author: HUBBART, Judge. SCHWARTZ, Judge

text:
    Sally ZETTLER and IFA Insurance Company, Appellants, v. Rose EHRLICH, Ida Cable and Roy Cable, Appellees.
    Nos. 79-698, 79-699.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 11, 1980.

      Sullivan, Ranaghan, Bailey & Gleason and Donald A. Wich, Jr., Pompano Beach, for appellants.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellees.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   HUBBART, Judge.

This is a consolidated appeal from two final judgments [and sundry other orders] entered after default and a trial on damages in the Circuit Court for the Eleventh Judicial Circuit of Florida. The central issue presented for review is whether the defaults herein were properly entered by the trial court based on this record. For the reasons which follow, we conclude that such defaults were properly entered; we further conclude that no other reversible error is shown. Accordingly, we affirm.

I

The facts pertaining to the central issue presented are undisputed. On December 9, 1977, the plaintiff Rose Ehrlich and the plaintiffs Ida and Roy Cable filed two separate complaints for damages against the defendants Sally Zettler and her insurer the defendant IFA Insurance Company in the Circuit Court for the Eleventh Judicial Circuit of Florida. The action sued upon sounded in tort and arose from a single automobile collision wherein the defendant Zettler was the driver and the plaintiffs Rose Ehrlich and Ida Cable were passengers. On December 16,1977, the defendant IFA Insurance Company was properly served in both suits through the Insurance Commissioner of Florida. On January 10, 1978, the defendant Zettler was properly served in both suits by personal service; she in turn forwarded the respective suit papers to her insurer, the defendant IFA Insurance Company.

The defendants Zettler and IFA Insurance Company at no time filed any responsive pleading or paper in response to the plaintiff’s complaints in each of the above actions. On February 10, 1978, however, Mr. William Mulkeen, [an attorney admitted to practice in New Jersey, but not in Florida, and purporting to act on behalf of both defendants in this cause] wrote a letter to plaintiffs’ counsel in Miami, Florida, which letter reads as follows:

“Dr. Mr. Olin:
Prior to your filing suit in the above matter, I attempted to contact you both by phone and by letter. However, I did not receive any response.
Our insured has sent a copy of the suit papers to us. I believe that you are laboring under a misconception as to the IFA Insurance Company. Please be advised that the IFA Insurance Company is a company which is licensed to do business in the State of New Jersey only. IFA does not operate an insurance business in any other state other than New Jersey. IFA does not conduct any mail order type business in any other state and IFA does not insure anyone other than residents of the State of New Jersey. IFA Insurance Company does not have any representatives or any offices in any other state other than New Jersey. In addition, the Insurance Commissioner of the State of Florida is not an agent with the IFA Insurance Company.
In the past, IFA Insurance Company has been confused with the INA Insurance Company, a large nationwide company. IFA is not a subsidiary of any large nationwide company.
In view of the above, it appears that the forum for your insureds’ suit would be in the State of New Jersey.
Please call me at your earliest convenience so that we might discuss the above matter.
Very truly yours,
/s/ William J. Mulkeen
WILLIAM J. MULKEEN”

The record further shows correspondence between Mr. Mulkeen and plaintiffs’ counsel prior to the filing of suit relative to settlement negotiations.

On March 2, 1978, the plaintiffs took a clerk’s default under Fla.R.Civ.P. 1.500(a) against the defendant Zettler in each of the above actions herein. On March 3, 1978, the plaintiffs Ida and Roy Cable took a default by the court under Fla.R.Civ.P. 1.500(b) against the defendant IFA Insurance Company in the Cables’ lawsuit; on March 7, 1978, the plaintiff Rose Ehrlich took a default by the court under Fla.R. Civ.P. 1.500(b) against the defendant IFA Insurance Company in her lawsuit.

On August 21, 1978, the plaintiffs noticed both defendants herein for a trial on damages as to both lawsuits. On September 18, 1978, the defendants retained Florida counsel who, in turn, entered an appearance on November 22, 1978 in both actions herein. The defendants thereupon filed motions to vacate the defaults entered herein, which motions after full evidentiary hearings, were denied by the trial court. Appeals from these non-final orders were taken and subsequently dismissed by this court. Zettler v. Cable, 367 So.2d 1139 (Fla. 3d DCA 1979); Zettler v. Ehrlich, 367 So.2d 1139 (Fla. 3d DCA 1979). We denied a stay in both causes and issued our mandate which was received in the trial court.

The eases then proceeded to separate trials on damages, which resulted in jury verdicts and the subsequent entry of final judgments for the plaintiffs herein. The defendants appeal therefrom in both actions which we, by order, have treated as a single consolidated appeal.

II

The central contention raised by the defendants on this appeal is that the trial court erred in failing to set aside the defaults entered in this cause as, it is urged, Fla.R.Civ.P. 1.500(a)(b) did not authorize the entry of such defaults based on this record. We cannot agree.

A

The applicable rule of civil procedure governing the entry of a default by the clerk is Fla.R.Civ.P. 1.500(a) which provides as follows:

“When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.” Fla.R.Civ.P. 1.500(a).

The applicable rule of civil procedure governing the entry of a default by the court, on the other hand, is Fla.R.Civ.P. 1.500(b) which provides as follows:

“When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.” Fla.R.Civ.P. 1.500(b).

As the above rules plainly provide, a party seeking affirmative relief in a civil action may obtain a clerks’ default without notice against a defendant in the action who “has failed to file or serve any paper in the action.” Fla.R.Civ.P. 1.500(a). Similarly, the same party in a civil action may obtain a default by the court against a defendant in the action “who has failed to plead or otherwise defend as provided by these rules or any applicable statute or order of court. . . . ” Fla.R.Civ.P. 1.500(b); notice to the defendant of the application for default by the court is required only if said defendant “has filed or served any paper in the action.” Fla.R. Civ.P. 1.500(b); see Dade County v. Lambert, 334 So.2d 844, 847 (Fla. 3d DCA 1976).

B

Measured by these standards, it is plain that the defaults herein were properly entered against the defendants Zettler and IFA Insurance Company.

1

As to the court’s default entered without notice against the defendant IFA Insurance Company, it is clear beyond dispute that said defendant failed to file any responsive pleading or paper in this cause; moreover, the defendant IFA Insurance Company also failed, in our view, to serve any responsive pleading or paper in this cause. As such, the entry of the court’s defaults without notice herein was plainly authorized by Fla.R.Civ.P. 1.500(b).

We reject the defendant IFA Insurance Company’s contention that Mr. Mul-keen’s letter of February 10, 1978, to the plaintiff’s counsel constitutes a timely service of a proper pleading or paper so as to preclude a default by the court without notice in this cause under Fla.R.Civ.P. 1.500(b). First, it appears without dispute that Mr. Mulkeen is not a member of the Florida Bar nor was he ever specially admitted as an attorney pro hac vice in this cause, and, accordingly, it follows that the subject letter could not be considered an authorized pleading or paper under Fla.R. Civ.P. 1.030(a). Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980) (case no. 79-613, opinion filed May 20, 1980), and authorities collected. Second, the letter was mailed [February 10,1978] more than 20 days after service of the plaintiff’s complaint upon the defendant IFA Insurance Company [December 16,1977], and, accordingly, even if it had been an authorized pleading under Florida law, it was untimely served. Fla.R. Civ.P. 1.140(a).

We have not overlooked Terino Bros., Inc. v. Airey, 364 So.2d 768 (Fla. 2d DCA 1978), but find it inapplicable because there, unlike this case, a party defendant sent a pro se letter to the plaintiff’s counsel answering the plaintiff’s complaint within 20 days after service of said complaint, and, accordingly, the court was able to treat the letter as proper service of a pro se answer [authorized under Fla.R.Civ.P. 1.030(b)] so as to defeat a clerk’s default. Here we deal with a letter not signed by a party or an attorney authorized to practice law in Florida or specially admitted pro hac vice, which letter was sent long after an answer was due under Florida law; as such, the letter herein cannot be treated, under any circumstances, as timely service of a proper answer so as to preclude a default by the court without notice under Fla.R.Civ.P. 1.540(b).

2

As to the clerk’s default entered against the defendant Zettler under Fla.R. Civ.P. 1.500(a), it is clear beyond dispute that said defendant never filed any pleading or paper in the cause. Moreover, the above stated letter sent by Mr. Mulkeen cannot, in our view, constitute service of an answer by the defendant Zettler for the reasons stated above and for the additional reason that the letter did not set up any defense for the defendant Zettler as it related solely to the defendant IFA Insurance Company. As such, the clerk’s default entered against the defendant Zettler without notice was proper under Fla.R.Civ.P. 1.500(a).

Ill

We have considered the other contentions raised by the defendants upon this appeal and find them to be without merit. Murphy v. Murphy, 378 So.2d 27 (Fla. 3d DCA 1979); Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364, 365 (Fla. 2d DCA 1977).

Affirmed.

SCHWARTZ, Judge

(specially concurring).

I certainly agree that the February 10, 1978 letter from Mulkeen was not an answer or “pleading” which precluded either the defaults entered against Zettler by the clerk under Fla.R.Civ.P. 1.500(a) or those entered by the court against IFA under Fla.R.Civ.P. 1.500(b). At least as to the insurance company, however, I believe that the letter constituted a “paper” which was “served [by mail] in the action” so as to require that it “be served with notice of the application for default.” Fla.R.Civ.P. 1.500(b); Terino Bros., Inc. v. Airey, 364 So.2d 768 (Fla. 2d DCA 1978); see Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980) (Schwartz, J., dissenting in part, specially concurring in part); Germanese v. Champlin, 540 S.W.2d 109 (Mo.App.1976); Roland v. W & L Motor Lines, Inc., 32 N.C.App. 288, 231 S.E.2d 685 (1977); Hansher v. Kaishian, 79 Wis.2d 374, 255 N.W.2d 564 (1977); Graves v. Nutting Truck & Caster Co., 76 Wis.2d 165, 251 N.W.2d 193 (1977).

