author: DANIEL S. PEARSON, Judge.

text:
    Larry POSTELL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1901.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 3, 1981.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The armed robbery with which Postell was charged and convicted occurred late at night in a dark alley when five black males attacked Alfredo Fernandez and Carlos Lopez.

The criminal episode lasted approximately five minutes. It began when one man approached Lopez’s stopped car, pointed a gun at his head and ordered him to pull the car into an adjacent dark alley. In the alley, four more men descended on the vehicle. One pulled Lopez from the driver’s seat. When Fernandez turned toward the passenger window, a rock was thrown, hitting him in the head and shoulder area and causing him severe pain. Fernandez was pulled from the vehicle, and he and Lopez were attacked by the five men. Lopez’s car, watch and $30.00 were taken, and Lopez and Fernandez were ordered to walk away. According to both victims, two of the robbers left in one vehicle and three in the other.

At trial, Fernandez identified Postell as the person who threw the rock. Lopez was unable to identify Postell as one of the perpetrators. Fernandez acknowledged that he had never seen Postell before, that Postell never spoke to him, and that during the affray his attention was primarily focused on another man holding a gun. He admitted he had difficulty in identifying blacks, and he had variously described the person who threw the rock as short and tall. No physical evidence linked Postell to the crime, and Postell made no statement admitting his complicity. In sum, the State’s case against Postell depended solely on the believability of Fernandez’s suspect testimony.

To fortify the case against Postell, the prosecutor sought to elicit through the testimony of a police officer, Seymen, the out-of-court declarations of an unidentified woman. According to the State’s proffer, the mystery woman’s statements would reveal her to have been an eyewitness to the crime who identified Postell as one of the perpetrators. The trial court correctly recognized that the woman’s statements were egregious hearsay. It determined, however, that the hearsay rule would not be offended nor the right of confrontation implicated by the admission of all but the woman’s words. We find that determination to be error and reverse and remand for a new trial.

The prominent role this mystery woman would play in the trial of the case was heralded in the prosecutor’s opening statement:

“Another officer, Officer Eric Seymen, arrived on the scene. He had been dispatched by a report that came into Public Safety of the robbery, a witness who had seen some activity at the time, and based upon a conversation he had with the citizen in the area, an investigation insued [sic] resulting in the arrest of Larry Pos-tell.
“That is the reason he is here before you today, and that is the reason why he is charged with armed robbery.”

Officer Seymen, testified he went to the scene of the crime. Over repeated, but overruled, defense objections, he was permitted to go on:

“Q What did you find there?
“A I had a conversation in that area with a particular person.
“Q Was this a male or female?
“A It was a female.
“Q Approximately how long did you converse with this individual?
“THE COURT: How long did you speak to her?
“A Between five and ten minutes.
“Q Officer, how far is this particular location from where you confronted this woman from the scene of the alleged robbery in this case?
“A Within fifteen to twenty yards.
“Q Fifteen to twenty yards?
“A Yes, ma’am.
“Q Did this conversation with this woman take place at approximately the same time that the robbery was being investigated?
“A Yes, it did.
“Q Were you able to determine approximately how long after the robbery this conversation took place?
“A Within minutes.
“Q Based upon your tentative conversation with this woman, what action, if any, did you take?
“A I met with Officers Areu and Laughlin and we responded to the area which was also in the vicinity of the 2100 Block and 75th Street.
“A If my memory serves me correctly, we responded at 21 Northwest 74th Street.
“Q Who lives there?
“A The defendant.
“Q What did you find there?
“A The defendant.
“Q Where was he located?
“A Inside the residence.
“Q Based upon any conversation you may have had with individuals at the scene, including but not limited to Carlos Lopez and Alfredo Fernandez, did you take any further action with respect to this defendant?
“A I handcuffed him.”

Laughlin and Areu, the other arresting officers, testified that they abandoned their on-scene investigation and went to seek out Postell after talking to Seymen. Apparently still not satisfied that the picture was clear enough, the prosecutor elicited from Fernandez:

“Q [The Prosecutor]: What happened then?
“A Well, then I think a lady came up to a police car and told them—
“[Defense Counsel]: Objection.
“THE COURT: Sustained.
“Sir, do not say what you heard the lady say to the police officer or the policeman say in response.
“Q Mr. Fernandez, directing your attention to the time of that conversation with this woman but not to the actual conversation itself, after this conversation took place between the police officers and this woman, what, if anything happened?
“A They went to his [the defendant’s] apartment.”

Finally, the prosecutor administered the coup de grace when she argued to the jury:

“[The Prosecutor]: In the process of returning these two individuals to the scene of this robbery, they confronted another officer, Officer Seymen, and Officer Sey-men testified, you will recall, that he had a conversation with a woman within yards of the site of that robbery, that the conversation lasted some- ten minutes right at that scene; that as a result of that direct conversation with that woman, the officers were instructed to respond to the home of this defendant, Larry Postell.
“[Sidebar on defendant’s mistrial motion omitted]
“[The Prosecutor]: Once again ladies and gentlemen, at the conclusion of this conversation between Officer Seymen and this woman, the officers responded to the home of the defendant.
“Now, ladies and gentlemen, consider what a coincidence it would be to come upon a scene of a robbery within two to three blocks of this defendant’s home, within thirty minutes of the robbery, go to the location and find an individual who exactly fits the description given to the police officers before he was ever a suspect by name.
“Let us determine what, in fact, the police did arrest this defendant on.
“Consider the testimony that the two victims of the robbery gave to them, including the description, considerable conversation that was had between a woman and one of the police officers within yards of the scene of the robbery.
“[Defense Counsel]: I am going to object and move for a mistrial on the same grounds as before.
“THE COURT: Denied.”

We reject the trial court’s wooden application of the hearsay rule and the confrontation clause of the Sixth Amendment. We hold that where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated. In so holding, we announce no novel rule.

In Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193 (1972), as in the present case, the critical issue was identification of the defendant. The identification of the defendant was shown by “two tentative identifications,” “one dubious positive identification,” and “one vigorously challenged positive identification,” including “a questionable lineup procedure.” To bolster its case, the State called a police officer who testified that he arrested Favre for armed robbery based on information he received from two reliable informants. The informants did not testify, and their statements to the officer were not repeated. The court held that this testimony violated the defendant’s right of confrontation :

“Whether offered by the prosecution to establish identification, guilt, or both, the testimony, when considered in light of its logical inferences, is hearsay. ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ McCormick, Evidence 460 (1954). See generally id. pp. 455-712; Wigmore on Evidence §§ 1361-1769 (1940); Wharton, Criminal Evidence pp. 569-765 (1955). Although the officer never testified to the exact statements made to him by the informers, the nature of the statements as discussed above, was readily inferred. The statements were offered to establish the truth of the matters asserted therein — identification, guilt or both. The truth of the assertions depended upon the credibility of the informers who were not identified, not present in Court, and not subject to cross-examination.” Favre v. Henderson, supra, at 362.

In State v. Bankston, 63 N.J. 263, 307 A.2d 65 (1973), the critical issue was whether the defendant possessed the contraband that was found by the police on a tavern counter top near where Bankston had been seated. The State elicited testimony from the police that shortly before arresting Bankston, based upon information received from an informer, they went to the tavern looking for an individual in possession of narcotics, and found an individual who fit the description the police had been given. Affirming the Appellate Division’s reversal of Bankston’s conviction, the New Jersey Supreme Court said:

“Although in the present case the police officers never specifically repeated what the informer had told them, the inescapable inference from Genzone’s testimony was that the informer had given information that defendant would have narcotics in his possession. Thus the jury was led to believe that an unidentified informer, who was not present in court and not subjected to cross-examination, had told the officers that defendant was committing a crime. The testimony was clearly hearsay.
“The State also claims that the inference which the Appellate Division concluded could be drawn from Genzone’s testimony is always possible even when a police officer simply testifies that he went to a certain place ‘based on information received.’ However, we are not concerned with mere possible inferences. When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused’s guilt, the testimony should be disallowed as hearsay.
“In the instant case there was no need for any reference to an informer or to explain that the police were looking for a person described by the clothing he was wearing. There was no allegation that the police were acting arbitrarily. Testimony that they had gone to the tavern ‘based upon information received’ would have been sufficient to explain their actions.” State v. Bankston, supra, 63 N.J. 263, 307 A.2d at 69.

