author: BOYD, Justice. ENGLAND, Chief Justice,

text:
    ESCAMBIA COUNTY, Petitioner, v. Jack BEHR, etc., Respondents. Paul BAKER, etc., et al., Petitioners, v. DADE COUNTY, etc., Respondents.
    Nos. 53572, 55280.
    Supreme Court of Florida.
    May 1, 1980.
    Rehearing Denied June 30, 1980.
    John W. Fleming, Pensacola, for petitioner, Escambia County.
    Jim Smith, Atty. Gen., and Randy Schwartz, Asst. Atty. Gen., Tallahassee, for respondents Jack Behr, etc.
    Bennett H. Brummer, Public Defender, Miami, for amici curiae Florida Public Defenders Ass’n.
    William K. Howell, Jr., Sr. Asst. County Atty., DeLand, for amici curiae Volusia County.
    Wilson W. Wright and William J. Roberts, Tallahassee, for amici curiae State Ass’n of County Commissioners.
    Marilyn C. Wolf, Asst. County Atty., Gainesville, for amici curiae Alachua County-
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for petitioners, Paul Baker et al.
    Stuart L. Simon, Dade County Atty., and Stephen P. Lee, Asst. County Atty., Miami, for respondents Dade County, etc.
   BOYD, Justice.

These cases are before the Court on petitions for certiorari to review district court decisions and have been consolidated for purposes of this opinion. In case no. 53,572 we accepted jurisdiction on the ground that the decision of the District Court of Appeal, First District, affects a class of constitutional state officers. In case no. 55,280, the District Court of Appeal, Third District, certified that its decision passed upon a question of great public interest. This Court has jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In case no. 53,572 the facts and status of the case are as follows.

On May 10 and 11, 1977, the Public Defender for the First Judicial Circuit filed motions to withdraw as counsel in a number of felony cases on the ground that his excessive case load would preclude the performance of effective representation on behalf of the indigent defendants. Prior to any ruling on these motions, petitioner Es-cambia County sought a writ of mandamus in circuit court to compel the public defender to defend the cases. The writ was denied without the issuance of an order to show cause which would have required a response from the public defender. The court was of the opinion that the duty of the public defender to provide representation flows from his appointment by a trial court in a particular case and that mandamus does not lie to compel representation. Meanwhile, the motions to withdraw were granted in six noncapital felony cases. Es-cambia County, which would ultimately have to bear the expense of appointed counsel, sought certiorari review in the district court of the denial of its petition for mandamus.

The county argued that section 27.51(1), Florida Statutes (1977), imposes a clear duty on the public defender to provide representation to insolvent defendants. The district court denied relief, saying that the cited subsection

must be read in pari materia with other relevant statutes and standards. Section 27.53(2) allows the trial court the discretion to appoint as special assistant public defender any member of the Bar to represent insolvent defendants. Canon 6 of the Code of Professional Responsibility provides generally that a lawyer should represent a client competently. The corresponding disciplinary rule, 6-101, requires “a lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances.” Ethical Consideration 2-30 provides, “Employment shall not be accepted by a lawyer when he is unable to render competent service . . . .”

State ex rel. Escambia County v. Behr, 354 So.2d 974, 975 (Fla. 1st DCA 1978). The court held that the circuit court may grant a public defender’s motion to withdraw and appoint private counsel at county expense on the ground of excessive case load in the public defender’s office.

The petitioner here reiterates its argument that the public defender has a clear duty, under section 27.51, to represent insolvent defendants. It argues further that section 27.53(3), Florida Statutes (1977), provides that the only circumstance under which the public defender may withdraw is conflict of interest among the clients of the office.

The respondent argues that section 27.-53(2), Florida Statutes (1977), contemplates various kinds of special circumstances and reasons for appointment of private counsel and that these may include excessive case load. The duty of the public defender to provide representation derives not from the statute, respondent contends, but from court appointment. Therefore the appointment of private counsel under section 27.-53(2) can be either instead of the public defender in the first instance, or following the granting of a public defender’s motion to withdraw.

In case no. 55,280, the facts are as follows.

The public defender of the eleventh judicial circuit moved to withdraw as counsel for a particular indigent defendant in all appellate proceedings. The circuit court granted the motion and appointed a “special assistant public defender” to provide representation. On petition by Dade County for certiorari, the district court quashed the circuit court’s order. It held that the duty of the public defender to provide representation is imposed by statute and that in purporting to relieve the public defender of that duty the court exceeded its authority. The public defender’s motion, said the court, did not state a “lawful ground” for the appointment of a special assistant public defender under section 27.53(2). Dade County v. Baker, 362 So.2d 151, 154 (Fla. 3d DCA 1978).

In dissent, Judge Hubbart wrote:

The court relies on what it considers to be the public defender’s statutory duty to represent the defendant herein. I cannot agree. It is clear that Chapter 27.50, Florida Statutes (1977), does not impose an exclusive statutory duty on the public defender to represent all insolvent defendants in all criminal proceedings. The statute, in fact, creates a dual system for delivering defense services to the insolvent poor in criminal cases. The public defender may be appointed by the court to represent an insolvent defendant in felony cases and in certain misdemeanor, municipal or county ordinance, and juvenile delinquency cases. If so appointed, it becomes the public defender’s duty to represent such defendant. The court also has the option of appointing a member of the Florida Bar in good standing to represent an insolvent defendant in a criminal proceeding pursuant to either Section 27.53(2) or 27.53(3), Florida Statutes (1977). In a capital case, the court has the additional option of appointing private counsel under Section 925.035, Florida Statutes (1977). If so appointed, it becomes private counsel’s duty to represent such defendant.
Section 27.51(1), Florida Statutes (1977) imposes upon the public defender the duty of representing “any person who is determined to be insolvent, as provided in this act, who is under arrest for, or is charged with, a felony.” It does not impose a sole exclusive duty upon the public defender to represent all insolvent defendants charged with a felony. The statute must be read in pari materia with the other sections of the statute which clearly give the trial court the discretionary authority to appoint members of the Florida Bar to represent insolvent defendants in criminal proceedings.

Id. at 158 (footnote omitted). The dissenting opinion stated further that there should be no necessity for inquiry into whether the trial court’s order is based on a “lawful ground” because section 27.53(2), providing the authority for the appointment in question, does not mention any such prerequisite.

Thus the two majority opinions and one dissent below provide us with three possible approaches to resolving the problem before us. The third district majority holds that the appointment of private counsel in substitution for the public defender under section 27.53(2) must be based on some “lawful ground,” and holds that excessive case load is not such a lawful ground. The dissenter insists that the trial court’s discretion to appoint members of the bar as special assistant public defenders under section 27.-53(2) is virtually unfettered and not dependent on a showing of a lawful ground or special circumstances. The first district’s approach is to hold that appointments of private counsel in lieu of or substitution for the public defender under section 27.53(2) must be based on some special circumstance and that excessive case load is such a special circumstance.

We agree with the conclusion urged by Judge Hubbart and adopt his opinion as the rationale for our holding. Dade County v. Baker, 362 So.2d at 154 (Hubbart, J., dissenting). We hold that the court has the option of appointing the public defender or private counsel. This is a matter within the sound discretion of the trial court judge. The court does not have to make any prerequisite findings or allow the county an opportunity to be heard before appointing private counsel.

In case no. 53,572 the first district’s decision denying the county relief from the trial court’s order is affirmed. In case no. 55,280 the third district's decision holding that the trial court departed from the essential requirements of law is quashed. The causes are remanded with directions that they be remanded to the respective circuit courts for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., concurs with an opinion with which ALDERMAN, J., concurs.

ENGLAND, Chief Justice,

concurring.

I fully agree with the approach taken by the majority in adopting Judge Hubbart’s opinion in Dade County v. Baker, which allows a trial court to appoint private counsel in lieu of the public defender to represent an indigent, without a showing of “lawful grounds” or “special circumstances,” either initially or upon the public defender’s withdrawal. My agreement on that approach, however, highlights the need to examine another alternative to the representation problem which these cases have identified. The free substitution of private attorneys for public defenders who seek to withdraw from a case in which they have been appointed counsel, on the ground of excessive caseload, potentially poses dramatic financial implications for the counties and variant levels of performance or responsibility among the public defenders in Florida’s twenty judicial circuits.

The problem of excessive caseload in the public defender’s office should be resolved at the outset of representation, rather than at some later point in a trial proceeding. Public defenders, at the time of their appointment to a new case, are in the best position to know whether existing caseloads render unlikely their ability to continue to conclusion a new representation. If that prospect exists, they should so advise the trial court before undertaking new commitments. Trial judges can then conduct a hearing, in which the county should be entitled to appear, to evaluate the caseload claim and to determine whether private counsel should be assigned to serve as a special assistant public defender.

Clearly, the counties are the only real parties in interest in such a proceeding, and they should be able to challenge the evidence offered to support a claim of excess caseload. Section 27.53(2), Florida Statutes (1979), provides that the fees, costs, and expenses for a special assistant public defender are to be paid in the same manner as capital case fees which, pursuant to section 925.035, Florida Statutes (1979), are to be paid by the county.

By requiring public defenders to decline new representation on the basis of excess caseload, rather than to withdraw from pending proceedings on that ground, the trial courts of this state will not only prevent delays in the administration of the criminal justice system, but will also avoid the creation of a different standard of professional representation in public defender offices than among private attorneys. A further purpose is served, moreover. If a public defender can make the requisite showing to be relieved of new cases, a record is established by which the legislature can accurately assess the manpower needs of the public defender system and the financial burdens it has placed on thé counties. Appropriate legislative responses can then be developed.

