text:
    Javier Roque HENAO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2534.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Rehearing Denied Aug. 30, 1984.

      Bennett H. Brummer, Public Defender and Thomas F. Almon, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Charles Fahl-busch, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

The primary point on this appeal from a conviction for trafficking by possession of over 400 grams of cocaine claims that the testimony of the investigating officer as to the contents of an oral statement by the defendant shortly after his arrest was hearsay and hence erroneously admitted because Henao made it in Spanish and the officer could and did testify only to the English translation rendered by an interpreter. Meacham v. State, 45 Fla. 71, 33 So. 983 (1903) compels rejection of this contention. There, the court stated in its syllabus:

1. Where two parties, speaking different languages, and who cannot understand each other, converse through an interpreter, the words of the interpreter, which are their necessary medium of communication, are adopted by both, and made a part of their conversation, and the interpretation under such circumstances is prima facie to be deemed correct. In such cases either party, or a third party who hears the conversation, may testify to it as he understands it, although for his understanding of what was said by one of the parties he is dependent on the interpretation which was a part of the conversation. The fact that such conversation was had through an interpreter affects the weight, but not the competency, of the evidence.

But cf., Rosell v. State, 433 So.2d 1260 (Fla. 1st DCA 1983), rev. denied, 446 So.2d 100 (Fla.1984) (dictum indicating contrary rule without citing Meacham); State Farm Mutual Automobile Ins. Co. v. Ganz, 119 So.2d 319 (Fla. 3d DCA 1960) (same); see generally, Annot., Statements to Witness Through Interpreter, 12 A.L.R. 4th 1016, 1023 (1982).

It should also be noted that since, without objection, the interpreter herself took the stand and gave a version of He-nao’s statements which did not materially differ from the officer’s, his testimony may properly be considered as no more than cumulative and therefore harmless. Stigletts v. McDonald, 135 Fla. 385, 186 So. 233 (1938); Lane v. State, 430 So.2d 989 (Fla. 3d DCA 1983); Sec. 924.33, Fla.Stat. (1981).

We likewise find no merit in the argument that the evidence of the defendant’s possession of cocaine was insufficient to support the verdict. Brown v. State, 428 So.2d 250 (Fla.1983), cert. denied, - U.S. -, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981).

Affirmed.

      . While there is some claim as to her inadequacy, none was presented below.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie RUFFIN a/k/a Eddie Lee Ruffin a/k/a Eddie Lee Robinson, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-1515, 83-1530.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Rehearing Denied Aug. 30, 1984.

      Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen. and Lawrence G. Price, Certified Legal Intern, for appel-lee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See State v. McQuay, 403 So.2d 566 (Fla. 3d DCA 1981); State v. Rodriguez, 402 So.2d 86 (Fla. 3d DCA 1981); Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979); Norris v. State, 360 So.2d 476 (Fla. 3d DCA 1978); State v. Dopson, 323 So.2d 644 (Fla. 4th DCA 1975).


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Augustine Lasaro ARROYO, Morgan Raudolph Tynes, Marcos Alfredo Arce and Miguel Sagre, Appellees.
    No. 83-2274.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Rehearing Denied Aug. 30, 1984.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck; Fine, Jacobson, Block, Klein, Colan & Simon and Theodore Klein, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

In an earlier appearance of this case, we reversed an order granting the defendants’ motion to suppress on the ground that the trial judge, then Judge Tendrich, had im-permissibly taken into account evidence of an experiment which we found inadmissible because of the defendants’ failure to establish a substantial similarity between the conditions of the experiment and the conditions surrounding the events observed by the police. See State v. Arroyo, 422 So.2d 50 (Fla. 3d DCA 1982) (Arroyo I). Being of the view that Judge Tendrich’s premature admission of this evidence may have prevented the defendants from establishing the required predicate, we remanded the case for further proceedings on the motion to suppress. See State v. Arroyo, 422 So.2d at 53.

On remand, these further proceedings were conducted before Judge Mastos, Judge Tendrich’s successor in the Criminal Division. The defendants elicited testimony concerning a like experiment, supplemented by testimony to establish the required substantial similarity and to show that such dissimilarities as existed were not so significant as to affect the admissibility of the experiment. Judge Mastos ruled that the experiment was admissible, and although the State finds fault with this ruling, we think any dissimilarities between the experiment and the events to which it was to be compared went to the weight to be given the evidence of the experiment rather than its admissibility. Thus, we find no error in admitting the experiment.

The error we do find is that the trial judge who conducted the proceedings on remand misapprehended our apparently insufficient instructions.

The concern we expressed in Arroyo I was this:

“While it is possible that the trial judge’s disbelief of the officers’ testimony that the vehicles seen by them ‘weighed very, very heavily’ was not the sine qua non of his decision, his reliance on the experiment to impeach the officers’ testimony is inseparable from his various conclusions that there was no well founded suspicion to justify the stops; that the stops were unjustified by any knowledge or information that the defendants were involved in any violation of Florida law; and that there was an absence of probable cause.”