In State v. Chernick, 278 S.W.2d 741 (Mo. 1955), again the critical issue was identification of the defendant. Over the defendant’s objection, the prosecutor elicited that the Circuit Attorney issued an order for the defendant’s arrest after having spoken to one Scholl, ultimately Chernick’s co-defendant. Scholl did not testify. The court reversed Chernick’s conviction for assault with intent to commit murder, stating:

“The conduct, in itself, of the Circuit Attorney in putting out an immediate arrest order was not material or relevant to any issue of the case, so the fact that Scholl made a statement was not admissible in tending to explain the conduct of the Circuit Attorney. The testimony tending to show the facts that Scholl had made a statement and that the Circuit Attorney immediately put out an arrest order was utilized by State’s counsel, over defendant’s objection, to show inferentially or circumstantially that Scholl had implicated defendant as a participant in the furtherance of the robbery. The broad inference supported by these facts, and urged and driven home in argument was quite as prejudicial, if not more so, as would have been whatever it was Scholl actually said.... It would seem clear that the same considerations which would have invoked the rule excluding the actual assertions of Scholl would forbid that any inference against defendant should be drawn from the conduct of the Circuit Attorney actuated by what Scholl said. We hold the trial court’s action in overruling the objection was prejudicially erroneous.
“The essential principle of the hearsay rule is that for the purpose of securing trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to made in court, subject to cross-examination.” State v. Chernick, supra, 278 S.W.2d at 747-48.

In State v. Jones, 583 S.W.2d 561 (Mo. App.1979), the investigating detective testified, over the defendant’s objection, that after speaking to Wiley, a person who had been identified as a perpetrator of the robbery, he sought to procure the arrest of the defendant Jones. Finding the admission of this testimony grounds for reversal, the court said:

“Clearly it would have been inadmissible, as hearsay, for the state to produce direct evidence that Ed Wiley had ‘fingered’ defendant as the robber. Had the state produced Wiley he would have to testify under oath and be subjected to cross examination. The state avoided this by having detective Young testify that after talking with Ed Wiley he immediately put out an arrest order for the defendant. The implication is clear that Ed Wiley had told Detective Young that defendant was the robber. Defendant was thereby deprived of his right to sworn testimony and the right to confrontation and cross examination.” State v. Jones, supra, 583 S.W.2d at 563.

The effect of our holding is to make it impermissible for the State to reap the benefits of the mystery woman’s declarations. That is as it should be. Our system demands that the finder of fact determine the believability of any witness and the weight to be given that witness’s testimony. That simply cannot be done when the jury is deprived of all opportunity to consider the demeanor of the witness; when the memory, intelligence, and candor of the witness is free from testing; when the bias or interest of the witness cannot be probed; when the witness’s opportunity and ability to observe is insulated from questioning; and when, indeed, the witness’s identity is totally concealed so as to make her totally unimpeachable. In short, the insidious diminution of the precious rights of confrontation and cross-examination, through some literal application of the rule against hearsay, cannot be tolerated.

We add only that in a case such as this, which exemplifies the judicially recognized hazard of brief eyewitness identification of strangers made under stress, see, e. g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Banks v. State, 380 So.2d 1312 (Fla. 3d DCA 1980) (Hubbart, J., dissenting); Jackson v. Fogg, 589 F.2d 108 (2d Cir. 1978); United States v. Russell, 532 F.2d 1063 (6th Cir. 1976), we must conclude that the error of admitting the hearsay substantially affected Postell’s rights to a fair trial.

Reversed and remanded.

      .In addition to the brevity of Fernandez’s observation of Postell, the lighting conditions, the stressful circumstances under which the identification was made, and other recited factors, we note that shortly after Postell’s arrest, Fernandez was taken to Postell’s home where he identified Postell in a one-man showup.

      . The record is silent as to why the mystery woman was not called as a witness at trial.

      . Postell’s counsel protested that the damage would be the same, and the trial court acknowledged that prejudice would plainly accrue.

      . We base our holding on the testimony elicited. The mystery woman was portrayed as a “witness who had seen some activity at the time.” She was repeatedly portrayed as conversing with the officer “within minutes” of the robbery and “within fifteen to twenty yards” of the scene of the crime. The picture was clear — she had told the officer that she had seen the crime and seen Postell commit it. The fact that the prosecutor’s argument urged the jury to draw this very inference merely exacerbates the problem.

      . Florida courts have consistently condemned testimony which recounts the actual statement made by the out-of-court declarant implicating the accused. See, e. g., Collins v. State, 65 So.2d 61 (Fla.1953); Kirby v. State, 44 Fla. 81, 32 So. 836 (1902). That condemnation necessarily reaches testimony where the actual statement, although unexpressed, is implicit in the testimony.

      .The testimony in Favre, set out fully in the opinion, is remarkably like the testimony in the present case. The officer testified that he was investigating a robbery; that in the course of his investigation, he came into possession of information from confidential informants; that he thereafter was seeking to arrest Favre. The prosecutor studiously avoided eliciting from the officer what was said by the informants, and the trial court just as studiously overruled the defendant’s objections.

      . Although it does not appear that Postell objected to the testimony on the grounds of relevancy, we are compelled to point out that the arrest of the defendant is not an element of the crime to be proved, and proof concerning the fact that it occurred, the circumstances of it, and the reasons for it is ordinarily irrelevant. We recognize that it could be argued that the time and place of Postell’s arrest, for example, would tend to disprove any contention that Postell was in Philadelphia within an hour of the crime. However, in the present case, Pos-tell’s defense was that he was at home in Miami. See State v. Bankston, supra; People v. Wilkins, 408 Mich. 69, 288 N.W.2d 583 (1980).

      . That the absent “witness” happens to be a co-defendant who does not testify at trial is inconsequential. See also State v. Niesbbalski, 82 N.J.L. 177, 83 A. 179 (1912) (testimony that defendant was arrested upon information received from two co-defendants violated defendant’s right to confrontation where necessary inference was that co-defendants had implicated defendant); State v. Johnson, 538 S.W.2d 73 (Mo.App.1976) (testimony that immediately after speaking to co-defendant, officer arrested defendant, “just as much hearsay and objectionable as the implicating statement itself would have been,” deprived defendant of right of confrontation).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John BLACKWELDER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1975.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Bennett H. Brummer, Public Defender, and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Dorfman v. State, 351 So.2d 954 (Fla.1977). Strachen v. State, 380 So.2d 487 (Fla.3d DCA 1980).


text:
    Wendy C. MILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2255.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 3, 1981.
    Long & Smith, Miami, for appellant.
    Janet Reno, State Atty., and Eric William Hendon, Asst. State Atty., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Fauls v. Sheriff of Leon County, 394 So.2d 117 (Fla.1981); Hudson v. State, 388 So.2d 577 (Fla.3d DCA 1980).


author: BARKDULL, Judge. NESBITT, Judge

text:
    The STATE of Florida, Appellant, v. Alan Max JACOBSON, Appellee.
    No. 80-234.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 3, 1981.

      Janet Reno, State Atty. and Theda R. James, Asst. State Atty., for appellant.
    Snowden, Kornreieh, Reichenthal & Mid-gall and Charles H. Snowden, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   BARKDULL, Judge.

The state brings this appeal from an order of the Dade County Circuit Court, which granted a motion to suppress in favor of the movant, defendant Alan Jacobson.

This is a typical Miami International Airport drug courier profile case, in which Officers Johnson and Pearson of the Dade County Public Safety Department Airport Narcotics Detail, while in plainclothes, observed defendant Jacobson and his companion (one Baker) at 12:45 P.M. on July 31, 1979, at the National Airlines Ticket counter. Defendant Jacobson and Baker were inquiring at the ticket counter about a National flight to Los Angeles, a known “narcotics source” city. Because the defendants appeared “obviously nervous and hurried”, were carrying very little luggage for a trip to the west coast, had arrived late at the airport (missing a scheduled flight), and had approached the National Airlines ticket counter holding a Western Airlines ticket, Officers Johnson and Pearson determined, from their long experience in such narcotics matters, to approach the defendants. Officer Johnson approached Baker and Officer Pearson approached defendant Jacobson. Officer Pearson identified himself to Jacobson, who agreed to talk with the officer, agreed to show the officer his airline ticket (a one-way ticket from Miami to Los Ange-les) and his driver’s license, and acknowledged that he was from Florida although he responded to the other police officer (Johnson) that he was from Los Angeles. Jacobson also agreed to allow the officers to search his tote bag which Officer Pearson did, finding nothing, but looking up to notice “the look of sheer fright” on Jacobson’s face. As he saw Officer Johnson handcuffing defendant Baker, Jacobson then proceeded to run out of the terminal; he was pursued and eventually overtaken by Pearson and two uniformed officers who arrested Jacobson and returned him to the terminal. At the terminal, nothing further was found in the tote bag, but a pat-down of Jacobson revealed clear plastic bags (later determined to contain cocaine) attached to his legs.

At the hearing on the motion to suppress the evidence seized, the trial court determined that the initial stop was illegal and that, based on the totality of the circumstances, there was no voluntary consent. He therefore entered an order granting the defendants’ motion to suppress. The State has brought this appeal from the order. We reverse.

