author: NIMMONS, Judge.

text:
    Dennis Russell ROTHERMEL, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AR-333.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.
    Rehearing Denied Dec. 28, 1983.
    John Charles Coleman, Fort Myers, for appellant.
    Doris E. Jenkins, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n for appellee.
    Richard A. Belz, Executive Director, Florida Institutional Legal Services, Inc., Gainesville, amicus curiae.

      Patricia Gleason, Asst. Atty. Gen., for Florida Administration Com’n, amicus curiae.
   ON MOTION TO DISMISS

NIMMONS, Judge.

On March 7, 1983, Rothermel filed a notice of appeal pursuant to Section 120.68, Florida Statutes (1981), seeking review of an order of the Parole and Probation Commission (the Commission) rendered on February 2, 1983, in which the Commission denied Rothermel’s request to change his presumptive parole release date (PPRD).

The Commission filed a motion to dismiss the appeal and asserts two grounds in support thereof: (1) that an order entered February 8,1983, by the Florida Administration Commission pursuant to Section 120.63, Florida Statutes (1981), purporting to exempt from Section 120.68 review prisoner appeals from Commission actions relating to presumptive parole release dates entitles the Commission to dismissal of Section 120.-68 appeals-filed after February 8,1983; and (2) that Chapter 83-78, Laws of Florida, purporting to amend Chapter 120 by precluding Section 120.68 appellate review of, among other things, Commission actions concerning PPRD’s should be applied retrospectively so as to entitle the Commission to dismissal of appeals pending on June 6, 1983, the effective date of the act. Since we determine that the Commission is entitled to dismissal under ground number 2, we do not reach the question presented in ground number 1.

It is true that Florida follows the general rule that in the absence of a clear legislative expression to the contrary, a law is presumed to apply prospectively, State v. Lavazzoli, 434 So.2d 321 (Fla.1983); Seddon v. Harpster, 403 So.2d 409 (Fla.1981); Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977), and that Chapter 83-78 is silent concerning the prospective or retrospective operation of its provisions precluding Section 120.68 review. However, statutes which do not alter contractual or vested rights but relate only to remedies or procedure are not within the general rule against retrospective operation and, absent a saving clause, all pending proceedings are affected. 73 Am.Jur.2d Statutes § 354; 16A Am.Jur.2d Constitutional Law § 675. It has been stated:

Under the common law, if a statute is unconditionally repealed without a saving clause in favor of pending suits, all pending proceedings thereunder are terminated. This is true of the repeal of a law relating to procedure, or of a law conferring jurisdiction, in which case the right to proceed further in an action that is pending but undetermined at the time of the repeal is taken away.

73 Am.Jur.2d Statutes § 389. See also Turner v. United States, 410 F.2d 837, 842 (5th Cir.1969); United States v. Vanella, 619 F.2d 384 (5th Cir.1980); and United States v. Blue Sea Line, 553 F.2d 445 (5th Cir.1977).

Since no clear intent is expressed in the subject legislation, its provisions will apply retrospectively if they are remedial or procedural and do not affect substantive or vested rights. There can be little doubt that the relevant portions of Chapter 83-78 are of the kind which affect only remedial or procedural statutory provisions. It is generally recognized that no vested rights exist as to a particular remedy or mode of procedure. 16A Am.Jur.2d Constitutional Law § 672; Sullivan v. Mayo, 121 So.2d 424 (Fla.1960); Turner v. United States, supra.

Although we have found no Florida case squarely on point with respect to the applicability of the principles of law enunciated above to cases pending on appeal, it appears that the prevailing rule is that cases pending on appeal and not yet determined are affected by legislative acts which pertain only to remedy or procedure. See 4 Am. Jur.2d Appeal and Error § 8. In Turner v. United States, supra, the court observed:

Granting that, in the absence of an expressed legislative intent, statutes affecting antecedent rights are ordinarily addressed to the future and to be given prospective effect only, that canon of construction must yield to the rule here controlling that changes in statute law relating only to procedure or remedy are usually held immediately applicable to pending cases, including those on appeal from a lower court, (e.s.)

410 F.2d at 842. Similarly, it has been recognized that:

[A] party can acquire no vested right to an appeal or other proceeding for review; it is a mere matter of further or additional remedy, which may accordingly be taken away by statute or constitutional amendment. Where a right of appeal is given by the state constitution it cannot be taken away by the legislature.

16 C.J.S. Constitutional Law § 272(b). Accord City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P.2d 243, 247 (1947); Ex Parte Tsimpides, 272 Ala. 430, 131 So.2d 873 (1961); Marlas v. Virekeos, 14 Ill.App.2d 1, 142 N.E.2d 808 (1957).

Although there is a constitutional right to appeal “as a matter of right, from final judgments or orders of trial courts” in Florida, Article V, Section 4(b)(1), Florida Constitution, the right to appeal from administrative action is as “prescribed by general law.” Article V, Section 4(b)(2), supra, footnote 2. That right cannot rise to the level of a vested right if the legislature may alter it as was done in this case. The general rule should, therefore, apply:

When the right of appeal is cut off, a pending appeal dies, just as when a statutory cause of action is cut off by repeal without saving clause a pending action upon it dies.... The appellants no longer have a standing in court.

United States v. Hammond, 99 F.2d 557, 558 (5th Cir.1938). Accord Hartmann v. Sloan, 99 F.2d 942 (3d Cir.1938); Texas Farm Bureau Cotton Ass’n v. Lennox, 296 S.W. 325 (Tex.Civ.App.1927); In re Wells’ Estate, 187 Or. 462, 212 P.2d 729 (1949); State v. Vachon, 140 Conn. 478, 101 A.2d 509 (1953) (appeal from administrative agency action).

Were the effect of our decision to leave aggrieved prisoners without remedy concerning the setting of PPRD’s by the Commission, we would not regard the above principles to be applicable. But such is not the case. E.g. Roberson v. Florida Parole and Probation Commission, 444 So.2d 917 (Fla.1983); Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974); James v. Florida Parole and Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981); Harrison v. Florida Parole & Probation Commission, 428 So.2d 388 (Fla. 4th DCA 1983); Lowe v. Florida Parole and Probation Commission, 416 So.2d 470 (Fla. 2nd DCA 1982); Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982).

Finally, we address the recent decision of the Florida Supreme Court in Roberson v. Florida Parole and Probation Commission, supra. There, the Court approved this Court’s decision in Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), holding that under pre-Chapter 83-78 law, Section 120.68 appellate review was available to prisoners with respect to PPRD determinations by the Commission. The Supreme Court did not address nor, as the Commission’s counsel informed this Court at oral argument, was the point raised in Roberson as to the effect of Chapter 83-78 on the pendency of Roberson’s petition for review in the Supreme Court under the principles of law upon which we rely in the instant case. Of course, Roberson was in a different posture along the path of finality than was Rother-mel when Chapter 88-78 became law. Although we, of course, have no occasion to decide the point, it may well be that the principles upon which we rely in the instant case would not be applicable to a case such as Roberson where the prisoner’s appeal had already been finally determined by a district court of appeal and where the only thing pending is a Supreme Court proceeding on a petition for review.

In any event, the principles of law which we find to be controlling in this case were not addressed by the Supreme Court in Roberson, and it would be improper for us to reach a result contrary to our opinion herein upon the speculation that, for some reason, the Supreme Court would, when squarely presented with the issue, decline to follow such principles.

This Section 120.68 appeal no longer being authorized by law, the Commission’s motion to dismiss is granted, and the appeal is DISMISSED.

Pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following question as one of great public importance:

Did the enactment of Chapter 83-78, Laws of Florida, terminate Section 120.68 appeals by prisoners from Florida Parole and Probation Commission final action pertaining to presumptive parole release dates where such appeals had not been determined on the effective date of that legislative act?

ERVIN, C.J., and WENTWORTH, J., concur.

      . Chapter 83-78, Section 1, Laws of Florida, amends Section 120.52(10), Florida Statutes (1982 Supp.), by providing in pertinent part:
      “Prisoners as defined in s. 944.02(5) may obtain or participate in proceedings under s. 120.54(3),(4), (5), or (9), or s. 120.56 and may be parties under s. 120.68 to seek judicial review of those proceedings. Prisoners shall not be considered parties in any other proceedings and may not seek judicial review under s. 120.68 of any other agency action.” (e.s.)

      . Article V, Section 4(b)(2), Florida Constitution, provides:
      “District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law." (e.s.)

      . The only mention made of Chapter 83-78 in the Supreme Court’s opinion in Roberson was in a footnote in which the court rejected Chief Justice Alderman’s suggestion in dissent that Chapter 83-78 should be regarded as a clarification of legislative intent that section 120.68 review was not available to prisoners seeking review from agency action of the kind sub judice.

      . Am.Jur.2d Appeal and Error, Section 8:
      “[T]he repeal of a statute conferring appellate jurisdiction on a court does not vacate or annul any judgment already rendered by that court.” (e.s.)


source: Caselaw Access Project

author: NESBITT, Judge. BARKDULL, Judge

license: Public Domain

text:
    William G. LOGAN, Appellant, v. Jenny Akers SCHEFFLER, as Personal Representative of the Estate of Claudia Smith Akers, deceased, Appellee.
    Nos. 82-286, 82-418 and 82-660.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 15, 1983.

      Herbert A. Warren, Miami, for appellant.
    Stanley H. Apte, Alan E. Weinstein and Richard J. Preira, Miami Beach, for appel-lee.
    Before SCHWARTZ, C.J., and BARK-DULL and NESBITT, JJ.
   NESBITT, Judge.

