text:
    Kenneth P. SCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-579.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Bennett H. Brummer, Public Defender, and Joseph C. Segor, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The sentence under review, which was imposed upon revocation of probation, is affirmed except insofar as it fails to give the defendant credit for time served on the original split sentence probation order. The cause is, accordingly, remanded to the trial court with directions to modify the sentence under review by giving the defendant credit for time served on the original split sentence probation order. State v. Jones, 327 So.2d 18, 25 (Fla.1976).


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Christina Marie SABATELLI, Appellant, v. OMNI INTERNATIONAL HOTELS, INC., Appellee.
    No. 79-196.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Steven G. Glucksman, Miami, for appellant.
    Anderson & Moss and Karen A. Gievers, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PEARSON, Judge.

Plaintiff, Christina Marie Sabatelli, while a patron in a bar owned and operated by defendant Omni International Hotels, Inc., was injured when she was attacked by another patron who smashed a highball glass into her face. In the suit brought by the plaintiff, the trial judge granted Omni’s motion for a summary final judgment and this appeal is from that judgment.

The plaintiff argues that there were genuine issues of material fact; the defendant argues that the facts are undisputed. Therefore, we must view the record not only in the light most favorable to the party moved against, see Wills v. Sears, Roebuck & Co., 351 So.2d 29, 32 (Fla.1977), but also must determine whether the facts, together with all reasonable inferences therefrom, show that the plaintiff does not have a case. See the general principle in General Truck Sales v. American Fire & Casualty Company, 100 So.2d 202 (Fla.3d DCA 1958); and see Five Point Company v. Neeley, 157 So.2d 526 (Fla.3d DCA 1963).

It is alleged that while the plaintiff was a patron on the defendant’s premises (a semiprivate club), another patron who subsequently became identified as Gloria Kiser Willis, without provocation from the plaintiff, wilfully, maliciously and viciously assaulted and battered the plaintiff. The depositions show that Willis, a party to the suit but not to this appeal, smashed a highball glass into the plaintiff’s face, causing severe lacerations to her cheek. At the time of the assault, Willis was highly intoxicated.

Discovery showed, in addition, that the police officer who arrested Willis about ten minutes after the attack found Willis to be so drunk that she could hot stand. Also, there was some evidence that the defendant had an employee on the premises of the club whose duty it was to check for membership cards and to confirm that prospective patrons, if not members, were registered guests of the hotel operated by the defendant. It may be inferred that this employee had an opportunity to observe Willis upon her admission to the bar. Willis was served at least one drink inside the bar, although she was there only a short time prior to the attack on the plaintiff.

The Supreme Court of Florida described the duties of a bar keeper in Miracle v. Kriens, 160 Fla. 48, 33 So.2d 644, 647 (1948), as follows:

“ * * * Although the proprietor of a liquor saloon or other place where intoxicants are sold is not an insurer of the safety of his patrons, as against outsiders, other patrons, or even his own servants, he certainly is bound to use every reasonable effort to maintain order and discipline among his patrons, his servants, or those who, while not necessarily in search of drink or pleasure, come upon the premises and are likely to produce discords or disorders to the injury or inconvenience of patrons lawfully in his place of business.”

See also Sparks v. Ober, 192 So.2d 81, 82 (Fla.3d DCA 1966):

“A tavern and bar may be likened to a place of amusement to which the public is invited. As to such places, the owner or proprietor is not an insurer of the safety of his patrons, but must exercise due care to maintain the premises in a reasonably safe condition for the customary and reasonable uses to which they may be put by the patrons, to use ordinary and reasonable care for the safety of his patrons and to guard against subjecting them to dangers of which he is cognizant or which he might reasonably foresee.” [Emphasis added]

Applying these principles to the factual situation set out above, we hold that it does not affirmatively appear that the defendant is entitled to a judgment as a matter of law.

Reversed and remanded.


author: PER CURIAM.

text:
    Joseph TURNER d/b/a Flair Beauty Shop and Allstate Insurance Company, Appellants, v. Emma LORBER and Henry Lorber, Appellees.
    No. 79-473.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Jeanne Heyward, Weinstein & Bavly, Miami, for appellants.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carroll & Halberg, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Turner v. Lorber, 360 So.2d 101 (Fla. 3d DCA 1978).


text:
    Gerald M. WEINSTEIN, Sidney Katz, and KAWE, Inc., a Florida Corp., d/b/a Regent Drugs, Appellants, v. Jack HEYMAN, Appellee.
    No. 79-680.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Howard W. Mazloff, Coral Gables, for appellants.
    Jack Heyman, in pro. per.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Subsequent to the opinions found in Heyman v. Weinstein, 333 So.2d 548 (Fla. 3d DCA 1976); Heyman v. WEKA, Inc., 333 So.2d 550 (Fla. 3d DCA 1976); the matter .returned to the trial court and the appellee made an election to secure a judgment solely against Katz, Weinstein, and KAWE, Inc., d/b/a Regent Drugs.

This appeal then ensued and the appellants now urge error in the original trial proceedings in denying the defendant’s motions for directed verdict. We have examined the original trial record in this connection and find no error. Therefore, the final judgment here under review be and the same is hereby affirmed. Belden v. Lynch, 126 So.2d 578 (Fla. 2d DCA 1961); Ranger v. Avis Rent-A-Car System, Inc., 336 So.2d 467 (Fla. 3d DCA 1976); Balart v. Michel’s Kartway, Inc., 364 So.2d 90 (Fla. 3d DCA 1978).

Affirmed.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Jerome BELIEN, Appellee.
    No. 79-870.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.

      Janet Reno, State’s Atty. and Ira N. Loe-wy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and- Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The state appeals from an order discharging the defendant under the speedy trial rule. Fla.R.Crim.P. 3.191. We reverse because, before the expiration of the 180-day period after his arrest, the defendant moved for and was granted a continuance, thus waiving the benefit of the rule. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Homer v. State, 358 So.2d 1176 (Fla.3d DCA 1978), cert. denied, 364 So.2d 886 (Fla.1978); Brown v. State, 328 So.2d 497 (Fla.3d DCA 1976), cert. denied, 339 So.2d 1167 (Fla.1976). The defendant claims that this principle should not apply on the grounds that the state unnecessarily delayed filing an information and did not arraign him until only 16 days before the running of the speedy trial time. This contention is totally without merit under the circumstances disclosed by the record. Unlike such cases as Mulryan v. Judge, Division “C” Circuit Court of Okaloosa County, 350 So.2d 784 (Fla.1st DCA 1977); and State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla.1st DCA 1975), cert. denied, 334 So.2d 609 (Fla.1976), upon which Belien relies, the state’s delay here did not result in any inability of counsel properly to defend him on the trial date set by the court, which was within the 180-day period. See Oatman v. State, 289 So.2d 431 (Fla.3d DCA 1974). To the contrary, it affirmatively appears that the assistant public defender, as a matter of tactics, deliberately chose not to go to a speedy trial specifically in order to attempt to secure a dismissal under the speedy trial rule. Thus, his motion for continuance squarely fit the classic definition of an effective waiver as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). In other words, “gotcha!” maneuvers will not be permitted to succeed in criminal, any more than in civil litigation. Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla.3d DCA 1979); McPhee v. State, 254 So.2d 406 (Fla.1st DCA 1971).

The order of discharge is therefore reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

      . There is and can be no contention that, absent the speedy trial rule, the defendant would be entitled to a dismissal simply because of the delay itself. See Eans v. State, 366 So.2d 540, 543 (Fla.3d DCA 1979); State v. Griffin, 347 So.2d 692, 695 (Fla.1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978).


text:
    METROPOLITAN DADE COUNTY, Appellant, v. David BEREK, Appellee.
    No. 79-1057.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Robert A. Ginsburg, County Atty., and Robert L. Blake, Asst. County Atty., for appellant.
    Pattillo, MacKay & McKeever and L. Edward McClellan, Jr., Ocala, for appellee.

      Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977); see Albert v. Miami Transit Co., 154 Fla. 186, 17 So.2d 89 (1944); Commodore Cruise Line, Ltd. v. Kormendi, 344 So.2d 896 (Fla. 3d DCA 1977), cert. denied, 352 So.2d 172 (Fla. 1977); Henderson v. Tarver, 123 So.2d 369 (Fla. 2d DCA 1960); 14 Am.Jur.2d Carriers § 1095 (1964); cf. Forster v. Red Top Sedan Service, Inc., 257 So.2d 95 (Fla. 3d DCA 1972); compare Reina v. Metropolitan Dade County, 285 So.2d 648 (Fla. 3d DCA 1973), cert. discharged, 304 So.2d 101 (Fla.1974).


text:
    CITY OF OPA-LOCKA, Appellant, v. DADE COUNTY, Florida and the Metropolitan Dade County Water and Sewer Board, Appellees.
    No. 79-1271.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Weintraub, Weintraub, Seiden, Dudley & Press and Albert L. Weintraub, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Richard J. Weiss, Asst. County Atty., for appellees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. State ex. rel. City of Miami Beach v. Metropolitan Dade County Water and Sewer Board, 347 So.2d 699 (Fla. 3d DCA 1977); Carol City Utilities, Inc. v. Dade County, 143 So.2d 828 (Fla. 3d DCA 1962).


text:
    Cyrus H. THOMAS and Industrial Vinyls, Inc., Appellants, v. AMERICAN VINYL COMPANY, Appellee.
    No. 79-1401.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Howard, Brawner, Lovett & Bender and Philip L. Brawner, Miami, for appellants.
    Greenberg & Murray and Donald J. Murray, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The final judgment under review is affirmed as to the appellant Industrial Vinyls, Inc. The final judgment under review is reversed as to the appellant Cyrus H. Thomas upon a holding that the trial court erred in denying the appellant Thomas’ motion to vacate the clerk’s default herein under Fla.R.Civ.P. 1.500(d) as: (a) the appellant Thomas established excusable neglect in failing to timely respond to the complaint herein especially when compared against the slight delay in the case which was caused thereby, North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); and (b) the appellant Thomas established a meritorious defense to the complaint, Speer v. Friedland, 276 So.2d 84 (Fla. 2d DCA 1973); § 673.403(2), Fla.Stat. (1979). The cause, is accordingly, remanded to the trial court with directions to set aside the final judgment and clerk’s default solely as to' the appellant Cyrus H. Thomas.


text:
    Paul HANSON a/k/a Paul Hansen, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1742.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Raymond E. Badini, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, this court having required response by the State and having considered the record presented and the State’s response and having further determined that it conclusively appears therefrom that- petitioner is entitled to no relief, the denial of his motion is affirmed. See Snow v. State, 171 So.2d 557 (Fla. 3d DCA 1965); Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964), cert. dismissed, 169 So.2d 383 (Fla.1964); Wooten v. State, 163 So.2d 305 (Fla. 3d DCA 1964), cert. dismissed, 169 So.2d 385 (Fla.1964).

Affirmed


text:
    ILLINOIS MUTUAL LIFE AND CASUALTY COMPANY, an Illinois Corporation, Appellant, v. Lennye STEIN, Appellee.
    No. 79-2081.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Blackwell, Walker, Gray, Powers,- Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Travelers Indemnity Company v. Kassner, 322 So.2d 80 (Fla. 3d DCA 1975); Dorfman v. Aetna Life Insurance Company, 342 So.2d 91 (Fla. 3d DCA 1977); Cavalier Insurance Corporation v. Myles, 347 So.2d 1060 (Fla. 1st DCA 1977); Section 627.419(2), Florida Statutes (1977).


text:
    DEVELOPMENT CORPORATION OF AMERICA, Appellant, v. Carlos EDWARDS, Appellee.
    No. 79-2173.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, Hollywood, for appellant.
    Wolfson, Appel & Maram and Robert D. Shapiro, Miami, for appellee.
    Before PEARSON, HENDR.Y and BARKDULL, JJ.
   PER CURIAM.

Affirmed. State v. Hall, 175 So.2d 792 (Fla. 2d DCA 1965); 10A Fla.Jur., Dissolution of Marriage, etc., § 170; 24 Am.Jur.2d, Divorce and Separation, § 748.


author: BARKDULL, Judge.

text:
    Kathryn G. SAVIAK, Appellant, v. Bill GUNTER, as Insurance Commissioner and State Treasurer of the State of Florida, Appellee.
    No. 79-2297.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Horne, Rhodes, Jaffry, Horne & Carrouth and Edward S. Jaffry, Tallahassee, for appellant.
    S. Strom Maxwell and Patrick F. Maro-ney, Tallahassee, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   BARKDULL, Judge.

The appellant applied for and was granted a license as an insurance agent, pursuant to the applicable statute and regulations of the Insurance Department. Section 626.-748, Florida Statutes (1977) required the appellant (as the holder of an insurance agent’s license) to do the following:

“Agent’s records. — Every agent issuing or countersigning any insurance policy, as defined in s. 627.402, must maintain in his office such records of policies written or countersigned by him to enable the insuring public to obtain all necessary information, including daily reports, concerning such policies at least until the expiration date thereof.”

Section 627.402, Florida Statutes (1977), referred to, reads in part as follows:

“ ‘Policy’ defined.—
(1) ‘Policy’ means written contract of or written agreement for or effecting insurance, or the certificate thereof, by whatever name called, and includes all clauses, riders, endorsements and papers which are a part thereof.”

The appellee, as the State Insurance Commissioner, commenced certain administrative proceedings against the appellant and the matter occurred before a circuit judge, pursuant to Sections 624.307, 624.310, 624.317, 624.318, 624.321, 626.601, Florida Statutes (1977), wherein he entered an order holding that the appellant could not assert her Fifth Amendment privilege as accorded her by the Federal and State constitutions to any requirement by the appel-lee that she produce certain books and records. This appeal ensued. We affirm.

The so-called “required records doctrine” has been recognized in Florida. Conner v. Alderman, 159 So.2d 890 (Fla. 2d DCA 1964); Sheppard v. Florida State Board of Dentistry, 369 So.2d 629 (Fla. 1st DCA 1979). This is an outgrowth of the opinion of the Supreme Court of the United States in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). We find the trial court not to be in error in refusing to permit the appellant to assert her Fifth Amendment privileges as to those records required to be kept pursuant to the above set forth statutes. However, it may be necessary upon a demand for the production of certain documents and records for the State to sustain the position that any such documents requested come within the descriptions provided by the Legislature in the above enumerated statutes. Therefore, the trial court’s order is affirmed without prejudice to the appellant’s right to object to any demand for production as not being within the purview of said statutes, at which time it would then become incumbent upon the appellee to demonstrate that the documents sought were such as required to be kept pursuant to the statutes.

Affirmed, as modified.


text:
    Donesta S. LAY and Larry R. Lay, Appellants, v. ROUX LABORATORIES, INC., a New York Corporation, Appellee. Donesta S. LAY and Larry R. Lay, Appellants, v. George KREMER, Jr., Appellee.
    Nos. OO-208, OO-474.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.

      Gail A. Gottardo of Searcy, Smith, Fac-ciolo & Kirby, P. A., and Joseph Morrell, Jacksonville, for appellants.
    Bruce S. Bullock of Bullock, Sharp & Childs, P. A., and Martin J. Mickler, Jacksonville, for appellee Roux Laboratories, Inc.
    Charles Cook Howell, III, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellee George Kremer.
   PER CURIAM.

The Lays appeal an order of the trial judge dismissing Roux Laboratories, Inc. as defendant and dismissing Count I of their three count complaint. We hold Count I was properly dismissed with prejudice because it failed to state a cause of action for the independent tort of intentional infliction of emotional distress in accordance with this Court’s opinion in Ford Motor Credit Company v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979), wherein we stressed that the conduct alleged must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” 373 So.2d at 959. Here, the alleged conduct of Kremer was that he “began to threaten her [Donesta Lay] with the loss of her job, then said defendant began using humiliating language, vicious verbal attacks, racial epithets and called plaintiff a ‘nigger’ ” when an argument arose concerning a parking space. Although the alleged conduct is extremely reprehensible, we do not think that the alleged conduct reaches the level of outrageousness and atrociousness as that illustrated by Ford Motor Credit Company which involved a call by the credit company to plaintiff’s home, relaying information that his children had been in a serious accident and that the caller was attempting to reach Sheehan. Seven hours passed before he discovered the report was false. Unfortunately, in our society, vulgarities and abusive language are commonplace when tempers flare and in this instance, the allegations are insufficient to serve as a predicate for the independent tort of intentional infliction of emotional distress. See also Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976).

