author: DOWNEY, Judge.

text:
    The WOOSTER SCHOOL CORPORATION, the Easter Seal Society for Crippled Children and Adults of Broward County, Inc., and the Easter Seal Society for Crippled Children and Adults of Florida, Inc., Appellants, v. George HAMMERER, Joseph S. Grover, et al., Appellees.
    No. 80-401.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1982.
    Rehearings Denied March 19, 1982.

      Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant Easter Seal Societies.
    Thomas A. Groendyke of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant The Wooster School.
    Richard A. Barnett of Krupnick & Campbell, P. A., Fort Lauderdale, for appellee Hammerer.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellee Century National Bank of Broward.
   DOWNEY, Judge.

Appellants are charitable beneficiaries of a pour over trust created by Adele G. Senior. They have perfected this appeal from an amended judgment finding that appellee George William Hammerer was entitled to one-third of one-eighth of the remaining assets of the trust.

The evidence reflects that Adele G. Senior created a trust with the Century National Bank of Broward as trustee, in which, among other things, she directed the trus-' tee upon the event of her death to distribute one-eighth of the remaining trust property to appellee, George William Hammerer, and his two daughters, “provided, however, that the said George William Hammerer be employed by Grantor at the time of Grantor’s death, and if he is not this devise and bequest to him and his daughters shall lapse.” Adele Senior died April 25, 1977. However, on April 8, 1976, Hammerer received a letter from Adele’s nephew, Joseph S. Grover, which advised Hammerer that Grover and his mother (Adele’s sister) had concluded that, as a result of existing circumstances, Hammerer should anticipate terminating his employment by June 1, 1976. A copy of that letter was sent by Grover and received by the trustee bank. Upon receipt of a copy of the letter, the trustee concluded Hammerer’s employment had been terminated effective June 1, 1976, and prepared severance pay checks for him effective that date. Pursuant to said letter and the unpleasant treatment he subsequently received at the hands of Adele’s sister, Hammerer left the employ of Adele Senior without discussing it with Adele, who by then was suffering from the effects of a stroke.

In September, 1976, Hammerer filed a multi-count complaint against Joseph S. Grover, William M. Grover III, and Lilly Grover for damages for conspiring to procure his discharge. The complaint was subsequently amended after Adele’s death so that the above named defendants were all dropped and the trustee was added. At the time of trial there was but one count remaining, which sought to recover Hammerer’s interest in the trust from the trustee.

During the course of the trial Hammerer offered the letter from Grover into evidence. The court apparently accepted the letter into evidence for the limited purpose of showing it had been received by Hammerer. However, the record clearly shows that both Hammerer and the trustee regarded the letter as a notice of discharge. Because of this letter the trial court allowed evidence to be adduced to show Adele’s true intent in making the gift to Hammerer. Based thereon, the trial court found she intended the gift to vest even under the circumstances of this case.

The main question presented is whether a legatee or devisee should be held responsible for the consequences of a failure to perform a condition of a legacy or devise, which failure results from impossibility of performance. We know that generally speaking, where a testamentary gift is subject to a valid condition, performance thereof is required. In Re Estate of Bateman, 290 So.2d 528 (Fla. 3rd DCA 1974). In some instances the courts have held that impossibility of performance will not excuse failure of a devisee to comply with a condition in a will. In Re Estate of Bateman, supra; Guilliams v. First National Bank of Leesburg, 229 So.2d 633 (Fla. 2d DCA 1970). However, in the case of In Re Mollard’s Estate, 98 So.2d 814 (Fla. 1st DCA 1957), the First District Court of Appeal provided a logical exception to the general rule in holding that when the condition of a legacy was impossible of performance because of the volitional act of a third party who stood to gain by that act, performance was not required. In the Mollard case the testatrix executed a will designating her husband as the residuary legatee and bequeathing $5,000 to her nurse on condition that the nurse was in her employ at the time of her death. The husband was familiar with the will and fired the nurse approximately twenty days before his wife died. As executor, the husband refused to recognize the nurse’s legacy because the nurse was not in the testatrix’s employ when she died. The First District Court of Appeal reversed the trial court’s finding that the condition of the bequest had not been fulfilled, holding that the husband had no authority to discharge the nurse and that:

It would be unconscionable and totally without honorable precedent to permit a residuary legatee to become enriched by his arbitrary act of discharging the legatee without rhyme or reason, so far as appears by the record before us, and to thus produce the fiction that the legacy failed because it was a condition thereof that the legatee be in testator’s employ at the time of her death. 98 So.2d at 816.

If the courts of this state are to align themselves with the line of cases holding that nonperformance of a condition precedent cannot be excused where performance was precluded by a third party, unless the third party stands to gain as a result of nonperformance of the condition, then the judgment under review is erroneous. There are several cases which appear at first blush to take such an adamant position. However, we would distinguish them in the following fashion. In Re Estate of Bateman, supra, did not involve the volitional act of a third person that made performance impossible. The other case, Guil-liams, supra, involved a failure of the devi-sees to perform the conditions which were to manage a citrus grove and ferneries, and to pay all taxes, utilities, fire insurance premiums, and repairs on the improvement in question. The devisees did not make the required payments, and the court held the devise lapsed. In passing, the court noted that the devisees’ financial inability to fulfill the conditions precedent did not relieve them of the duty to perform. Once again, there was no intervention by a third party; and one cannot tell from the opinion whether the Guilliams court considered whether the testatrix intended the devise to vest in all events or only if the conditions were performed.

We agree with the holding in the Mollard decision based upon its facts. However, we would not limit the spirit of that decision to its facts. Certainly, a third party who prevents performance of a condition precedent should not be allowed to rely on nonperformance where that party (as in Mollard) stands to gain by preventing the performance; but we do not believe that excusing nonperformance should be restricted to cases in which the third party preventing performance is one who stands to gain by his act. There is respectable authority for a less restrictive exception which would excuse nonperformance caused by a third party whether the third party stands to gain thereby or not. See Annot.: Will — Condition — Impossibility, 39 A.L.R.2d 522, § 7[a],

Of course, a testator can attach conditions to the vesting of a gift. The general rule is that where a testamentary gift is made subject to a valid condition precedent strict performance of the condition is required. But where it becomes impossible for the condition to be performed without the fault of the donee, performance should be excused unless it be determined that performance of the condition was the controlling motive for the testator’s making of the bequest. See Annot., supra, §§ 13-14. The determining inquiry should be whether the testator’s intent in making a bequest was to benefit the donee or to obtain strict performance of some important act in any and all events, with the donee being paid, by way of the bequest, for performing the act. As the court noted in In Re Bridge's Estate, 41 Wash.2d 916, 253 P.2d 394, 402, 39 A.L.R.2d 506 (1953):

“ ‘There is obvious justice in not holding the devisee or legatee responsible for the consequences of a breach of or failure to perform, a condition, where such breach or failure is not due to fault on his part, and where it is clear that such a contin--gency was not within the testator's contemplation. And at bottom the question always is whether it was the testator’s intention that an involuntary breach of condition should operate to defeat the gift. * * * ’ ”

The Restatement of Property, § 438, discusses the effect of impossibility of performance and the necessity in that circumstance of determining the intent of the donor. In subsection “d” of the Comment at pp. 2551-2552 it is stated:

“Generally an inference that the testator intended to excuse from performance is not justified where the impossibility arises out of a volitional act of the devi-see. Where a volitional act of some third person, or a non-volitional occurrence, or a circumstance external to the person who is to perform, results in impossibility, this fact frequently tends to an inference that non-performance is excused.”

Also in subsection “f” of the Comment at p. 2553 we find it said:

“If the source of the impossibility lies in circumstances beyond control of the devisee, that fact tends to an inference that nonperformance is excused.”

The trial judge found that the condition in this case was not performed because of the unforeseen intervention of the nephew, Joseph Grover, in discharging Hammerer.

In our view the trial judge was eminently correct in his conclusion and the justice of the cause compels that result. Hammerer had worked for Adele for some seven years, caring for her every need. As a result, she had showered many gifts upon Hammerer and his family. She had given him money, educated his children, and helped him purchase a home, among other things. She apparently had no relatives who were as close to her as Hammerer. Although she remembered Joseph Grover in her will, she excluded both her sister and Joseph’s brother. Joseph’s deposition shows that he did not see a great deal of his aunt. Thus, the implicit finding of the court that Adele intended the gift to vest even if the condition precedent was not performed through no fault of Hammerer is supported by the record.

Appellants contend in their brief that the Joseph Grover letter was not a notice of discharge and that, in any event, Joseph did not have the authority to discharge Hammerer, and therefore Hammerer left of his own volition. We would concede these positions are arguable. However, as indicated above, both Hammerer and the trustee thought the letter terminated Hammerer’s employment with Adele and, as a result, he left that employment. Also, because Hammerer was only Adele’s employee and Joseph Grover was Adele’s close relative, an assistant headmaster of a school in the east, and (as he put it in his deposition) the senior male member of the family, Hammerer and the trustee assumed Joseph had the authority to terminate Hammerer’s employment. Whether Joseph technically had the legal authority to do so is not determinative of the question; Hammerer, the recipient of the letter, in good faith thought Grover had the authority and that is why he was not in Adele’s employment when she died. The letter was the proximate cause of Hammerer’s leaving Adele’s employment. Therefore we believe this record not only supports a holding that performance of the condition was excused but requires it.

In view of the foregoing, the amended judgment appealed from is affirmed.

BERANEK, J., and RUTTER, WILLIAM, Associate Judge, concur.

      . The two daughters were not parties to this suit, thus the judgment on appeal adjudicated only George William Hammerer’s interest in the trust.


source: Caselaw Access Project

author: SCHEB, Chief Judge.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Victor Vera VIGIL, Respondent.
    No. 81-1009.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1982.
    Rehearing Denied Feb. 26, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, and James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for petitioner.
    A. R. Mander, III, of Greenfelder & Man-der, P. A., Dade City, for respondent.
   SCHEB, Chief Judge.

