440.-49(4)(e) provides that the employer/carrier are entitled to reimbursement “when the preexisting permanent physical impairment has contributed to the need either medically or circumstantially, for temporary disability and remedial treatment, care, and attendance .... ” Here, although the parties stipulated the claimant’s preexisting impairment contributed to her need for temporary disability, they also stipulated it did not contribute to her need for medical treatment. The strict construction of the law requires the preexisting permanent impairment to contribute, either medically or circumstantially, to the claimant’s need for both temporary disability and remedial treatment before the employer/carrier may be entitled to reimbursement. Special Disability Trust Fund v. Underwriters Adjusting Co., 383 So.2d 1167 (Fla. 1st DCA 1980).

The employer/carrier contend the claimant’s preexisting impairment contributed “circumstantially” to the claimant’s need for both temporary disability and medical treatment, relying upon the deputy commissioner’s finding that but for the claimant’s preexisting condition to her left arm, the injury to her right thumb would not have occurred. However, this argument is unsupported by the record. The deputy commissioner entered his order based solely upon the parties’ stipulation and there is nothing in the stipulation regarding the circumstances surrounding the accident and therefore no record evidence to support the deputy commissioner’s finding.

Since the employer/carrier are not entitled to reimbursement of 50% of the temporary total disability benefits paid to the claimant, the award of reimbursement for permanent partial disability benefits must also be reversed. The employer/carrier paid $3,680.40 in permanent partial disability benefits. Section 440.49(4)(c)l., Florida Statutes (1977) provides the employer/carrier with reimbursement “for the last 60%” of permanent partial disability benefits paid to the claimant subject to the limitations found in Section 440.49(4)(f), Florida Statutes (1977). The last 60% of the $3,680.40 in permanent partial disability benefits paid to the claimant is $2,208.24. Section 440.49(4)(f) provides for no reimbursement “unless the total amount otherwise reimbursable to the employer” is $3,000 or more. Therefore, if the employer/carrier are not entitled to reimbursement for 50% of the temporary total disability benefits paid to the claimant, then they are not entitled to reimbursement for the last 60% of the permanent partial disability benefits paid to the claimant because the total amount is below the $3,000 threshold requirement.

Consequently, the appealed order is reversed.

REVERSED.

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


text:
    Adam H. JONES, Richard F. Jones, Kenrick A. Jones and Kathleen M. Jones, Cross-Defendants, Appellants, v. HOLIDAY INNS, INC., a foreign corporation, Cross-Claimant, Appellee.
    No. AB-330.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 18, 1982.

      Robert L. Hinkle, of Hinkle & Battaglia, Tallahassee, for cross-defendants, appellants.
    Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for cross-claimant, appellee.
   SHIVERS, Judge.

This is an appeal from a final judgment of contractual indemnification. We reverse.

On September 7, 1974, two unidentified men entered the Downtown Holiday Inn in Tallahassee and committed a battery upon Beverly Sapp, a hotel employee, in the women’s restroom. Sapp filed a Third Amended Negligence Complaint against ap-pellee, Holiday Inns, Inc., and appellants, the operators of the hotel. Holiday Inns filed a cross-claim, seeking indemnity from appellants based upon an addendum in the Hotel’s License Agreement which provided:

The licensee [appellants] hereby agrees and covenants to hold the licensor [Holiday Inns, Inc.] harmless from, to indemnify the licensor against and to reimburse the licensor in respect of any judgments or awards of any courts whether such awards be in the form of damages, costs or otherwise which the licensor is required to pay and/or pays arising from the use of the licensee of the said service marks at the specific location under the provisions of this agreement.

On October 5, 1978, the trial court granted a summary judgment in favor of Holiday Inns on its cross-claim against appellants based upon the indemnity clause of the license agreement. The trial court also granted a summary judgment, on the basis of workers’ compensation immunity, for appellants on Sapp’s negligence claim against them.

Thereafter, Sapp’s claim against Holiday Inns proceeded to trial by jury. Appellants did not participate in the trial. The jury returned a general verdict in favor of Sapp and against Holiday Inns for $45,000 in compensatory damages and $175,000 in punitive damages. The judgment against Holiday Inns was later affirmed by this court in Holiday Inns, Inc. v. Sapp, Case No. AB-47 (Fla. 1st DCA, November 5, 1981). The trial court also entered a judgment on the indemnity claim in favor of Holiday Inns and against appellants in the amount of $237,424.87, including compensatory and punitive damages as well as attorney’s fees and costs.

We reverse the final judgment of indemnification because the indemnity provision of the license agreement did not expressly call for indemnification where the indemnitee (Holiday Inns) was at fault. Because of the disfavor in which Florida courts hold agreements to indemnify parties against their own wrongful acts, enforcement of such agreements is denied in the absence of clear .and unequivocal contractual expression of such an intent; without such an expression, a contractual indemnitor’s obligation is negatived by any fault of the indemnitee which was the legal cause of its own loss. Charles Poe Masonry v. Spring Lock Scaffolding Rental Equipment Company, 374 So.2d 487 (Fla.1979). There is no doubt the indemnity provision in question did not clearly and unequivocally call for appellee’s indemnification for judgments based upon its own negligence. Spring Lock, supra; Leadership Housing v. T & S Electric, 384 So.2d 733 (Fla. 4th DCA 1980); University Plaza v. Stewart, 272 So.2d 507 (Fla.1973); Walter Taft Bradshaw & Associates, P. A. v. Bedsole N. B. C. Homes, Inc., 374 So.2d 644 (Fla. 4th DCA 1979).

It is unclear whether the liability judgment against appellee was based upon appellee’s affirmative negligence or upon appellee’s vicarious liability for appellants’ conduct. The plaintiff, Sapp, sought to recover from appellee on an affirmative negligence theory as well as a vicarious liability theory. Although the jury was instructed on both theories, the general verdict against appellee did not indicate the basis upon which the jury found liability. However, since appellee, as the party seeking indemnification, had the burden of showing entitlement to indemnification and failed to request the use of a special verdict, the use of a general verdict should stand as a bar to indemnification. See, Aetna Insurance Company v. Waco Scaffold and Shoring Company, 370 So.2d 1149 (Fla. 4th DCA 1978), holding that the party seeking contribution has the burden of establishing whether the verdict was based upon covered or noncovered theories and where a general verdict was rendered making it impossible to deduce the theory of liability which inhered in the verdict, the party seeking contribution failed in its burden. Accord, Universal Underwriters Insurance Company v. Reynolds, 129 So.2d 689 (Fla. 2d DCA 1961).

More significant to our decision, however, is the award of punitive damages to Sapp against appellee. Punitive damages could only have been awarded against appellee on a vicarious liability theory if the jury had found appellee was at least partially at fault for Sapp’s injuries. Mercury Motors v. Smith, 393 So.2d 545 (Fla.1981). Consequently, it must be presumed that the jury found appellee was at least partially at fault for the plaintiff’s injury and based upon Spring Lock, supra, appellee is not entitled to contractual indemnification.