It clearly appears, however, that the failure to give such notice to IFA was entirely immaterial. The only purpose of such a notice is to give the defendant in question an opportunity to plead before default and thus avoid its being entered. In this case, as clearly demonstrated by the February letter itself, IFA and its lawyer had adopted the obdurate position that it simply was not going to defend the Florida actions. The defaults were entered some two months after the answers were due and only after the plaintiffs’ attorney had, on at least two occasions, warned Mulkeen that defaults might be taken if the company did not appear. Moreover, IFA made no appearance at all until November 1978, almost nine months after the defaults and over two months after it had received notice of the jury trials on damages alone. It is plain therefore that the failure to receive notice of the formal applications for default made no difference; IFA would not have timely pled and the defaults would therefore have been properly entered anyway. Essentially because of the harmless error rule, see Section 59.041, Florida Statutes (1977), I concur in the decision to affirm the judgments below.

      . The defendant IFA Insurance Company was also properly given notice that it had 20 days after service to respond to the plaintiffs’ complaints.

      . The subsequent certiorari review sought in the Florida Supreme Court did not preclude the trial court from trying the cause on damages and thereafter entering a final judgment. Murphy v. Murphy, 378 So.2d 27 (Fla. 3d DCA 1979).

      . Mr. Mulkeen’s letter, even if considered an authorized pleading, was also untimely served as to the defendant Zettler because it was mailed [February 10, 1978] more than 20 days after the defendant Zettler had been personally served [January 10, 1978], Fla.R.Civ.P. 1.140(a).

      . I disagree with the implication in the majority opinion that a “paper” must be served within the time provided for the filing of a responsive pleading in order to trigger the notice requirements of Fla.R.Civ.P. 1.500(a), (b). So long as a paper is served before the default is actually entered, the rules required notice of the application. See Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3d DCA 1979); Gould v. Ruzakowski, 322 So.2d 567 (Fla. 3d DCA 1975). If, after receiving notice, the defendant then “plead or otherwise defends at any time” before default, it may not thereafter be entered. Fla.R.Civ.P. 1.500(c); Chester, Blackburn & Roder, Inc. v. Márchese, 383 So.2d 734 (Fla. 3d DCA 1980); Freedman v. Freedman, 235 So.2d 544 (Fla. 3d DCA 1970).

      . Ibid.


source: Caselaw Access Project

author: DANIEL PEARSON, Judge.

license: Public Domain

text:
    Joyce SCHOTTENSTEIN, Appellant, v. Alan SCHOTTENSTEIN, Appellee.
    No. 79-1312.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.

      Murray B. Weil, Jr., North Bay Village, for appellant.
    No appearance for appellee.
    Before HENDRY, NESBITT and DANIEL PEARSON, JJ.
   DANIEL PEARSON, Judge.

In 1973, the Schottensteins, then residents of Ohio, entered into a separation agreement which was in the same year incorporated into an Ohio decree of divorce. Subsequently, the parties became residents of Florida.

In 1978, Joyce Schottenstein sought to have the Ohio divorce decree established and recognized as a judgment in the State of Florida and, less academically, sought to have her husband’s obligation to pay alimony extended and the alimony and child support payments increased. The trial court made the Ohio decree a judgment of this state, but otherwise denied the requested relief.

The parties’ separation agreement provided, inter alia, that:

“The husband shall pay to the wife for her separate maintenance and support the sum of Five Thousand Dollars ($5,000.00) per year, . . [for a period of five years] . unless the wife dies or remarries, in which event, the husband’s obligation to pay or furnish such support shall absolutely cease and terminate upon the happening of the earlier of such events.”

The husband’s answer to the petition labels this clause as one providing for “rehabilitative alimony.” Rehabilitative alimony is subject to being extended and modified provided the circumstances presented to the trial court justify such action. Where the amount of alimony is fixed not by the court, but by an agreement between the parties, the person seeking to modify the amount has a heavy burden. Pusey v. Pusey (Fla. 3d DCA 1980) (Case No. 79-1297, opinion filed May 20, 1980); Scott v. Scott, 285 So.2d 423 (Fla.2d DCA 1973). The trial court declined to extend or modify this alimony provision. It is not the function of this court to substitute its judgment for that of the trial court in the absence of a finding that the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting Judge Hubbart’s dissenting opinion reported at 352 So.2d 867 (Fla.3d DCA 1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Harts v. Harts, 383 So.2d 952 (Fla.3d DCA 1980). We find no such abuse of discretion.

We find otherwise, however, with respect to the trial court’s denial of increased child support. At the time of the hearing the children were ages seven and eleven, with obvious increased needs. The husband objected to inquiry into his current financial circumstances and stipulated that he was quite capable of paying any child support award made. Other evidence showed him to be a multimillionaire. He admits the children have increased needs, but contends that since he made adequate provision for his wife, it is she who should now pay for the children’s increased needs.

Mr. Schottenstein may not by contract with his wife obviate or impair his obligation to support his minor children. Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946). The child support payments agreed upon by the parties in 1973 are not commensurate with the husband’s present financial ability and the present needs of his school-age children. Meltzer v. Meltzer, 356 So.2d 1263 (Fla.3d DCA 1978); Jelke v. Jelke, 233 So.2d 408 (Fla.3d DCA 1970). Where a party stipulates that he can adequately pay increased child support in order to foreclose inquiry into his present financial circumstances, a court can properly assume that his earnings and assets have substantially increased. A substantial increase in the earnings of the husband will, by itself, justify an increase in child support. Meltzer v. Meltzer, supra; Sherman v. Sherman, 279 So.2d 887 (Fla.3d DCA 1973). We conclude that the trial court’s failure to increase the child support payments constitutes an abuse of discretion.

One point remains to be considered. The father, asserting that it would be in the best interests of the children, moved the court for the entry of an order that the children undergo psychological evaluation and counseling. The court appointed a psychologist and ordered the minor children to undergo psychiatric counseling and evaluation as the psychologist “shall deem necessary to properly evaluate the psychological condition of the children and to determine the benefits to be derived by them from further psychological of the children [sic] and to determine the benefits to be derived by them from further psychological counseling.” The wife contends that the trial court erred in compelling this evaluation and counseling.

We have searched the record to determine the basis for the trial court’s decision. Interspersed with colloquy bearing on varied subjects we find this:

“[MR. SCHOTTENSTEIN:] ... I have a concern that they will have too much money. I want them to grow up to have a right sense of values. We are in a very changing world, in very trying times. The children are bright and capable and we agreed to this. I want them to be resourceful and have a sense of value about money. If anything, they have too much money and they should learn to handle it better.
“THE COURT: There are problems and there are problems. Maybe there is too much money. I have seen very wealthy children end up in dope and kill themselves.”
“I believe in psychologists and I believe in psychiatrists. If you want you can make the children go.
“MR. GEORGE [Husband’s Attorney]: There is a motion before your Honor exactly for that.”
“MS. SCHOTTENSTEIN: My children are well adjusted children. My rabbi said to me, spontaneously, he said the children are the best adjusted children that— “THE COURT: I understand all of that and I appreciate it.” (R. 112-113).
“MR. SCHOTTENSTEIN: I think there are some problems there.
“THE COURT: They are smart children and let’s get this resolved.
“Do the children come back upset after they visit with him?
“MS. SCHOTTENSTEIN: Sometimes. “THE COURT: Doesn’t that indicate to you the children ought to talk to a professional?
“How many fathers do they have. If the children are upset, I think they should talk to a professional.” (R. 116).

While the trial judge may be a proselyte of psychological evaluations and consultations for every minor child of divorced parents, we cannot ignore the countervailing right of a person to be free from a compulsory mental examination. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Schuppin v. Unification Church, 435 F.Supp. 603 (D.Vt.1977). A compulsory mental examination has been traditionally deemed an invasion of privacy which will only be tolerated upon a showing of good cause. Marroni v. Matey, 82 F.R.D. 371 (E.D.Pa.1979); Schuppin v. Unification Church, supra; Paul v. Paul, 366 So.2d 853 (Fla.3d DCA 1979). This requirement of good cause is simply not met by a showing that the children were sometimes upset when they returned from a visitation with their father, or by the father’s desire to give his children a sense of value about money.

Accordingly, we reverse the trial court’s order denying to the wife additional child support and remand the cause to the trial court to determine the appropriate amount of additional child support in keeping with the husband’s financial ability and the increased needs of the minor children. We further direct that the additional child support awarded by the trial court be awarded retroactive to the date the wife’s petition for modification was filed. Friedman v. Friedman, 307 So.2d 926 (Fla.3d DCA 1975); Meltzer v. Meltzer, 262 So.2d 470 (Fla.3d DCA 1972). We vacate that part of the trial court’s order requiring the minor children to submit to psychiatric counseling and evaluation. In all other respects, the order appealed from is affirmed.

Reversed in part; affirmed in part.

      . Since there is no other clause in the agreement to establish any contrary intent, the categorization is proper. See O’Malley v. Pan American Bank of Orlando, N.A., 384 So.2d 1258 (Fla.1980).

      . While the law of Ohio, the lex loci contractus, is to the effect that an agreement for alimony in a specified amount for a specified period of time is not generally modifiable, Popovic v. Popovic, 45 Ohio App.2d 57, 341 N.E.2d 341 (Ohio Ct.App.1975); McClain v. McClain, 26 Ohio App.2d 10, 268 N.E.2d 294 (Ohio Ct.App. 1971), the husband did not properly plead or prove Ohio law. See Hieber v. Hieber, 151 So.2d 646 (Fla.3d DCA 1963) (holding that the law of a foreign state must be pleaded and proved by the party raising its applicability).

      . The children were two and six when the original child support was fixed by the parties. By 1978, they attended private school and summer camp. Their days were apparently filled, without complaint by the father, with tennis, gymnastics, Spanish and piano lessons. The father admittedly provided them with silver spoons, and his financial circumstances were such that he was obliged to keep them untarnished.