422 So.2d at 52 (emphasis supplied).

In other words, we did not know if Judge Tendrich’s reliance on the impeaching experiment was such that he discredited the officers’ testimony concerning only their observations of the loaded nature of the vehicles, or discredited the entirety of their testimony. While we were convinced that even absent the observations of the loaded vehicles, the officers’ other and earlier observations, if believed, would have provided a well-founded suspicion to justify the stops here involved, we were uncertain whether Judge Tendrich had completely disbelieved the officers.

We still do not have the answer. Judge Mastos, erroneously assuming that his predecessor’s ambiguous ruling established the law of the case, ruled that the experiment was admissible and therefore properly considered by his predecessor. Having done that, he granted the motion to suppress without considering what weight he would give to the experiment evidence; the extent of the effect, if any, this evidence would have on his view of the officers’ credibility; and what facts critical to the issue of the stop and search he believed or disbelieved. Under these circumstances, we cannot ascertain if the ruling on the motion to suppress involved a credibility determination by which we would be bound, or a determination as to the law by which we would not.

Accordingly, we reverse the order granting the defendants’ motion to suppress and remand the cause to the trial judge with directions that he, as fact-finder, give full consideration to all the evidence adduced in the prior proceedings and thereafter rule on the motion.

Reversed and remanded.


author: SHARP, WINIFRED J., Associate Judge.

text:
    WILLIAMS ISLAND COUNTRY CLUB, INC., individually and as managing general partner of Williams Island Country Club, Ltd., a Florida limited partnership, Appellant, v. SAN SIMEON AT THE CALIFORNIA CLUB, LTD., a Florida limited partnership, and Delta Communities Inc., A Florida corporation, Appellees.
    No. 84-605.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Rehearing Denied Sept. 7, 1984.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel, and Marlene K. Silverman, David M'. Wells and Robert Burlington, Miami, for appellant.

      Smith & Mandler, and Steven L. Schwarzberg, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART, J., and SHARP, WINIFRED J., Associate Judge.
   SHARP, WINIFRED J., Associate Judge.

The issue in this case is whether appellant, Williams Island Country Club, Inc., made a prima facie showing at an eviden-tiary hearing sufficient to entitle it to a preliminary injunction. Williams sought to establish and preserve an easement for a golf cart path across appellees’ entry strip: a block of land approximately 100 feet by 200 feet. The entry strip divides Williams’ thirteenth hole green from its fourteenth hole tee. Without an easement leading from the thirteenth hole to the fourteenth, Williams could not operate its eighteen hole golf course, and its condominium and resort developments, which were built around the golf course, and for which the golf course was an important amenity, would be severely damaged. The lower court denied the injunctive relief primarily because there was no recorded easement for the golf cart path. We reverse because we think Williams made a prima facie showing it has an implied easement for a golf cart path across appellees’ land. Ladner v. Plaza Del Prado Condominium Ass’n, Inc., 423 So.2d 927 (Fla. 3d DCA 1982), pet. for rev. denied, 434 So.2d 887 (Fla.1983); Unistar Corporation v. Child, 415 So.2d 733 (Fla. 3d DCA 1982).

The testimony at the hearing established that prior to 1979 the whole of the property, both appellant’s golf course and appel-lees’ development tract and entry strip, belonged to Sky Lake Development, Inc. Sky Lake built an eighteen hole golf course, and it used the entry strip for access from the thirteenth to the fourteenth hole for maintenance, and the flow of golfers playing the course. There is no practical or safe alternative route for golf carts to go from the thirteenth to the fourteenth hole other than by crossing the entry strip.

In 1978 Sky Lake entered into a contract to sell the development tract and entry strip to an entity controlled by Harry Peis-ach. The contract stated that when sold, the grantee would give Sky Lake “certain reasonable easements for golf carts and maintenance.” No specific easements were described in the contract or shown on the master plan attached to it. Burt Haft, president of Sky Lake, testified both parties to the contract intended that when the construction plans for the development tract and entry were set, an express easement would be granted for the golf cart path.

In 1980, the development tract and entry strip were sold to Nobata, N.V., another entity controlled by Harry Peisach. At that time the golf cart path was paved. It was nine feet wide, and was in constant use by golfers and maintenance workers. It was clearly visible from the development property, the four lane road bordering the entry strip, and the golf course.

When Williams purchased the golf course in 1983, its president was told that Williams had an easement across the entry strip for golf carts. Mr. Peisach agreed. But rather than developing the property himself, he entered into a contract to sell it to San Simeon At the Club, Ltd., one of the appellees.

A principal of San Simeon, Mr. Antin, called Haft four months before its purchase of the property from Nobata N.V., to obtain a copy of the plat of the golf course, which surrounded the development property. Haft reminded him about the golf cart easement across the entry strip. Mr. Antin replied, “No problem.”

San Simeon purchased the development tract and entry strip in January of 1984. A dispute arose over the golf cart easement. When no agreement was reached, San Si-meon bulldozed the cart path and blocked access at any point over the entry strip.