Two other corollaries of this approach should be mentioned. First, in the event that trial judges find a persistent and unjustified declination of new representation by the public defenders on the ground of excessive caseload, the chief judge of the circuit should be informed, either to seek appropriate local solutions or to advise this Court. Second, the public defenders’ offices can possibly alleviate their own caseload problems, and avoid declinations of representation, by a more careful screening of eases for which indigency representation is requested.

OVERTON and ALDERMAN, JJ., concur.

      . The fees and expenses of private counsel appointed to represent insolvent defendants are paid in the same manner as in capital cases, § 27.53, Fla.Stat. (1977); that is, they are paid by the county. § 925.035, Fla.Stat. (1977).

      . Section 27.51(1), Florida Statutes (1977), provides in pertinent part:
      (1) The public defender shall represent, without additional compensation as provided in s. 925.035, any person who is determined to be insolvent, as provided in this act, who is under arrest for, or is charged with, a felony. The public defender may represent any person who is determined to be insolvent, as provided in this act, who is under arrest for, or is charged with, a misdemeanor or violation of a municipal or county ordinance in the county court.

      . (3) If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff, it shall be his duty to move the court to appoint one or more members of The Florida Bar who are in no way affiliated with the public defender in his capacity as such, or in his private practice, to represent those accused. However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict, and said attorney may, in the discretion of the court, be paid a fee and costs and expenses as is provided in subsection (2).

      . (2) In addition, any member of the bar in good standing may be appointed by the court to, or may register his or her availability to the public defender of each judicial circuit for acceptance of, special assignments without salary to represent insolvent defendants. Such persons shall be listed and referred to as special assistant public defenders and be paid a fee and costs and expenses. Such fee and costs and expenses shall be fixed by the trial judge and shall be paid in the same manner as counsel fees are paid in capital cases or as otherwise provided by law. In addition, defense counsel may be assigned and paid pursuant to any existing or future local act or general act of local application.

      . The office of the state attorney cannot realistically be placed in the position of challenging the public defender’s caseload statistics and priorities, due to their parallel yet competing interests.

      . The Code of Professional Responsibility allows for permissive or mandatory withdrawal under certain specified situations, however no provision, express or implied, is made for withdrawal as counsel from a pending proceeding due to excessive caseload. See Fla.Bar Code Prof.Resp., D.R. 2-110(B), (C); D.R. 5-102; D.R. 5-105(B). Furthermore, the acceptance of additional cases where an existing caseload precludes adequate representation may subject an attorney to disciplinary action. See Fla.Bar Code Prof.Resp., D.R. 7-101(A)(l), (2). See also the Preliminary Statement to the Code of Professional Responsibility which provides that the “Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action [and] . . should be uniformly applied to all lawyers, regardless of the nature of their professional activities.” (Emphasis added.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WATSON CLINIC FOUNDATION, INC., and Glen Barden, M. D., Petitioners, v. Esther RAEDEL and Fredrick Raedel, Respondents.
    No. 54757.
    Supreme Court of Florida.
    May 22, 1980.
    Michael B. Colgan and Thomas R. Bayless of Holland & Knight, Lakeland, for petitioners.
    Wagner, Cunningham, Vaughan, Hapner & Genders, Tampa, and Walter H. Beck-ham, Jr. and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for respondents.
   PER CURIAM.

The petition for writ of certiorari is granted, and the decision of the District Court of Appeal, Second District, 360 So.2d 12, is approved. See Aldana v. Holub, 381 So.2d 231 (Fla.1980).

It is so ordered.

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


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. W. L. COBB CONSTRUCTION CO., Appellee.
    No. 55090.
    Supreme Court of Florida.
    May 22, 1980.

      Margaret-Ray Kemper, Alan E. DeSerio, Jerrold K. Phillips, H. Reynolds Sampson, Tallahassee, and Fletcher N. Baldwin, Gainesville, for appellant.
    Joseph G. Thresher and J. Rex Farrior of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   PER CURIAM.

Affirmed. State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla.1980).

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG and McDONALD, JJ., concur.

OVERTON, J., dissents for reasons expressed in his dissent in Chadbourne, with which ADKINS and ALDERMAN, JJ., concur.


author: ADKINS, Justice.

text:
    Grace SANICOLA, Appellant, v. STATE of Florida, Appellee.
    No. 55656.
    Supreme Court of Florida.
    May 22, 1980.
    Jerome M. Rosenblum, Hollywood, for appellant.
    Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ADKINS, Justice.

By direct appeal we have before us the constitutionality of section 409.325(l)(b), Florida Statutes (1977). We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellant, hereinafter defendant, was charged with welfare fraud. Specifically, the state alleged she had failed to disclose her husband’s employment in order to obtain state assistance in violation of section 409.325(l)(b), Florida Statutes (1977)

[One who fjails to disclose a change in circumstances in order to obtain or continue to receive under any such program aid or benefits to which he is not entitled or in an amount larger than that to which he is entitled, or who knowingly aids or abets another person in the commission of any such act is guilty of a crime and shall be punished as provided in subsection (5).

Defendant moved to dismiss the information on the basis that the statute was unconstitutionally vague and an unlawful delegation of power by the legislature to the Department of Health and Rehabilitative Services (HRS). Art. II, § 3, Fla.Const. Without comment, the trial court entered its order denying the motion to dismiss. Defendant later entered a plea of nolo con-tendere and specifically reserved the right to appeal the constitutional question. We affirm.

A statute will withstand constitutional scrutiny under a void-for-vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct. Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). There should be sufficient clarity so that guesswork is not required to discern the prohibition. Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). Defendant maintains that the phrase “change in circumstances” is vague because there is no indication as to the type of change required to trigger the statute. Defendant suggests that it would be helpful to know whether the change refers to alterations in financial status as opposed to other types of changes. Also, since there is no limitation that the change be material, it is possible to incur criminal liability for insignificant incidents. See State v. DeLeo, 356 So.2d 306 (Fla.1978).

The state counters with the argument that when read in its entirety, chapter 409 makes it clear that the type of “changes in circumstances” which must be disclosed are those which affect eligibility for financial assistance. See, e. g., Riggins v. State, 369 So.2d 948 (Fla.1979); § 409.185, Fla.Stat. (1977). We agree.

The statute prohibits non-disclosure of “a change in circumstances in order to obtain or continue to receive . benefits to which he is not entitled.” § 409.325(1)(b), Fla.Stat. (1977) (E.S.). Clearly the disclosure must be pertinent to the person’s eligibility to receive or continue to receive assistance; otherwise the disclosure would have no effect and the prohibition would be meaningless.

The defendant next contends that the statute is an unconstitutional delegation of authority in violation of article II, section 3 of the Florida Constitution. By leaving the determination of what constitutes a “change in circumstances” to HRS, the legislature allegedly failed to set forth meaningful guidelines and standards. Dickinson v. State ex rel. Bryant, 227 So.2d 36 (Fla.1969). As noted in the preceding paragraph, however, the statute must be construed to require disclosure of changes which relate to eligibility. The standards for eligibility are found elsewhere in chapter 409 and are not under attack here. It would be impossible for the legislature to anticipate each factual situation giving rise to a change necessitating disclosure. State v. Dye, 346 So.2d 538 (Fla.1977).

The order of the trial court is affirmed.

It is so ordered.

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


text:
    The DADE COUNTY PUBLIC HEALTH TRUST, etc. et al., Petitioners, v. John MACK, Elizabeth and Lauren Mack, Respondents.
    No. 58500.
    Supreme Court of Florida.
    May 22, 1980.

      Henry Burnett, Thomas F. Martin and Michael J. Murphy of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, for petitioners.
    Arthur Halsey Rice and Todd Stephen Rogel of Fromberg, Fromberg & Roth, Miami, for respondents.
   PER CURIAM.

In view of our decision in Simmons v. Faust, 358 So.2d 1358 (Fla.1978), the order of Judge James Earnest holding the medical mediation act unconstitutional is not reviewable by this Court on petition for writ of certiorari. This cause is, however, remanded to the judicial referee for termination of medical mediation jurisdiction in accordance with Aldana v. Holub, 381 So.2d 231 (Fla.1980).

It is so ordered.

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


text:
    CONE BROTHERS CONTRACTING CO., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 55715.
    Supreme Court of FLorida.
    May 22, 1980.
    Joseph G. Thresher and J. Rex Farrior of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    Margaret-Ray Kemper, Alan E. DeSerio, Jerrold K. Phillips and H. Reynolds Sampson, Tallahassee, for appellee.
   PER CURIAM.

Case certified to resolve conflict between State of Florida, Department of Transportation v. Cone Brothers Contracting Co., 364 So.2d 481 (Fla.2d DCA 1978), and State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 358 So.2d 605 (Fla. 1st DCA 1978).

Reversed. State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla.1980), adopting Chief Judge Grimes’ dissent, 364 So.2d at 490.

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG and McDONALD, JJ., concur.

OVERTON, J., dissents for reasons expressed in his dissent in Chadbourne, with which ADKINS and ALDERMAN, JJ., concur.


text:
    Bernard STEPPE, Jr., Petitioner, v. Louie WAINWRIGHT, Respondent.
    No. SS-466.
    District Court of Appeal of Florida, First District.
    March 5, 1980.
    Rehearing Denied June 10, 1980.
    Bernard Steppe, Jr., petitioner, pro se.
   PER CURIAM.