      . The 1973 property settlement agreement shows the husband’s net worth to be “less than $4,000,000.” An accountant’s statement reflects that his assets then approximated $8,000,000.

      . We do not subscribe to the trial judge’s apparent view that compulsory psychological evaluations and consultations of children are, at worst, innocuous.

      . Under Florida Rule of Civil Procedure 1.360(a), when the mental condition “of a person in the custody or under the legal control of a party is in controversy,” the court may, upon a showing of good cause, order the party to produce the person for a mental examination. It is doubtful that the threshold “in controversy” requirement was met. We need not decide whether it was or not in light of our conclusion that good cause was not shown.


author: PER CURIAM.

text:
    The CITY OF OPA-LOCKA, a Florida Municipal Corporation, Appellant, v. DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 79-1851.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Weintraub, Weintraub, Seiden, Dudley & Press and Albert L. Weintraub, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and William W. Gibbs, Asst. County Atty., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Appellant brings this appeal, seeking review of a final declaratory judgment determining that the City and its officers, employees and agents have no jurisdiction over a portion of an airport owned and operated by the County (appellee herein) and lying within the City’s municipal boundaries. Said final declaratory judgment reads as follows:

“This cause came on for final hearing upon plaintiff’s complaint for a declaratory judgment determining the extent of its municipal jurisdiction over and its municipal duties with regard to that portion of an airport owned and operated by defendant Dade County and known as Opa-Locka Airport (hereinafter Airport) which lies within the plaintiff’s municipal boundaries. Evidence was presented pursuant to stipulation of the parties, approved by the Court, and documentary evidence in support of such stipulation was admitted. Counsel for the parties were heard and the Court, upon consideration, finds as follows:
FINDINGS OF FACT
1. Defendant, Dade County, owns and operates an airport known as Opa-Locka Airport (the Airport) situate in Dade County, Florida, a portion of which lies within the municipal boundaries of plaintiff, City of Opa-Locka.
2. Plaintiff municipality has extended and has offered to extend various municipal services to persons engaged in business or residing on that portion of the Airport lying within the boundaries of the municipality.
3.Plaintiff municipality does not levy, assess or collect ad valorem taxes on any property or interest in property upon that portion of the Airport situate within its municipal boundaries.
Based on the foregoing, the Court makes the following:
CONCLUSIONS OF LAW
1.The issue of municipal jurisdiction in this case is governed by Section 125.-015, Florida Statutes, 1977 (Section 4, Chapter 71-249, Laws of Florida 1971, which replaced Section 4, Chapter 22963, Laws of Florida, 1945, as amended) which provides, in pertinent part, as follows:
‘Any project owned and operated by such county and lying within the boundaries of a municipality shall be under the exclusive jurisdiction of such county and shall be without the jurisdiction of said municipality.’
The word ‘project’ is defined in Section 125.011(2), Florida Statutes, 1977, thus:
‘ “Project” includes any one or any combination of two or more of the following: harbor, port, shipping, and airport facilities of all kinds and includes, but is not limited to, harbors, channels, turning basins, anchorage areas, jetties, breakwaters, waterways, canals, locks, tidal basins, wharves, docks, piers, slips, bulkheads, public landings, warehouses, terminals for passengers and freight, rolling stock, car ferries, boats, conveyors and appliances of all kinds for the handling, storage, inspection and transportation of freight and the handling of passenger traffic, airport facilities of all kinds for land and sea planes, including, but not limited to, landing fields, water areas for the landing and taking off of aircraft, hangars, shops, buses, trucks and all other facilities for the landing, taking off, operating, servicing, repairing, and parking of aircraft, and the loading and unloading and handling of passengers, mail, express and freight; administration buildings, toll highways, tunnels, causeways and bridges connected therewith or incident or auxiliary thereto, and may include all property, rights, easements, and franchises relating to any such project and deemed necessary or convenient for the acquisition, construction, purchase, or operation thereof.’
The legislative intent of Section 125.015, Florida Statutes, is clear and that section applies to the entire portion of the Airport which lies within the municipal limits of the plaintiff city, including all of the facilities and property necessary or convenient for the operation of the Airport lying within such portion. See City of Opa-Locka v. Dade County, 247 So.2d 755 (Fla. 3d DCA 1971) Certiorari denied, 252 So.2d 802 (Fla.1971).
2. Plaintiff, its officers, employees and agents, have no jurisdiction upon and may not lawfully exercise jurisdiction upon any part of the Airport, its facilities, easements or property lying within plaintiff’s municipal boundaries, except in the event of hot pursuit of persons suspected of having committed violations of law (including ordinances of plaintiff City or defendant County) within the City’s boundaries but outside of the boundaries of the Airport.
3. The defendant County has exclusive jurisdiction, vis-a-vis the plaintiff City, over all of the Airport, its facilities, easements and property which lie within the plaintiff City’s municipal boundaries, subject only to the exception of hot pursuit noted in conclusion of law numbered 2 above.
4. Section 125.015, Florida Statutes, 1977, does not modify or change the municipal boundaries of plaintiff City as currently fixed by Chapter 29347, Laws of Florida, 1953.
5. Section 205.042, Florida Statutes, 1977, authorizes plaintiff City to levy a municipal occupational license tax for the privilege of engaging in or managing any business, profession or occupation, but only ‘within its jurisdiction’. Plaintiff City, therefore, may not lawfully levy any such municipal tax within that part of the defendant County’s Airport which though lying within the City’s boundaries, is ‘without the jurisdiction’ of plaintiff City.
6. Section 163.3161 through 163.3211, Florida Statutes, 1977, known as the Local Government Comprehensive Planning Act of 1975, does not require plaintiff City to prepare and adopt a comprehensive plan as to all lands lying within the limits of the plaintiff City, as alleged in the complaint, but only as to the total area under its jurisdiction (Section 163.-3171, Florida Statutes), which necessarily excludes that portion of the Airport lying within its municipal boundaries.
7. Nothing in this final declaratory judgment is intended to modify nor shall it modify the provisions of the Florida Revenue Sharing Act of 1972, as amended, and as the same may be amended from time to time hereafter.
8. Nothing in this final declaratory judgment shall prohibit the parties from entering into contracts with each other as authorized by Article I, Section 1.01(17) and Article V, Section 5.06 of the Home Rule Charter of Dade County.
Based upon the foregoing, it is
ORDERED AND ADJUDGED that this Court hereby determines and declares the rights and duties of the parties to this cause as to the issues raised by the pleadings herein to be as set forth in the Conclusions of Law numbered 1 through 8 hereinabove.”

We affirm upon the authority of City of Opa-Locka v. Metropolitan Dade County, 247 So.2d 755 (Fla. 3d DCA 1971). Chapter 22963, Special Laws of Florida, 1945, which was construed by the opinion reported in City of Opa-Locka v. Metropolitan Dade County, supra, was superseded by Section 125.015, Florida Statutes (containing the identical language which was in Chapter 22963, Special Laws of Florida, 1945), which the Legislature was specifically authorized to do by Article VIII, Section 11, Constitution of the State of Florida, 1885, as amended and carried forward by Article VIII, Section 6, Constitution of the State of Florida, 1968.

Therefore, finding no error in the final declaratory judgment, the same is hereby affirmed.

Affirmed.


author: BASKIN, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. Janice WALTON, Appellee.
    No. 80-142.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellant.
    Rizzo & Koltun and Stewart G. Green-berg, Miami, for appellee.

      Before BARKDULL, HUBBART and BASKIN, JJ.
   BASKIN, Judge.

This appeal challenges an arbitration award involving uninsured motorist provisions of appellant’s insurance policy entered upon the concurrence of two arbitrators. Although he did participate in discussions other than those on the issue of costs, the third arbitrator did not have an opportunity to express his vote, nor did he join in the final award. We find any error which may have occurred to be harmless and affirm. Weeki Wachee Orchid Gardens, Inc. v. Florida Inland Theaters, Inc., 239 So.2d 602 (Fla.2d DCA 1970); §§ 682.05 and 682.06(3), Fla.Stat. (1975).

We also affirm the decision of the trial court awarding attorney’s fees to the insured. Travelers Insurance Co. v. Horton, 366 So.2d 1204 (Fla.3d DCA 1979); Bankers & Shippers Insurance Co. v. Gonzalez, 234 So.2d 693 (Fla.3d DCA 1970); and § 627.428, Fla.Stat. (1975).

The decision of the trial court denying petition to vacate award of arbitration is affirmed.

      . After the hearing, all discussions were conducted by individual telephone calls.


author: BARKDULL, Judge.

text:
    Jack HARVEY and Enrique Monroy, Appellants, v. Nancy Kelley WITTENBERG, Secretary of the Florida Department of Professional Regulation, Appellee.
    No. 80-774.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Sams, Gerstein & Ward and Richard S. Rachlin, Miami, for appellants.
    Deborah J. Miller, Tallahassee, for appel-lee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   BARKDULL, Judge.

Defendants in the trial court seek review of a temporary injunction issued after notice and the taking of testimony, following a complaint by the appellee (Wittenberg, as Secretary of the Department of Professional Regulation) that the appellants were engaged in the unlawful practice of dentistry. The only point urged on appeal is that it was necessary for the appellee to establish irreparable harm.