An easement, such as the golf cart path in this case, may be created by implication. When land is owned originally by the same owner, and part of the land is used for the benefit of another part, such use is termed a “quasi-easement,” and it may become an implied easement when either part is severed from the other.

The easement may be created by implied reservation, as in this case, when the servient tenement is sold to a third party, or by implied grant, when the dominant tenement is sold.

Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude is in use at the time of severance and is necessary for the reasonable enjoyment of the other part, on a severance of the ownership a grant of the right to continue such use arises by implication of law. Similarly, where the owner of property, one part of which has been subjected to such a use for the benefit of another part, sells both parts to different purchasers, the respective portions granted are subject to or benefited by, as the case may be, an easement corresponding to such use.

25 Am.Jur.2d Easements § 27 (1966). The majority view is that little distinction is made between implied grants and implied reservations. 25 Am.Jur.2d Easements §§ 33, 21 (1966). But see Winthrop v. Wadsworth, 42 So.2d 541 (Fla.1949) (dictum).

The rationale supporting implied easements is the court’s conclusion that the parties must have intended to grant or reserve an easement as part of the conveyance of land based on the circumstances at the time of the conveyance. Restatement of Property § 476 (1944); 3 H. Tiffany, Real Property § 780 (3d ed. 1939). First, the use of the land for the easement must be apparent or visible, or reasonably discoverable at the time the unity of title was severed. Here the golf cart path was in existence and use, and was paved at the time of the conveyance to Nobata, N.Y. Second, the use must be such that a permanent use was intended. 25 Am.Jur.2d Easements § 31 (1966). Here, testimony of the original parties, and language in their contract supports the inference that a permanent golf cart easement was intended. Restatement of Property % 476(1944).

Finally, the easement must be reasonably necessary for the use and benefit of the dominant tenement. 25 Am.Jur.2d Easements §§ 24, 33 (1966); 28 C.J.S. Easements § 33 (1941). Strict necessity need not be shown. In this case a sufficient showing of need was made by establishing that without the golf cart easement, the dominant tenement could no longer be used as an eighteen hole golf course, its use at the time of severance of the servient tenement.

Whether or not a remote or subsequent grantee of the servient tenement is bound by an implied easement depends on whether he has notice of the dominant tenement’s easement rights. In Kirma v. Norton, 102 So.2d 653 (Fla. 2d DCA 1958), a subsequent grantee of the servient tenement was held bound by a sewer pipe easement which crossed his land and emptied into a river. Even though the pipes were underground, the court held the emergence of the pipes from the river bank should have put a prudent buyer on notice to inquire, and he was, therefore, bound by what he would have learned.

In this ease, Williams established a sufficient physical presence and use of the golf cart easement at the time San Simeon purchased the servient tenement to impose on it a duty of inquiry. Further, Williams established actual knowledge of the easement by San Simeon’s principal, before its purchase. Under either theory, appellant could prevail.

For the reasons stated in this opinion, we reverse the lower court’s denial of a preliminary injunction and we direct that an appropriate injunction be entered to preserve the status quo of the easement pending a final determination on the merits.

REVERSED AND REMANDED.

      . One suggested alternative route was to have the golfers cross a busy four lane highway, run along the sidewalk some 200 feet, and cross again to reach the fourteenth tee. Another was to run backwards against the flow of play a considerable distance, circumventing the balance of appellees’ development tract.

        . Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926); Kirma v. Norton, 102 So.2d 653 (Fla. 2d DCA 1958).

      . 3 H. Tiffany, Real Property, §§ 779, 781 (3d ed. 1939); Restatement of Property, § 474 (1944).

      . 25 Am.Jur. Easements § 30 (1966); Kirma v. Norton, supra.

      . See Fender v. Schaded, 420 S.W.2d 468 (Tex.App.1967); Evich v. Kovacevich, 33 Wash.2d 151, 204 P.2d 839 (1949).

      . 28 C.J.S. Easements § 47 (1941).

      . See also Rafkind v. Beer, 426 So.2d 1097 (Fla. 3d DCA 1983); Florida Power & Light Co. v. Rader, 306 So.2d 565 (Fla. 4th DCA 1975); Maule Industries, Inc. v. Sheffield Steel Products, Inc., 105 So.2d 798 (Fla. 3d DCA 1958), cert. denied, 111 So.2d 41 (Fla.1959); 20 FIa.Jur.2d Easements § 7 (1980).


author: BOOTH, Judge.

text:
    Virginia S. SHRINE, Appellant, v. Bertram SHRINE, Appellee.
    No. AV-390.
    District Court of Appeal of Florida, First District.
    July 24, 1984.
    Rehearing Denied Sept. 7, 1984.
    Richard H. May, Orange Park, for appellant.
    Charles E. Waite, Orange Park, for ap-pellee.
   BOOTH, Judge.

