text:
    Milton Jerome NEDD, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. AY-140.
    District Court of Appeal of Florida, First District.
    May 10, 1984.
    Milton Jerome Nedd, petitioner pro se.
    Barbara Ann Butler, Jacksonville, for respondent.
   PER CURIAM.

In this petition for writ of habeas corpus, petitioner alleges that he is being illegally incarcerated beyond the expiration of his sentence, based on the misconstruction of the four five-year sentences which he received as consecutive, rather than concurrent. Petitioner also alleges that 153 days jail-time credit to which he was entitled was improperly credited to only one of the four sentences, rather than to all four.

In response to the show cause order of this court, respondent does not dispute petitioner’s allegations, rather he concedes that they are correct. Respondent agrees that, because the sentencing court did not “direct that two or more of the sentences be served consecutively,” the sentences are to be served concurrently. Section 921.16(1), Florida Statutes (1983). Respondent further concurs that the 153 days jail-time credit should have been credited to each of the four concurrent sentences. See Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984); Blackwell v. State, 449 So.2d 1296 (Fla. 2d DCA 1984). Based on these facts, petitioner’s release date was recalculated, resulting in a release date of March 2, 1984. Respondent has therefore moved for remand to the trial court for the immediate entry of an order of release.

Such a remand is not necessary in this case, and the motion therefor is accordingly denied. Petitioner has alleged his immediate entitlement to release from incarceration and respondent has demonstrated, and concurs in, the correctness of that allegation. Accordingly, the petition for writ of habeas corpus is granted, and petitioner shall be immediately released from custody.

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ., concur.


source: Caselaw Access Project

author: CAMPBELL, Acting Chief Judge.

license: Public Domain

text:
    Ronnie DELAFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-2002.
    District Court of Appeal of Florida, Second District.
    May 11, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Acting Chief Judge.

Appellant, Ronnie Delaford, seeks review of his conviction of manslaughter. We reverse.

The trial judge instructed the jury on second degree murder, manslaughter and justifiable homicide. During a bench conference, defense counsel requested an instruction on excusable homicide. After the jury instructions were given, defense counsel objected to the court’s failure to give an instruction on excusable homicide. The court stated that the request for the excusable homicide instruction was denied because there was no evidence of any excusable homicide.

On appeal, appellant argues that when an instruction is given for manslaughter, it is reversible error for the trial court to refuse to give a requested jury instruction on excusable homicide. We agree.

Manslaughter is a residual offense which excludes justifiable and excusable homicide. § 782.07, Fla.Stat. (1981); Hedges v. State, 172 So.2d 824 (Fla.1965). In Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978), this court ruled that the instruction on justifiable and excusable homicide must be given “even where there is no evidence to support a finding of justifiable or excusable homicide because manslaughter cannot be adequately defined without such an instruction.” Id. at 930.

Appellee argued that subsequent to Pouk, Florida Rule of Criminal Procedure 3.490 was changed, making it reversible error to give an instruction on a lesser included offense which is not supported by the evidence. Here, appellee contends there is no evidence to support excusable homicide.

Excusable homicide is not a lesser included offense, so Rule of Criminal Procedure 3.490 does not apply in this case. Therefore, the enactment of that rule does not change the law as enunciated in Hedges and Pouk.

For the reasons expressed above, we reverse the trial court and remand for a new trial.

SCHOONOVER and LEHAN, JJ., concur.


author: ZEHMER, Judge.

text:
    John GRADY, Appellant, v. HUMANA, INC., d/b/a Greater Orange Park Community Hospital, Inc., Appellee.
    No. AR-208.
    District Court of Appeal of Florida, First District.
    May 11, 1984.

      George W. Kent, Orange Park, for appellant.
    John Houser, Jacksonville, for appellee.
   ZEHMER, Judge.

John Grady, the plaintiff below, appeals an order granting summary judgment for the defendant, Humana, Inc., on the ground that Grady’s exclusive remedy is under the workers’ compensation act, chapter 440, Florida Statutes. We reverse.

Grady, a part-time employee in the hospital operated by Humana at Orange Park, worked in the central supply room, and his hours of employment varied from 1.8 hours to 8 hours per day, one to five days per week. He was injured while eating lunch in the cafeteria operated by the hospital and sued Humana for damages in the circuit court. The hospital, after filing an answer and a demand for jury trial, moved for summary judgment on the grounds that Grady was an employee covered by chapter 440, Florida Statutes, at the time of his injury, and that chapter provides his exclusive remedy. The circuit court granted the motion for summary judgment in an order which explained the basis for its ruling.

Section 440.09(1), Florida Statutes (1981), provides workers’ compensation coverage “in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment.” Section 440.11(1) provides that the employer’s liability for such workers’ compensation “shall be ex-elusive and in place of all other liability of such employer.. .to the employee.”

The test for determining whether one is an employee whose injury is covered by the workers’ compensation act was set forth by the Supreme Court in Evans v. Food Fair Stores, Inc., 313 So.2d 663, 664 (Fla.1975), as follows:

“[F]or an injury to arise out of and in the course of one’s employment, [1] there must be some causal connection between the injury and the employment or [2] it must have had its origin in some risk incidental to or connected with the employment or that [3] it flowed from it as a natural consequence. Another definition widely approved is that [4] the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it. (Emphasis supplied)”

Whether an injured workman is an employee whose injury arose out of and in the scope of his employment is ordinarily a question of fact to be decided by the trier of fact, be that judge, jury, or deputy commissioner. E.g., Rogers v. Barrett, 46 So.2d 490 (Fla.1950); Adams v. Wagner, 129 So.2d 129 (Fla.1961). Accordingly, it is reversible error to grant a summary judgment in favor of an employer on grounds that chapter 440 provides the exclusive remedy to the employee where “an issue of fact exists as to whether plaintiff was in the course and scope of his employment at the time of the injury.” Lemoine v. Flanigan’s Enterprises, Inc., 445 So.2d 414 (Fla. 4th DCA 1984). Genuine issues of fact may arise on undisputed facts where different inferences may reasonably be drawn therefrom. Aldridge v. Yellow Cab of Gainesville, Inc., 448 So.2d 1129 (Fla. 1st DCA 1984); Gravas v. The Mackle Company, 444 So.2d 1159 (Fla. 3d DCA 1984).

The thrust of Humana’s position is set forth in the conclusion to its brief on appeal:

As the court below found, Grady’s use of the hospital’s cafeteria was actively sought by his employer, it was beneficial to his employer, and it was the only practical place for the employee to have lunch because of job conditions. It is, and ought to be, within his employment. Grady’s injury is, and ought to be, covered by the Florida Workmen’s Compensation Act.

This might well be correct if the material facts were not in dispute.

After a careful review of the record, however, we conclude that Humana has failed to conclusively demonstrate the absence of genuine issues of material fact regarding whether Grady’s injury arose out of and in the course and scope of his employment. We find that disputed issues remain as to whether Grady was dressed in hospital garb so as to make it impractical for him to leave the hospital for lunch at the time of his injury; whether the nature of the work plaintiff was doing for the hospital on that day made it necessary for the lunch time allowed him to be taken only when the supervisor said his work was sufficiently caught up to make it practical to go to lunch; and whether the pricing of food in the cafeteria was below the market in the general area so as to encourage employees to use the cafeteria furnished by the hospital. In addition, the record reflects — but not without dispute — that the cafeteria was furnished for use by the public and hospital employees alike; that Grady, as an employee, received no discount from the prices charged members of the public for cafeteria food; that Grady ordinarily went to lunch at the same time every day; and that Grady was not required to eat on the premises but was free to eat in the cafeteria or off the premises, as he wished. These disputed facts are relevant and material to resolving the question of whether Grady’s injury was covered by Florida’s workers’ compensation act.

Humana relies primarily on Evans v. Food Fair Stores, supra, and Naranja v. Dawal Farms, 74 So.2d 282 (Fla.1954). Both of these cases involved determinations by the deputy commissioner, sitting as the trier of fact in workers’ compensation proceedings, concerning the employee’s status at the time of injury which were reversed by the Industrial Relations Commission as a matter of law. The Supreme Court concluded that it was error for the commission to treat the issues as questions of law and reinstated the deputy’s decision in each case because there was sufficient evidence, although disputed, to support the deputy’s finding. Accordingly, neither case supports Humana’s contention that the court below should have decided this issue as a matter of law.

REVERSED and REMANDED.

MILLS and SHIVERS, JJ., concur.


author: WIGGINTON, Judge.

text:
    CITY OF MIAMI, Appellant, v. Michael MAZUR, Appellee.
    No. AV-23.
    District Court of Appeal of Florida, First District.
    May 11, 1984.

      Jose Garcia-Pedrosa, City Atty. and Jorge L. Fernandez, Asst. City Atty., Miami, for appellant.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellee.
   WIGGINTON, Judge.

Appellant, City of Miami, appeals the Deputy Commissioner’s order awarding a fee of $1,500 to claimant’s attorney for securing a lump sum advance of benefits. Appellant complains that there is no reasonable basis for the amount of the fee, that it may only be responsible for 75 percent, not 100 percent of the fee under section 440.34(1), Florida Statutes, and that there is no statutory basis for the award. We reverse, based on appellant’s final point, and therefore need not discuss the other two contentions.