Therefore, the final judgment of indemnification in favor of appellee is reversed.

REVERSED.

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


text:
    TITLE AND TRUST CO. OF FLORIDA, Appellant, v. Saliba E. SALAMEH, Appellee.
    No. AC-238.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Earl M. Barker, Jr. of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellant.
    Paul M. Harden, Jacksonville, for appel-lee.
   PER CURIAM.

Plaintiff Salameh sued Title and Trust Company of Florida demanding delivery of a title insurance policy and attorney fees and costs. Prior to trial, the parties consummated an exchange whereby Salameh delivered an affidavit on his knowledge of a rumored title flaw and Title and Trust delivered the title insurance policy. Salameh then moved for summary judgment for attorney fees as a matter of law which Title and Trust denied on the grounds that the action was moot, that the complaint had been unnecessary and unreasonable, and that § 627.428(1), Florida Statutes (1980), did not provide for attorney fees under the circumstances of the case. The trial court granted Salameh’s motion for summary judgment and set for later hearing the amount of attorney fees to be awarded. At this later hearing, the trial court issued the judgment for attorney fees after denying Title and Trust’s evidence proferred for the purpose of showing that the suit and the attorney’s services were not necessary. We reverse and remand.

We note first that appellee has failed to file an answer brief as required by Fla.R.App.P. 9.210 and echo the words of our sister court in Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975) that omission of this responsibility to support the ruling of the trial court places an undue burden on the appellate court, and, if appellee believes the ruling is not worthy of support, he should confess error and join appellant in seeking a reversal.

Turning to the appeal itself, Fla.R. Civ.P. 1.510(c) requires that summary judgment only be granted where there is no genuine issue as to material fact and the movant is entitled to judgment as a matter of law. In the present ease Title and Trust raised the issue and contended that the filing of the complaint and the attorney’s services were unnecessary to enforce the commitment for title insurance. There was no judgment on the issue of non-performance. However, we do not deem such a judgment is essential, notwithstanding that § 627.428, Florida Statutes (1980) does state that the basis for awarding attorney fees is “[ujpon the rendition of a judgment or decree . . . against an insurer and in favor of an insured . . . . ” We regard the purpose of the statute is to “discourage litigation and encourage prompt disposition of valid insurance claims without litigation.” Gibson v. Walker, 380 So.2d 531, 533 (Fla. 5th DCA 1980). See also Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974). However, in the absence of a judgment there must be a showing and a finding that the suit and attorney services were necessary to obtain performance of the insurance contract. We deem that there was in this case such an issue on this material fact and that the entry of summary judgment was not justified.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SHAW and JOANOS, JJ., and BEN C. WILLIS, Associate Judge, concur.


author: ERVIN, Judge.

text:
    Dwight David CLARK, Appellant, v. Martha B. MUNROE and David P. Hopstetter, as personal representatives of the Estate of George W. Munroe, Jr., deceased, Appellees.
    No. AC-293.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Jackson G. Beatty of Culpepper, Beatty & Turner, Tallahassee, for appellant.
    Ken Davis and Larry D. Simpson of Davis, Judkins & Simpson, Tallahassee, for appellees.
   ERVIN, Judge.

Clark’s issue on appeal is that the lower court erred in granting summary judgment in favor of appellees and in failing to grant it in his favor. Upon review of the record we find that material issues of fact remain, precluding the entry of summary judgment for either party. Accordingly, we reverse the lower court’s order and remand the cause for proceedings consistent with this opinion.

We arrive at this conclusion despite the fact the trial court’s order recites that during the summary judgment proceedings, all parties stipulated that the entire case could be decided on the basis of the opposing motions for summary judgment raised by each party. Such a stipulation, even if made, had no effect. Although counsel may stipulate for use of a summary judgment procedure, or both move for it, the stipulation is not binding on the court where the prerequisites for summary judgment are not met. Osceola County v. Goodman, 276 So.2d 210 (Fla. 4th DCA 1973); Van Arsdale v. DiMil Land Co., 264 So.2d 85 (Fla. 4th DCA 1972). We do not interpret the above rule as authorizing the trial court to accept such a stipulation where the record reveals disputed issues of material facts. The parties cannot by stipulation control questions of law. Massachusetts Bonding & Ins. Co. v. Bryant, 175 So.2d 88 (Fla. 1st DCA 1965), affd., 189 So.2d 614 (Fla.1966). Moreover, “[c]ourts will not give effect to a stipulation where it conflicts with established principles of procedure.” (e.s.) See 2 Fla.Jur.2d, Agreed Case and Stipulation, § 10, p. 428 (1977); see also, Economy Cash and Carry Cleaners, Inc. v. Cleaning Dyeing and Pressing Board, 128 Fla. 408, 174 So. 829 (1937). Finally, summary judgment is not a substitute for trial. Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla. 2d DCA 1966).

Reversed and remanded for further proceedings consistent with this opinion.

THOMPSON, J., concurs.

BOOTH, J., dissents.

      . The transcript of the summary judgment proceedings which apparently contained the alleged oral stipulation was not made a part of the record on appeal.


text:
    Raymond MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. AC-383.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Michael Allen, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant raises two points in his appeal from his plea of nolo contendere to burglary and to possession of a controlled substance. In entering his plea, appellant specifically reserved his right to appeal the denial of his motion to suppress certain evidence. The denial of the motion to suppress was proper, and we affirm on that point.

As a second point, appellant challenges his sentencing by a judge other than the judge who accepted his plea. In support of that point, appellant relies upon Lawley v. State, 377 So.2d 824 (Fla. 1st DCA 1979), and Florida Rule of Criminal Procedure 3.700(c). In Lawley, this Court reversed and remanded for resentencing when a judge other than the trial judge sentenced the defendant. The Lawley decision emphasized the fact that Rule 3.700(c) provides for sentencing by a judge other than the one who heard the trial “[i]n those cases where it is necessary that sentence be pronounced by a judge other than the judge who presided at trial.” The court noted that the committee notes following the rule “makes provision for emergency situations where [the trial] judge is unavailable.” The court concluded that “a judge other than the trial judge should not exercise discretion as to sentencing absent an emergency that necessitates such a variance from the normal practice” and thereupon remanded for resentencing by the trial judge.

The Lawley decision is not controlling as this case involves only a plea and no trial, and appellant has made no showing that he has been prejudiced by the substitution. The transcript shows no reason why a substitute judge who has made himself thoroughly familiar with the case file would not be as well qualified to handle the sentencing as the judge who had merely accepted the plea but who had not been exposed to a trial in the case. Therefore, we decline to extend to the facts of this case the Lawley requirement that a finding of emergency must be shown pursuant to Rule 3.700(c) before substitution of the sentencing judge can be deemed proper.

