text:
    Alan GREENSTEIN and Cindy Greenstein, Appellants, v. GREENBROOK, LTD., Jack A. Winston, Ira Grabow, Florida Housing Capital Corporation and Housing Capital Corporation, Appellees.
    No. 83-510.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      George, Hartz, Burt & Lundeen and Charles George, Miami, for appellants.
    Goldberg, Semet, Lickstein & Morgen-stern, Coral Gables, and Alan R. Stone, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

The Greensteins’ suit for specific performance against the seller, Greenbrook, Ltd., and the alleged titleholder, Florida Housing Capital Corporation, of the home they contracted to purchase ended in a judgment for the defendants which was affirmed in Greenstein v. Greenbrook, Ltd., 413 So.2d 842 (Fla. 3d DCA 1982). The plaintiffs then instituted the present action seeking damages sustained in that transaction based upon theories of breach of contract as against Greenbrook, and interference with the Greenstein-Greenbrook contractual relationship as against Florida Housing and three additional defendants, Jack Weinstein, Ira Grabow and Housing Capital Corporation. The complaint was dismissed with prejudice and the Green-steins again appeal.

We affirm the dismissal of the defendants Greenbrook and Florida Housing upon the application of that aspect of the doctrine of res judicata which forbids “splitting” a cause of action. When the plaintiffs initially sued those defendants, it was incumbent upon them then to raise all available claims or demands for relief arising out of the alleged breach. Their failure to do so precludes subjecting those defendants to another successive action based on the same conduct. Gaynon v. Statum, 151 Fla. 793, 10 So.2d 432 (1942); Beck v. Pennsylvania National Mut. Casualty Co., 279 So.2d 377 (Fla. 3d DCA 1973); 1 Fla.Jur.2d Actions §§ 56, 59 (1977).

This ground, however, obviously has no application to the three defendants, Weinstein, Grabow, and Housing Capital Corporation, who were not joined in the first case. Since we find that the complaint states a cause of action against them for tortious interference with a contractual or business relation, e.g., Nitzberg v. Zalesky, 370 So.2d 389 (Fla. 3d DCA 1979), the dismissal of the complaint against them is reversed for further proceedings.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: BASKIN, Judge.

license: Public Domain

text:
    Anthony J. BLATY, Appellant, v. Deane BLATY, Appellee.
    No. 83-843.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Arnold Nevins, Miami Beach, for appellant.
    Sams, Gerstein, Ward, Newman & Beck-ham and Frank Newman, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

The husband appeals the trial court’s order (1) awarding the wife his interest in the marital home; (2) requiring the husband to provide the wife with a new car titled in her name; and (3) directing the husband to repay the $10,500 life insurance loan.

Upon careful review of the record, and mindful of the trial court’s superi- or vantage point, we cannot reach the conclusion that no reasonable person would take the view adopted by the trial court. Determining, on the contrary, that reasonable persons could differ as to the propriety of the trial court's action, we find no abuse of discretion in the trial court’s order. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


author: PER CURIAM.

text:
    Bernardo Carlos PERDOMO, Appellant, v. JACKSON MEMORIAL HOSPITAL, Public Health Trust, etc., Jane Chatfield, Jay Weinstein, John Doe Insurance Company, etc., et al., Appellees.
    No. 83-881.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Kathleen Phillips, Coral Gables, and Joel V. Lumer, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Teresa L. Mussetto, Asst. County Atty., for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The appellant appeals from a final order dismissing his third amended complaint with prejudice. The order reads in pertinent part as follows:

“The main thrust of the Third Amended Complaint is an attempt to state a cause of action for wrongful discharge under the Civil Rights Act of 1891. Throughout the complaint, Plaintiff alleges that his constitutional and civil rights have been denied.
However, nowhere does the plaintiff allege some racial, or otherwise class-based, invidiously discriminatory animus underlying defendants’ complained-of actions. Accordingly, no Equal Protection cause of action has been stated. See Griffin v. Breckenridge, 403 U.S. 88 [91 S.Ct. 1790, 29 L.Ed.2d 338] (1971). Further, while Plaintiff indicates in Paragraph 37(c) that an administrative hearing was afforded him, he nowhere alleges that he was not given an opportunity to be heard, to present testimony and other evidence, or to cross-examine his employer’s witnesses. In other words, no cause of action based on deprivation of property without due process has been stated. Where, as here, a remedy (the administrative hearing) has been provided to Public Health Trust employees who are dismissed, since Plaintiff has not alleged that the remedy provided him through that hearing is not sufficient to satisfy the requirements of due process, no cause of action is stated under 42 U.S.C. Section 1983. See Parrott v. Taylor, 451 U.S. 527, 543-44 [101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420] (1981).
The assertion of wrongful discharge appears, under various theories (including defamation and fraud), in every count of the Third Amended Complaint. However, as Plaintiff has not alleged that he was discharged because of his membership in a protected class, or because he engaged in constitutionally-protected activity, or that the administrative hearing afforded him did not satisfy procedural due process requirements, a cause of action for wrongful discharge has nowhere been stated.
Turning to the remaining allegations of the complaint, Plaintiff asserts: (1) that co-worker Defendants, while acting within the scope of their employment at the hospital, defamed Plaintiff through the letter of dismissal placed in his personnel file, (2) that certain defendants acted as supervisors and directors at the hospital without proper licensure, (3) that defendants conspired to defame Plaintiff, and (4) that Plaintiffs wife has suffered a consequent loss of consortium.
Within the four corners of the complaint, Plaintiffs allegations fail to state a cause of action, or affirmatively defeat assertion of a claim against defendants, based upon defamation alone. See Paul v. Davis, 424 U.S. 693 [96 S.Ct. 1155, 47 L.Ed.2d 405] (1976) (no cause of action under 42 U.S.C. Section 1983 for defamation alone); City of Miami v. Wardlow, 403 So.2d 414 (Fla.1981) (public employee absolutely immune from suit for defamation based on actions within scope of duties); McCuller v. Jackson Memorial Hospital Public Health Trust, 418 So.2d 1155 (Fla. 3d DCA 1982) (same as Wardlow); Sanchez v. Mercy Hospital, 386 So.2d 42 (Fla. 3d DCA 1980); Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977); Timmons v. Firestone, 283 So.2d 63 (Fla. 4th DCA 1973); Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973) (under Fla.R.Civ.P. 1.110(d), affirmative defense may be raised on motion to dismiss where defense is apparent on face of complaint). Further, Florida’s Clinical Laboratory Law, Chapter 483, Florida Statutes, does not appear to imply a private right of action such as Plaintiff here seeks to assert. See Cort v. Ash, 422 U.S. 66 [95 S.Ct. 2080, 45 L.Ed.2d 26] (1975).
Since the counts regarding the goals of the “conspiracy” (defamation, wrongful discharge and improper licensure) fail, so too the conspiracy count fails. See Liappas v. Augoustis, 47 So.2d 582 (Fla.1950). Further, Plaintiff has failed to allege a conspiracy in this case. See Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025, 1029 (Fla. 3d DCA 1981).
Lastly, Plaintiff properly alleges in Paragraph 59 that the alleged Consortium claim is derivative. Accordingly, it cannot stand alone. Further, loss of consortium is not within the spectrum of interests guaranteed by the Constitution or Federal law. Such a claim is not cognizable in a civil rights action, and is neither ancillary nor pendent to such an action. See Walters v. Village of Oak Lawn, 548 F.Supp. 417 (N.D.Ill.1983 [1982]).
Because this Court has determined that the Motion to Dismiss has merit, and because Plaintiffs counsel has indicated to the Court that he does not wish a further opportunity to amend the Third Amended Complaint, it is
ORDERED and ADJUDGED that the Third Amended Complaint filed herein be, and the same is hereby, dismissed with prejudice.”

Following a review of the order, we find no error and affirm. See and compare City of Miami v. Wardlow, 403 So.2d 414 (Fla.1981); McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Scott v. National Airlines, Inc., 150 So.2d 237 (Fla.1963); McCuller v. Jackson Memorial Hospital Public Health Trust, 418 So.2d 1155 (Fla. 3d DCA 1982); Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3d DCA 1976); Gaballah v. Johnson, 629 F.2d 1191 (7th Cir.1980).

Affirmed.

       Plaintiff s allegations of stigma plus the loss of employment have already been addressed by the Parratt due process analysis above.


text:
    ASHLEY PROPERTIES, INC., Appellant, v. GREENLEAF REALTY CORPORATION, Appellee.
    No. 83-981.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Terrence E. Rosenberg, Miami, for appellant.
    A. John Goshgarian, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    FLORIDA KEYS AUDUBON SOCIETY, INC., Florida Audubon Society, Inc., and Florida Keys Citizens Coalition, Inc., Appellants, v. MONROE COUNTY, et al., Appellees.
    No. 83-1122.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Rehearing Denied Jan. 31, 1984.
    Milledge & Hermelee and Earl G. Gallop and Betsy Sherwin Stiss, Miami, for appellants.
    Luden C. Proby, Jr., and Ronald Saunders, Key West, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Finding that the appellants have failed to allege an actual, present, justiciable controversy, we affirm the trial court’s dismissal of the amended complaint for failure to state a cause of action for declaratory judgment. See Groover v. Adiv Holding Company, 202 So.2d 103 (Fla. 3d DCA 1967); Grable v. Hillsborough County Port Authority, 132 So.2d 423 (Fla. 2d DCA 1961).