This cause is before us upon petition for a writ of habeas corpus. Petitioner alleges a denial of counsel during the preliminary stage of his prosecution.

Fla.R.Crim.P. 3.850 provides a remedy by which the stated issue may be addressed. Petitioner’s failure to assert exhaustion of that remedy precludes relief by writ of habeas corpus. Henderson v. State, 184 So.2d 646 (Fla.1966); Adams v. Wainwright, 381 So.2d 248, (1st Fla.App. 1979); Fla.R.Crim.P. 3.850.

Accordingly, the petition is denied.

MILLS, C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

ON PETITION FOR REHEARING DENIED

PER CURIAM.

Fla.R.Crim.P. 3.850 provides a remedy by which the issue raised may be addressed; petitioner is free to pursue this remedy and may appeal any adverse ruling.

The petition for rehearing is denied.

MILLS, C.J., and LARRY G. SMITH, and WENTWORTH, JJ., concur.


text:
    Jack RUZEK, Appellant, v. CITY OF HOLLYWOOD, Niagra Fire Insurance Company and Travelers Insurance Company, Appellees.
    No. QQ-479.
    District Court of Appeal of Florida, First District.
    April 3, 1980.
    Rehearing Denied June 9, 1980.
    Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & Zientz, Miami, for appellant.
    Stephen W. Bazinsky, of Walton, Lan-taff, Schroeder & Carson, Fort Lauderdale, for appellees/City of Hollywood and Niagra Fire Insurance Company.
    C. Randal Morcroft of Anthony J. Beisler, P.A., Fort Lauderdale, for appellee/Travel-ers Insurance Company.
   PER CURIAM.

The issue on appeal is whether payment of benefits to an injured employee from a municipal pension fund constitutes workmen’s compensation payments thereby tolling the statute of limitations for filing a workmen’s compensation claim?

Pursuant to Treasure Salvors v. Johnson, IRC Order 2-3372 (1978), cert. denied, 374 So.2d 99 (Fla.1979) and Chemstrand v. Enfinger, 231 So.2d 816 (Fla.1970), we find municipal pension fund payments to an injured employee are not workmen’s compensation payments.

Accordingly, the statute of limitations has run precluding appellant from filing a workmen’s compensation claim.

AFFIRMED.

MILLS, C. J., and ERVIN and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

Appellant contends that this Court misapplied Treasure Salvors v. Johnson, IRC Order 2-3372 (1978), cert. denied, 374 So.2d 99 (Fla.1979) and Chemstrand v. Enfinger, 231 So.2d 816 (Fla.1970) to the instant case.

Under Treasure Salvors, supra, the IRC stated “treatment or compensation furnished pursuant to a health or group insurance plan would not prevent an employer from asserting the defense of statute of limitations unless ‘an injured employee has been led to believe that he is receiving workmen’s compensation benefits from his employer and so fails to file his claim within the time allowed.’ ” From a thorough reading of the record we can find no evidence to indicate the employee/appellant had been led to believe he had been receiving workmen’s compensation benefits.

Further, Treasure Salvors, supra, also states the intent of workmen’s compensation law is that the benefits be furnished “by the employer.” In the instant case, the benefits were not furnished by the employer but by a municipal pension fund.

In Chemstrand, supra, the court stated that where claimant did not file a claim for workmen’s compensation benefits arising out of a 1962 injury until 1968, knew that payments he had been receiving for subsequent absences from work were medical benefits paid under a group insurance plan rather than workmen’s compensation benefits and the employer had not paid claimant any wages as payment of compensation for a work-connected injury, the claim was barred by the statute of limitations. See Sections 440.19 and 440.19(l)(a), F.S.

In the instant case we only find testimony to indicate appellant knew he was receiving payments from the municipal pension fund. Neither did claimant contend he was misled into not filing a workmen’s compensation claim nor that he was led to believe he was receiving workmen’s compensation benefits.

The motion for rehearing is DENIED.

MILLS, C. J., and ERVIN and SHIVERS, JJ., concur.


author: WENTWORTH, Judge. PER CURIAM.

text:
    Willie EAST, Appellant, v. PENSACOLA TRACTOR & EQUIPMENT CO., INC. and Federated Mutual Ins. Co., Appellees.
    No. QQ-313.
    District Court of Appeal of Florida, First District.
    April 16, 1980.
    Rehearing Denied June 6, 1980.

      Joseph J. Finkelstein of Pelzner, Schwe-dock & Finkelstein, Miami, for appellant.
    H. Edward Moore, Jr. of Sherrill, Moore & Hill, Pensacola, for appellees.
   WENTWORTH, Judge.

The claimant/appellant, Willie East, was injured in 1975 and settled his worker’s compensation claim by a judicially approved joint petition in March 1977. He was paid $16,000 for a stipulated 75% disability from loss of wage earning capacity, with $500 designated for “future medical.” In February 1978, a hearing was held on his petition to set aside the “washout” settlement. Relief was denied on September 8, 1978, and this appeal followed.

The order on appeal finds that the carrier’s failure to disclose medical ratings higher than the 40% recited in the agreement “would have been a material misrepresentation that would have substantially damaged the Claimant” if the carrier had “settled the claim based on the forty percent [anatomic] rating.” Settlement was for earning capacity loss based on the forty percent rating and related factors, but the order finds no material misrepresentation because “given the knowledge of the one hundred percent rating of the leg, the $16,000 paid to the Claimant does not shock or even surprise the judicial conscience.” We conclude on consideration of the evidence that the several misrepresentations and mistakes of fact cannot be regarded as harmless and that the petition should have been granted.

The Florida precedent noted by the deputy’s order establishes that the statute must be administered in fairness to both sides and that the modification standards in § 440.28, Florida Statutes, do not apply to settlement agreements such as the one in this case. “[W]here no fraud has been practiced on the workman or on his employer, and no mutual mistake inheres in the contracts of settlement and release, the courts are bound to respect and enforce the settlements made by the parties, and are powerless to disturb such contracts of settlement.” State v. Florida Industrial Commission, 151 So.2d 636 (Fla.1963); cf., 3 Larson, Workmen’s Compensation Law, §§ 82.60, 82.71 (1979 Supp.). However, that opinion of the court specifically noted the record showed no taint of mutual mistake or overreaching. It found the absence of counsel not material because claimant was educated, held management positions, and “necessarily was called upon to make decisions in the business world,” so that “[h]is is not the image of an ignorant, illiterate individual.”

The claimant in the present case, found by the judge to be an illiterate laborer, was not represented by counsel until after the 1977 settlement. The carrier’s attorney assumed responsibility for explaining the terms of the settlement to the claimant, who simply acknowledged that he understood the effect of the document in response to inquiry from the judge. The attorney advised both the claimant and the judge at the hearing that a treating physician had rated the claimant’s disability at 40% of the body as a whole. For the later stated reason that he did not consider it material, the attorney failed to mention that he knew the same doctor had also rated the disability at 100% of the leg, which would produce a higher compensation than the 40% rating, independent of earning capacity factors. We find no indication that either the judge or claimant was aware of that rating.

The judge was also not advised, although the carrier had such knowledge, that the claimant was continuing to receive active medical treatment and had been hospitalized just prior to the washout hearing. The record indicates that treatment has continued to the present time and surgery is contemplated. It also indicates the judge was not advised that another doctor treating claimant had rated his disability at 60% of the body as a whole. Such facts assume significance in view of the settlement agreement’s limitation of all future medical benefits to $500. Further significance attaches from the fact that the carrier’s knowledge of current medical treatment was not communicated to its attorney, who testified that if he had been given that information, “I feel that the judge should be advised of that,” as follows:

Q: As a matter of fact, did you realize that the Claimant had been seen by the authorized Carrier’s physician, Dr. Flynn, twenty-nine times, the most recent one being March 15th of ’77?
A: No, I did not know that .
Q: And are you telling the Court that you were unaware of the fact that nine days before he was still being treated by Dr. Flynn?
A: That's right. I had — .
Q: And you had no knowledge nor did Mr. Barnhill tell you that he was hospitalized in February of ’77? •
A: That’s correct .
Q: Basically, do you think the information to the effect that he was hospitalized in February of ’77 and that he was actually still being treated and not discharged by the authorized physician, Dr. Flynn, as recently as March 15th of ’77, would be important to relate to a judge who has to listen and approve the case on March 24th of ’77?
A: If I had that information and was going to a washout at this time, yes, I would — I feel that the judge should be advised of that .
Q: Did the judge have the file at the time of the hearing of the joint petition?
A: I don’t know.
Q: Did you request the file to be sent over from Tallahassee or that a file be made up and sent over from Tallahassee?
A: I made no specific request with the bureau, no. I’m not sure how they do that.