Appellant Virginia Shrine, appeals an order entered by the trial court modifying a previous modification of a final judgment of divorce. The question presented is whether the modification satisfied the requirements of this Court’s prior opinion in the cause, Shrine v. Shrine, 429 So.2d 765, 766-67 (Fla. 1st DCA 1983), wherein the court held:

The record reveals a marked disparity in the financial status of the parties, to the extent that we find that appellant has been “short-changed” under the principles of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)_ The total payments to appellant from appellee, even with the increases ordered by the trial court, and viewing that amount in proportion to appellee’s retirement income alone, fall short of adequate support during this period of appellant’s life. The trial court should consider this military pension as an asset and property of ap-pellee as well as another source in providing the needs of appellant. Higgins v. Higgins, 408 So.2d 731 (Fla. 1st DCA 1982). Justice demands that appellant and the minor children of the marriage be restored to a more reasonable approximation of the standard of living they experienced during the marriage. Consequently, we reverse the $100 monthly increase in permanent alimony and remand the question of an increase in permanent alimony to the trial court for a more equitable result consistent with this opinion.

The trial court order which was reversed as inadequate required Bertram Shrine to pay a total of $1,000 per month for alimony and support for the two minor children. In reversing that award this Court found that it fell short of adequate support for the family and was contrary to the demands of justice, as quoted above. The order directed an increase in permanent alimony so that the family could be “restored to a more reasonable approximation of the standard of living they experienced during the marriage.”

On remand the trial court did in fact increase permanent alimony by $200 per month, however, the increase awarded was more than offset by the termination of rehabilitative alimony and the end result is a decrease in the amount of support and alimony from $1,000 a month to $900 a month. Further, the family’s right to use and occupancy of the marital home expired July 1, 1982. Therefore, although the trial court increased permanent alimony, and is in compliance with the prior judgment of this Court to that extent, the increase fails to entirely meet the requirements of this Court’s prior opinion.

The facts concerning the prior proceedings and the circumstances of this family are set out in the prior opinion of the Court, cited swpra, and of record here. Mrs. Shrine works for minimum wage at part-time jobs and earns approximately $450.00 per month, gross. Mr. Shrine, a retired Naval officer, has employment in the private sector receiving retirement, salary and bonuses, in excess of $6,000 a month, gross. The parties were married for 23 years and seven children were born of the marriage, two of whom are still minors residing at home. Nothing in the record before us supports the conclusion that the reduction from $1,000 per month to $900 per month alimony and support will restore “a more reasonable approximation of the standard of living they experienced during the marriage”, as required by our prior opinion.

Under the circumstances, there is precedent for the appellate court to act directly without remand for further reconsideration by the trial court. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Robinson v. Robinson, 442 So.2d 383 (Fla. 3d DCA 1983). We do so, and award $1,100 per month permanent alimony, nunc pro tunc the prior mandate of this Court, April 28, 1983, with the arrearage now due and payable promptly in lump sum or periodically to commence immediately and be completed within 12 months hereof, as determined by the trial court. Unchanged by our award herein is the $400 per month child support previously awarded.

Accordingly, the cause is remanded with directions for entry of an order in accordance herewith.

WENTWORTH, J., concurs.

ERVIN, C.J., dissents without written opinion.

      . Order of April 14, 1982 awarded $300.00 per month rehabilitative, $300.00 per month permanent, alimony and $400 per month support for two minor children for a total of $1,000. Wife and children had use of marital home until July 1, 1982.


text:
    Ray Sam GARNER, Appellant, v. Louie L. WAINWRIGHT, James T. Wainwright, Superintendent of Lawtey Correctional Institution and Anabel Mitchell, Chairman, Florida Parole and Probation Commission, Appellees.
    No. AZ-259.
    District Court of Appeal of Florida, First District.
    July 24, 1984.
    Appellant, pro se.
    Jim Smith, Atty. Gen., and Louis A. Vargas, Tallahassee, for appellees.
   PER CURIAM.

Appellant files a petition for writ of habeas corpus which is identical to one previously filed before the Circuit Court for Bradford County. The lower tribunal denied the petition by order of May 16, 1984, without prejudice to the filing of a motion pursuant to Rule 3.850, Fla.R. Crim.P. We find that appellant’s proper procedure was to appeal this order and not to file an identical petition before this Court. However, because the petition was filed within the thirty (30) day period prescribed by the appellate rules for appeals from final orders, see Rule 9.110(b), Fla.R. App.P., we treat the petition for writ of habeas corpus filed herein as a notice of appeal directed to the order entered below denying the identical habeas corpus petition. Because we agree with the lower tribunal that appellant’s proper action under the circumstances outlined in the petition is the filing of a motion pursuant to Rule 3.850, Fla.R.Crim.P., we affirm the order of the lower tribunal, without prejudice to the filing of such a motion.

SMITH, JOANOS and ZEHMER, JJ., concur.


author: WENTWORTH, Judge.

text:
    GREYNOLDS PARK MANOR, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AV-171.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    Rehearing Denied Sept. 6, 1984.
    Michael J. Bittman, of Dempsey & Slaughter, Orlando, for appellant.
    Claire D. Dryfuss, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an administrative order by which it is required to repay the Department of Health and Rehabilitative Services (hereinafter “HRS” or “the agency”) for excess Medicaid reimbursements. We affirm the order appealed.