Affirmed.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Armando A. VALDES, Appellee.
    No. 83-1134.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellant.
    Hacker & Matters, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

The state appeals an order dismissing an information charging Armando Valdes with possession of cocaine, intent to sell or deliver cocaine and trafficking in cocaine. We have jurisdiction. Fla.R.App.P. 9.140(c)(1)(A). We reverse.

Armando Valdes made two unsuccessful attempts to depose two potential state witnesses who were participants in the undercover transaction which led to his arrest. The trial court then ordered the state to produce the witnesses for depositions. The witnesses failed to appear at the time scheduled for the depositions. Thereupon, the lower court dismissed all charges against Valdes as a sanction for the state’s failure to produce the witnesses.

It is well established that it is not the responsibility of the prosecution to produce the state’s witnesses for depositions. Turiano v. Butterworth, 416 So.2d 1261 (Fla. 4th DCA 1982); State v. Adderly, 411 So.2d 981 (Fla. 3d DCA 1982); State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974). Furthermore, as this court stated in State ex rel. Gerstein v. Durant, 348 So.2d 405, 408 (Fla. 3d DCA 1977): “[t]o order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from essential requirements of law.”

Accordingly, the order dismissing the charges against Valdes is reversed and the cause is remanded for proceedings consistent with this opinion.


text:
    GENERAL INSURANCE COMPANY, Appellant, v. Vladimiro RAMANOVSKI, Sr., Appellee.
    No. 83-1238.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Rehearing Denied Jan. 31, 1984.

      Joe N. Unger, and Kopplow & Flynn, Miami, for appellant.
    Stephen Cahen, P.A. and David Wallis, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

General Insurance Company appeals the final judgment in favor of appellee Rama-novski. The trial court determined that Ramanovski’s renewed automobile insurance contract with appellant was valid and effective despite the omission by Ramanov-ski of the name of his fifteen-year-old son, the holder of a restricted driver’s license, from the insurance renewal application. Appellant maintains that Atlantic Insurance Consultants, whose employee filled out the renewal application for Ramanov-ski, acted as an insurance “broker.” Thus, appellant contends, Atlantic was the agent for the insured, and its knowledge is imputable, not to General Insurance, but to the insured; accordingly, General contends, the failure to list Ramanovski’s minor son as a driver precludes coverage under the subject policy. We reject appellant’s contentions, and adopt the order entered by the trial court. The trial court found in pertinent part:

The testimony showed that in April 1980 Defendant wanted Plaintiff to insure his automobile. On April 23, 1980 Defendant went to Atlantic Insurance Consultants Corporation (hereinafter called Agent) and inquired if it was an Agent for insurer. The Agent replied affirmatively. This Court finds that Agent is General Agent of Plaintiff.
Plaintiff, prior to April 23, 1980 had supplied Agent with its automobile insurance application forms, binder forms giving the Agent authority to bind Plaintiff, and all Drivers/Correct address form. All these forms were supplied to Agent with Plaintiff’s name therein. Plaintiff’s' binder form supplied to Agent stated the check to pay for the insurance was to be made payable to the Plaintiff.
Plaintiff supplied Agent with its own instruction book. The instruction book included instructing Agent on how Agent was to instruct Defendant in filling out the application for insurance and renewal applications for insurance.
Agent quoted Plaintiff’s premium and collected Defendant’s check made payable to Plaintiff.
In April 1981, Plaintiff sent Defendant a letter that it was time to renew his insurance. It requested Defendant go to Agent to have renewal application filled out. Defendant went to Agent and Agent furnished Defendant with the renewal application and aided Defendant in filling out the renewal application. The renewal application prominently displayed “General Insurance Company”. Agent quoted Plaintiff’s renewal premium and collected Defendant’s check made payable to Plaintiff.
When Agent aided Defendant in filling out the renewal application, Defendant believed that Agent was Agent for Plaintiff in filling out the application. There is a space on the form for adding or deleting any drivers. In October 1980, Defendant’s 15 year old son received a restricted driver’s license. Defendant asked Agent whether a “driver” meant his son with a restricted driver’s license. The Agent in interpreting the renewal application form stated a driver did not include a driver with a restricted driver’s license. Defendant followed this advice and did not list his son with a restricted dirver’s [sic] license. Listing the son would have materially changed the premium.
This Court rules that Agent was the apparent Agent of Plaintiff for the purpose of filling out the insurance renewal. Therefore the Plaintiff is charged with the knowledge given by Defendant to Agent that Defendant had a son in the household with a restricted driver’s license. Gaskins v. General Insurance Company of Florida, 397 So.2d 729 ([Fla.App.] 1981).
In so doing, this Court rules that the Agent was the apparent Agent of Plaintiff and Plaintiff was charged with the knowledge of the son’s restricted driver’s license. Plaintiff’s actions would have led the average insurance consumer to believe that the Agent was Plaintiff’s Agent. Lumbermens Mutual Casualty Company v. Savigliano, (4 DCA 9/8/82) [422 So.2d 29 (Fla. 4th DCA 1982) ].
This Court rules that it is manifestly unjust for Plaintiff to try to void its contract obligations to Defendant when the material misrepresentation on the renewal application was innocent and due to an ambiguity created by the Plaintiff when it drew up the renewal form. Clearly the listing of additional drivers could be interpreted to include or not include drivers with a restricted license. Plaintiffs apparent Agent interpreted it one way, Plaintiff interpreted it the other way. Certainly the innocent Defendant should not be held responsible for the incorrect answer to Plaintiff’s ambiguous information request on the renewal application form. Defendant’s insurance contract should not depend upon how Plaintiff decides to interpret an ambiguous information request when it is time for Plaintiff to respond to damages. Gaskins v. General Insurance Company of Florida, 397 So.2d 729 ([Fla.App.] 1981).

As a general principle of review, the decision of the trial court in a declaratory judgment action is accorded a presumption of correctness and the trial judge’s “resolution of an issue ... should not be rejected on appeal unless based on a misapplication of law or shown by the record to be clearly wrong, against the manifest weight of evidence, or not supported by competent substantial evidence.” Groover v. Adiv Holding Company, 202 So.2d 103, 104-105 (Fla. 3d DCA 1967). We find that appellant has failed to demonstrate that the trial court’s findings are against the manifest weight of evidence. We therefore hold that since it was the insurer’s agent who failed to include Ramanovski’s son on the renewal application, no ground supports a denial of coverage under the subject policy. See Lumbermens; Gaskins; Russell v. Eckert, 195 So.2d 617 (Fla. 2d DCA 1967).

Affirmed.


text:
    MARCO SURFSIDE, INC., Appellant, v. William J. EGGERT, Appellee.
    No. 83-1293.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Joseph Mancilla, Jr., Miami, for appellant.
    Morgan, Lewis & Bockius and Richard A. Pettigrew and Sonia M. Pawluc, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Fieldstone v. Chung, 416 So.2d 11 (Fla. 3d DCA 1982); Meyers v. Cunningham, 415 So.2d 802 (Fla. 3d DCA 1982); Merritt v. Davis, 265 So.2d 69 (Fla. 3d DCA 1972); Ehringer v. Gross, 182 So.2d 460 (Fla. 1st DCA 1966); Andress v. Bigman, 147 So.2d 576 (Fla. 3d DCA 1962).


author: SCHWARTZ, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 83-1338.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Barnett & Clark and Ralph W. Symons, Goral Gables, for appellant.
    Mitchell, Harris, Canning, Murray & Usich and C. Robert Murray, Jr., Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

It is apparent that the statute of limitations in an action pursuant to Sec. 627.-736(3)(c), FIa.Stat. (1975) begins to run, at the latest, when the liability insurer improperly pays the claimant directly without protecting the interests of the PIP carrier. In this case, that event occurred in March, 1977, and the action was not brought until July 16, 1982. See Sec. 95.11(3)(f), (p), Fla. Stat. (1981) (four year statute). The order of dismissal under review is therefore

Affirmed.