The order on appeal provides particulars of the relevant facts:

The Claimant is a thirty-seven year old black male. He has always worked as an unskilled laborer . . . . [T]he Claims Supervisor for Federated Mutual Insurance Company, managed the claim for the Carrier . . . . The Carrier also engaged the services of Robert Martin, an independent adjuster with Crawford and Company to deal directly with the Claimant. The Carrier’s records reflect that Dr. Flynn had hospitalized the Claimant on February 11,1977 . At this point, the Carrier received word from Mr. Martin that the Claimant did not want to settle his case because Dr. Flynn had told the Claimant his disability rating was sixty percent. However, the Claimant changed his mind shortly thereafter and agreed to settle his claim for $16,000.00 ....
During the time the Claimant was under the care of Dr. Flynn, he was not reclassified as temporarily and totally disabled even when hospitalized in February of 1977 . . . . The Carrier contacted its Pensacola attorney . . . and requested that he draw a Stipulation and Joint Petition which would completely settle the claim. Settlement with the Claimant was based on an agreed body of the whole rating of seventy-five percent. Although the attorney was aware of the one hundred percent impairment rating of the leg, this fact was not referred to in the Stipulation. Only the forty percent impairment rating of the whole body was mentioned. A hearing was arranged with the Judge of Industrial Claims to take testimony to determine if the lump sum settlement was in the best interest of the Claimant. The attorney met with the Claimant and his mother at the Courthouse just before the scheduled hearing. He explained to the Claimant that the Stipulation and Joint Petition represented a final settlement of the case. He did not explain to the Claimant all of his options under F.S. 440 .
At the hearing, the Judge of Industrial Claims explained the finality of the settlement to the Claimant. The Claimant understood that once he accepted the $16,000.00, his case was closed. He understood that even if he got worse, he could not come back and get any more money from the Carrier. The Claimant stated he planned to use the money to go to Pensacola Junior College to learn a trade. He did not mention, as he later testified, that he, in reality, planned to use the money for further treatment of his leg. The record reflects that the Judge knew only of the forty percent rating and did not know about the one hundred percent rating of the leg. The record is silent as to whether or not the Judge of Industrial Claims reviewed the file in accordance with WCRP 17(h) .... (e.s.)

We conclude that the totality of circumstances presented shows either a mutual mistake on material facts or overreaching on the carrier’s part, and that claimant should be allowed to prove entitlement to benefits foreclosed by the settlement agreement. State v. Florida Industrial Commission, supra. We also note from examination of the record on appeal that it does not reflect review by the judge of the bureau file (containing such materials as medical and other reports) before he approved the settlement agreement, as was expressly required by § 440.20(10), Florida Statutes, and W.C.R.P. 17(h), then applicable. If such an oversight occurred, it would apparently be regarded as fundamental error invalidating the agreement and order. Farrand Corp. v. McKenney, IRC Order 2-3324 (Jan. 16, 1977).

The order is accordingly reversed and the cause remanded for further proceedings.

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

ON MOTION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM.

Our opinion in this case should not be read as casting aspersion upon appellees’ present counsel, who was not involved in the 1977 joint petition proceedings in this case.

Rehearing is denied.

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


author: OTT, Judge.

text:
    Willie L. EAST, Appellant, v. PENSACOLA TRACTOR & EQUIPMENT COMPANY, INC., a Florida Corporation, Robert Barnhill, Federated Mutual Insurance Company, a Foreign Corporation authorized to do business in the State of Florida, Jeffrey A. Cramer, Esq., and Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Appellees.
    No. 79-1554.
    District Court of Appeal of Florida, Second District.
    May 21, 1980.
    Joseph J. Finkelstein of Pelzner, Schwe-dock & Finkelstein, P.A., Miami, for appellant.
    Larry I. Gramovot of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellees Pensacola Tractor & Equipment Co., Inc., Robert Barnhill and Federated Mut. Ins. Co.
    David J. Kadyk and Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees Jeffrey A. Cramer and Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
   OTT, Judge.

The trial court entered summary judgment for appellees in this case on a theory that the charging allegations of appellant’s complaint had been adjudicated adversely to him in a previous proceeding before the Industrial Relations Commission. Appellant’s attack on that judgment challenged the trial court’s reliance on the doctrine of collateral estoppel.

The issues on this appeal became moot when the First District Court of Appeal reversed the IRC order on which appellees relied to defeat the instant suit. The parties have now stipulated that the summary judgment may be reversed.

Accordingly, the summary judgment in favor of appellees is reversed and the case remanded for further proceedings.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: DANAHY, Judge.

text:
    Ronald HICKOX, as Personal Representative of Estate of Katherine H. Hickox, Deceased, Appellant, v. UNIVERSITY COMMUNITY HOSPITAL, INC., et al., Appellees.
    No. 79-850.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    Rehearing Denied June 11, 1980.
    Richard A. Bokor, Tampa, and David V. Scott of Kelso & Scott, New Albany, Ind., for appellant.
    William E. Hennen and T. Gregory Sloth-er of Marlow, Shofi, Ortmayer, Smith, Con-nell & Valerius, Tampa, for appellees Laura A. Cohen and Argonaut Ins. Co.
    Jeffrey R. Fuller of Williams, Brasfield & Wertz, P.A., St. Petersburg, for appellee Reserve Ins. Co.
   DANAHY, Judge.

Ronald Hickox, as personal representative of the estate of Katherine H. Hickox, deceased, appeals an order of dismissal with prejudice in a medical malpractice action against the estate of Maurice Cohen, M.D., and Dr. Cohen’s insurance carriers. The dismissal was granted because “no claim for mediation was filed within two years of the date of the death of the decedent, Katherine H. Hickox, as required by the provisions of Sections 768.44 and 95.11(4)(d), Florida Statutes . . . .” We reverse.

Katherine Hickox died on June 11, 1974. On June 30,1975, Ronald Hickox, as personal representative, filed a complaint in circuit court against Dr. Ira Gouterman, University Community Hospital, Inc., and their respective insurance carriers. On July 1, 1975, the mediation provisions of the Florida Medical Malpractice Reform Act, Section 768.44, Florida Statutes, went into effect. On June 11, 1976, Hickox filed an amended complaint adding several defendants, including the Cohen estate. Cohen’s estate filed a motion to dismiss because of the bar of the statute of limitations and Hickox’ failure to file a mediation claim prior to filing the civil action. The court granted the dismissal of Cohen’s estate for lack of jurisdiction because no mediation claim had been filed.

On June 14,1977, Hickox filed a claim for medical mediation and proceedings were had on that claim which resulted in a decision in favor of Cohen’s estate filed April 19, 1978. Hickox then filed a motion in the action still pending in circuit court to reinstate the count in the original complaint which had previously been dismissed as to Cohen’s estate. The court granted the motion to reinstate. Cohen’s estate filed its answer to the amended complaint, raising as affirmative defenses the bar of the statute of limitations and lack of subject matter jurisdiction.

Reserve Insurance Company, one of Cohen’s insurance carriers, moved to dismiss the complaint with prejudice as to itself and Cohen’s estate on the grounds of lack of subject matter jurisdiction for failure to timely mediate the claim; failure to state a cause of action by failure to allege mediation; and/or the bar of the statute of limitations for failure to file mediation or a common law action within two years of decedent’s death and/or failure to file a common law action within sixty days of the termination of mediation. Cohen’s estate also filed a motion for summary judgment raising essentially the same issues. The court entered an order of dismissal with prejudice as to Cohen’s estate and his insurance carriers.

The two important issues we must resolve in this case are (1) whether the provisions of the Medical Mediation Act apply to Hickox’ cause of action against Cohen’s estate, and (2) whether Hickox’ claim is barred by the statute of limitations.

The first question may be answered by reference to Medel v. Valentine, 376 So.2d 1154 (Fla.1979). In that case a medical malpractice suit was brought against an obstetrician on April 22, 1975. On July 1, 1975, the provisions of the Medical Mediation Act took effect. Subsequently, plaintiffs joined the anesthesiologist as co-defendant in their suit against the obstetrician. Plaintiffs instituted medical mediation proceedings against the anesthesiologist pursuant to the Act and, after hearings, the panel found no actionable negligence on the part of the anesthesiologist. In the malpractice suit, the jury returned with a verdict against the obstetrician and found no liability as to the anesthesiologist. The supreme court held that a new trial was required for both doctors because the application of the Medical Mediation Act denied the obstetrician equal protection. In so holding, the court stated that “[w]e read subsection (10) to exempt from the provisions of the Medical Mediation Act all elements of a controversy, including the join-der of additional defendants, which arise from a single medical transaction or a series of related medical transactions where suit was filed prior to July 1,1975.” Id. at 1156.

We adopt the result in the Medel case and, noting that this suit arises from a “series of related medical transactions,” find that the provisions of the Medical Mediation Act do not apply to Ronald Hickox’ cause of action against Cohen’s estate.

The final order of dismissal cited Section 95.11(4)(d), which imposes a two-year limitation on the commencement of an action for wrongful death. Hickox argues that his action should be retroactively governed by Section 95.11(4)(b), which deals with medical malpractice. We find it unnecessary to address this question because, under either section, Hickox’ claim was timely filed. Katherine Hickox died on July 11, 1974, and the amended complaint against Cohen’s estate was filed June 11, 1976.

In summary, we hold that the provisions of the Medical Mediation Act do not apply to the cause of action against Cohen’s estate and, further, that the complaint was filed within the applicable statute of limitations. Therefore, we reverse the final order of dismissal and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BOARDMAN, Acting C. J., and OTT, J., concur.


text:
    The STATE of Florida, Appellant, v. Jorge FERNANDEZ, Appellee.
    No. 79-459.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied June 24, 1980.
    Janet Reno, State Atty., and Milton Robbins, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Before HUBBART, J., and PEARSON, TILLMAN (Ret.) and CHAPPELL, BILL G., Associate Judges.
   PER CURIAM.