We affirm. The appellee is charged with the responsibility of enforcing Chapter 466, Florida Statutes (1979). Irreparable harm to members of the public (that which cannot be compensated adequately in money damages ) is presumed in this case. This is so because the expressed purpose of Chapter 466, the Dentistry Practice Act, is to protect the public health, safety and welfare, and because the Legislature has specifically empowered the appellee to seek an injunction against one who violates the provision of this chapter. In this connection, see: Times Publishing Company v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969), wherein the Second District Court of Appeal held that the element of irreparable harm was provided by the Legislature when it authorized the remedy of injunction to prevent the violation of a statute designed to protect the public interest. In said opinion, the following is found:

“ . . Injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is a real and imminent danger of irreparable injury. Statutory authority for such writs, as in the act before us, are not uncommon; but it must be remembered that such writs are in the first instance judicial writs. If such statutes purport to give the circuit courts injunctive power they are ineffectual, since those courts are otherwise vested with such powers under the constitution, § 6(8) Art. V Constitution of Florida; and if they purport to dictate to such courts when, how or under what conditions injunctions should issue they would constitute an unlawful legislative infringement on a judicial function.
“On the other hand, we cannot presume that the legislature employed useless language. So if the provision granting jurisdiction to the circuit courts to issue injunctions to enforce this act is to be given any legal effect, it must be said that it is the equivalent of a legislative declaration that a violation of the statutory mandate constitutes an irreparable public injury; and we are aware of no legal barrier to such a legislative proclamation eoncern-ing the subject matter of the act before us. The effect of such a declaration in a subsequent judicial proceeding, then, would be that one of the requisites for a writ of injunction need not be proven, i. e., an irreparable injury; and a mere showing that the statute has been or is clearly about to be violated fully satisfies such requirement." (emphasis added)

Notwithstanding the fact that the appel-lee was not required to introduce evidence as to the imminent harm to the public, it did in fact introduce such evidence of potential harm to the public generally, and therefore the issuance of the temporary injunction was without error. Times Publishing Company v. Williams, supra; State Board of Funeral Directors and Embalmers of Florida v. Evans, 256 So.2d 574 (Fla. 1st DCA 1972); Telophase Society of Florida, Inc. v. State Board of Funeral Directors and Embalmers, 308 So.2d 606 (Fla. 2d DCA 1975); United States v. Sene X Eleemosynary Corp. Inc., 479 F.Supp. 970 (S.D.Fla.1979).

Therefore, for the reasons above stated, the temporary injunction here under review be and the same is hereby affirmed.

Affirmed.

      . Teledyne Indus., Inc. v. Windmere Products, Inc., 433 F.Supp. 710 (S.D.Fla.1977); Nuclear-Chicago Corp. v. Nuclear Data, Inc., 465 F.2d 428 (7th Cir. 1972); State, Dept. of H. R. S. v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).


author: HERSEY, GEORGE W., Ill, Associate Judge. MOORE, JOHN H., II, Associate Judge,

text:
    CITY OF ORLANDO, Appellant, v. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1365, Appellee.
    No. 78-1295/NT4-86.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.

      Norman F. Burke of van den Berg, Gay & Burke, P.A., Orlando, for appellant.
    Michael M. Switzer, Asst. Gen. Counsel, and Susan E. Koch, Staff Atty., for William E. Powers, Jr., Gen. Counsel, Tallahassee, for the Public Emp. Relations Commission.
   HERSEY, GEORGE W., Ill, Associate Judge.

This is an appeal from an order of the Public Employees Relations Commission (PERC), which order finds appellant, The City of Orlando, in violation of Section 447.-501(l)(a), Florida Statutes (1975); that it so say, guilty of an unfair labor practice. The particular section invoked by the Commission states:

447.501
(1) Public employers or their agents or representatives are prohibited from
(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

This provision and other pertinent sections were substantially unchanged in Florida Statutes, 1977, and for the purpose of clarity references will be to the 1977 section numbers.

As a consequence of having been found in violation, the City was required to post a notice for a period of time stating, in effect, that the City would refrain from similar unfair labor practices in the future.

During the latter part of 1976 and continuing in early 1977, the Employer Relations official (for the City) and representatives of Local # 1365, The International Association of Firefighters (the union for the public employees involved) were engaged in negotiating an employment agreement. The areas that became troublesome involved wages, overtime and special compensation related to education. Unable to successfully negotiate these items, the parties submitted the matter to a special master as provided for by Subsection 447.403(2), Florida Statutes. The special master’s report, received by the parties on January 6, 1977, was the subject of a meeting of the negotiators for the parties on January 14, 1977, at which time the City rejected the special master’s recommendations.

On January 31, 1977, the City Council conducted a public hearing pursuant to Subsection 447.403(4)(d). No final action resulted from that meeting and negotiations continued, apparently with the consent of both parties, until February 21, 1977. On that date, at a meeting of the City Council, a representative of the union demanded that the City take immediate unilateral action to resolve the disputed impasse items with finality. Thereafter, the City Council passed the following motion:

Moved by Commissioner Keith, seconded by Commissioner Kennedy that City Council ratify the proposal of its Employee Relations Official of February 15th to-wit: it would be a 3.5% salary increase for Grades 43 and over upon execution of the contract and 5% for all those grades effective October 1, 1977; time-and-a-half would become effective after 192 hours and a 28-day cycle and EMT II’s would receive $50 per month in addition to their regular salary. If this is not acceptable to the Fire Fighters within 10 days City Council hereby postpones any further decisions on the matter until the 77/78 budget is considered.

On February 28, 1977, the union voted to accept the terms offered by the City and thereafter a collective bargaining agreement was signed by representatives of both parties.

Pursuant to an unfair labor practice charge filed by the appellee union, counsel for PERC issued a complaint alleging that the City of Orlando had engaged in an unfair labor practice within the meaning of Sections 447.501(l)(a) and (c) by failing to take action as required by Section 447.-403(4)(d) to resolve certain impasse items and by conditioning its resolution of such impasse items on the union’s total acceptance of the City’s bargaining proposal. The complaint alleged, in essence, that on January 31, 1977, the City conducted a public hearing pursuant to Section 447.403(4)(d); that at such hearing, and thereafter, the City failed to resolve the remaining impasse items; that on or about February 15, 1977, an agent of the City offered a bargaining proposal on the impasse items which proposal was rejected by the union; and that on February 21, 1977, following the union’s demand that the City take immediate unilateral action to resolve the disputed impasse, the City, following the recommendation of its agent, conditioned its resolution of the impasse items on the union’s total acceptance of the City’s February 15th bargaining proposal.

The hearing officer issued his recommended order in which he concluded that following its rejection of the special master’s recommended decision, the City was under a duty, pursuant to Section 447.-403(4)(c) and (d), to forthwith conduct a legislative hearing and take legislative action to resolve the impasse issues with finality. Nevertheless, the hearing officer concluded that the union had waived performance by the City of its statutory duty to resolve the impasse issues by voluntarily participating in and requesting bargaining after January 31,1977, and by subsequently accepting the City’s offer and ratifying and signing a contract. Because of that, the hearing officer concluded that the City’s failure to take the required legislative action on January 31, 1977, was not an unfair labor practice. PERC issued its decision and order which adopted the hearing officer’s findings of fact. While concurring with the hearing officer’s conclusion that the City was under a duty pursuant to Section 447.403(4)(c) and (d) to conduct a hearing and take legislative action to resolve the impasse issues, the Commission differed with the hearing officer on the waiver issue, instead concluding that, although the union waived prompt performance of the City’s statutory duty by participating in and requesting bargaining between January 31, 1977 and February 21, 1977, the waiver ended on February 21, 1977, when the union demanded that the City take legislative action to resolve the impasse issues with finality. The Commission concluded that the City’s failure to thereafter respond in the proper fashion interfered with, restrained, and coerced public employees in the exercise of rights guaranteed them by Part II of Chapter 447, Florida Statutes, and constituted an unfair labor practice in violation of Section 447.-501(l)(a). The subsequent acceptance by the union of the City’s offer and the signing of a contract was held not to have waived the City’s failure to take legislative action as demanded. In addition to ordering the City to cease and desist from such conduct in the future, the City was ordered to post a notice in all fire stations which admitted the violation.

The City’s appeal is based upon four grounds.

The City maintains that Section 447.403(4)(d), Florida Statutes, authorized but did not require the City Council to legislate the terms and conditions of the firefighters’ employment. While this is an accurate analysis of the statute, it does not answer the real question involved.

Section 447.403 of the Public Relations Employment Act contemplates the use of three distinct impasse resolution techniques. Should negotiations result in an impasse, a mediator may be called in to assist. In the absence of resolution in that manner, special master proceedings may be instituted. If the special master’s recommendations for settlement of the contract talks are rejected by either party, the matter is referred to the legislative body for final disposition. The public body must, and the bargaining agent may, submit its recommendations for impasse resolution to the legislative body, and the legislative body thereafter takes “such action as it deems to be in the public interest, including the interest of the public employees involved.” United Faculty of Florida, FEA/United, AFT, AFL-CIO, Local 1880 v. Board of Regents, 365 So.2d 1073 (Fla. 1st DCA 1979). The issue for consideration is whether a legislative body may, where it deems such action to be in the public interest, authorize further negotiations. The City contends that Section 447.403(4)(d), Florida Statutes, allows it the option of continuing to bargain, following a Section 403(4)(c) legislative hearing when that legislative body, acting in its impartial legislative capacity, deems such action to be in the public interest. The City also contends that a unilaterally imposed settlement by legislative fiat hardly advances the purposes of the act as stated in Section 447.201.

Section 447.403(3) provides that after the recommended decision of the special master is transmitted to the parties, that decision should be discussed further by the parties in negotiations. It is not uncommon for negotiation to take place during the formal fact-finding proceedings of the special master, and in fact negotiations may resume after the factfinder’s report has been issued. McHugh, The Florida Experience in Public Employee Collective Bargaining, 1974-1978: Bellwether for the South, 6 FSU L.Rev. 263, 317 (1978). But the act provides that once the recommendation of the special master is rejected by either the public employer or the employee organization, the dispute must be submitted to the legislative body, which, after conducting a hearing, has the final authority for resolving the impasse. This proceeding is a recognition of the fact that public employees are otherwise constitutionally prohibited from striking. Article I, Section 6, Florida Constitution.