      . A personal protection insurer with a right of reimbursement under this section, if suffering loss from inability to collect such reimbursement out of a payment received by a claimant upon a tort claim, is entitled to indemnity from one who, with notice of the insurer’s interest, made such a payment to the claimant without making the claimant and the insurer joint payees as their interests may appear....


author: PER CURIAM

text:
    HARRY’S DISCOTHEQUE, INC., Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 83-1521.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Lane Abraham and Sy Chadroff, Miami, for appellant.
    James N. Watson, Jr., Tallahassee, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM

Affirmed. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982).


text:
    METRO TAXI CAB CO., INC., Appellant, v. Zoila De ARRIAZA, Appellee.
    No. 83-1702.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Joel H. Brown, Miami, for appellant.
    Claudia B. Greenberg, Smith & Supraski, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See and compare: Mercury Cab Owners’ Association v. Jones, 79 So.2d 782 (Fla.1955); Economy Cabs, Inc., v. Kirkland, 127 Fla. 867, 174 So. 222 (1937).


text:
    Robert Alvin EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1952.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Eric William Hendon, Miami, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Appellant Edwards appeals the denial of his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. He asserts that his court-appointed counsel rendered ineffective assistance by failing to request an instruction on voluntary intoxication. The court gave the standard specific intent instruction. Edwards was convicted of premeditated first degree murder as charged. He then instituted an appeal which resulted in this court’s affirmance without prejudice to his filing a 3.850 motion in the trial court alleging ineffective assistance of counsel. Edwards filed a motion directed to that issue and, upon consideration, the trial court entered a thorough and well-reasoned order denying his motion. On appeal Edwards relies upon Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981) in which this court held that the trial court’s failure to instruct on specific intent, a material issue in the trial, constituted fundamental error. We reject appellant’s contentions, adopting the order entered by the trial court.

The trial court found, in pertinent part:

2. When a crime requires specific intent, such as the premeditation element in first degree murder, voluntary intoxication can form the basis for a defense, as it bears upon the capacity or ability of the accused to form and entertain the specific intent. Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981). However, “voluntary intoxication does not of itself prove absence of intent.” Leon v. State, 186 So.2d 93, 94 (Fla. 3d DCA 1966). Rather, “the rule appears to be that where a person is too intoxicated to entertain or be capable of forming an essential or particular intent such intent cannot exist and consequently the offense of which it is a necessary element cannot be perpetrated.” Britts v. State, 158 Fla. 839, 30 So.2d 363, 366 (1947) (emphasis added). See also Shaw v. State, 228 So.2d 619, 621 (Fla. 2d DCA 1969). Thus, “(j)ury instructions regarding intoxication ... need not be given in every case in which evidence has been adduced at trial that the defendant consumed alcoholic beverages prior to the commission of the offense.” Jacobs v. State, 396 So.2d 1113, 1115 (Fla.1981). An instruction is not required when “the evidence clearly shows the defendant was capable of reflection at the time of the homicide,” or other specific intent crime. Jacobs, supra, 396 So.2d at 1115.
3. In the present case, the sole evidence presented by the defense was Defendant’s own testimony. Defendant did testify that he was intoxicated. He did not, however, testify that he lacked the specific intent. To the contrary, he affirmatively acknowledged the existence of that intent. There was thus no evidence from which the jury could have reasonably concluded that premeditation, the specific intent dealt with here, was not shown. Thus, had a request been made for an instruction of voluntary intoxication, it would have been denied.

At trial Edwards testified:

Q ... Let me. ask you these questions. You understand that David Felton was alive the second time you got back because you saw his stomach breathing, correct?
A Yes.
Q So, you did understand that?
A (Nodding in the affirmative.)
Q You have to say yes' or no.
A Yes.
Q Two, you understand that Edwin went back and was beating him up in order to kill him, is that correct?
A Yes.
Q And, you told Edwin to go ahead and finish him off, is that correct?
A Yes.
Q And then, you went on and you. got a stick in order to finish it off yourself, isn’t that correct?
A Not to finish it myself — to get him to finish what he was doing.
Q Well, you did hit him with the stick, did you not?
A Yes, I hit him some.
Q You hit him with the intention of finishing him off, to kill him, isn’t that right?
A Yes.

The trial court found:

5.Given Defendant’s own version on the events, it is clear that even if Defendant’s account was to be accepted as true in its entirety, a voluntary intoxication defense could not as a matter of law be said to exist. Defendant’s repeated admissions as to his intent show this in and of themselves to be the case. In addition, however, these admissions are buttressed by Defendant’s recognition of the need to obtain an object to kill David, his efforts and ability to find such an object, his ability to drive on an unlighted, one-lane dirt road at night without having an accident, his ability to rationally choose a logical place to dump the body and his ability to comprehend the need to wrap David’s head in a jacket. There can be no question that, as in Jacobs, supra, “the evidence clearly shows the defendant was capable of reflection at the time of the homicide.” 396 So.2d at 1115. Thus, any request for an instruction on voluntary intoxication would have been denied.
6. In light of this fact, it is apparent that Defendant did not receive ineffective representation. The standard to be applied in reviewing such a claim is set forth in Knight v. State, 394 So.2d 997 (Fla.1981). In that case, the Florida Supreme Court adopted a four prong test.
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel....
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings....
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact.

394 So.2d at 1001.

7. Defendant’s motion satisfies the first prong of the Knight test. It fails, however, to meet either the second or third prong.
8. As to the second prong, counsel’s failure to request an instruction on voluntary intoxication can certainly not be considered to be a substantial and serious deficiency measurably below that of competent counsel when the evidence did not form the basis for the giving of such an instruction.
There is also a second reason why this prong of Knight was not met here. The first degree murder instruction given by the court informed the jury that:
Killing with premeditation is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law. does not fix the exact period of time that must pass between the formation of premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the Defendant. The premeditated intent to kill must be formed before the killing.
The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.
This instruction allows the defense to argue the defense of voluntary intoxication. Obviously, if one is so intoxicated that he cannot form the requisite intent, he does not kill “after consciously deciding to do so.” Particularly since the jury was never told that voluntary intoxication could not be a defense, there is no reason why voluntary intoxication could not be argued to the jury under the instructions given. In fact, it was so argued. ... Indeed, given the facts of this case, as detailed previously in this order, it can even be said that the standard instruction given was more beneficial to Defendant than a special instruction on voluntary intoxication would have been. It is clear that no reasonable person would have believed that Defendant was too intoxicated to entertain or be capable of forming the essential intent. A jury would be much more likely to agree that because of his intoxication, Defendant did not kill after consciously deciding to do so. Clearly, therefore, arguing the voluntary intoxication defense under the instructions as given did not constitute a substantial and serious deficiency.
9. As to the third prong, since the court would have denied any request that was made, it is obvious that there is no possibility, much less a likelihood that the challenged omission affected the outcome of the court proceedings.
Moreover, if it was assumed that there existed some bases on which a voluntary intoxication instruction could have been based, the impact of Defendant’s own testimony was so powerful that there can be no doubt that there would have been little, if any, chance of an acquittal had the instruction been given. This is particularly true in light of the fact that, as noted in paragraph eight of this order, the defense of voluntary intoxication was properly argued to the jury under the instructions that were actually given. Thus, even if it is said that the failure to request the instruction was an omission constituting a substantial and serious deficiency measurably below that of competent counsel, it cannot be concluded that there is a likelihood that the deficiency affected the outcome of the proceeding. In fact, not only does such a likelihood not exist, but even the possibility that the outcome of the proceeding would have been affected is extremely slim.

Agreeing with the trial court, we affirm the denial of appellant’s motion.

Affirmed.


text:
    Theophilus BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2062.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Theophilus Brown, in pro. per.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

We reverse the trial court’s order summarily denying the defendant’s 3.850 motion. It affirmatively appears from the record that the transcript of the plea colloquy has been lost, and it further appears that the court reporter has lost her notes. The defendant has alleged that his plea was involuntary and that he did not understand the nature of the charges nor the consequences of the plea. We accordingly remand for an evidentiary hearing on the 3.850 motion.

Reversed and remanded for further proceedings.


text:
    Robert RIZZIERI and Anthony Gatto, Appellants, v. The STATE of Florida, Appellee.
    Nos. 83-2493, 83-2492.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Angus M. Stephens, Jr. and Leonard R. McMillen, Miami, for appellants.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

Rizzieri and Gatto appeal from orders holding them in contempt of the 1983 Spring Term Dade County Grand Jury for failing, after being immunized, to respond to its questions, and committing them to jail until they agreed to do so or the term of the Grand Jury expired. The sole basis for the refusal was the claim — as to which they requested an evidentiary hearing which was denied — that the source of the questions was an unlawful wiretap. We affirm on the ground that the objection was waived by the appellants’ failure timely to assert it prior to their appearance before the Grand Jury on October 7, 1983.

On September 30, 1983, when the appellants were originally subpoenaed before the Jury, they retained counsel who secured a one week postponement of their appearance. After being informed, pursuant to Sec. 934.09(7)(e), Fla.Stat. (1981), that their telephone conversations had in fact been intercepted, their attorneys were, on that date, furnished with copies of the application affidavits and orders of authorization for the wiretaps in question. Nevertheless, no motion to suppress or objection to any potential questions based on tap-secured information was filed during that intervening week. It is apparent that the appellants thus did not comply with the requirements of Sec. 934.09(9)(a), Fla.Stat. (1981), which, under In re Grand Jury Investigation (Cobo), 287 So.2d 43 (Fla.1973), admittedly forms the sole basis of a grand jury witness’s right even to challenge the propriety of the tap. That provision states that any such motion to suppress

shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion, [e.s.]