The state petitions for a writ of common law certiorari, contending that the trial court departed from the essential requirements of the law in ordering the release of Victor Vera Vigil after a jury found him not guilty of murder by reason of insanity. We grant the writ.

Vigil was indicted and tried by jury for first degree murder. After a jury found him not guilty by reason of insanity on April 16, 1981, the trial judge requested that counsel present the legal alternatives for disposition of the defendant at a hearing to be held the next day. At that hearing the state contended that Vigil met the criteria for involuntary hospitalization by order of the court. Defense counsel, on the other hand, argued that Vigil should be sent to the Human Development Center of Pas-co, Inc., for evaluation. During this hearing the trial judge made the following statements:

THE COURT: Well, he’s been, in effect, acquitted. Now, I would assume that by that order that the statute demands that I deliver him to HRS and that then they will make a decision as to whether or not he should be detained for evaluation or whether or not he can go wherever they place him.
Because it seems to me like under a situation like this that the statutes have taken the control from the Court and placed it in the hands of HRS until, perhaps, the defendant does not comply with whatever it is HRS hands down as a treatment plan.
And were I to rely solely on my best judgment, I would do that which I outlined last night — apparently erroneously — that is, just keep this man as secure and tight as a bug until I could get a report from not only two, but perhaps three or four psychiatrists who I picked personally. But that isn’t what the statute says, and I don’t like it one darn bit.

The trial judge then entered an “Order for Emergency Evaluation,” attaching two psychologists’ reports which had been previously filed in the case, “each describing irrational behavior that indicates he may do harm to himself or others.” Vigil was then taken to the Human Development Center for evaluation and the director of the center sent the following letter, dated April 20, to the trial judge:

A 90 minute evaluation was conducted at the Human Development Center on April 17, 1981. The findings were that he [Vigil] is not presently dangerous to himself or others due to mental illness, and is, therefore, not in need of psychiatric hospitalization.
It is recommended that Mr. Vigil be released from custody of the Pasco County Detention Center, and that he be encouraged to attend regular outpatient counseling with an outpatient alcohol specialist. This service can be provided for him here at the Human Development Center of Pasco.

After receiving this letter the trial judge advised the warden at the sheriff’s office by letter that Vigil was entitled to be released from custody because of the recommendations of The Department of Health and Rehabilitative Services. In his letter the judge stated that “the custodial status of Mr. Vigil has, by statute, been subject to the discretion of HRS and its sub-agency, the Human Development Center of Pasco County.”

On April 24 the state filed a motion to correct sentence. The state contended that under relevant statutes the court did have discretion to find Vigil “manifestly dangerous” and to involuntarily hospitalize him. The transcript of this hearing reveals some degree of ambiguity as to whether the trial judge exercised his discretion, or whether he thought he was bound by the prior recommendations of the Human Development Center submitted to the court. It is clear, however, that the state pointed out the various alternatives that the court could consider. At the end of the hearing, the trial judge apparently concluded he had no discretion in the matter as he opined, “I don’t believe the court has the alternatives.” The court then denied the motion for correction of sentence, and the state filed this petition for common law certiora-ri.

The state argues that the various statutes governing disposition of persons acquitted by reason of insanity of criminal charges grant the court discretion to either: (1) discharge the defendant; (2) order outpatient treatment at a specific appropriate facility; or (3) commit the defendant to the Department of Health and Rehabilitative Services facilities for involuntary hospitalization.

Respondent Vigil agrees that the trial judge had this discretion. Indeed, a reading of the various statutes involved, although somewhat duplicative, indicates that it is the court’s responsibility to determine if a defendant found not guilty by reason of insanity is “manifestly dangerous” and if not, to determine the appropriate alternative. See §§ 916.15, .16, Fla.Stat. (Supp. 1980); § 394.467, Fla.Stat. (1979); and Fla. R.Crim.P. 3.217.

While Vigil agrees with the above statement of the law, he takes issue with the state’s contention that the trial judge did not properly follow the law. Further, he contends that the complete record shows that the trial judge properly exercised one of the legal alternatives available by discharging him, after first considering the results of the evaluation that he had ordered. There is some support for respondent’s position in the transcripts of the two hearings mentioned herein. Yet, our reading of the entire transcripts of the two hearings, including the letters and excerpts quoted herein, convinces us that the trial judge concluded that he was bound by recommendation of the Human Development Center and, therefore, was not free to exercise his discretion by selecting one of the alternatives available.

Accordingly, we grant certiorari and remand to the trial court. The court shall make a determination as to whether Vigil is “manifestly dangerous.” The court’s determination should be made only after notice to the state and respondent, and at the hearing the court should consider the evidence from the respondent’s trial, prior reports of psychologists in this case, and any relevant evidence presented by the state and the respondent at the new hearing. The trial judge may consider, but is not bound by, the prior evaluations submitted to the court, and should the court deem it necessary, he may appoint additional psychologists and psychiatrists.

If the trial judge concludes that Vigil is “manifestly dangerous,” he shall then commit him to HRS for involuntary hospitalization. If, on the other hand, the trial judge concludes that Vigil is not manifestly dangerous, he should then exercise his discretion by either discharging him or ordering outpatient treatment at a specific appropriate facility.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    Auleen T. PABST, formerly known as Auleen T. McElfresh, Appellant, v. Clair T. McELFRESH, Appellee.
    Nos. 81-1885, 81-1886.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Rehearing Denied March 16, 1982.

      Fine, Jacobson, Block, Klein, Colan & Simon and Sara B. Herald, Miami, for appellant.
    No appearance, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Reversed on authority of Sections 61.1308 and 61.1318(2), Florida Statutes (1979) and Brown v. Tan, 395 So.2d 1249 (Fla.3d DCA 1981) with instructions to return the child to her mother.


author: RYDER, Judge. PER CURIAM.

text:
    SCI, INC., Appellant, v. ANECO COMPANY, Appellee.
    Nos. 81-1227, 81-1335.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1982.
    On Rehearing March 3, 1982.
    Henry P. Trawick, Jr., of Trawick & Grif-fis, P. A., Sarasota, for appellant.
    Robinson, MacPherson, Harper, Kynes & Batt, P. A., Clearwater, for appellee.
   RYDER, Judge.

Appellant (SCI) seeks review of the trial court’s order granting partial summary judgment to Aneco Company (ANECO). Because the request is untimely, we will not consider the issues raised either by certiora-ri or as a direct appeal.

The Florida Department of General Services (DGS) initially sued ANECO, SCI and others, asserting claims for breach of a construction contract and for defective products. SCI was the general contractor and ANECO the electrical subcontractor for construction of the business administration building of the University of South Florida. ANECO’s separate suit against SCI was consolidated with the DGS action, in which ANECO cross-claimed against materialmen. In ANECO’s amended complaint two counts were directed against SCI. The first count contained a demand for funds retained under its subcontract with SCI; the second count was for delay and disruption damages allegedly caused by SCI under the same subcontract. The court below entered a partial summary judgment awarding the retained funds sought in the first count to ANECO.

SCI now asks this court to specify the proper method of appellate review and to quash the partial summary judgment below. Its contention is that the trial court’s award prejudicially affected it by liquidating the disputed funds without fully determining the possibility of remaining damages or set-off. Appellant suggests that the partial summary judgment on one count is in form and effect a final judgment which cannot be appealed after the complete dispute between the parties is resolved. We disagree.

SCI is premature in challenging this partial summary judgment by direct appeal. It is well settled in Florida that piecemeal appeals will not be permitted where claims are interrelated, involve the same transaction, and the same parties remain in the lawsuit. S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). Under most circumstances, a dismissal of one or more, but not all counts, of a multicount complaint is not a final judgment or order from which a full appeal can be taken. Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). The test to be used by appellate courts in determining finality of an order, judgment or decree is whether there has been an end to the judicial labor below and nothing further remains to be done to terminate the dispute between the parties directly affected. S. L. T. Warehouse Co. v. Webb, supra.

In McClain Construction Corp. v. Roberts, 351 So.2d 399 (Fla.2d DCA 1977), a very similar factual situation was involved; both counts of the complaint sought compensation in regard to work performed on the same building project. We found that because both counts involved the same factual situation and were clearly interrelated, the trial court’s summary judgment was not a final and appealable order.

In the instant case, there is only one factual situation involved, the trial court has not fully determined the disputed issue between these parties and appellate review is improper.

The appeal and petition for a writ of certiorari are DENIED.

SCHEB, C. J., and DANAHY, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant has drawn this court’s attention to the effect of the particular form of the partial summary judgment entered herein. It appears the effect of same allows execution upon appellant’s property before final judgment. Therefore, execution pursuant to the final summary judgment is hereby stayed until all claims pleaded in the action between the parties have been brought to final judgment.

SCHEB, A. C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    Zilla COURTHEOUX, formerly known as Zilla George, Appellant, v. Alfred GEORGE, a/k/a Alfred Goodman, Appellee.
    No. 81-1460.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
    Rehearing Denied March 3, 1982.

      Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.
    John H. Shearer, Jr., of Shearer & Don-danville, P. A., Fort Myers, for appellee.
   SCHEB, Chief Judge.

Zilla Courtheoux challenges the trial court’s dismissal of her suit seeking to domesticate a judgment for child support that she obtained against her former husband in New York. We reverse.

At trial Courtheoux, as plaintiff, introduced into evidence duly authenticated copies of a judgment for $40,040 entered against defendant Alfred George on July 25, 1980, by the supreme court in Monroe County, New York. The court received the documents, which showed personal service on the defendant, pursuant to section 90.-902, Florida Statutes (1979), and the plaintiff rested. The defendant then moved for a directed verdict alleging that the plaintiff failed to establish that the New York judgment remained unsatisfied. The trial court granted the motion and entered a final order dismissing plaintiff’s suit. This appeal ensued.