However, the remaining counts state a cause of action against Roux Laboratories, Inc., the employer of the alleged tortfeasor, Kremer. The oft-quoted rule is:

As a general rule under the principles of the common law an employer is liable in damages for the wrongful act of his employee that causes injury to another person, if the wrongful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, even though the wrongful act also constitutes a crime not a homicide or was not authorized by, or was forbidden by, the employer, or was not necessary or appropriate to serve the interests of the employer, unless the wrongful act of the employee was done to accomplish his own purposes, and not to serve the interests of the employer.

Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 at 657 (1922); Jacobi v. Claude Nolan, Inc., 122 So.2d 783 at 788-789 (Fla. 1st DCA 1960). However, an employee is not acting in the scope of employment if it can be found that the employee had “stepped away” from employer’s business at the time of the infliction of the tort and that the motive was unrelated to the employee’s duties, but rather was in the furtherance of the employee’s interests; then, the master cannot be held liable for the servant’s act. Martin v. United Securities Services, Inc., 373 So.2d 720 (Fla. 1st DCA 1979). Generally, it is recognized that the question of whether one was in the scope of employment is normally a jury question. E. g., Gold Coast Parking, Inc. v. Brownlow, 362 So.2d 288, 291-292 (Fla. 3d DCA 1978), cert. dismissed, 368 So.2d 1367 (Fla.1979). Here, there is presented to the jury the question of whether Kremer was acting out of his personal interests when he committed the tort alleged in Count II in an attempt to secure the parking space for himself, or whether the anger and the resulting tort was attributable to overzealousness in the protection of what he envisioned to be his employer’s interests because the parking spaces were assigned to Roux Laboratories. It was the alleged responsibility of Kremer to administer and police the parking spaces for the employees of Roux Laboratories, Inc.

We find Columbia By The Sea, Inc. v. Petty, 157 So.2d 190, 194 (Fla. 2d DCA 1963) to be analogous. There, the plaintiff and the maitre d of a restaurant had a dispute over an extra charge for salad dressing. The plaintiff and the maitre d , Menendez, became angry over the bill, and Menendez asked plaintiff to step outside. The plaintiff made a sweeping motion toward the maitre d and then Menendez struck the plaintiff on the back of the head with an ashtray. The court, in affirming the liability of the restaurant, noted that such an issue involving scope of employment is often a jury question, recognizing:

Although there is a cogent and persuasive argument that Menendez acted for personal reasons entirely divorced from his duties and responsibilities as maitre ’d, (sic) it is not impossible to attribute the anger, assault and battery to overzealousness in the protection of what he envisioned as his employer’s interests.

Accordingly, we think the issue of Roux Laboratories, Inc.’s liability is one which should be presented to the jury.

As to the sufficiency of the allegations concerning the employer’s liability, we find that the complaint, considered as a whole, states sufficient facts from which it can be inferred that the acts were performed in the scope and course of Kremer’s employment. Nettles v. Thornton, 198 So.2d 44 (Fla. 1st DCA 1967) is distinguishable because in that case there were no factual allegations showing any connection between the barmaid’s duty to clean off the table and the resulting tort.

Affirmed in part and reversed in part for further proceedings not inconsistent with this opinion.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


text:
    Howard McDANIEL, Appellant, v. CAREER SERVICE COMMISSION et al., Appellees.
    No. PP-18.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Algie R. Cooper, of Knowles, Randolph & Cooper, Tallahassee, for appellant.
    Donna H. Stinson, Counsel, District II, Dept, of Health & Rehabilitative Services, Tallahassee, for appellees.
   PER CURIAM.

McDaniel appeals a Career Service Commission order denying his appeal for lack of jurisdiction. We reverse.

By letter of September 26, 1977, the Department of Health & Rehabilitative Services (HRS) suspended McDaniel for 30 days beginning September 21, 1977. The letter informed McDaniel of his right to an appeal and included the following:

Section 22A-7.10(6)(b) of the state personnel rules and regulations permits a state agency to suspend an employee, for just cause, for a period not to exceed thirty calendar days in any calendar year. If court action is pending, the state personnel director may approve an extension of a suspension for sixty days or longer, when requested by the agency head. You will remain suspended from duty until final disposition of your case is made by the court. In addition, further disciplinary action is being withheld until final disposition of your case. If your case is not decided within thirty days, a request will be made to the state personnel director to extend your suspension as provided for in the state personnel rules and regulations.

On October 20, 1977, the assistant secretary of administrative services extended the suspension indefinitely. McDaniel was so advised and again notified of his appeal rights. No appeal was taken. Eight months later, in June, 1978, HRS wrote the state personnel director requesting clarification of the policy on extending suspensions and learned that the indefinite suspension of McDaniel exceeded the authority of the agency head. HRS then requested retroactive approval of McDaniel’s suspension, which was granted August 15, 1978.

The charges against McDaniel were nolle-prossed in December, 1978, and he returned to work in January, 1979. His attorney attempted to obtain information from HRS regarding McDaniel’s reinstatement salary and his entitlement to backpay. When this information was not forthcoming, McDaniel filed an appeal with the Career Service Commission asking that he be reinstated with backpay. The Commission found that it was without jurisdiction to hear the appeal.

Appellant argues that because the agency did not comply with the state personnel rules and regulations, the suspension was illegal and the time for filing an appeal did not begin running until he had notice of the illegality. Alternatively, he argues that to deny him an appeal violates his due process rights.

We do not decide whether the extension was illegal nor whether the retroactive approval, some ten months later, was sufficient to overcome any illegality which may have been present. These are questions which more properly should first be resolved by the Career Service Commission. The only issue before us is whether McDaniel should be allowed an appeal at this time and because of the peculiar fact situation presented, we hold that he should. To deny him a hearing on the facts herein would deny him due process. State ex rel. Martinez v. Department of Commerce, 339 So.2d 313 (Fla. 3d DCA 1976).

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    K. L. C., a child, Appellant, v. STATE of Florida, Appellee.
    No. PP-90.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

K.L.C., a fifteen-year-old male, appeals from a circuit court judgment that he is delinquent, having attempted to commit robbery. The judgment is based in part on K.L.C.’s confession obtained after he was appropriately Miranda -warned, immediately upon being questioned at headquarters following his arrest at home.

The trial court found, and we agree, that there was no unreasonable delay in delivering K.L.C. to an intake officer. Section 39.03(3)(a), Florida Statutes (1979). Nor do we find a violation of that statute’s requirement that the police, determining “that the child should be detained”, must make “a reasonable effort to immediately notify the parents . . In this case the parents were so notified because they were at home when their son was arrested. This case is unlike Dowst v. State, 336 So.2d 375 (Fla. 1st DCA 1976) and J.E.S. v. State, 366 So.2d 538 (Fla. 1st DCA 1979), in which either the child or the parents, being notified of the arrest, requested and were denied a reasonable opportunity to confer. The obligation of the arresting officers is to notify the parents and, if requested, to grant them and the child a reasonable opportunity to confer before in-custody questioning begins. The police obligation does not extend to offering a conference opportunity which is not requested.

AFFIRMED.

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


text:
    COMMERCIAL UNION ASSURANCE CO. and Convalescent Care, Appellants, v. Mildred O. HYMAN, Appellee.
    No. QQ-194.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    B. C. Pyle of Whittaker, Pyle, Stump & Webster, Orlando, for appellants-cross ap-pellees.
    Jesse F. Sparks, Orlando, for appellee-cross appellant.
   PER CURIAM.