Affirmed.

      . The basis of our decision makes it unnecessary to consider whether the recent amendment to Article 1, Sec. 12 of our Constitution has, in effect, overruled the Cobo case by requiring Florida to follow the contrary decision of the United States Supreme Court in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).


text:
    DEAN WITTER & COMPANY, INC., Appellant/Cross Appellee, v. Lillian POLISAR, Melvin Apple, Marion Grenall, and Richard J. Venezia, Appellees/Cross Appellants.
    No. 82-434.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 1, 1984.
    Guy B. Bailey, Jr., and Jesse C. Jones of Bailey & Dawes, Miami, for appellant/cross appellee.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellees/cross appellants.
   PER CURIAM.

The final judgment is affirmed; however, we reverse the order on costs entered without an evidentiary hearing. Palm Beach Heights Development Corp. v. Armand Loden, 417 So.2d 320 (Fla. 4th DCA 1982).

AFFIRMED IN PART; REVERSED IN PART and REMANDED for reconsideration of the matter of costs.

HERSEY and DELL, JJ., concur.

ANSTEAD, C.J., dissents without opinion.


author: DOWNEY, Judge.

text:
    Bonnie FINCHAM, Appellant, v. Robert Kent FINCHAM, Appellee.
    Nos. 83-15, 83-721.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 3, 1984.
    L. Anton Rebalko of Titone, Roarke & Rebalko, Lauderhill, for appellant.
    Ronald Sales of Sales & Weissman, P.A., and Edna L. Caruso, West Palm Beach, for appellee.
   DOWNEY, Judge.

After final judgment and an appeal to this court, appellee husband filed a motion for judgment in accordance with the mandate. As a result of several hearings the court entered an order determining the rental value of the marital domicile, awarding the husband a sum for rental value during the wife’s residency therein, and awarding the husband reimbursement for expenditures for taxes, repairs, and other items. Finally, the trial court ordered that the property be sold on a date to be set by the clerk.

On November 30, 1982, the clerk filed a notice of sale, prepared by counsel for the husband, stating that the property would be sold on January 10, 1983. Neither the wife nor her present or former counsel received a copy of said notice, although the clerk testified that she mailed a copy of the notice to the wife’s former counsel. Present counsel had filed a number of pleadings in the cause and attended several hearings on behalf of the wife but did not file a written appearance.

On the Friday before the Monday, January 10th, sale counsel for the husband called counsel for the wife and apprised wife’s counsel of the sale set for Monday. The wife, a resident of Kansas, came to West Palm Beach immediately but was unable on such short notice to obtain the funds she planned on using to bid at the sale. The wife moved for a continuance of the sale because of the lack of notice, but the motion was denied.

The record indicates the property in question was valued at approximately $135,000, but was encumbered by mortgages totaling $85,000. The husband was the sole bidder at the sale and bought the property for $5,000. Thus, he was able to purchase a $50,000 equity for $5,000.

It is a long standing rule that inadequacy of price alone is not sufficient to set aside a judicial sale. 33 Fla.Jur.2d, Judicial Sales, § 43. However, inadequacy in connection with other circumstances having a tendency to cause the inadequacy’s resulting in injury is sufficient ground to set aside the sale. Id. In the instant case there is no statutory requirement that a notice of sale be given to the parties by the clerk. However, it is the clerk’s custom to do so. Furthermore, the notice of sale prepared by counsel for the husband is a paper that is filed in the cause in the trial court and Florida Rule of Civil Procedure 1.080 requires all such papers to be served on each party. The husband did not show at the hearing on the motion to continue the sale that any prejudice to him would result if the motion were granted. Thus, it seems to this court that the accumulation of those facts made a granting of a continuance of the sale most appropriate. Adding thereto the gross inadequacy of price at the sale would seem to mandate the granting of the wife’s motion to set aside and vacate the sale. Denial of that motion was reversible error.

We have carefully considered the wife’s complaints about the inadequacy of time allowed her during the hearings prior to entry of the order of November 24, 1982, and find them to be without merit.

Accordingly, the order denying the wife’s motion to vacate the sale of the marital domicile is reversed, and the cause is remanded with directions to schedule a new sale of said property. In all other respects the orders appealed from are affirmed.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

ANSTEAD, C.J., and DELL, J., concur.


text:
    Rosa E. VAZQUEZ, Appellant, v. Manuel D. VAZQUEZ, Appellee.
    No. 83-1104.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 3, 1984.

      Eduardo Neville Colon, Fort Lauderdale, for appellant.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

From the child custody provisions of a final judgment dissolving a marriage the wife has perfected this appeal.

Custody of the parties’ three minor children was awarded to the wife but the husband was given very liberal visitation rights, including periods away from the wife’s home, vacation, and holidays. Specifically the final judgment provided:

“The Court finds that, because the children have commenced their Catholic education, it would be in their best interest, at this moment, for them to continue the same and not disrupt their lives. The Court also feels that it would be in the best interest of the youngest child, MIL-CA, to be enrolled in the Catholic school when she commences first grade next year, in order to be enrolled in the same school with her two older sisters. The Wife indicated that she had no objection to the children receiving first communion and confirmation.”

The wife seeks reversal of the foregoing provisions because she prefers to place the children in a Baptist school. The record is clear the parties cannot agree on the schooling and religious training of the children.

The wife contends the trial court erred when it imposed specific educational religious decisions upon the wife as custodial parent. She points to cases such as Connelly v. Connelly, 409 So.2d 175 (Fla.App. 1982), and Bennett v. Bennett, 73 So.2d 274 (Fla.1954), which held that decisions of that nature are for the parent to whom custody of the children has been awarded. The husband counters this contention by citing the new 1982 legislative act providing for “shared parental responsibility.” Section 61.13(2)(b)2 a, Florida Statutes (Supp.1982). The husband argues that the parties could not agree on these facets of custodial care and the trial judge followed the desires of the husband in this respect, which is specifically provided for in the statute.

Had this decision predated the shared parental responsibility act, Connelly and Bennett, supra, would clearly require reversal. However, we believe the husband is correct in that the legislature has directed the courts to require shared parental responsibility in all cases unless it would be detrimental to the child. The legislature pronounced that:

It is the public policy of this state to assure each minor child frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of childrearing. 61.13(2)(b)l, Florida Statutes (Supp.1982).

The subject is further refined in subsection 2, wherein the law makers directed:

In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interests of the child. 61.13(2)(b)2 a, Florida Statutes (Supp.1982).

Under the circumstances of this case and in view of the policy and directions announced in the shared parental responsibility act we hold the trial judge properly exercised her discretion.

Accordingly, the judgment appealed from is affirmed.

ANSTEAD, C.J., and DELL, J., concur.


author: MILLS, Judge.

text:
    Deborah J. CRUMPTON, Appellant, v. Robert W. CRUMPTON, Appellee.
    No. AR-35.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Rehearing Denied Jan. 27, 1984.
    S. David Cox, Bartow, Cox & Davis, Gainesville, for appellant.
    Stan Cushman and John F. Roscow, Gainesville, for appellee.
   MILLS, Judge.

Deborah Crumpton appeals from a final judgment determining child custody, child support, and rights in personal property. Because we find no error in any of the four points raised on appeal, we affirm.

Deborah and Robert Crumpton were married in 1973. Deborah had been married before and had custody of a child of the previous marriage. A daughter was born to the Crumptons in 1978. On 3 August 1981 Deborah took the two children and went with her former husband to the State of Washington.

The trial court found that “after some time and considerable effort” Robert found out that Deborah was in Washington. ■ Robert filed a petition for dissolution of marriage with the trial court on 15 December 1981 and made constructive service by publication. Deborah did not respond to the Notice of Action sent to her Washington address. She was not at the hearing on the petition held on 16 February 1982.

At that hearing the court decided to grant the divorce, but to retain jurisdiction to decide the other matters raised in the petition when Robert obtained service of process under the long-arm statute. Personal Service under the long-arm statute was made on 9 March 1982. Later, on 14 April 1982, the trial court entered partial final judgment dissolving the marriage and continuing the other issues until Robert could obtain service of process under the long-arm statute.

On 31 March 1982, Deborah made motions for entry of a final judgment, to quash service of process, and to set aside default. The trial court held a hearing on 20 April 1982 and two days later entered an order setting aside the default, but otherwise denying Deborah’s motions.

Deborah finally responded to Robert’s petition on 6 May 1982. She counter-petitioned for child custody, child support, and special equity in property. The final hearing was held on 2 September 1982 and on 10 September 1982 the court entered the final judgment which is the subject of this appeal.