The order under review dismissing the two count information in this cause is reversed and the cause remanded to the trial court with directions to reinstate the subject information upon a holding that: (a) count I of the information properly states a crime [under § 843.01, Fla.Stat. (1979)] for resisting an officer, to wit: a Dade County correctional officer, with violence to his person as such officer is akin in Dade County to a deputy sheriff; see Bush v. State, 367 So.2d 273 (Fla. 3d DCA 1979), and (b) count II of the information properly states a crime [under § 784.07, Fla.Stat. (1979)] for battery on a law enforcement officer, to wit: a Dade County correctional officer, as such officer is akin in Dade County to a deputy sheriff. Bush v. State, 367 So.2d 273 (Fla. 3d DCA 1979). The Bush decision upon which we predicate this reversal was rendered subsequent to entry of the order under review and was not, therefore, available to the trial court prior to making its ruling, else, we are confident, the decision reached would undoubtedly have been different.

Reversed and remanded.


author: UPCHURCH, Judge.

text:
    SAFECO INSURANCE COMPANY, Appellant, v. Tracy E. ROCHOW et al., Appellees.
    No. NN-451/T1-92, NN-471/T1-92A.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.
    Rehearing Denied June 10, 1980.

      Sam Daniels, Miami, and Dennis J. Wall, Orlando, for appellant.
    John W. Tanner, Daytona Beach, for ap-pellees.
   UPCHURCH, Judge.

Defendant, Safeco Insurance Company, appeals a final order of the Circuit Court for Volusia County holding an agreement between appellees and appellant valid but incapable of performance. Plaintiffs, the Rochows, have cross appealed the same order raising as error a finding of the trial court that Safeco was liable for the Ro-chows’ damages only if they exceeded $60,-000.00.

The first question is whether this court can consider a cross appeal because appel-lees did not file their notice of cross appeal within the required time.

This question has been recently answered in Agrico Chemical Co. v. Department of Environmental Regulation, 380 So.2d 503 (Fla.2d DCA 1980), which held that filing of a notice of cross appeal was not jurisdictional.

In the case before us, the appeal questions the trial court’s order dated April 4, 1979. The cross appeal raises as error a finding of fact in that same order. Appellant’s notice of appeal raises as error “[wjhether the trial judge erred in holding that the agreement is incapable of performance and is, therefore, no longer binding on the parties.” To consider this point, we must consider the factual findings of the lower court. We do not agree with appellant that we are prevented from looking at any factual matters which Safeco considers favorable to it because appellees were not diligent in filing a notice of cross appeal. We cannot consider one without the other. While we do not readily disregard the requirement of a notice of cross appeal we also hold that it is not jurisdictional.

Tracy Rochow, a minor, was injured while a passenger on a motorcycle which collided with a truck. Ron Rongstad, insured by Northland Insurance Company with policy limits of $10,000.00, operated the motorcycle. Robert Railey, insured by State Farm Insurance Company for policy limits of $50,000.00, was the owner of the truck. The Rochows, who sued Railey and State Farm in 1975, had uninsured and underinsured coverage with Safeco and asserted an underinsured motorist’s claim against Safeco.

In 1977, Safeco and the trial court approved a settlement by the Rochows with the Rongstads and Northland for their $10,-000.00 policy limits. Counsel for Safeco and the Rochows then executed an agreement waiving arbitration required under their policy and agreed to be bound by the jury’s verdict in the Rochow v. Railey and State Farm case as to the amount of damages. They agreed that should the jury verdict against Railey and State Farm exceed $60,-000.00 (the total of the State Farm and Northland policies), Safeco Insurance Company would pay the excess up to its policy limits. If less than $60,000.00, the Rochows would make no further demands against Safeco. The agreement did not specifically address the possibility that the jury might find Railey not negligent. The trial court determined that the jury considered only the issue of Railey’s liability. Having found Railey non-negligent, the jury did not reach the issue of damages. Therefore, the court concluded the agreement was incapable of performance. Safeco contends this was error because the agreement provided that if the jury’s verdict was less than $60,000.00 the Rochows would have no further claim against Safeco.

We agree with the trial court.

The interpretation by a trial court of a contract between the parties should not be reversed by an appellate court unless it is clearly incorrect and unsupported by the evidence in the cause. Murphy v. Murphy, 370 So.2d 403 (Fla.3d DCA 1979). The trial court’s interpretation was reasonable. To accept the interpretation of the agreement urged by Safeco would result in a pure windfall for Safeco and a forfeiture by the Rochows, a result which neither party anticipated and for which neither party bargained. The Rochows had purchased and paid for insurance protection and Safeco had promised to afford that protection. To permit Safeco to avoid its undertaking because of the fortuitous wording of an agreement designed solely to simplify the resolution of the issues would be manifestly unjust. The clear purpose of the agreement was to provide an effective method of determining the extent of Safeco’s liability without the necessity or expense of arbitration to the Rochows or to Safeco. However, the agreement simply failed to foresee the eventuality that the jury might absolve Railey of liability and not even consider the amount of damages. There was a condition implied in the contract that the jury determine the amount of damages, a condition that neither the Rochows nor Safeco had within their power to perform or to compel. Burns v. Board of Public Instruction of Okaloosa County, 212 So.2d 654 (Fla.1st DCA 1968). Therefore, the conclusion of the trial court that the agreement was incapable of performance was correct.

The agreement had determined that the Safeco policy would be utilized only after exhaustion of the benefits afforded by the $10,000.00 policy covering Rongstad and the $50,000.00 policy protecting Railey. While we agree with the trial judge’s holding, we disagree with his finding that “Rongstad’s liability has not been judicially determined, and if he was negligent and if Tracy Rochow’s damages exceeded $60,-000.00, Safeco is liable for such excess up to its policy limits.” The trial court correctly held that the agreement was incapable of performance and was therefore no longer binding on the parties. The parties, not being bound, are not bound for any purpose. We therefore conclude that Safeco’s liability is not affected to any extent by the unenforceable agreement.

AFFIRMED.

COBB and SHARP, JJ., concur.


author: SCHEB, Judge.

text:
    Wilton LEE, Jo Pat Masonry, Inc., and Gulf Insurance Company, Appellants, v. Marilyn G. DUNNIGAN, James T. Dunnigan, and Allstate Insurance Company, Appellees.
    No. 79-1695.
    District Court of Appeal of Florida, Second District.
    May 2, 1980.
    Rehearing Denied June 5, 1980.

      William D. Slicker and Richard E. Wol-verton, of Lyle & Skipper, St. Petersburg, for appellants.
    Steven C. Ruth, of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for appellees.
   SCHEB, Judge.

Appellants filed a third-party complaint against appellees seeking contribution on the ground that appellees were comparatively negligent in an automobile accident. Appellants challenge the trial court’s award of summary final judgment to appellees, contending there was a genuine issue of material fact. We agree and reverse.

While driving a pickup truck north on a highway in Clearwater, Florida, appellant Wilton Lee made a left turn, colliding with a southbound station wagon driven by Rebecca Kirkham. Appellee Marilyn Dunni-gan was driving her Mercury automobile south just behind Kirkham’s station wagon and struck the station wagon following its collision with the pickup truck. When Kirkham brought action against Lee and the owner of the truck he was driving, they, in turn, asserted a third-party claim against Dunnigan seeking contribution on the ground that they and Dunnigan were joint tortfeasors. Subsequently, the court granted Dunnigan’s motion for summary judgment on the third-party claim.

A driver who is not able to stop his vehicle before it runs into another vehicle in his lane of traffic is presumed to be negligent. Sawyer v. Dawson, 215 So.2d 764 (Fla.3d DCA 1968), cert. dismissed, 225 So.2d 532 (Fla.1969). Here Dunnigan defended on the ground that she was faced with a sudden emergency and could not stop her Mercury in time to avoid hitting Kirkham’s station wagon. To avoid liability she must show that an unexpected or extraordinary event was the sole cause of the accident. Bellere v. Madsen, 114 So.2d 619 (Fla.1959). Here, there were several affidavits and depositions before the court when it heard the motion for summary judgment. Both Dunnigan and a disinterested witness to the accident stated that the road was wet and slippery at the time of the accident. Another witness said that the collision of Dunnigan’s station wagon and Kirkham’s Mercury occurred some 20 to 30 seconds after Lee’s pickup truck struck the Mercury. A finder of fact could infer from these statements that Dunnigan should have maintained a greater distance between her Mercury and the station wagon or should have been driving at a slower speed because of the road conditions. From this the fact-finder could conclude that Dunnigan was negligent in not having her car under control when she collided with the Kirkham vehicle. See 114 So.2d at 621.

Lee seeks contribution under Section 768.31(2)(a), Florida Statutes (1979), contending that he and Dunnigan were joint tortfeasors. If the collisions of Lee’s and Dunnigan’s vehicles with Kirkham’s station wagon were separated by a substantial period of time, however, they were not joint tortfeasors liable for contribution. See Caygill v. Ipsen, 27 Wis.2d 578, 135 N.W.2d 284 (1965). Because one witness testified that the collisions occurred 20 to 30 seconds apart, there existed a factual issue as to whether Lee and Dunnigan were joint tort-feasors. Thus, genuine issues of material fact existed which precluded summary judgment. Visingardi v. Tirone, 193 So.2d 601 (Fla.1966).

Accordingly, we vacate the summary judgment and remand the case for further proceedings consistent with this opinion.

Reversed.

DANAHY and CAMPBELL, JJ., concur.