The employer/carrier appeals, and the claimant cross-appeals, a workers’ compensation order, which we affirm except as to the award of permanent partial disability benefits based on diminution of wage earning capacity, and as to the amount of attorney’s fee awarded.

Any consideration of wage earning capacity loss in this case is precluded by the claimant’s complete failure to test her employability in the open labor market after reaching maximum medical improvement. Exxon Co. USA v. Alexis, 370 So.2d 1128 (Fla.1978). We further note that the order appealed is facially inadequate, in that it merely recites the various wage earning capacity loss criteria to be considered without relating such criteria to the facts of the present case. Cf., Dade County School Board v. Miller, IRC Order 2-3302 (Dec. 29, 1977). Such an order insufficiently identifies the ultimate facts necessary to show the basis of the award as required by Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976), and Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973).

As to the attorney’s fee awarded, the order fails to indicate what factors were considered in determining the amount of the fee. Again, such an order fails to comport with the requirements of Vargas, supra, and Pierce, supra. Cf., Aetna Maintenance Corp. v. La Baff, 377 So.2d 53 (Fla. 1st DCA 1979).

The order appealed is accordingly affirmed in part and reversed in part, and the cause remanded.

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


author: PER CURIAM. BOOTH, Judge,

text:
    AERO PRECISION, INC. and Underwriters Adjusting Company, Appellants, v. Ronald FINE, Appellee.
    No. QQ-293.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Eugene E. Williams, of Williams & Zientz, Coral Gables, for appellants.
    Stephan H. Tarr, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author:
PER CURIAM.
      BOOTH, Judge,

text:
    BORDEN, INC. and Insurance Company of North America, Appellants, v. Larry EARLE, Appellee.
    No. QQ-303.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Michael A. Miller and Donna L. Bergh, Orlando, for appellants.
    Lawrence H. Hornsby, Orlando, for ap-pellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    TRUMBULL CORPORATION and U. S. Fidelity & Guaranty Company, Appellants, v. James HAYES, Appellee.
    No. QQ-321.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Walter E. Beisler, West Palm Beach, and Anthony J. Beisler, Fort Lauderdale, for appellants.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee.
   PER CURIAM.

The judge of industrial claims (JIC) found that appellee reached maximum medical improvement (MMI) on October 4, 1978, and was entitled to temporary benefits until that date. We reverse as to the MMI date, but, with a remand for clarification, otherwise affirm the order.

A treating physician, Dr. Moll, stated that appellee reached MMI on July 7, 1978. Neither Dr. Moll or any other doctor treated appellee from then until October 4, 1978, when Dr. Moll gave him a rating of 12% permanent partial disability of the body as a whole. The JIC chose the latter date as the date of MMI because, according to his order, the parties stipulated to it. The record, however, reveals no such stipulation. Given Dr. Moll’s testimony, nothing in the record supports an MMI date later than July 7, 1978.

We affirm the rest of the order, except for an inconsistency which must be corrected on remand. The JIC found, in paragraph 12, that appellee suffered temporary partial disability. The decretal portion of the order, however, mandated payment of temporary total disability benefits. On remand, the JIC must modify his order to render the decretal portion consistent with paragraph 12.

Affirmed in part, reversed in part, and remanded for clarification.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: TENDRICH, MOIE J. L., Associate Judge.

text:
    Robert Lee MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1114.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Glenn H. Mitchell and Marc E. Kirk, Asst. Attys. Gen., West Palm Beach, for appellee.
   TENDRICH, MOIE J. L., Associate Judge.

The appellant was charged with kidnapping and sexual battery. Appellant moved for judgment of acquittal and to dismiss the information because the state had allegedly intentionally destroyed a tape containing alleged exculpatory material. The court denied both motions. Subsequently a jury found appellant not guilty of kidnapping and guilty of sexual battery involving use of physical force and violence not likely to cause serious personal injury. Appellant contends on appeal that the trial court erred in denying his motion to dismiss because the state’s intentional destruction of the tape recording deprived him of due process of law.

On July 25, 1977, police arrested appellant at a friend’s apartment. Detective Jenne testified that appellant gave a statement in which he admitted being with the victim on the night in question, but maintaining that she consented to performing oral sex, and which further stated that they never had intercourse. At the station, while being questioned, the appellant complained that the tape was bothering him, so the police turned it off. At the trial, Agent Hurley who was present during the taped interrogation, testified as follows:

Q. Agent Hurley, now, you mentioned that you had been told at the house by Mr. Mathis that there was no rape and everything was voluntarily consented to, is that correct?
A. Yes.
Q. Now, did you take part in any type of interrogation of Mr. Bob Mathis where a tape recorder was present?
A. Yes.
Q. Did Mr. Mathis make similar comments that everything was consentual [sic] between the parties?
A. Yes.
Q. Where is that tape today?
A. Destroyed.
Q. Destroyed? Why was that tape destroyed?
A. Well, at the time the tape was never transcribed. We didn’t feel that it carried any importance in the case. It was never transcribed.

Due process requires that certain discoverable matter, i. e., all evidence which might lead the jury to entertain a reasonable doubt about a defendant’s guilt, be disclosed to the defense. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As Budman v. State, 362 So.2d 1022, 1025 (Fla. 3d DCA 1978), pointed out:

More recently, the Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), clearly articulated the following three criteria for measuring when the Brady rule has been violated:
“(a) suppression by the prosecution after a request by the defense,
(b) the evidence’s favorable character for the defense, and
(c) the materiality of the evidence” Id. 373 U.S. at 794, 92 S.Ct. at 2568, 33 L.Ed.2d at 713.

Florida recently adopted a balancing approach for cases where evidence has been destroyed or lost by the state, which allows the trial court broad discretion in determining what, if any, sanction should be utilized against the state. State v. Sobel, 363 So.2d 324 (Fla.1978). Referring to this court’s opinion in Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976), Sobel, supra, notes:

the purpose of the discovery rule is to aid a defendant in the preparation of his case, not to give him a procedural escape hatch for the avoidance of prosecution . . . . [T]he mere fact that a taped recording which may have been utilized in evidence was destroyed does not require automatic reversal.
. [A] defendant is not denied due process where the contents of a lost or destroyed tape recording would not have been beneficial to the accused, thus demonstrating a lack of prejudice.

To support his position, appellant strongly relies on Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975), but, as Budman v. State, supra at 1026, illustrates, this rebaneé is misplaced:

In Farrell, the Fourth District Court of Appeal held that the unintentional destruction (by erasure) by the State of discoverable tape recordings of undercover drug transactions violated the defendant’s right to due process of law. However, this holding and the resultant reversal of the trial court’s denial of the defendant’s motion to dismiss was based upon uncontradicted facts contained in a stipulation of the parties, particularly the stipulation that the erased tapes would have been beneficial to the defendants and their destruction resulted in prejudice. In the instant case, we have no such stipulation of fact and appellant has not shown that he was actually prejudiced at trial; to the contrary, the trial court found that no prejudice resulted to appellant.

In this case we believe the information furnished to the lower court by way of the officer’s testimony before the jury regarding the taped conversation, together with a colloquy with counsel outside the jury’s presence fulfilled the requirements of Richardson v. State, 246 So.2d 771 (Fla.1971), and Cumbie v. State, 345 So.2d 1061 (Fla.1977), requiring adequate inquiry into surrounding circumstances of the state’s action to determine possible prejudice to defendant. Also see Wiese v. State, 357 So.2d 755 (Fla. 4th DCA 1978).

We also believe that the state met its burden of demonstrating no prejudice to defendant and that the appellant failed to demonstrate that the tapes contained evidence not otherwise available which was materially beneficial to his defense. It is our conclusion that under the circumstances presented herein, the trial court acted correctly in denying appellant’s motion to dismiss and motion for acquittal.

Accordingly, the judgment and sentence of the trial court are affirmed.

DOWNEY, C. J., and ANSTEAD, J., concur.


author: BERANEK, Judge.

text:
    J. BATT, INC., Appellant, v. WELLINGTON CONSTRUCTION AND REALTY, INC., et al., Appellees.
    No. 78-1386.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.