The final judgment provided that the Crumpton’s child would live with Deborah, but also stated that both parents had responsibility for the child and that the child’s right to have access to Robert should be liberally construed. The final judgment enjoined either parent from removing their child from Florida for more than three consecutive weeks without prior court permission. The final judgment provided further that Robert would pay $32.50 weekly child support, that personal property would be divided equally, and that all other relief requested was denied.

I

Deborah first contends that the trial court erred when it deferred consideration of the custody and property issues in order to give Robert an opportunity to obtain service of process under the long-arm statute. She asserts that this is an improper bifurcation of the issues raised in the dissolution petition.

We recognize that splitting the issues in a divorce proceeding is discouraged. See, Claughton v. Claughton, 393 So.2d 1061 (Fla.1980) (bifurcation proper only when clearly necessary for the best interest of the parties or their children); Glazer v. Glazer, 394 So.2d 140 (Fla. 4th DCA 1981) (bifurcation proper only in exceptional circumstances); Weasel v. Weasel, 419 So.2d 698 (Fla. 4th DCA 1982) (bifurcation proper only when refusal to bifurcate would result in hardship on the movant equal to or more than the damages and complications arising from bifurcation). Nevertheless, bifurcation in this instance was proper.

If the trial court had granted the divorce and simply refused to rule on the other issues raised in the petition, there would have been no custody determination and hence no inquiry into the best interest of the child. In addition, there would have been no property settlement.

Judicial discouragement of bifurcation in divorce proceedings is based on the belief that it is usually faster and cheaper to decide divorce and related issues at the same time. But when the trial court does not have jurisdiction to decide related issues which in all fairness should be decided, there is no reason not to bifurcate. This was an exceptional circumstance justifying bifurcation.

II

Deborah also contends that the provision in the final judgment enjoining the parties from removing their child from Florida for more than three consecutive weeks without prior court authorization was an unconstitutional interference with citizens of another state by the State of Florida. However, if the trial court had jurisdiction to determine child custody, it had the authority to act in the best interest of the child, including requiring that the child live in Florida. See, Brandon v. Faulk, 326 So.2d 76 (Fla. 1st DCA 1976).

Section 61.1308, Florida Statutes (1981) provides in part:

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

Pursuant to this statutory provision, the trial court had jurisdiction to determine the custody of the Crumpton’s child and related matters. Robert and Deborah were married in Florida and lived together in Florida as husband and wife for over eight years. Their child was born in Florida and lived with her parents there until Deborah took her to Washington. Deborah and the child had been living in Washington for less than a year when Deborah was served under the long-arm statute. No other court had assumed jurisdiction over the matter. Both parents and the child had a significant connection with Florida and because the family had lived together in Florida for a number of years, substantial evi-denee concerning the welfare of the child was available in Florida. In addition, Deborah testified that she was willing to remain in Florida.

III

The third contention on appeal is that the trial court erred because it did not award travel expenses, attorney’s fees and costs to Deborah. Deborah asserts that the evidence, including the testimony given at the final hearing on 2 September 1982, clearly showed her need for such an award and Robert’s ability to pay.

Unfortunately, there is no transcript of the final hearing. The record only contains the parties’ financial affidavits. These affidavits indicate that neither party is able to pay the other’s expenses. Based on the record before us, we cannot say that the trial court abused its discretion in this regard.

IV

The final contention on appeal is that the trial court erred in failing to specifically address in its final judgment Deborah’s requests for alimony and disposition of personal property. The final judgment provided that all personal property would be divided equally and that all relief not granted was denied. Deborah contends that the trial court’s failure to specifically rule on each request was an abdication of the judicial function.

A trial court has a duty to decide issues properly before it. Malone v. Meres, 109 So. 677 (Fla.1926). But that duty does not require a court to address each issue individually in its adjudication. A statement that all relief not granted is denied is sufficient; although it would be helpful to the parties and the court reviewing the judgment to know the specific reason for the trial court’s denial of requested relief.

AFFIRMED.

THOMPSON and WIGGINTON, JJ„ concur.


author: NIMMONS, Judge.

text:
    VISITING NURSES ASSOCIATION and Hewitt, Coleman & Associates, Inc., Appellants, v. Dorothy TEEL, Appellee.
    No. AR-245.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Robert C. Barrett of Cooper & Rissman, Orlando, for appellants.
    Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee.
   NIMMONS, Judge.

Employer/carrier (E/C) appeal from an order of the deputy commissioner requiring the E/C to “provide claimant with vocational training and education as a laboratory assistant for a period of 26 weeks together with payment of all fees and costs incident to that training.” No request for training as a lab assistant had been made prior to the hearing by either the claimant or her attorney and the E/C had no indication that such would be requested until claimant’s attorney advised the deputy at hearing that the claimant was interested in lab assistant training. We reverse the order.

Claimant is a 54-year-old woman with a high school general equivalency diploma and had been employed as a nurse’s aid for about two years at the time of her September, 1980, back injury, which resulted when she bent over a hospital bed.

In July, 1981, the E/C authorized the participation by the claimant in a pain management program which was recommended as part of her medical rehabilitation. After having made excellent progress, she completed that program in October, 1981. She was subsequently assigned a 10% permanent physical impairment rating in December, 1981. Shortly thereafter, the E/C secured the services of Mrs. Christian, a vocational rehabilitation specialist, who commenced working with claimant on a program of vocational rehabilitation aimed toward qualifying claimant for employment as a medical receptionist, a vocation which she had indicated she wished to pursue. The E/C authorized the claimant to enroll in typing and bookkeeping classes in order to satisfy entrance requirements for the medical receptionist program.

Approximately three months into her typing course, it appeared that claimant was making slow progress in developing the typing skills necessary to enter the medical. receptionist program which she had selected and that her efforts were minimal. After the E/C conferred with Mrs. Christian, the E/C discontinued paying temporary total disability benefits, and advised claimant that she should seek at least part-time employment while continuing her typing, that the E/C would resume payment of temporary total disability benefits as soon as she satisfied the minimum requirements for admission to the medical receptionist program and that, in the interim, she would be paid on the basis of wage loss. Shortly thereafter, claimant dropped out of her typing class because she did not feel she had enough time for her class and a search for employment.

On July 28, 1982, claimant filed, through her attorney, a claim in which the benefits claimed were specified as “vocational rehabilitation, costs and attorneys fees.” The pre-trial stipulation likewise did not specify any particular rehabilitation services or program sought by the claimant. As previously mentioned above, the first indication by claimant of a desire to be trained as a laboratory assistant was at the hearing on October 11, 1982, when her attorney so informed the deputy and suggested that the deputy order an evaluation. In his order, the deputy observed that he was impressed by the claimant’s extensive job search and of claimant’s apparent desire to be re-employed and found that her injury would preclude her from earning wages equal to those earned prior to the injury. Over the E/C’s objection, the deputy ordered the E/C to furnish vocational training and education as a laboratory assistant for a period of 26 weeks.

Section 440.49(l)(a), Florida Statutes (1981), entitles an employee who suffers a compensable injury to rehabilitation services at the expense of the employer or carrier where it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury. The E/C contends, however, that the claimant has failed to qualify for the beiiefits ordered by reason of her failure to follow the procedures set forth in the following portion of Section 440.49(l)(a):

If such services are not voluntarily of- . fered or accepted, the Division of Workers’ Compensation of the Department of Labor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order that the service and treatment recommended in the report, or such other treatment recommended in the report, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier.

See Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982); Paradise Fruit Co. v. Floyd, 425 So.2d 9 (Fla. 1st DCA 1982). But claimant relies upon our construction of the above statutory provision in Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA 1982). There, we sustained an award of rehabilitation benefits, observing:

[WJhile application to the Division for referral to a physician or facility for evaluation is contemplated by the new law, if rehabilitation is “not voluntarily offered or accepted,” nowhere is there any indication that such an application is a jurisdictional prerequisite to the receipt of rehabilitation benefits by the claimant.

[413 So.2d at 825, 826] Significant distinctions exist between the situation extant in Bozeman and that which is involved in the case at bar: (1) The E/C in Bozeman made no effort to assist in any vocational rehabilitation efforts in spite of the claimant’s request therefor; and (2) The claimant in Bozeman, well before the deputy commissioner’s hearing, notified the employer/carrier of the particular vocation (meatcutting) for which he was seeking rehabilitation assistance.

In the case at bar, as previously noted, the E/C voluntarily furnished the claimant with substantial rehabilitation services necessary for entry into a vocational program which the claimant had chosen. Although the claimant may well be entitled to other and further such services at the E/C’s expense, the E/C must be given at least some notice and opportunity to be heard on the propriety of the program or services to be ordered by the deputy. At the hearing, the claimant’s attorney suggested only an evaluation. However, the deputy bypassed any such evaluation and ordered the services for 26 weeks along with temporary total disability for that period. It is true that the Bozeman court construed Section 440.49(l)(a) in such a manner that the deputy’s “jurisdiction or authority” to award certain rehabilitation treatment or service is not, under the 1979 amendments to that section, dependent upon the receipt of an evaluation report from the Division concerning a particular rehabilitation program. However, we do not believe that the Boze-man holding or rationale supports the deputy’s order in the instant case. By reason of the peculiar circumstances involved in the instant case, since the deputy chose not to order an evaluation and report from the Division concerning the propriety of the laboratory assistant vocational training which the claimant sought for the first time at the hearing, the E/C should have been afforded the opportunity to seek such an evaluation from the Division and to present evidence thereon at a subsequent hearing after sufficient time for the E/C to develop and present evidence pertaining thereto.