AFFIRMED.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    William Mack ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. AC-467.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Michael Allen, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals his convictions after trial by jury of burglary and dealing in stolen property. We affirm in part and reverse and remand to the trial court for entry of an order clarifying the sentence.

At sentencing, the trial judge orally sentenced appellant to a term of five years for burglary and to a concurrent five-year term for dealing in stolen property. However, in the written judgment and sentence which was signed in open court the same day, the sentence reads five years for burglary and 15 years for dealing in stolen property, to run concurrently. Appellant contends that the discrepancy between the oral announcement and the written order relating to the sentence imposed on possession of stolen property requires the case to be remanded with directions to the trial court to correct the clerical error in the written order. Compare Badger v. State, 398 So.2d 984 (Fla. 1st DCA 1981), in which, at sentencing, the trial court orally imposed a term of 10 years on the defendant, but in the written order of judgment and sentence, the defendant was sentenced to a term of 15 years. This Court remanded “with directions to the trial court to correct the apparent clerical error.” See also Gatti v. State, 324 So.2d 193 (Fla. 3rd DCA 1975), upon which the Badger decision relied. Ap-pellee, however, contends that the “clerical error” is not in the written order but is an error in the transcript of the sentencing hearing.

Since the parties in this case are in dispute as to where the “error” occurred, the case is remanded to the trial court with directions to determine whether the transcript was in error or whether a clerical error was made in the written order and to, thereupon, enter an order clarifying the sentence.

We have considered the other point raised by appellant and find it to be without merit.

Affirmed in part and reversed and remanded to the trial court for proceedings consistent with this opinion.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: JOANOS, Judge.

text:
    James Robert TERRELL, Appellant, v. STATE of Florida, Appellee.
    No. AD-190.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.

      Gene T. Moss, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

After trial by jury, defendant was found guilty and convicted of possession of Metha-qualone and cocaine. Defendant argues that the conviction should be reversed on two grounds. First, defendant objects to the State’s use of a discovery deposition which was read into evidence when the Court determined that the witness was unavailable. Second, the defendant contends that the trial court erred in denying the motion to suppress evidence discovered after a warrantless search of defendant’s motel room. We agree that the deposition was improperly admitted into evidence and reverse on the first point. With regard to the second point, however, we find no error.

The contested deposition was taken by defense counsel for purposes of discovery under Rule 3.220(d), Fla.R.Crim.P.; the defendant was not present when the deposition was taken. The witness who gave the deposition was a key State witness (the informant who arranged and participated in the drug transaction) and his testimony was definitely prejudicial. The State sought to admit the deposition into evidence at trial by proving that the witness had become unavailable. After hearing testimony by a police officer that the witness had disappeared prior to trial and that police had made numerous unsuccessful attempts to locate him, the trial judge held that the deposition was admissible.

The substantive use of a deposition taken solely for the purpose of discovery has been held to be improper under the Florida Rules of Criminal Procedure. State v. James, 402 So.2d 1169 (Fla.1981); State v. Basiliere, 353 So.2d 820 (Fla.1978). Both of these cases reach the unequivocal conclusion that a deposition taken pursuant to Rule 3.220(d) may be used for impeachment purposes only. In order to use a deposition as substantive evidence, it must be taken in compliance with Rule 3.190(j), which sets forth the requirements for perpetuating testimony. These requirements were not met in the present case; therefore, the deposition was inadmissible.

The State has argued that Basiliere and James are distinguishable due the recent passage of § 90.804(2)(a) as part of the Florida Evidence Code. That statute provides that where a declarant is unavailable, the following is not excluded as hearsay:

Testimony given as a witness at another hearing ... or in a deposition taken in compliance with law in the course of the same or other proceeding, if the party against whom the testimony is now offered, .. . had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination.

Even assuming that testimony at a discovery deposition is taken with a “similar motive” as examination at trial, § 90.-804(2)(a) cannot be used to justify admission of the deposition. The deposition in this case was inadmissible as evidence because it failed to comply with the Rules of Criminal Procedure, not because it was “hearsay.” The necessity of meeting the procedural requirements for the taking of depositions is recognized in § 90.804(2)(a), which states that the deposition must be “taken in compliance with law.”

Although we reverse and remand for a new trial on the first point, we feel that it is appropriate to reach the second point so that it will not be necessary to reargue it if a new trial occurs.

Defendant was occupying a motel room with two other persons when police officers entered the room. The officers did not have a search warrant, but they did have an outstanding arrest warrant for one of the co-occupants, Mr. Powe. The police officers’ entry into the motel room occurred only after a drug transaction set up between a confidential informant and Powe took an unexpected turn of events. The police had originally planned for a pre-ar-ranged exchange of drugs and money to take place in the parking lot, where the arrest would be made. As the officers watched, however, Powe and the informant walked to the informant’s car and, without giving the informant any drugs, Powe and the informant returned to the motel room with the money. Fearful for the informant’s safety and for the recovery of the State’s money, the officers converged upon the motel room and entered the next time the door opened. This entry was justified due to exigent circumstances as well for the purpose of arresting Powe, a co-occupant of the motel room. The officers then searched the room and defendant’s car with his consent, which the trial court determined was freely and voluntarily given. We find, therefore, that both the initial entry into the motel room and the resulting search were valid and the trial judge was correct in not suppressing the evidence obtained.

AFFIRMED, in part, but REVERSED and REMANDED for a new trial consistent with this opinion.

SHAW, J. and VICTOR M. CAWTHON, Associate Judge, concur.


text:
    CROWN PAINT, INC., Appellant, v. Frank NICOLAU, Appellee.
    Nos. 81-425, 81-493.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellant.
    Myers, Kaplan, Levinson, Kenin & Richards and Thomas R. Spencer, Jr., Miami, for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See: Bobenhausen v. Cassat Avenue Mobile Homes, Inc., 344 So.2d 279 (Fla. 1st DCA 1977); Drennen v. Westinghouse Electric Corporation, 328 So.2d 52 (Fla. 1st DCA 1976); Saunders Hardware Five and Ten, Inc. v. Low, 307 So.2d 893 (Fla.3d DCA 1974); Richard v. Gray, 62 So.2d 597 (Fla.1953).


text:
    Norman D. WOLFER, as Personal Representative of Duane D. Wolfer, Deceased, on behalf of the decedent’s survivors, Norman D. Wolfer and Sean A. Wolfer, and the Estate of Duane D. Wolfer, Deceased, Appellants, v. GEORGE HYMAN CONSTRUCTION COMPANY, Appellee.
    No. 80-624.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Frank A. Shepherd, Miami, for appellants.
    Dixon, Dixon, Hurst, Nicklaus & Webb and M. Stephen Smith, III, Miami, for ap-pellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Motchkavitz v. L. C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981).


text:
    Felix RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1305.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Defendant’s conviction for attempted burglary of a dwelling is affirmed; however, the enhanced sentence imposed is reversed and vacated and the cause remanded to the trial court with directions to resen-tence the defendant.