      C. B. Hankel, III, Pompano Beach, for appellant.
    John B. DiChiara of Di Giulian, Spellacy & Bernstein, Fort Lauderdale, for appellees.
   BERANEK, Judge.

This is an interlocutory appeal from a partial summary judgment and a mandatory injunction entered against plaintiff/appellant. The controversy is a suit between plaintiff, a plumbing contractor, and defendants, the owners and developers of residential property.

Plaintiff filed a six-count complaint seeking recovery for certain services and supplies rendered to the subject property. Without regard to the substance of the allegations, Count I was entitled, “Material-man’s Lien” and has been considered by both parties as a count for a mechanic’s lien pursuant to Chapter 713, Florida Statutes. Count II is entitled, “Equitable Lien” and seeks to impose such a lien on the subject property. Counts III, IV, V, and VI all seek monetary recovery based on the same transaction on different theories.

The trial court granted a partial summary judgment for defendant on Counts I and II finding that a particular no-lien provision of the contract between the parties barred the lien claims. In the same order which granted the partial summary judgment, the trial court issued a mandatory injunction requiring plaintiff to remove within five days the claims of lien previously filed.

We conclude that we lack jurisdiction and dismiss the appeal. The order in question is not final so as to support a plenary appeal. The partial summary judgment does not determine any separate and distinct controversy between the parties and the matter remains pending below. See Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974), and Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975). Furthermore, the only arguable basis for interlocutory review is pursuant to Rule of Appellate Procedure 9.130(a)(3)(B) governing interlocutory appeals from orders granting injunctions. Here the injunction requiring removal of the claims of lien was unnecessary in view of Section 713.21(5), Florida Statutes (1977). Appellee need only have recorded a copy of the trial court’s decree and the lien would be discharged by operation of the statute. Furthermore, this injunction was rendered moot and ineffective by a later order entered on June 28, 1978, which discharged the claims of lien. Thus the trial court in fact discharged the claims of lien pursuant to the mechanic’s lien law and the injunction was never operative or enforced. The later order discharging the claims of lien has not been appealed and is not argued in appellant’s brief.

We conclude that the injunctive aspects of the non-final order were never operative and were insufficient to support interlocutory review. The appeal is thus dismissed.

APPEAL DISMISSED.

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


text:
    Xavier S. ATRIA and Gregory Atria, Appellants, v. Paul B. ANTON and David L. Kline, as Trustees, as Joint Tenants with right of survivorship and not as Tenants in Common, Appellees.
    No. 78-1832.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.

      Myles J. Tralins of Myles J. Tralins, P. A., Miami, for appellants.
    David L. Klein of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   PER CURIAM.

This Court has sua sponte raised the question of whether the order appealed from is final in nature so as to support a plenary appeal under Fla.R.App.P. 9.030(b)(1)(A). We conclude that the order is not final in that it merely granted a motion to dismiss. Guth v. Howard, 362 So.2d 725 (Fla. 2nd DCA 1978). Nor is the order reviewable by interlocutory appeal. Fla.R.App.P. 9.130(a)(3). Consequently, although close questions are presented concerning the technical allegations of the complaint and the necessity for attachment of relevant documents, we have no jurisdiction to consider these issues at this time. In order to expedite any future review by this Court of subsequent proceedings in this cause, the parties are ordered to advise this Court, upon undertaking such review, of the instant attempted appeal.

Since we have no jurisdiction, this appeal is dismissed.

MOORE, BERANEK and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Willie INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 79-449.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.

      Richard L. Jorandby, Public Defender, Gary S. Israel and Mark Wilensky, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is a timely appeal from an order committing appellant to the Department of Health and Rehabilitative Services for involuntary hospitalization, following a non-jury acquittal by reason of insanity as to two counts of second degree murder.

Paragraphs 2 and 6 of the order being appealed require consideration and read as follows:

2. That the Defendant be and hereby is considered by the Court manifestly dangerous to the peace and safety of the people and property of the State of Florida due to his past history of unlawful conduct and the crimes committed against the property and people of the State of Florida.
******
6. The Defendant, Willie Ingram, shall not be discharged by this Court to the Community until such time that he can be discharged without dependence on psychotropic medications, such as the medications the Defendant is currently receiving.

The determinative test for involuntary hospitalization of one acquitted by reason of insanity is whether the acquittee, if released, would be likely to injure himself or others. Hill v. State, 358 So.2d 190 (Fla. 1st DCA 1978). Accordingly, paragraph 2 of the order is facially deficient, notwithstanding the following remark by the trial court at the hearing being conducted, pursuant to Fla.R.Crim.P. 3.210(e)(9):

I further think that he is likely to injure himself or others if allowed to remain at liberty.

Accordingly, we remand to the trial court to enter a further order, with or without additional evidence as the trial court finds necessary, which recites the trial court’s criteria for committing appellant.

We strike paragraph 6 of the trial court’s order as premature and anticipatory, it being the responsibility of the trial court upon the filing of some petition for release in the future to decide whether:

[A] preponderance of all the reasonably available evidence shows that in his release there is no longer a likelihood of injury to others as a result of mental illness. Hill, supra, at 203.

We are not ruling that appellant must be released if still dependent upon psychotropic drugs in the future; nor do we decide what evidence the trial court must consider upon a petition for release. Instead, paragraph 6 of the committing order is stricken on the basis that it addresses the issue of release rather than commitment and was, therefore, prematurely considered in the order committing appellant for involuntary hospitalization.

Stricken in part, and remanded.

BERANEK and HERSEY, JJ., concur.

      . The learned opinion in Hill traces the history of the two determinative standards; namely, “likely to injure” and “manifestly dangerous.”

      . Fla.R.Crim.P. 3.210(e)(9):
      When a person tried for an offense shall be acquitted for the cause of insanity, if the Court shall then determine that the defendant presently meets the criteria set forth in section 394.467(1), Florida Statutes (1975), the Court shall commit the defendant to the Department of Health and Rehabilitative Services for involuntary hospitalization, or shall order that he receive outpatient treatment at any other appropriate facility or service on an outpatient basis, or shall discharge the defendant. The Department of Health and Rehabilitative Services shall treat the defendant so committed as any other patient who has been involuntarily hospitalized by civil proceedings, except that proper security precautions shall be taken with respect to said defendant. The Court committing the defendant shall at all times retain jurisdiction of the cause and shall make all determinations relative to continued hospitalization (other than the form of treatment) or release of the defendant.

      . We take note that the court in its thorough examination of the subject in Hill v. State, supra, opined:
      . By evidence the court is to be given a rich understanding of the patient’s medical history, present condition and behavior; prospective environment at liberty; the available resources for professional and lay observation and control; and the practicality of monitoring the success of a release plan. 358 So.2d at 208.


author: DOWNEY, Chief Judge.

text:
    Morris L. OKUN, as Administrator of the Estate of Frieda Okun, and as surviving spouse, Petitioner, v. NORTH BEACH MEDICAL CENTER, INC., Alexander A. Bolton, Jr., and Louis Aldana, Respondents.
    No. 79-625.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.

      Milton S. Blaut of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for petitioner.
    Daniel S. Schwartz of Stephens, Schwartz, Lynn & Cherney, P. A., Miami, for North Beach Medical Center, Inc.
    Edward N. Winitz of Thornton, Conroy & Herndon, P. A., Miami, for Alexander A. Bolton, Jr.
    Howard E. Barwick, Miami Shores, for Louis Aldana.
   DOWNEY, Chief Judge.

Petitioner, Morris L. Okun, seeks quashal of an order of the Judicial Referee, dated February 14, 1979, and termination of a medical mediation proceeding.

Petitioner contends the Judicial Referee erred in entering an order of February 14, 1979, because there were several violations of Section 768.44(2)(g), Florida Statutes (1977), and Florida Rule of Medical Mediation Procedure 20.130, having to do with appointment of physician panel members. However, none of the alleged violations is jurisdictional and thus review by certiorari is not available to petitioner. Hubacher v. Landry, 360 So.2d 42 (Fla.3d DCA 1978).