The remaining point asserted on appeal by the E/C is that the deputy erred in awarding attorneys fees to claimant based upon “bad faith” of the E/C inasmuch as, according to the E/C, no claim of bad faith had been made and the issue was not litigated. Claimant has conceded on appeal that the award of attorneys fees must be reversed in that the issue was not litigated or addressed at the hearing before the deputy.

Accordingly, the order appealed is reversed and this cause is remanded for further proceedings consistent with this opinion.

WENTWORTH and ZEHMER, JJ., concur.


author: WENTWORTH, Judge. ZEHMER, Judge,

text:
    Armando VALLINA, Appellant, v. VICTOR FUEGO CONSTRUCTION CO. & Peninsular Fire Insurance Co., Appellees.
    No. AR-343.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.

      Jerold Feuer, Miami, for appellant.
    Barry A. Pemsler, of Richard & Pemsler, Miami, for appellees.
   WENTWORTH, Judge.

Appellant Armando Vallina, a subcontractor, appeals a workers’ compensation order denying him compensation benefits. Appellant contends that he should be deemed an employee of the general contractor and covered under the Workers’ Compensation Act. We disagree, and affirm the order below.

Appellant is the president of Valley Concrete Pump, Inc., a company doing subcontracting for general construction contractors. On April 13, 1982, while working at the general contractor’s construction site, appellant was injured when he fell 24 feet from a scaffold to a concrete floor. His contention here is that the appellee general contractor is liable for payment of compensation to him because, as a subcontractor, he is deemed an “employee” of the general contractor under § 440.10, Florida Statutes.

However, appellant elected pursuant to § 440.02(2)(b), Florida Statutes, to be exempt from coverage under the Act. He argues that his voluntary election, by written certification evidencing exemption from coverage under the Act, was limited to exemption from coverage for injury in his capacity as an officer of Valley Concrete Pump. He contends therefore that this election does not preclude statutory liability of the general contractor to him as a deemed employee for injury incurred in work beyond his functions as an officer.

We conclude that two sections of the Act require a contrary conclusion with respect to liability of the appellee general contractor. Section 440.02(2)(b), Florida Statutes, defines “employee” under the workers’ compensation law to include:

any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous. However, any officer of a corporation may elect to be exempt from coverage under this chapter by filing written certification of the election ... (e.s.)
Also, § 440.02(2)(d)4 states: (d) The term ‘employee’ shall not include
4. Any officer of a corporation who elects to be exempt from coverage under this chapter.

Appellant’s contention with respect to this language is that the statutory employee provision of § 440.10 is an overriding “exception to the exclusion under definition of ‘employee’ of corporate officers who exempt themselves from coverage.” We find no pertinent precedent or persuasive reasoning for that view, or for the alternative reliance upon § 440.04(2), Florida Statutes, for alleged waiver by appellee of the exclusion election because appellant performed labor on the job site. We do not in this case fully exhaust appellant’s argument with respect to alleged continuing vitality of the “dual capacity doctrine,” because the statutory scheme above cited does not in our opinion visit liability upon a general contractor when, as in this case, claimant concedes his voluntary exemption to be effective at the time of his accident to prevent liability of the carrier on the compensation insurance policy purchased by the subcontractor, Valley Concrete.

The order appealed is affirmed.

NIMMONS, J., concurs.

ZEHMER, J., concurs with opinion.

ZEHMER, Judge,

concurring.

I concur in affirmance. Appellant was working for Valley Concrete Pump at the time of the injury, and his election as an officer of that company to be exempt from coverage under the act is effective with respect to injuries while working for Valley Pump, whether Valley was acting as a general contractor, subcontractor, or in any other capacity. This case, however, does not involve any question of the effect of appellant’s election on coverage under the act if injured while working for an employer or entity other than Valley, and our decision does not reach that question.

      . Prior to amendment in 1979 this statute, imposing upon general contractors liability for payment of compensation to subcontractor employees, excepted employees of a subcontractor "who is exempt” as well as employees of a subcontractor "who has secured such payment.” The omission, however, related to exempt employer subcontractors and not exempt officer-employees.

      . Larson, Workmen’s Compensation Law, Vol. 1C, § 54.21, recognizing employee status for corporate officers performing labor under certain circumstances.


author: ERVIN, Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Paul F. HARTSFIELD, Clerk of the Circuit Court, Leon County, Florida, Appellee.
    No. AR-383.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.

      Joseph R. Boyd and Michael L. Berry of Boyd & Smith, Tallahassee, Chriss Walker, Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
    F. Philip Blank, Tallahassee, for appellee.
   ERVIN, Chief Judge.

The Department of Health and Rehabilitative Services (HRS) appeals from a declaratory judgment which found that appel-lee, Paul F. Hartsfield, as Clerk of the Circuit Court for Leon County, was required to charge HRS for the copying of court documents necessary in proceedings instituted by HRS pursuant to Chapter 409, Florida Statutes, despite the provisions of section 409.2571, which exempt HRS from charges for “necessary services” in such proceedings. HRS contends the trial court erred in concluding that although the copying of some documents amounts to a necessary service, the clerk was nevertheless bound to charge the department for that service. We agree with HRS’ position and reverse.

This dispute between HRS and the clerk’s office arose in 1980 when Hartsfield notified HRS that, based on a 1979 opinion of the Attorney General, his office would thereafter charge HRS the standard fee of $1.00 per page, as authorized by section 28.24(9)(a), for the copying of court records, regardless of their necessity or purpose. HRS responded to that notice by seeking in the circuit court a writ of mandamus, directing the clerk to provide copying services free of charge. In State, Department of Health and Rehabilitative Services v. Hartsfield, 399 So.2d 1019 (Fla. 1st DCA 1981) [hereinafter: Hartsfield 7], this court affirmed the trial court’s denial of the petition for writ of mandamus, finding that HRS had not demonstrated in the record an established right to receive the copying of necessary court records which was enforceable by mandamus. HRS then commenced this second suit for declaratory judgment, seeking a declaration that the photocopying of various documents relating to child support and paternity actions constitutes “necessary services” for purposes of the fee exemption in section 409.-2571. At the final hearing, HRS presented a number of witnesses who testified as to the necessity of obtaining copies of relevant court records for purposes of proceedings brought under sections 409.2551-409.-2597, Florida Statutes. Although the trial court agreed that some copying was in fact necessary in proceedings under Chapter 409, it concluded that HRS was nevertheless not exempt from paying for such services.

The resolution of this case requires the interpretation, as well as, if possible, the reconciliation of the following Florida statutes:

§ 409.2571 Court and witness fees; bond.—
(1) The department or an authorized agent thereof shall be entitled to the necessary services of the clerk, sheriff, and court reporter in any proceedings under this act, including contempt proceedings, and no fees for such court, clerk, or sheriff services shall be charged against the department. No bond shall be required of the department for any action taken pursuant to this act, except by order of the court. Nothing herein shall prevent the court depository from charging and collecting fees for services rendered. Nothing herein shall prevent the court from charging a defendant for action taken pursuant to this act for all costs and fees incurred in the proceedings.
* * * * * *
§ 28.24 Service charges by clerk of the circuit court.—The clerk of the circuit court shall make the following charges for services rendered by his office in recording documents and instruments and in performing the duties enumerated. However, in those counties where the clerk’s office operates as a fiscal unit of the county pursuant to s. 145.022(1), the clerk shall not charge the county for such services.
* * * * * *
(9)(a) For making copies by photographic process of any instrument in the public records consisting of pages of not more than 14 inches by 8¥2 inches, per page.1.00

(e.s.)

HRS contends that the exemption provided in section 409.2571 extends to charges for the copying of court documents necessitated by proceedings instituted to secure and enforce child support and to establish paternity—proceedings which HRS has a statutory duty to bring under Chapter 409. Hartsfield counters that he is mandated by section 28.24 to charge a fee of $1.00 per page for photocopying, and that HRS is entitled only to receive the services of the clerk of the court free of charge and not the services of the clerk acting in his capacity as county recorder. For the following reasons we agree with HRS and reverse.