Pursuant to an order of removal, the personal representative of the estate of Ak-ers, William Logan, was given fifteen days to file a full, final, and correct account of his administration and to deliver to the successor personal representative, Jenny Akers Scheffler, all of the property of the decedent as well as all records, documents, papers, and other property concerning the estate. When Logan failed to comply, the court issued an order to show cause why he should not be held in contempt. Logan failed to appear at the appointed time and failed to present any defenses to the order to show cause. Consequently, an adjudication of contempt was entered which ordered Logan imprisoned indefinitely until he complied with the previous order of court requiring that he file an accounting and return the records of the estate. In order to be released from jail earlier, Logan was given the option of posting a $100,000 bond to be deposited in the trust account of the attorney for the new personal representative payable to the representative, said amount to be forfeited in the event that Logan failed to comply with the previous court orders within fifteen days of the posting of the bond.

Although Logan gained his release from jail by posting the bond on January 29, 1982, he failed to provide the requisite accounting and books within the fifteen days required by the order of contempt. On February 11, he filed a notice of appeal of the contempt order (Case No. 82-286) and applied to the circuit court for a stay pending review, representing to the court that the accounting would soon be completed. Based on this, the trial judge withheld ruling on the stay. Two weeks passed and the promised action was not taken. A hearing was held on the new personal representative’s petition for an order to recommit Logan. Such an order was entered and he was recommitted to the county jail. At that point, the trial judge denied Logan’s motion for stay, nunc pro tunc.

Logan then filed a petition for writ of habeas corpus which we treated as a notice of appeal from the order of recommitment and as a petition to review the order denying the stay of bond (Case No. 82-660). This court heard oral argument on the petition for review and ordered that a superse-deas bond be set to stay the effect of the order of recommitment. The bond amount was subsequently lowered but was never posted. The appellant eventually purged himself of the contempt and was released from jail. The cases have been consolidated for appellate purposes.

Several of the issues initially raised by the appellant pertain to his incarceration. These have been rendered moot by Logan’s release from jail. Consequently, the only issue with which we are concerned is the validity of the bond forfeiture.

While the parties have propounded numerous arguments on this point, we find that there is an initial question with which we are confronted. This question is whether Logan may now challenge the validity of a condition of his release. It is a well settled principle that one who has accepted the benefit of a judgment or decree is precluded from later challenging its terms. McMullen v. Fort Pierce Financing & Construction Co., 108 Fla. 492, 146 So. 567 (1933); Erwin v. Brooks, 297 So.2d 314 (Fla. 2d DCA 1974); Brown v. Epstein, 208 So.2d 836 (Fla. 4th DCA 1968); In re Fredcris, Inc., 101 So.2d 49 (Fla. 3d DCA), cert. denied, 104 So.2d 594 (Fla.1958).

This rule has been applied to facts similar to the present ones in Krauss v. Krauss, 74 N.J.Eq. 417, 70 A. 305 (1908). In that case, the court ordered that the defendant could be purged of contempt and released from jail upon the performance of several conditions. When he complied with these terms, the contemner was discharged but challenged the conditions of his release by appeal. The court considered when an appeal of these issues was precluded stating:

It is a settled rule that, where a party recovers a judgment or decree and accepts the benefits thereof voluntarily and knowing the facts, he is estopped to af-terwards reverse the judgment or decree on error. The acceptance operates as, and may be pleaded as, a release of error. 2 Cy.Pl. & Pr. 174, 175; 2 Cyc. 651; Elliott on Appellate Proceedings, § 162. The language of the text in these books of authority is sustained by a great array of cases. From this rule springs the difference between the position of a party who pays a judgment against him and a party who accepts the payment of a sum awarded to him by the judgment. The former has his right of appeal because he receives no benefit from the judgment, while he who accepts the fruits of the judgment is estopped from appealing. Elliott, App.Pro. § 152. From this rule, that when he accepts the benefit awarded to him by the judgment or decree, flows the corollary that where the award of a benefit is coupled with the imposition of conditions to be performed by the person benefited, and he accepts the benefits, he is precluded from afterward challenging the validity of the conditions by an appeal. The rule is stated in the text of 2 Cyc. 645, in this language: “If a trial court imposes terms as a condition upon which a continuance or amendment will be allowed or upon which an order will be granted, or other thing will be done or not done, and the party upon which the terms are imposed accepts them, he will be deemed to have acquiesced in the ruling, and cannot afterward question its validity in the appellate courts.” A party cannot avail himself of that portion of the decree which is favorable to him and secure its fruits, while prosecuting an appeal to reverse such portion as mitigates against him. Moore v. Williams, 29 Ill.App. 597.

Krauss, 70 A. at 306. Finally, it concluded that the defendant, having accepted the benefit of the order purging him of contempt, could not attack the conditions imposed by an appeal to a superior court.

We reach the same result in the present case. The order of contempt specifically gave Logan the option of being released from jail by posting a bond. The return of the $100,000 was expressly conditioned upon his compliance with the previous court order. Once Logan accepted the benefit of the order by posting the bond and being discharged, he was bound by its terms.

Based on the foregoing, we affirm.

BARKDULL, Judge

(concurring in part, dissenting in part).

I concur in the opinion as written and would deny the return of the $100,000 bond to Logan, but I do believe he should be entitled to credit this amount against any judgment which might be rendered in favor of the estate and against him.

      . On February 25, 1982, Logan filed a notice of appeal (Case No. 82-418) of a nonfinal order challenging the same contempt order which was the subject of his February 11, 1982 appeal.

      . Had Logan wanted to be released from jail and avoid the forfeiture, he had two options. First, he could have filed the accounting and delivered the requisite papers within fifteen days, in accordance with the court order. Second, he could have remained in jail awaiting the outcome of his application for stay pending review in this court and, upon the posting of a supersedeas bond, been freed from jail.


author: HENDRY, Judge.

text:
    James Davison SCHMUCKER, Appellant/Cross-Appellee, v. Elizabeth Louise SCHMUCKER, n/k/a Elizabeth L. Timpson, Appellee/Cross-Appellant.
    No. 82-2165.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 15, 1983.
    George L. Cardet, Miami, for appellant/eross-appellee.
    Bernard I. Rappaport, Miami, for appel-lee/ cross-appellant.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   HENDRY, Judge.

We have for review on appeal and cross-appeal portions of an order enforcing certain provisions of an agreement entered into by the parties and made a part of the final judgment of dissolution of marriage entered in 1974 by the Circuit Court of Dade County, Florida.

The agreement provided, in pertinent part, that: the husband would pay to the wife $100.00 per month as alimony, the husband would pay to the wife $300.00 per month as child support, and the parties would continue to own the marital residence as tenants in common with the wife being responsible for all payments associated with the marital residence. The agreement further provided that upon the wife’s remarriage alimony would cease, the wife would pay to the husband an amount equal to one-half of the equity in the residence as of the date of the dissolution, and the child support payable from the husband to the wife would increase by an amount equal to the increase in the cost of living index between the date of the dissolution and the date of the wife’s remarriage.

In December, 1980 the appellant filed a motion for change of child custody. On January 29,1981 appellee responded by motion for modification of child support, stating that she had remarried and needed an increase in child support payments based on the increased cost of living. Both motions were referred to and heard by a General Master. The General Master found, inter alia, that the consumer price index for urban consumers had risen from 146.9 to 258.4 between the time of the dissolution and the date of the wife’s remarriage. Accordingly, the General Master recommended that the child support payable by the husband to the wife be increased as of January 28, 1982, from $300.00 per month to $636.00 per month, with the first payment to commence as of February 15,1982.

Both parties filed exceptions to the Gen-_ eral Master’s report. After hearing thereon, the trial judge denied the exceptions. It is from this order that the husband has appealed and the wife has cross-appealed.

Appellant contends that the trial court erred in increasing the child support payments from $300.00 per month to $636.00 per month and, also, that it was error for the master and the trial court to use the consumer price index as the sole criterion for setting the amount of increase in child support. We find no merit in such contentions. The record does not show any compelling or extraordinary circumstances which would justify a refusal of the trial court to enforce the terms of the agreement between the parties. Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Clark v. Clark, 79 So.2d 426 (Fla.1955); Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981); Adler v. Adler, 391 So.2d 242 (Fla. 3d DCA 1980); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977). The trial court was correct in ruling in accordance with the terms of the agreement entered into by the parties.

As to the cross-appeal, we find merit in appellee’s contention that the court erred in ordering that the increase in child support should become effective as of January 28, 1982, rather than on the date of the wife’s remarriage, as was provided for in the agreement. We therefore reverse that portion of the order with directions to make the increase in child support effective retroactive to the date of the wife’s remarriage, i.e., January 2, 1981.

The order appealed is in all other respects affirmed.

Affirmed in part and reversed in part, with directions.

      . The appellant subsequently abandoned this position.


author: PER CURIAM.

text:
    Delphine SCUTIERI, Frank Adubato and Joan Adubato, his wife, Appellants, v. SUNRISE POINT CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 83-339.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 15, 1983.

      Sparber, Shevin, Rosen, Shapo & Heil-bronner and Jeffrey M. Weissman and Nancy Schleifer, Miami, for appellants.
    Becker, Poliakoff & Streitfeld and Edward S. Polk, Fort Lauderdale, for appellee.
    Before HENDRY and HUBBART and JORGENSON, JJ.
   PER CURIAM.

The final judgment of foreclosure, save for the denial of attorney’s fees, and costs, is affirmed upon a holding that: (1) the assessments involved in this cause were valid assessments under 6.2, 6.3 of the condominium by-laws because they were properly approved by the condominium board of directors, (2) there was an insufficient evi-dentiary showing below that the assessments exceeded 105% of the amount budgeted in the prior year’s budget for current expenses and therefore 75% unit membership approval of the said assessments was not required under 6.2a, 6.2f of the condominium by-laws, (3) the trial court was therefore correct in ordering foreclosure in this case, although it relied on another unrelated ground which we do not reach.