To understand what the statute contemplates in requiring that the legislative body take “such action as it deems to be in the public interest, including the interest of the public employees involved” in resolving the impasse, it is necessary to recognize that frequently, the negotiator and the legislative body are one and the same body wearing two hats. In this case, the Orlando City Commission is the public employer responsible for negotiating, in an adversary setting, a collective bargaining contract with the City’s firefighters. Yet once a contract impasse occurs, the City Commission must put on its legislative hat because it is also the legislative body. Section 447.203(1), Florida Statutes. It must depart from its adversary role and suddenly become neutral, an awkward position because the City Commission must adjudicate disputes as a legislative body to which it is a party in interest as a public employer. This situation becomes very difficult in cases of acrimonious contract disputes where the sides have polarized and waged political war through the news media. Indeed, the act manifests a determination that the legislative body act in good faith and impartiality and consider equally the positions of the parties in order to arrive at a final solution. In this regard, the legislature has made a choice to forestall the probability of long, drawn-out unsuccessful negotiations following the rejection of the special master’s report by requiring the legislative body to take action to resolve the dispute. It seems unlikely that the dispute will be promptly resolved by the legislative body again switching hats and seeking to achieve agreement through further negotiations. The concern with such a distortion of the statutory scheme is borne out by the result in this case, in which the City Commission, after deciding, purportedly in the public interest (including the interest of the public employees involved), to revert to its adversary position and encourage further negotiations, ultimately adopted a resolution on February 21, 1977, which reflected a “take it or leave it” approach with regard to salary demands, which the union was ultimately forced to accept.

The statute prohibits “coercion.” While there was no clear showing that a delay in finalization of an employment agreement “until the 77/78 budget is considered” would be detrimental to the interests of the individuals represented by the union, it seems obvious that some element of “coercion” was involved or the language to that effect included in the motion adopted by the City Council would have no purpose. It is this type of overreaching that the statute seeks to prohibit. The public entity, once it purports to be acting in its legislative or quasi-judicial capacity, may not, with impunity, wield the power implicit in that capacity as a cudgel to coerce the union into accepting terms of employment offered by the same public entity in its capacity as employer.

The thrust of Order No. 78U-176 issued by the Public Employees Relations Commission is that mere delay by the City Council in legislating a resolution of the impasse items after demand by the union negotiators on February 27, 1977 that the matters in controversy be resolved in that manner constituted an unfair labor practice. Under some circumstances, it is obvious that delay might be construed as a refusal by the public entity to bargain collectively and in good faith but this would seem to be a violation of Section 447.501(l)(c) rather than Section 447.501(l)(a), Florida Statutes. The Commission held that a violation of the last mentioned section resulted from the action (or inaction) of the City Council. In this particular, the order is deficient; however, the result is not changed in that a violation of either section constitutes an “unfair labor practice.”

As a second position on appeal the City contends that the union waived its right to insist upon compliance with the statutory requirements by continuing to negotiate after February 21, 1977. It should be noted, initially, that neither party had the right to waive requirements of the statute designed to protect the public interest (as distinguished from the private interests of the union). 56 AmJur., Waiver § 4; 12 FlaJur. Estoppel and Waiver § 5. More to the point, however, it is nowhere contended nor could it be successfully contended that appellee waived appellant’s commission of an unfair labor practice.

Appellant’s third point on appeal raises the question of whether incorporation by reference of portions of a hearing officer’s report in a Commission order is sufficient explication to satisfy the requirements of Florida Statutes § 120.57 (Administrative Procedure Act). While the public policy implicit in the requirement of explication is satisfied by incorporation of the rationale by reference, the better practice would be to spell out the rationale in the order so that it may be more readily accessible for analysis and possible constructive criticism.

Finally, appellant contends that the portion of the Commission’s order which requires the City to cease bad-faith bargaining is unsupported by a finding of substantial evidence, and hence exceeds the Commission’s remedial powers. The City was found to be in violation of Section 447.501(l)(a), Florida Statutes. Pursuant to Section 447.503(6)(a), the Commission issued a cease and desist order and required the City to post a notice which read in part:

WE WILL NOT condition our resolution of impasse issues upon the acceptance by the certified bargaining agent of the terms of our resolution.

This remedy was tailored to the precise factual circumstances under which the City failed to take final legislative action and does not constitute a promise by the City to bargain in good faith. The fact that the remedy may have been redundant, in light of the remaining portions of the notice, or that it could have been construed as prohibiting the City from engaging in what amounted to bad faith bargaining is but incidental. The Commission noted that requiring the City to take legislative action in this instance would be counterproductive since a complete collective bargaining agreement had been reached. Accordingly, the City was simply ordered not to circumvent its statutory duty in the future by conditioning the resolution of impasse issues upon acceptance by the bargaining agent of the union of terms offered by the City in its capacity as employer.

Accordingly, the order appealed from is affirmed.

JOHN R. BERANEK, Associate Judge, concurs.

JOHN H. MOORE, II, Associate Judge, dissents with opinion.

MOORE, JOHN H., II, Associate Judge,

dissenting:

I respectfully dissent. Even assuming the appellant is guilty of an unfair labor practice by having violated Section 447.-501(l)(a), Florida Statutes (1977), a conclusion I do not believe is supported by the record, I would hold that appellee has waived its right to complain by agreeing to a contract and accepting its benefits. The proper procedure would have been to reject the City’s proposal and then lodge a complaint with the appropriate authority.


author: MOORE, Judge.

text:
    L. LURIA & SON, INC., for the Use and Benefit of FIREMAN’S FUND INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, and L. Luria & Son, Inc., Individually, Appellants, v. ALARMTEC INTERNATIONAL CORPORATION, a/k/a Honeywell Protection Services, a Florida Corporation, Appellee.
    No. 78-1436.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Joe N. Unger, Miami, and Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellants.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, and Thomas D. Lardin of Weaver & Weaver, P.A., Fort Lauderdale, for appellee.
   MOORE, Judge.

The appellant, as plaintiff in the trial court, appeals an order dismissing its complaint with prejudice.

Appellants contracted with appellee, Alarmtec International Corporation, for the latter to install and maintain an electric protective service against burglary. In September 1974, during the contract period, appellant’s business premises were burglarized, resulting in a loss valued in excess of $135,000. The present suit sought damages on several theories: breach of contract, breach of implied warranties and negligence. It also sought recovery of punitive damages for gross, wanton and willful negligence.

The contract between the parties contained what has apparently become the usual exculpatory clause in burglar alarm contracts as follows:

7. It is agreed that Company is not an insurer and that the payments hereinbe-fore named are based solely upon the value of the services herein described and it is not the intention of the parties that Company assume responsibility for any loss occasioned by malfeasance or misfea-sanee in the performance of the services under this contract or for any loss or damage sustained through burglary, theft, robbery, fire or other cause or any liability on the part of Company by virtue of this Agreement or because of the relation hereby established. If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. Such liability as herein set forth is fixed as liquidated damages and not as a penalty and this liability shall be complete and exclusive. That in the event Subscriber desires Company to assume greater liability for the performance of its services hereunder, a choice is hereby given of obtaining full or limited liability by paying an additional amount under a graduated scale of rates proportioned to the responsibility, and an additional rider shall be attached to this Agreement setting forth the additional liability of Company and additional charge. That the rider and additional obligation shall in no way be interpreted to hold Company as an insurer.

The appellant made no request to amend its complaint and the trial court dismissed the complaint with prejudice, relying on the exculpatory clause. The court found that the above clause totally excluded liability on appellee’s part for losses due to burglary or, alternatively, limited appellee’s liability to six months rental. We affirm.

Although the eight count complaint in this case is based on several theories it is grounded on appellee’s negligent failure to perform its contractual duties. Exculpatory contracts which relieve a party of liability for his own negligence are generally looked upon with disfavor. Orkin Exterminating Co. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978); Kinkaid v. Avis Rent-A-Car Systems, Inc., 281 So.2d 223 (Fla. 4th DCA 1973) (dissenting opinion). Such clauses have been upheld, however, as valid and enforceable where the intention is made clear and unequivocal. Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972).

We find the aforecited clause to be clear and unequivocal in totally absolving the appellee from liability under the facts alleged in this complaint. The trial court was therefore correct in dismissing the complaint. In view of this holding it is not necessary to reach the second issue regarding limiting appellee’s liability to six months rental payments. Nevertheless, for the benefit of the bar, we adopt the holding in Central Alarm of Tucson v. Ganen, 116 Ariz. 74, 567 P.2d 1203 (1977) and would so limit the liability if we were called upon to do so.

AFFIRMED.

ANSTEAD, J., and TENDRICH, MOIE J. L., Associate Judge, concur.


author: GLICKSTEIN, Judge.

text:
    SANDPIPER BAY, INC., and Capricorn Holding Co., Inc., Appellants, v. Ralph LaCHANCE, Building Official of the City of Port St. Lucie and City of Port St. Lucie, a Municipal Corporation, Appellees.
    No. 78-1577.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.

      Jacqueline L. Russakis of McDonald, Kenney & Russakis, Professional Association, Fort Pierce, for appellants.
    Charles J. Dorfman of Spencer B. Gilbert, P. A., Fort Pierce, for appellees.
   GLICKSTEIN, Judge.

Appellants timely appeal from an order denying a peremptory Writ of Mandamus for the issuance of a building permit. We affirm.

Sandpiper Bay, Inc. and Capricorn Holding Co., Inc., are the owners of four contiguous parcels of land, totalling approximately seven acres, known as Parcels A, B, C and D and located within the City of Port St. Lucie. In 1977 Parcels A, B and D were vacant, Parcel C was the site of an existing one-story building, divided into store fronts.

Appellants had brought an action in 1977 for mandamus, Case No. 77-551-CA, against the City and its building official to obtain building permits for a two-story office building on Parcel A, a 40 ft. X 60 ft. single-story CBS 7-11 food store and 10,000 additional square feet of single-story retail stores on Parcel B, and a 22,720 square-foot, single-story Winn-Dixie supermarket on Parcel D.