We find merit in HRS’ position that general rules of statutory construction compel the conclusion that the exemption for “necessary services” in section 409.-2571 includes photocopying of necessary court records. “As always, legislative intent is the pole star by which we must be guided in interpreting the provisions of a law.” Parker v. State, 406 So.2d 1089, 1092 (Fla.1981). In this case, the legislative intent behind the 1976 amendments to Chapter 409 is expressly set out in section 409.2551, Florida Statutes, providing:

Common law and statutory procedures governing the remedies for enforcement of support for financially dependent children by responsible parents have not proven sufficiently effective or efficient to cope with the increasing incidence of financial dependency. The increasing workload of courts, prosecuting attorneys, and the Attorney General has resulted in a growing burden on the financial resources of the state, which is constrained to provide public assistance for basic maintenance requirements when parents fail to meet their primary obligations. The state, therefore, exercising its police and sovereign powers, declares that the common law and statutory remedies pertaining to family desertion and nonsupport of dependent children shall be augmented by additional remedies directed to the resources of the responsible parents. In order to render resources more immediately available to meet the needs of dependent children, it is the legislative intent that the remedies provided herein are in addition to, and not in lieu of, existing remedies. It is declared to be the public policy of this state that this act be construed and administered to the end that children shall be maintained from the resources of responsible parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through public assistance programs.

(e.s.) In keeping with the legislative intent, which is designed in part to relieve the taxpayers of the state from the burden of public assistance programs by insuring that financially responsible parents of dependent children—and not the state—support such children, it is reasonable to conclude that the legislature intended that HRS would receive all necessary services of the clerk’s office, including photocopying, free of charge.

Additional support for HRS’ position is disclosed by the legislative enactment of a specific exception to the general exemption from fees in section 409.2571, providing that nothing in that section shall prevent the court depository from charging and collecting fees for services rendered. “Therefore the rule, ‘expressio unius est exclusio alterius,’ seems to apply. Where the legislature creates specific exceptions to the language in a statute, we may apply the rule to infer that ‘had the legislature intended to establish other exceptions it would have done so clearly and Unequivocally.’ ” Florida Legal Services, Inc. v. State, Department of Labor and Employment Security, 381 So.2d 1120, 1122 (Fla. 1st DCA 1979).

Finally, HRS’ arguments are reinforced by the rules of statutory construction that the more recent and more specific of the two statutes, here section 409.2571, must prevail over the earlier and more general of the two, section 28.24. See Cable-Vision, Inc. v. Freeman, 324 So.2d 149, 152 (Fla. 3d DCA 1975) (last expression of legislative will prevails); Tallahassee Democrat, Inc. v. Florida Board of Regents, 314 So.2d 164 (Fla. 1st DCA 1975) (specific statute controls over general). Having applied the above rules to the pertinent statutes, we conclude that section 409.2571 must be interpreted as providing an exemption for all necessary services provided by the clerk of the circuit court when HRS is proceeding under sections 409.2551-409.-2597.

In reaching our conclusion we have not overlooked the authorities relied upon by Hartsfield, the first being Attorney General’s Opinion 079-51, which addressed the following question:

Is the Department of Health and Rehabilitative Services exempt under the provisions of § 409.2571, F.S., from paying to the clerk of the circuit court the service charges for copies of final judgments of dissolution of marriage when the copies are used by the department in determining eligibility of clients for public assistance?

1979 Op.Att’y Gen.Fla. 079-51 at 126 (May 9, 1979) (e.s.). In answering this question in the negative, the attorney general reasoned that section 409.2571 does not “appear to exempt the department from the payment of the service charges, imposed by the clerk as county recorder, in making copies of instruments in the public record for use in determining public assistance eligibility.” Id. at 127 (e.s.) Although it was unnecessary for us to determine this issue in Hartsfield I, we nevertheless indicated our dissatisfaction with the “trial court’s conclusion that the clerk’s duties are divisible into those performed as clerk of the circuit court and those performed as county recorder_” 399 So.2d at 1020. In the case at bar the trial court was influenced by the reasoning of the Attorney General’s opinion which had distinguished between the various functions performed by the clerk of the court. We are unpersuaded by the purported distinctions. Although Florida’s constitution confers upon the legislature the authority to divide the duties of the office of clerk “between two officers, one serving as clerk of court and one serving as ... recorder ... ”, Article V, § 16, Florida Constitution (1972), the legislature has as yet made no such division. Chapter 28, Florida Statutes, instead provides for one clerk per county to perform various functions, including serving as clerk of the court and as county recorder. See §§ 28.12, 28.211, 28.212, 28.222, Florida Statutes. In carrying out his various functions, the clerk is required to charge those fees provided in section 28.24, and the statute makes no distinction between the various “services rendered” by the clerk’s office. We are therefore not convinced that section 409.2571 exempts only those charges for services performed by the clerk as “clerk”, and not those services performed by the same constitutional officer, when acting in his capacity as “county recorder.”

We also find Attorney General’s opinion 079.51 unsupportive of the clerk’s position because it was directed to circumstances in which HRS sought to obtain copies of court documents for purposes of determining eligibility for public assistance. As HRS convincingly argues on appeal, sections 409.2551-409.2597, enacted in 1976, have nothing to do with the determination of eligibility for public assistance. These sections relate instead to remedies created for the collection of support payments to financially dependent children from the resources of parents able to provide such support.

We have also considered, and rejected, the cases of Taylor v. Tampa Electric Company, 356 So.2d 260 (Fla.1978) and Powers v. First Federal Savings & Loan Association, 420 So.2d 865 (Fla.1982), which Hartsfield contends are controlling. In both Taylor and Powers, the Florida Supreme Court was called upon to interpret those portions of section 28.24, pertaining to the collection and disbursement of monies from the court registry. In each case it was found that the language of section 28.24, insofar as it requires the clerk to collect fees for his various services, is mandatory. These holdings do not in themselves, however, require affirmance of the judgment below because the supreme court also recognized in each case that exceptions to section 28.24 can exist, and that to be valid such exceptions must be “clear.” 420 So.2d at 867. In our view section 409.-2571 provides a “clear” exception to the charging of fees for any “necessary services” performed by the clerk of the circuit court in proceedings brought by HRS for the collection of support payments under Chapter 409. We therefore do not consider Taylor or Powers controlling.

REVERSED and REMANDED for further proceedings consistent with this opinion.

JOANOS, J., and PEARSON, TILLMAN, Associate Judge (Retired), concur.


text:
    Rosa Lee HALL, Appellant, v. CITY OF JACKSONVILLE and Travelers Insurance Company, Appellees.
    No. AS-99.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Rehearing Denied Jan. 16, 1984.

      Jack Bettman, Jacksonville, for appellant.
    E. Robert Williams and James H. McCarthy, Jr., Jacksonville, for appellees.
   NIMMONS, Judge.

Hall appeals the deputy commissioner’s order denying her petition for modification asserting entitlement to permanent total disability (PTD) or a greater percentage of permanent partial disability (PPD) benefits than the 20% PPD awarded in the original order entered March 9, 1978. We affirm.

In the modification proceedings, Hall asserted that there had been a change of condition under Section 440.28, Florida Statutes, because her disability had changed since the original hearing. The principal evidentiary predicate presented by Hall was her work search conducted prior to the second hearing and testimony of a vocational rehabilitation expert that she was unemployable.

The deputy’s order denying the petition is brief and is set forth as follows:

THIS CAUSE having come on for hearing, the undersigned finds:
1. The claim was predicated on a petition for modification which was predicated in turn on an alleged change of condition which was predicated in turn on a recent job search.
2. The prior Order, however, was not decided on the basis of the adequacy or inadequacy, presence or absence of a job search. Indeed the prior Order recognizes that Claimant has a large disability. Presumably such a disability would make Claimant’s future employment difficult or impossible. The prior Order, however, turned on the fact that only a fraction of Claimant’s physical disability had been shown to be related to the accident. The rest of her disability arose after the accident.
3. Because of the foregoing, the claim should be denied.
Whereupon, it is, therefore,
ORDERED AND ADJUDGED that the claim is denied.

The initial 1978 order awarded 20% PPD, 10% of which was attributable to the surgery necessitated by the compensable accident and 10% of which was attributable to the effects of obesity. That order went on to recite, in part:

9. Claimant doubtless has a much greater disability, which disability is in fact increasing; because this is due to a degenerative arthritic condition which was not shown to be connected to the accidents.
10. Claimant was not shown to have sustained a loss of wage earning capacity in excess of 20% based on the residuals of the surgical procedure augmented by the obesity.

After close examination of the record in this case, we have been unable to find any evidence indicating any change in condition either in terms of the claimant’s physical condition or wage earning capacity. We recognize that a Section 440.28 change in condition should be construed so as to encompass a change in wage earning capacity even though the claimant’s physical condition remains unchanged and even though the original award was based on physical impairment and no economic loss. See DuPont Plaza Hotel v. Schiffman, IRC Order 2-2326 (1973), cert. denied, 291 So.2d 5 (Fla.1974), and Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982). However, in the case at bar, no effort was made to demonstrate that claimant’s employability or wage earning capacity was any different than it was at the time of the initial hearing or that the loss was attributable in any different proportion to compensable or noncompensable causes. The testimony of both the claimant and her vocational rehabilitation expert was that claimant’s employability was the same at the time of the second hearing as it was when the first hearing was held. Further, appellant states in her brief that at the second hearing, “claimant presented evidence that she was no more able to engage in employment in the open labor market then than she had been at the time of the first hearing.”