On March 14, 1979, claimant suffered a compensable industrial injury, and as a result, was awarded permanent partial disability benefits of $15,925 by order dated February 4, 1982. Pursuant to section 440.34(1), Florida Statutes (Supp.1978), the deputy commissioner awarded claimant’s attorney $4,000 in fees based on the $15,-925 in benefits he secured for the claimant. On December 17, 1982, claimant’s attorney, pursuant to section 440.20(ll)(d), Florida Statutes (Supp.1978), secured for claimant $7,345 of the previously awarded amount in an advance lump sum, over the City’s resistance.

At the July 28, 1983 hearing on attorney’s fees claimed for securing the awarded amount in a lump sum, claimant’s attorney sought $1,710 based on his expertise and six hours of work. The City objected arguing that

the applicable statute in question, does not provide, does not contemplate the award of an attorney’s fee on that type of a proceeding, an advance lump sum.

We find the above-quoted record objection sufficient to preserve for review the issue of whether there is a statutory basis for the award. Although claimant’s attorney sought fees “pursuant to the statute based upon the benefits obtained,” it is unclear whether he was relying on section 440.34(1) or section 440.20. Neither statute, however, provides authority for awarding attorney’s fees for securing in lump sum form benefits previously obtained.

We agree with appellant’s reliance on Sullivan v. Mayo, 106 So.2d 4 (Fla. 1st DCA 1958) as speaking to the issue sub judice. In Sullivan, the court initially said:

In the case of a petition for lump sum payments, however, dealing only with the manner of payment as opposed to claimant’s right to compensation, the statute provides that lump sum payment shall be made “whenever the commission determines that it is for the best interests of a person entitled to compensation.” F.S. § 440.20(10), F.S.A.

106 So.2d at 6.

The court went on to conclude that F.S. § 440.34, F.S.A., relative to allowance of attorney’s fees, is by its literal terms applicable only to proceedings in which a carrier contests “payment of compensation” as opposed to manner of payment, and its rationale would not nor should it impose such additional burden upon a carrier in this proceeding.

Id., at 7; see also Ace Drywall Company v. Elkins, IRC Order 2-3508 (August 21, 1978).

There being here resistance to the lump sum method of payment, and not to payment of the compensation itself, we find no basis for an award of attorney’s fees. Accordingly, the deputy’s order awarding fees to claimant’s attorney is reversed.

WENTWORTH and BARFIELD, JJ., concur.


author: PER CURIAM.

text:
    Andrew Romeo JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AV-379.
    District Court of Appeal of Florida, First District.
    May 11, 1984.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This appeal from a judgment and sentence entered pursuant to a plea of nolo contendere is dismissed because appellant did not reserve his right to appeal any issue when entering his plea of nolo conten-dere. See McNamara v. State, 357 So.2d 410 (Fla.1978); Feagin v. State, 438 So.2d 1082 (Fla. 1st DCA 1983); Chapin v. State, 427 So.2d 812 (Fla. 5th DCA 1983); § 924.-06(3), Fla.Stat. (1981); Fla.R.App.P. 9.140(b)(1). This dismissal is without prejudice to appellant’s right to seek post-conviction relief pursuant to Fla.R.Crim.P. 3.850.

DISMISSED.

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    D & R BUILDERS, INC. and Fireman’s Fund Insurance Company, Appellants, v. Gabriel QUETGLAS, Appellee.
    No. AV-496.
    District Court of Appeal of Florida, First District.
    May 11, 1984.
    Rehearing Denied June 1, 1984.

      Barry A. Pemsler of Richard & Pemsler, Miami, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee.
   ERVIN, Chief Judge.

Appellants, D & R Builders, Inc. and Fireman’s Fund Insurance Company (e/c), appeal an order of the deputy commissioner, awarding wage-loss benefits to Gabriel Quetglas (claimant), contending the award was erroneous because there was no competent, substantial evidence disclosing that claimant had conducted a diligent and good faith work search. We agree and reverse.

Claimant was injured on September 24, 1979, for which he received workers’ compensation benefits. He later sought additional temporary total disability and wage-loss benefits that were denied due to his failure to conduct a good faith work search. The order denying the requested benefits was per curiam affirmed by this court. See. Quetglas v. D & R Builders, Inc., 417 So.2d 336 (Fla. 1st DCA 1982). A new claim was filed in May of 1983, seeking modification of the prior order and again seeking temporary total, permanent partial and wage-loss benefits. By both deposition and testimony directly before the deputy, claimant stated, through the aid of an interpreter, that he had not worked since April of 1981 and that, between such date and September of 1983, he had sought work with only two individuals named Paz and Perez. This revelation, which surprised even the claimant’s attorney, caused the attorney to comment that he was not then entitled to wage-loss benefits. Despite the evidence, failing to disclose even a minimal work search, the deputy found claimant to have made “a diligent good faith job search for employment compatible with his physical limitations and restrictions.” As there was no competent, substantial evidence in the record to support that finding, we reverse.

Although this court has recognized that no precise definition of an adequate job search can be devised, the case law requires that in order for one to be deemed sufficient, the claimant should present evidence including “the names of the businesses contacted, the type of work sought, the number of contacts made, and the time frame within which work was sought.” Regency Inn v. Johnson, 422 So.2d 870, 877 (Fla. 1st DCA 1982). Here, although claimant was able to identify two persons whom he had contacted regarding work, he was unable to relate those contacts to any specific time frame other than that the contacts had been made at some time within a two-year period. Such evidence, without more, is simply insufficient to support the deputy’s findings.

Claimant’s counsel in effect concedes the inadequacy of the work search, but argues that we should remand the case for purposes of reconsideration and application by the deputy of the “deemed earnings” provision of Section 440.15(3)(b)2., Florida Statutes (1979). We decline to do so. As stated in Regency Inn, the following burdens of proof are applicable to claims involving wage-loss benefits:

[T]he burden of proof provision is to require the employee to go forward with evidence showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment commensurate with his abilities so as to establish, prima facie, an economic loss and to show that he or she has not voluntarily limited his or her income or failed to accept employment commensurate with his or her abilities. Once this evidence has been presented by the employee, the burden of proving that the employee has refused work or voluntarily limited his or her income is on the employer.

If, as here, the claimant fails to satisfy his initial burden of presenting a prima facie showing, the deemed earnings provision is inapplicable.

The deputy’s order awarding wage-loss benefits, penalties and costs is therefore REVERSED.

THOMPSON and WIGGINTON, JJ., concur.

      . Section 440.15(3)(b)2. provides:
      The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury-
      (e.s.)


text:
    Robert Anthony LEAVITT, Appellant, v. STATE of Florida, Appellee.
    No. AR-376.
    District Court of Appeal of Florida, First District.
    May 15, 1984.
    Jack M. Ross of Birr, Bryant & Saier, Gainesville, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Parker v. State, 444 So.2d 1055 (Fla. 1st DCA 1984).

THOMPSON, NIMMONS and BAR-FIELD, JJ., concur.


author: SHIVERS, Judge.

text:
    LEE & RICK’S OYSTER BAR and American States Insurance Company, Appellants, v. Lindel NOLIN, Appellee.
    No. AT-39.
    District Court of Appeal of Florida, First District.
    May 15, 1984.

      Bernard J. Zimmerman and Paul J. Morgan of Zimmerman, Shuffield, Kiser & Sut-cliffe, Orlando, for appellants.
    David M. Hammond, Orlando, for appel-lee.
   SHIVERS, Judge.

The deputy commissioner’s order is affirmed, except for that portion awarding wage-loss benefits. The evidence at the hearing, including claimant's own testimony, clearly indicated that the claimant worked during a portion of the period for which he received wage-loss benefits, but that the deputy commissioner failed to reduce the amount awarded in light of that income. Claimant, on appeal, concedes this, and advises that he included the amount he earned on the appropriate wage-loss forms which, though filed, were inexplicably not included in the record. Claimant is agreeable to having the benefits payable for each period wherein he worked reduced by the amount he actually earned. We remand for a recomputation.

WENTWORTH and BARFIELD, JJ., concur.


text:
    Dominic AMODEI, Appellant, v. GCC BEVERAGES and Liberty Mutual Insurance Company, Appellees.
    No. AV-96.
    District Court of Appeal of Florida, First District.
    May 15, 1984.
    Paul S. Boone of Law Offices of Brent M. Turbow, and Donald W. Matthews, Jacksonville, for appellant,
    Peter J. Kellogg of Grissett, Humphries & Kellogg, Jacksonville, for appellees.
   PER CURIAM.

Attorney fees are not compensation within the meaning of section 440.20(8), Florida Statutes (Supp.1980), formerly section 440.-20(6), Florida Statutes (1977). AFFIRMED.

WENTWORTH, ZEHMER and BAR-FIELD, JJ., concur.


text:
    PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Gloria SMITH, Appellee.
    No. AV-309.
    District Court of Appeal of Florida, First District.
    May 15, 1984.

      Melanie Jacobson, Asst. County Atty., West Palm Beach, for appellant.
    Janet W. Freeman, Palm Beach and Harry Goodmark, West Palm Beach, for appel-lee.
   PER CURIAM.

AFFIRMED. See Custodis Const. v. Register, 435 So.2d 947 (Fla. 1st DCA 1983).