Appellant is a nursing home participating in the Florida Long Term Care Reimbursement Plan, by which Medicaid payments are received as reimbursement for allowed costs. In September and November 1982 HRS furnished appellant with an audit report and management letter indicating that appellant had received Medicaid overpay-ments for fiscal years ending in May 1979 and May 1981. Appellant disputed the audit adjustments and requested a formal hearing pursuant to § 120.57(1), Florida Statutes. Appellant also applied for an interim rate increase applicable between June 1979 and October 1980.

Appellant’s petition for a hearing disputed audit adjustments relating to a pension plan and automobile expenses, and appellant further sought a determination that HRS should be estopped from denying an interim rate increase. The hearing officer, in an order adopted by the agency, declined to address the merits of the estop-pel issue, reasoning that “since the estop-pel question should be raised in conjunction with the rate request ... it is premature to consider that issue.” The hearing officer further noted that appellant’s interim rate request was still pending at the time the petition for a hearing was filed. Although HRS did thereafter act on the rate request prior to the formal hearing, and the parties alluded to the estoppel issue at the hearing, the circumstances presented did not require a determination on the merits thereof. Rather, the agency could permissibly await presentation of the issue at a hearing for which proper application is made.

As to the pension plan and automobile expenses, the burden was upon appellant to show entitlement to the disputed monies. Rule 100-7.481(6), FAC; cf,, Florida Department of Transportation v. JWC Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). We find that, on the record presented, HRS was entitled to conclude that appellant did not meet this burden with regard to the challenged audit adjustments. It was therefore not error to require that appellant repay the disputed Medicaid reimbursements.

The order appealed is affirmed.

ERVIN, C.J., and BOOTH, J., concur.

      . In the adopted order the hearing officer suggested that appellant should still be entitled to challenge the denial of its interim rate request. In this regard the order references Henry v. State Department of Administration, 431 So.2d 677 (Fla. 1st DCA 1983), and notes that HRS "failed to inform [appellant] of his right to request a hearing, and the time limits for doing so


author: THOMPSON, Judge.

text:
    DEPARTMENT OF REVENUE, Appellant, v. CAMPUS COMMUNICATIONS, INC., Appellee.
    No. AW-352.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    Barbara Staros Harmon and Edwin A. Bayo, Asst. Attys. Gen., Tallahassee, for appellant.
    Lee S. Johnson, Jr., of Brown & Johnson, Gainesville, for appellee.
   THOMPSON, Judge.

The Department of Revenue (the Department) appeals from a trial court order which found that Rule 12A-1.08(3)(d) and (4), Fla.Admin. Code, is an invalid exercise of delegated legislative authority. Based on this court’s recent holding in North American Publications, Inc. v. Department of Revenue, 436 So.2d 954 (Fla. 1st DCA 1983), rev. denied, 449 So.2d 265 (Fla.1984), that Rule 12A-1.08(3)(d) and (4) is a valid exercise of delegated legislative authority, we reverse.

While we feel bound to follow North American, we feel that the instant publication, The Independent Florida Alligator (The Alligator) is factually distinguishable from the publication in North American (The Neighbor), such that a different result may be required herein. The Neighbor had an advertising copy of approximately 75 percent whereas The Alligator, during the period relevant herein, had an advertising content of between 53 percent to 55 percent. In other cases holding that a particular publication is taxable and in which the opinions contain sufficient facts to determine the nature of the publication involved, a large majority of the publications was devoted to advertising. In Department of Revenue v. Shop, 383 So.2d 678 (Fla. 1st DCA 1980), approximately 85 percent of the Metro News was devoted to advertising. In Green v. Home News Publishing Co., Inc., 90 So.2d 295 (Fla.1956), the “large majority” of the Shopper Advertiser was devoted to advertising. Additionally, unlike The Neighbor, the Metro News, and the Shopper Advertiser, The Alligator has traditional newspaper features such as national and international news, weather, sports, editorial opinions, comics, and classified ads. Florida Administrative Code Rule 12A-1.08(4) indicates that “[s]o-called newspapers which are given away for advertising and public relations purposes are taxable.” The Alligator is clearly not a “shopper” but is a “newspaper” within the common sense of the word and is not given away for advertising and public relations purposes. Under these circumstances, it may not be proper to deny The Alligator a § 212.08(6), Fla.Stat., tax exemption merely because it is primarily given to the reader free of charge. Accordingly, we certify the following question to the Florida Supreme Court as one of great public importance under Rule 9.030(a)(2)(A)(v), Fla.R. App.P.:

Is Rule 12A-1.08, Fla.Admin.Code, which requires taxation of all publications which are not sold but are given away, unconstitutional as applied to The Alligator and similarly situated school publications?

NIMMONS and BARFIELD, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Gerald B. NATELSON, Appellant, v. DEPARTMENT OF INSURANCE, Appellee.
    No. AU-384.
    District Court of Appeal of Florida, First District.
    July 27, 1984.
    Rehearing Denied Sept. 6, 1984.