To construe Section 440.28 to permit modification of the first order under the evidence which was presented to the deputy in this case would, in our view, render nugatory the legislative standard of “change in condition.” We do not believe that the court in Flesche intended to extend the meaning of “change in condition” to include a situation where, as here, the claimant’s own evidence affirmatively showed there was no change of condition either in terms of physical condition or wage earning capacity.

The order denying claimant’s petition for modification is AFFIRMED.

WENTWORTH and ZEHMER, JJ., concur.

      . Section 440.15(3)(u), Florida Statutes (1977), provides that "disability" means either physical impairment or diminution of wage earning capacity, whichever is greater.


text:
    FLORIDA MINING AND MATERIALS and Whiting National Services, Inc., Appellants, v. Jesse MOORE, Appellee.
    No. AS-127.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Maureen Emmet-Miller and Peter H. Dubbeld of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellants.
    William M. Holt of Chilldon & Chilldon, Tampa, for appellee.
   NIMMONS, Judge.

The employer/carrier (E/C) appeal from an order awarding wage-loss benefits. We reverse.

The order appealed is the second order adjudicating compensation benefits emanating from the subject accident. A review of the proceeding concerning that prior order is determinative of the issues in the instant case. Prior to the first hearing, claimant filed his claim for temporary disability benefits, wage-loss benefits, an increase in average weekly wage, rehabilitation benefits and attorneys fees. Pursuant to the pre-hearing stipulation, among the issues considered at the first hearing on October 15 and 22, 1981, were: (1) whether and, if so, when claimant reached maximum medical improvement; (2) whether claimant sustained any permanent physical impairment; and (3) whether claimant was entitled to wage-loss benefits. At the first hearing, counsel for claimant asserted that Doctor Hoffman’s testimony demonstrated that a permanent physical impairment exists.

After the first hearing, the deputy commissioner entered his order on October 23, 1981, in which he, among other things: (1) found that the claimant reached maximum medical improvement on June 29, 1981; (2) awarded temporary partial disability benefits through the date of MMI; and (3) denied the claim for wage-loss benefits. The order recited:

The testimony of Dr. Hoffman does not show that the condition he found was a permanent impairment. This is a prerequisite to a claim for wage-loss benefits. Therefore, the claim for wage-loss benefits until October of 1981 should be denied.

No appeal was taken from that order.

Claimant filed a subsequent claim for wage-loss benefits for the period of October 1, 1981, to February 24, 1982. At the hearing in March, 1983, claimant introduced into evidence Dr. Hoffman’s January 15, 1982, letter expressing an opinion that claimant had a permanent impairment under the A.M.A. Guides. Dr. Hoffman also testified to such at the March, 1983, hearing. The deputy rejected the E/C’s arguments that the first order was res judicata on the issue of the claimant’s alleged permanent physical impairment and that, absent a supportable petition for modification under Section 440.28, Florida Statutes, the deputy could not relitigate that issue. In awarding wage-loss benefits through January, 1982, the deputy’s order observed that “the prior order made no finding that the claimant had no permanent impairment, but simply held that Dr. Hoffman’s testimony at that time did not show that there was a permanent impairment.” In this ruling, the deputy erred.

The issue of whether the claimant had a permanent physical impairment was not only ripe for determination, Hunt v. International Minerals and Chemical Corporation, 410 So.2d 640 (Fla. 1st DCA 1982), but was clearly litigated at the hearing on the claimant’s first claim for wage-loss benefits. As is apparent from the deputy’s first order, the claimant simply failed in his proof of a permanent impairment. In Wellcraft Marine Corporation v. Turner, 435 So.2d 864 (Fla. 1st DCA 1983), we held:

Except to the extent modification is permitted by Section 440.28, Florida Statutes, deputies’ compensation orders are governed by the same principles of res judicata and estoppel as are applied to judgments of courts. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960); City of West Palm Beach v. Chisolm, 405 So.2d 279 (Fla. 1st DCA 1981); compare Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982). Although the statutory scheme governing a claimant’s entitlement to wage-loss benefits affords the employer/carrier the right to contest on appropriate grounds succeeding wage-loss claims, §§ 440.-15(3)(b), 440.185(10), and 440.20, Florida Statutes, there would be no justification for requiring the parties to relitigate the element of permanent impairment after the same has been determined in a wage-loss proceeding. We hold that estoppel by judgment precludes the E/C from re-litigating the issue of permanent impairment.

Just as the E/C in Wellcraft was foreclosed from relitigating the issue of permanent physical impairment, so also is the claimant in the case at bar.

Neither can we sustain the deputy’s order by treating the second claim for wage-loss benefits as a petition for modification of the first order. Notwithstanding the deputy’s offer at the second hearing to treat the claimant’s wage-loss claim as a Section 440.28 petition for modification, counsel declined the offer expressly maintaining at hearing, as well as on appeal, that there was neither change in condition nor mistake which would support such a modification petition.

Claimant cross-appeals that part of the order denying wage-loss benefits after January, 1982. In view of our disposition of the E/C’s appeal on the above grounds, we need not reach the issues raised on cross-appeal.

The deputy’s order awarding wage-loss benefits is accordingly REVERSED.

WENTWORTH and ZEHMER, JJ., concur.

      . The American Medical Association’s Guides to the Evaluation of Permanent Impairment.


author: WENTWORTH, Judge.

text:
    Cynthia ANDERS for Dennis R. ANDERS, decedent, & Richard L. Weaver, Appellants, v. JACKSONVILLE ELECTRIC AUTHORITY, Baldwin-Lima-Hamilton Corporation, Armour and Co., Clark Equipment Co., and Miller Electric Co., Inc., Appellees.
    No. AS-209.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Rehearing Denied Jan. 27, 1984.
    Randall A. Schmidt, Law Offices of Brent M. Turbow, Jacksonville, for appellants.
    Dudley D. Allen, of Wilbur & Allen, Jacksonville, for appellees.
   WENTWORTH, Judge.

Appellants seek review of an order granting appellees’ motions to dismiss. We find that the complaint states a cause of action against appellee Armour & Co., and we therefore reverse the order appealed insofar as it relates to Armour.

As stated in the complaint, appellants’ action against appellees is predicated upon the negligent design and manufacture of a “truck crane.” The complaint further alleges that: The crane was manufactured by Baldwin-Lima-Hamilton, a Pennsylvania corporation which thereafter merged with appellee Armour; Armour purported to transfer to a wholly-owned subsidiary (Baldwin-Lima-Hamilton, a Delaware corporation) the assets and liabilities acquired as a result of the merger; the subsidiary sold its construction equipment division to ap-pellee Clark Equipment Co.; the subsidiary was then dissolved. Appellees’ motions to dismiss, which the trial court granted, assert that the complaint “fails to allege any ultimate fact showing why [appellees] should be deemed liable .... ”

In Bernard, v. Kee Manufacturing Co., Inc., 409 So.2d 1047 (Fla.1982), the Florida Supreme Court adhered to the traditional corporate law rule

which does not impose the liabilities of the selling predecessor upon the buying successor company unless (1) the successor expressly or impliedly assumes the obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.

Applying this rule in the present case, we find that the complaint fails to allege any factual predicate by which liability could be imposed upon Clark.

The allegations of the complaint, however, are sufficient to bring Armour within the ambit of the exceptions recognized in Kee Manufacturing, so as to withstand Armour’s motion to dismiss. The complaint alleges that by the merger Armour acquired the assets and liabilities of the predecessor corporation. This is essentially an allegation that Armour assumed the obligations of the predecessor, which is one of the above stated four exceptions to the traditional corporate law rule of non-liability-

The complaint is likewise facially sufficient as against Armour to preclude dismissal on the asserted ground that Armour purported to transfer its obligations to a wholly-owned subsidiary. The complaint alleges that Armour “attempted to transfer the liabilities it acquired by the merger to Baldwin-Lima-Hamilton Corporation, a Delaware corporation.” Appellees’ argument that corporate creditors would have an increased pool of assets if appellants were entitled to a cause of action against the parent company in addition to the subsidiary has no merit. The assets of the crane manufacturing company that were merged into the parent company (Armour), and subsequently sold by the subsidiary, benefited the parent and should be available to corporate creditors. Also, since the appel-lee falls into one of the exceptions to the corporate law rule, Florida Statute § 607.-231(3)(e) is not applicable here. Armour purchased the predecessor corporation and created a wholly-owned subsidiary in 1965. Seven years later, the subsidiary sold its construction division. A factual issue is presented as to whether or not a de facto merger occurred. Cf. Kelly v. American Precision Industries, Inc., 438 So.2d 29 (Fla. 5th DCA 1983).

Insofar as it relates to Clark the order appealed is affirmed; as it relates to Armour, the order appealed is reversed and the cause is remanded for further proceedings.

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