The final judgment of foreclosure is reversed on the cross appeal as to paragraph 12 thereof insofar as it denies attorney’s fees and costs to the appellee condominium association and the cause is remanded to the trial court with directions to award reasonable attorney’s fees and costs to said condominium association for prosecuting this action. §§ 57.041, 718.116(4)(a), 718.303(1), Fla.Stat. (1981).

Affirmed in part; reversed in part and remanded.


text:
    Eugene E. COHEN, Robert H. Still, Jr., Mark T. Griffin, William H. McMahan, Mark L. Ballard, American Laser Corporation, a Florida corporation, and Laser Corporation, a Utah corporation, Appellants, v. Mather C. WARD, as Personal Representative of the Estate of Robert C. Ward, deceased, Irving B. Levenson and Marion E. Sibley, individually and as Stockholders of American Laser Corporation, Appellees.
    No. 83-873.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 15, 1983.

      Mahoney, Hadlow & Adams and Christine Rieger Milton and Judith S. Beaubouef, Jacksonville, Podhurst, Orseck, Parks, Jo-sefsberg, Eaton, Meadow & Olin, Miami, for appellants.
    Sibley, Giblin, Levenson & Glaser and Allen J. Smith and Marion Sibley, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   PER CURIAM.

We have reviewed the briefs and the record and cannot say as a matter of law that the trial court erred. The judgment is accordingly affirmed.

Affirmed.


author: GRIMES, Judge.

text:
    AMERICAN GLASS INDUSTRIES, INC., Zurich Insurance Company, and Larry Frederick Cloud, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee. Arthur Scott EVERETT and Arthur Everett, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    Nos. 83-95, 83-149.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1983.
    Rehearing Denied Dec. 2, 1983.
    Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellants American Glass Industries, Inc., Zurich Ins. Co. and Larry Frederick Cloud.
    B.J. Masterson of Masterson, Rogers, Patterson & Masterson, P.A., St. Petersburg, and Carey & Harrison, St. Petersburg, for appellants Arthur Scott Everett and Arthur Everett.

      Albert B. Lewis of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for appellee.
   GRIMES, Judge.

These appeals involve the propriety of an award of attorney’s fees under section 57.-105, Florida Statutes (1981).

Arthur Scott Everett was the owner and operator of an automobile which was involved in an intersection collision with a truck owned by American Glass Industries, Inc., and operated by its employee, Larry Frederick Cloud. Alan Everett, a minor who is Arthur Scott Everett’s brother, was a passenger in the Everett vehicle. Arthur Everett, the father of Alan and Arthur Scott Everett, brought suit on behalf of his two sons against American Glass, Cloud, and Zurich Insurance Company for personal injuries sustained in the accident. American Glass, Cloud, and Zurich answered and counterclaimed against Arthur Scott Everett (driver) and Arthur Everett (father) for contribution in the claim of Alan Everett (passenger). According to the counterclaim, since Arthur Everett (father) signed the consent form for obtaining his son’s (Arthur Scott Everett’s) driver’s license, both of them were subject to contribution for the claim of Alan Everett by reason of Arthur Scott Everett’s negligent driving.

' At the time of the accident, Allstate Insurance Company insured Arthur Everett under an automobile liability insurance policy. Arthur Scott Everett (driver) and Arthur Everett (father) called upon Allstate to defend the counterclaim for contribution. On November 5, 1981, Allstate’s attorney wrote to the Everetts’ attorney pointing out that the policy of insurance issued to Mr. Everett contained a family exclusion provision which had been specifically upheld under similar circumstances by the supreme court in Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 387 So.2d 932 (Fla.1980). By letter dated November 12, 1981, the Everetts’ attorney acknowledged the existence of the foregoing decision but reiterated his demand that Allstate defend the counterclaim.

On January 15,1982, Allstate filed a petition for declaratory relief against American Glass, Cloud, Zurich, and the Everetts. In the petition Allstate alleged the existence of the negligence action by the Everetts, the counterclaim for contribution, the Allstate policy, and the fact that the Everetts had made demand for the defense of the counterclaim. Allstate asserted that there could be no coverage for the damages claimed in the counterclaim because of the family exclusion provision in the policy. Allstate requested the court to enter judgment that the policy did not provide coverage for the damages claimed in the counterclaim, and that Allstate had no obligation to defend the counterclaim on behalf of the Everetts.

In their answer to the petition for declaratory relief, the Everetts specifically denied Allstate’s assertion that the family exclusion provision of the policy precluded coverage for the damages claimed in the counterclaim. Zurich, American Glass, and Cloud filed an answer generally denying the allegations of the petition. Subsequent discovery determined that all of the Everetts were blood relatives and that at the time of the accident the two younger Everetts resided in the household of their father. Ultimately, Allstate obtained a summary judgment determining that because of the policy’s family exclusion provision, there was no liability coverage for the counterclaim against the Everetts. The court assessed $750 in attorney’s fees under section 57.105 against American Glass, Cloud, Zurich, and the Everetts. These appeals involve only the issue of attorney’s fees.

Essentially, appellants argue that their position in the suit for declaratory judgment was defensible. They cite Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982), for the proposition that section 57.105 should be strictly construed. Insofar as the Everetts are concerned, we cannot accept this contention. The Everetts were well aware of the supreme court’s recent decision in Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co. This case was squarely on point and stood for the prinei-pie that under the family exclusion provision Allstate had no obligation to the Ever-etts with respect to the counterclaim. Notwithstanding, the Everetts demanded that Allstate defend. While Allstate could have simply refused to take any action, in doing so it would have run the risk of being held liable in excess of its policy limits for the full amount of any judgment which might have been rendered had its position not ultimately been sustained. American Fidelity Fire Insurance Co. v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965), cert. denied, 183 So.2d 835 (Fla.1966). Faced with this dilemma, Allstate adopted the practice approved in Johnson of filing a petition for declaratory relief. When the Everetts denied the allegations of the petition, Allstate was required to expend the additional effort necessary to obtain a summary judgment on the issue. We think the court was warranted in concluding that the Everetts’ position was frivolous. See Castaway Lounge of Bay County, Inc. v. Reid, 411 So.2d 282 (Fla. 1st DCA 1982), wherein the court held that attorney’s fees may be awarded under section 57.105 where the losing party has forced the plaintiff to resort to the courts even though there are no justiciable issues that can be raised in defense.

This reasoning is inapplicable to American Glass, Cloud, and Zurich. These parties did nothing to prompt Allstate to bring its suit. They neither joined Allstate as a defendant in their counterclaim nor demanded that Allstate defend. They were justified in imposing a general denial at a time when, unlike the Everetts, they did not necessarily know whether the younger Ev-eretts were living in their father’s household. It was not because of American Glass, Cloud, and Zurich that Allstate was required to expend attorney’s fees.

Allstate has also filed a motion for attorney’s fees under section 57.105 for defending these appeals. We deny this motion. Lest we appear to be inconsistent, we hasten to explain that while the issue below concerning coverage was not justiciable, the Everetts made a legitimate appellate argument that attorney’s fees should not have been awarded.

We affirm the judgment against Arthur Scott Everett and Arthur Everett but reverse the judgment for attorney’s fees with respect to American Glass Industries, Inc., Larry Frederick Cloud, and Zurich Insurance Company.

HOBSON, A.C.J., and SCHOONOVER, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    Earnest CLARK and Katherine Clark, his wife, Appellants, v. J.W. CONNER & SONS, INC., and Aetna Casualty & Surety Co., Appellees.
    No. 82-2620.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1983.
    Rehearing Granted in Part and Denied in Part Dec. 7, 1983.

      Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Beckham & McAliley, P.A., Jacksonville, for appellants.
    Michael A. Tonelli of Barr, Murman & Tonelli, P.A., Tampa, for appellees.
   GRIMES, Acting Chief Judge.

This appeal involves the assessment of damages resulting from a trespass on land.

Mr. and Mrs. Clark (Clarks) owned approximately eight acres of undeveloped real property in Hillsborough County. In 1979 J.W. Conner & Sons, Inc. (Conner), a road contractor, was engaged nearby in the construction of the Crosstown Expressway. An owner of land which adjoined the Clarks’ property gave Conner permission to build a road across his property in order to reach a borrow pit. By mistake Conner built the access road across three acres of the Clarks’ property. Though the Clarks were aware of this activity in 1979, they did not realize that the road crossed their property until 1981 when they obtained a survey. At this point, the Clarks gave Conner’s employees a copy of the survey and ordered them off the property. After a week Conner ceased using the road.

The Clarks brought suit against Conner and its insurer for compensatory and punitive damages occasioned by the trespass. Prior to trial the court ruled that the measure of compensatory damages would be the difference between the value of the land before the harm and the value after the harm. Notwithstanding, at trial the Clarks did not present any evidence of the before and after values of the land. They did, however, introduce evidence that to remove the large piles of trees and debris from the land would cost $8,514 and that to fill in the property and restore it to its original grade would cost $24,084. The court refused to permit the Clarks to introduce evidence of the value of the trees which were destroyed on the land. To protect the record the Clarks proffered the testimony of a landscape architect that the value of the destroyed trees was $85,144.21. At the close of the Clarks’ case, the court granted Conner’s motion for directed verdict on punitive damages. Upon Conner’s motion, the court also limited the Clarks’ claims for compensatory damages to the cost of removing the debris from the land. At this point the parties agreed to the entry of a judgment against Conner and its insurer for the $8,514 cleanup expenses without prejudice to the Clarks’ right to appeal the court’s ruling on the other elements of damage.