Prior to sentencing a defendant as an habitual felon, the court must find that the extended sentence is necessary to protect the public from further criminal activity, and the basis for this finding must appear in the record. See Eutsey v. State, 383 So.2d 219 (Fla.1980); Eichhorn v. State, 386 So.2d 604 (Fla.5th DCA 1980); Ruiz v. State, 384 So.2d 723 (Fla.3d DCA 1980); Adams v. State, 376 So.2d 47 (Fla.1st DCA 1979). Because the trial court did not specify the reasons why the habitual offender act, section 775.084, Florida Statutes (1979), was being invoked, we reverse the sentence and remand for resentencing in accordance with this opinion.


text:
    Roberto Wenceslao VAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-14, 81-15.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    George Nicholas, Miami, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Roberto Vazquez alleges multiple error for his convictions in three separate cases. The only point with merit that is presented is the imposition of sentence for possession with intent to sell and sale or delivery; both charged in the same information. In that respect the appellant is correct in his contention that he may not be sentenced on both these charges arising from a single transaction. State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Accordingly, we vacate the sentence imposed for possession of cocaine in Case No. 80-4144 and otherwise affirm in all respects. Rodriguez v. State, 395 So.2d 555 (Fla. 2d DCA 1981); Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979).

Affirmed as modified.


author: FERGUSON, Judge.

text:
    In re The ESTATE OF Stephen CICCORELLA, Deceased. Patricia L. CICCORELLA, Appellant, v. Arleigh P. CICCORELLA, Personal Representative of the Estate of Stephen Ciccorella, deceased, Appellee.
    No. 81-100.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Nelson & Nelson and Stephen H. Nelson, Hialeah, for appellant.
    Philip E. Vitello, Fort Lauderdale, and Neil R. Bradie, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

We affirm the order of the trial court finding that the deceased was competent in December, 1977 at the time he executed a second codicil to the contested will. We hold that Section 733.109(l)(b), Florida Statutes (1979) did not create an entitlement to jury trial as a matter of right with respect to the issue of testamentary capacity. Allen v. Estate of Dutton, 394 So.2d 132 (Fla. 5th DCA 1980). In this case, the relevant testimony is as to the capacity of the decedent on the date he executed the second codicil. Miller v. Flowers, 158 Fla. 51, 27 So.2d 667 (1946). It is not the responsibility of this court to resolve conflicting evidence. Because there is competent evidence in the record to support the determinations of fact made by the trial court, the order is

AFFIRMED.


author: SCHWARTZ, Judge.

text:
    John H. ROBERSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. 81-2171.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Rosa H. Carson and Catherine L. Dickson, Tallahassee, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Roberson, a state- prisoner incarcerated in this district, claims that his presumptive parole release date was erroneously based upon false information contained in his pre-sentence investigation and has filed an administrative appeal from that determination pursuant to Section 120.68, Florida Statutes (1979) and Fla.R.App.P. 9.110. We hold that no such proceeding may be maintained and therefore dismiss the appeal.

(1) A party who is adversely affected by final agency action is entitled to judicial review ....
(2) Except in matters for which judicial review by the supreme court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida Appellate Rules.

In our view, this result is required by the clear terms of that portion of Section 120.-52(10)(d) which states that

Prisoners as defined in s.944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s.120.-54(16) or s.120.57. . ,

The definition contained in Section 120.57 itself, in turn, plainly encompasses the proceeding which results in the fixing of a presumptive parole date — about which the appellant complains but from which he is excluded by Section 120.52(10)(d). Section 120.57 is entitled “Decisions which affect substantial interests,” and specifically states that “[t]he provisions of this section shall apply in all [e.s.] proceedings in which the substantial interests of a party are determined by an agency.” It cannot be gainsaid that this exactly fits the parole date determination. And, since Roberson is not a party to the Section 120.57 proceeding, by an application of the most basic rules of logic and law he cannot be a party entitled to appeal under Section 120.68 from an adverse order in that proceeding.

We acknowledge the obvious fact that this conclusion is directly contrary to Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). While we admire its erudition, we do not believe that Daniels may be squared with the clear meaning of the pertinent statutes. It seems to be based upon the conclusion that, although the parole-date-fixing process is one which culminates in agency action adversely affecting a prisoner’s rights for 120.68 appellate purposes, it does not fall under 120.57, which specifically and directly includes it. Instead, it is classified by the first district so as to avoid the effect of 120.52(10)(d) as another, unnamed, penum-bral action subject to the APA but not to 120.57. We cannot agree to this sort of result-oriented definitional process.

For these reasons, we dismiss the appeal without prejudice to Roberson’s assertion of any other remedies which may be available to him.

Appeal dismissed.

      . 120.68 Judicial review.—

      . Sec. 120.54(16) involves the so-called “draw out” rulemaking process to be conducted under Sec. 120.57.
      As the first district noted in Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351, 1355, n.6 (Fla. 1st DCA 1981), prisoners remain unexcluded from several types of proceedings provided by the APA, e.g., Sec. 120.-54(3)-(6), 120.57. They may therefore also secure appellate review of adverse determinations in those proceedings — but obviously not one under Sec. 120.57 — pursuant to Sec. 120.-68.

      .We are informed that the supreme court has issued an order to show cause in the prohibition proceeding instituted by the commission in the Daniels case. Florida Parole & Probation Commission v. District Court of Appeal, First District, State of Florida, Case no. 61,210, filed September 22, 1981.

      . With the greatest respect, we cannot help being reminded of the manner in which the fabled Elders of Chelm dealt with a similar problem. Faced with a shortage of sour cream required for a traditional holiday dish, they enthusiastically adopted the suggestion of one of their number who stated:
      Let us make a law that water is to be called sour cream and sour cream is to be called water. Since there is plenty of water in the wells of Chelm, each housewife will have a full barrel of sour cream.
      Of course this led to another difficulty.
      That Pentecost there was no lack of ‘sour cream’ in Chelm, but some housewives complained that there was a lack of ‘water.’ But this was an entirely new problem, to be solved after the holiday.
      I. B. Singer, When Shlemiel Went to Warsaw & Other Stories (1968).

      . We recognize that, in this as in so many instances, the delineation of the remedy largely determines the right. Our holding that there is no appellate review of Roberson’s complaint that the commission considered false evidence which he was not permitted to cross-examine under Chapter 947 procedure, as he would under 120.57, means that no such privilege exists. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). (One criticism of the Daniels case is that, by permitting review under 120.68, it necessarily grants rights — such as those to the contents of a final order required by 120.59, see 401 So.2d 1356, n.10 — which the legislature meant to preclude by 120.52(10)(d). See note 4, supra).