      Richard A. Barnett, P.A., Hollywood, for appellant.
    Curtis Billingsley, Dept, of Ins., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Appellant, Gerald Natelson, challenges the final order of Florida Department of Insurance (the department), revoking his licenses as insurance agent in opposition to the recommended order of Department of Administrative Hearings (DOAH) hearing officer. We find his argument to be without merit and AFFIRM the ruling below.

Natelson, a licensed insurance agent, was indicted in federal court for his involvement in an unconsummated conspiracy to distribute and possess with intent to distribute methaqualone, hashish, and cannabis in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment was based on his overt acts of attending three meetings with co-conspirators. Although he admittedly knew that the planned activity was illegal, Natelson maintained that his role was merely one of introducing the conspirators and that he did not expect to profit from the conspiracy. Natelson pled guilty to the charge as it related to cannabis only and was sentenced to a term of thirty months in a federal penitentiary.

After release from prison, Natelson was charged by administrative complaint with (1) demonstrating lack of fitness or un-trustworthiness to engage in the business of insurance, Section 626.611(7), Florida Statutes; (2) having pled guilty, in this or any state, to a felony involving moral turpitude, Section 626.611(14), Florida Statutes, and (3) having pled guilty, in this or any state, to a felony, Section 626.621(8), Florida Statutes. Natelson protested the complaint and a hearing was held, resulting in an order of the DOAH hearing officer recommending dismissal of all counts of the complaint. In its final order, the department adopted the recommended order’s findings of fact, as modified by the department’s findings, rejected the hearing officer’s conclusions of law and revoked Natel-son’s licenses.

Natelson contends on appeal that his plea of guilty to conspiracy to distribute and possess with intent to distribute cannabis was an insufficient basis for the department’s finding that he has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance and that his license, therefore, is not subject to the mandatory revocation sanctions of Section 626.611(7). We cannot agree.

Agencies are afforded wide discretion in the interpretation of a statute which it administers and will not be overturned on appeal unless clearly erroneous. Pan American World Airways, Inc. v. Florida Public Service Commission and Florida Power & Light Company, 427 So.2d 716, 719 (Fla.1983). The reviewing court will defer to any interpretation within the range of possible interpretation. Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). In the instant case, the department’s construction of the term “lack of fitness or trustworthiness to engage in business of insurance” as including the conviction of criminal conspiracy to traffic in illicit drugs is well within the range of possible constructions. Insurance is a business greatly affected by the public trust, and the holder of an agent’s license stands in a fiduciary relationship to both the client and insurance company. It is certainly possible to perceive the acts to which Natelson pled guilty as evincing untrustworthiness and unfitness to maintain such a trusted fiduciary position. We are compelled, therefore, to AFFIRM the final order revoking Natel-son’s licenses on the basis of a violation of section 626.611(7). In so doing we need not reach the issues raised as to revocation under sections 626.611(14) and 626.621(8).

BOOTH and WENTWORTH, JJ., concur.


text:
    Dale M. Daniel McGARRY, Appellant, v. CITY OF HOLLY HILL and Aetna Life & Casualty, Appellees.
    No. AW-362.
    District Court of Appeal of Florida, First District.
    July 31, 1984.
    Rehearing Denied Sept. 7, 1984.
    Dale M. Daniel McGarry, appellant pro se.
    F. Bradley Hassell of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellees.
   PER CURIAM.

Claimant has complied with the order of this court dated June 14, 1984, and accordingly we grant his motion for rehearing. We have examined claimant’s initial brief and find that he has failed to raise any issue which would constitute grounds for reversal. Accordingly, the order below is affirmed.

MILLS, BOOTH and BARFIELD, JJ., concur.


author: NESBITT, Judge. SCHWARTZ, Chief Judge

text:
    Allan H. APPLESTEIN, Appellant, v. Gustave SIMONS and National Security Corporation, Appellee.
    Nos. 83-2411, 83-2977.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.

      Kirkpatrick, Lockart, Johnson, Hutchison & Durant and Jeffrey Allen Tew, Miami, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier and Kenneth Ryskamp, Alfred Gustinger, Jr., Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   NESBITT, Judge.

The defendant, Allan Applestein, appeals a final order holding him in contempt of court. We affirm.

This cause commenced with an action to domesticate in Florida two judgments entered in New York. The trial court granted the plaintiffs’ motion for judgments on' the pleadings and final judgments were entered against the defendant. When discovery of the defendant’s assets was sought, the defendant successfully invoked his fifth amendment rights, claiming to be the subject of an ongoing criminal investigation by the Internal Revenue Service.

On July 20, 1979, the trial court entered an order requiring the defendant to “set aside sufficient of his funds to pay the within judgments, together with interest and costs.” The defendant, thereafter, deposited a sufficient amount in a bank account in Nassau, Bahamas. On July 23, 1980, the judge who had entered the earlier order attempted to clarify it in another order declaring that he meant for the funds to be set aside in a bank within the jurisdiction of the court.