Assuming that there was a primary illegality, the evidence with regard to the present seizure shows that it was not effectuated through an exploitation of the illegality, but, rather, by means sufficiently distinguishable to be purged of the primary taint. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), it was determined that the exclusionary rule would have no application when “. . . the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint”. The question of attenuation depends upon the particular facts of each case. In Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), the doctrine of “attenuation” was established, recognizing the challenged evidence might some time be admissible even if it did not have an “independent source”. In the present case there is no showing of any evidence being produced as a result of the initial stop and subsequent search. It is again noted that the defendant’s flight was not prompted by the illegal stop, but by observing Officer Johnson placing handcuffs on his companion, Baker. The defendant’s attempt to flee created a clear break in the causal chain of events, thereby rendering as immaterial the temporal proximity of the initial illegality to the subsequent seizure. The mere existence of a prior fruitless unlawful search does not taint a subsequent lawful one. See: United States v. Haddad, 558 F.2d 968 (9th Cir. 1977).

Therefore, agreeing that the stop initially was illegal, we reverse finding a break in the causal chain of events, as above set forth, and that the subsequent apprehension (after the defendant attempted to flee) and the contraband recovered as the result of a search incident thereto to be validly obtained.

The order of suppression be and the same is hereby reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded with directions.

NESBITT, Judge

(dissenting):

The majority assumes, as the parties before us do, that there was probable cause for the officer to arrest the defendant. There was not. Here, the officer’s contact with the defendant may be characterized as a cooperative encounter. The defendant was free to terminate that cooperation at any time, as he did by his swift departure from the terminal. The drug courier profile features and the defendant’s flight were too ambiguous to warrant a man of reasonable caution to believe that an offense had occurred or was being committed by the defendant. For this reason, I dissent.


text:
    Henry Lee PAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-475.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 3, 1981.
    Bennett H. Brummer, Public Defender, and Michael A. Rosen, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We reverse appellant’s first degree murder conviction on the ground that the defense’s proffered jury instruction concerning the privilege of non-retreat in the home should have been given because the doctrine applies to premises surrounding the home, Pell v. State, 97 Fla. 650, 122 So. 110 (1929); Danford v. State, 53 Fla. 4, 43 So. 593 (1907); Redondo v. State, 380 So.2d 1107 (Fla. 3d DCA), cert. denied, 388 So.2d 1118 (Fla.1980), and to co-occupants as well as intruders, Hedges v. State, 172 So.2d 824 (Fla.1965); State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980).

The trial court’s dismissal of the second and third counts of the indictment, display of a firearm while committing of felony, and unlawful possession of a firearm by a convicted felon, is also reversed upon the authority of State v. Thompson, 390 So.2d 715 (Fla.1980), holding that the state is not required to prove the lack of an exemption as an element of the offense.

Reversed and remanded for new trial.


author: FERGUSON, Judge.

text:
    TEN ASSOCIATES, a General Partnership and Jerry A. Gross, Stanley Cohen, Monroe Dixon, General Salvador Felices, Howard P. Gross, Muriel Hattenbach, Laurans A. Mendelson, Dennis Richard, George Richards and Gene Strews, Appellants, v. Mildred McCUTCHEN, Appellee.
    No. 80-745.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 10, 1981.

      Pyszka, Kessler & Adams, Greene & Cooper and Joan M. Bolotin, Miami, for appellants.
    Goldstein Professional Ass’n, and Caron Balkany Goldstein, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

On September 13, 1977, an intruder entered through a window and raped appellee Mildred McCutchen in her apartment. McCutchen sued the landlord, Ten Associates, for failure to provide adequate security and failure to warn her of the risk of intrusion through a window. A jury found that negligence of Ten Associates was the sole legal cause of injury to McCutchen and awarded her $76,000.00 damages. Ten Associates appeals from that verdict. We affirm.

The apartment is part of the West Club Apartments, a five-building, four-story complex located in a high-crime area in northwest Miami. Ten Associates advertised and provided twenty-four hour security service. McCutchen considered leasing the apartments because she was concerned about security and testified that she relied on the advertisement for twenty-four hour guards when she signed her lease. McCutchen also testified that prior to signing the lease she had asked the manager if the apartment was safe and he had responded, yes, that they had security guards.

Ten Associates employed four resident guards who sometimes worked twelve-hour shifts. Management had discussed various methods of security. There was a policy of keeping two guards on at night in overlapping shifts although frequently only one guard was on duty. Three of four entrances were sealed and a guard house built at the remaining entrance. A guard was put at the front gate to check people coming in and out, but that method of security was abandoned as useless. Management acknowledged a problem in getting good security guards. At times the guards were in their apartments when they were supposed to be on duty. The guard who was on duty the night of the incident had been reprimanded twice for poor performance. No security guard responded when another tenant screamed for help for McCutchen. When the police arrived twenty minutes later, however, they found a guard on duty.

There had been numerous complaints to management about the security and that the guards were never around or did not respond to calls for help. Management knew that there had been substantial criminal activity within the year prior to the attack on McCutchen including at least one rape and an attempted rape committed after the intruder came through the apartment window. At trial, evidence was introduced of fifteen police reports of break-ins at the apartment complex committed during the two-month period prior to the rape of McCutchen. Eleven of the break-ins were committed through the window.

A landlord is not an insurer of his tenants and generally has no duty to protect his tenants against criminal activity. There is, however, a growing recognition in Florida that a landlord’s duty of reasonable care may include the duty to protect a tenant from the results of reasonably foreseeable criminal conduct. Whelan v. Daco ma Enterprise, Inc., 394 So.2d 506 (Fla. 5th DCA 1981); Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980).

On the facts in this case, the landlord clearly recognized and assumed the duty to protect his tenants from foreseeable criminal conduct. Ten Associates admits knowledge of prior criminal activity including attempted rape, hired security guards, and advertised twenty-four hour guard service. The issue here is whether Ten Associates was negligent in performing that duty so as to be the proximate cause of McCutchen’s injuries.

We are sensitive to the claim of Ten Associates that it did everything reasonable to prevent criminal intrusion. Decisions in other jurisdictions illustrate the dilemma. A court may be sympathetic to the plight of a tenant who has relatively little control of his premises. The same court, however, may hesitate to place on the landlord the burden of installing security measures when it is uncertain what measures will deter crime and when the expense of such measures will ultimately fall on the tenant. In Goldberg v. Housing Authority, 38 N.J. 578, 186 A.2d 291 (1962) the court, noting the prevalence of crime in today’s society, stated:

The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of risk and the public interest in the proposed solution.

In 7735 Hollywood Boulevard Venture v. Superior Court of Los Angeles County, 115 Cal.App.3d 411, 171 Cal.Rptr. 317 (App. 1981), the court stated:

It is an easy matter to know whether a stairway is defective and what repairs would put it in order . .. but how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic? ... A proprietor of the premises is not the insurer of the safety of persons on the premises. His duty to control the acts of third persons is a duty of reasonable care to protect against known or reasonably foreseeable risk. He is not required to take precaution against attacks by third persons which he has no reason to anticipate.

Once a duty exists, however, the question of whether a landlord breached his duty to protect tenants against reasonably foreseeable criminal activity is properly a question for the jury. In Holley, supra, we stated: “Under our system, it is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty.” We also rejected the argument that a deliberate act of rape constituted an independent intervening cause which could insulate a landlord from liability. The question of negligence and proximate cause was properly submitted to the jury. See Dick v. Great South Bay Company, supra, Graham v. M. & J. Corp., supra, Loeser v. Nathan Hale Gardens, Inc., supra, Smith v. General Apartment Co., 133 Ga.App. 927, 213 S.E. 74 (1975).

We have reviewed the record and find evidence sufficient to support a jury verdict that the negligence of Ten Associates was the proximate cause of injuries to McCutchen. The foreseeability of the criminal activity is a decisive factor in determining causation as it is in determining duty. Graham, supra. Where the landlord knew or had constructive knowledge of a prior rape and attempted rape, and of numerous intrusions through apartment windows, a jury could reasonably determine under the circumstances of this case that the protective measures were inadequate and that such inadequacy contributed substantially to the entry and subsequent rape. We also find no error in the fact that as between McCutchen and Ten Associates, the jury found Ten Associates solely negligent.

We next consider Ten Associates’ argument that evidence taken from police reports of breaking and entering into the apartment complex was improperly admitted at trial. McCutchen was not permitted to introduce the certified copies of the police reports into evidence. Over the objection of defense counsel, McCutchen was, however, allowed to show the reports to Ruiz. Without identifying the incidents, Ruiz testified as to whether he remembered each incident. The Court subsequently required an in camera inspection of the police reports by defense counsel. Defense counsel stated:

“I really can’t — since I intend to do the same thing I can’t really object to putting in — that there were reports made.”