MILLS, SHIVERS and WIGGINTON, JJ., concur.


text:
    George EVANS, Appellant, v. ORLANDO WORK FORCE and Liberty Mutual Insurance Company, Appellees.
    No. AV-373.
    District Court of Appeal of Florida, First District.
    May 15, 1984.
    R.W. Simmermon, Orlando, for appellant.
    Edward H. Hurt, Jr., Orlando, for appel-lees.
   WIGGINTON, Judge.

Appellant appeals the deputy commissioner’s order denying his claim for temporary total disability benefits from June 10, 1982 through January 17, 1983. We reverse and remand.

Appellant, who is approximately fifty-one years old, does not have the use of his right arm due to a shooting accident that occurred twenty-seven years ago. His work experience has consisted of manual labor jobs that he could perform with his remaining good arm and hand. However, on January 29, 1982, he broke his left wrist in a work related accident.

Employer/carrier paid appellant temporary total disability benefits until June 10, 1982. He initially was treated by Dr. Shea, an orthopedist, whose reports were not admitted into evidence and whose deposition was not taken. According to appellant’s testimony, in June, 1982, Dr. Shea released him to return to work without restrictions, telling him that he did not have any further treatment to offer him. Appellant testified that he continued to suffer pain and his arm remained swollen to the extent that he was unable to seek work, especially since he did not have another usable arm. He did not return to Dr. Shea until January, 1983, because he was unable to pay the medical bill and believed that since he was no longer receiving benefits, he was not entitled to medical treatment at employer/carrier’s expense. In January, 1983, Dr. Shea performed surgery on appellant’s hand to release certain tendons that had been pinned down by scar tissue due to the injury, a procedure referred to as releasing the DeQuervains.

In June, 1983, Dr. Shea referred appellant to Dr. Tucker, an orthopedist, who treated appellant through September, 1983. According to Dr. Tucker’s testimony and report in the record, at the time he saw appellant, appellant had a “healed fractured radius,” but apparently he had developed a “sympathetic dystrophy” of his left hand. The doctor explained that sympathetic dystrophy is a progressive condition in which the body’s compensation mechanism, rather than being of assistance in healing an injury, actually causes deminer-alization of the extremity, and the area feels alternately hot and cold. He went on to say that a patient with that condition tends not to use his limb because it hurts, but the less the limb is used the worse it becomes. He stated that sympathetic dystrophy usually begins to occur about six weeks after an injury. He believed that it occurred in appellant while Dr. Shea was treating him. He felt that appellant’s complaints of pain throughout the previous year were real. He performed a second DeQuervains release on appellant in August, 1983, since rescarring had occurred due to the sympathetic dystrophy condition. At the time he saw appellant, he was of the opinion that appellant had serious physical limitations due to his wrist condition, but he thought appellant could begin to do light work and gradually he would improve.

The testimony of Dr. Tucker and appellant was unrefuted. On the basis of the evidence as related above, in his order, the deputy commissioner merely made the general statement that he found no competent substantial evidence in the record to support the claim for temporary total disability benefits for the period of June 10, 1982, through January 17, 1983, and therefore he denied the claim.

In Mobley v. Fulford Van & Storage, 390 So.2d 426 (Fla. 1st DCA 1980), we observed that:

It is the function of the order to provide at least an outline of the essential facts pointing toward the decision ultimately reached by the deputy commissioner.

Rule 8(b), Florida Workers’ Compensation Rules of Procedure, provides:

The order of the deputy shall set forth findings of fact, conclusions of law and the deputy’s determination of the claim or other ruling....

The deputy commissioner’s order in this case falls far short of the requirements of the above authorities and therefore must be remanded for compliance therewith.

The deputy’s error is magnified by the fact that in this ease the only evidence in the record supports appellant’s position. Dr. Tucker’s uncontradicted testimony established that, within reasonable medical probability, appellant was suffering from the sympathetic dystrophy condition due to his injury during the period from June 10, 1982, through January 17, 1983. Even though Dr. Tucker did not examine appellant during that period, his testimony is competent in that regard since he testified as to the progressive nature of the condition and considering that appellant’s complaints of pain during that time both corroborated Dr. Tucker’s opinion and were corroborated by Dr. Tucker’s testimony. Compare Sun ’N Lake Inn, Inc. v. Folsom, 426 So.2d 1265 (Fla. 1st DCA 1983). In Sun ’N Lake, the claimant had injured her back but was finally released by her treating physician to return to some type of work. According to her testimony, although she did make some effort to maintain a job, she was unable to continue to work due to her back pain. Finally, over a year later, her treating physician determined that she in fact was suffering a bulging disc, that occurred as a result of her compen'sable injury. According to the opinion, the treating physician testified that the bulging disc condition “existed at some time prior to his discovery of it.” He was speculative as to when the condition began. This Court affirmed the deputy commissioner’s award of temporary total disability benefits to the claimant despite the employer/carrier’s argument on appeal that the claimant’s testimony of her inability to work, standing alone, without simultaneous medical evidence dating from that period of time when she quit her job could not constitute competent substantial evidence upon which to base the award. The court concluded that the claimant’s testimony considered together with the corroborating medical evidence, constituted competent substantial evidence to support the deputy commissioner’s decision. Compare also Square G. Construction Company v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982).

In the instant case, appellant’s complaints of debilitating pain during the period in question were consistent with and were corroborated by Dr. Tucker’s unrefut-ed medical testimony. In light of Smi ’N Lake and Square G. Construction Company, it appears and we conclude that appellant did present adequate, uncontradicted competent substantial evidence to support his claim. Since the record contains no evidence to the contrary and since the deputy commissioner’s order denying the claim failed to set forth any findings upon which his conclusion was based, we reverse and remand to the deputy commissioner for entry of an order consistent with this opinion.

REVERSED and REMANDED.

MILLS and SHIVERS, JJ., concur.


author: BASKIN, Judge.

text:
    Bernard CIPRIANI, Appellant, v. JERICO, a corporation and Allstate Insurance Company, Appellees.
    No. 83-509.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    John H. Lipinski, Miami, for appellant.
    Bedford & Whitelock, and Jack Whitel-ock, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

We affirm the judgment in favor of ap-pellees entered by the trial court following the return of a jury verdict of zero damages for Cipriani. The record discloses that the injury Cipriani complained of following an automobile accident was not objectively verifiable. Thus, a jury of reasonable persons would be justified in concluding that he was not injured. Lockhart v. Prudot, 271 So.2d 157 (Fla.2d DCA 1972). Finding that the appellant has failed to demonstrate reversible error in any of the other points raised on this appeal, we affirm the judgment of the lower court.

Affirmed.


text:
    Iris Lee GLOSTER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-750.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, 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:
    Juan PEREDA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-889.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Bennett H. Brummer, Public Defender, Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Griffin v. State, 414 So.2d 1025 (Fla.1982); Henry v. State, 359 So.2d 864 (Fla.1978).


text:
    Dr. Estyne DEL RIO and Sandra Cole, Appellants, v. Irene Topping BERNHARDT, Appellee.
    No. 83-1491.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.

      Irving Sehulman, Port Lauderdale, for appellants.
    Charles H. Snowden, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: PER CURIAM. SCHWARTZ, Chief Judge,

text:
    Robert “Bob” CHEETHAM and Jack Brickman, Individually and as Trustees, Appellants, v. DADE FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 83-2870.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Smith & Mandler and Patricia M. Silver, Miami Beach, for appellants.
    Schultz & Hollander, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Affirmed. Besett v. Basnett, 389 So.2d 995 (Fla.1980); Lynch v. Fanning, 440 So.2d 79 (Fla. 1st DCA 1983); Held v. Trafford Realty Co., 414 So.2d 631 (Fla. 5th DCA 1982).

SCHWARTZ, Chief Judge,

dissenting.

I dissent from the affirmance of the summary judgment entered below on the hackneyed but I think appropriate ground that the movant did not conclusively establish the absence of genuine issues of material fact so as to entitle it to that relief. Holl v. Talcott, 191 So.2d 40 (Fla.1966).


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Betty ZIMMERMAN, Appellant, v. CRUZ & GARCIA, et al., Appellees.
    No. 82-451.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.

      Ronald J. Gricius of Baumgartner, Elein-ko & Gricius, P.C., Mount Clemens, Michigan, for appellant.
    David F. Cooney of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   PER CURIAM.

This appeal requires us to determine whether minor children not financially dependent on their mother have standing to sue for her death under the applicable wrongful death act. The trial court entered summary final judgment in favor of the defendants. We reverse.

Lynn Laskey was killed in an automobile accident in March, 1979. She was divorced, and her two minor children resided with and were financially supported by their father. The trial court held the children ages nine and ten could not be deemed survivors under the Wrongful Death Act as amended in 1977 and in effect at the time of the accident.

The purpose of the Wrongful Death Act is “to protect the family and dependents of an individual in the event of wrongful death.” Garner v. Ward, 251 So.2d 252 (Fla.1971). Prior to 1977 it was clear under the statute that some classes of survivors had standing only if they were dependent on the decedent, while the standing of others was unaffected by their dependency. Minor children were in the latter category. Before it was amended in 1977 the Wrongful Death Act read, in pertinent part, as follows:

768.16Short title. — Sections 768.16-768.27 may be cited as the “Florida Wrongful Death Act.”
768.17 Legislative intent. — It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.-27 are remedial and shall be liberally construed.