      Moreover, since there is no allegation of the violation of a clear legal right which would support a mandamus action, see Moore v. Florida Parole & Probation Commission, 289 So.2d 719 (Fla.1974), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974); Daniels v. Florida Parole & Probation Commission, supra, at 401 So.2d 1352-53, it would seem that the only means by which Roberson’s complaints may be redressed would be (when the issue becomes timely by virtue of his being otherwise entitled to release) by habeas corpus either in the trial court or in the appropriate district court, perhaps with the appointment of a commissioner to resolve the factual issues. See Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981); Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980).
      It should be added that Roberson should have been given the opportunity to challenge any known misstatements in the p. s. i. before sentencing. Eutsey v. State, 383 So.2d 219, 226 (Fla.1980). If he was not or if any falsities were discovered thereafter, a motion under Fla. R.Crim.P. 3.850 to vacate the sentence might well be available.


author: NESBITT, Judge.

text:
    Jack Teigh BLUME, Appellant, v. AMERICAN MOTORIST INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 80-1396.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Horton, Perse & Ginsberg and Edward A. Perse, Ronald Jabara, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Owen Ricker, Jr. and A. H. Toothman, Miami, for appel-lee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

Blume, the insured commenced this action for a declaratory judgment that the defendant insurance company be required to pay 100% of the insured medical bills— 80% out of available personal injury protection (PIP) coverage and 20% out of available medical payments coverage — even though all available personal injury coverage had not been exhausted. After a non-jury trial, the court entered a judgment in favor of the defendant. We affirm.

The policy in dispute contains separate declarations for medical coverage payment and PIP. Under the PIP benefits, the insurer was required to pay 80% of all medical expenses up to the policy limits of $10,-000. Under the medical coverage payments, the insurer was obligated to pay 100% of medical payments not to exceed $5,000.

Section 627.736, Florida Statutes (1979) provides that PIP benefits are primary and mandatory, while medical payment coverage is optional. Moylan v. State Farm Mutual Automobile Insurance Company, 343 So.2d 56 (Fla. 4th DCA 1977). Accord, Florida Farm Bureau Casualty Insurance Company v. Fichera, 366 So.2d 867 (Fla. 4th DCA), cert. denied, 376 So.2d 71 (Fla.1979). Furthermore, the insurance policy unambiguously states that medical payments insurance will be excess over any PIP benefits.

Any automobile medical payments insurance .. . afforded by the policy shall be excess over any personal injury protection benefits paid or payable ... If automobile medical payments insurance is afforded by this policy, that insurance shall be applicable for medical expenses incurred within three years beginning on the date all personal injury protection benefits have been exhausted, (emphasis supplied)

The declaration concerning medical payments coverage provided:

Any amounts otherwise payable for expenses under this coverage (medical payments coverage) shall be reduced by any amounts paid or payable for the same expenses under any Auto Liability or Uninsured Motorist Coverage provided by this policy.

We cannot interfere with the plain and unambiguous provisions of an insurance policy where the parties are free to contract. Moylan, supra. Consequently, we find that the trial court correctly determined that PIP benefits must be exhausted prior to payments from medical payment coverage.

Appellant’s reliance on Holloway v. State Farm Mutual Insurance Company, 370 So.2d 452 (Fla. 4th DCA 1979) does not alter the result reached in the present case. In Holloway, the insured presented two claims for: (a) medical benefits; and (b) loss of income. Medical expenses were covered by PIP and medical payment coverage, while loss of income was only covered by PIP. The insurance company had used PIP to pay medical bills and denied any further claims for loss of income because the PIP coverage had been exhausted. The insured claimed the right to use PIP for loss of income and when exhausted, to use medical payment coverage for medical expenses. The court recognized that PIP coverage is primary and must be exhausted before medical payment benefits became available, but permitted the insured to elect the manner in which the payments were applied so as to maximize the benefits. Consequently, insofar as Holloway, supra, recognized that PIP must be exhausted prior to the use of medical payment coverage, that decision is consistent with the decision in the present case.

For the foregoing reasons, we affirm.


author: BASKIN, Judge. NESBITT, Judge

text:
    Harold C. SMITH and Maude A. Smith, Appellants, v. J. Bruce VINING, Appellee.
    Nos. 79-915, 80-1372.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 21, 1982.

      Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin and Joel D. Eaton, Barranco, Darlson & Daniel, Miami, for appellants.
    Edward C. Vining, Jr., Miami, for appel-lee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

We approved the trial court’s finding that real estate broker J. Bruce Vining failed to inform Harold and Maude Smith of certain material facts pertaining to his sale of their property when we affirmed a summary judgment against Vining on the issue of his liability to the Smiths for the fraudulent secret profit he obtained. Vining v. Smith, 343 So.2d 871 (Fla.3d DCA 1977), cert. denied, 355 So.2d 518 (Fla.1978). On remand, trial resulted in a jury award to the Smiths of compensatory damages totaling $154,000 and punitive damages of $77,000. In response to a motion filed by Vining, the court granted a new trial predicated upon its belief that the jury failed to consider Vining’s expenses in determining compensatory damages and failed to consider Vin-ing’s financial resources in computing punitive damages. We reverse because our examination of the record discloses no impropriety on the part of the jury. Putnam Lumber Co. v. Berry, 146 Fla. 595, 2 So.2d 133 (1941).

The jury was empowered to evaluate the evidence and appears to have complied with the court’s instructions. An order granting a new trial is appropriate only when the verdict is against the manifest, weight of the evidence or when it is influenced by considerations outside the record. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Cloud v. Fallís, 110 So.2d 669 (Fla.1959); see Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Neither defect appears in this record.

We reject as incorrect the court’s explanation that because punitive damages were half the amount of compensatory damages a new trial on punitive damages became necessary when the court granted a new trial on compensatory damages. Although punitive damages must bear a relationship to the fact of injury or invasion of legal right, they need not bear a reasonable relationship to the actual damages awarded by the jury. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976). The degree of punishment to be imposed is a matter for jury decision and punitive damages will be held excessive only when they bear no relation to the amount a defendant is able to pay and when the tort lacks the required degree of malice or disregard for rights.

Although Vining did not produce a statement of net worth, the jury heard testimony regarding his ownership of property and of assets from which it could determine his ability to pay. Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975); Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969). Contrary to the trial court’s statement, the verdict was not against the manifest weight of the evidence. Cloud v. Fallis, supra. In our opinion, the trial court acted under an erroneous legal assumption in ordering a new trial. United States Life Insurance Company in the City of New York v. Town & Country Hospital, Inc., 390 So.2d 71 (Fla.2d DCA 1980); City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977); National Western Life Insurance Co. v. Walters, 216 So.2d 485 (Fla.3d DCA 1968).

We find no material error in the procedure utilized to reconstruct the record following the removal from the clerk of the original exhibits introduced at trial. Harmon v. Department of Health & Rehabilitative Services, 364 So.2d 788 (Fla. 1st DCA 1978).

For these reasons, we reverse the order granting a new trial and remand the cause to the trial court with directions to reinstate the jury’s verdict and enter judgment with interest from the original entry date of the judgment. The Order Correcting and Supplementing the Record on Appeal is affirmed.