Counsel for McCutchen then read into evidence the type of incident, date, method of entry, and case number. On appeal, defense counsel claims that Ten Associates agreed to permit the reading of the list only because Ruiz had been permitted to testify if he remembered an incident and that Ten Associates “preferred having the specifics presented to the jury rather than let the jury ponder unrevealed implied horrors.”

Although there is normally no need to object repeatedly every time the court has ruled on an objection, LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978), cert. denied, 359 So.2d 1216 (Fla.1978), we hold that consent to introduction of the same evidence previously objected to acts as a waiver to that objection and results in this point not being properly preserved for our review. See, e. g., Dowd v. Star Manufacturing Co., 385 So.2d 179 (Fla. 3d DCA 1980).

Affirmed.

      . Other jurisdictions find a duty on the part of a landlord to protect tenants from foreseeable criminal activity based on either (a) warranty of habitability, see Flood v. Wisconsin Real Estate Investment Trust, Inc., 503 F.Supp. 1157 (D.Kan.1980); Villalobos v. University of Oregon, 47 Or.App. 103, 614 P.2d 107 (1980); Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980); or (b) implied or expressed contract and/or the traditional tort theory of negligence based on foreseeability, see Doyle v. Exxon Corp., 592 F.2d 44 (2d Cir. 1979); Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 (D.C.Cir.1970); Dick v. Great South Bay Co., 435 N.Y.S.2d 240 (N.Y.Civ.Ct.1981); Loeser v. Nathan Hale Gardens, 73 A.D.2d 187, 425 N.Y.S.2d 104 (S.Ct. App.Div.1980); Phillips v. Chicago Housing

        Authority, 91 Ill.App.3d 544, 47 Ill.Dec. 17, 414 N.E.2d 1133 (1980); Graham v. M. & J. Corp., 424 A.2d 103 (D.C.App.1980); Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (Ill.1979); O’Hara v. Western Seven Trees Corp. Intercoast, 75 Cal. App.3d 798, 142 Cal.Rptr. 487 (1977); Scott v. Watson, 278 M.D. 160, 359 A.2d 548 (1976); Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239 (1975); Stribling v. Chicago Housing Authority, 34 Ill.App.3d 551, 340 N.E.2d 47 (1975); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76 (1975). See also, Annot., 43 A.L.R.3d 331 (1972).

      .Because both the elements of foreseeability and implied or express contract are present in this case we do not decide whether in Florida foreseeability alone is a sufficient basis for finding the duty, or whether, in addition, a landlord must expressly or impliedly assume such a duty. See Whelan, Beranek, J., dissenting, supra, Holley, supra.

      .Ten Associates admits that criminal activity was foreseeable despite its precautions, but argues that it could not change the neighborhood.

      .The standard of “reasonably foreseeable” has been narrowly drawn by some courts in an attempt to limit the duty of the landlord. See 7735 Hollywood Boulevard Venture v. Superior Court of Los Angeles County, supra, distinguishing O’Hara v. Western Seven Trees Corp., supra; see, e. g. Highland Ins. Co. v. Gilday, 398 So.2d 834 (Fla. 4th DCA 1981); Relyea v. State, supra; Drake v. Sun Bank & Trust Co. of St. Petersburg, 377 So.2d 1013 (Fla. DCA 1979).

      . Holley, supra, 382 So.2d at 101.

      . Id.

      . See also note 4, supra, and cases cited.


author: NESBITT, Judge.

text:
    Evelyn M. FIORE, as Administratrix of the Estate of John Anthony Fiore, Deceased, Appellant, v. ROYAL PAINTING COMPANY, INC., and RCA Service Company, Appellees.
    No. 80-1186.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 3, 1981.

      Arthur Roth, Miami, for appellant.
    Marlow, Shofi, Orthmayer, Smith, Con-nell & Valerius and Claudia B. Greenberg, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The issue before us today one which was left open by Judge Brown in Probst v. Southern Stevedoring Company, 379 F.2d 763 (5th Cir. 1967). In that case, it was held that the Longshoremen’s and Harbor Workers’ Compensation Act (the Act) did not make the general contractor an employer for the purpose of common law liability. It was subsequently decided in Smith v. Chevron Oil Company, 517 F.2d 1154 (5th Cir. 1975) that the Act did not immunize or exclude general contractors from common law suits. In Probst, the unanswered question was stated as follows:

We leave open, however, as unnecessary to this decision the question of what ought to be done if the general contractor, or general employer, is actually required to pay compensation benefits to the injured employee of the subcontractor under Section 904.

379 F.2d at 767.

In this appeal, Royal Painting Company, appellee (Royal) was a subcontractor for RCA Service Company (RCA) on a project to erect a tower at a naval base on Andros Island in the Bahamas. Under its contract, Royal was required to provide proof of insurance coverage for Workmen’s Compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, Section 33 U.S. C.A. § 901 et seq., by virtue of the Defense Base Act, 42 U.S.C.A. § 1651 et seq. Prior to the accident which is the subject of this appeal, Royal’s insurance lapsed. RCA’s contract with Royal did not require Royal to give notice of lapse or cancellation.

Plaintiff’s decedent was killed when he fell some fifty feet from the tower upon which he was working. Because of Royal’s lack of compensation insurance, RCA, as general contractor, commenced paying direct benefits to the decedent’s widow and children. The decedent’s personal representative commenced this action for wrongful death under Section 33 U.S.C.A. § 905 of the Act. After the matter was at issue, RCA filed a motion for summary judgment claiming to be a “statutory employer” by reason of having paid the compensation benefits to the decedent’s widow and children and therefore was immune from this action. The motion for summary judgment was granted, and this appeal ensued. We reverse.

At the outset it should be borne in mind by the reader that we are here concerned with the construction of federal statutes and this decision in no way has an impact upon Workmen’s Compensation claims or collateral suits in the Florida court system. Favre v. Capeletti Brothers, Inc., 381 So.2d 1356 (Fla.1980).

The fact that the general contractor had or had not taken out insurance is not dispos-itive of the present case. The statute requires the subcontractor to carry compensation insurance for the benefit of its employees and when it fails to do so, the general contractor must provide secondary protection for the employees. Probst v. Southern Stevedoring Company, supra. The design of the law is to protect the employee and not to create immunity for the general contractor. Any other reading would not promote the intent of the Act and would reward a general contractor for failing to attend to its duty to assure that its subcontractor has the requisite coverage. Granting immunity to a general contractor which has provided secondary coverage on which a claim was made would economically reward it by permitting it to reap the extra profits by accepting a low-bidding subcontractor which deliberately failed to purchase or to continue in effect the required insurance coverage. The intent of Section 904 of the Act was to ensure payment and not to change the general contractor’s status to an “employer.” Probst v. Southern Stevedoring Company, supra. Only the actual employer (in this type of situation, a complying subcontractor) may get under the immunity umbrella of § 905. Our reliance upon Probst and the reasoning contained in Smith v. Chevron Oil Company, supra, leads to the inevitable conclusion that RCA is not entitled to this immunity and, under the posture of the motion for summary judgment, is considered to be a third party for which reason the summary judgment in its favor must be reversed. Should it be determined that RCA’s negligence contributed to the decedent’s death and an award of damages be obtained, then RCA would be entitled to a setoff for any and all benefits already paid as compensation.

Reversed and remanded.

      . § 905. Exclusiveness of liability
      (a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.

      . § 904. Liability for compensation
      (a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title. In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment.
      (b) Compensation shall be payable irrespective of fault as a cause for the injury.


author: HERSEY, Judge.

text:
    Sidney KOHL and Dorothy Kohl, his wife, and Landmark First National Bank of Fort Lauderdale, as Trustee, Petitioners, v. BAY COLONY CLUB CONDOMINIUM, INC., a Florida Corporation, not for profit, Albert A. Lucy and Roselind G. Lucy, his wife, individually and as representatives for the class, Respondents.
    No. 79-2394.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Rehearing Denied June 4, 1981.

      Davis W. Duke, Jr., and J. Cameron Story, III, McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for petitioners.
    Mark B. Schorr, Becker, Poliakoff & Stre-itfeld, P.A., Fort Lauderdale, for respondents.
   HERSEY, Judge.

The non-final order appealed from here determined that the complaint seeking relief from the terms of a lease of recreational facilities (the rec lease) on grounds of unconscionability could be maintained in the form of a class action. It also determined that the condominium association (the association) and the joint owners of one condominium unit (the unit owners), plaintiffs below and respondents in this court, have standing to represent the plaintiff class. Brief reference to the factual background is essential to an understanding of the legal issues thus raised.