As a general rule the measure of damages in Florida for permanent injury to land is the difference between the value of the land before and after the injury. Atlantic Coast Line Railroad v. Saffold, 130 Fla. 598, 178 So. 288 (1938); Standard Oil Co. v. Dunagan, 171 So.2d 622 (Fla. 3d DCA 1965). This measure of damages has been applied to the removal of soil, United States Steel Corp. v. Benefield, 352 So.2d 892 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 881 (Fla.1978), as well as the severing of trees, National Rating Bureau v. Florida Power Corp., 94 So.2d 809 (Fla.1956). Where the reduction in market value is an inadequate measure, recovery has been allowed for losses personal to the owner. Fiske v. Moczik, 329 So.2d 35 (Fla. 2d DCA 1976). In Fiske we permitted a recovery of the replacement value of palm trees improperly removed from the owner’s residence. Likewise, the court in Elowsky v. Gulf Power Co., 172 So.2d 643 (Fla. 1st DCA 1965), approved damages in excess of the loss of market value when a power company cut down a tree next to the plaintiff’s home. In these cases, a judgment for the difference in market value would not have adequately compensated the owners for the intangible losses they suffered from the destruction of trees near their homes.

The Clarks seek to come within the rationale of Fiske and Elowsky by pointing to evidence that they had always intended to build residential duplexes on the property and had already hired an architect and a surveyor for this purpose when Conner’s trespass came to light. We do not believe that this is the kind of personal interest in land which would authorize the recovery of replacement value. See Nilsson v. Hiscox, 158 So.2d 799 (Fla. 1st DCA 1964). The Clarks’ reliance on Watson v. Jones, 160 Fla. 819, 36 So.2d 788 (1948), is misplaced. In Watson the defendant improperly cut ninety-seven pine trees on property the plaintiff intended to use for a tourist and trailer park. In the course of upholding a $2,500 judgment, the supreme court quoted from a Wisconsin case which had permitted a homeowner to recover the replacement value of lost shade trees. While the Watson opinion mentioned the importance of the severed trees to the plaintiff’s intended use of the land, the basis for the $2,500 recovery was the depreciation in market value. Thus, the value of the trees for ornament and shade suitable for a tourist and trailer park bore on market value to the extent that when the trees were cut the value of the land suffered greater depreciation.

The existence of the trees on the Clarks’ land no doubt enhanced its value. Thus, the severing of these trees certainly caused a substantial reduction in market value. Yet, despite the trial judge’s pretrial announcement concerning the proper measure of damages, the Clarks introduced no evidence whatsoever concerning the value of the land before and after the trespass. Therefore, when Conner moved for a directed verdict, the Clarks had failed to prove damages according to the established rule. Realizing that the Clarks had, in fact, incurred some damages, the court denied Conner’s motion to the extent of permitting the jury to consider the cost of removing the debris. Even this element of damages should have been recovered as a part of the loss of market value. However, Conner consented to the entry of a judgment against it for the cost of removing the debris and has not cross-appealed this ruling. The Clarks cannot obtain additional damages because they failed to carry their burden of proof.

Upon review of the record, we also find that the court properly directed a verdict for Conner on the issue of punitive damages. The trespass went on for two years before anyone realized that Conner was actually on the Clarks’ property. When Mr. Clark finally obtained a survey and thereby discovered the trespass, he told some of Conner’s truck drivers that they were travelling on his property, and he posted a no trespassing sign on the road. Later that day he gave a copy of the survey to a Conner executive who said he would check out the matter. The sign was knocked down, and the drivers continued to use the road for one week. At this point Conner removed its equipment and closed down the road. There was insufficient evidence of malice to raise a jury issue. See Florida Power Corp. v. Scudder, 350 So.2d 106 (Fla. 2d DCA 1977), cert. denied, 362 So.2d 1056 (Fla.1978), appeal dismissed, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978).

AFFIRMED.

SCHEB and RYDER, JJ., concur.

      . In declining to allow the Clarks to calculate their damages on a tree-by-tree basis, the judge observed:
      THE COURT: I really heard enough, now we need to move on. It’s clear to me that— that the approach of the Plaintiff, which is to take — cannot be permitted. The land is admittedly unimproved, at least I believe it is from everything I’ve been told in this case, simply an unimproved piece of land, non-residential. And the trees simply are growing on it in some haphazard fashion that nature has a way of doing. And that your approach would be so economically preposterous in my opinion to make two acres — two acres of land, I haven’t asked you what the value of the land is, but I think anybody would know the approximate range of what that land is worth down there, to turn that into an eighty to one hundred thousand dollar damages in my opinion is just preposterous and simply an effort to overkill, that’s not compensation, that’s — that such an approach does not even remotely relate to reasonable compensation for unimproved land in this county.

      . On appeal the Clarks suggest that their landscape architect was giving his opinion of the cost to replace each of the destroyed trees. Leaving aside the feasibility of replacing mature oak trees, we read his testimony as placing a value on each tree as one might do in establishing a freeze damage casualty loss for income tax purposes. In view of our disposition of the case, it makes no difference whose version of the testimony is correct.

      . Restatement of Torts § 929(a)i comment b (1939), pertaining to harm to land from past invasions, includes a discussion of when an owner has such a personal interest in his land that he ought to be entitled to recover the cost of restoration even when it is disproportionate to the diminution of market value.


text:
    James TINDALL, Appellant, v. STATE of Florida, Appellee.
    No. 83-183.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1983.
    Rehearing Denied Dec. 2, 1983.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant raises five points on appeal which we find to be without merit, and we, therefore, affirm his convictions and sentence.

We note, however, that the jury verdict finds appellant guilty of a first degree felony, and he was sentenced according to a first degree felony, but the judgment reflects a second degree felony. We conclude that the error in the judgment probably constitutes a typographical error and, therefore, remand for the trial court to conform the verdict, judgment and sentence.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.


text:
    Granzie WHIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. AT-136.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    On Rehearing Dec. 2, 1983.
    Granzie Whigham, pro se.
    No appearance for appellee.
   PER CURIAM.

The allegations of ineffective assistance of counsel contained in appellant’s motion were legally insufficient to require an evi-dentiary hearing. Knight v. State, 394 So.2d 997 (Fla.1981). In addition, appellant’s allegations regarding counsel’s failure to subpoena, interview, or depose certain people and to object to the admissibility of certain evidence were matters within the judgment and strategy of trial counsel and not proper grounds for relief. See, Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981); Gulley v. State, 436 So.2d 1042 (Fla. 1st DCA 1983). The order of the court below is AFFIRMED.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.

ON MOTION FOR REHEARING

Defendant Whigham moves pro se for rehearing of our decision affirming the trial court’s denial of his rule 3.850 motion for post-conviction relief. Defendant complains that we overlooked the ground in his handwritten motion complaining of the failure to accord him a separate hearing and other rights guaranteed under section 775.-084, Florida Statutes, when the trial court adjudged him an habitual offender and imposed an enhanced sentence of ten years for burglary.

On a prior direct appeal from this judgment and sentence, Whigham argued that the trial court failed to comply with section 775.084 and failed to make findings of fact sufficient to demonstrate that defendant’s enhanced sentence was necessary to protect the public from defendant’s further criminal conduct. In reply, the state argued that Whigham had failed to properly object to his sentencing under the enhanced penalty provision in the court below and that the propriety of the sentencing procedure should not be considered on direct appeal but, rather, by means of a 3.850 motion in the trial court. We affirmed per curiam, without a written opinion. Whigham v. State, 415 So.2d 1369 (Fla. 1st DCA 1982).

Whigham then filed, as suggested by the state, a rule 3.850 motion for post-conviction relief, alleging four grounds: (1) incompetency of counsel; (2) denial of his Fifth Amendment right against self-incrim-. ination; (3) lack of due process; and (4) imposition of an enhanced sentence in violation of his rights under section 775.084, Florida Statutes. ■ The lower court denied the motion without hearing, stating only that “all of the grounds set forth in the motion are those which were or should have been set forth in the defendant’s original appeal.”

The papers filed by Whigham in this court on appeal from that order intertwined his contentions regarding the enhanced sentence with the argument regarding ineffective assistance of counsel. We affirmed only the denial regarding ineffective assistance of counsel, and we adhere to that decision. We did not, however, address the enhanced-sentence issue as a separate issue.

Regarding the sentencing issue, it appears that Whigham has been caught in a “catch 22.” It was argued before that this issue was not properly before the court for review on direct appeal and should be presented by a 3.850 motion. Whigham’s 3.850 motion was denied because the issue was or should have been raised on the prior direct appeal. Enough said.

The motion for rehearing is granted. We reverse and remand for an evidentiary hearing on this ground of appellant’s motion.

REVERSED.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


text:
    Peter QUACKENBUSH, Appellant, v. PERFORMANCE MARINE, INC., a Florida Corporation, Appellee.
    No. 82-2444.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 15, 1983.
    Jerome Bill Ullman, Miami, for appellant.
    Horton, Perse & Ginsberg, and Arnold Ginsberg and Malcom Friedman, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

By this appeal defendant claims (1) it was error for the trial court to enter a judgment on the basis of negligence when the case was not pleaded or tried on a theory of negligence, (2) there is no evidence to support a judgment for the plaintiff on a theory of negligent management, and (3) there is no evidence to support damages in the amount of $30,000.

On the first point we affirm. Plaintiffs motion to “amend the complaint to conform to the evidence,” made at the conclusion of the trial, to which no objection was interposed, permitted the trial court to enter judgment on a theory other than that originally pleaded. “It is of no import, and certainly not unusual, that the theory upon which the trial court correctly tried and resolved the question was expressly identified for the first time in written final judgment.” Central National Bank of Miami v. Central Bancorp, Inc., 411 So.2d 358, 362 (Fla. 3d DCA 1982).

On the second point we also affirm. The defendant argued at trial that the evidence did not support a judgment for conversion, upon which theory the case was originally pleaded. The court accepted this argument and tried the case on a negligence theory. The trial court’s findings on the question of liability, based on a theory of negligence, are supported by substantial and competent evidence, and therefore will not be disturbed. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

The third point has merit. We have thoroughly examined the record and find that the evidence will support a judgment of only $14,498. Where a trial court’s decision is manifestly against the weight of the evidence, the appellate court has a duty to reverse. Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983).