768.18 Definitions. — As used in ss. 768.16-768.27:

(1) “Survivors” means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.
(2) “Minor children” means unmarried children under 21 years of age.

Florida Statutes (1975) (footnote omitted).

The 1977 legislature adopted Section 40, Chapter 77-468, Laws of Florida, which states:

Section 40. Subsection (2) of section 768.18, Florida Statutes, is amended to read:
768.18Definitions. — As used in ss. 768.16-768.27:
(2) “Minor children” means dependent unmarried children under 21 years of age notwithstanding the age of majority.

It may be noted that in 1981 the legislature again amended section 768.18(2) to read as follows:

“Minor children” means children under 25 years of age, notwithstanding the age of majority.

Ch. 81-183, § 1, Laws of Fla.; § 768.18(2), Fla.Stat. (1981). This version cannot be applied to this case.

The defendants/appellees evidently persuaded the trial court that insertion of the word “dependent” in the Section 40, Chapter 77-468, version of Section 768.18(2) had the effect of withdrawing standing from minor children of a decedent who were not economically dependent on the decedent. We disagree.

As it existed after the 1977 amendments the wrongful death act read as follows:

768.18 Definitions. — As used in ss. 768.16-768.27:

(1) “Survivors” means the decedent’s spouse, minor children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.
(2) “Minor children” means dependent unmarried children under 21 years of age, notwithstanding the age of majority.
(3) “Support” includes contributions in kind as well as money. [Emphasis added]

It is reasonable to conclude that the term “dependent” in subsections (1) and (2) should be given the same construction. Thus a child who was dependent on a deceased parent for “support or services” is included as a survivor. Further, the “Damages” section of the Statute, Section 768.-21, Florida Statutes (1977) states:

(3) Minor children of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.

Children are certainly dependent upon their parents for companionship, instruction and guidance and for the love which comes with each. This remains true whether or not that parent is then contributing money to that child.

Indeed, appellee’s brief does not really contest this but instead argues that discovery showed that the deceased mother had stopped giving “love, care and [emotional] support” to the children. Suffice it to say our review of the record convinces us there is at least an issue of fact as to the continued love, care, and support by the mother. Poignantly, the mother was planning a visit to the children at the time of her death.

In conclusion, we hold that the children here met the test of dependency as required under the act and that factual issues were present.

REVERSED and REMANDED for further proceedings.

LETTS and BERANEK, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially-

I agree with the opinion for the court, but wish to raise a rhetorical question. What would have been the result had appellant challenged the constitutionality of the process by which the legislature adopted its second 1977 amendment to section 768.18(2) of the Wrongful Death Act? See Auto Owners Insurance Co. v. Hillsborough County Aviation Authority, 153 So.2d 722, 725 (Fla.1963).


author: SMITH, CHARLES E., Associate Judge.

text:
    CHARLES McARTHUR DAIRIES, INC., and Pennsylvania Millers Mutual Insurance Company, Appellants/Cross Appellees, v. Patricia A. MORGAN, as Personal Representative of the Estate of Ralph E. Morgan, Deceased, Appellee/Cross Appellant.
    No. 83-688.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.

      Ronald S. Fanaro of Bernard F. Grail, Jr., P.A., Vero Beach, for appellants/cross appellees.
    Terry N. Freeman and J. Mark Maynor of Beverly & Freeman, West Palm Beach, for appellee/cross appellant.
   SMITH, CHARLES E., Associate Judge.

Charles McArthur Dairies, Inc. (Dairies), defendant below, appeals a trial court order refusing to setoff from a jury verdict a settlement amount paid to plaintiff by code-fendant Florida Power & Light (FP & L). Dairies claims that because the agreement was in effect a release or covenant not to sue, it is automatically entitled to a setoff. We disagree, and affirm the trial court’s disposition of the motion.

The verdict in question was awarded in a wrongful death suit in which Dairies and FP & L were the principal defendants. During the trial, Dairies’ counsel became aware that FP & L and the plaintiff had reached an agreement in which FP & L unconditionally agreed to pay plaintiff $150,000 and to remain in the action as a defendant. After discovering these terms, Dairies’ counsel characterized the agreement as a “Mary Carter” agreement, and requested that it be disclosed to the jury. The trial court offered counsel time to read the agreement prior to disclosing it to the jury, but Dairies’ counsel declined this opportunity and again asked for immediate disclosure. Granting his oral motion, the trial judge advised the jury of the FP & L settlement provisions. After trial, Dairies contended that the agreement was a release and not a Mary Carter agreement, moving unsuccessfully for a setoff in the amount paid by its terms.

Dairies’ contention after trial was correct. Mary Carter agreements must be based on some contingency, happening or some agreement as to minimum or maximum liability. Frier’s, Inc. v. Seaboard Coastline Railroad, 355 So.2d 208 (Fla. 1st DCA), cert. dismissed, 360 So.2d 1250 (Fla. 1978); Booth v. Mary Carter Paint Company, 202 So.2d 8 (Fla. 2d DCA 1967). In this case, the settlement was for a straight $150,000 with no contingencies. It was therefore a release, and should never have been announced to the jury, following the general rule that a settlement amount with any one party should not be announced to the jury, as it may unduly influence them as to the amount of damages.

Despite the foregoing, we decline to grant Dairies any relief, because the announcement to the jury of the agreement came at insistence of Dairies’ counsel. Appellant should not be permitted to capitalize upon the error it invited. In Arsenault v. Thomas, 104 So.2d 120 (Fla. 3d DCA 1958), appellants entered into evidence a covenant not to sue and then complained that the trial court wrongly revealed it to the jury. The trial court refused to modify the judgment, finding that appellants invited the error. Similarly, in this case, the agreement was brought to the jury’s attention through appellant’s demand, and the trial court reacted as did the Arsenault court. See also Behar v. Southeast Banks Trust Co., 374 So.2d 572 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla. 1980); Holmes v. School Board of Orange County, 301 So.2d 145 (Fla. 4th DCA 1974), cert. denied, 312 So.2d 755 (Fla.1975).

Dairies should have accepted the trial court’s offer to read and evaluate the settlement. Had it done so, it would have determined that the agreement was a release, requested that FP & L be dismissed as a party, and would have realized that jury disclosure was inappropriate. Failing to do this, it should have requested jury instructions that the jury disregard the amount of the settlement in arriving at their award for damages. Instead, Dairies leapt heedlessly into error, not complaining until the receipt of an unfavorable verdict, and we will not relieve them from the consequences of their misjudgment.

We find the points on cross appeal to be without merit, and accordingly affirm the trial court on all issues.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Suzanne A. SCHANTZ, Appellant, v. CENTURY NATIONAL BANK OF BROWARD, Avco Financial Services of Hollywood, Inc., Appellees.
    No. 83-2194.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Nancy Little Hoffmann of Hoffmann & Burris, Fort Lauderdale, for appellant.
    Jay Cohen and David W. Black of Atkinson, Golden, Jenne, Diner & Henry, Hollywood, for appellee Avco.
    Philip J. Morgan of Brinkley, McNerney, Morgan & Ashcraft, Fort Lauderdale, for appellees Jack Fiume and Century National.
   PER CURIAM.

We affirm upon authority of John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980), Taicher v. City of Hallandale, 442 So.2d 281 (Fla. 4th DCA 1983).

AFFIRMED.

ANSTEAD, C.J., and HURLEY and WALDEN, JJ:, concur.


author: DOWNEY, Judge.

text:
    Lila McConnell GREENOUGH, Appellant, v. AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Appellee.
    No. 83-2242.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Pasco & Krentsa, P.A., Hallandale, and Edward A. Perse of Horton, Perse & Ginsberg, Miami, for appellant.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This is an appeal from an order denying a motion for attorney’s fees.

Lila McConnell Greenough sued Aetna Casualty & Surety Company to determine the amount of insurance coverage afforded Greenough pursuant to a home owner’s policy that Aetna had originally written for Greenough in December 1977. Greenough had made a claim against Aetna for a loss in November 1980 of silverware and money stolen from her home, which was covered by the Aetna policy. Greenough alleged the policy afforded coverage for loss of personal property up to $20,000. Aetna’s answer alleged the policy afforded a maximum of $1,100 in coverage for loss of silverware and money. From a judgment entered upon a jury verdict finding Gree-nough was entitled to recover $1,000 Gree-nough perfected this appeal.

In a post judgment hearing on the question of Greenough’s entitlement to attorney’s fees under Section 627.428, Florida Statutes (1979), which authorizes an award of attorney’s fees to an insured or a beneficiary who prevails against an insurance company, Aetna contended that she was not entitled to attorney’s fees because Aet-na had offered to settle the claim for $1,100, the amount of coverage the company admitted was furnished by the current policy. Since Greenough recovered slightly less than Aetna had offered, attorney’s fees were not recoverable under Section 627.428. Greenough, on the other hand, contended that Aetna’s pleading denied the theft as well as coverage. Therefore, the offer of settlement of $1,100 was not effective to preclude recovery of attorney’s fees.