On June 5, 1978, the trial court in Case No. 77-551-CA entered a final judgment which granted appellants relief as to Parcel B and denied relief as to Parcels A and D. The court concluded that the zoning of Parcel A was R-2, single family residential; that the zoning of Parcels B and D was B-l, neighborhood commercial; that the B-l classification clearly permitted the contemplated uses of Parcel B; but that the B-l section of Ordinance 76-1 was not clear enough for the court to determine whether a supermarket could be placed on Parcel D.

Having the benefit of the trial court’s decision in Case No. 77-551-CA, appellants on June 9, 1978, filed application with the City for a building permit to construct 10,-000 square feet of single-story retail stores in a single building on Parcel D that was to be the same as that situated on Parcel B. Following the building official’s refusal to issue a permit for Parcel D, appellants petitioned the trial court on June 14, 1978, to issue a writ of mandamus. Final hearing was held on June 22, 1978, and the order denying the writ was filed four days later.

Appellants admitted that a major portion of the hearing before the trial court concerned Ordinance 78-17, adopted as late as May 9, 1978. Ordinance 78-17 set forth requirements for site plan review, involving the city planner, site plan review committee, planning and zoning board and city council. Appellants conceded that they had not complied therewith, but took the position that compliance was futile because the city council was determined not to approve a site plan for any commercial building on Parcel D. In order to establish the futility of non-compliance, they called the mayor and three members of the city council as adverse witnesses. However, these witnesses testified, in large measure, that they would make their decision on the building permit or site plan when the matter came before them, not before.

Mandamus is generally not favored when a determination of controverted questions of fact is necessary to ascertain the parties’ rights. L. B. Price Mercantile Co. v. Gay, 44 So.2d 87 (Fla.1950). Appellants argued that they had clearly established the futility of compliance with the ordinance. The testimony indicates otherwise. Regardless, the necessity for proving futility — in order to avoid the requirements of Ordinance 78-17 — established the inappropriateness of mandamus, given these facts.

Because of appellant’s non-compliance with Ordinance 78-17 they failed to demonstrate that they possessed a clear legal right to the issuance of the subject building permit. Consequently, the order of the trial court denying the writ was correct. State, ex rel. McCoy v. Bell, 91 So.2d 193 (Fla.1956); City of Hallandale v. State, ex rel. Segall, 322 So.2d 600 (Fla. 4th DCA 1975); Ross v. McCrimmon, 233 So.2d 411 (Fla.3d DCA 1970).

Since the foregoing determination is dis-positive of this appeal, the points raised by appellant are rendered moot.

AFFIRMED.

DOWNEY, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


text:
    James Edward VASS, Appellant, v. Gladys Lovell Small VASS, Appellee.
    No. 78-2276.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Paul W. Potter, Jr., Riviera Beach, and Larry Klein, West Palm Beach, for appellant.
    Edna L. Caruso, West Palm Beach, and Jack E. Ackerman of Johnson, Ackerman & Bakst, West Palm Beach, for appellee.
   PER CURIAM.

We affirm. The burden of proof to support a finding of a special equity was on appellant. Tanner v. Tanner, 194 So.2d 702 (Fla.2d DCA 1967). The sufficiency of appellant’s showing in that regard depended upon the facts. It is well settled that the findings of the trier of fact, if supported by substantial evidence, are not to be disturbed on appeal. First National Bank of Daytona Beach v. Cobbett, 82 So.2d 870 (Fla.1955). Taken in the light most favorable to appel-lee, as required by Williams v. Williams, 177 So.2d 865 (Fla.3rd DCA 1965) we determine that the trial court’s findings do not constitute that abuse of discretion required by Canakaris v. Canakaris, 382 So.2d 1197 (1980) to warrant reversal.

WE THEREFORE AFFIRM.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


author: ANSTEAD, Judge.

text:
    Michele A. MARAN, Appellant, v. Joseph J. MARAN, Appellee.
    No. 79-232.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.

      William Brant of Brant & Baldwin, Lake Park, for appellant.
    Joseph J. Maran, in pro. per.
   ANSTEAD, Judge.

The wife is here appealing the trial court’s decision awarding custody of the parties’ 15 month old child to the husband. We affirm.

The main contention of the wife is that she should have been awarded custody because the child is of tender years; and in such case, other essential factors being equal, the mother should have custody. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). In deciding the issue of custody a trial court is required to determine what custody arrangement would be in the best interests of the child. The age of the child, although important, is but one of the factors to be considered. In this case, we believe the trial court properly concluded that the other essential factors were not equal and therefore that the evidence supported an award of custody to the husband, rather than the wife, as being in the best interests of the child. Marshall v. Marshall, 375 So.2d 1082 1st DCA 1979).

Accordingly, the final judgment of the trial court is hereby affirmed,

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Patricia HATCHER, as mother and next friend of Donald Barrows, a minor, and Patricia Hatcher, Individually, Appellants, v. Charles SCHUMAN, Sun Auto Rentals of Florida, Inc., a Florida Corporation, and National Union Fire Insurance Company, a Foreign Corporation, Appellees.
    No. 79-980.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    K. P. Jones of the Law Offices of K. P. Jones, Fort Lauderdale, for appellants.
    Larry Klein, West Palm Beach and Pysz-ka, Kessler & Adams, Fort Lauderdale, for appellees Sun Auto Rentals.
   PER CURIAM.

AFFIRMED. See Pearson v. St. Paul Fire & Marine Insurance Co., 187 So.2d 343 (Fla. 1st DCA 1966).

ANSTEAD and HURLEY, JJ., concur.

MOORE, J., concurs in conclusion.


text:
    MARTIN COUNTY, Appellant, v. J. & R. TRUCKING, INC., Appellee. J. & R. TRUCKING, INC., a Florida Corporation, Cross-Appellant, v. MARTIN COUNTY, a political subdivision of the State of Florida, Cross-Appellee.
    Nos. 79-1860, 79-1906.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    John T. Carmody, Jr., County Atty. and Robert Makemson, Asst. County Atty., Stuart, for appellant/cross-appellee.
    Andrew T. Coutant, Stuart, for appel-lee/cross-appellant.
   PER CURIAM.

AFFIRMED. See Universal Building Specialties v. Apelquist, 378 So.2d 851 (Fla. 4th DCA 1979).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    Eddie Lee PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 80-304.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Eddie Lee Porter, appellant, pro se.
    No appearance on behalf of appellee.
   PER CURIAM.

Defendant/appellant takes this appeal pursuant to Rule 9.140(g), Fla.R.App.P., following the denial of his 3.850 motion without an evidentiary hearing. Since the record fails to conclusively show that the appellant is entitled to no relief, the order is reversed and the cause is remanded for an evidentiary hearing. See, Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980).

REVERSED AND REMANDED.

DOWNEY, HERSEY and HURLEY, JJ., concur.


author: BOARDMAN, Judge.

text:
    FIRST INDEPENDENT BANK, N.A., Appellant, v. STOTTLEMYER AND SHOEMAKER LUMBER COMPANY, a Florida Corporation, Sarasota Kennel Club, Inc., a Florida Corporation, John E. Johnson and John D. Agnew, as directors of Florida Construction Consultants, Inc., a dissolved Florida Corporation, Jerry Collins, Estate of C. E. Newman, and Lola Collins, Appellees.
    No. 79-1403.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.

      M. Joseph Lieb, Jr. of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellant.
    Johnson S. Savary of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellee Stottlemyer and Shoemaker Lumber Company.
   BOARDMAN, Judge.

First Independent Bank, N.A., defendant below, appeals a final summary judgment finding it liable to appellee Stottlemyer & Shoemaker Lumber Company for improper payment to Florida Construction Consultants, Inc. (Consultants) of a check payable jointly to appellee and Consultants which appellee had not endorsed. We reverse.

In 1976, defendant Sarasota Kennel Club, Inc. (the Club) employed Consultants to construct certain improvements and modifications to its grandstand area. Consultants, in turn, entered into an oral contract with appellee whereby appellee was to furnish lumber, hardware, and miscellaneous building materials for the grandstand project.

Appellee billed Consultants on the 25th and 26th of each month. Payment of a statement by the 10th of the following month would result in a two per cent cash discount, and, if not paid by that date, the entire balance of the statement would be due by the 25th.

Consultants would obtain a check from the Club made payable to Consultants and appellee which would include the amount due appellee. Consultants would take this check to appellee for its endorsement and in exchange would give appellee Consultants’ own check drawn on its account with appellant in the amount of appellee’s share of the proceeds due out of the check from the Club.

On April 25, 1977, appellee issued its monthly statement to Consultants in the amount of $6,186.59. Payment was not received prior to issuance of the next monthly statement. The May statement was in the amount of $15,884.78, which included the April billing that had not yet been paid.

On May 31, 1977, the Club delivered to Consultants a check payable jointly to Consultants and appellee in the amount of $6,186.59. This check was never presented to appellee for endorsement. On June 6, 1977, appellant accepted this check for deposit into Consultants’ account without ap-pellee’s endorsement. As of the close of business on June 6, 1977, there was $18,-776.44 on deposit in Consultants’ account. Consultants wrote and delivered a check for $6,186.55 dated June 7, 1977, to appellee. This check was paid by appellant on June 9, 1977, at which time there was $12,805.92 on deposit in Consultants’ account.

As of June 7, 1977, Consultants owed appellee $16,260.86 for materials and supplies furnished to Consultants for construction at the Club. After the payment on June 7, appellee received no further payments for the materials it supplied for the grandstand project.

Appellee subsequently sued appellant for improper payment of the $6,186.59 check issued by the Club. Appellant’s defense was that appellee had been paid the sum in question by Consultants. Appellee took the position that the payment received by way of the June 7, 1977, check from Consultants may not have been the same which was wrongfully accepted for deposit by appellant on June 6, 1977.