The case was subsequently reassigned to another judge who issued a rule to show cause as to whether the defendant should be held in contempt for failure to comply with the July 23, 1980 advisory order. The lower court subsequently discharged the rule to show cause finding that the July 23, 1980 order did not have retroactive effect because it went to a substantive error and, therefore, it had no legal effect because it attempted to modify an order more than one year after its entry. The defendant was found to be in compliance with the July 20, 1979 order. Following a hearing on June 20, 1983, however, the lower court announced that the defendant was in contempt of the July 20, 1979 order because the defendant had not “set aside” the funds in that there were no restrictions on the account. The defendant appeals this finding of contempt.

The defendant first contends that the lower court had twice previously determined that he was in compliance with the July 20, 1979 order and should not now be allowed to change its position where the facts have not changed. It is apparent from the record, however, that in the two previous determinations the issue before the court was whether or not the order required the funds to be placed in a bank within the jurisdiction of the court. The question of whether the funds were properly “set aside” was apparently never raised. The court, therefore, was considering this issue for the first time at the June 20, 1983 hearing.

A letter from the bank stated that the defendant’s account balance was in excess of the amount required and had been for the last three years. Nothing from the bank, however, indicated that the funds in the account were restricted in any way, • or that there was anything to prevent the defendant from using or removing the funds at any time. The court, therefore, found that the funds had not been set aside as required by the July 20, 1979 order. The court specifically found that “set aside” was a legal term of art meaning restricted from other uses and reserved for a specific purpose, and that the order required more than merely “maintaining” a balance sufficient to cover the judgments. We find that the court’s interpretation of the term “set aside” was the correct one and is consistent with its common meaning. See The American Heritage Dictionary 1122 (2d ed. 1982) (set aside means “[t]o separate and reserve for a special purpose”).

The defendant contends that this interpretation is confusing and interjects new terms and conditions into the July 20, 1979 order. We disagree. When the court stated that “[s]et aside could be many things,” the court was not receding from its position that the term had a specific meaning. It was merely prefacing its illustrations of the numerous ways in which the defendant could have complied with the terms of the order. Furthermore, these illustrations of means by which the defendant could have complied with the order were not meant to be exclusive. The fact remained, however, that the defendant had failed to “set aside,” in any manner, the funds as required by the July 20, 1979 order. The court, therefore, found the defendant in indirect civil contempt. The defendant was then given the opportunity to purge himself of the contempt by converting his account in Nassau to a joint signatory account in both his name and one of the plaintiffs’ names. This means of purging the contempt cannot be viewed as altering or modifying in any way the original order which the defendant had already been found to be disregarding.

Finally, we also find the other arguments of the defendant to be without merit. The lower court specifically found that the defendant had the ability to comply with the July 20, 1979 order, and yet willfully, intentionally and knowingly failed to set aside the funds in accordance with the order. See Hamra v. Hamra, 350 So.2d 538 (Fla. 3d DCA 1977). In regard to the issue of whether the defendant intended to transgress the court order, a determination of the facts and inferences to be drawn therefrom is left to the trial court and its findings will not be disturbed when reasonably supported by the record. Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978). We find that the record amply supports the trial court’s finding that the defendant was in contempt of the July 20, 1979 order by his failure to “set aside” the required funds.

Accordingly, we affirm.

SCHWARTZ, Chief Judge

(specially concurring).

While I do not in the slightest disagree with Judge Nesbitt’s excellent opinion, I think that it is far more than the appellant’s obdurately frivolous position in the case as a whole and this appeal in particular deserves. In my judgment, the order below should have been affirmed summarily-

      . Even if the issue had been raised previously, there would be no res judicata effect barring the court's reconsideration of the issue at a later date. The nature of the offense here is the ongoing and continuous disobedience of a court order. Therefore, the disobedient conduct occurring after the prior determination would be subject to a later contempt proceeding. Cf. United States v. Roux Laboratories, Inc., 456 F.Supp. 973 (M.D.Fla.1978) (whether or not a defendant should properly be held in contempt for failure to comply with an earlier order does not excuse further disobedience to other valid orders of the court).


text:
    James A. DWYER, Appellant, v. Nevlin Ruth DWYER, Appellee.
    No. 83-2636.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Rehearing Denied Sept. 10, 1984.
    Scherman & Zelonker and Regina Zelonker, Hialeah, Lawrence A. France, North Miami Beach, for appellant.
    Henry M. Cain, Coral Gables, for appel-lee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

James A. Dwyer appeals a final judgment of marriage dissolution and contends that the trial court’s overall scheme of awards was arbitrary and erroneous. We cannot agree. The awards were well within the trial court’s discretion to make and are clearly supported by substantial, competent evidence in this record. Similarly, we reject the cross-appeal in this case for precisely the same reason. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Marsh v. Marsh, 419 So.2d 629 (Fla.1982); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). The final judgment is, therefore, in all respects Affirmed.


text:
    Ronnie E. COTHERN, Appellant, v. STATE of Florida, Appellee.
    No. AW-310.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1984.
    Rehearing Denied Sept. 6, 1984.
    Bartley Ken Vickers, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Burroughs v. State, 221 So.2d 159 (Fla. 2d DCA 1969).