In its answer to the third amended complaint, Aetna denied that the policy Gree-nough sued upon was effective at the time of the theft. However, Aetna expressly alleged that:

“The policy in full force and effect on the date of the subject loss provided under coverage Part C Personal Property:

(1) $100.00 on money, bank notes, bullion, gold other than goldware, silver other than silverware, platinum coins and metals.
(7) $1,000.00 for loss by theft of silverware, silverplated ware, goldware, gold-plated ware and pewterware.”

Eleven hundred dollars was the offer made by Aetna before suit was even filed. One thousand dollars was the award. Because she did not recover more than Aetna offered to pay her under the policy, Gree-nough did not prevail against Aetna and so was not entitled to recover an attorney’s fee pursuant to Section 627.428, Florida Statutes (1979). Travelers Ins. Co. v. Rodriguez, 387 So.2d 341 (Fla.1980); Lumbermens Mut. Ins. Co. v. Am. Arbitration, 398 So.2d 469 (Fla.4th DCA 1981).

The judgment appealed from is accordingly affirmed.

AFFIRMED.

HERSEY and WALDEN, JJ., concur.


author: DELL, Judge.

text:
    MORSE OPERATIONS, INC., d/b/a Bayview Cadillac, Petitioner, v. SONAR RADIO CORPORATION, Respondent.
    No. 83-2772.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Fulvia A. Moras of Goodwm, Ryskamp, Welcher & Carrier, P.A., and Joseph I. Davis, Miami, for petitioner.
    Yal L. Osinski of Law Offices of Val L. Osinski, Coral Springs, for respondent.
   DELL, Judge.

Petitioner Morse Operations, Inc., d/b/a Bayview Cadillac seeks review by certiorari of an order denying its motion to stay until arbitrated.

On July 30, 1981, respondent Sonar Radio Corporation signed a buyer’s order for a new 1981 Cadillac which was duly accepted by petitioner and contained the following arbitration provision:

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN SOUTHEAST FLORIDA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT UPON THE AWARD RENDERED BY ■ THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

Respondent elected to finance the vehicle and on August 5, 1981, signed an installment sale contract. This contract did not contain an arbitration provision.

After experiencing problems with the car, respondent brought suit against petitioner in the circuit court. Petitioner filed a motion to stay until arbitrated which the trial court summarily denied, and directed respondent to seek discovery.

Thereafter, the court conducted a hearing and entered its order. The order found the installment sale contract superseded the buyer’s order and denied petitioner’s motion to stay until arbitrated.

Petitioner asserts that the installment sale contract merely constituted a financing device and therefore contends the trial court erred in determining that it superseded the buyer’s order.

The relevant provisions of the buyer’s' order state:

Purchaser agrees that this Order on the face and reverse side hereof and any separate credit disclosure shall include all of the terms and conditions, that this Order cancels and supersedes any prior agreement and as of this date hereof comprises the complete and exclusive statement of the terms of the agreement relating to the subject matters covered hereby, and that THIS ORDER SHALL NOT BECOME BINDING UNTIL ACCEPTED BY DEALER OR HIS AUTHORIZED REPRESENTATIVE.
The Purchaser, before or at the time of delivery of the motor vehicle covered by this Order will execute such other forms of agreement or documents as may be required by the terms and conditions of payment indicated on the front of this Order.

The plain language of these provisions demonstrate that the parties contemplated additional documents when the buyer’s order was signed and accepted. Coincidental thereto, the buyer elected to finance the vehicle through petitioner’s dealership. Had the buyer elected to pay cash, the buyer’s order would have constituted the only agreement between the parties which set the terms for the purchase of the automobile. The parties agreed to the forum to resolve any disputes concerning the vehicle. We find no support in the record for the trial court’s conclusion that the financing agreement superseded the underlying contract for this transaction.

Accordingly, we grant the petition for writ of certiorari. We quash the order of the trial court denying petitioner’s motion to stay until arbitrated and remand the cause for further proceedings consistent herewith.

ANSTEAD, C.J., and.HERSEY, J., concur.


author: RYDER, Judge.

text:
    Bert H. COLLOM, as Personal Representative of the Estate of April Collom, Deceased and the Estate of Judith Collom, Deceased, and Guardian of Shelley H. Collom, and for himself, individually, Appellant, v. Jack J. HOLTON and Excelsior Insurance Company, Appellees. CITY OF ST. PETERSBURG, Appellant, v. Jack J. HOLTON and Excelsior Insurance Company, Appellees.
    Nos. 83-524, 83-654.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.

      Donald W. Giffin of Giffin & Thellman, P.A., St. Petersburg, for appellant Collom.
    Donald M. Spangler, P.A., St. Peters-burg, for appellees Holton and Excelsior Insurance Company.
    Michael S. Davis, City Atty. and William N. Drake, Jr., Asst. City Atty., St. Peters-burg, for appellant City of St. Petersburg.
   RYDER, Judge.

In this consolidated appeal arising out of the same set of facts, Bert Collom, plaintiff below, and the City of St. Petersburg (City), defendant and cross-claimant below, seek review of the orders granting Hol-ton’s and his insurance company’s, defendants and cross-claim defendants below, motions for summary judgment as to Collom’s wrongful death action and the City’s indemnity and contribution action. We reverse.

First, we agree with the trial court’s implicit ruling that the decedents were “uninvited licensees” on Holton’s property because the pleadings, affidavits, and depositions clearly indicate the decedents came “upon the premises solely for their own convenience without invitation either expressed or reasonably implied under the circumstances.” Wood v. Camp, 284 So.2d 691 (Fla.1973); Bruno v. Seigel, 73 So.2d 674 (Fla.1954); see generally Prosser, Law of Torts § 60, p. 377 (4th ed. 1971). Nevertheless, we hold, upon reviewing the same pleadings, affidavits, and depositions in a light most favorable to the non-moving parties, that genuine issues of material fact exist with respect to whether a duty actually existed and whether Holton breached his duty of care to the decedents as “uninvited licensees.” Holl v. Talcott, 191 So.2d 40 (Fla.1966). The duty a landowner owes to an “uninvited licensee” is to “refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee.’’ (Emphasis supplied). Libby v. West Coast Rock Co., Inc., 308 So.2d 602 (Fla. 2d DCA), cert. denied, 325 So.2d 6 (Fla. 1975). Accord, Goldberg v. Straus, 45 So.2d 883 (Fla.1951); Savignac v. Department of Transportation, 406 So.2d 1143 (Fla. 2d DCA 1981), petition for review denied, 413 So.2d 875 (Fla.1982); Marks v. Delcastillo, 386 So.2d 1259 (Fla. 3d DCA 1980), petition for review denied, 397 So.2d 778 (Fla.1981).

Specific questions to be answered by the jury are: (1) whether a dangerous condition relating to the drainage ditch in fact existed on Holton’s property; and if so, (2) whether any duty normally owed by Holton as a landowner was negated by the presence of an easement, if one in fact exists, in the City’s favor; and, if not negated, (3) whether the dangerous condition was not open to ordinary observation by the decedents as they crossed onto Hol-ton’s property; (4) whether Holton actually knew (this can be shown by circumstantial evidence) of the existence of the hazardous condition; and (5) whether Holton breached his duty to warn (a reasonable person standard) the decedents of the dangerous condition. See generally Prosser, Law of Torts § 60, p. 381 (4th ed. 1971). It goes without saying that the jury must also be able to determine that Holton’s conduct proximately caused or proximately contributed to the deaths which occurred in this case before it can return a verdict against Holton either in whole or in part. Miami Coca-Cola Bottling Co. v. Mahlo, 45 So.2d 119 (Fla. 1950); Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939). See also Green v. Kersey, 189 So.2d 236 (Fla. 2d DCA 1966).

Accordingly, we REVERSE the final summary judgments entered against both Collom and the City, and we REMAND for proceedings consistent herewith.

REVERSED and REMANDED.

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

      . The duty to maintain an easement in a safe condition to prevent injuries to third parties generally rests on the owner of the dominant estate, Morrill v. Recreational Development, Inc., 414 So.2d 590 (Fla. 1st DCA 1982), unless (1) there is an agreement requiring the servient owner either solely or concurrently to maintain and control the easement, Sebastian River Drainage District v. Ansin, 29 Fla.Supp. 77, aff'd, 223 So.2d 57 (Fla. 4th DCA 1969); or (2) the evidence indicates that the servient owner affirmatively and voluntarily otherwise assumed responsibility for maintaining the easement in a safe condition as to persons with the same status as the decedents. Cf., Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Fidelity and Casualty Co. of New York v. L.F.E. Corp., 382 So.2d 363 (Fla. 2d DCA 1980) (the latter two cases state the general rule with respect to voluntary assumption of a duty).

      . We point out that our decision in Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981), aff'd, 419 So.2d 1082 (Fla.1982), holding that a jury should be allowed to decide whether the City is liable for the deaths of appellant Collom’s wife and daughter, was not intended to preclude and does not preclude a jury from also determining whether Holton might also be liable for the deaths. Assuming arguendo a duty exists, it is not necessary that Holton’s negligence be the sole cause of the damages and injury in order to find him liable for negligence. Starling v. Gainesville, 90 Fla. 613, 106 So. 425 (1925); DeFuniak v. Perdue, 69 Fla. 326, 68 So. 234 (1915).


text:
    Gregory Edward MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1795.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.
    Jerry Hill, Public Defender, and Gerald 0. Johnson, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Through an Anders brief, Gregory Edward Miller appeals a final order revoking his probation, adjudicating him guilty of one count of burglary and one count of grand theft, and sentencing him to two five year concurrent terms. After reviewing the brief and the record on appeal, we find no error in the order revoking probation.