At the hearing on the motion for summary judgment, the trial court stated that if James Scheurenbrand, appellant’s president, could testify that the funds paid to appellee out of Consultants’ account on the check dated June 7 were the identical funds wrongfully deposited into that account on June 6, summary judgment could be avoided. Due to the fact that there was a beginning balance in the account on the day the funds were deposited and that there were also other banking transactions occurring in that account that day, Scheurenbrand could not state that they were the identical funds. Since Scheurenbrand could not conclusively testify that the identical funds were involved in the payment to appellee, the trial court entered summary judgment against appellant.

It is undisputed that under the Uniform Commercial Code, “[a]n instrument payable to the order of two or more persons: ... (2) [i]f not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.” § 673.116, Fla.Stat. (1979); Sullivan v. Wilton Manors National Bank, 259 So.2d 194 (Fla. 4th DCA 1972). A bank which wrongfully appropriates commercial paper may be liable for conversion, see Louisville & Nashville Railroad v. Citizens & Peoples National Bank, 74 Fla. 385, 77 So. 104 (1917), and appellant’s disposal of the check in question amounted to a conversion. FDIC v. Marine National Bank, 431 F.2d 341 (5th Cir. 1970). However, appellant raised the affirmative defense that appellee received Consultants’ payment of the sum of money wrongfully accepted for deposit by appellant. If appellee did, in fact, receive the proceeds of this check, then appellant cannot be liable for its conversion. Florida National Bank at St. Petersburg v. Geer, 96 So.2d 409 (Fla. 1957); Sullivan v. Wilton Manors National Bank, supra.

The party moving for summary judgment has the burden of conclusively refuting affirmative defenses raised by the other party. Spear v. Martin, 330 So.2d 543 (Fla. 4th DCA 1976). Scheurenbrand’s testimony did not conclusively refute appellant’s affirmative defenses. The testimony of appellee’s own agents, namely Charles Stottlemyer, president of appellee, and Joseph A. Newlon, comptroller of appellee, was that the funds paid to appellee by the June 7 check from Consultants were accepted for and treated as payment of the April 25 statement, and that this check was received from Consultants on May 31, 1977. Stottlemyer also testified that the account was paid through April 25, the date of the $6,184.59 statement, and that payment of the statement dated May 22 was not due until June 25.

The evidence indicates that appellee did receive the intended proceeds from the wrongfully deposited check with the exception of the four-cent discrepancy between the amounts. In order for appellant to be absolved from liability, it is not necessary for appellee to have received the same funds out of Consultants’ account which were put there by the wrongful deposit of the check.

Accordingly, the final summary judgment in favor of appellee is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

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


author: GRIMES, Chief Judge.

text:
    Hollis E. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-474.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.
   GRIMES, Chief Judge.

Appellant challenges the circuit court’s summary denial of his motion to vacate three misdemeanor convictions and an adjudication of delinquency. In each claim, appellant alleged that he was denied the right to counsel.

We first consider the claims arising from the misdemeanor convictions. Florida Rule of Criminal Procedure 3.850 requires the defendant to seek relief from “the court which entered the judgment or imposed the sentence.” Appellant was convicted of the misdemeanors in county court. Consequently, the circuit court had no jurisdiction to review the legality of those convictions.

It was the circuit court which adjudicated appellant to be a delinquent; so that court did have jurisdiction over appellant’s motion with respect to the delinquency proceedings. Moreover, indigent juveniles are entitled to have counsel provided to them during such proceedings. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Nevertheless, to sustain a claim for denial of counsel, appellant had to allege that he was indigent at the time he appeared before the juvenile court. Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963). This he did not do. Therefore, his motion did not state grounds for relief.

AFFIRMED.

HOBSON and OTT, JJ., concur.


author: COBB, Judge.

text:
    Curtis Louis JONES, Appellant, v. STATE of Florida, Appellee.
    No. 78-2600/T4-322.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Richard L. Jorandby, Public Defender, and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The defendant, Curtis Louis Jones, was found guilty after jury trial of robbery in the second degree per Section 812.13(2)(e), Florida Statutes (1977), a crime designated as a second degree felony. The trial court adjudicated him guilty and deferred sentencing pending receipt of a pre-sentence investigative report. The robbery was committed on August 4, 1978.

The state then filed a notice of intention to seek an enhanced penalty under Section 775.084, Florida Statutes (1977). A sentencing hearing was held on November 7, 1978, and evidence was introduced showing that appellant had been supervised on parole from March, 1974, to September, 1975. The state produced copies of the certificates of discharge and parole relating to the prior offense, but no judgment or verdict was offered in evidence to prove the prior conviction, nor were the defendant’s fingerprints offered to show identity. However, the parole supervisor, one Randy Amos, testified at the hearing and identified Jones as the man he had supervised. A photograph of Jones from the files of the Department of Corrections also was introduced.

The appellant contends that the absence of fingerprint evidence and a certified copy of the judgment showing his 1971 conviction renders the evidence fatally deficient to support a determination by the trial court that he was an habitual felon. We cannot agree with this contention. The applicable provision of the statute provides for findings based on a preponderance of the evidence, and the state’s proof clearly met that burden.

The appellant also contends that the trial court erred in sentencing him as an habitual offender without a specific finding that such was necessary for the protection of the public. This objection was not raised before the trial court and, therefore, is not available to the defendant on this appeal. Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). See also Clark v. State, 363 So.2d 331 (Fla.1978) and Engel v. State, 353 So.2d 593 (Fla. 3d DCA 1977).

The appellant also seeks correction of the judgment and sentence to reflect that he did not enter a plea of guilty but was tried by jury, and the state agrees to this.

Finally, the appellant contends that Special Condition 11 of a probationary provision of his sentence is invalid insofar as it authorizes any law enforcement officer at any time to search his person, vehicle or premises, which is contrary to Grubbs v. State, 373 So.2d 905 (Fla.1979). We agree, and reverse this portion of the sentence.

Accordingly, we affirm the judgment and sentence entered by the trial court, with the exception of the incorrect reference to a plea therein and the aforesaid invalid probationary provision, and remand the cause to the trial court for correction of said judgment and sentence in accordance with this opinion. The defendant need not be present.

FRANK D. UPCHURCH, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . See Eutsey v. State, 383 So.2d 219 (Fla.1980).

      . Section 775.084(3)(d), Florida Statutes (1977), reads: “Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.”


text:
    Phyllis A. MALYN, Appellant, v. ATLANTIC FEDERAL SAVINGS & LOAN ASSOCIATION/FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellees.
    No. TT-339.
    District Court of Appear of Florida, First District.
    June 19, 1980.

      Richard A. Kupfer, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Joseph Niemoeller, of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Miami, for appellees.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

This is an appeal from an order of the deputy commissioner denying appellant workers’ compensation benefits. This order was rendered on December 21, 1979, and mailed to the parties the same day. Since the thirtieth day fell on January 20,1980, a Sunday, the time for filing the notice of appeal was extended to January 21, 1980. The notice was filed in this Court on January 21,1980; however, it was not filed with the deputy commissioner until the following day, January 22, 1980.

It is apparent from the above chronology that the notice of appeal filed with this Court was timely, but the notice filed with the deputy commissioner was untimely. The question thus presented by these facts is whether the failure to timely file a notice of appeal from a workers’ compensation order with a deputy commissioner deprives this Court of appellate jurisdiction where the notice was filed in timely fashion with this Court.

Appellant maintains that the rationale underlying Hines v. Lykes Pasco Packing, 374 So.2d 1132 (Fla. 2d DCA 1979) and Franchi v. Florida Department of Commerce, 375 So.2d 1154 (Fla. 4th DCA 1979) answers the above question in the affirmative. We disagree.

In the above cited cases the Second and Fourth District Courts of Appeal, respectively, held that, in administrative appeals, the notice of appeal is timely if it reaches the appellate court within thirty days, even though it is not filed with the agency within thirty days. These administrative appeals were governed by the particular provisions of Florida Rules of Appellate Procedure 9.110(b) and (c), which provide for filing the notice both with the appellate court and the agency. Further, in Hines, supra, the Second District Court of Appeal specifically observed:

The ambiguity inherent in the new rules requiring a notice to be filed in two places but not specifying which is jurisdictional may have created a procedural and technical pitfall. Id., at 1133.

The instant case, however, is not subject to the provisions of Florida Rules of Appellate Procedure 9.110(b) and (c). Instead, it is governed by Workers’ Compensation Rule of Procedure 16(a), which provides:

(a) Notice of Appeal. Notice of appeal of an order of a Deputy shall be filed with any Deputy within 30 days of the date copies of the Deputy’s orders were mailed to the parties. Appellant shall file the original and one copy of the notice, accompanied by a $50.00 filing fee, by check or money order, payable to the Clerk of the District Court. Jurisdiction' of the District Court is invoked as of the date of filing of the notice of appeal with any Deputy. (Emphasis supplied.)

This rule does not provide for dual filing, as do Florida Rules of Appellate Procedure 9.110(b) and (c). Further, it is not in the least ambiguous, for it expressly defines this Court’s jurisdiction as “the date of filing the notice of appeal with any Deputy.” Thus, the rationale underlying Hines, supra, and Franchi, supra, is inapposite to the instant appeal.

Rather, we think that the instant matter is controlled by State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d 129 (Fla.1958), in which the Florida Supreme Court held:

[T]he timely filing of a notice of appeal at the place required by the rules is essential to confer jurisdiction on the appellate court. Id., at 130.

See also: Lampkin-Asam v. District Court of Appeal, 364 So.2d 469 (Fla.1978).

Accordingly, since the notice of appeal in this cause was not timely filed in the place specified in Workers’ Compensation Rule of Procedure, this Court is without jurisdiction to entertain this appeal.

The Motion to Dismiss Appeal is hereby granted.