      . The introduction of the doctrine of comparative negligence in 1973 and the onerous burden of a movant for summary judgment in a negligence action require a trial judge to exercise caution in considering a motion for summary judgment in such an action. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); U. S. Fire Insurance Co. v. Progressive Casualty Insurance Co., 362 So.2d 414 (Fla.2d DCA 1978).


author: BARKDULL, Judge.

text:
    METROPOLITAN DADE COUNTY, Appellant, v. Norbert J. STEIN, Appellee.
    No. 79-1614.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Rehearing Denied June 27, 1980.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., for appellant.
    Diaz-Asper, Chulock & Chulock and Robert Yale Chulock, Coral Gables, for appellee.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   BARKDULL, Judge.

Subsequent to this court’s opinion in Metropolitan Dade County v. Stein, 296 So.2d 643 (Fla. 3d DCA 1974), this matter recurred in the trial court for determination of the amount of back pay the wrongfully discharged employee was entitled to. The trial court, in addition to the normal pay and increases, awarded the usual and ordinary merit increases plus attorney’s fees for securing the back pay. The County appeals and urges error in granting the merit raises and attorney fees.

As to the merit increase, we affirm because the County regulations provide as follows:

“Administrative Order No. 7-19. Performance Evaluation.
“Employees whose overall evaluation is ‘unsatisfactory’ or ‘needs improvement’ will have their merit increase deferred. Deferrals of merit increases shall be for ‘specific periods’ of time, not to exceed six months; .
“Employees whose overall evaluation is ‘satisfactory’ or higher shall receive the annual merit increase for which they are eligible under the Pay Plan.
“The permanent employee, or conditional employee who has completed service equal to probation, who has received an overall evaluation of ‘unsatisfactory’ or ‘needs improvement’, may request an appeal within ten (10) calendar days after receipt of the evaluation by making a request in writing to the Personnel Division Director.
“The Personnel Division Director will appoint a three person supervisory-level panel, none of whom shall be from the appealing party’s department, to act as an informal fact-finding committee.

To now deny the employee the merit increases would put him in the position of no right of review, as permitted by the County’s own regulations.

As to the attorney’s fees, they were not provided for by statute until July 1, 1978 [Section 448.08, Florida Statutes (Supp.1978); Ch. 78-327, General Laws of Florida 1978] and there were no contract provisions calling for attorney’s fees. Therefore, under the applicable authority [Kittel v. Kittel, 210 So.2d 1 (Fla.1967); Campbell v. Maze, 339 So.2d 202 (Fla.1976); Meyerson v. Cohen, 348 So.2d 930 (Fla. 3d DCA 1977); Dade County v. Grossman, 354 So.2d 131 (Fla. 3d DCA 1978)], there being no contract or statute applicable prior to July 1, 1978, no attorney’s fees should have been awarded for services rendered prior to this date. The trial judge recognized he could not award attorney’s fees without a statute or contract; however, he felt he could award same under his general equity powers. We find this to be error. Tamiami Abstract and Title Company v. Malanka, 185 So.2d 493 (Fla. 2d DCA 1966); Schwartz v. Biscontini, 187 So.2d 81 (Fla. 3d DCA 1966). However, it appears that the period of time for which the wrongfully discharged employee is recovering back wages extends from March 9, 1972 to June 20, 1979, a part of which is subsequent to July 1, 1978. The recovery of back wages being in the nature of a continuing claim, the wrongfully discharged employee would be entitled to attorney’s fees expended on his behalf in securing the back wages for the period subsequent to July 1, 1978. Therefore, we reverse the award of attorney’s fees as entered and remand the cause to the trial court with instructions to determine and award the amount of fees, if any, that were earned subsequent to July 1, 1978.

Affirmed in part; reversed in part with directions.


author: SHARP, Judge.

text:
    Charles W. CHERRY, Petitioner, v. Dr. Oswald P. BRONSON and Bethune-Cookman College, Respondents.
    No. 79-345.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Rehearing Denied June 10, 1980.
    Law Offices of Wagner & Bertone, Holly Hill, for petitioner.
    David A. Monaco, of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for respondents.
   SHARP, Judge.

Petitioner seeks review by writ of certio-rari of the trial court’s order granting a motion to dismiss for failure to state a cause of action. Cherry is a tenured member of the Bethune-Cookman College faculty and director of the College’s Cooperative Education Program. The respondents are Dr. Bronson, President of Bethune-Cook-man College, and Bethune-Cookman College. We quash the order in part.

Upon receiving a notice of dismissal for cause from Bethune-Cookman College, Cherry requested a hearing on the charges in accordance with his rights set forth in the Administrative Faculty and Staff Handbook. He further requested that Dr. Bronson recuse himself from participation in the hearing due to partiality. Dr. Bronson refused. Cherry sought damages in the trial court alleging unilateral breach of his employment contract and malicious interference with his business relationship and he sought declaratory relief, alleging uncertainty of his rights under the faculty handbook. The trial court granted the respondents’ motion to dismiss on the ground that the plaintiff failed to exhaust his administrative remedies by proceeding with the scheduled hearing and appealing its outcome to whatever administrative review body was provided. It allowed Cherry twenty days after the conclusion of the administrative remedies in which to amend his complaint.

Declaratory judgments are appropriate to afford parties relief from insecurity and uncertainty with regards to rights or legal relationships. Jones v. Howland, 369 So.2d 438 (Fla. 3d DCA 1979).

The test recognized in this state of whether or not a complaint will give rise to a proceeding under the Declaratory Judgment Act inquires whether or not the party seeking a declaration shows that he is in doubt or is uncertain as to the existence or non-existence of some right, status, immunity, power or privilege and has an actual, practical and present need for a declaration.

Hialeah Race Course v. Gulfstream Rac. Ass’n., 210 So.2d 750, 752 (Fla. 4th DCA 1968). The petitioner alleged he was uncertain as to the nature of his remedies under the college procedure and applicable law. He was being forced to defend his position in an administrative hearing imminently scheduled.

Cherry as a tenured teacher faced with dismissal charges is clearly entitled to a due process hearing. Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The administrative handbook itself states that the college will not deny a teacher the right of due process. An essential element of a due proces hearing is an impartial decision maker. Megill v. Board of Regents of the State of Florida, 541 F.2d 1073 (5th Cir. 1976); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970). One basis for Cherry’s application to the lower court was to insure that he received a fair hearing by impartial decision makers. In order to carry out that right, Charles Cherry is entitled to a declaration of his rights under his employment contract and under the administrative handbook.

The trial court did not reach this issue. It held that the petitioner would have to exhaust his administrative remedies by participating in the administrative hearing before he could apply to the court for relief. However, the doctrine that administrative remedies must be exhausted applies only when the administrative remedy is available and adequate. State ex rel. Department of General Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); Northeast Airlines, Inc. v. Weiss, 113 So.2d 884 (Fla. 3d DCA 1959). The administrative remedies available to petitioner as set forth in his complaint are not adequate because they do not provide him with a fair and impartial hearing. Therefore, they need not be exhausted. State ex rel. Allen v. Board of Public Instruction, 214 So.2d 7 (Fla. 4th DCA 1968); State ex rel. Dept. of General Serv. v. Willis, 344 So.2d (Fla. 1st DCA 1977). It would be an exercise in futility to require Cherry to participate in an administrative hearing that does not meet the essential requirements of due process.

Petitioner’s actions for specific performance and damages are premature and were properly dismissed by the trial court. However, that portion of the order dismissing the complaint for declaratory relief is quashed. We remand this matter to the trial court to determine whether the allegations concerning Bronson’s partiality are supported by substantial evidence, and to enter such orders as may be appropriate to assure petitioner a fair and impartial administrative hearing.

ORDER QUASHED IN PART AND REMANDED.

DAUKSCH, C. J., and CROSS, J., concur.


author: ORFINGER, Judge.

text:
    Carola D. ALLEN, Appellant, v. ESTATE of Ellen C. DUTTON et al., Appellees.
    Nos. 79-398/T4-417, 79-1010/T4-417A.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Rehearing Denied June 12, 1980.

      Ernest J. Rice of Ernest J. Rice, P. A., Orlando, for appellant.
    Leon H. Handley, David W. Roquemore and Francis E. Pierce, III, Orlando, for ap-pellees.
    Russell Troutman of Troutman, Parrish & Kanar, P. A., Winter Park, for appellee J. Thomas Gurney, individually.
   ORFINGER, Judge.

This appeal is from a final judgment on the pleadings in favor of appellees denying appellant’s claim against the decedent’s estate and awarding attorney’s fees to appel-lees under section 57.105, Florida Statutes (Supp.1978).

Appellant is the natural daughter of Harry C. Dutton and the stepdaughter of Ellen C. Dutton. Harry C. Dutton predeceased his wife in March, 1971, leaving a substantial estate to be disposed of under the terms of his will dated May 27, 1969. After certain bequests, the residue of the estate was divided into two trusts, the Ellen C. Dutton Trust (for marital deduction purposes) and the Dutton Family Trust, of which latter trust appellant was a substantial beneficiary. Under the terms of her husband’s will, Ellen was granted the right in her will to appoint the corpus of the Ellen C. Dutton Trust, failing which on her death the remaining assets therein would be added to the Dutton Family Trust. Ellen’s will also executed on May 27, 1969, before the same witnesses, contained a provision specifically declining to exercise that power of appointment. After Harry’s death, Ellen executed a new will on June 22, 1971, in which she specifically exercised the power of appointment given to her in Harry’s will, but did not appoint to appellant. Ellen died on April 15,1978, and her 1971 will was admitted to probate.