In addition to requesting quashal of the order of February 14, 1979, the petition requests this court to issue a writ of certio-rari and terminate the medical mediation proceeding. However, the record reflects that the clerk of the Circuit Court terminated that proceeding four days after the petition for certiorari was filed.

After the filing of this petition for writ of certiorari and the termination of the mediation proceeding petitioner filed his malpractice claim in the Circuit Court. Respondent, Alexander Bolton, M.D., has moved this court to dismiss the petition for writ of certiorari on the ground that the issue presented is moot since the mediation proceeding has been terminated. However, petitioner contends the issue is not moot because Respondent-Bolton has filed a defense in the Circuit Court suit that the medical mediation proceeding was not properly terminated.

We would dispose of petitioner’s contention by suggesting that the validity of the termination order can be tested in the Circuit Court malpractice case if it becomes an issue in that litigation. Hubacher v. Landry, supra.

In view of the foregoing, the petition for writ of certiorari is denied.

LETTS and BERANEK, JJ., concur.


author: HERSEY, Judge.

text:
    Richard H. FODOR, Appellant, v. Janice M. FODOR, Appellee.
    No. 79-684.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.

      Arthur M. Wolff of Wolff & Gora, Fort Lauderdale, for appellant.
    Lawrence F. Kranert, Jr., Fort Lauder-dale, for appellee.
   HERSEY, Judge.

Pursuant to a property settlement agreement incorporated in a final judgment of dissolution of marriage entered in November of 1971, appellant husband was required to pay to appellee wife alimony in the amount of $15.00 per week and child support of $25.00 per week for each of two minor children. In July of 1975, after a hearing, the court reduced appellant’s out-of-pocket weekly payments to $15.00, the remaining $50.00 per week to be accumulated as an arrearage. On October 15, 1975, the court increased the out-of-pocket payment to $30.00 per week, the $35.00 difference to be accumulated as an arrearage. Appellee subsequently filed a motion to reestablish support payments, to which appellant responded with a request for modification of the final judgment. The trial court referred the matter to a general master. After hearing, the general master recommended that the .$25.00 per week per child support payments be re-established and that the $15.00 weekly alimony award be terminated. Objections were filed to this report by appellant and, after hearing, the court entered a final order on February 21, 1979 denying appellant’s objections to the masters report and ratifying the findings of the general master in full. This appeal resulted.

We affirm. The original obligation of appellant for child support was established at $25.00 per week per child. In addition, appellant was required to pay $15.00 per week as alimony. The order appealed from eliminates the requirement for the payment of alimony, and leaves the amount of child support payments unchanged. Intervening orders did not modify the husband’s legal obligations, but simply afforded him equitable relief from immediate payment of his obligations because of circumstances that existed from time to time. The matter of enforcement of prompt payment and, conversely, the application of equitable principles to permit less than full payment from time to time and under various circumstances is a matter within -the sound discretion of the trial court. Brenske v. Brenske, 151 So.2d 58 (Fla. 3rd DCA 1963). (But see Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979) for the proposition that a time schedule for installment payments of lump sum alimony established by a property settlement agreement may not be so modified.) There is obviously no requirement of a finding of a substantial change in circumstances where no change is made in the ultimate legal obligation.

The same reasoning disposes of appellant’s second point on appeal. Appellant complains that the general master improperly placed the burden of proof upon appellant, rather than upon appellee in connection with modification. We point out that the legal obligation was not modified, but simply the time of enforcement. Furthermore, appellant filed a request for modification and, clearly, the burden of proof rested on appellant to show a substantial change of circumstances. The general master found that this burden was not met. This answers appellant’s third contention on appeal, which asserts error of the trial court in ratifying and affirming the report of the general master denying appellant’s petition for modification.

The law is clear that the trial court should approve a master’s findings of fact and recommendations, unless the master has misconceived the legal effect of the evidence. Shaw v. Shaw, 369 So.2d 81 (Fla. 3d DCA 1979). This is so because the master is in a better position to make determinations of fact, having seen the witnesses and listened to the testimony. The trial court will not overturn the master’s findings unless they are clearly erroneous. Ciccarelli v. Ciccarelli, 352 So.2d 1204 (Fla. 4th DCA 1977).

A review of the report of the general master shows that the legal effect of the evidence was not misconceived. The trial court, therefore, was eminently correct in it’s order of February 21, 1979.

Appellant having failed to demonstrate reversible error. We affirm.

AFFIRMED.

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


text:
    Carol J. ANDRUS, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 79-692.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.

      Carol J. Andrus, in pro. per.
    James R. Parks, Gen. Counsel, and Charles E. Patterson, Jr., Staff Atty., Tallahassee, for appellee.
   HERSEY, Judge.

Appellant brings this appeal from an order of the Unemployment Appeals Commission which affirmed a decision of an Appeals Referee determining that appellant was ineligible for unemployment compensation benefits, pursuant to Section 443.-05(l)(c)l, Florida Statutes (1977), from April 23, 1978 through October 30, 1978.

Appellant became unemployed in February of 1978. It appears that she filed the necessary documents with appropriate funds to renew her license to practice as a registered nurse in the State of Florida as required by the State Board of Nursing, but through inadvertence, the nature of which is unexplained by the record, her license was revoked on March 31,1978, and was not renewed until October 30, 1978.

Testifying before the Appeals Referee, appellant indicated that perhaps her application and check were lost in the mails, but that in any event, the technical lack of a license had not been an issue in her quest for employment. However, while there may have been much said at the hearing about this license problem, the Referee clearly based the ineligibility on the fact that the appellant had failed to make an active and unrestrictive search for suitable employment and that her efforts to do so were only “token in nature.”

Appellant’s brief, filed in propria persona claims error in two respects which we deem worthy of consideration:

1. The denial of her request for a “second oral argument” and the opportunity to present “substantiating evidence” to confirm that she made an active, unre-strictive search for work; and

2. The finding that appellant did not make an adequate and unrestrictive search for work.

Appellant’s first point is one of due process; that is to say, whether she was given adequate notice that she would be required to give testimony and present any documentary evidence at the time and place scheduled for the hearing before the Appeals Referee.

“Due process of law requires either proper notice of the issues to be heard or a basis in the record to show an informed and intelligent waiver of the same.” Lewis v. Hot Shoppes, 211 So.2d 20, 21 (Fla. 4th DCA 1968). Appellant was advised of the hearing before the Appeals Referee by a form which called her attention to the fact that one of the issues to be heard was whether appellant was able and available for work. The form provided:

ABLE AND AVAILABLE FOR WORK: Whether claimant has been able to work and available for work, as provided in Section 443.05(l)(c)1.2, Florida Statutes. (Hearing may cover the entire claim period. The Courts have ruled that “available for work” means the claimant must be actively seeking and applying for employment. Testimony will be taken on your search for work.)

We find this notice sufficient for purposes of due process, in that appellant was clearly alerted to the fact that she was required to show that she had been actively seeking and applying for employment.

Appellant’s second point on appeal questions the finding that she was not, during the period in question, able to work and available for work. We point out at the outset that the credibility of appellant’s testimony was a matter for the Appeals Referee to determine. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). This Court will not disturb the action of the Unemployment Appeals Commission unless there is a lack of competent substantial evidence in the record to support that action. In DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957), our Supreme Court defined the term “competent substantial evidence” as follows:

We have used the term “competent substantial evidence” advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective “competent” to modify the word “substantial”, we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be “competent”. (Citations omitted).

We are then confronted with the question of whether or not there is competent, substantial evidence to support the finding that appellant was not able and available for work.

The term “availability” was discussed in McCormick v. Henry Koerber, Inc., 252 So.2d 599, 601 (Fla. 1st DCA 1971), as follows:

In the administration of the unemployment compensation law, it is fundamental that before one may become eligible for benefits he must be available for the work he is qualified to perform. Such a person must place himself in the normal labor market free of any restrictions which would unduly impair his availability for work, whether self-imposed or otherwise. One seeking employment must assume the responsibility of managing his personal affairs in such a manner as will enable him to reasonably comply with the conditions of the work he seeks. If he fails to discharge this responsibility, it cannot be said that he is available for work in the usual commercial sense.