Courtheoux argues that she did not bear the initial burden of proving that the judgment had not been satisfied. She points to Florida Rule of Civil Procedure 1.110(d), which provides that payment is an affirmative defense. Therefore, she contends that the defendant bears the burden of proving that the New York judgment had been satisfied. We agree.

Rutledge v. Rutledge, 357 So.2d 466 (Fla.2d DCA 1978), is analogous. There, an ex-wife sued the estate of her former husband alleging that he had not conveyed a home to her as required by the final judgment of divorce. A certified copy of the final judgment was entered into evidence. Judge Grimes, writing for the court, noted that “the final judgment by itself carried with it a presumption that the obligations contained therein remained outstanding.” 357 So.2d at 467. Here, Courtheoux introduced properly authenticated copies of the appropriate New York court documents. 28 U.S.C., § 1738. These documents established a prima facie case for recovery, and the burden of proving whether the judgment remained unsatisfied then shifted to the opposing party.

George now argues that because the plaintiff alleged the New York court had jurisdiction over the defendant, she had to prove this. He relies on First National Bank v. Brown, 119 Fla. 761, 162 So. 142 (1935), cited with approval in Pacific Mills v. Hillman Garment, Inc., 87 So.2d 599 (Fla.1956). That reliance is misplaced. In Pacific Mills the court held that, while lack of jurisdiction in a foreign court should be raised in the defendant’s answer, a plaintiff’s complaint which raises jurisdictional issues is subject to a motion to dismiss. Unlike the complaint in Pacific Mills, no jurisdictional issue was raised by the pleadings in this case.

Therefore, we hold that once the proper documents were admitted into evidence, the burden shifted to the defendant to refute the validity of the foreign judgment. Accordingly, the trial court erred in granting the motion for involuntary dismissal.

REVERSED.

OTT and SCHOONOVER, JJ., concur.

      . More properly a motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b).

      . Fla.R.Civ.P. 1.120(e) provides:
      In pleading a judgment or decree of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.


author: SHARP, Judge.

text:
    J. L. LaFERNEY, Appellant, v. SCOTT SMITH OLDSMOBILE, INC., Appellee.
    No. 81-331.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 1982.
    Rehearing Denied March 1, 1982.
    Elsie T. Apthorp and Jack B. Nichols of Jack B. Nichols, P.A., Orlando, for appellant.
    Jeffrey C. Fulford of Adams & Hill, Orlando, for appellee.
   SHARP, Judge.

Based on the record before this court, we think the trial court abused its discretion in failing to award a reasonable attorney fee pursuant to section 501.2105, Florida Statutes (1979), for the service rendered by counsel to J. L. LaFerney in its suit against Scott Smith Oldsmobile, Inc. Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla.3d DCA 1979). The appellee did not challenge the reasonableness of the number of hours spent on the case by appellant’s attorney before the trial court. Ap-pellee offered no expert witness or testimony of his own to show appellant’s hours were unreasonable, and in fact, he admitted his own hours in the case were 60.25 hours. Considering the outcome of the case, and the greater effort usually required by representing a plaintiff as opposed to a defendant, the appellant’s 90.5 hours do not appear excessive. The appellee’s primary attack on the fee award was that appellant had not allocated his time records to show specifically only his work on the deceptive trade practice count.

The appellant filed a five-count complaint against Scott Smith. The first count alleged that appellee had committed a deceptive trade practice under Chapter 501 by breaching its contract to sell to appellant a diesel automobile, refusing to return appellant’s two hundred dollar ($200.00) deposit, and making various deceptive and false statements to appellant. All of the other four counts were based on the same basic facts and transactions, restated in other theories or forms of causes of action: Count II — breach of sales contract under the UCC; Count III — conversion; Count IV — common law breach of contract; Count V — fraud. Early in the pleading stage of this litigation the court dismissed the UCC count and the conversion count. After a non-jury trial, the court found in appellant’s favor on the deceptive trade practice and common law breach of contract counts, and for appellee on the fraud count because appellant failed to prove intent to deceive on the part of appellee when the contract was entered into.

Pursuant to section 501.2105, counsel for appellant filed an affidavit showing his law firm had expended 107.1 hours on the case. Another attorney testified from an examination of the time records and the file that eight thousand twenty-five dollars ($8,025) would be a reasonable attorney fee in this case. He reached this opinion by multiplying seventy-five dollars ($75.00) per hour times one hundred seven and one-tenth hours (107.1). He also said the deceptive trade practice aspects presented some unusual and difficult legal issues. No counter-affidavits or opposing testimony was offered by appellee.

On cross-examination appellee attacked both appellant’s counsel and his expert witness on the ground they had failed to allocate what part of the lawyer hours were attributable to the deceptive trade practice claim as opposed to the others. Both testified that the causes of action were so interwoven and intermingled, since they were based on the same facts or transactions, they could not separate out the time for count one alone. This testimony was also not countered by appellee. Counsel for appellant said he estimated only ten percent (10%) to fifteen percent (15%) of the time was related to matters not dealing with count one. When pressed as to how he arrived at that estimate, the attorney said (although he disputes he said it “on the record”) it was “by guess and by golly.” The trial court said' it could not base an award of attorney’s fees on “guessing,” so he would allow only one-fifth (Vs) of the fee amount for attorney’s fees since there was originally a five-count complaint filed in the case.

Appellee argues the appellant had the burden of maintaining time records which specifically allocated effort spent on count one as opposed to the others. In United Services Automobile Association v. Kiibler, 364 So.2d 57 (Fla.3d DCA 1978), the court held an attorney’s fee award could only be allowed on the “coverage” issue as opposed to the “liability” issue under section 627.-428, and reversed and remanded the award for failure to make that allocation. Similarly in Hamilton v. Palm Chevrolet-Olds-mobile, Inc., 388 So.2d 638 (Fla.2d DCA 1980), the court reversed an attorney fee award under section 501.2105 because it included time spent on a punitive damage claim, which is outside the scope of Chapter 501.

However, in this case, the testimony and the pleadings themselves show there was really only one transaction or set of facts which gave rise to all five “theories” in the complaint; and in proving the deceptive trade practice, the appellant also proved part of the fraud count and all of the breach of contract count. As appellant points out, proof of a deceptive trade practice under Chapter 501 may well, and frequently does, involve proof of breach of contract and fraud or misrepresentation. It is analogous to the prosecution in a criminal case proving commission of a greater felony, and in so doing proving up lesser included offenses. Based on this record, the reduction of the fee by eighty percent (80%) does not appear reasonable or justified. At most it should have only been reduced by fifteen percent (15%), based on appellant’s attorney’s admission.

Appellee also justifies the fee award on the ground that the appellant recovered a relatively small amount of damages in proportion to the fees established. This view should be completely rejected in the context of Chapter 501. The Florida Deceptive Trade Practices Act depends for enforcement on its “enforcing authority” and the injured consumers. If, because of the small sums involved, consumers cannot recover in full their attorney fees, they will quickly determine it is too costly and too great a hassle to file suit, and individual enforcement of this act will fail. The First District Court of Appeal said in Marshall v. W. & L. Enterprises Corp., 360 So.2d 1147, 1148 (Fla. 1st DCA 1978):

The obvious purpose of the ‘little FTC Act’ is to make consumers whole for losses caused by fraudulent consumer practices .... These aims are not served if attorney fees are not included in the protection.

We remand this cause for an award of a reasonable sum for attorney fees, which in our judgment should be between four thousand three hundred dollars ($4,300) and five thousand eight hundred dollars ($5,800).

REVERSED and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Counsel’s affidavit shows an incorrect total of 107.1 hours; the line items add up to only 90.5 hours.

      . See n.1, supra.

      . See Fla.Admin.Code: Rules 2-11.06; 2-12.05; 2-13.02; 2-15.03; 2-16.04; 2-17.04; 2-19.03; 2-19.05.

      . Compensatory damages were two thousand six hundred sixty-five dollars and thirty-one cents ($2,665.31); however, we do not consider that dispositive of the legal effort involved.

      . See Kessler v. Associates Financial Services Co., 639 F.2d 498 (9th Cir. 1981); McGowan v. Credit Center of North Jackson, Inc., 546 F.2d 73 (5th Cir. 1977); Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977).

      . The higher figure is derived by taking the number of proven hours ninety and five tenths (90.5), multiplying by the expert’s opinion of a reasonable rate seventy-five dollars ($75.00), and subtracting the fifteen percent (15%) counsel admits was spent on other matters. The lower figure is derived by subtracting twenty-five percent (25%) from the higher figure based on the trial court’s finding that the reduction was warranted because of delay attributed to appellant’s counsel. Because determining a reasonable legal fee will never become an exact science all figures are rounded.


author: DAUKSCH, Chief Judge.

text:
    P. J. CONSTRUCTORS, INC., Appellant/Cross-Appellee, v. CARTER ELECTRIC COMPANY, Appellee/Cross-Appellant.
    No. 81-776.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 1982.
    Rehearing Denied March 8, 1982.

      Charles T. Moore of Kennedy & Hoge-boom, South Daytona, for appellant/cross-appellee.
    Peter B. Heebner of Van Wert, Heebner & Kennedy, P. A., Daytona Beach, for ap-pellee/cross-appellant.
   DAUKSCH, Chief Judge.