Within the time for filing claims, appellant filed a claim in Ellen’s estate, alleging that she was a beneficiary of a contract existing between Harry and Ellen and incorporated into their respective wills, whereby they agreed that the assets of Harry’s estate would be ultimately disposed of in accordance with the wills executed on May 27, 1969; that Ellen affirmed the contract by taking under Harry’s will and that she breached the contract by her will of June 22, 1971. Objection to the claim was duly filed, whereupon the instant action followed.

After appellant filed her amended complaint, alleging substantially the facts aforesaid, appellees filed their answer, denying the existence of an agreement, and alleging that any such agreement would have to be in writing, relying on section 731.051, Florida Statutes (1957), and then moved for judgment on the pleadings. The court denied the motion, but concluding that the amended complaint was defective in that it did not allege a written agreement not to revoke the 1969 wills, and finding that there was nothing in the wills themselves to indicate the existence of an agreement, granted appellant twenty days to amend her complaint to allege such written agreement or suffer the entry of a judgment on the pleadings. Plaintiff amended, but did not allege a written agreement; instead, she attached a succession of wills previously executed by Harry and Ellen, each outlining a testamentary plan similar to the plan evidenced by the 1969 wills, and contended that these wills were evidence of the agreement. Answer was filed to the second amended complaint and a renewed motion for judgment on the pleadings was filed. After hearing, the court entered judgment on the pleadings on the original motion because appellant had not amended as required. Subsequently, the final judgment was modified to award to appellee’s attorneys the sum of $23,000 under the provisions of section 57.105, Florida Statutes, (Supp.1978).

Several questions are raised by the appellant, but in the light of our decision here, only two need be addressed: (1) was the trial court correct in entering judgment on the pleadings because appellant did not allege a written agreement not to revoke the will, and (2) was the trial court correct in awarding to appellees attorney’s fees under section 57.105, Florida Statutes (Supp. 1978)?

To determine the correctness of the judgment on the pleadings for appellees, we must determine if an oral agreement not to revoke a will was valid after the effective date of section 731.051, Florida Statutes (1957). Prior to the adoption of the 1957 statute, oral contracts to make a will were valid. Keith v. Culp, 111 So.2d 278 (Fla.1st DCA), cert. denied 114 So.2d 5 (1959). The 1957 statute clearly requires that contracts to make a will or to give a legacy or to make a devise be in writing, signed and witnessed to be enforceable. Appellant contends that since the statute is silent as to contracts not to revoke a will, such contracts need not be in writing. She thus contends that a contract to make a will is independent of a contract not to revoke the same will. We cannot agree. In Keith v. Culp, supra, the court touched on this subject and pointed out that where a contract to make a will exists, it is not the will which is irrevocable, but the contract. It further held that a contract to make a will was enforceable, even though a provision “not to revoke” it was not included in its terms. Inferentially at least, it held that within a contract to make a will was the implied covenant not to revoke it. This point, however, has never been ruled on directly, but is mentioned as dictum in several cases. Hagan v. Laragione, 170 So.2d 69 (Fla.2d DCA 1964); Laragione v. Hagan, 195 So.2d 246 (Fla.2d DCA); rev’d 205 So.2d 289 (1967). As in many cases dealing with the subject, the issues in the Hagan series was not a breach of the agreement to make a will, but a violation of an alleged contract between spouses not to change, alter or revoke it without the consent of the other spouse.

It seems to us that as part and parcel of a contract to make a will is a covenant that the testament will remain in effect at the death of the testator so that property will be disposed of in accordance therewith. Would a contract “to make wills” be fulfilled if a contracting party executed a will one day and revoked it the next? We think not. We quote with approval and adopt the reasoning of the Supreme Judicial Court of Massachusetts in West v. Day, 328 Mass. 381, 103 N.E.2d 813 (1952) where, in accordance with an oral agreement to make a will in behalf of certain beneficiaries the will was made, but later was altered and then revoked. A statute then in effect, much like the one here, required a contract to make a will to be in writing, but was silent as to agreements not to revoke. The court there held:

The plaintiffs contend however, that although the statute operates on an oral promise to make a will, it does not affect an oral promise not to revoke a will. . In California, which has a statute similar to ours, it has been decided in several cases that a promise not to revoke a will is within the statute. In Cazaurang v. Carrey, 117 Cal.App. 511, 514, 4 P.2d 259, 261, it was said, “Whether an agreement be to make a will or whether it be not to revoke one already made, the essence of the agreement is to have a will in existence at the time of the death of the promisor which designates the promisee as a beneficiary in accordance with the agreement.” In either case the agreement “is one to make a provision by will” and is covered by the statute. In De Mattos v. McGovern, 25 Cal.App.2d 429, 432, 77 P.2d 522, 523, it was held that “An agreement not to revoke a will already made is, in effect, the same as an agreement to make a will, and must also be in writing”
We think that these decisions are right.
A contract to make a will means an effectual will, Emery v. Burbank, 163 Mass. 326, 329, 39 N.E. 1026, 28 L.R.A. 57, that is, a will that will dispose of property upon death. Necessarily such a contract implies a promise on the part of the one who is to make the will that he will leave at his death a will which has not been revoked. A promise not to revoke when made in express terms is no less within the statute than an implied promise of similar import. ... Id. at 816.

Since the wills attached to the pleadings do not by their terms indicate the existence of an agreement not to revoke, the presence of which might be sufficient to satisfy the statute, Weiss v. Storm, 126 So.2d 295 (Fla.1st DCA 1961), a separate written agreement not to revoke was required under the statute. No such written agreement being alleged or attached, the court was correct in entering judgment on the pleadings.

This leaves us with the problem of determining the correctness of the award of attorney’s fees under section 57.105, Florida Statutes (Supp.1978), and a chronology of the events following the entry of the final judgment is needed for a full understanding of the issues. Final judgment for defendant was entered January 25, 1979. Notice of appeal was filed February 15, 1979. On April 19, 1979, the trial court entered an order amending the judgment to tax costs, and therein awarded the attorney’s fees in question. This order was corrected on April 25,1979, to reduce certain cost items awarded in error. Appellant contends that the trial court lost jurisdiction to award attorney’s fees once the notice of appeal was filed, so that it did not have power to enter the order of April 19, 1979.

Ordinarily a trial court lacks jurisdiction to award attorney’s fees after a party has filed a notice of appeal from a final judgment, without first obtaining permission from the appellate court. Wilson Realty, Inc., v. David, 369 So.2d 75 (Fla.2d DCA 1979); Rule 9.600(b), Fla.R.App.P. However, it has been held that the trial court may proceed to award costs not included in the final judgment even after a notice appealing the final judgment has been filed. Roberts v. Askew, 260 So.2d 492 (Fla.1972); 3 Fla.Jur.2d, Appellate Review, § 131. Attorney’s fees are properly costs in a case only when made so by statute. State ex rel. Royal Insurance Company v. Barrs, 87 Fla. 168, 99 So. 668 (1924); Giachetti v. Johnson, 308 So.2d 143 (Fla.2d DCA 1975). Cf. McBain v. Bowling, 374 So.2d 75 (Fla.3d DCA 1979). The Legislature in enacting chapter 78-275, Laws of Florida (Supp. 1978) clearly promulgated a new section to be known as section 57.105, Florida Statutes. The heading of chapter 57 in the statute books is “Court Costs.” By specifically incorporating this new provision for attorney’s fees into chapter 57, it is obvious that the Legislature intended to treat this award as part of the only subject matter therein, court costs. We therefore hold that attorney’s fees when properly awarded under section 57.105, Florida Statutes (Supp.1978), may be awarded as part of court costs.

We turn next to the propriety in this case of the award of attorney's fees under this new law. To entitle a party to a award of attorney’s fees under section 57.105, Florida Statutes (1978), the court must find that there was a “complete absence of a justicia-ble issue of either law or fact raised by the losing party.” To determine what is required to invoke this statute we must determine what the Legislature meant and what factors must guide trial courts in deciding to assess fees under it.

Appellee would have us hold that if the court finds the non-existence of a justicia-ble issue of fact or the non-existence of a justiciable issue of law, the award of fees is proper. If we were to accept that interpretation, then any party prevailing in a summary judgment hearing would be entitled to such award, and similarly a party whose pleadings were finally dismissed for failure to state a cause of action or who suffered a judgment on the pleadings would be subject to the assessment of such fees. We do not believe the Legislature intended that result, because had they so intended, they could have provided for the award of fees where the court found that there is no justiciable issue of fact or law, or they could have required a finding of an absence of such justiciable issue, but they did neither. Instead, they required a finding of a complete absence of a justiciable issue of law or fact. The word “complete” is defined as “total; absolute,” Webster’s New Collegiate Dictionary (1979), while the word “absence” is defined as “want; lack of.” Id. at 4. The requirement then is a finding of a total or absolute lack oí a justiciable issue, and to us, this is tantamount to a finding that the action is frivolous.

“Frivolous” is defined as “of little weight or importance; having no basis in law or fact; light, slight, sham, irrelevant, superficial.” Webster’s Third New International Dictionary (1976). The definition of “frivolous appeal” is most analogous to the situation at hand and a clear definition is found in Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935):

A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed, (citation omitted). It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it, or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i. e., against appellant or plaintiff in error.