AFFIRMED in part, REVERSED in part, and remanded with instructions to enter judgment for appellee in accordance with this opinion.


text:
    PURITAN INSURANCE COMPANY, Appellant, v. COMMERCIAL CREDIT EQUIPMENT COMPANY, Appellee.
    No. 83-328.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 21, 1983.
    Howard E. Barwick, Miami Shores, and David M. Wiegand, North Miami Beach, for appellant.
    Ruden, Barnett, McClosky, Schuster & Russell and Gill S. Freeman, Miami, for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Sandron Corp. v. Utica Mutual Insurance Co., 360 So.2d 477 (Fla. 3d DCA 1978); Liberty Mutual Insurance Co. v. Scammaca, 303 So.2d 46 (Fla. 3d DCA 1974); Americas Aviation & Marine Insurance Co. v. Beverly Bank, 229 So.2d 314 (Fla. 3d DCA 1969); National Casualty Co. v. General Motors Acceptance Corp., 161 So.2d 848 (Fla. 1st DCA 1964); § 627.428(1), Fla.Stat. (1981).


text:
    Eugenia GONZALEZ, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 83-445.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 15, 1983.
    Friesner, Hatfield, Edge & Waks, and Warren Friesner, Miami, for appellant.
    Ponzoli & Wassenberg, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

What constitutes a reasonable time within which to give notice of an accident under the terms of a policy of insurance is ordinarily an issue of fact. See Continental Casualty Co. v. Shoffstall, 198 So.2d 654 (Fla. 2d DCA), cert. denied, 204 So.2d 327 (Fla.1967). Here, the appellee/in-surer failed to demonstrate conclusively that notice was unreasonable as a matter of law and, even if unreasonable, that the insurer was substantially prejudiced thereby-

While a presumption of prejudice follows a finding of unreasonable notice, that presumption may be overcome by competent evidence, Tiedtke v. Fidelity & Casualty Co. of New York, 222 So.2d 206, 209 (Fla.1969), which ordinarily raises a separate issue of fact. See Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71 (Fla.1976) (the question of whether the failure of an insured to cooperate with the insurer is so substantially prejudicial as to release an insurer from its obligation is, in most instances, a question of fact). Summary judgment for the insurer was error. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.


author: JORGENSON, Judge.

text:
    Georgina RUIZ, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 83-620.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing’Denied Dec. 15, 1983.

      Michael J. Silverstein, North Miami Beach, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Ruiz, the defendant below in a declaratory action involving uninsured motor vehicle limits, appeals a judgment in favor of Prudential. For the reasons which follow, we reverse and remand with directions to enter judgment in favor of Ruiz.

Ruiz was insured under her father’s Prudential automobile liability policy. The policy, which had been renewed annually for four years, indicated bodily injury limits of $10,000/$20,000. The policy also indicated a selection of uninsured motor vehicle limits of $10,000/$20,000. On June 19, 1982, Ruiz was injured in an automobile accident. After exhausting the $10,000 bodily injury limit of her father’s policy and the $10,000 bodily injury limit of the at-fault driver’s policy, Ruiz sought $100,000 in uninsured motor vehicle coverage from Prudential. Prudential, in turn, sought, successfully, a declaratory judgment that Ruiz was entitled only to the $10,000 uninsured motor vehicle limit indicated on the policy.

In 1980 our legislature amended section 627.727, Florida Statutes (1979), by, inter alia, adding the following language: •

Each insurer shall at least annually notify the named insured of his options as to coverage required by this section. Such notice shall be part of the notice of premium, shall provide for a means to allow the insured to request such coverage and shall be given in a manner approved by the Department of Insurance.

Act of July 9, 1980, ch. 80-396, 1980 Fla. Laws 1587, 1588 (codified at § 627.727(1), Fla.Stat. (1981)). Prudential failed to comply with the clear legislative mandate of this language. We, therefore, hold that Ruiz was protected by uninsured motor vehicle limits of $100,000/$300,000.

Reversed and remanded with directions to enter judgment in favor of the defendant.


author: SCHEB, Judge.

text:
    David F. SOKOL, Appellant, v. Susan G. SOKOL, Appellee.
    Nos. 82-2819, 83-197.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Rehearing Granted in part, opinion modified; Rehearing Denied in part Dec. 14, 1983.

      John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, P.A., Clearwater, for appellant.

      Joseph R. Miele, St. Petersburg, for ap-pellee.
   SCHEB, Judge.

In these consolidated appeals, David Sok-ol challenges those provisions of a final judgment of dissolution granting his wife rehabilitative alimony and child support and awarding her his interest in the marital home as lump sum alimony. He further contends the court erred in finding him in contempt for failing to comply with the alimony and support requirements of the final judgment.

The Sokols married in 1968. They have two sons, ages seven and twelve. Shortly after the marriage the husband returned to college to obtain his master’s degree. He later began a career with the Department of Health and Rehabilitative Services (HRS), his last position being as a program manager with a gross annual income of $27,137. Additionally, he earned about $1,500 per year as an adjunct instructor at a junior college. In 1980 the parties agreed that the husband would attend classes on a part-time basis to work toward a doctoral degree to enhance his career prospects. In late 1981 the parties separated, and the husband decided to attend college on a full-time basis, planning to support the family from a $5,000 annual stipend, augmented by about $500 per month which the wife was receiving as a preschool teacher. After the separation the husband began sending $500 per month to his wife for support of the family.

In January 1982 the wife petitioned to dissolve the marriage. The husband continued to send her monthly support payments until the final hearing, although he did not receive the full amount of his educational stipend. At the hearing he testified he was unemployed and had no regular income. Neither the husband nor the wife had any significant assets other than their interests in the jointly-owned marital home. Although the wife was still employed as a preschool teacher, she aspired to retrain as a dental technician. The wife valued their home at $70,000; the husband at $90,000. The home was subject to a mortgage of approximately $36,000.

In the final judgment the court awarded the wife custody of the children and ordered the husband to pay $350 per month per child as support and to make monthly payments of $147 to repay a second mortgage loan obtained by the husband to consolidate some of his debts. The court also ordered the husband to pay $75 per week for three years for rehabilitative alimony and awarded the wife the husband’s interest in the marital home and furnishings as lump sum alimony. Thus, the husband’s monthly financial obligations amounted to $1,172. The court reserved jurisdiction to award attorney’s fees and costs.

When the husband failed to meet his first month’s obligations, the wife moved to hold him in contempt. The trial judge found him in contempt but made no finding that the husband had the ability to meet his obligations, or that he had voluntarily divested himself of the ability to comply with the requirements of the final judgment.

The principles of law relating to the husband’s points on appeal are well settled. First, in determining the proper amount of child support and alimony, the trial court must consider the parent/husband’s ability to pay, the needs of the children and wife, and the standards they shared during the marriage. Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979); Davis v. Davis, 371 So.2d 591 (Fla. 2d DCA 1979). Second, the trial court has broad discretion in fashioning awards necessary to achieve an equitable distribution of marital assets. This includes awarding lump sum alimony in appropriate circumstances. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Third, while appellate courts are reluctant to disturb the judgment of a trial court in respect to financial awards in marital cases, Sisson v. Sisson, 336 So.2d 1129 (Fla.1976), it nevertheless becomes our duty to do so when an award is not supported by substantial, competent evidence. DeHart v. DeHart, 360 So.2d 1285 (Fla. 2d DCA 1978). Finally, a contempt order in a domestic relations case must include a finding of the obligated party’s ability to pay the amount due or show that the court found that the party had voluntarily divested such ability. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Smith v. Smith, 430 So.2d 521 (Fla. 2d DCA 1983); Deutsch v. Deutsch, 349 So.2d 725 (Fla. 4th DCA 1977).

The evidence at the hearing reveals that the husband did not have the ability to pay financial awards to the extent ordered by the court. The trial court may nevertheless impute an income to a spouse where the evidence indicates a failure to exert oneself to meet family obligations. Kuntz v. Kuntz, 370 So.2d 1216 (Fla. 3d DCA 1979); DeHart v. DeHart; Wolfman v. Wolfman, 344 So.2d 893 (Fla. 4th DCA 1977). The husband, while unemployed at the time of the final hearing, was capable of working, although there was no evidence that he was readily employable at his former income level.

The wife testified that her husband’s maximum monthly take-home pay while working at HRS was $1,500. This was after deductions that were automatically deposited in the credit union, the exact amount of which was never clarified in the record. Assuming the trial judge imputed a take-home pay of $1500 per month to the husband, he would be left with $328 per month after meeting his financial obligations pursuant to the final judgment. This award simply consumes too large a share of the husband’s presumed ability to earn. Since the husband’s ability to pay is an essential element to be considered, Lytton v. Lytton, 289 So.2d 17 (Fla. 2d DCA 1974), we cannot wholly sustain this judgment in respect to the financial requirements that it places upon the husband for child support and alimony.

While we conclude that the trial judge abused his discretion by awarding an excessive amount of monthly financial requirements, we find no such abuse of discretion in his award to the wife of the husband’s interest in the marital home as lump sum alimony. Considering the length of the marriage, the wife’s contribution to the marriage, including her support of the husband’s educational attainments and her lack of comparable educational credentials and the wife’s needs as the custodial parent, we find no error in that award. Ganakaris.

At oral argument counsel advised that the husband had purged himself of the contempt finding. Notwithstanding, the husband contends he is entitled to have that order vacated because it does not reflect any finding of his financial ability to pay the amount due, or that he had voluntarily divested himself of such ability. The husband is correct on this point. Faircloth v. Faircloth; Smith v. Smith.

Accordingly, we agree the trial court was correct in requiring the husband to pay both child support and rehabilitative alimony and to discharge the second mortgage loan. However, we vacate the amounts awarded for alimony and support as being excessive. Otherwise, we affirm the final judgment of dissolution. We also vacate the subsequent order finding the husband in contempt.