Drexel Properties developed and marketed the Bay Colony Club Condominium; however, sale of some of the units was accomplished through outside real estate brokers. All sales were originated by the use of a form Purchase Agreement prepared by the developer. This form legally obligated the prospective purchaser to buy an apartment, to accept title in accordance with the terms of the Declaration of Condominium and related documents, to accept an assignment of an interest in a lease of recreational facilities, and to pay rent and expenses. At closing the purchaser received a Condominium Warranty Deed conveying to the purchaser legal title to a condominium unit and a proportionate undivided interest in the common elements. In addition the purchaser received an assignment of an undivided 1/640 interest in the rec lease and simultaneously became obligated to pay a proportionate part of the rent together with taxes and maintenance expenses in connection with the leased facilities. The association was not a party to the lease but was obligated by the documents to receive tax and maintenance payments from unit owners and to repair and maintain the recreational facilities from sums so received.

Each unit owner at closing pledged his interest in the condominium unit and his interest in the leasehold as security for the future payment of rent and taxes connected with the recreational facilities. The lease contains a provision for periodic cost-of-living rent increases.

Petitioners have an interest in this litigation as lessors of the recreational facilities (as successors in interest of the developer).

Respondent, the association, has an interest as the entity legally obligated to operate and maintain the leased facilities and to collect the necessary funds for this purpose from the unit owners.

Respondents, Albert Lucy and Rosalind Lucy, have an interest as joint owners of one of the condominium units.

Respondents, together, are alleged to have interests in common with all, or most of the other unit owners, sufficient to represent a class composed of the unit owners. In addition the association is alleged to have standing to represent a class composed of the condominium unit owners by virtue of statute.

There are 640 condominium units in the Bay Colony Club Condominium. Characterizing the owners of those units, first, according to their purpose in acquiring units, the record shows that a majority were purchased for resale, some were purchased as an investment for rental income, some as eventual retirement facilities, and some for present, permanent occupancy. Those same purchasers may also be categorized depending upon the sophistication and expertise they had or hired in reviewing documentation and attending to the details for closing. The pattern is again amorphous. Some had attorneys, some were attorneys, and others had neither personal expertise nor professional guidance. Finally, unit owners differ depending upon their relationship to (a) the developer and (b) this litigation. It appears that only some 200 of the present unit owners originally purchased their units directly from the developer. Thus two-thirds of the hypothetical class composed of present owners dealt with and acquired their interest from third parties other than the developer. And of the 640 unit owners, approximately 14% admittedly have no interest in this litigation, either because they have settled their grievances or because they formally opted out of the class action.

Against that factual background it is necessary to determine whether a class action is appropriate where the cause of action rests in common law unconscionability, and if so, the composition of the class and further whether the class may be represented by the association.

Some recent Florida cases appear to support the trial court’s affirmative response to the initial inquiry. Before attempting to apply those cases here a word about the concept of unconscionability is in order.

The authorities appear to be virtually unanimous in declaring (or assuming) that two elements must coalesce before a case for unconscionability is made out. The first is referred to as substantive uncon-scionability and the other procedural uncon-scionability.

In the modern progenitor of the common law concept of unconscionability, Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965), the court made the following analysis:

Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the trans action. In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power. The manner in which the contract was entered into is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print or minimized by deceptive sales practices? (Emphasis supplied).

A very recent case, Bennett v. Behring Corp., 466 F.Supp. 689, 696 (S.D.Fla.1979), further refined this analysis:

The dual requirements called for by Walker are the “absence of meaningful choice .. . together with contract terms which are unreasonably favorable to the other party.”
The first requirement under Walker, “absence of meaningful choice”, is determined by analyzing the respective bargaining powers of the contracting parties, and the ability of the particular contracting party, in light of his education, intelligence, or lack thereof, to understand the terms of the contract. William v. Walker-Thomas Furniture Co., supra; Morris v. Capitol Furniture & Appliance Co., 280 A.2d 775 (D.C. [App.] 1971).
This is referred to as “procedural uncon-scionability”.
The onerous contract term from which a party seeks relief is commonly referred to as “substantive unconscionability”. See, e. g., Fleischmann Distilling Corp. v. Distillers Company Limited, 395 F.Supp. 221 (S.D.N.Y.1975); see also, “In Defense of Unconscionability” 78 Yale L.J. 757 (1971); and “Consumer Protection Under Art. II of the UCC” 29 Ohio St.L.J. 689 (1968).

A case is made out for substantive unconscionability by alleging and proving that the terms of the contract are unreasonable and unfair. In the instant case it is alleged, in essence, that the terms of the recreational facilities lease are unreasonable and unfair. Since each member of the class is obligated under the identical lease and the terms of the lease have universal application, substantive unconscionability seems admirably suited to be redressed by class action.

Procedural unconscionability, on the other hand, speaks to the individualized circumstances surrounding each contracting party at the time the contract was entered into. This is thoughtfully discussed by the court in Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 (E.D.Mich.1967):

The various factors considered by the courts in deciding questions of uncon-scionability have been divided by the commentators into “procedural” and “substantive” categories. See J. White & R. Summers, supra, at 118-30. Under the “procedural” rubric come those factors bearing upon what in the Weaver case was called the “real and voluntary meeting of the minds” of the contracting parties: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question. The “substantive” heading embraces the contractual terms themselves, and requires a determination whether they are commercially reasonable. According to J. White & R. Summers, supra, at 128:
Most courts take a “balancing approach” to the unconscionability question, and to tip the scales in favor of unconscionability, most courts seem to require a certain quantum of procedural plus a certain quantum of substantive unconscionability.

The impression created by the cases we have examined involving an analysis of application of the common law doctrine of unconscionability is that the prerequisites for a finding of procedural unconscionability are too individualized to permit of class action proceedings.

Nevertheless at least two Florida cases suggest to the contrary by way of dicta. In Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977) and in Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32 (Fla.3d DCA 1977), the respective plaintiffs individually and as class representatives were to be permitted, on remand, to attempt to state an amended claim based upon unconscionability.

This seeming dichotomy raises two possibilities: either the courts in those cases assume that it is possible to cast allegations of procedural unconscionability in the mold of a class action or that such allegations are unnecessary to state a cause of action for unconscionability. This latter is suggestive of the recognition of a new procedural vehicle for enforcing a cause of action based upon unconscionability. As a matter of fact such a procedural vehicle is implicitly embodied in Section 711.66(5)(e), Florida Statutes (1975), which provides:

Any grant or reservation made by a declaration or cooperative document, lease, or other document, and any contract made by an association prior to assumption of control of the association by unit owners other than the developer, shall be fair and reasonable.

However, that statute is not applicable to the instant case since it operates prospectively only. Avila South Condominium Association, Inc. v. Kappa Corp., supra.

We are left, then, with the former hypothesis; that is, that a cause of action for common law unconscionability may be stated and sustained in .a class action. This necessarily implies that both procedural and substantive unconscionability are susceptible under appropriate circumstances of being pled and proved in a class action.

We therefore next address the question of whether the complaint sufficiently alleges substantive unconscionability. There is nothing intrinsically unfair or unreasonable in a lease of recreational facilities to adjacent property owners as tenants which lease may contain an escalation of rent clause based upon some appropriate measure of increases in the cost of living. However, where that lease requires payment of taxes and expenses in perpetuity and such payment is exacted from unit owners who may never avail themselves of the opportunity to utilize the rented facilities then the document is at least suspect. We duly note that the original lessor-developer obviously incurred expense in purchasing the land and constructing the facilities. All subsequent expense is borne by the lessees. Once the developer recoups his investment and a reasonable profit the burden should be on the developer to establish fairness and reasonableness when challenged by a tenant with standing. The term “with standing” in the context of common law unconscionability requires that, in addition to “standing” in the traditional sense, the tenant must be one in a position to allege and prove procedural unconscionability.

We conclude therefore that substantive unconscionability is susceptible of allegation and proof in a class action bringing into question the validity or continued enforceability of a lease of recreational facilities where the element of coercion regarding rental and other payments is present. It is further our conclusion that the amended complaint meets the test in this regard.

Finally we address the question of pleading and proving procedural unconseionability. To meet the threshold test of adequacy the allegations of procedural unconsciona-bility must clearly demonstrate the absence of meaningful choice on the part of the plaintiff. Ordinarily this requires an examination into a myriad of details including plaintiff’s experience and education and the sales practices that were employed by the defendant or his predecessor-assignor. However, the basic concept is “an absence of meaningful choice.” While we foresee monumental obstacles of proof of such an allegation (which is a legal conclusion only) in a class action setting, we are not prepared to hold that the allegations of the amended complaint are per se insufficient. We note that we are not called upon here to determine evidentiary questions.

Limiting our holding to the narrow legal issue of whether the amended complaint states a cause of action for unconscionability which may be maintained as a class action, we affirm the order of the trial court denying the motion to dismiss.