This is an appeal from an order dismissing a second amended complaint. The plaintiff first sued in Dade County and the case was transferred out of Dade County because the venue was improper. The complaint was dismissed twice because it did not state a cause of action. After the second amended complaint was dismissed the appellant moved for a rehearing saying that if one more chance was granted he would be able to allege a cause of action, although he did not proffer a complaint which stated a cause of action. In the brief and at oral argument before this court the appellant has not shown this court that a cause of action against the appellee could be alleged. That is, the appellant has not informed the court of sufficient facts which, if alleged, would support a proper complaint. Thus we find no error in the trial court’s having finally dismissed the complaint without leave to amend. However, based upon the record before us, and the briefs and argument of counsel, we are convinced the appellee is correct in its cross-appeal when it urges the trial court should have awarded appellee an attorney’s fee in accordance with section 57.105, Florida Statutes:

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.

It is our considered opinion the appellant did not and, under all the facts and law shown to us by appellant, could not ever allege a justiciable issue. For that the ap-pellee is entitled to an award of a reasonable attorney’s fee for having to defend the frivolous lawsuit in the trial court and on appeal. Thus we reverse that portion of the trial court’s order which denies appellee an attorney’s fee and remand this matter for assessment of the same.

AFFIRMED IN PART; REVERSED IN PART.

COBB and COWART, JJ., concur.


text:
    Mark STIRRUP, Appellant, v. Matthew REISS, et al., Appellees. Matthew REISS, Appellant, v. Gregory MOSS, etc., et al., Appellees.
    Nos. 80-1948, 80-2064.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Rehearing Denied March 18, 1982.

      Pomeroy, Betts, Pomeroy & Pomeroy, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellant Stirrup.
    Sheldon J. Schlesinger of Simon & Schlesinger, Fort Lauderdale, and Arthur Roth, Miami, for appellant Reiss.
    Carol M. Anderson of Anderson & Anderson, P.A., Fort Lauderdale, for appellee Moss.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

This is a boating accident case. Several youths were riding in a motorboat in the intracoastal waterway at night when the vessel struck an object, causing personal injury to one of the passengers, plaintiff Matthew Reiss. He filed an action for damages against Mark Stirrup, alleged to have operated the boat negligently, and against Gregory Moss, alleged to have been the owner of the boat present therein at the time of the injury, and also alleged to have been independently negligent in proximately causing the injury because of (1) furnishing beer to the boat occupants, all minors, and (2) negligently failing to maintain a proper lookout. The court granted a summary judgment in favor of defendant Moss, and plaintiff Reiss and defendant Stirrup each appeal, the appeals having been consolidated.

Section 371.52, Florida Statutes (1979) provides that the owner of a boat is not liable for its negligent operation “. . . unless he is the operator or present in the boat when any injury or damage is occasioned by the negligent operation of such vessel.... ” Thus, Gregory Moss, while not the operator, nonetheless, being present in the boat, would be liable for its negligent operation if he was the owner.

Section 371.021(3), Florida Statutes (1979) defines owner as follows:

(3) “Owner” means a person, other than a lien holder, having the property in or title to a motorboat. The term includes a person entitled to the use or possession of a motorboat subject to an interest in another person, reserved or created by agreement and securing payment of performance of an obligation, but the term excludes a lessee under a lease not intended as security.

Since it was undisputed that Gregory did not have title to the motorboat, he would have liability under Section 371.52, Florida Statutes, only if he had “property in” the boat.

“Property in a legal sense consists in the dominion which is rightfully and lawfully obtained over a material thing, with the right to its use, enjoyment and disposition.” Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 108 So. 623, 627 (1926). Although the legal title to the boat reposed in Gregory’s mother, it is clear from the record that Gregory had the use and enjoyment of the boat, and there is a genuine issue of material fact as to whether Gregory had the right to dispose of the boat, the depositions and affidavits in the record showing that approximately a week prior to the accident Gregory had traded this boat to defendant Stirrup for one of the latter’s boats. Furthermore, under the definition of ownership contained in Cox Motor Co. v. Faber, 113 So.2d 771 (Fla. 1st DCA 1959), a jury could infer that Gregory was the beneficial owner of the motorboat by virtue of having a beneficial interest with control and authority over the use thereof.

Because there were genuine issues of material fact relating to the question of whether Gregory Moss was the owner of the motorboat at the time of its alleged negligent operation, the court erred in entering the summary judgment which is the subject of this appeal.

Appellants have also argued that the summary judgment was error because of the alleged independent negligence of Gregory Moss. Those arguments are without merit. As to the furnishing of beer to the boat occupants (if Moss did so), such conduct would not independently impose liability on Moss for negligent operation of the vessel. United Services Automobile Association v. Butler, 359 So.2d 498 (Fla. 4th DCA 1978). As to his negligently failing to maintain a proper lookout, there is no evidence in the record that Moss was specially charged to act as a lookout, nor is there any evidence from which it might reasonably be inferred that the collision would not have occurred had Moss acted as lookout.

The summary judgment is reversed and this cause remanded for further proceedings.

ANSTEAD and BERANEK, JJ., concur.-


text:
    2829 CORPORATION, d/b/a Kit Kat Lounge, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGE AND TOBACCO OF the DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellee. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellant, v. 2829 CORPORATION, d/b/a Kit Kat Lounge, Appellee.
    Nos. 81-1784, 81-2034.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Rehearing Denied March 19, 1982.

      Raymond A. Doumar of Allsworth, Dou-mar, Padula, Cazel & Curtis, Fort Lauder-dale, for 2829 Corp., d/b/a Kit Kat Lounge.
    William A. Hatch, Staff Atty., Tallahassee, for Dept, of Business Regulation.
   DOWNEY, Judge.

These consolidated cases arose as a result of 2829 Corporation d/b/a Kit Kat Lounge’s (Kit Kat) being served on October 1, 1981, with an Emergency Order of Suspension of its alcoholic beverage license, which order was issued by the Director of the Division of Alcoholic Beverages & Tobacco, Department of Business Regulation/State of Florida (Division), pursuant to Sections 561.29 and 120.60(7), Florida Statutes (1981).

On October 2, 1981, three significant things happened. First, Kit Kat filed a notice of appeal for review of said order and a petition for automatic stay as provided in Section 120.68(3), Florida Statutes (1981). Second, the Division immediately countered with a petition to deny superse-deas. Third, this court entered an order that granted the Kit Kat petition for stay and denied the agency’s petition. In addition, this court’s order directed the parties to proceed with a hearing which had been scheduled for October 7,1981, pursuant to a rule to show cause served upon Kit Kat by the Division on October 1st.

Instead of holding the hearing on October 7th, Kit Kat demanded a formal administrative hearing, as provided by Section 120.-57, Florida Statutes (1981), which hearing was scheduled for October 27, 1981. Then, on or about October 9, 1981, Kit Kat filed a suit for declaratory and injunctive relief in the Circuit Court of Broward County, asserting therein, among other things, that Section 120.60 was unconstitutional. On October 19th the Division filed with this court a Petition to Vacate Automatic Stay. That petition summarized the allegations set forth in the Emergency Order of Suspension and asserted that those allegations

are of such a serious nature that they demonstrate a probable danger to health, safety and welfare if [Kit Kat] is allowed to continue operation past the prompt post suspension hearing on the merits which was afforded [Kit Kat] and which was continued by [Kit Kat’s] motion.

On October 27th this court entered an order denying the Division's October 19th Petition to Vacate Automatic Stay “without prejudice to renew after a decision on the October 28 [sic], 1981 hearing.” While the Petition to Vacate Automatic Stay was pending in this court, the circuit court on October 23,1981, issued a temporary injunction prohibiting further proceedings before the administrative agency pending resolution of constitutional issues raised in the declaratory judgment action. The Division then perfected an interlocutory appeal from the order granting the temporary injunction, and on November 6, 1981, we consolidated that appeal with the prior appeal from the order of suspension.

From the foregoing it appears that on two occasions we have denied the Division’s efforts to vacate the stay of its suspension order so that a final administrative hearing could be held and the matter treated on the merits. However, although Kit Kat asked for such a hearing, no such hearing has yet been held, and Kit Kat has sought other relief in the circuit court.

Ordinarily, when a constitutional attack is made upon administrative proceedings, they should be stayed pending resolution of the validity of those proceedings. E. T. Legg & Co. v. Franza, 383 So.2d 962 (Fla. 4th DCA 1980). However, in the present case this court had already accepted jurisdiction of the administrative proceedings as a result of Kit Kat’s notice of appeal (which we treat as a petition for review pursuant to Section 120.68(1), Florida Statutes (1981)) to review the Order of Suspension and there was pending our order to proceed with the final administrative hearing of the matter. Thus, the circuit court was without jurisdiction to stay the very proceeding we directed the parties to hold. Accordingly, we reverse the order of the circuit court of October 23, 1981, which stays the final administrative hearing.

In a further effort to dispose of this matter in an orderly fashion, we direct the parties to proceed with the full administrative hearing that Kit Kat requested and, pending that hearing, we once again decline to vacate our order staying the order of suspension.

Since the constitutionality of Section 120.60(7), Florida Statutes (1981), can be raised for the first time in the District Court of Appeal (Bigler v. Department of Banking & Finance, 394 So.2d 989 (Fla.1981); Peoples Bank, Etc. v. State, Dept. of B. & F., 395 So.2d 521 (Fla.1981)), we believe the constitutional issues raised in the circuit court proceeding should be stayed and those issues may be raised by Kit Kat in this court, if, as, and when an appeal is taken to this court from the final agency action on the suspension order.

Accordingly, the temporary injunctive order of October 23,1981, issued by the circuit court is reversed and the constitutional issues raised by Kit Kat in the circuit court are hereby stayed pending eventual resolution thereof in this court should such issues be presented to us. The parties are directed to proceed with the final administrative hearing on the suspension order within 30 days from date of this opinion. Finally, the pending agency amended petition to vacate this court’s stay of the order of suspension is denied without prejudice to the Division’s filing a future application for an order of vacation.