In the judgment, appellant was ordered to pay $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and $2 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). Appellant, an insolvent, was not given adequate notice of the assessment of these costs nor the full opportunity to object to the assessment. The assessment was not appropriate and is hereby stricken. Jenkins v. State, 444 So.2d 947 (Fla.1984); Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984). Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

In all other respects, the judgment and sentences are affirmed.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: BOARDMAN, Acting Chief Judge.

text:
    Richard H. SLACTER, Appellant, v. CITY OF ST. PETERSBURG, a municipal corporation, Appellee.
    No. 83-2061.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.

      H. Rex Owen and Bruce Crawford of Owen & McCrory, St. Petersburg, for appellant.
    Michael S. Davis, City Atty., and B. Norris Rickey, Asst. City Atty., St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

This appeal involves an action in eminent domain.

Upon review of the record, including the briefs, and after hearing oral argument, we reverse and remand for a new trial only as to the issue of business damages incurred by appellant/owner as a result of the taking of a portion of his property by appellee, City of St. Petersburg.

Appellant owned and operated a package store and cocktail lounge in the City of St. Petersburg. By condemnation, the City acquired a portion of appellant’s customer parking area, thus eliminating nine or ten of the twenty-five existing parking spaces required by a City ordinance for the operation of appellant’s business.

Although appellant presented competent evidence at trial of business loss resulting from the taking, the jury chose to award him no business damages under section 73.071(3)(b), Florida Statutes (1983). The jury returned this verdict notwithstanding testimony from appellant’s expert that drive-in trade constituted ninety percent of appellant’s business and that the loss of parking spaces would result in a forty percent reduction in gross revenue. Although the City questioned this evidence by cross-examination, it chose not to rebut it.

The weight and credibility to be given to an expert’s testimony remains a matter within the jury’s province. Behm v. Division of Administration, State Department of Transportation, 336 So.2d 579, 582 (Fla.1976). While the jury properly may award business damages in an amount less than that suggested by expert testimony, it “must be guided by the greater weight of the evidence,” id., and is not free totally to ignore the only evidence presented to it. Thus, appellant having established business loss as a result of the taking, the jury should have awarded some business damages.

We are not unmindful of the recent decision of our sister court in County of Volusia v. Niles, 445 So.2d 1043 (Fla. 5th DCA 1984). There, the jury returned a zero verdict for severance damages where substantially all of the evidence presented supported a finding that the condemnee, in fact, had suffered such damages. Holding in part that the condemnee had induced the error by failing to request an instruction on nominal. damages, the Fifth District reversed the trial court’s award of a new trial.

To the extent that our decision may be inconsistent with Niles, we disagree with our sister court. Under the facts of this case, the trial court erred in denying a new trial on this issue alone where the jury failed to award appellant any amount for business damages.

We have considered the remaining points raised by appellant and conclude that as to each of them reversible error has not been demonstrated.

REVERSED and REMANDED for proceedings consistent with this opinion.

SCHEB and LEHAN, JJ., concur.


text:
    T.L.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-2112.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was adjudicated delinquent pursuant to a petition charging burglary with intent to commit theft. We reverse upon the authority of Bennett v. State, 438 So.2d 1034 (Fla. 2d DCA 1983), because there was insufficient evidence to prove that appellant intended to steal anything when he entered the house trailer. Since the state charged appellant with intending to commit a specific offense, it may not rely upon the presumption afforded by section 810.07, Florida Statutes (1981).

Our decision conflicts with L.S. v. State, 446 So.2d 1148 (Fla. 3d DCA 1984), in which the court said:

If the state were precluded from using the presumption by virtue of charging the intent to commit a specific offense, there would bé no incentive for the state to ever enumerate the particular offense. We hold, therefore, that when the state charges that the defendant did intend to commit a specific offense after the breaking and entering, it may avail itself of section 810.07.

We appreciate the concern expressed by our sister court. It further appears that by seeking a bill of particulars, a defendant may be able to circumvent section 810.07, Florida Statutes (1981), even when the state does not allege the intent to commit a specific offense. Nevertheless, our interpretation of State v. Waters, 436 So.2d 66 (Fla.1983), compels us to reaffirm the conclusion we reached in Bennett.

REVERSED.

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


text:
    Denis BETHKE, Phyllis Bethke, Louis Dawley and Althea Dawley, Appellants, v. Robert Irving RISSMAN, as managing partner of Kapok of Michigan, d/b/a Friendly Village of Kapok Mobile Home Park, Appellee.
    No. 83-2336.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.
    Michael K. Stuckey, Gulfcoast Legal Services, Inc., Clearwater, for appellants.
    David A. Luczak, Largo, for appellee.
   PER CURIAM.

A cause of action for injunctive relief from an alleged retaliatory eviction of a mobile home park tenant was not stated in this case by the amended complaint which showed that the mobile home park owner followed the statutory provisions enacted by the legislature for eviction without cause upon twelve months notice. See § 83.759(l)(e), Fla.Stat. (1982). The trial court’s dismissal with prejudice of the amended complaint for failure to state a cause of action is AFFIRMED.

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


text:
    Louis Orlando MASSARO, Appellant, v. STATE of Florida, Appellee.
    No. 83-2384.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Robert J. Krauss and Katherine Blanco, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Louis Orlando Massaro, appeals his classification and sentences as a youthful offender pursuant to chapter 958, Florida Statutes (1983). The resulting sentences exceeded the sentences which would have resulted had the trial judge sentenced appellant pursuant to the sentencing guidelines provided in chapter 921, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.701. While most often chapter 958 would be the alternative to a more harsh adult treatment, we cannot say that because a sentence under chapter 958 might result in a more severe sentence, the trial judge would thereby exceed his discretion in selecting the clearly provided alternative of chapter 958.

We therefore affirm.

BOARDMAN, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


author: CALOGERO, Justice. PER CURIAM.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Vincent WILKINS, Jr.
    No. 82-B-2739.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    On Rehearing May 4, 1984.
    Rehearing Denied May 25, 1984.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, New Orleans, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoches, for relator.
    Louis 0. Unglesby, Baton Rouge, for respondent.
   CALOGERO, Justice.

The Louisiana State Bar Association, appearing through its Committee on Professional Responsibility, instituted this disbarment proceeding against Vincent Wilkins, Jr., by Petition for Disciplinary Action filed on November 16, 1982. The Petition incorporated four specifications of misconduct relative to two separate transactions, each involving a different client. The Commissioner appointed by this Court concluded that the charges of misconduct were supported by the record. He recommended disbarment. The Committee concurs in the Commissioner’s findings and in his recommendation.

The Commissioner had reported the following as his findings of fact. In September of 1980, respondent Wilkins received a check in the amount of $2,622.31, issued by Aetna Insurance Company and payable to “James A. Zachary through his attorney, Vincent Wilkins, Jr.” The check, which was to cover the cost of property damage to Zachary’s automobile, was endorsed by Zachary and given to Wilkins. On September 29, 1980, Wilkins cashed the check at the bank where he maintained several checking accounts. On October 9, 1980, Wilkins was asked by Zachary to pay Miller-Terrell Buick the $2,622.31, so that Zachary might receive his automobile from the car dealership which had just completed repairs on the vehicle. Wilkins issued a check to Miller-Terrel Buick in the amount of $2,622.31, and Zachary got his car. The check was later returned for lack of sufficient funds. This NSF check prompted a lawsuit by the dealership against respondent Wilkins, and a default judgment in favor of the dealership. The judgment was eventually satisfied by means of a garnishment of respondent’s salary as a public defender. Based on the above facts, which were supported by competent evidence, the Commissioner concluded that respondent was guilty of violating Code of Professional Responsibility Rule 9-102.

The second transaction involved Wilkins’ receipt of a check in the amount of $1,902.93, a check -which was issued in satisfaction of a judgment obtained by Wilkins on behalf of a client, one Joseph Broussard. This check was deposited into one of respondent’s checking accounts on May 29, 1980. At the time the check was deposited the account was overdrawn by $1,607.06. Respondent had not, by the time of the Commissioner’s hearing of June 1, 1983, made any payments to the client from the proceeds of the $1,902.93 check. In defense of this charge of commingling and converting client funds to his own use, respondent offered into evidence a letter allegedly written to Broussard on June 6, 1980. The letter sets forth an itemization of services and fees with respect to respondent’s representation of Broussard in the automobile accident litigation which resulted in the $1,902.93 judgment, as well as for other services allegedly rendered by respondent to Broussard. According to this accounting, Broussard, overall, was indebted to respondent in the net sum of $61.48. Based on discrepancies in respondent’s testimony at various Committee hearings, as well as documentary evidence and testimony by Broussard, the Commissioner determined that the letter written on June 6, 1980, was a fabrication and did not represent a proper accounting of funds received by respondent on behalf of his client. The Commissioner then concluded that respondent was guilty of violating Rules 9-102(B) and 1-102(A)(4) of the Code of Professional Responsibility in connection with his representation of Mr. Broussard.