Petitioner questions, inter alia, the standing of the association comprised of the unit owners, to represent the class. The association was not a party to the lease. However, we construe Rule 1.221, Florida Rules of Civil Procedure, as authorizing the association to maintain actions on behalf of all unit owners concerning any matter of common interest, including, but not limited to, the common elements. See Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976). Such is the case here.

Other questions raised as to composition of the plaintiff class except as determined by the order on appeal are premature and our consideration must await appeal from a final judgment in which the rights of the class (and perhaps various members of the class) have been adjudicated by the trial court.

The order appealed from is affirmed in all respects.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


text:
    Donald S. ZUCKERMAN and R. Mary Zuckerman, Appellants, v. PROFESSIONAL WRITERS OF FLORIDA, INC., Appellee.
    Nos. 80-874, 80-875 and 80-991.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Rehearing Denied June 4, 1981.

      Donald S. Zuckerman, Fort Lauderdale, for appellants.
    David F. Cooney of Grimmett, Conrad, Scherer & James, P. A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

Appellee corporation filed a complaint seeking an accounting of corporate assets and the return to it of certain corporate records. Appellee alleged that the corporate records were in the exclusive possession of appellants, former employees of ap-pellee-corporation, when those records mysteriously disappeared.

The trial court entered a temporary restraining order to prevent destruction of the records and to require their return to appellee. Three prejudgment writs of re-plevin were issued pertaining to the same records, varying from one another only in insignificant details.

A cost bond was posted by appellee, as a foreign corporation, but no bond was required as a condition of the restraining order or the writs.

By way of execution of the writs certain records in the possession of the appellants were segregated and inventoried but, upon stipulation, were allowed to remain in appellants’ possession.

Motions to dissolve the temporary restraining order and the prejudgment writs of replevin were denied, precipitating these interlocutory appeals.

Appellants’ brief, in appeal number 80-991 contains the following representation: “In fact the Zuckermans have never had possession of the property as alleged ... . ” In view of this statement the entire matter would appear to be moot inasmuch as the restraining order and writs pertain only to appellee’s records in the possession of appellants and if there are none then this litigation is much ado about nothing.

Be that as it may, we treat appellants’ points on appeal so that the matter may be finally disposed of by the trial court.

Appellants first complain of the refusal of the trial court to grant their motion to dissolve the temporary restraining order.

Rule 1.610(b), Florida Rules of Civil Procedure provides that a temporary injunction should be granted only if it is manifest from the allegations of a verified complaint or supporting affidavits that injury will be done if an immediate remedy is not afforded.

Appellee’s complaint was not verified, it was simply signed by an attorney. Subsequently the attorney verified the complaint “to the best of knowledge and information.” Appellee contends that where a corporation is involved a verification upon information and belief is sufficient. Craftsman Finance & Mortgage Co. v. Brown, 64 F.Supp. 168 (S.D.N.Y. 1945). However, a preliminary injunction should not be granted on a complaint sworn to on information and belief and unaccompanied by proper affidavit. Ruge v. Apalachicola Oyster Canning & Fish Co., 25 Fla. 656, 6 So. 489 (1889). The affidavit in this case does not substantiate the allegations of the complaint. Thus the pleadings were insufficient for issuance of a temporary injunction. However, review of an order denying a motion to dissolve an injunction is based not on the record before the chancellor at the time of the temporary injunction, but on the record as it was at the time the motion to dissolve came on for hearing. City Gas Company of Florida v. Ro-Mont South Green Condominium “R”, Inc., 350 So .2d 790 (Fla.3d DCA 1977).

Here, at the hearing on the motion to dissolve the temporary injunction, Mr. Epstein, Vice-President of appellee corporation, gave testimony supporting the factual allegations of the complaint. Specifically, he testified that business and financial records were kept in a locked file cabinet for which only appellant Mary Zuckerman had a key. When Epstein left the office after discharging appellant Donald Zuckerman and accepting Mary Zuckerman’s resignation, the records were present and accounted for. However, upon his return the following morning, although the file cabinet was locked, the records were gone. As a result of the disappearance of the records, appellee corporation is said to be experiencing difficulty in continuing its day to day operations.

Just as the granting of a temporary injunction is a matter within the discretion of the trial court, so is the dissolution of such an injunction. See Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561 (Fla.3d DCA 1976) and City Gas Company, supra. The granting of a temporary injunction will be reversed upon an interlocutory appeal only when it has no basis in the pleadings and evidence before the trial court or is illegal in nature. Northwestern National Insurance Co. v. Greenspun, supra. Logically, this principle applies to denial of a motion to dissolve a temporary injunction.

The allegations of the complaint and supporting evidence form a basis for the temporary injunction. The complaint and testimony establish, for present purposes, that the removal of the files and records impeded the day to day operation of the business bringing about irreparable harm for which there is no adequate remedy at law. Further, there is no suggestion that the injunction is illegal in nature.

As to the issue of bond, the bond that was posted by appellee subsequent to issuance of the injunction was merely a non-resident costs bond as required by Section 57.011, Florida Statutes (1979). The trial court is therefore instructed to require a bond pursuant to Rule 1.610. See McGovern v. Amira, 328 So.2d 862 (Fla. 4th DCA 1976).

Appellants next contend that the trial court erred in issuing the original prejudgment writ of replevin.

Section 78.068(1), Florida Statutes (1979) provides that a prejudgment writ of replevin may be issued when the nature of the claim and the grounds relied upon for issuance of the writ clearly appear from specific facts shown by verified petition or separate affidavit of petitioner. The complaint here was verified by appellee’s attorney only “to the best of [his] knowledge and information.” Further, the supporting affidavit did not set forth specific facts or substantiate the allegations of the complaint. Appellants argue that this is insufficient verification. However, review of an order denying a motion to dissolve a prejudgment writ of replevin should be based not on the record before the court at the time the writ was issued, but on the record at the time the motion to dissolve came on for hearing. See City Gas Company of Florida v. Ro-Mont South Green Condominium “R”, Inc., supra.

At the hearing on the motion to dissolve the prejudgment writ, Mr. Epstein, Vice-President of appellee corporation, gave testimony, summarized earlier in this opinion, supporting the factual allegations of the complaint. Therefore the question is whether the specific facts alleged by the complaint and substantiated by the testimony formed a sufficient basis for a prejudgment writ. Although circumstantial, the factual allegations and evidence create a strong inference that appellants have possession or control of the property at issue. Further, a statement alleged to have been made by Donald Zuckerman that he was going to make things “very messy” for ap-pellee corporation supports a finding that the files and records are in danger of destruction, concealment, waste, or removal. We think there was a sufficient basis in the record to support issuance of the writ.

Appellants also claim that the circuit court did not have jurisdiction over the matter pursuant to Section 78.03, Florida Statutes (1979). That section provides that a replevin action shall be brought in the court which has jurisdiction of the value of the property sought to be replevied. No value of property is stated in the complaint; however, since the circuit court has exclusive jurisdiction over the count for injunc-tive relief, it has jurisdiction over the other causes of action stated in the complaint. Section 26.012, Florida Statutes (1979); see Milhet Caterers, Inc. v. North Western Meat, Inc., 185 So.2d 196 (Fla.3d DCA 1966).

It is further contended by appellants that the trial court erred in denying the motion to dissolve the writ.

Section 78.068(6), Florida Statutes (1979) provides that a defendant, by contradictory motion, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued.

Although the testimony does not establish that the records had been seen in appellants’ possession, the circumstantial evidence raises a strong inference that appellants removed the files and records from appellee’s office. Mrs. Zuckerman had the only key to the filing cabinet where the records were kept. On the morning following Donald Zuckerman’s discharge, the filing cabinet was locked but, when forced open, was found to be empty. Therefore someone unlocked the cabinet, removed the files and locked the cabinet again. The obvious conclusion from this evidence was that the Zuckermans were responsible for removal of the records and therefore had possession or control of them.

The question of possession was a factual determination for the trial court to make. That determination in this case is supported by the evidence. Therefore, it will not be disturbed on appeal.

Appellants also claim that the additional prejudgment writs were issued by the clerk and not upon the signed order of a judge as required by Section 78.068(5), Florida Statutes (1979). Appellee maintains that the subsequent writ was issued pursuant to the same court order as the previous writ. That order provided that “a writ of replevin shall issue directing the return of the files and records of Professional Writers of Florida, Inc.

The parties and case number of the writs are the same as the parties and case number contained on the order authorizing a writ of replevin. The only differences between the writs are the particular defendants and the addresses specified for service. Since the property sought to be replevied was the same as the property described in the original order all of the writs are authorized by that order.

Contrary to appellants’ contention, the complaint alleges wrongful detention of the property by appellants. It further alleges facts indicating the means by which appellants came into possession of the records. This is sufficient to withstand a motion to dissolve.