BERANEK and GLICKSTEIN, JJ., concur.


author: DANAHY, Judge.

text:
    Virginia K. JOHNSON, Appellant, v. MORTGAGE INVESTORS OF WASHINGTON, a Maryland business trust, Caribbean Gulf Hotel, a Florida corporation, and Aetna Casualty & Surety Corporation, Appellees.
    No. 81-1187.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Rehearing Denied March 8, 1982.

      Lee S. Damsker of Gordon & Maney, Tampa, for appellant.
    Mark E. Hungate and Donald V. Bulleit of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellees.
   DANAHY, Judge.

The plaintiff appeals an order dismissing her action for failure to prosecute. We reverse.

Rule 1.420(e), Florida Rules of Civil Procedure, provides for the dismissal of an action in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise, has occurred for a period of one year, unless the proceedings have been stayed or good cause is shown why the action should remain pending. In this case, one of the defendants filed a notice to produce on April 7, 1980. No further record activity occurred until April 7, 1981, when the same defendant filed a motion to dismiss for failure to prosecute as provided in rule 1.420(e). That motion was filed one day prematurely, and for this reason the granting of the motion and dismissal of the action was error.

The general rule for computing the time within which a thing must be done is to count the time by excluding the day on which the initial act occurred and including the corresponding future date. Scarlett v. Frederick, 147 Fla. 407, 3 So.2d 165 (1941); Fla.R.Civ.P. 1.090(a). Accordingly, the one-year period following April 7, 1980 (the date on which the notice to produce was filed), did not expire until April 8, 1981. The filing of the motion to dismiss on April 7, 1981, constituted record activity within that one-year period. Thus the action was not subject to dismissal under rule 1.420(e).

REVERSED and REMANDED.

BOARDMAN, A. C. J., and SCHOON-OVER, J., concur.


author: JOANOS, Judge.

text:
    EDWARD J. GERRITS, INC. and United States Fidelity and Guaranty Company, Appellants, v. Stanley McKINNEY, Deceased, Isaac Mae McKinney, Wife, Norman Eric Olson, Deceased, Betty Olson, Wife, Ashemimry-Stirr Construction Company, United Commercial Agencies, Ltd., and the Division of Workers' Compensation, Appellees. ASHEMIMRY-STIRR CONSTRUCTION COMPANY, Cross-Appellant, v. Stanley McKINNEY, Deceased, Isaac Mae McKinney, Wife, Norman Eric Olson, Deceased, Betty Olson, Wife, Edward J. Gerrits, Inc., United States Fidelity and Guaranty Company, United Commercial Agencies, Ltd. and the Division of Workers' Compensation, Cross-Appellees.
    No. YY-424.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Rehearing Denied March 16, 1982.

      Summers Warden, Miami, for appellants.
    Harold Mendelow of Solomon & Mende-low, Miami Springs, for appellee McKinney.
    Jerold Feur, Miami, for appellee Olson.
    Richard E. Gerstein and Paul M. Rash-kind of Sams, Gerstein & Ward, Miami, for cross-appellant Ashemimry-Stirr Const. Co.
   JOANOS, Judge.

This workers’ compensation appeal concerns the operation and management of a construction project in Saudi Arabia. The order dealt with the consolidated claims of the dependents of both McKinney and Olson, who were killed simultaneously in an automobile accident on September 25, 1978 while working on the construction of a hospital. In the order, the deputy found that Edward J. Gerrits, Inc. [“G. Inc.”], a Florida corporation, was a joint venturer with Ash-emimry-Stirr Construction Co. [“A-S Co.”], the entity that was primarily responsible for the construction of the Saudi Arabian hospital. (A-S Co. is the sole proprietorship of an Arab nationalist, Nasir AsHemim-ry, combined with a Caymen Islands corporation known as “Stirr Consulting Company”.) Holding that G. Inc.’s workers’ compensation policy covered the accident in Saudi Arabia, the deputy concluded that the decedents were employees of the joint venture and that G. Inc. solicited their services, accepted their employment applications, and made arrangements for their travels. Finally, the deputy found the joint ventur-ers (G. Inc. and A-S Co.) jointly and severally liable for dependency benefits for both decedents as well as for attorney’s fees. We affirm the portion of the order holding G. Inc. liable for workers’ compensation benefits, remand for a redetermination of attorney’s fees, and reverse as to the joint and several liability of A-S Co.

The principal issue with regard to G. Inc.’s responsibility for workers’ compensation benefits was whether or not G. Inc. could be regarded as an employer of the two men while they were working in Saudi Arabia. We hold that there was competent substantial evidence to support the deputy’s order finding G. Inc. and its carrier liable for workers’ compensation benefits, although not under the rationale that G. Inc. was a joint adventurer with A-S Co.

The evidence that is supportive of the deputy’s decision derives primarily from testimony concerning the business activities of Michael Gerrits, the key figure in this saga. Michael was an officer and shareholder of G. Inc. In addition, he was hired by Nasir Ashemimry to be the managing director of A-S Co., and was the spokesman for Stirr Consulting Co. in its negotiations with Nasir Ashemimry. Michael’s involvement with each of these entities made it difficult, if not impossible for an outsider to discern which “hat” Michael was wearing at any particular time. This confusion was intensified by Michael’s failure to clearly identify for whom he was negotiating and by his use of the G. Inc. offices to conduct much of. his business when he was not in Saudi Arabia.

One of the functions which Michael testified that he performed for A-S Co. was to review employment applications and recommend who was to be hired to work on the Saudi Arabian hospital project. Whether the hiring function was performed on behalf of A-S Co. or on behalf of G. Inc. was in dispute since E. J. Gerrits, the principal officer and shareholder of G. Inc., testified that G. Inc. was hired as a consultant to A-S due to its experience in “buying men” for construction jobs. More importantly, the evidence is uncontradicted that Michael and another officer/shareholder of G. Inc., Maartje Murphy, utilized the offices of G. Inc. to receive employment applications and to make all of the arrangements for travel, shots and visa applications for those persons who were ultimately hired. The G. Inc. premises were also used on occasion as the place where an employee’s family members (including Mrs. McKinney), could pick up money earned by the employee while working in Saudi Arabia. Men who had sought employment or who were asked to locate help for the Saudi Arabia job spoke directly with Michael or Maartje, knowing their connection with G. Inc. yet never being informed that G. Inc. was not the primary employer. Although the men who were hired received a memo on A-S Co. stationery stating that “you are employed by a corporation registered in Saudi Arabia,” they were never directly informed who their employer was or how G. Inc. was involved. This cryptic memo was not sufficient to eliminate the belief that G. Inc. was an employer. For all the men knew, G. Inc. could have been “registered” in Saudi Arabia. In addition, Michael’s continued involvement in Saudi Arabia along with other G. Inc. employees served to cement the impression that G. Inc. was, if not the main employer, then one of the employers.

Considering Michael’s extensive use of the G. Inc. offices, the testimony of E. J. Gerrits, and the failure of both Michael and Maartje to explain to prospective employees that they were not acting in their capacity as officers of G. Inc., prospective employees reasonably could have believed that Michael and Maartje had authority to act on behalf of their company. By accepting employment, the employees would anticipate that part of their contract would automatically include the Florida Workers’ Compensation Act. Because the employees reasonably relied on the inferred authority of two officers of G. Inc., G. Inc. should be held responsible for workers’ compensation as the employer, whether or not G. Inc. paid for the employee’s services. As stated in 8 Fla.Jur.2d, Business Relationship, § 311:

When, in the usual course of business of a corporation, an officer or other agent is held out by the corporation or has been permitted to act for it or manage its affairs in such a way as to justify third persons who deal with him in inferring or assuming that he is doing an act or making a contract within the scope of his authority, the corporation is bound thereby.

Having determined that the deputy was correct in finding G. Inc. liable for workers’ compensation benefits, we also conclude that the deputy appropriately awarded attorney’s fees. We find that the amount of the award was supported by competent substantial evidence, however, we must remand for reconsideration of the award under § 440.34(1), Fla.Stat. (1978). The 1978 version of § 440.34(1), which applies to the accident in this case, requires that the claimant pay 25% of the fee award unless it is proved that the claim was handled in a “negligent, arbitrary, or capricious manner.” There is no indication in the order that the deputy considered this statute since no allocation was made nor was there a finding that the claim was badly handled.

In the issue raised on cross-appeal, A-S Co. challenges the deputy’s jurisdiction to enter an order against A-S Co. and Nasir Ashemimry as “joint-venturers” with G. Inc. Although A-S Co.’s primary argument concerned constitutional questions of the sufficiency of A-S Co.’s notice, we find it unnecessary to reach these questions due to our conclusion that there was not sufficient evidence to hold A-S Co. liable as a “joint venturer” with G. Inc.

G. Inc.’s relationship with A-S Co. was shown to be that of a consultant, for which it was paid a pre-determined fee. G. Inc. was also a party to a series of contracts involving three U. S. suppliers of material for the hospital project in which G. Inc. guaranteed the suppliers $175,000 profit in their dealings with A-S Co. In exchange,, the suppliers agreed to turn over all excess profits to G. Inc. G. Inc. then entered into an agreement with Nasir Ashemimry’s sole proprietorship (not A-S Co.) to split the profits and losses received under G. Inc.’s contracts with the suppliers while Ashem-imry agreed to indemnify G. Inc. for half of the guaranteed profits.