We remand to the trial court with directions to reduce the total amount of child support and rehabilitative alimony from the present requirement of $1025 per month to a total of $550 per month, effective November 17,1982, the date of the final judgment.

The monthly awards were based on an imputation of income to the husband. Since nearly a year has elapsed since entry of the final judgment, the trial court may take additional testimony as to the present needs of the wife and children and the ability of the husband to respond. Based on that evidence the court may make any necessary revision in payments for child support and rehabilitative alimony but not to become effective until after the date of such new hearing.

Finally, we provisionally grant the wife’s motion for attorney’s fees for services of her attorney on this appeal. On remand, the trial court should determine the amount of a reasonable fee for such services and the portion of it, if any, that husband should be required to pay based on the disparity in the parties’ needs and abilities to pay. See Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

GRIMES, A.C.J., and CAMPBELL, J., concur.


author: LEHAN, Judge.

text:
    Mary E. LANDES and Landes Realty, Inc., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Florida Real Estate Commission, Appellees.
    No. 83-171.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Rehearing Denied Dec. 2, 1983.
    Barry J. McCaughey of McCaughey, Knaust & Evans, P.A., St. Petersburg, for appellants.
    Tina Hippie, Dept, of Professional Regulation, Div. of Real Estate, Orlando, for appellees.
   LEHAN, Judge.

Appellants appeal a final order of the Florida Real Estate Commission finding that appellants had violated chapter 475, Florida Statutes. The order revoked the real estate license of Mary Landes and the registration of Landes Realty, Inc. We affirm.

Appellants argued that the revocation proceedings were barred by the four year statute of limitations for civil actions pursuant to section 95.11(3)(p), Florida Statutes (1981), because the incidents which gave rise to the proceedings occurred some seven years previously. However, we agree with the First District that “In the absence of specific legislative authority, civil or criminal statutes of limitations are inapplicable to administrative license revocation proceedings.” Donaldson v. Department of Health & Rehabilitative Services, 425 So.2d 145, 147 (Fla. 1st DCA 1983).

Appellants also argue that federal bankruptcy law, specifically 11 U.S.C. § 525, prohibits a government from revoking a license of a person who has been a debtor or bankrupt under the federal bankruptcy laws solely because the person has not paid a debt that was discharged in bankruptcy proceedings. We agree with appellants that Mrs. Landes’ debt, discharged in a prior bankruptcy proceeding, could not form the sole basis for the license revocation. However, the revocation did not depend on that debt. There was competent, substantial evidence supporting the Commission’s final order which noted that other conduct of Mrs. Landes provided grounds for revoking her license.

AFFIRMED.

OTT, C.J., and RYDER, J., concur.


text:
    James F. ALLEN, beneficiary of the Estate of Tamara Jo Allen, deceased, Appellant, v. Marilyn J. ALLEN, as Personal Representative of the Estate of Tamara Jo Allen, deceased, Appellee.
    No. 83-398.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Rehearing Denied Dec. 5, 1983.
    Douglas R. Bald of Fergeson, Skipper & Shaw, P.A., Sarasota, and Yanchuck, Thompson & Young, P.A., St. Petersburg, for appellant.
    Michael Sierra, P.A., and David Michael Carr, P.A., Tampa, for appellee.
   PER CURIAM.

We note that the trial court’s order approving attorney’s fees does not preclude, nor do we intend for this opinion to prevent, the trial court in the suit involving distribution of the settlement proceeds from calculating each surviving beneficiaries’ proportionate share of the settlement amount and apportioning the approved attorney’s fee in accordance with the amount awarded to them.

AFFIRMED.

OTT, C.J., and HOBSON and GRIMES, JJ., concur.


text:
    SEMINOLE EDUCATION ASSOCIATION and Ray Masters, Appellants, v. SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Appellee.
    No. 82-1683.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.
    Rehearing Denied Dec. 19, 1983.
    John J. Chamblee, Jr., of Chamblee & Miles, Tampa, for appellants.
    Marcia K. Lippincott of Marcia K. Lippin-cott, P.A., Orlando, for appellee.
    C. Anthony Cleveland, Gen. Counsel FE A/United, Tallahassee, for amicus curiae Florida Educ. Ass’n/United.
    Pamela L. Cooper, Office of Gen. Counsel, Florida Teaching Profession, Tallahassee, for amicus curiae The Florida Teaching Profession — NEA.
    Gerald A. Williams, Haygood & Williams, P.A., Labor Atty., School Bd. of Dade County, Florida, Miami, for amicus curiae The School Bd. of Dade County, Florida.
    Andrew B. Thomas of Rowland & Thomas, P.A., Orlando, for amicus curiae The School Bd. of Orange County, Florida.
   PER CURIAM.

AFFIRMED on the authority of School Board of Seminole County v. Cornelison, 406 So.2d 484 (Fla. 5th DCA 1981), cert. denied, 421 So.2d 67 (Fla.1982).

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


text:
    Robert A. CARTWRIGHT and Norma Kieth Cartwright, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 83-612.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Rehearing Denied Jan. 4, 1984.
    David A. Graham, Fort Lauderdale, for appellants.
    Thomas E. Neale of Hill & Neale, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm that portion of the final judgment which allowed appellants’ uninsured motorist insurer, Allstate, a setoff against an arbitration award equal to the tort-feasor’s liability coverage. Government Employees Insurance Company v. Lang, 387 So.2d 976 (Fla. 2d DCA 1980); Bruno v. Travelers Insurance Company, 386 So.2d 251 (Fla. 3d DCA 1980); Dickey v. Grange Mutual Casualty Company, 370 So.2d 1234 (Fla. 2d DCA 1979); State Farm Mutual Auto Insurance Company v. Diem, 358 So.2d 39 (Fla. 3d DCA 1978). However, we reverse the trial court’s decision not to award attorney’s fees for the time expended to prepare the motion to compel arbitration. U.S. Fidelity and Guaranty Company v. State Farm Mutual Automobile Insurance Company, 369 So.2d 410, 412 (Fla. 3d DCA 1979).

Accordingly, we affirm in part, reverse in part and remand with instructions to award appellants a reasonable attorney’s fee for preparation of the motion to compel arbitration.

GLICKSTEIN and HURLEY, JJ., and SMITH, CHARLES E., Associate Judge, concur.


author: DANAHY, Judge.

text:
    Bronna Mae HUGHES, Appellant, v. Lionel Purcell HUGHES, Appellee.
    No. 83-518.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Rehearing Denied Dec. 19, 1983.

      Thomas J. Donnelly, Clearwater, for appellant.
    Loyd C. Mosley of Mosley & Evans, Clearwater, for appellee.
   DANAHY, Judge.

The marriage of the parties to this appeal was dissolved by a final judgment entered in Clay County. Thereafter the ex-wife and her child became residents of Pinellas County, and the ex-husband became a resident of St. Johns County. These proceedings began when the ex-wife filed a petition in Pinellas County asking that the ex-husband’s arrearage in child support be reduced to judgment, that the ex-husband be ordered to pay medical expenses as required by the final judgment, and that the ex-wife be awarded attorneys’ fees and costs.

The trial judge dismissed the ex-wife’s petition on the grounds that the circuit court for Pinellas County did not have jurisdiction of the matter and that venue was improper. This appeal by the ex-wife followed. We reverse.

Section 61.17(1), Florida Statutes (1981), specifically states:

(1) An order of judgment for the payment of alimony or child support or either entered by any court of this state may be enforced by another chancery court in this state in the following manner:
(a) The person to whom such alimony or child support is payable or for whose benefit it is payable may procure a certified copy of the order or judgment and file it with a complaint for enforcement in the circuit court for the county in which the person resides or in the county where the person charged with the payment of the alimony or child support resides or is found.

If a suit is brought under a specific statute that provides its own individual venue, then such specifically prescribed venue governs over the general venue statute. Stewart v. Carr, 218 So.2d 525 (Fla. 2d DCA 1969). Thus, if this proceeding is an effort to enforce the final judgment of dissolution of marriage between the parties, section 61.17(1) applies and specifically provides for venue in the county of the ex-wife’s current residence, which is Pinellas County. The ex-husband makes much of the fact that the ex-wife’s petition begins with the words “this is an action for damages in excess of $5,000,” and contends that the instant action is nothing more than an action for damages. We disagree. The ex-wife’s petition goes on to say that it is “to enforce a Final Judgment of Dissolution of Marriage which occurred in the Circuit Court of ... Clay County.” We believe that the action is to enforce the final judgment of dissolution of marriage and that section 61.17(1) controls. Thus the circuit court for Pinellas County has jurisdiction of this action and venue lies in that county.

We reverse the trial judge’s order dismissing the petition and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: BOARDMAN, Judge.

text:
    Sam Edward BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-397.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
   ON MOTION FOR REHEARING

BOARDMAN, Judge.

Upon consideration of appellee’s motion for rehearing and appellant’s response, we grant the motion and substitute the following for our original opinion of September 16, 1983.

Sam Edward Brown appeals the order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, wherein he alleges an involuntary waiver of his right to counsel. We reverse.

In December 1980, appellant was convicted on charges of robbery, attempted grand theft, and false imprisonment. In June 1981, this court affirmed his convictions for robbery and false imprisonment but reversed the judgment and sentence for attempted grand theft. Brown v. State, 400 So.2d 510 (Fla. 2d DCA 1981).

In October 1982, appellant filed his Rule 3.850 motion, alleging denial of a fair trial and that he failed to voluntarily and intelligently waive his right to assistance of counsel. The trial court held a short hearing on the motion with the assistant state attorney, after which the court reviewed the briefs filed by both appellant and appellee in appellant’s direct appeal. From that the court apparently concluded that appellant’s present claim of involuntary waiver of counsel had been raised on his direct appeal. Our review of the record indicates otherwise. The sole reference in the briefs to appellant’s representing himself at trial related to appellant’s failure .to object to an improper jury instruction. We submit that this comment does not adequately address the claim now raised in appellant’s motion. Moreover, we did not consider that issue in our opinion on direct appeal.