Reviewing the record we find competent, substantial evidence to suggest that the appellant failed to make an active and unre-strictive search for suitable work and that her efforts to do so were only token in nature. This being so, she did not place herself in the normal labor market and therefore was not available for work.

AFFIRMED.

LETTS and BERANEK, JJ., concur.


author: LETTS, Judge.

text:
    OUTDOOR RESORTS OF AMERICA, INC., Appellant, v. OUTDOOR RESORTS AT NETTLES ISLAND, INC., et al., Appellee.
    No. 79-866.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    James E. Slater and Scott J. Johnson of Maguire, Voorhis & Wells, P. A., Orlando, for appellant.
    Rod L. Tennyson of Ombres, Powell, Tennyson & St. John, P. A., West Palm Beach, for appellee.
   LETTS, Judge.

The issue here involves retention by a developer of the exclusive right to rent recreational vehicle site lots for a fifty percent commission, when individual lot owners are not using them. The trial judge, citing Section 542.12, Florida Statutes (1977), held that rights retained were in restraint of trade because local real estate brokers in the community were thus precluded from plying their trade at the camping resort. We reverse.

This particular recreational vehicle park was developed to consist of 1585 pads, each 35 feet by 60 feet, utilizing a condominium concept. Under this set-up a person would buy a pad at the camping resort and get fee simple title to it, together with an undivided interest in the common elements of the camp. Included in the declaration of condominium was Article XI providing as follows:

PROVISIONS RELATING TO SALE OR RENTAL OF CONDOMINIUM UNITS

No restrictions are placed herein as far as selling any condominium unit. The developer, however, shall have for a period of ninety-nine (99) years from the date of this Declaration the exclusive right, in the absence of use by the Owner or his designated guest, to rent lots which are a part of the Declaration at scheduled rates promulgated from time to time by the Developer. The Developer shall retain for its services 50% of the gross amount of the rental collected on any lot with the remaining 50% reserved for the benefit of the lot owner. As partial consideration for the aforesaid, the Developer shall undertake an advertising program to promote the rental of said units, both those units owned by the Developer and those units sold and in private ownership.
This exclusive right of the Developer to rent lots which are a part of the Declaration shall be binding on each member, his successors and assigns, and shall constitute a covenant running with the land of each condominium unit.

The quoted wording employed in the declaration is not without legal significance inasmuch as it has obviously been especially chosen in response to a decision out of this court six years ago, which held that such wording was not an unreasonable restraint on alienation. See Holiday Out in America at St. Lucie, Inc. v. Bowes, 285 So.2d 63 (Fla.4th DCA 1973).

No doubt the Holiday Out decision explains why the lot owners did not allege an unreasonable restraint on alienation in this case. Thus there is no occasion for us to revisit Holiday Out for that issue is not now before us. Nor do the affirmative defenses suggest the provision is unconscionable under Section 718.302(2), Florida Statutes (1977). In fact the affirmative defenses (other than a procedural one) áte based solely upon the premise that Article XI is in violation of public policy because the article as quoted has a tendency to restrain real estate brokers in the exercise of their trade thus stifling’ competition in the real estate business and creating a monopoly. The trial judge agreed.

There is no doubt this quoted clause is very one-sidedly in favor of the developer, however, as we have said, the only issue presented to us, and the trial judge, is whether or not the clause is in restraint of trade.

The Florida case cited to us on this question is Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19 (1908). In Stewart the owner of a sawmill, employing a large percentage of the population of a local community, entered into a contractual arrangement with a general store owner under which the mill was to issue checks or coupons to its employees against their wages. The coupons would be exchangeable for merchandise only at the general store, so by such means the general store owner had a lock on all the shopping of the majority of the population in the community. The court found that such an arrangement effectively prevented any other rival shopkeepers from competing and that the arrangement was injurious and detrimental to the general public welfare of the community.

The set-up in Stewart appears to be a far cry from the case now before us. Here we have an exclusive rental arrangement, set forth in a binding contract between the parties, covering but 1585 lots, each only 2100 square feet, in a recreational park, slap dab in the middle of one of the fastest developing residential areas in the entire United States. Furthermore the lots in question, if and when they are rented, only fetch about $450 a month. There is simply no way that such an arrangement could be said to effectively restrain the real estate brokerage profession from exercising its chosen role in this business community, notwithstanding that it stifles their efforts on this particular site.

We are aware that the wording employed in these restraint of trade situations and in the Florida statute is amorphous to say the least. Technically, any exclusive arrangement in a contract is in restraint of trade. However, much more than that is required, for it must be shown that the restraint is unreasonable, detrimental to the public welfare and obnoxious to public policy. Lee v. Clearwater Growers’ Ass’n, 93 Fla. 214, 111 So. 722 (1927). We cannot sustain any such showing from the record in this case.

Finally we note that the Florida Súpreme Court has recently ruled that exclusive 99 year recreational leases are not in restraint of trade. Avila South Condominium Ass’n, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1976); also see Point East One Condominium v. Point East, etc., 348 So.2d 32 (Fla.3d DCA 1977). There is no doubt that the mechanics of a recreational lease differ from an exclusive rental agreement. However the bottom line is similar, in that both provide the developer of a condominium site with long term large profit at the expense of individual unit owners.

REVERSED AND REMANDED- FOR ENTRY OF JUDGMENT IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and MOORE, J., concur.

      . However, all parties concede that the sale of the lots themselves was without profit — the profit to come from this rental arrangement.

      . We confess to a taking of judicial notice of the population and building explosion in and around Stuart, Fort Pierce, Hutchinson Island and Nettles Island, the brokers trade area referred to in the transcript.

      .§ 542.12(1), Fla.Stat. (1977).

      . But see Silver v. Abbot Realty, Inc., 249 So.2d 38 (Fla.3d DCA 1971).


text:
    Linda FRANO, as parent and natural guardian of Diane Robinson, a minor, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Appellee.
    No. 79-1068.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Richard A. Barnett of Krupnick & Campbell, Fort Lauderdale, for appellant.
    John W. Mauro of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for appellee.
   PER CURIAM.

The appellant filed an action against ap-pellee seeking medical payment benefits and thereafter suffered the entry of an adverse judgment on the pleadings. The medical payments coverage of the appellee’s policy provided for coverage to the appellant, her spouse and her children should they be injured while as pedestrians or while occupying a vehicle insured under the liability portion of the policy. Appellant’s daughter was injured while occupying a vehicle not insured under the liability portion of the policy. Since the coverage does not apply to such a situation we affirm the judgment of the trial court.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    BUSINESS CARDS TOMORROW, INC., Appellant, v. ADVISORY BOARD, INC., Appellee.
    No. 79-1222.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Rehearing Denied April 15, 1980.

      David Feldman of the Law Offices of David Feldman, Miami Beach, for appellant.
    Janet W. Freeman of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellee.
   PER CURIAM.

The court dismisses this appeal sua sponte.

The record reflects that on April 2, 1979, the trial court entered an order, denying appellant’s motion to dismiss for improper venue. Although appellant could have filed a notice of interlocutory appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A), it did not do so. Instead, it filed a motion for rehearing in the trial court, which was denied on April 23, 1979. On May 22, 1979, appellant filed a notice of appeal from the orders of April 2d and 23rd.

The notice was not timely for the reason that there is no provision in the Florida Rules of Civil Procedure for a motion for rehearing directed to an interlocutory order. Khem-Troll, Inc. v. Edelman, 351 So.2d 1040 (Fla. 4th DCA 1976).

The order denying appellant’s motion to dismiss was plainly an interlocutory order, and a motion for rehearing directed to such an order does not operate to toll the time for the filing of an interlocutory appeal. Wagner v. Bieley, Wagner and Associates, Inc., 263 So.2d 1 (Fla.1972); Home News Publishing Company v. U-M Publishing, Inc., 246 So.2d 117 (Fla. 1st DCA 1971).

The dismissal of this appeal will not bar review of the trial court’s ruling on full appeal from final judgment.