NESBITT, Judge

(specially concurring in part, dissenting in part):

I concur only with respect to the affirmance of the order reconstructing the record.

I strongly disagree with the reversal of the trial judge’s order granting a new trial. A stronger showing is required to upset an order granting a new trial than an order denying a new trial. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). In Castlewood International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla.1976), the principle with respect to an order granting a new trial was reiterated:

Since at least 1962, it has been the law of Florida that a trial court’s discretion to grant a new trial is “of such firmness that it would not be disturbed except on clear showing of abuse . . .. ” Cloud v. Fallis, 110 So.2d 669, 672 (Fla.1959). A heavy burden rests on appellants who seek to overturn such a ruling, and any abuse of discretion must be patent from the record. See Hendricks v. Dailey, 208 So.2d 101, 103 (Fla.1968); Russo v. Clark, 147 So.2d 1, 3-4 (Fla.1962).

Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. Castlewood, supra, at 522.

The trial court’s order with respect to the compensatory damages stated:

The competent and uncontradicted testimony introduced at trial showed without serious dispute by Plaintiffs that the Defendant incurred Ten Thousand ($10,-000) Dollars expenses in connection with holding the real property purchased from the Plaintiffs. The court instructed the jury to consider these expenses in making its award of compensatory damages. The award of compensatory damages is in the amount of One Hundred and Fifty Four Thousand ($154,000) Dollars. The award does not take into consideration the expenses incurred. In light of the record, the jury’s compensatory award demonstrates that the jury failed to consider the element of the Defendant’s expenses as instructed by the Court.

Neither the majority nor the appellant can explain away this spectre which infected the jury verdict. The appellant urges several different theories to- support his contention that the award was consistent with the evidence presented. It is precisely the type of speculation which the appellants would have us engage in that leads me to conclude that the trial judge was in the best position to determine the impropriety of the jury verdict.

While it is true that the superior vantage point does not give a trial judge unbridled discretion to order a new trial, see Wackenhut v. Canty, 359 So.2d 430 (Fla.1978), where, as here, the evidence supports the trial judge’s order that the verdict is contrary to the manifest weight of the evidence, that order must be affirmed.

Further, Defendant’s testimony that he had no net worth was uncontradicted by Plaintiff. The Court instructed the jury to consider the financial resources of the Defendant in fixing the amount of punitive damages. The jury awarded Seventy Seven ($77,000) Thousand Dollars in punitive damages. In light of the testimony, such an award is excessive as bearing no relation to the amount the Defendant is able to pay and would result in economic castigating of the Defendant.
The Court is compelled to conclude that the jury did not have sufficient criteria to evaluate punitive damages and was not instructed on the reference of ability to pay and any resulting bankruptcy. See Canty v. Wackenhut Corp., 311 So.2d 808 (Fla.3d DCA 1977). As a result, the jury misconceived the law in awarding the punitive damages.

There was sufficient justification in the record for the trial judge’s conclusion that the verdict was contrary to the manifest weight of the evidence.

As a final effort with respect to the compensatory damages, the appellants contend that a remittitur of $10,000 would be proper as an alternative to a new trial. Despite the fact that the trial judge’s order specified $10,000, from the record as well as appellants’ arguments (see n. 1), it is apparent that the amount is unclear. Consequently, it would be improper to order a remittitur. See Wackenhut Corporation v. Canty, supra, at 434 (Fla.1978).

      . J. Bruce Vining failed to inform the Smiths that the State of Florida was interested in the property, that its value had increased, and that Vining was the actual purchaser of the property.

      . In Wackenhut Corp. v. Canty, supra, the court acknowledged that in Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976), it had repudiated the requirement that punitive damages bear a reasonable relationship to compensatory damages.

        .Wackenhut Corp. v. Canty, supra, citing Maiborne v. Kuntz, 56 So.2d 720 (Fla.1952) and Zippy Mart, Inc. v. Mercer, 244 So.2d 522 (Fla. 1st DCA 1970).

      . The alleged $10,000 in expenses includes interest payments to mortgage holders in the amounts of $4,895.80 and $5,391.87 for a total of $10,287.67. Appellants argue that the jury could have concluded: (1) because defendant admits that part of the $5,391.87 did not relate to any “expense” incurred in connection with plaintiffs’ property, the jury was entitled to disregard the figure entirely: or (2) the money was borrowed for economic reasons unrelated to the property: or (3) the interest opportunity on the “secret profit” was greater than the interest expense and therefore the money earned offset the money expended; or (4) an upward adjustment in the award should be made for prejudgment interest which when offset by the expenses equalled the award given.


text:
    UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Appellant, v. Don SCHLOESSER, Richard Kerr, Gerald Hernandez, Curt Blair, George Dolezal, as and constituting the Board of County Commissioners of Monroe County, Florida; John R. Edwards, Sr., Trustee; A. Paul Bismarck; his wife, Bessie Lee Bismarck; William H. Snelling; and Edith Lounsbury, Appellees.
    No. 80-2412.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Edward B. Johnson, Jr., Key West, for appellant.
    W. Randall Winter, Albury, Morgan & Hendrick and James T. Hendrick, Key West, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Appellant, a citizen’s group interested in preserving the quality of life in the Florida Keys and Monroe County, challenges a final judgment of the Monroe County Circuit Court upholding a decision of the Monroe County Zoning Board (Zoning Board) and the Monroe County Board of County Commissioners (Commission) which approved an application for a zoning change on a parcel of property in Key Largo.

Appellee John R. Edwards, Sr. applied to rezone twelve acres from RU — 4, Townhouse Residential District, to RU — 7, Residential Tourist District, which provides for hotel, motel or tourist accommodations and certain accessory uses. Public hearings were held and the appellant, along with A. Marie Sherr, an adjacent property owner, and Robert Strong, who had contracted to purchase a condominium unit in Buttonwood Bay which adjoined the Edwards property, objected to the zoning change.

At the first hearing on March 28, 1979, the Zoning Board voted three to one to approve Edwards’ rezoning application and a preliminary development plan for a hotel and related facilities. The development was given final approval in October, 1979 by a four to one vote of the Zoning Board. This action was appealed to the Commission which denied the appeal. In April, 1980, appellant and Robert Strong, plaintiffs below, filed a complaint in circuit court to set aside the actions of the Zoning Board and the Commission. At a non-jury trial, appellant and Strong contended that twenty percent of the adjoining property holders to the Edwards parcel opposed the zoning amendment and as a consequence, the Zoning Board could only pass the rezoning by a four to one vote, whereas the actual vote was three to one. The plaintiffs reasoned that at the time of the hearings, there were only two title holders of adjacent property, Mrs. Sherr to the east, and Buttonwood Bay Associates, the condominium developer, to the west. Since one of the two adjacent property holders, Mrs. Sherr, objected to the rezoning, the four-fifths vote was mandated. Appellees, on the other hand, contended that twenty percent of the property holders did not oppose the amendment and a four-fifths vote was not required on the basis that the seventeen holders of binding contracts to purchase condominium units in Buttonwood Bay were adjoining property holders for purposes of the twenty percent rule.