Respondent disputes none of the facts but contends that there are mitigating circumstances. He argues that, insofar as are concerned the charges arising out of the Zachary incident, the client lost nothing himself. Rather, the NSF check was no more than a “business matter” between respondent and Miller-Terrel Buick. Concerning the charges arising from the Broussard matter, respondent claims that the amount of money due the client from the $1,902.93 check was in actuality only $350.00. He admits having converted this $350.00 to his own use. However, he contends that because the amount of money owed Broussard is small, the penalty of disbarment would be far too severe. A final mitigating factor suggested by respondent is his twelve years of employment with the Baton Rouge Public Defender’s office. In connection with this, respondent has filed many affidavits executed by attorneys and judges in the Baton Rouge area. These affidavits would establish respondent’s good character and reputation in the legal community where he practices.

This Court has held that misuse of a client’s funds by an attorney may, and usually will, result in disbarment. Louisiana State Bar Association v. Armagnac, 424 So.2d 996 (La.1982); Louisiana State Bar Association v. Phillips, 363 So.2d 667 (La.1978); Louisiana State Bar Association v. Weysham, 307 So.2d 336 (La.1975); Louisiana State Bar Association v. Selenberg, 270 So.2d 848 (La.1972); Louisiana State Bar Association v. Haylon, 250 La. 651, 198 So.2d 391 (1967). Respondent argues that disbarment would be too severe in light of the mitigating circumstances. We disagree and have decided that the mitigating circumstances are not sufficient to warrant a lesser penalty than disbarment.

In connection with the Zachary incident, while it may be true that the client was not financially harmed, ultimately — the Buick dealership decided to pursue collection of the money by means of a suit against respondent — the fact remains that respondent did commingle and convert to his own use funds due his client. Insofar as the charges arising from the Broussard matter, the record is devoid of any evidence that the client has received either a proper accounting or restitution from the proceeds of the $1,902.93 settlement check. Moreover, there is evidence in the record to support the finding of the commissioner that, in connection with the Broussard incident, respondent engaged in “dishonest conduct, fraud, deceit and misrepresentation in an effort to conceal” the misuse of his client’s funds.

Although we have taken note of the attestations of respondent’s capability in his role as assistant public defender we have concluded that under the circumstances of this case, as in most of the commingling cases we have decided, disbarment is the appropriate disciplinary sanction.

For the reasons assigned, it is ordered, adjudged and decreed- that the name of Vincent Wilkins, Jr. be stricken from the Roll of Attorneys and that his license to practice law in the State of Louisiana is hereby cancelled.

WATSON, J., dissents, being of the opinion that a suspension would be appropriate.

ON REHEARING

PER CURIAM.

We granted a rehearing in this matter to reconsider the penalty imposed upon respondent Vincent Wilkins, Jr. After considering other cases involving similar circumstances, we believe that a penalty of disbarment in this case is too severe a sanction. Rather, we find that a suspension from the practice of law for a period of three years is the appropriate disciplinary action in this matter.

DECREE

Accordingly, for the reasons assigned, it is ordered that Vincent Wilkins, Jr. be suspended from the practice of law in the State of Louisiana for a period of three years. All costs of these proceedings are cast against respondent.

      . Disciplinary Rule 9-102 of the Code of Professional Responsibility provides:
      (A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (1) Funds reasonably sufficient to pay bank charges may be deposited therein.
      (2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”

      . Disciplinary Rule 1-102 of the Code of Professional Responsibility provides:
      (A) A lawyer shall not:
      (1) Violate a Disciplinary Rule.
      (2) Circumvent a Disciplinary Rule through actions of another.
      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . The Commissioner did not determine the exact amount of money owed to Broussard; it is not all clear, however, that Broussard was due only $350.00 out of the $1,902.93 check.

      . We have taken note of the fact that the Commissioner, prior to rendering his report and recommendation, did not have the benefit of the numerous supportive affidavits. Respondent had requested that this Court remand the matter to the Committee and the Commissioner so they might take into account, in recommending a disciplinary sanction, the evidence relating to respondent’s good character. This Court can take cognizance of the proffered mitigating affidavits and obviate further delay. It was for this reason that prior to oral argument this Court denied respondent’s motion to remand.
      Subsequent to the filing of the supportive affidavits by respondent the Committee filed with this Court a memorandum in which they expressed opposition to any disciplinary action short of disbarment. The Committee’s contention is that after his conduct was discovered respondent engaged in fraudulent behavior in an attempt to deceive the Committee, and that the two commingling incidents were serious violations of the Code of Professional Responsibility.


author: CALOGERO, Justice. LEMMON, Justice,

text:
    FRANK L. BEIER RADIO, INC. v. BLACK GOLD MARINE, INC.
    No. 83-C-2141.
    Supreme Court of Louisiana.
    April 2, 1984.
    Lemmon, J., concurred specially and assigned reasons.
    Mitchell J. Hoffman, Ann Wise, McClos-key, Dennery, Page & Hennesy, New Orleans, for defendant-applicant.
    P. Keith Daigle, Halpern, Holden & Dai-gle, Metairie, for plaintiff-respondent.
   CALOGERO, Justice.

The issue in this case concerns the awarding of attorney fees under La.R.S. 9:2781, the statute which provides for reasonable attorney fees attending the prosecution and collection of an amount due on an open account. The district court had awarded the plaintiff 30% attorney fees in contract. The appellate court found no attorney fees owed by contract, but affirmed the 30% attorney fees award on an open account collection pursuant to La.R.S. 9:2781. We granted the defendant’s writ application to review that award by the appellate court. Upon review, and for the following reasons, we reverse the award of attorney fees in this case.

This question of the awarding of statutory attorney fees under La.R.S. 9:2781 arises under the following circumstances. Plaintiff Frank L. Beier Radio, Inc. (Beier Radio) sued the defendant Black Gold Marine, Inc. (Black Gold) for payment of an amount owed them on an open account for services and alterations to radios on Black Gold vessels, seeking judgment for the amount due, contractual interest, contractual attorney fees, or alternatively, simply reasonable attorney fees. Black Gold responded with a denial that the work had been performed satisfactorily, protested that a lesser sum was due, and contended that no interest or attorney fee was due and owing. The trial judge awarded judgment to Beier Radio, in the amount of $21,361.11, consisting of $18,391.00 principal due on eighteen invoices and, based on written terms appearing on those invoices, $2,970.11 in interest plus 30% in attorney fees. The Court of Appeal affirmed the judgment of $18,391.00, reversed the $2,970.11 interest award, finding no consent thereto by the parties, but maintained the award of 30% attorney fees, as reasonable (under La.R.S. 9:2781) “in consideration of the particular ability of a trial judge to evaluate the work done, the results reached, skill of the attorney, etc.” 437 So.2d 1196 at 1200 (La.1983).

La.R.S. 9:2781, the statutory provision which allows reasonable attorney fees to be assessed in a suit on an open account, reads in pertinent part:

A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. (Emphasis provided)

Black Gold argues that reasonable attorney fees should not have been awarded because the written demand in this ease did not correctly set forth the amount owed. With this contention, we agree.

The demand letter dated June 9, 1981, from Beier Radio to Black Gold, listed and attached eighteen overdue invoices for a total amount claimed to be due, of $19,-230.51. From this amount the letter deducted enumerated credits totalling $839.51. The final page of the demand letter then read as follows:

Total past due account balance,
less all credits due $18,391.00
Total accrued interest charges 2,970.11
TOTAL ACCOUNT BALANCE
DUE $21,361.11
I now advise you that if full payment of all charges as itemized above are not paid within thirty (30) days after your receipt of this certified letter, then suit will be instituted immediately thereafter.
In addition to the amounts you owe on this account balance, thirty (30%) percent attorney’s fees per the open account terms, or alternatively, statutory attorney’s fees will be demanded.

The Court of Appeal determined that the $2,970.11 accrued interest charge was not owed, because the parties had no oral or written agreement for, nor was there an implied consent to, the imposition of conventional interest on this overdue account. 437 So.2d at 1198, 1199.

As a general rule, attorney fees are not due and owing a successful litigant unless specifically provided for by contract or by statute. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978); Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976); Hughes v. Burguieres, 276 So.2d 267 (La.1973).

Before the enactment of La.R.S. 9:2781 in 1976, there was no provision for the awarding of attorney fees for the prosecution and collection of amounts due on open accounts. With its adoption, La.R.S. 9:2781 joined other statutes which facilitate the payment of attorney fees. We have construed such statutes strictly, however, because the award of attorney fees is ex-ceptional and penal in nature. See generally, Viator v. Haynesville Mercantile Co., 230 La. 132, 88 So.2d 1 (1956) construing La.R.S. 30:102 (repealed by 1974 La.Act 50), see now La.R.S. 31:206 et seq. [Mineral Code]; Hortman-Salmen Co. v. Continental Cas. Co., 170 La. 879, 129 So. 515 (1930) construing 1918 La.Act. 50, see now La. R.S. 9:3902 [suretyship]; Brown v. Continental Cas. Co., 161 La. 229, 108 So. 464 (1926) construing 1910 La.Act. 310, see now La.R.S. 22:213 and 22:657 [insurance]; Schwegmann Bros. Giant Supermarkets, Inc. v. Mouton, 309 So.2d 686 (La.App. 4th Cir.), writ denied, 310 So.2d 845 (La.1975) construing La.R.S. 47:1512 [tax collection].