Accordingly, we reverse. On remand the trial court is directed to reconsider the motion as though it has been presented to it for the first time. The court may initiate whatever proceedings it deems necessary to rule on appellant’s allegation. To obtain further review in this cause, the aggrieved party must appeal the new ruling of the trial court.

• REVERSED and REMANDED with instructions.

OTT, C.J., and DANAHY, J., concur.


author: COBB, Judge.

text:
    Leroy HARRIELSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1154.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1983.
    Rehearing Denied Dec. 16, 1983.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant, Leroy Harrielson, appeals his convictions of sexual battery in violation of section 794.011(2), Florida Statutes (1981), and possession of a firearm by a convicted felon. We find sufficient evidence to support the latter conviction and affirm without further discussion of that issue.

The point urged by appellant in regard to his sexual battery conviction is that the trial court erred in refusing to instruct the jury that a lesser included offense thereof is lewd assault as defined by section 800.04, Florida Statutes (1981). That section provides:

Lewd, lascivious or indecent assault or act upon or in presence of child. — Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083 or § 775.084.J
The indictment of'the defendant for sexual battery specified:
Leroy Harrielson, a person over the age of eighteen (18) years, did, on or about from the dates of July, 1976 on diverse occasions thru June of 1981, within Volu-sia County, Florida, then and there unlawfully commit a sexual battery upon ROBIN HOGUE, a person eleven (11) years or younger, to wit, Ten (10) years of age, by oral and vaginal penetration with his sex organ.

The appellant argues that the indictment contained all of the elements of a lewd assault, and that there was evidence adduced at trial by the minor victim of acts by the defendant which would support a conviction of lewd and lascivious assault upon a child under 14 years of age. It is contended that the alleged conduct of the defendant (oral and vaginal penetration) shows a “wicked, lustful, unchaste, licentious or sensual intent” on the part of the defendant. See Florida Standard Jury Instructions in Criminal Cases, 2d Ed., p. 122 (defining the terms lewd, lascivious and indecent for purposes of § 800.04). The appellant thus concludes that “the dividing line between these two offenses (sexual battery and lewd assault) is the ultimate determination of the existence of an intent to sexually batter, but it is within the province of the jury ... to determine the existence vel non of an intent to sexually batter when a lewd, lascivious, or indecent act is performed upon a child.”

The state, on the other hand, points out that a lewd and lascivious assault is not listed as either a category one or two offense under the Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases (1981 ed.). This schedule became effective October 1, 1981, and purported to modify and supersede the categories enumerated in Brown v. State, 206 So.2d 377 (Fla.1968). See Borges v. State, 415 So.2d 1265 (Fla.1982).

The state persuasively argues that the instant indictment charges Harrielson with no offensive conduct other than acts which constitute sexual battery — the commission of which clearly implies the very intent which by definition negates the offense of lewd assault. If the allegations of the instant indictment are proven, says the state, the elements of lewd assault are not encompassed, as in the case of a lesser included offense. Here, any lewd acts were merely incidental to the conduct specifically charged and at issue in the case: oral and vaginal penetration of a minor constituting sexual battery. The state asserts that no jury instruction is required unless the specific conduct announced as criminal in the charging document could also support a finding of a lesser included offense based on that specific conduct alleged. We agree.

In Bell v. State, 437 So.2d 1057 (Fla.1983), the Florida Supreme Court, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), stated that “lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense. Conversely, offenses are separate and distinct if each contains an essential element that the other does not.” At 1058. An essential element of sexual battery is the intent to commit it; an essential element of lewd assault under section 800.04 is that sexual battery is not intended. Thus, the Blockburger test is met and neither offense can be a necessarily included offense of the other. Nor, as pointed out by the state, given the succinct language of the instant indictment, is there a lesser included offense of lewd assault even under the “alleged evidence test” for permissible lesser included offenses discussed in Bell and reflected by category four of Brown and category two of the standard jury instructions.

In S.L.S. v. State, 404 So.2d 1105 (Fla. 1st DCA 1981), review denied, 415 So.2d 1361 (Fla.1982), relied upon by the appellant, the juvenile defendant was tried for attempted sexual battery under section 794.011(2), Florida Statutes (1979), the basis for the charge in the instant case. He was ultimately adjudicated delinquent, over objection, of the offense of lewd, lascivious, or indecent assault under section 800.04, Florida Statutes (1979), the crime for which the instruction was requested in the instant case. The objection in S.L.S. was that the offense for which there was a conviction (lewd assault) was not a lesser included offense of attempted sexual battery, and this was the gist of the argument on appeal. The appellate court agreed that lewd assault is not a necessarily lesser included offense of attempted sexual battery, but found that the accusatory pleading in that case sufficiently alleged all of the elements of lewd assault and that the facts supported such a charge under a Brown category four approach.

The accusatory pleading is not set forth in the S.L.S. opinion, but presumably it contains superfluous allegations of lewd conduct unconnected with the intentional commission of a sexual battery. If not, then we reject its conclusion as erroneous and in conflict with Blockburger and Bell.

For the foregoing reasons, we believe the trial judge correctly refused the requested instruction in the instant case, and the defendant’s judgment and sentence for sexual battery and for possession of a firearm by a convicted felon are

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

      . Section 794.011(2) provides:
      A person 18 years oí age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss. 775.082 and 921.141. If the offender is under the age of 18, that person shall be guilty of a life felony, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

      . A category four (4) offense, or permissible lesser included offense, under Brown v. State, 206 So.2d 377 (Fla.1968).

      . We must, however, echo the puzzlement evinced by Judge Cowart in his dissenting opinion in Baker v. State, 425 So.2d 36, 57 n. 39 (Fla. 5th DCA 1983), wherein he questions how any list of Brown category four (permissible) lesser included offenses can be compiled without reference to the particular written charges or evidence in the case under consideration.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    Robert John WINICKI, Appellant, v. Robert A. MALLARD, et al., Appellees.
    No. AT-178.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Certiorari Denied Feb. 21, 1984. See 104 S.Ct. 1286.
    See also, 436 So.2d 926.

      Robert John Winicki, pro se.
    Barbara Staros Harmon, Asst. Atty. Gen., Tallahassee, for appellees Randy Miller and Jim Smith, Atty. Gen.
    Linda Logan Bryan, Asst. Gen. Counsel, Jacksonville, for appellees Robert A. Mallard and Lynwood Roberts.
   ON REHEARING

THOMPSON, Judge.

Winicki, an attorney litigant proceeding pro se, filed a complaint in circuit court requesting that the five-year consecutive residency requirement of §§ 196.-031(3)(d), .031(3)(e), Fla.Stat. be declared violative of the United States Constitution. He alleged that the Florida court had jurisdiction in matters relating to property transactions, that his suit was a civil action for monetary and injunctive relief pursuant to 42 U.S.C. § 1983 and that he was entitled to costs and attorney’s fees pursuant to 42 U.S.C. § 1988. The circuit court ruled that §§ 196.031(3)(d), .031(3)(e) violated the right to equal protection under the United States Constitution, and the defendants appealed to this court. This court affirmed the circuit court for the reason enunciated in and on the authority of Osterndorf v. Turner, 426 So.2d 539 (Fla.1982). In Ost-erndorf the Supreme Court found,' based solely on the equal protection clause of the Florida Constitution, that the durational residency requirement of §§ 196.-031(3)(d), .031(3)(e) was unconstitutional. The lower court denied Winicki’s motion for attorney fees, citing Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir.1981), and Winicki appealed this denial. The denial of attorney fees was per curiam affirmed without written opinion by this court. Winicki seeks rehearing, which for the reasons below we deny.

Winicki contends that the sole issue in this case is whether 42 U.S.C. § 1988 provides for an award of attorney fees to a prevailing party who is a licensed attorney representing himself. Winicki argues that it is clear from Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983) that Co field did not prohibit the award of attorney fees to a licensed attorney representing himself but expressly left this issue open. Although Cofield, which involved a non-attorney pro se litigant and left open the question of whether attorney fees should be awarded under the Civil Rights Attorney’s Fees Awards Act to an attorney litigant proceeding pro se, does not support the trial court’s denial of Winicki’s motion for attorney fees, we conclude the trial court properly denied the motion for attorney fees. See generally Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).

Under 42 U.S.C. § 1988 the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee. In cases such as Cazalas, dealing with entitlement to a fee award in Freedom of Information Act (5 U.S.C. § 552) cases, two of .the factors considered by the courts is whether the pro se attorney litigant has performed a service to the public generally or whether it is a personal benefit to the pro se litigant. Although this clearly was not a Freedom of Information Act case, it seems that the test of whether the pro se attorney litigant has performed a service which would benefit the public generally or whether he has merely performed a service which would benefit himself personally would be important in a case such as this case. Although Winicki modestly claims credit for having the courts declare the act unconstitutional, the fact remains that there were at least two other cases, both brought by attorney litigants, proceeding pro se, involving exactly the same question already before Florida appellate courts when Winicki filed his complaint. See Maguire v. Schultz, 426 So.2d 1303 (Fla. 2d DCA 1983); Osterndorf v. Turner, 411 So.2d 330 (Fla. 5th DCA 1982). Additionally, Osterndorf was on certiorari to the Supreme Court of Florida before the circuit court opinion in this case was obtained. It was obvious that Osterndorf would decide the precise constitutional question raised by Winicki long before a final decision could be reached in his ease. The only benefit that could possibly be derived from pursuing his case would be a personal benefit to protect his own interest. Accordingly, even if the question should be decided in accordance with federal cases interpreting federal law, the attorney’s fees were properly denied because of the lack of public benefit derived from Winicki’s actions. Otherwise, all of the attorneys in the state with standing could file suits pro se to declare a state law unconstitutional and, if one is successful, all could collect substantial fees.