The trial judge found merit in the appel-lees’ contentions and entered a final judgment for the Commission and John R. Edwards, Sr., the following provisions of which are germane to this appeal:

“1. Plaintiff, ROBERT G. STRONG, has standing to bring this action because he is an adjoining property holder whose interest in the subject matter of this action differs in kind from the general public. Because of the proximity of his condominium unit to the subject (EDWARDS) property, he is directly interested in the rezoning and the Major Development actions challenged herein. However, the plaintiff UPPER KEYS CITIZENS ASSOCIATION, INC. and the other individual Plaintiffs have failed to demonstrate that they have a special interest in the subject matter of this action, and therefore are not ‘aggrieved parties’ within the meaning of the Monroe County Zoning Ordinance. The Court finds that the Plaintiffs, other than ROBERT G. STRONG, lack standing to challenge the actions of the Zoning Board and Board of County Commissioners, except insofar as those actions are alleged to be illegal.
2. Plaintiffs failed to establish before the Zoning Board at its March 28, 1979 meeting, that twenty percent (20%) of the ‘adjoining property holders’ (Chapter 65-1942, Laws of Florida) opposed the proposed re-zoning. Moreover, the original appeal from the March 28, 1979 rezoning resolution failed to specify as a ground for appeal, the alleged violation of Chapter 65-1942, as required by Article V, Section 4.2 of the Zoning Ordinance. Nor did the Plaintiffs prove before this Court that 20% of the adjacent property holders as of the March 28, 1979 action, registered their opposition to rezoning. The Court finds that the property of Lamar Louise Curry, one of the alleged adjacent holders, is separated from the subject parcel by Highway U. S. 1, and cannot be considered ‘adjoining property’. The property abutting the subject parcel to the West was, according to the testimony of George DeCarion, under contract to a large number of persons who subsequently took title to the condominium units in the two multi-story buildings immediately adjoining the subject parcel. The Court has personally viewed this ‘Buttonwood Bay’ condominium site, and is of the opinion that the ‘W’ and ‘X’ buildings, separated from the subject parcel by only a commonly-held private road, are properly considered ‘adjoining properties’. The other ‘Buttonwood Bay’ buildings are too distant and separated by canals from the subject property to be considered ‘adjoining’. The several holders of binding contracts to purchase ‘W’ and ‘X’ condominium units should not be excluded from the group of ‘adjoining property holders’ whose opposition could trigger the special majority requirement of Chapter 65-1942. Plaintiffs proved only that Mrs. Sherr, who owned the adjoining parcel to the East, and Mr. Strong, one of two joint holders of an adjoining condominium unit, timely opposed the rezoning. Accordingly, Plaintiffs have failed to establish that 20% of the adjoining property holders voiced their opposition to the proposed re-zoning at or prior to the March 28, 1979 hearing. Moreover, of the adjoining property holders, only Mr. Strong is before this Court. Mrs. Sherr did not join in this appeal, and the Court questions the standing of these Plaintiffs to press her objection before the Court, when she did not see fit to join in this action.”

Appellant now seeks review of this judgment.

Although appellee Monroe County has belatedly challenged appellant’s standing to attack the actions of the Zoning Board and Commission on the grounds that appellant is not an “aggrieved party,” Chabau v. Dade County, 385 So.2d 129 (Fla. 3d DCA 1980), and has not alleged any special injury differing in kind from that suffered by the public generally, see United States Steel Corp. v. Save Sand Key, Inc,, 303 So.2d 9 (Fla.1974); Hemisphere Equity Realty Co., Inc. v. Key Biscayne Property Taxpayers Ass’n, 369 So.2d 996 (Fla. 3d DCA 1979), we are satisfied that the trial court properly determined that appellant "has standing to challenge the actions of the Zoning Board and Commission to the extent that the zoning amendment was illegally enacted or that the proceedings were irregular. See Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981); Upper Keys Citizens Association, Inc. v. Wedel, 341 So.2d 1062 (Fla. 3d DCA 1977).

Having determined that appellant has standing for the limited purpose of testing the validity of the enactment itself, we address only those issues raised which deal with the legality vel non of the Zoning Board’s actions.

Both sides have agreed that the dispute herein centers on Chapter 65-1942, Section 1, Laws of Florida, which provides that the Zoning Board of Monroe County or the Board of County Commissioners shall not grant an amendment to an existing zoning plan where the change in zoning is opposed by twenty percent or more of the adjoining property holders, except by a favorable vote of four-fifths of the Board.

Accordingly, the dispute boils down to how many adjoining property holders there are and what percentage of them opposed the rezoning of the Edwards property.

Based upon our review of the record, briefs and arguments of counsel in this case, we find that the trial court properly characterized the seventeen holders of binding contracts to purchase condominium units in the Buttonwood Bay buildings as adjacent property holders. See Hull v. Maryland Casualty Company, 79 So.2d 517 (Fla.1954); J. C. Penney Company, Inc. v. Koff, 345 So.2d 732 (Fla. 4th DCA 1977) (under doctrine of equitable conversion, where vendor and purchaser enter agreement for conveyance of title to realty, purchaser immediately becomes beneficial owner and vendor retains only naked legal title as security for payment of purchase price.) As the persons most affected by any subsequent zoning changes, the individual unit purchasers, rather than the developers, are the ones who should receive the protection afforded by the twenty percent rule since developers simply convey the units, receive the profits, and do not ordinarily reside in the condominium. See generally Hope v. City of Gainesville, 355 So.2d 1172 (Fla.1977). Inasmuch as only one of the seventeen unit owners, Robert Strong, along with Mrs. Sherr, opposed the rezoning, we hold that appellant failed to establish the requisite twenty or more percent necessitating a four to one vote by the Board.

Our conclusion that appellant failed to establish a twenty percent opposition to the rezoning renders unnecessary resolution of appellant’s remaining issue, that the trial court erred in finding that the rezoning was not finally granted until the October 26, 1979 hearing by a four to one majority of the Zoning Board.

Finding no reversible error has been demonstrated, we affirm the final judgment under review.

      . Plaintiff Strong has not joined in this appeal.