The only evidence of any sharing of profits and losses between G. Inc. and A-S Co. (or its component parts) is the agreement concerning the three suppliers’ contract. This agreement (which did not even involve A-S Co.) made G. Inc. a joint venturer with Nasir Ashemimry for the limited purpose of obtaining supplies from three particular sources; it did not make G. Inc. jointly responsible for profits and losses deriving from the remainder of the hospital project, including the employment and maintenance of personnel. The sharing of profits and losses is a necessary element of a joint venture, and the lack of evidence of any such arrangement between G. Inc. and A-S Co. precludes a finding that a joint venture existed between the two entities. Without an agreement to share joint responsibility for the actual construction of the hospital, A-S Co. cannot be held jointly and severally liable for the G. Inc.’s contractual obligation to pay workers’ compensation benefits.

AFFIRMED in part. REVERSED and REMANDED in part with instructions to proceed consistent with this opinion.

ERVIN and WENTWORTH, JJ., concur.

      .G. Inc. also questioned the deputy’s jurisdiction over G. Inc., arguing that the employment contract was not principally localized in Florida as required by § 440.09(1), Fla.Stat. (1978). This is primarily a factual determination which was supported by evidence in the record concerning the location of the contract and the workers’ understanding of when they were hired.

      . All employees were paid in cash.

      . For example, the facts showed that A-S Co. was not a “corporation registered in Saudi Arabia,” but was a joint venture.

      . We held G. Inc. to be liable for worker’s compensation benefits as the primary contracting party under the inferred authority of Michael Gerrits, not as a joint adventurer with A-S Co.


author: SCHOONOVER, Judge.

text:
    NEWS-PRESS PUBLISHING CO., INC., d/b/a Fort Myers News-Press, Appellant, v. Eloise CARLSON, William Daniels, Clifton Foxworthy, Frieda Edwards, Harold C. Case, John Atkinson, John Forsyth, George Austin, Vera M. Campbell, and Larry Daniels, as duly elected Board of Directors of Lee Memorial Hospital, and John Gadd, as Chief Executive Officer of Lee Memorial Hospital, Appellees.
    No. 81-493.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Rehearing Denied March 5, 1982.
    Steven Carta of Smith, Carta & Rings-muth, Fort Myers, for appellant.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellees, Eloise Carlson and Larry Daniels.

      Andrew D. Owens, Jr. of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellees, Clifton Foxworthy, Frieda Edwards, Harold C. Case, John Atkinson, John Forsyth, George Austin, Vera M. Campbell, and John Gadd.
    Barry Scott Richard of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, amicus curiae for The Florida Press Ass’n and The Florida Soc. of Newspaper Editors.
    Harvey H. Rollings of Pavese, Shiélds, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, amicus curiae for Cape Coral Medical Center, Inc.
    Joel T. Strawn of MacMillan, ■ Newett, Adams, Strawn, Stanley & Botos, Delray Beach, amicus curiae for Florida Hospital Ass’n, Inc.
   SCHOONOVER, Judge.

The appellant, News-Press Publishing Co., Inc., has appealed the trial court’s denial of an injunction requiring the appellees’ internal budget committee and certain other committees to hold public meetings pursuant to section 286.011, Florida Statutes (1979), commonly known as the Government in the Sunshine Law.

We find that the trial court erred in holding that meetings of the ad hoc internal budget committee of Lee Memorial Hospital were not controlled by the Sunshine Law. We accordingly reverse that portion of the final judgment which refused to grant an injunction requiring that committee to meet in public, after giving reasonable notice, and to keep minutes of their meetings. We affirm the balance of the judgment.

Lee Memorial Hospital is a public hospital in Lee County, Florida. Under its enabling act, chapter 63-1552, Special Laws of Florida (1963), the board of directors is the governing body of the hospital and is responsible for adopting the annual budget. The board has delegated its responsibility for the preparation of a proposed budget to the president and his staff.

Pursuant to this delegation of authority, an ad hoc committee known as the internal budget committee was created for the preparation of the proposed 1980-81 budget. The committee was composed of the four vice presidents of the hospital and Mr. Gadd president and chief executive officer of the hospital. Mr. Gadd acted as chairman of the committee. The committee met. as needed during the formulation process of from four to six months.

Budget requests of the various departments of the hospital were submitted to the vice president in charge of that department. These requests were reviewed, revised, and then submitted to the budget committee by the vice president in charge of that particular department. When all of the requests had been received by the committee and they had projected their income, the matter was discussed at a budget committee meeting, and a proposed budget was created. The 1980-81 budget contained more than forty-seven hundred line items and amounted to approximately thirty-five million dollars.

The proposed budget was then submitted to the finance committee which consisted of members of the board. This committee accepted the budget with very little discussion. On the same day, the budget was submitted to the board of directors of the hospital, and they also approved it with very little discussion.

The appellees contend that the internal budget committee is not a board or agency within the Sunshine Law. However, when the governing authority of the hospital delegated the responsibility of the preparation of the proposed budget to this committee, the nature and function of that committee reached the status of a board or committee, and therefore, it had to comply with the Sunshine Law.

When public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the application of the Government in the Sunshine Law is concerned. IDS Properties, Inc. v. Town of Palm Beach, 279 So.2d 353 (Fla. 4th DCA 1973).

A very complex budget amounting to thousands of items and totalling approximately thirty-five million dollars was conceived during a several month period but approved by ceremonial acceptance of the board with very little discussion. One purpose of the Government in the Sunshine Law is to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974).

The preponderant interest of allowing the public to participate in the conception of a complex multimillion dollar budget is sufficient, under the facts of this case, to justify the inclusion of the selected subordinate group within the provisions of the Government in the Sunshine Law. Town of Palm Beach v. Gradison.

We agree with the holding of the Fourth District Court of Appeal in the case of IDS Properties, Inc. v. Town of Palm Beach that it would be ludicrous to invalidate the actions of a public body where said actions are the results of secret meetings of that body, while at the same time giving approval to similar actions resulting from the secret meetings of committees designated by, or acting under the authority of, the public body.

The appellees contend that since this committee consists of staff members only it should be excluded from the Sunshine Law. In that regard, we must look to the substance of the committee rather than its form.

It is true that staff is normally not included within the Sunshine Law. Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977). However, when a member of the staff ceases to function in his capacity as a member of the staff and is appointed to a committee which is delegated authority normally within the governing body, he loses his identity as staff while operating on that committee and is accordingly included within the Sunshine Law. In the Occidental case, the question was whether or not the public body was using staff members as intermediaries in order to circumvent the public meeting requirements. In this case, the staff became the public body.

The appellees’ reliance on this court’s decision in Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCa 1976), is misplaced. In the Bennett case, we held that the career employees’ council, consisting of employees designated by the president of the junior college, was not subject to the Sunshine Law. The employees were appointed for the purpose of discussing with the president various problems and to make suggestions relating to their working conditions in general, and wages and hours in particular. They were thus discussing their own staff positions. Additionally, they had no decision-making ability, and their recommendations were not made directly to the board. Their recommendations were considered by the president of the college, who then formed his own recommendations and submitted them to the administrative council. The administrative council then submitted its recommendations to the governing body. We held that the actions of the committee were too remote to be directly connected with the decision-making process.

It would be equally ludicrous to hold that a certain committee is governed by the Sunshine Law when it consists of members of the public, who are presumably acting for the public, but hold a committee may escape the Sunshine Law if it consists of individuals who owe their allegiance to, and receive their salaries from, the governing authority.

While operating as members of the staff and meeting with their own subordinates for fact-finding, these committee members are of course not within the Sunshine Law. It would be unrealistic, indeed intolerable, to require that every meeting of such professionals, as well as every contact and discussion with anyone from whom they would seek counsel and consultation to assist them in acquiring the necessary information, data, or intelligence needed to advise or guide them in their capacity as a vice president of the hospital, be a public meeting within the description of the Sunshine Law. Bennett v. Warden. However, when they put on their committee “hat” and act as a board governed by the act and discuss, deliberate, decide, and take action to formulate a proposed budget, or to adjust hospital budget charges during the fiscal year covered by that budget, these meetings constitute official acts which are an indispensable requisite to formal action. At that point the committee must give reasonable notice to the public, meet in public, and keep minutes of their meetings as required by section 286.011, Florida Statutes (1979). Times Publishing Company v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969).

We accordingly reverse and remand for proceedings consistent herewith.

BOARDMAN, A. C. J., and DANAHY, J., concur.


author: WENTWORTH, Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY CO., Appellant, v. James SLOAN, et al., Appellee.
    No. AB-232.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Rehearing Denied March 24, 1982.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, for appellant.
    Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order which determines the amount of uninsured motorist coverage which exists pursuant to two policies of insurance. The order was entered on joint motion for summary judgment as to the issue of insurance coverage; the issue of liability has not yet been determined, and awaits final hearing on the merits. We conclude that we are without jurisdiction to review the contested order and dismiss the appeal sua sponte.

Jurisdiction to review a trial court’s non-final order is prescribed by Fla.R.App.P. 9.130, the terms of which do not permit an appeal in the circumstances of this case. Subsection (a)(3)(C)(iv) of that rule has been construed as not permitting review of orders which address the issue of insurance coverage without determining liability. State Farm Mutual Automobile Insurance Co. v. Morris, 370 So.2d 828 (Fla. 1st DCA 1979). Although Fidelity Casualty Co. v. Scott, 386 So.2d 315 (Fla. 1st DCA 1980), permitted interlocutory appeal of a workers’ compensation order on the issue of insurance coverage, we would now conclude that Rule 9.130(a)(3)(C)(iv) does not authorize review of such an order by appeal.

Accordingly, the appeal is dismissed.

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

      . See Fla.R.App.P. 9.030(b)(1)(B).

      . We also note that Rule 9.030(b)(1)(B) has since been amended so as to limit the applicability of Rule 9.130 only to orders of circuit courts. Review of such non-final workers’ compensation orders may now be sought by invoking this court’s certiorari jurisdiction.


author: MILLS, Judge.

text:
    GEORGIA-PACIFIC CORPORATION, etc., Appellant, v. The DEPARTMENT OF REVENUE OF the STATE of Florida, etc., Appellee.
    No. AC-224.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    John F. Roscow, III of Scruggs & Carmichael, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Jeffrey P. Keilba-sa, Asst. Atty. Gen., and David Linn, Dept, of Revenue, Tallahassee, for appellee.
   MILLS, Judge.