On the basis of these definitions, in order to find a “complete absence of a justiciable issue of either law or fact” we hold that a trial court must find that the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Merely losing, either on the pleadings or by summary judgment, is not enough to invoke the operation of the statute. Although appellant was wrong, it is clear from this opinion on the merits that a justiciable issue of law was raised, one that clearly was not frivolous. The trial court therefore erred in assessing attorney’s fees against the appellant under section 57.105, Florida Statutes (Supp.1978).

The final judgment is affirmed. That portion of the amendment to judgment taxing costs entered April 19, 1979, as corrected by the order of April 25, 1979, and awarding “costs” of $1,069.32 is affirmed, appellant having failed to demonstrate error in this award, but the award of attorney’s fees therein is set aside.

AFFIRMED in part, REVERSED in part.

COBB and UPCHURCH, JJ., concur.

      . § 731.051 (1957): No agreement to make a will of real or personal property or to give a legacy or to make a devise shall be binding or enforceable unless such agreement is in writing, signed in the presence of two subscribing witnesses by the person whose executor or administrator is sought to be charged.

      . § 57.105 (1978): Attorney’s fee. The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

      . Under the current probate code, section 732.-701, Florida Statutes (1975), it is clear that an agreement not to revoke a will must be in writing and signed by the agreeing party in the presence of two attesting witnesses, but this statute was not in effect at the time the will in question was executed.


author: GRIMES, Chief Judge.

text:
    June L. CHILES, Richard Robert Hoffenkamp and Florida Lime and Materials Corporation, Appellants, v. Paul BEAUDOIN, Appellee.
    No. 79-1498.
    District Court of Appeal of Florida, Second District.
    May 9, 1980.
    Rehearing Denied June 5, 1980.

      Raymond T. Elligett, Jr. and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellants.
    Michael J. Meksraitis, Peter M. DeManio, Sarasota, and Edna L. Caruso, West Palm Beach, for appellee.
   GRIMES, Chief Judge.

The defendants in a vehicular negligence action appeal from an adverse final judgment based upon a jury verdict. They challenge the court’s award of a partial summary judgment on the issue of liability and an evidentiary ruling with respect to damages made during the trial.

In his deposition filed prior to the motion for summary judgment, defendant Hoffen-kamp testified that he had stopped for a traffic light, that a van driven by the plaintiff, Mr. Beaudoin, was in front of him and that there was a car in front of the van. When the light changed, the three vehicles moved through the intersection. Shortly thereafter the car in front of the plaintiff’s van began to turn into a plaza. Mr. Hof-fenkamp stated that he took his eyes off the road for a second and when he looked up he saw the taillights on the van. He then hit his brakes and turned his wheels so as to miss the van, but he was unsuccessful in this maneuver. The testimony which Mr. Beaudoin gave in his deposition was essentially similar. He stated that the woman in the car in front of him suddenly stopped and turned left without giving any signal. This required him to make a sudden stop, and he was immediately struck from behind by Hoffenkamp’s truck.

When a defendant runs into the rear of a plaintiff’s automobile which is lawfully stopped in traffic, there is a presumption of negligence on the part of the defendant upon which the plaintiff is entitled to recover in the absence of an explanation by the defendant. Once the plaintiff establishes that he was rear-ended while lawfully stopped, the burden of going forward with the evidence shifts to the defendant. Gulle v. Boggs, 174 So.2d 26 (Fla.1965); McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977). However, where the defendant shows that he was proceeding in a line of traffic and that the sudden stop of the vehicle ahead of him precipitated his failure to avoid the collision, the presumption is dissipated and the court should submit the case to the jury under ordinary rules of negligence. Keyser v. Brunette, 188 So.2d 840 (Fla. 2d DCA 1966); Hott v. Funk, 165 So.2d 792 (Fla. 2d DCA 1964); Jeskey v. Yellow Cab Co., 136 So.2d 376 (Fla. 3d DCA 1962).

In order to avoid the quick stop exception to the presumption of rear-end negligence, the plaintiff points to the following portion of Mr. Hoffenkamp’s deposition testimony:

Q How did this collision occur?
A Well, I stopped at the stop light, and there was—the van was in front of me, and there was a car in front of him.
Q Uh-huh.
A When we took off, we got through the intersection, and the car in front of the van was going to turn into a plaza.
Well, I went through the intersection to make sure there was no one turning, and for just a split second, I had took my eyes off the road, and when I looked up, I seen the taillights on that van, and I hit my brakes and turned the wheel to miss him, and I caught his corner, just nicked his corner of the van.

The plaintiff argues that this demonstrates that Mr. Hoffenkamp knew the first car was going to turn into the plaza before the plaintiff stopped and thus he should have been prepared for the stop. While the quoted testimony, by itself, may be susceptible of such a conclusion, when it is read together with the balance of the deposition the more logical interpretation is that Mr. Hoffenkamp was merely giving a narrative of what, in fact, had happened as opposed to what he knew was going to happen. Mr. Beaudoin’s deposition testimony that the car in front of him stopped suddenly without any warning lends support to this version. In any event, the conflicting interpretations which could be placed on Mr. Hof-fenkamp’s testimony were sufficient to preclude the entry of summary judgment. See Rauschbaum v. Goldstein, 204 So.2d 897 (Fla. 4th DCA 1967).

The major issue on damages in this case was whether the plaintiff suffered a ruptured thoracic disc as a result of the accident. The plaintiff offered the testimony of two doctors. Dr. Horace Norrell who had first seen the plaintiff about five months after the accident was asked a hypothetical question concerning whether the plaintiff’s ruptured disc was related to the accident. In the hypothetical, counsel requested that Dr. Norrell assume that the plaintiff felt back pain immediately after the accident. The defendant objected to the hypothetical question because of the lack of evidence that the plaintiff had suffered back pain at the time of the accident. The court overruled the objection upon the promise of plaintiff’s counsel that such evidence would be forthcoming, and Dr. Nor-rell rendered an opinion that the ruptured disc was related to the accident.

The problem arises from the fact that when the plaintiff took the stand he denied that he had suffered back pain immediately after the accident. In fact, he said that his back did not hurt at all for at least two or three weeks following the accident. At the close of this testimony which concluded the plaintiff’s case, the defendants moved to strike the testimony of Dr. Norrell as to causation on the ground that an essential fact of the hypothetical question had not been proven. The court’s refusal to grant this motion constituted the heart of the defendant’s motion for new trial. In denying the motion for new trial, the court stated:

The Court finds that the opinion rendered by the medical expert was on a critical issue, i. e., causal of [sic] connection between the injuries complained of and the accident out of which this action arose. The Court further finds that the missing fact, viz., complaints of back pains immediately following the accident, was not proved.
In view of the foregoing the Court would have certainly sustained an objection to the doctor rendering an opinion based on missing facts. The Court, however, permitted the doctor to testify on the representation of plaintiff’s counsel that the fact would be established subsequently. It was not.
The hypothetical question posed a multitude of facts, as unfortunately they usually do; the missing fact, while on an important point, was only one of numerous relevant facts encompassed within the hypothetical question.
The Court upon consideration of the authorities cited by plaintiff and defendants determines that while it was error to permit the expert to render an opinion based upon the hypothetical question, this error was not so prejudicial as to justify a new trial.

The court’s acknowledgment that it should not have permitted Dr. Norrell to give his opinion on causation accords with the well-settled rule that assumptions of fact in a hypothetical question asked of an expert witness must be based upon facts established in the record. Autrey v. Carroll, 240 So.2d 474, 476 (Fla.1970); Steiger v. Massachusetts Casualty Insurance Co., 273 So.2d 4, 6 (Fla. 3d DCA 1973); Young v. Pyle, 145 So.2d 503, 504 (Fla. 1st DCA 1962). The facts need not be undisputed, but they must be supported by competent substantial evidence. Seibels, Bruce & Co. v. Giddings, 264 So.2d 103 (Fla. 3d DCA 1972). Here, then, the court properly recognized its error, but it concluded that the error was not so prejudicial as to require a new trial. It is the latter conclusion with which we must disagree.

The question of whether the plaintiff suffered back pain immediately after the accident was of paramount importance to the medical opinion as to whether the disc injury was accident related. This is highlighted by the deposition testimony of Dr. Kenneth Kahn who said that the reason he felt there was a relationship between the accident and Mr. Beaudoin’s ruptured disc was “the onset of this pain very shortly after injury, and the pain remaining stable in that area that was appropriate for this.”

Obviously, there are some cases in which the improper admission of opinion evidence may be harmless because the facts sought to be established by the opinion have been conclusively proven by other witnesses. E. g., Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 469 (Fla. 4th DCA 1969). However, had the court stricken Dr. Norrell’s opinion, the only remaining support for plaintiff’s contention that the accident caused his ruptured disc was the testimony of Dr. Kahn, and while Dr. Kahn’s opinion was admitted without objection, it too was predicated upon the same questionable premise. Under these circumstances, we find it difficult to conceive that the error of refusing to strike Dr. Norrell’s opinion was not prejudicial.

The plaintiff’s suggestion that the court cured the error by instructing the jury that it could reject the opinion of an expert witness if it found that the facts upon which he based his opinion had not been proven is without merit. The court should have directed the jury to disregard Dr. Nor-rell’s opinion because it was based upon an essential fact not proven.

We reverse the judgment of the trial court and remand the case for a trial on the issues of both liability and damages.

HOBSON and DANAHY, JJ., concur.