La.R.S. 9:2781 is now such a statute. A Better Place Inc. v. Giani Investment Co., 445 So.2d 728 (1984). In A Better Place, Inc., 445 So.2d at 734 we said that La.R.S. 9:2781 “entitles a person seeking debt collection on an open account to recover reasonable attorney fees only if he [has] sent written demand ‘correctly setting forth the amount owed.’ ” In A Better Place, the demand letter sought payment for several items of drug paraphernalia for which no lawful obligation was owed. Because of our decision rejecting part of the claim on the open account, we found that A Better Place was not entitled to attorney fees under La.R.S. 9:2781. Accord, Rodriguez-Farr Ins. Agency, Inc. v. Sharp, 431 So.2d 889 (La.App. 2d Cir.1983) [Demand letter contained a bookkeeping error and service charges not legally owed.]; Texas Industries Inc. v. Roach, 426 So.2d 315 (La.App. 3d Cir.1983) [Demand letter was for $11,-885.84; the trial judge concluded the correct balance due on the account was $9,240.70.] Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3d Cir.1979) [The amount demanded was $6,021.87, excessive by $1,187.68.]

Counsel for Beier Radio suggests that this case differs from A Better Place and from the several appellate cases which strictly construed the language in La.R.S. 9:2781. Counsel for Beier Radio suggests a dispositive difference because, in this case, the principal amount demanded was found due and owing and it was only the demanded interest which was disallowed in court. We find that it makes no difference that the excessive amount billed to Black Gold was interest rather than principal. La.R.S. 9:2871 strictly construed requires no inquiry into the reason for the error in the amount demanded. It simply requires “written demand ... correctly setting forth amount owed ... ”, as a prerequisite to liability for attorney fees.

In this case the demand letter asserted that the amount due and owing was $21,361.11. Litigation was threatened if $21,361.11 were not paid in full within thirty days. $21,361.11 was not the correct amount owed. Accordingly attorney fees under La.R.S. 9:2781 should not have been awarded.

Decree

For the foregoing reasons, the judgment of the Court of Appeal insofar as it awarded plaintiff attorney fees is reversed. The judgment is otherwise affirmed.

REVERSED IN PART; AFFIRMED IN PART.

DIXON, C.J., concurs.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The Legislature could have chosen to impose attorney’s fees only in those open account cases in which the debtor arbitrarily refuses to pay sums undisputedly due, similar to the imposition of attorney’s fees for an insurer’s arbitrary refusal to pay a claim. However, the Legislature chose instead to impose attorney’s fees in all open account cases, as long as the amount due is correctly stated. This choice permits full recovery to the successful creditor, even when there is a genuine dispute over the debt.

      . In the alternative, the applicant contends that should this Court approve the award of attorney fees, the amount awarded was not reasonable, but excessive. Because we find that attorney fees are not recoverable, we do not address the question of whether 30% attorney fees are excessive.

      . Respondent argues that this was the legislative intent.


author: CALOGERO, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Jimmie A. BRUMFIELD, II.
    No. 82-B-2938.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 25, 1984.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee’, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoches, for relator.
    J. Stacy Freeman, Bossier City, Michael S. Fawer, Fawer, Brian, Hardy & Zatzkis, New Orleans, for respondent.
   CALOGERO, Justice.

This disciplinary proceeding arose out of the felony conviction of Jimmie A. Brum-field, II (a member of the bar of this state since October 7, 1977), in the United States District Court for the Western District of Louisiana. On June 14, 1982, after a bench trial, Brumfield was found guilty of conspiracy to assist the escape and attempted escape of one Garvin Dale White, in violation of 18 U.S.C. 371, and knowingly and willfully aiding and assisting the escape of Garvin Dale White from the Shreveport City Jail, in violation of 18 U.S.C. 752(a). Brumfield was sentenced to two years imprisonment on the conspiracy count and he received a suspended sentence with supervised probation for a period of five years to commence upon completion of the confinement sentence, on the assisting escape count.

Pursuant to Section 8(3) of Article XV of the Articles of Incorporation of the Louisiana State Bar Association, and based upon Brumfield’s conviction, the Committee on Professional Responsibility filed a report with this Court in which they asserted their contention that the crimes for which Brum-field was convicted were serious crimes which reflected on his moral fitness to practice law. On January 25, 1983, this Court, pursuant to Section 8(4) of Article XV, issued an order suspending Brumfield from the practice of law.

After the conviction became final the Committee filed a Petition for Disciplinary Action. We appointed a Commissioner who conducted hearings, at which respondent appeared represented by counsel, on July 12, 1983, and August 29, 1983. The Commissioner concluded that “... respondent has been convicted of very serious crimes which reflect adversely on his fitness to practice law...” The Commissioner recommended that Brumfield “be suspended from the practice of law for such period as this Court may fix”, and suggested that the suspension not exceed three years from the date of his incarceration on June 24, 1982. The Committee filed a Concurrence and Opposition to the report of the Commissioner in which they agreed with the findings of the Commissioner concerning the seriousness of the crimes for which Brumfield was convicted. The Committee, however, disagreed with the Commissioner’s recommendation of a suspension, and asserted that disbarment would be the appropriate disciplinary sanction.

Article XV, Section 8(7)(d) of the Articles of Incorporation of the Louisiana State Bar Association sets forth the rule to be followed when a member of the bar has been convicted of a crime and all appeals have been concluded or exhausted.

(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.

Thus, the sole issue to be determined by this Court in a disciplinary hearing based on conviction of a crime is whether the crime warrants discipline, and if so, the extent thereof. Louisiana State Bar Association v. Quaid, 368 So.2d 1043, 1045 (La.1979); Louisiana State Bar Association v. Loridans, 338 So.2d 1338, 1347 (La.1976). The discipline to be imposed in a particular case depends on the seriousness of the offense, the circumstances of the offense, and the extent of aggravating and mitigating circumstances. Louisiana State Bar Association v. Whiting, 425 So.2d 725, 726 (La.1983); Louisiana State Bar Association v. O’Halloran, 412 So.2d 523, 525 (La.1982); Louisiana State Bar Association v. Bensabat, 378 So.2d 380, 382 (La.1979).

The circumstances out of which the federal conviction arose occurred during Brumfield’s representation of a client, one Garvin Dale White, who, at the time, was a federal prisoner being held in the Shreveport City Jail. On November 1, 1980, White literally walked out of the jail while Brumfield distracted the jailer. The United States District Court Judge found that Brumfield’s involvement in the crime consisted of diverting the jailer’s view of what was going on and providing the prisoner money, civilian clothes and transportation to get away from the jail.

Conspiracy to assist, and aiding in the escape of a prisoner, is no less serious a crime than others for which this Court has found disbarment to be the appropriate penalty. See Louisiana State Bar Association v. Whiting, supra (mail fraud); Louisiana State Bar Association v. Bensabat, supra (conspiracy to import cocaine into the United States, conspiracy to possess with intent to distribute cocaine and possession with intent to distribute approximately 966 grams net of cocaine hydrochloride); Louisiana State Bar Association v. Quaid, supra (burglary involving theft of property bonds); Louisiana State Bar Association v. Thierry, 366 So.2d 1305 (La.1978) (a federal felony in connection with subornation of a witness); Louisiana State Bar Association v. Philips, 363 So.2d 667 (La.1978) (felony theft of $88,-945.30 of client’s funds); Louisiana State Bar Association v. Tunis, 352 So.2d 623 (La.1977) (his participation in a mail fraud conspiracy).

In mitigation, Brumfield seeks to establish that at the time of the offense he was “mentally exhausted and practically on the verge of a breakdown.” This condition was presumably caused by financial problems, overwork, and various other pressures one might experience while trying to build a law practice. (At the time of the offense Brumfield had only been practicing law a little over three years, although he was thirty-three years old. He and his wife, also a young lawyer, had recently set up a practice of their own.) Brumfield alleges that in this pathetic condition he somehow fell prey to the “manipulative,” “shrewd”, “cunning”, and “penetrating” personality of Garvin Dale White. As further proof of mitigation Brumfield offered testimony of seventeen witnesses (including friends, former clients, law enforcement officers and members of the bar) which testimony purported to establish Brumfield’s good character and reputation, diligent work habits and his competence as an attorney.

We have determined that the “mitigating circumstances” are insufficient to warrant a penalty less than disbarment. The crimes for which Brumfield was convicted are serious crimes which were directly connected with his practice of law and certainly reflect on his fitness to practice law. The offenses run afoul of at least four basic tenets of the Code of Professional Responsibility:

Disciplinary Rule 1-102 provides in part:

(A) A lawyer shall not:
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.

Disciplinary Rule 7-102 provides in part:

(A) In his representation of a client, a lawyer shall not:
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

Violations of the above professional standards indicate a lack of moral fitness for the practice of law. Disbarment is required in order to protect the public, the administration of justice and the integrity of the legal system.

Decree

For the reasons assigned it is ordered, adjudged and decreed that the name of Jimmie A. Brumfield, II, be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana is hereby revoked, respondent to bear all costs of this proceeding.

      . 18 U.S.C. 371 provides in part:
      If any two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . 18 U.S.C. 752(a) provides in part:
      Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institutiuon or facility by his direction, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; * * *