McCORD, BOOTH and SHAW, JJ., concur.


author: McCORD, Judge.

text:
    Michael L. EVANS, Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, a corporation, Appellee.
    No. NN-326.
    District Court of Appeal of Florida, First District.
    June 23, 1980.

      James L. Tomlinson, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellant.
    Milton H. Baxley, II, Gainesville, for ap-pellee.
   McCORD, Judge.

This appeal is from two final judgments, the first granting summary final judgment in favor of appellant/plaintiff Michael L. Evans on Count I of the Amended Complaint and the second granting summary final judgment in favor of appellee/defend-ant Florida Farm Bureau Casualty Insurance Company on Count II of the Second Amended Complaint. We reverse as to both judgments.

In January, 1975, appellant Evans entered into an insurance contract with appel-lee Farm Bureau covering his pickup truck. The policy included the following coverages: uninsured motorist endorsement of $25,-000 for each person; medical payments $2,000 each person; and personal injury protection benefits (PIP). Subsequently, appellant Evans while operating the pickup was hit from the rear by one Margaret Glenn who was insured by Government Employees Insurance Company (GEICO). It is undisputed that the accident was Glenn’s fault and that appellant Evans has suffered permanent injuries as a result of the accident. Glenn was insured by GEICO to the extent of $10,000/20,000 for bodily injury liability. Appellant’s injuries undisputedly exceeded that amount and he filed suit against Glenn and GEICO.

Farm Bureau paid appellant $5,000 PIP benefits and $783 under the medical payments coverage of its policy. Glenn and GEICO offered to settle with appellant for the $10,000 policy limits of Glenn's insurance with GEICO. In December, 1976, appellant informed appellee Farm Bureau of Glenn and GEICO’s offer and informed Farm Bureau that he would make claim against Farm Bureau under the uninsured/underinsured motorist coverage of its policy. Prior to January 4, 1977, appellant received notice from appellee that in settling with GEICO and Glenn, he must protect appellee’s subrogation rights against Glenn. Unable to meet that restriction, on February 11, 1977, appellant requested ap-pellee to authorize him to settle his civil action against GEICO and Glenn for the $10,000 policy limits offered or permit him to proceed to judgment against Glenn and GEICO. Appellant’s policy provided that he obtain the written consent of Farm Bureau to make any settlement with or to prosecute to judgment any action against a tortfeasor. Appellee did not respond to appellant’s request and there is evidence in the record that claims adjusters of appellee indicated to appellant that his claim would not be settled by appellee for years. Appellant contends that appellee’s actions were designed to force him to settle with GEICO and Glenn without appellee’s consent and thereby forfeit his right to recover under the uninsured motorist provisions of his policy with appellee.

On March 1,1977, appellant filed the suit here on appeal against appellee. Amended Count I sought underinsured motorist benefits under his policy with appellee and sought damages for appellee’s alleged unreasonable withholding of its written consent to settlement or consent to his proceeding to judgment against Glenn and GEICO. In Count II of the second amended complaint, appellant alleged that Farm Bureau did not exercise reasonable diligence or ordinary care toward appellant in that it maliciously attempted to manipulate appellant to perfect a settlement with Glenn and GEICO without its consent so that appellant would forfeit his right to recover under his uninsured motorist coverage with appel-lee. Appellant sought damages under Count II for tortious breach of contract and punitive damages.

Appellant correctly contends that his amended Count I incorporated two claims in the one count, one for the uninsured motorist benefits and the other for damages for breach of its insurance contract by withholding its consent to appellant to settle with Glenn and GEICO or by withholding its consent to appellant to continue the suit against Glenn and GEICO to final judgment thereby causing him to lose GEICO’s $10,000 coverage of Glenn. The second claim of amended Count I was not addressed and apparently was not considered by the trial court in its summary final judgment as to Count I. Appellee Farm Bureau contends that the second claim of Count I should not be considered because Florida Rule of Civil Procedure 1.110(f) requires a plaintiff to state separate causes of action in separate counts. Appellee, however, having failed to object at the pleading stage when the rule violation could be corrected, cannot now be heard to contend that appellant’s two claims under the first count cannot be considered. Cf. Plowden & Roberts, Inc. v. Conway, 192 So.2d 528 (Fla. 4 DCA 1966), and Arcade Steam Laundry v. Bass, 159 So.2d 915 (Fla. 2 DCA 1964).

We find that appellant’s second claim contained in amended Count I states a cause of action for breach of contract. Considering the evidence which was before the trial court at the time of summary judgment in the light most favorable to appellant, we find there was evidence which would lend some support to appellant’s contention that appellee withheld its written consent to him to either settle the claim with GEICO and Glenn or proceed to judgment against them for the purpose of maneuvering appellant into a position to either forfeit his underinsured claim against ap-pellee or his claim against Glenn and GEI-CO. There are material factual issues as to this second claim contained in amended Count I and it was therefore error to grant summary judgment as to Count I.

Count II is in large part a duplication of the second claim of Count I but it seeks damages for tortious breach of contract and punitive damages. Appellee contends that the evidence on motion for summary judgment does not support the claim and also that the action is precluded by this Court’s opinion in Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973); cert. discharged 317 So.2d 725 (Fla. 1975). We find as to this count, as we did with the second claim of Count I that there is some support in the evidence for appellant’s allegations; that there are material issues of fact which preclude summary judgment. There was a duty upon the insurer to act reasonably with its insured. The record at this point does not indicate that appellee made an effort to determine whether or not Glenn was judgment proof — whether a judgment against her in excess of her $10,000 insurance coverage could be satisfied. Also, if appellee had been concerned that appellant in continuing to judgment against Glenn and GEICO would not adequately represent its interest, it would appear that it could have joined appellant in that suit to protect its interest. In addition, we have the circumstance that appellee did not give its written consent to settlement in that it agreed to settlement only if Glenn were not released and appel-lee did not agree in writing to appellant’s continuation of its suit against Glenn and GEICO to judgment (although it does appear that appellant did not wait very long after the formal inquiry before filing suit). The circumstances relating to all of this present a fact question as to whether or not the actions of appellee were reasonable as to the second claim of Count I or under Count II were a malicious attempt to manipulate appellant to perfect a settlement with Glenn and GEICO so that appellant would forfeit his right to recover under his uninsured motorist coverage with appellee.

Baxter v. Royal Indemnity, supra, is distinguishable from this case. There the insureds claimed punitive damages for their insurers alleged malicious and willful refusal to settle an uninsured motorist claim. A provision in that policy provided for arbitration if the parties failed to agree to settle an uninsured motorist claim. In holding that the insurer had no duty to settle that claim, this Court said:

Because the interests of the insurer are wholly adverse to those of its insured as to every facet of a claim under the uninsured motorist provision of the policy, no basis for a fiduciary relationship between the parties exists.
* # # # # #
The legal relationship existing between the insured and his insurer on claims for collision damages or damages caused by uninsured motorists is that of debtor and creditor in which no fiduciary relationship is present. Baxter v. Royal Indemnity Company, supra, at 656, 657.

The case sub judice is not predicated upon a refusal of Farm Bureau to settle appellant’s uninsured motorist claim against it. The rationale for the decision in Baxter is not applicable to appellee’s alleged refusal here to consent to settlement of appellant’s claim against the tortfeasor and the tortfeasor’s insurer or to consent to appellant’s continuation of that action to final judgment. Here, appellee had a duty to appellant to act reasonably with its policy holder. It would have had no such duty in relation to settlement with its insurer of a claim for uninsured motorist benefits. In a similar situation, in Levy v. American Automobile Insurance Company, 31 Ill.App.2d 157, 175 N.E.2d 607 (1961), the court said:

“In the case at bar, the condition of the company’s promise to pay is the ascertainment of the legal liability of the third party. The company can prevent this determination by the simple device of refusing to grant the insured its written consent to prosecute the action to judgment. There was an implied promise on the part of the Insurance Company that it would not reasonably or arbitrarily withhold its written consent. The company gave no reason for its refusal to allow the plaintiffs to obtain a judgment against the uninsured motorist. It appeared that the company wanted the matter arbitrated and that if the insured refused to submit to arbitration, it would prevent a determination of its liability on the policy. Under these circumstances, the action of the company in arbitrarily withholding its written consent constitutes a violation of the implied provisions of the policy . . . ”

In addition, the court of appeals of Missouri in Kisling v. MFA Mutual Insurance Company, 399 S.W.2d 245, 251 (Mo.App.1966), found a similar consent clause regarding requests to settle valid but pronounced the following caveat:

We hasten to add the caveat that the foregoing should not be misinterpreted as an expression of opinion that the settlement prohibition accords to an insurer the untrammeled, uninhibited and unlimited right to reject or ignore an insured’s request for written consent to a proposed settlement with a ‘person or organization who may be legally liable’ for bodily injury to the insured. On the contrary, we think that the propriety of the insurer’s action in response to any such request should be, when appropriately and properly put in issue, subject to judicial scrutiny and measurement under the rule of reason, i. e., subject to determination as to whether the insurer’s conduct with respect to any such request is, under all of the facts and circumstances of that particular situation, arbitrary or unreasonable.

Appellant also contends that the trial court erred in entering summary final judgment in his favor on the first claim of Count I (the underinsured motorist claim) in that it awarded appellee a set-off of $5,000 from appellant’s underinsured motorist benefits for personal injury protection benefits appellee had paid to or in appellant’s behalf. We disagree. This question was decided by our opinion on a previous petition for writ of certiorari filed by appellant from the trial court’s order allowing such set-off. Evans v. Florida Farm Bureau Casualty Insurance Company, 355 So.2d 149 (Fla. 1st DCA 1978). We adhere to that ruling.

The points raised by appellee on its cross-appeal against appellant relate to whether or not the trial court erred in its assessment of costs and attorney’s fees against appel-lee. In view of our reversal here of the summary final judgments, we must also reverse the points raised in the cross-appeal without considering them on their merits. A new cost judgment will be necessary following a new final judgment in the case.

REVERSED and REMANDED.

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