APPEAL DISMISSED.

DOWNEY, C. J., and MOORE and GLICKSTEIN, JJ., concur.

      . Appellant, in its Notice of Appeal, used April 4th as the date of the order denying the motion to dismiss.


text:
    Sylvester Earl SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 79-1804.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Sylvester Earl Smith, pro se.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the denial of a Rule of Criminal Procedure 3.850 motion to vacate. The motion was denied without an evidentiary hearing. We conclude that the files and records of the ease do not conclusively show defendant was entitled to no relief. Thus, the court below should have held an evidentiary hearing, and the matter is reversed and remanded for the purposes of holding an evidentiary hearing on the motion to vacate.

REVERSED AND REMANDED.

DOWNEY, C. J., and LETTS and BERA-NEK, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioners, v. Helen C. BIRNBAUM, Respondent.
    No. 79-1946.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    David F. Cooney of Grimmett, Conrad, Scherer & James, P.A., Fort Lauderdale, for petitioners.
    Milton S. Blaut of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for respondent.
   PER CURIAM.

Certiorari is denied upon the authority of Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975).

It would appear clear that the desired discovery can be obtained by deposing the doctors. By so stating, however, we do not pass on the ultimate merits of the judge’s order.

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


author: SCHEB, Judge.

text:
    LAKEWOOD PIPE OF TEXAS, INC., a Texas Corporation, Appellant, v. Dr. I. H. RUBAII, d/b/a Technical Consultant Services, Appellee.
    No. 79-1244.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1979.
    Rehearing Denied Jan. 30, 1980.

      Edward S. Eno of Tanney, Forde, Dona-hey & Eno, Clearwater, for appellant.
    Jawdet I. Rubaii, Tallahassee, for appel-lee.
   SCHEB, Judge.

The issue on this appeal is whether a guarantee of a contractual obligation requiring payment to be made to a creditor in Florida constitutes sufficient contact with Florida to permit this state to exercise jurisdiction over the guarantor under Florida’s long arm statute, Section 48.193(l)(g), Florida Statutes (1977). The trial court concluded that it does. We disagree and reverse.

Three contracts are involved. In September 1974 Dr. I. H. Rubaii, doing business as Technical Consultant Services, entered into a brokerage contract with Federal Supply, Inc., a Florida corporation. The contract required Federal Supply to pay Dr. Rubaii a finder’s fee for any contract which he procured in the Middle East on behalf of Federal Supply. In January 1975 Federal Supply contracted with Iraq to supply it with pipe casing. While this contract did not mention Dr. Rubaii, he nevertheless contends that it was procured through his efforts pursuant to the brokerage contract.

Unable to fulfill its contractual obligation with Iraq, Federal Supply entered an assignment contract with Lakewood Pipe of Texas, Inc. In this contract, Federal Supply assigned its rights and benefits under its contract with Iraq to Lakewood Pipe and Lakewood, in turn, agreed to supply the pipe casing to Iraq. Dr. Rubaii was not a party to the assignment contract which did not specifically mention him. Under this contract Lakewood merely guaranteed brokerage commissions due in connection with any of Federal’s obligations under its contract with Iraq.

Federal Supply subsequently filed bankruptcy proceedings in which Dr. Rubaii asserted his claim for brokerage services in connection with the Iraq contract. Dr. Ru-baii then brought suit in Florida to invoke Lakewood Pipe’s guarantee of Federal Supply’s brokerage obligations. He obtained service of process against Lakewood Pipe in Texas under the Florida long arm statute, Section 48.193, Florida Statutes (1977). Lakewood Pipe moved to quash service on the ground that it had insufficient minimum contacts with Florida to satisfy due process requirements.

Lakewood Pipe supported its motion to quash with an affidavit from its general manager stating that Lakewood was not a Florida corporation, that it was not authorized to do business in Florida, that it owned no property in Florida, did not engage in business in this state, and had no agents in this state. Further, it stated that all negotiations surrounding the assignment contract occurred in Texas, and that none occurred in Florida. It also stated that none of the pipe casings were processed or shipped from Florida.

The trial court considered Lakewood Pipe’s affidavit, but found that Dr. Rubaii had pled sufficient facts to demonstrate his entitlement to obtain service under the long arm statute. The court concluded that since the brokerage contract between Federal Supply and Dr. Rubaii was executed in Florida, that any sums due him were payable here in Florida where he resided. The’ court further concluded that since Lakewood Pipe, as assignee, stood in the shoes of Federal Supply, it was obligated to make payment in Florida, and that this constituted sufficient contact to bring Lakewood Pipe within Section 48.193(l)(g), Florida Statutes (1977). Accordingly, the trial court denied Lakewood Pipe’s motion to quash.

Appellant, Lakewood, contends that holding it subject to jurisdiction of the Florida courts deprived it of due process of law under the fourteenth amendment to the United States Constitution. Due process requires that a foreign corporation must have sufficient minimum contacts with a state before the state can assert personal jurisdiction over the corporation. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Lakewood correctly points out that in order for a corporation to have had such contacts, it must have purposely availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of the laws of that state. Hanson v. Denkla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1957).

On the other hand, appellee, Dr. Rubaii, contends that Lakewood Pipe entered a contract which required it to perform an act, that is, the payment of an obligation, in Florida, and that its breach of this contract gives Florida personal jurisdiction over Lakewood pursuant to Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977). There Madax International, an Oregon corporation, contracted with Delcher, a Florida corporation, to move the furniture and automobiles of one of Madax’s employees out of Florida. Delcher moved the furniture and automobiles and billed Madax. Madax refused to pay, and Delcher sued and served Madax under the Florida long arm statute. Madax moved to dismiss for lack of jurisdiction and the trial court denied its motion. This court upheld the denial stating:

[T]he parties entered into a contract which had been breached by Madax's failure to perform acts required by the contract to be performed in this state, to wit: the payment for the services rendered by Delcher. Where there is an express promise to pay and no place of payment is stipulated, the debtor must seek the creditor, and the cause of action accrues where the default occurred.

Id. at 1084 (citation omitted).

We find Madax distinguishable from the case under review. Even where there is facial jurisdiction under the Florida long arm statute, the party over which jurisdiction is asserted must have had sufficient minimum contacts with Florida to satisfy due process requirements. Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir. 1975); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977). Madax International had such contacts because it was a party to the contract sued on and the primary obligor under it. In this ease, however, Dr. Rubaii was not a party to the contract of assignment sued on. In fact, Dr. Rubaii merely became a gratuitous beneficiary of a guarantee of Federal Supply’s primary obligation to him. Further, the assignment in no way deprived him of his right to enforce his claim in Florida against Federal Supply under the contract of assignment.

Lakewood Pipe’s only contact with Florida was becoming a party, together with a Florida corporation, to a contract of assignment which guaranteed an obligation. Dr. Rubaii did not contract for the guarantee and was not a party to the contract of assignment. Under these circumstances, Lakewood Pipe had insufficient contact with Florida to permit Florida courts to exercise personal jurisdiction over it.

In light of its conclusion that Lakewood Pipe had sufficient contact as a matter of law by virtue of its guarantee of Federal Supply’s brokerage obligations, the trial court did not determine if Lakewood Pipe had any other contacts with Florida sufficient to enable that court to assert jurisdiction over Lakewood. Thus, we reverse the trial court’s order denying Lakewood Pipe’s motion to quash service of process, remand, and direct the court to determine if Lakewood had other contacts which would enable Florida to assert jurisdiction under Section 48.193(1).

Lakewood Pipe has made a prima facie showing of lack of jurisdiction in the affidavit of its General Manager. Therefore, on remand, Dr. Rubaii will have the burden of establishing jurisdiction “by affidavit or other proof and not just by reiteration of the complaint.” Dublin Co. v. Penninsular Supply Co., 309 So.2d 207, 208 (Fla. 4th DCA 1975).

GRIMES, C. J., and SHAFER, ROBERT T., Jr., Associate Judge, concur.

      . Delcher served Madax under Section 48.-193(l)(g), Florida Statutes (1977), which states:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

      (g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.