As to bond, Section 78.068(3), Florida Statutes (1979) requires a bond be posted by the petitioner in an amount equal to twice the value of the goods subject to the writ. Although appellee filed a non-resident costs bond it did not file a replevin bond. Since there was one order authorizing the writs and the property sought to be replevied was the same, one bond should be required in an amount determined by the trial court to represent twice the value of the property in question. If, as the record appears to indicate, appellants retain possession of the property, then bond shall be required of appellants as provided by Section 78.068(4), Florida Statutes (1979) unless the parties subsequently stipulate that neither party shall be required to post bond in connection with the replevin aspect of this litigation.

We affirm the orders from which these appeals were taken. The trial court shall establish the amount and require a bond as a condition of continuance of the temporary restraining order. Unless waived by the parties, bond shall be required of both parties to support continuance of the writs of replevin and to support continuance of possession in appellants. The cause is remanded for further proceedings.

AFFIRMED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


text:
    Jack Wayne CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1365/T4-142.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Rehearing Denied May 29, 1981.
    Richard L. Jorandby, Public Defender, and Martin H. Colin, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).

DAUKSCH, C. J, and FRANK D. UP-CHURCH, Jr., and SHARP, JJ., concur.


author: COWART, Judge.

text:
    Katherine S. ODHAM, etc., et al., Appellants, v. Michael N. PETERSEN et al., Appellees.
    No. 80-439.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Rehearing Denied May 29, 1981.
    C. Allen Watts of Watts, Biernacki & Frost, P. A., DeLand, for appellants.

      Daniel D. Eckert, DeLand, for appellee Volusia County Board of Adjustment.
   COWART, Judge.

The Volusia County Board of Adjustment granted a special zoning exception permitting construction of greyhound dog kennels on appellee Peterson’s property. Appellants, Peterson’s neighbors, aggrieved by this decision, filed a two count complaint in the circuit court demanding review of the zoning decision by certiorari and by a trial de novo. The trial court required appellants to make an election between those two remedies. Appellants elected the remedy of certiorari. After review the trial court denied certiorari. On this appeal appellants contend the trial court erred in requiring an election of remedies and in denying their petition for certiorari.

Section 163.250, Florida Statutes (1979), under which appellants sought judicial relief in the circuit court provides that review is to be sought either by certiorari or by trial de novo, but not both and the circuit court was correct in requiring appellants to elect between those remedies.

Appellants’ election of review by certiorari, rather than by a trial de novo, established the character of the circuit court’s judicial action as that of review and, accordingly, its decision is not a final order of a trial court, acting as such, as is ordinarily reviewable by appeal to district courts of appeal under Florida Rule of Appellate Procedure 9.030(b)(1)(A); rather, it is a final order of the circuit court acting in its review capacity, normally reviewable by cer-tiorari in district courts of appeal under Florida Rule of Appellate Procedure 9.030(b)(2)(B). However, we denied appel-lees’ motion to dismiss this appeal because article V, section 4(b)(1), Florida Constitution, provides that “district courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court.” Since the circuit court action became, by appellants’ election, an original proceeding to review the administrative action of a county zoning board of adjustment, we have jurisdiction to review by plenary appeal. See County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA Dec. 31, 1980) [1981 F.L.W. 157]. Our conclusion does not appear to be consistent with Phipps v. Board of Adjustment, 388 So.2d 317 (Fla. 4th DCA 1980).

Appellant argues that certiorari review in the circuit court should be in the nature of a trial de novo and that the scope of review on this appeal should be similarly broadened. Appellant reasons that since certio-rari review under the old municipal zoning statute (§ 176.17, Fla.Stat. (1971)) was considered as being “in the nature of an original proceeding de novo,” Josephson v. Autrey, 96 So.2d 784 (Fla.1957), the scope of certiorari review under section 163.250, Florida Statutes (1979), should be the same. This does not follow. The earlier statute was broadly interpreted because old section 176.19 allowed the trial court to take evidence in the statutory certiorari proceeding. Section 163.250, Florida Statutes (1979), separates the one former hybrid proceeding into an election between two more classic judicial proceedings: a trial de novo according to the Florida Rules of Civil Procedure, or an original proceeding for certiorari review under the Florida Appellate Rules. Appellants did not elect a trial in circuit court with the consequent right to broader review here of the evidence and law involved in a trial. On this appeal the substance of our review can be no broader than that of the circuit court sitting in certiorari review and its scope of review was only to determine that the appellee county board of adjustment was acting within its jurisdiction and that in acting on the petition for a special exception the board did not depart from the essential requirements of law. However, in this plenary appeal from an order of the circuit court sitting in its cer-tiorari review capacity our review authorizes us to determine if the circuit court was correct in its decision as a matter of law rather than our review being limited, as it would have been on certiorari, to a mere determination of whether the circuit court itself had jurisdiction and did not depart from the essential requirements of law. Therefore in this appeal we must look at the action of the board of adjustment in the exact same manner as did the circuit court but for the purpose of determining if the circuit court’s conclusion was correct as a matter of law.

The Volusia County Code, section 51-11(A)(4), provides six criteria upon which evidence must be presented to warrant a special exception. There was evidence on each of these factors in the record before the circuit court supporting a finding in favor of a special exception and it is not the function of either certiorari or appellate review to re-weigh the board’s determination of the weight of the evidence. Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980); Campbell v. Vetter, 375 So.2d 4 (Fla. 4th DCA 1979); Chastain v. Civil Service Board of Orlando, 327 So.2d 230 (Fla. 4th DCA 1976). Once the ordinance criteria was established it was the board’s duty to grant the special exception unless the board also determined (as it did not) that such use would adversely affect the public interest. Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). It is not an essential requirement of law that every fact finder make a formal written finding as to each factual determination. A conclusion includes an implied finding as to all factors necessary to that conclusion. Therefore, the board’s failure to specifically state its findings, as contemplated by the ordinance, is not such a departure from essential requirements as law as to have required the circuit court to have quashed the board’s grant of a special zoning exception. Accordingly, the circuit court’s order denying certiorari is

AFFIRMED.

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

      . Appellants argue that both certiorari and declaratory relief was allowed in a zoning controversy in Orange County v. City of Apopka, 299 So.2d 652 (Fla. 4th DCA 1974), and in City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th DCA 1974). Those cases merely illustrate that while certiorari, or a statutory remedy, is the proper action to review a decision made under an ordinance, a suit in equity for declaratory relief is the proper way to challenge the validity or constitutionality of an ordinance. In the cited cases the City of Orlando did both. See Bama Investors, Inc. v. Metropolitan Dade County, 349 So.2d 207 (Fla.3d DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978).

      . Even if this were not the case, the motion would still have been denied because Florida Rule of Appellate Procedure 9.040(c) directs that when an improper remedy is sought, this court must treat the cause as if the proper remedy had been sought.


author: SHARP, Judge.

text:
    Jacques LOBRY, Appellant/Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 80-855.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Rehearing Denied May 29, 1981.

      Edward A. Nagel, Winter Park, for appellant/ cross-appellee.
    Thomas G. Kane of Driscoll, Langston, Dayton & Kane, P. A., Orlando, for appel-lee/cross-appellant.
   SHARP, Judge.

Lobry appeals a final summary judgment entered after arbitration of his uninsured motorist claim against State Farm Mutual Automobile Insurance Company. Under his policy with State Farm, Lobry had $100,000 uninsured motorist coverage. He raises two points: the court erred in allowing any set-offs against the arbitrators’ award, and in particular, a $12,000 medical expense payment; and it erred in not awarding him a reasonable attorney’s fee, either by outright award or reduction in the total set-offs for his attorney’s efforts in obtaining the set-off payments from the workers’ compensation carrier. State Farm cross appeals the lower court’s denial of attorney’s fees for its counsel pursuant to Chapter 57, Florida Statutes. We affirm the denial of fees to State Farm on the cross appeal, and the trial court’s handling of attorney’s fees for Lobry under the circumstances of this case, but we agree the $12,000 medical payment should not have been set-off against the arbitration award.

Lobry was injured by an automobile while he was working as an employee of the Sarasota Kennel Club in July of 1978. The motorist had a $10,000 liability policy, and Lobry received $10,000 from the “under-insured” tortfeasor. He also received the following payments from his employer’s workers’ compensation carrier:

$ 2,175.00 Future Medical Payments
12,000.00 Past Medical Payments
20,825.00 Lost Earning Capacity
8,226.00 Lost Wages

Lobry’s attorney obtained the compensation payments after pursuing the claims to a final hearing. He submitted an affidavit executed by another attorney that $17,-290.40 (or 40% of the “recovery” from the compensation carrier) would be a reasonable fee for Lobry’s attorney’s services. Lo-bry’s attorney also submitted affidavits showing he expended a total of 22V2 hours in this matter, including the arbitration proceedings, but excluding the compensation proceedings, and that he received $1,500 in fees from the compensation carrier, as part of a settlement agreement. The court awarded $1,000 for attorney’s fees for Lobry, for his efforts in filing suit against State Farm and obtaining arbitration.