Georgia-Pacific contends the trial court erred in entering a final judgment in a declaratory judgment action finding that a contract for the sale of standing timber was subject to the documentary stamp tax imposed by Chapter 201 because the contract was exempt from the tax by the provisions of Chapter 672. We do not agree and affirm.

The trial court’s final judgment is so well reasoned and written, we adopt it as the opinion of this Court. The pertinent parts of the final judgment are as follows:

This cause came on for final hearing on February 23, 1981, upon the Joint Motion and Stipulation for a Judgment on the Pleadings filed by plaintiff Georgia-Pacific Corporation and defendant Department of Revenue of the State of Florida. The Court heard the argument of counsel, read the memoranda of law filed by both parties and, being fully advised in the premises, finds as follows:

FINDINGS

1. The Court has jurisdiction over the subject matter and the parties.

2. There are no factual issues to be resolved and there only remains an issue of law to be decided.

3. The issue of law can be resolved by a judgment on the pleadings, which the parties have stipulated shall be a final judgment.

4. The legal issue may be stated as follows:

Did Section 672.107(2), Florida Statutes, as amended effective January 1, 1980, which defines a contract for the sale of standing timber as a contract for the sale of goods, remove such a contract from the documentary excise tax on transfers of realty imposed under Section 201.02(1), Florida Statutes?

5. The Department of Revenue of the State of Florida is responsible for the collection of the excise tax on documents imposed by Chapter 201, Fla.Stat., and collects that tax on contracts for the sale of standing timber under Section 201.02(1), Fla. Stats., and Rule 12B-4.13(9), Florida Administrative Code, as a documentary excise tax on the transfer of an interest in realty.

6. In 1979 the Florida Legislature made a number of amendments to the Uniform Commercial Code, effective January 1, 1980. Among these was an amendment to subsection (2) of Section 672.107 relating to a contract for the sale of standing timber. As Amended, it reads:

672.107(2) “A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) or of timber to be cut is a contract for the sale of goods within this chapter whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.”

7. Plaintiff Georgia-Pacific Corporation takes the position that on January 1, 1980, contracts for the sale of standing timber no longer require documentary stamps. Defendant Department of Revenue of the State of Florida takes the position that documentary stamps are still required on such contracts.

HOLDING

The Court hereby holds that contracts for the sale of standing timber remain liable for the documentary excise tax imposed by Section 201.02, Fla.Stats., despite the amendment to Section 672.107(2), Fla.Stats.

At common law and by Florida case law standing timber was regarded as an interest in realty, Walters v. Sheffield, 75 Fla. 505, 78 So. 539 (1918); Richbourg v. Rose, 53 Fla. 173, 44 So. 69 (1907), and a contract for the sale of standing timber was a contract concerning an interest in land within the meaning of the Statute of Frauds, High v. Jasper Mfg. Co., 57 Fla. 437, 49 So. 156 (1909); Elsberry v. Sexton, 61 Fla. 162, 54 So. 592 (1911); Walton Land & Timber Co. v. Long, 135 Fla. 843, 185 So. 839 (1939).

That being so, contracts for the sale of standing timber are instruments conveying an interest in realty and are subject to the documentary excise stamp. Did the 1979 amendment to the Uniform Commercial Code change that?

Section 201.22, Fla.Stats., enacted by the Florida Legislature in 1965 as a part of the same bill that originally enacted the Uniform Commercial Code, reads, in pertinent part, as follows:

201.22 “The excise tax on documents provided by this chapter shall be applicable to transactions covered by the Uniform Commercial Code to the same extent that it would be if the code has not been enacted.... ”

In the 16 years that this section of law has been on the books the Legislature has not seen fit to amend, modify, or alter this instruction that the documentary excise tax is to be imposed as if the Uniform Commercial Code had never been adopted. That being so, the Court finds that while Section 672.2-107(2), Fla.Stats., changes a contract for the sale of standing timber into a contract for the sale of goods for the purposes of the Uniform Commercial Code, it does not remove such a contract from the documentary excise tax imposed by Section 201.-02(1), Fla.Stats.

This view is bolstered by the fact that the Legislature uses the exclusionary words “within this chapter” in Section 672.107(2) and by a perusal of the purpose of the amendment as phrased in the sponsors’ notes found in Section 3 of Chapter 79-398, Laws of Florida, which read:

“The change makes timber to be cut under a contract of severance goods, regardless of the question who is to sever them. Financing of the transaction is facilitated if the timber is treated as goods instead of real estate. A similar change is made in the definition of ‘goods’ in section 679.-105. To protect persons dealing with timberlands, filing on timber to be cut is required in part IV of Chapter 679 to be made in the real estate records in a manner comparable to fixture filing.” (e.s.)

Finally, the Court notes that Chapter 79-398, Laws of Florida, which made the pertinent amendment to Section 672.107(2) also made several amendments at the same time to Section 679.105, another part of the Uniform Commercial Code. One amendment added the following to the definition of “goods”:

§ 679.105(l)(h) “.... ‘Goods’ also im eludes standing timber which is to be cut and removed under a conveyance or contract for sale ....”

At the same time and by the same act the Legislature created a new subsection (5) to Section 679.105, which reads:

§ 679.105(5) “Nothing in this section shall be construed to alter, modify, or repeal any provision of the taxing laws of this state.”

Faced with Section 201.22 which says that the documentary excise tax is to be applied to transactions covered by the Uniform Commercial Code just as if it had never been adopted and faced with Section 679.105(5) which says (despite the legislature having defined contracts for the sale of standing timber as goods) that nothing in the definition section shall alter or modify any provision of the taxing laws of the state, the Court must rule that the documentary excise tax is still applicable to contracts for the sale of standing timber.

It is, therefore, ORDERED and ADJUDGED:

1. That contracts for the sale of standing timber are subject to the documentary excise tax provisions of Section 201.02(1), Fla.Stats.

2. That the contract for the sale of standing timber attached to the complaint herein is liable for the documentary excise tax imposed by Section 201.02(1), Fla.Stats.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and DOW-NEY, JAMES C., Associate Judge, concur.

      . Chapter 79-398, Laws of Florida, 1979.

      . Other amendments in Chapter 79-398 relating to standing timber (as encoded in the 1979 Florida Statutes) were §§ 679.105(1), 679.-401(l)(b), 679.402(1) and (5), 679.405(2).

      . The underlined words were added by the amendment.

      . Chapter 65-254, Laws of Florida, 1965.

      . The underlined words were added by the amendment.


author: BASKIN, Judge.

text:
    Joseph CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1862.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied March 15, 1982.

      Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox and Leonard L. Elias, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Defendant Joseph Carter appeals burglary and sexual battery convictions for which he received sentences of 15 years and 137 years imprisonment. He presents as issues the trial court’s refusal to enforce a witness subpoena and the court’s denial of his request to admit into evidence the deposition of an absent witness. We affirm.

Ninety-two-year-old Betty Porath accused Joseph Carter, age sixteen, of entering her home through the kitchen door and sexually assaulting her. Afterward he demanded money but left her home when she told him that she had none. When police arrived, she described her assailant as a black man, a little taller than she, of medium build, wearing a dark brown sweater and white undershirt. As she was led to an ambulance, she pointed to Joseph Carter, who was standing forty or fifty feet away in the crowd, and identified him as her assailant. She stated that she had based her initial identification on his clothing but had recognized his face when he came closer to her. During her testimony at trial, she indicated that she did not see her assailant in the courtroom, but when he was brought closer to her, she recognized him as the man who had attacked her.

Ms. Porath testified that she needed glasses only for reading or sewing. Defense counsel indicated to the court that he wished to call Ms. Porath’s doctor as a witness but that the doctor had refused to come to court. Upon the court’s denial of a writ of bodily attachment, defense counsel proffered that the doctor would testify that he had recommended glasses for her vision.

While we strongly disapprove of the trial court’s refusal to enforce the witness subpoena served upon the doctor and reiterate that a defendant’s constitutional right to present material, relevant, admissible evidence may not be thwarted by a trial court, Green v. State, 377 So.2d 193 (Fla. 3d DCA 1979), cert. granted on other grounds, 395 So.2d 532 (Fla.1981); see also Krantz v. State, 405 So.2d 211 (Fla. 3d DCA 1981), under the circumstances of this case, we hold that a new trial is not required. An examination of the other evidence presented to the jury compels our conclusion that overwhelming evidence supports defendant Carter’s conviction.

Joseph Carter and his victim struggled face-to-face for approximately fifteen minutes. Ms. Porath identified Carter shortly after the incident when she observed him wearing a white T-shirt with a brown stain similar to the one her attacker had worn. She also identified Carter in the courtroom. Defendant Carter’s underwear contained human blood, although he testified he had not been bleeding. Caucasian pubic hair, with characteristics similar to the victim’s hair, was found on his underwear, and Carter’s thumb print was recovered from the victim’s doorknob as well as near a latch at the top of her door. Hairs similar to those of Ms. Porath’s dog were found on defendant Carter’s sweater. Defense counsel’s proffer that the doctor would have testified that he had merely “recommended” glasses for Ms. Porath without actually prescribing them is insufficient to mandate a new trial in light of the overwhelming evidence against Carter. In our opinion, the constitutional error committed by the court in refusing to enforce its subpoena was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Jones v. State, 332 So.2d 615 (Fla.1976); accord, Harrell v. State, 405 So.2d 480 (Fla. 3d DCA 1981).