      . Consequently, we do not address the merits of appellant’s suit which alleges that the rezoning violated the Monroe County Land Use Plan.


text:
    Betty FOGEL and Israel Fogel, Appellants, v. WINN DIXIE STORES, INC., a Florida corporation and Jefferson Stores, Inc., a foreign corporation, Appellees.
    Nos. 81-566, 81-896.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Meyer, Leben & Fixel and Maurice Fixel, Hollywood, for appellants.
    Vernis, Bowling, West, Montalto & Goodman, Coconut Grove, Fuller & Feingold and Lawrence A. Fuller, Miami Beach, for ap-pellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the summary judgment entered in favor of the defendants, Jefferson Stores, Inc., the shopping center owner, and Winn Dixie Stores, Inc., Jefferson’s tenant and operator of a grocery store, upon a holding that, viewing the evidence most favorably to the plaintiffs, there exist genuine and material issues of fact precluding the entry of summary judgment, Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977), Holl v. Talcott, 191 So.2d 40 (Fla.1966), including (a) whether the ramp upon which Betty Fogel says she fell was negligently designed by Winn Dixie and, if so, the design negligently approved by Jefferson; and (b) whether the purpose and location of the ramp were such that Jefferson or Winn Dixie, or both, had a duty to maintain it, and whether such duty was breached. Our holding that summary judgment was improper requires us to reverse the separate cost judgment entered in favor of the defendants and obviates the necessity of addressing other grounds for reversal asserted by the plaintiffs.

Reversed and remanded.


author: PER CURIAM. FERGUSON, Judge

text:
    Donald GOODWIN, Appellant, v. Gilberto FIGUEROA and Roberta Figueroa, Appellees.
    No. 81-928.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Donald Goodwin, in pro. per.
    No appearance for appellees.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from an order denying a motion to abate for improper venue. We reverse.

The parties contracted for the sale of a boat owned by Goodwin. The Figueroas, as prospective purchasers, were required to deposit $4,000. When the Figueroas, alleging they were unable to obtain financing and thus complete the agreement, requested return of the deposit, Goodwin refused, claiming the deposit constituted liquidated damages. The Figueroas filed suit in Dade County Circuit Court claiming that financing was an agreed condition precedent to the contract and that Goodwin was being unjustly enriched by retaining the deposit. Goodwin timely filed a motion to abate the action, claiming improper venue. His affidavit in support of the motion to abate stated that he was a resident of Lee County; the contract was entered in Lee County; and any acts performed by him were to be performed in Lee County. After a hearing, the trial court denied the motion, and Goodwin instituted this appeal.

The Figueroas, as plaintiffs, had the right to select the venue, Houston v. Caldwell, 359 So.2d 858, 860 n. 3 (Fla.1978), but that selection is limited by Section 47.011, Florida Statutes (1979), to the county where (1) the defendant resides; (2) the cause of action accrued; or (3) the property in litigation is located. Since it is undisputed that Goodwin, the defendant, resides in Lee County and there is no property involved in the litigation, venue is proper in Dade County only if the plaintiffs’ cause of action accrued there. See Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966).

The cause of action, if any, accrued in Lee County. In Macasphalt Corporation v. General Development Corporation, 353 So.2d 878 (Fla.3d DCA 1978), we held that where the defendant is alleged to be illegally retaining an overpayment, the cause of action accrues in the county where the alleged overpayment is made. The Figuer-oas, as plaintiffs, alleged that Goodwin was being unjustly enriched by his retention of the deposit in Lee County. The act of breach or default by Goodwin occurred in Lee County, thus making venue in Dade County improper. Mendez v. George Hunt, Inc., supra.

Reversed and remanded for proceedings consistent with this opinion.

FERGUSON, Judge

(concurring).

I agree with the majority opinion that the cause of action, if any, accrued in Lee County making venue in Dade County improper. I base my conclusion, as I believe the majority does, not on a theory of overpayment, but simply upon the fact that the alleged wrongful act was committed in Lee County. In Macasphalt Corp. v. General Development Corp., 353 So.2d 878 (Fla.3d DCA 1978) the breaching act was alleged to be wrongful collection which was completed upon payment. In this case, the wrongful act was alleged to be that of withholding a sales deposit resulting in unjust enrichment or, alternatively, imposition of a penalty or forfeiture rather than legally appropriated liquidated damages.

I disagree with the majority opinion only to the extent that by citing to Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966), it suggests reliance on the test used to determine venue in a debtor-creditor relationship where the contract is silent as to place of payment. I also disagree that under the holding of U.S.H. Properties Corp. v. Intercoastal Investments, Inc., 331 So.2d 385 (Fla.2d DCA 1976), appellants would become creditors of appellees. In U.S.H. Properties, supra, the court stated that the return of the deposit was expressly required by the terms of the contract under certain conditions. Here the contractual agreement is not in evidence and we have no way of ascertaining whether the deposit was to be returned to buyer or retained by seller in the event the buyer could not obtain financing. In addition, plaintiffs here, unlike the plaintiffs in U.S.H. Properties, never alleged that the agreement, in fact, expressly required seller to return the funds. On the record before us, it is impossible to conclude that appellants became creditors upon refusal of the seller to return the deposit. The only possible conclusion, it seems to me, is that for the reasons stated in the uncontested affidavit of the defendant, the wrongful act occurred in Lee County.

      . Even if the $4,000 deposit in litigation is, for venue purposes, considered personal property, the “property” is in Lee County.

      . As the court in Mendez v. George Hunt, Inc., supra, noted, normally where the cause of action involves the demand for the payment of money and no place of payment is stipulated, as is the case here, the default consists of the failure to pay the money, and the cause of action accrues where the creditor resides. U. S. H. Properties Corporation v. Intercoastal Investments, Inc., 331 So.2d 385 (Fla.2d DCA 1976). Since the “creditors,” here the Figueroas, reside in Dade County, it would appear at first blush that venue would be proper in Dade County. It is not, for two reasons: (1) that is not the theory alleged by the plaintiffs, and where the cause of action may accrue in different counties, the nature of the breach is determined by the claimant’s theory, Mendez v. George Hunt, Inc., supra; and (2) Goodwin’s uncontradicted (in this record) affidavit states that any acts he was to perform were to be performed in Lee County.


text:
    Diane Lynnell Du Charme TAYLOR, Appellant, v. Robert Leonard TAYLOR, Appellee.
    No. 81-2200.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Ira L. Dubitsky, Miami, for appellant.
    Louis La Fontisee, Jr., Miami, for appel-lee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant wife has failed to establish that the trial court abused its discretion in denying her claims for temporary alimony and suit money on the ground of an insufficient showing of need. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); see Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Section 61.071, Florida Statutes (1979).

Affirmed.


text:
    Marcia YATES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1024.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See: Jones v. State, 286 So.2d 29 (Fla. 3d DCA 1973); Gil v. State, 266 So.2d 43 (Fla. 3d DCA 1972); Walden v. State, 191 So.2d 68 (Fla. 1st DCA 1966).


text:
    KEY CREDIT, INC., a Florida Corporation, Appellant, v. MIRAMAR OF CALIFORNIA, INC., a California Corporation, Appellee.
    No. 81-521.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Sams, Gerstein & Ward and Frank D. Newman, Miami, for appellant.
    Eugene J. Howard, Miami, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Reversed. See World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981); Sanchez v. Laribee Machine Company, Inc., 409 So.2d 1064 (Fla.3d DCA 1981); Pennington Grain & Seed, Inc. v. Murrow Brothers Seed Co., Inc., 400 So.2d 157 (Fla. 1st DCA 1981).