The arbitration proceeding was required by the terms of the State Farm policy. It provided:

Two questions must be decided by agreement between us:
1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle, and
2. If so, in what amount? If there is no agreement, these questions shall be decided by arbitration upon written request of the insured or us.

The arbitrators produced a “Form of Finding” awarding Lobry the following sums:

1. Loss of claimant’s wages $12,000.00
2. Loss of claimant’s earning capacity 80,000.00
3. Damages for loss of ability to enjoy a normal life, both past and future 8,000.00
4. Damages for any pain and suffering, disability and mental anguish 12,000.00
5. Future medical expenses 2,500.00
TOTAL AWARD $64,500.00
This finding does not take into consideration any other matters such as medical bills, for which no evidence was presented, and no consideration has been given herein to whether or not State Farm Mutual Automobile Insurance Company is entitled to any set-offs of any kind.

SO SAY WE ALL!

The trial court accepted the arbitrator’s award of $64,500 as Lobry’s total damages. Against that sum, it allowed the following set-offs:

A. Payment by the tortfeasor $10,000.00
B. Future medical from workers’ compensation claim 2,175.00
C. Loss earning capacity from workers’ compensation claim 20,825.00
D. Lost wages from workers’ compensation claim 8,226.00
E. Medical payments from workers’ compensation claim 12,000.00

With exception of item “E”, which was not considered by the arbitrators, the payments allowed as set-offs were less than Lobry’s actual damages as found by the arbitrators.

Lobry’s argument that the arbitrators’ award should have been confirmed by the trial court without consideration of set-offs due to the insurer is untenable. Under the State Farm policy only the issues of liability of the other motorist and the insured’s damages could have been the subject of arbitration. The “Form of Finding” clearly shows the arbitrators were solely concerned with items of damages; and they expressly did not consider any available set-offs to State Farm. Even if the arbitrators had determined “set-offs” to State Farm, the court should have redetermined them because issues pertaining to “coverage” are questions of law for the courts, and are beyond the scope of the arbitration agreement. Zeagler v. Com mercial Union Insurance Company of N. Y., 166 So.2d 616 (Fla.3d DCA 1964); Cruger v. Allstate Insurance Company. 162 So.2d 690 (Fla.3d DCA 1964).

The allowance of set-offs to the insurance company against its uninsured motorist coverage for payments received by the insured from other sources is a confusing area of Florida’s No-Fault Insurance law and, among the District Courts of Appeal, there is no uniformity of opinion. At the time of Lobry’s injury, the applicable statute provided:

The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident. (Emphasis supplied).

§ 627.727(1), Fla.Stat. (Supp.1978).

We have taken the position that only the underinsured motorist’s automobile liability insurance should be set-off against the underinsured motorist coverage (consistent with the 1980 revision to Section 627.727) and not medical or personal injury protection payments unless the payments duplicate benefits available or received by the insured. State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla.5th DCA 1980); Florida Ins. Guaranty Assn. v. Johnson, 392 So.2d 1348 (Fla.5th DCA 1980).

Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978), established that liability payments received from the underin-sured tortfeasor’s insurance company directly reduce or set-off the amount recoverable under the injured party’s uninsured motorist coverage. Thus clearly the allowance of the set-off for the $10,000 tort-feasor payment to Lobry was proper.

We agree in this case, except for the $12,000 medical expense payment, that the other set-offs which pertain to workers’ compensation payments received by Lobry, were properly “set-off” because if not allowed, Lobry would receive (in effect) “duplicate” benefits, contrary to Section 627.-727. However, if Lobry’s uninsured motorist coverage had been less, so that he would not recover his damages in full because of the set-offs, consistent with the reasons stated in Bergman and Johnson, the set-offs would not have been proper because they would not have been “duplicated” by any payments received by the insured.

The same reasoning results in the opposite conclusion regarding the $12,000 medical expense item. The arbitrators stated they did not consider any past medical bills. An item for present or incurred medical expense was missing from the award, although there was one for “future” medical expenses. Clearly the “damage” award omitted that item of damage. Therefore, since the $12,000 medical payment was (for whatever reason) excluded from the “pot”, it should not have been taken out by the court. Lobry will not receive any duplication of payment for this item, since the arbitrators excluded it from their damage award.

In seeking to recoup from the set-offs allowed the costs and expenses of the compensation proceedings, Lobry relied on eases where insurance companies sought to participate in the insured’s recovery against another person. The courts allowed the insured to deduct from the “duplicate” payments received, the costs and fees necessary to obtain the payment or fund from which the insurance company sought reimbursement,' on general equitable principles. The courts felt it was not fair or equitable to let the insurance company “ride on the coat-tails” of the insured’s efforts without bearing the expense of litigation.

However, where the insured first sued the tortfeasor or prosecuted his workers’ compensation claim before submitting the uninsured motorist claim to arbitration, the courts have not recognized this principle of “equitable distribution” in the context of set-offs, although logically the principle appears applicable. State Farm Mutual Automobile Insurance Company v. Napoli, 380 So.2d 1325 (Fla.4th DCA 1980); Hall v. Liberty Mutual Insurance Company, 376 So.2d 1183 (Fla.1st DCA 1979). The rationale stated by these cases is that Dewberry mandates that the tortfeasor payment be set-off “in gross”; the “philosophy” of the uninsured motorist statute prevents the allowance of set-offs for fees and expenses in suing the tortfeasor because if the tort-feasor had had liability coverage in the amount of the uninsured motorist coverage, the insured would not have been entitled to recover his attorney’s fees in his suit against the tortfeasor.

The rationale of these cases does not appear as directly applicable to the question of reducing the set-offs for the insurance company where the insured has pursued his workers’ compensation claims. However, we do not have to reach the question of allowance to the insured of attorney’s fees in pursuing a workers’ compensation claim by way of reducing the set-offs allowed the insurance company because in this case the record fails to show an adequate basis to make an award of fees in the compensation proceeding. Lobry received a fee of $1,500 as part of a settlement with the carrier, and there is nothing of record to show his total hours spent on the compensation proceeding, nor a proper standard to determine an award of fees for his services. The $17,290.40 fee sought by Lobry was based on 40% of the recovery from the compensation carrier. This approach in court computations of attorney fee awards for workers’ compensation matters has been disapproved by the Florida Supreme Court.

For the reasons stated in this opinion, the judgment is affirmed except for the allowance of the $12,000 medical expense set-off, which is reversed.

AFFIRMED in part; REVERSED in part.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . § 627.428, Fla.Stat. (1979).

      . See 18A Fla.Jur. Insurance § 891 (1971).

      . See Waters v. State Farm Mutual Automobile Ins. Co., 393 So.2d 1203 (Fla.2d DCA 1981).

      . Stuyvesant Insurance Company v. Johnson, 307 So.2d 229 (Fla.4th DCA 1975).

        . Contra, Waters v. State Farm Mutual Automobile Ins. Co., 393 So.2d 1203 (Fla.2d DCA 1981); Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla.4th DCA 1978).

      . See Manchester Insurance & Indemnity Company v. Rodriquez, 331 So.2d 372 (Fla.3d DCA 1976); State Farm Mutual Automobile Ins. Co. v. Tote, 325 So.2d 57 (Fla.3d DCA 1976); State Farm Mutual Automobile Ins. Co. v. Gordon, 319 So.2d 36 (Fla.lst DCA 1975); Central National Insurance Group v. Hotte, 312 So.2d 235 (Fla.1st DCA 1975); Hartford Accident & Indemnity Company v. Orlow, 300 So.2d 36 (Fla.3d DCA 1974).

      . Central National Insurance Group v. Hotte, 312 So.2d 235 (Fla.1st DCA 1975).

      . Travelers Indemnity Company v. Causey, 381 So.2d 1200 (Fla.2d DCA 1980).

      . See § 627.7372(3), Fla.Stat. (1979).

      . See § 440.34, Fla.Stat. (1979).

      . Lobry did not contend in this appeal that the deputy commissioner improperly applied the “sliding scale” set of guidelines for computing fees found in § 440.34(1), Fla.Stat. (1979).

      . Lee Engineering & Const. Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968) (“[t]he nature of the Workmen’s Compensation Law is such that the contingent percentage basis is not appropriate”). The validity of this view remains because the legislature also requires consideration of the Lee Engineering factors in addition to the modest contingent formula set out in § 440.34(l)(a)-(h), Fla.Stat. (1979).