Next, defendant maintains the court erred in refusing to admit the prosecutor’s deposition of Debbie Kemp when she could not be located in time to secure her attendance at trial. He advised the court:

They served the mother at home from the Sheriff’s Office and they found out about this yesterday. They have tried to locate her. Her mother doesn’t know where she’s living at this time and I just would like permission from the Court to read the deposition.

The record indicates that defense counsel’s efforts to obtain the witness occurred the day before trial. This case is distinguishable from the situation in State v. Barnes, 280 So.2d 46 (Fla. 2d DCA), cert. denied, 285 So.2d 25 (Fla.1973), in which the court permitted the use of a deposition “where the state has the right to cross-examine” if the witness is “unavailable for good cause or has died.” In the case before us, there is no evidence the witness had died or was unavailable for good cause. Her absence appears to have been attributable to the lack of service of process. Although defense counsel argues that her testimony would have corroborated defendant’s testimony that he was not at the Porath residence at the time of the assault, her testimony was not proffered or appended to the record. It is therefore impossible for us to determine what effect, if any, the excluded evidence might have had. See Mitchell v. State, 321 So.2d 108 (Fla. 1st DCA 1975), cert. dismissed, 345 So.2d 425 (Fla.1977); Powers v. State, 224 So.2d 411 (Fla. 3d DCA), cert. denied without opinion, 232 So.2d 180 (Fla.1969). Other witnesses testified that defendant was with Debbie Kemp at approximately 7:30 p. m., the hour of the alleged offense.

Finding no reversible error, we affirm the convictions and sentences.


text:
    U. P. C., INC., a Florida corporation, Appellant, v. INTERCONTINENTAL BANK, a Florida Banking corporation, Appellee.
    No. 81-514.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied March 23, 1982.

      Greefield & DuVal and Harvie S. DuVal, North Miami, for appellant.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellee. ,
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   BASKIN, Judge.

U.P.C. filed a claim for damages against Intercontinental Bank alleging usurious rates on an $897,000 loan. Upon Intercontinental’s motion for judgment on the pleadings, the trial court entered final judgment for the Bank. The trial court found in part:

3. The usury law to be applied by a court is the law in effect at the time the court renders it [sic] decision unless the act itself provides otherwise. See Tel Service Co. v. General Capital Corporation, 227 So.2d 667 (Fla.1969).
4. The present Usury Act, Section 687.03 F.S.F.S.A. (1980) condemns as usurious as applied to loans in excess of $500,000.00 only those loans wherein excess of 25% per annum is charged.
5. The Act provides that it:
‘Shall apply only to loans, advances of credit or lines of credit made on or subsequent to July 1,1979 and to loans, advances of credit or lines of credit made prior to that date if the lender has the legal right to require full payment or to adjust or modify the interest rate by renewal, assumption, reaffirmation, contracts, or otherwise.. . ’
6. The loan in question is a variable interest rate loan. It provides interest shall not be less than 11% per annum and shall be computed at the rate of 2% above INTERCONTINENTAL BANK Prime. The note provides:
‘ “ICB Prime” shall be defined to mean that rate of interest charged by Intercontinental Bank on so-called short term unsecured loans to its most creditworthy customers, as the said “rate of interest” shall be determined by Intercontinental Bank at its sole discretion. The rate of interest based on ICB Prime shall be calculated and adjusted monthly so that the rate of interest applicable to any day of the month during the term of this note shall be 2% plus the highest ICB Prime in effect during such month... ’
This Court finds that the loan in question gave the lender the right to modify the interest rate by contract during the term of the loan. As such, it falls within the provisions of Section 787.03(5)(a) [sic] F.S. F.S.A. (1980) above quoted. The loan is subject to the present Usury Act and since it does not exceed 25%, it is not usurious.

We agree with the trial court’s findings and affirm the final judgment.

      . The loan was evidenced by a promissory note dated March 8, 1979 and was secured by a mortgage.

      . Section 687.03, Florida Statutes (Supp.1980) states, in pertinent part:
      687.03 ‘Unlawful rates of interest’ defined; proviso.—
      (1) Except as provided herein, it shall be usury and unlawful for any person, or for any agent, officer, or other representative of any person, to reserve, charge, or take for any loan, advance of money, line of credit, fore-bearance to enforce the collection of any sum of money, or other obligation a rate of interest greater than the equivalent of 18 percent per annum simple interest, either directly or indirectly, by way of commission for advances, discounts, or exchange, or by any contract, contrivance, or device whatever whereby the debtor is required or obligated to pay a .sum of money greater than the actual principal sum received, together with interest at the rate of the equivalent of 18 percent per annum simple interest. However, if any loan, advance of money, line of credit, forebearance to enforce the collection of a debt, or obligation exceeds $500,000 in amount or value, it shall not be usury or unlawful to reserve, charge, or take interest thereon unless the rate of interest exceeds the rate prescribed in s.687.071. The provisions of this section shall not apply to sales of bonds in excess of $100 and mortgages securing the same, or money loaned on bonds, (emphasis added).

      (5) As amended by chapter 79-592, Laws of Florida, chapter 79-274, Laws of Florida, which amended subsection (1):
      (a) Shall apply only to loans, advances of credit, or lines of credit made on or subsequent to July 1, 1979, and to loans, advances of credit, or lines of credit made prior to that date if the lender has the legal right to require full payment or to adjust or modify the interest rate, by renewal, assumption, reaffirmation, contract, or otherwise; ... (emphasis added).
      Thus, to determine the usury rate on loans greater than $500,000, section 687.03 must be read together with section 687.071(2), which states:
      (2) Unless otherwise specifically allowed by law, any person making an extension of credit to any person, who shall willfully and knowingly charge, take, or receive interest thereon at a rate exceeding 25 percent per annum but not in excess of 45 percent per annum, or the equivalent rate for a longer or shorter period of time, whether directly or indirectly, or conspires so to do, shall be guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s.775.083.


text:
    Dawn Ann SOBEL, Appellant, v. STATE of Florida, Appellee.
    No. 80-653.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 17, 1982.
    Richard E. Gerstein and Paul M. Rash-kind of Sams, Gerstein & Ward, P. A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

Dawn Sobel and three others, including one Gombos, were indicted for first degree murder for the death of a police officer. The officer was killed as a result of shots fired by Gombos while he and Dawn Sobel were seeking to aid the escape of certain prisoners being guarded by the officer. Gombos was tried first and convicted of second degree murder. Thereafter, prior to the commencement of her trial, Sobel moved to have the first degree murder charge against her reduced to second degree murder on the basis that she was an aider and abettor and could be convicted of no higher offense than that for which Gom-bos had been convicted. That motion was denied. Sobel’s trial resulted in her being convicted of first degree murder, as well as the separate offense of aiding the escape of a prisoner.

We affirm the respective judgments and sentences on the authority of Potts v. State, 403 So.2d 443 (Fla. 2d DCA 1981) and decline to follow Turner v. State, 369 So.2d 670 (Fla. 1st DCA 1979), relied upon by appellant. Redondo v. State, 403 So.2d 954 (Fla.1981), Palacio v. State, 402 So.2d 500 (Fla. 3d DCA 1981) and Mahaun v. State, 377 So.2d 1158 (Fla.1979), also cited by appellant, are inapposite, as each involves a principle of law unrelated to appellant’s status as a principal in the first degree under section 777.011 Fla.Stat. (1977).

Appellant has submitted for our consideration other points as well, but these are likewise without merit and do not require discussion.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    Ira Bruce MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-997.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 17, 1982.
    Harry Gulkin of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Ira Miller, Barry Zettle, and James Gan-gloff were charged with trafficking in cocaine (Count I) and conspiracy to traffic in cocaine (Count II). The conspiracy counts were dismissed by the trial judge, but all three men were convicted of possession with intent to sell or deliver cocaine, a lesser included offense under the trafficking counts. Appellant Miller alleges that the trial court erred in refusing to grant the request of all three defendants to instruct the jury as to the minimum and maximum penalties possible for the main offense charged, that of trafficking in cocaine.

It is now well settled, of course, that “upon request of . . . the defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed” under the offense charged, and that refusal to give such instruction is error. Tascano v. State, 393 So.2d 540, 541 (Fla.1980). It has also been held, however, that the failure to instruct on the penalties may be deemed harmless error where the defendant is convicted of only the lowest lesser included offense possible under the offense charged. Lewis v. State, 399 So.2d 473 (Fla. 4th DCA 1981); James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981). In the present cases, appellants were charged with trafficking in cocaine in violation of Section 893.135(1)(b)(2), Florida Statutes, a first degree felony, and convicted of possession with intent to sell or deliver cocaine in violation of Section 893.-13(l)(a)(l), a second degree felony. The court is thus confronted with the question of whether the harmless error rule can be applied to the trial court’s failure to instruct on penalties for the primary offense charged when the defendant is ultimately convicted of a lesser included offense and the defendant made no request for a penalty instruction on the lesser included offense. We fail to see how the appellant was harmed by the trial court’s failure to instruct on the penalties for the main offense when the appellant was not convicted of that offense.

An instruction on the penalties for the main offense would presumably have impressed upon the jurors the serious consequences of convicting the appellant of that charge and given them an additional substantial reason to be certain of their decision. Lewis v. State, supra. However, here the jury found proof lacking on the main charge anyway and convicted the appellant of a lesser included offense for which no penalty instruction was requested. Under these circumstances we believe the failure to instruct on penalties for the main offense was harmless. We recognize that the Supreme Court has held that the harmless error rule cannot usually be applied to the type error involved herein. Murray v. State, 403 So.2d 417 (Fla.1981). For that reason we hereby certify the following question as one of great public importance:

May the harmless error rule be applied where the only penalty instruction requested is for the main offense charged and the defendant is subsequently convicted of a lesser included offense?

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

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.