In addition, the plaintiff elected to file this action in the state court alleging violation of the federal law and federal constitution. The correctness of the lower court’s finding that §§ 196.031(3)(d), .031(3)(e) was unconstitutional was expressly upheld by this court on the basis of Osterndorf, which was based solely on the Florida Constitution, not on the United States Constitution or -42 U.S.C. § 1983. Under these circumstances, Florida law, not federal law should apply and there is no basis for the award of an attorney’s fee under Florida law in this case.

Winicki made it clear in his motion for attorney’s fees that he was exposing his federal statutory right to attorney’s fees to. the circuit court only because of the possible application of 28 U.S.C. § 1341, or the doctrines of abstention and that he intended, should the state court hold against him, to return to the federal district court for disposition of his federal claims. If he has a claim for attorney’s fees in federal court, which it does not appear he would even under federal law, then he is free to pursue it.

Rehearing denied.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. The trial court, adopting the reasoning of Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir.1981), summarily denied Winicki’s motion for attorney’s fees without reaching the merits of that motion. On further reflection, I am unable to agree with the majority’s affirmance of the denial and would, instead, reverse and remand the case to the lower court to decide on the merits whether the motion should be granted.

Cofield reflects the general view that a pro se, non-attorney litigant- may not recover attorney’s fees under the various federal statutes providing therefor. For example, attorney’s fees have been denied such litigants when sought in civil rights cases pursuant to 42 U.S.C. § 1988, see Cofield; Pitts v. Vaughn, 679 F.2d 311 (3d Cir.1982); Owens-El v. Robinson, 694 F.2d 941 (3d Cir. 1982); as well as in suits brought under the Freedom of Information Act (FOIA), see Clarkson v. Internal Revenue Service, 678 F.2d 1368 (11th Cir.1982), and under the federal Privacy Act, see Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir.1981).

A different result has been reached, however, in cases wherein the litigant is an attorney appearing in propria persona. The various state courts that have sustained the propriety of awarding attorney’s fees to a pro se attorney litigant are divided on the issue, see Annotation 78 A.L.R.3d 1119 (1977), but the weight of authority appears to support the award of such fees if permitted by statutory authority. Following what it terms the “narrow majority of jurisdictions”, Florida’s Third District Court of Appeal upheld an award of attorney’s fees to an attorney appearing on his own behalf in an action seeking damages for securities violations under Chapter 517, Florida Statutes. Quick & Reilly, Inc. v. Perlin, 411 So.2d 978, 980 (Fla. 3d DCA 1982). Federal courts, faced with the same issue, have similarly awarded fees to pro se attorney litigants if allowed by federal statutes, despite the courts’ denial of such fees to non-attorney litigants. See Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977) (pro se attorney litigant in FOIA suit entitled to fees); Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980) (pro se attorney defendants entitled to fees under § 1988 as prevailing parties in frivolous and vexatious lawsuit). Indeed, several courts, in denying fee requests from non-attorney pro se litigants, have suggested a different result would be required if the litigant had been an attorney. See Pitts, 679 F.2d at 313; Barrett, 651 F.2d at 1089; Owens-El, 694 F.2d at 943; Clarkson, 678 F.2d at 1371.

As the majority acknowledges, the above distinction between attorney and non-attorney pro se litigants has likewise been recognized by the Fifth Circuit Court of Appeals. Cofield, upon which the trial court relied, while observing that the successful pro se plaintiff was not an attorney, denied the request for fees, finding that the congressional purpose in enacting section 1988 was “to enable and encourage a wronged person to retain a lawyer.” 648 F.2d at 988. In the case at bar, we previously affirmed without opinion the lower court’s order denying attorney’s fees, which was in turn based upon the analysis stated in Cofield. The lower court’s order never reached the merits of the question of Winicki’s entitlement to such fees.

Appellant, on motion for rehearing, has brought to our attention the case of Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983), which is a more recent refinement of the Cofield rule, wherein the court held that an award of attorney’s fees may appropriately be granted to an attorney acting in propria persona. The opinion distinguished between prior decisions in which the question of the propriety of awarding fees to pro se attorney litigants had not been decided, expressly noting that Cofield had “left open the same question under the Civil Rights Attorney’s Fees Awards Act.” 709 F.2d at 1055 n. 8.

Despite the Fifth Circuit’s unambiguous acknowledgment that a distinction should be drawn between attorney and non-attorney pro se litigants when assessing the propriety of attorney’s fee awards, and that court’s specific statement that Cofield did not decide the issue as it relates to the propriety of such awards under section 1988, the majority would now affirm the trial court’s denial of fees by referring to Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), evidently for the proposition that “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” Id. at 1152. The majority itself then proceeds to advance such a theory by addressing the merits of Winicki’s claim and thereupon concludes, on several grounds, that his claim is without merit.

The obvious distinction between Apple-gate and the case at bar is that the trial court in Applegate, before which a non-jury trial was held, reached the merits of the dispute, albeit without benefit of a court reporter’s presence. Because the appellant was unable to bring forward an adequate record to support its contention that reversible error had occurred, there was no recourse for an appellate court to do other than affirm the trial court’s decision. In the case before us, however, there is nothing to suggest that the trial court considered or determined the merits of Win-icki’s claim. In my judgment it is therefore improper at this juncture for the majority to acknowledge that Cofield does not support the trial court’s denial of fees, but then affirm on the merits of the claim, when the merits were never considered by the lower court and therefore could not be considered as an alternative basis for its decision to deny his request for attorney’s fees.

I would therefore grant rehearing and reverse the trial court’s denial of Winicki’s motion for attorney’s fees under section 1988, and remand for the purpose of allowing that court to exercise its discretion on the merits of the issue as to whether Win-icki is entitled to recover a reasonable attorney’s fee.

      . The majority relies on federal cases interpreting the Freedom of Information Act (specifically 5 U.S.C. § 552), requiring as a precondition to an award of fees that an attorney perform a service to the public generally. This requirement may not be applicable, however, to actions instituted under section 1988. Coñeld itself questions the persuasiveness of opinions construing the Freedom of Information Act and those involving the civil rights statutes:
      For example, it seems to us that actions brought under the Freedom of Information Act are likely to be brought by pro se litigants; damages are generally not involved and the relief sought is simply the release of information. Furthermore, section 552(a)(4)(F) may suggest that an award of attorney’s fees may be in part punitive, “a useful sanction for unfounded resistance to a disclosure request....” Lovell v. Alderete, 630 F.2d at 437 (Thomas A. Clark, Circuit Judge, dissenting). There is no suggestion that an award of section 1988 attorney’s fees should be in any way punitive.
      648 F.2d at 988 n. 4.


author: HERSEY, Judge.

text:
    In re the FORFEITURE OF BLUE 1979 2-DOOR TOYOTA, TAG # DFJ-442, VIN # TE31377910.
    No. 83-589.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Philip J. Montante, Jr., Pompano Beach, for appellants, City of Pompano Beach, Florida, and City of Pompano Beach Police Dept.
    Robert C. Furr, Boca Raton, for appellee, Beverly Fitzsimmons.
   HERSEY, Judge.

The City of Pompano Beach, unsuccessful in its attempt to obtain forfeiture of a Toyota automobile allegedly used in a burglary, brings this appeal.

Testimony indicates that items involved in the burglary were found in the Toyota, which is owned by Beverly Fitzsimmons, and that her son had possession of the automobile at the time of the burglary. Forfeiture was thus appropriate under section 932.703, Florida Statutes (1981) unless Fitz-simmons could show that she “neither knew nor should have known after a reasonable inquiry that such property [her Toyota] was being employed or was likely to be employed in criminal activity.”

The following evidence on this issue was adduced: Appellee testified at trial that she allowed her son Kevin to take her car to the store “a couple of times and that was it.” She did not know her son Kevin had taken the car on November 3, 1981, because she was not home that evening. At that time, Kevin did not have permission to use the car. However, he had used the car on several previous occasions without permission, incurring numerous traffic citations of which appellee was aware. A previous burglary charge against Kevin showed that the car had been used in the commission of that crime. Appellee was unaware of that fact until after the crime had been committed and the police had contacted her. Appellee testified that she had no reason to believe her son would take her car on the night of November 3, 1981, or that the car would be involved in a felony. The first knowledge she had of her son’s offense and the involvement of the car was when her daughter called to tell her Kevin had been arrested.

There were two sets of keys to the vehicle, one in the possession of the appellee and one in the possession of her daughter, Kelly. Appellee and her daughter testified that to their knowledge Kevin did not have a set of keys to the 1979 Toyota. Appellee also testified that her son was forbidden to use the car and that she kept her keys in her purse as a measure to prevent him from doing so. Aside from this, she felt there was nothing else she could do. The night of the underlying felony, appellee had her keys with her. Kelly had her own set in the bedroom in which she slept. She testified that the keys were gone the next morning and that she thought her brother had taken them.

The trial court found that appellee had met her burden under the statutory exemption and denied forfeiture. We agree. The cases relied upon as supporting a different result are distinguishable. In United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir.1977) the owner of the automobile permitted his son to use it with little restriction although aware of his possible involvement with narcotics and never took any precautions to prevent the proscribed use. In re 1979 Lincoln Continental, 405 So.2d 249 (Fla. 3d DCA 1981) affirmed a forfeiture for two reasons one of which was that the trial court may not have believed the “self-serving, uncorroborated, and highly dubious recounting of the circumstances under which” the owner of the vehicle entrusted it to her supposedly estranged husband. Thus the owner failed to affirmatively prove the statutory defense. The present case represents the opposite side of that coin. Here the trial court believed the evidence of exoneration.

Finding the result to be supported by substantial competent evidence, we affirm.

AFFIRMED.

DOWNEY and LETTS, JJ., concur.