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    John J. O’BRIEN, Appellant, v. BRICKELL TOWNHOUSE, INC., a Florida Corporation, Appellee.
    No. 83-2811.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 11, 1984.
    John J. O’Brien, Miami, in pro. per.

      Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Michael Olin and Joel S. Perwin, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Redwing Carriers, Inc. v. Urton Co., 207 So.2d 273 (Fla.1968); Maass v. Christensen, 414 So.2d 255 (Fla. 4th DCA 1982); Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981); Thomas v. Personal Representative of the Estate of DeLoach, 400 So.2d 204 (Fla. 1st DCA 1981); Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA 1979).


author: BASKIN, Judge.

text:
    Francisco CHURRUCA, et al., Appellants, v. MIAMI JAI-ALAI, INC., et al., Appellees.
    No. 83-2909.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 14, 1984.
    Heller & Kaplan and Seymour Kaplan, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and James B. Tilgh-man, Jr., William R. Dawes, Miami, Ricci & Roberts, Janet W. Freeman, West Palm Beach, for appellees.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

We reverse the trial court’s dismissal for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e) and remand the cause for trial at the earliest convenience of the trial court. Plaintiffs’ motion for trial, advising the court that the case was at issue and ready to be tried, was equivalent to a notice for trial. George Hunt, Inc. v. Dorsey Young Construction, Inc., 444 So.2d 65 (Fla. 4th DCA 1984). The filing of a notice for trial bars the trial court from dismissing for lack of prosecution. Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla.1984). By filing a notice for trial, plaintiffs have vouched for their ability to proceed without further delay. In addition, they have affirmed their readiness for trial before this court. Although plaintiffs are not foreclosed from undertaking appropriate discovery, we hold that the trial court may set an immediate trial date for this cause.

Reversed and remanded.

       The decision in Mikos was issued subsequent to the trial court’s decision.


text:
    BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., Appellant, v. Deborah Jo WALTERS, as Personal Representative of the Estate of Robert C. Lumsden, Appellee.
    Nos. 84-52, 84-530.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 7, 1980.
    Adkins & Hardy and H. Lawrence Hardy, Coral Gables, for appellant.
    David C. Arnold, Coral Gables, for appel-lee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We hold that the trial court erred in entering final summary judgment. The record discloses the existence of genuine issues of material fact as to the coverage and exclusion provisions at issue under the subject insurance policy. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Proprietors Insurance Co. v. Siegel, 410 So.2d 993 (Fla. 3d DCA 1982).

Reversed and remanded.


text:
    Darnell GARDNER, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1668.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 11, 1984.
    Darnell Gardner, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. See Straight v. Wainwright, 422 So.2d 827 (Fla.1982); Knight v. State, 394 So.2d 997 (Fla.1981).


author: PER CURIAM. BOOTH, Judge,

text:
    RIVER ROAD CONSTRUCTION COMPANY, Appellant, v. RING POWER CORPORATION, Appellee.
    No. AM-221.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.

      Clifford L. Adams, Jasper, for appellant.
    Paul M. Harden, Jacksonville, for appel-lee.
   PER CURIAM.

River Road Construction Company, defendant below, appeals the order of the trial judge finding that Ring Power Corporation, plaintiff below, was entitled to attorney’s fees, costs, and interest over and above the amount set forth in River Road’s offer of judgment.

Ring Power sued River Road for $8,792.46 due as a result of a business transaction between the parties, attorney’s fees, costs, and interest. Attached to the complaint was a statement of account showing the amount owed to be $8,792.46. River Road defended on the ground that the scraper which was leased to it by Ring Power was defective, and claimed a setoff in the amount of $2,586.89 for repairs made. River Road thereafter served on Ring Power an offer of judgment pursuant to Rule 1.442, Florida Rules of Civil Procedure, offering

to allow judgment in the sum of $6,205.57 in favor of the plaintiff, Ring Power Corporation.

Seven days later Ring Power filed and served an acceptance of the offer of judgment. Ring Power filed on the same day a motion to tax costs and attorney’s fees.

At the hearing on the motion to tax costs and attorney’s fees, Ring Power submitted for introduction into evidence an “Application for Credit” to open an account with Ring Power, that had been executed by River Road. The application provided, in part, that:

should the services of a lawyer be necessary to collect amounts outstanding, it is agreed by the undersigned that a reasonable collection fee will be imposed.

River Road objected to the claim for attorney’s fees because a claim for attorney’s fees had not been properly pled in Ring Power’s complaint and because River Road’s offer of judgment did not include an offer to pay attorney’s fees. The only reference to attorney’s fees in the complaint was:

4. Plaintiff is obligated to pay its attorney a reasonable fee for his services in bringing this action.
WHEREFORE, Plaintiff demands judgment for damages, reimbursement of costs in this action, interest and attorney’s fees against the Defendant.

No document was attached to the complaint indicating a basis for entitlement to attorney’s fees. Nevertheless, the trial court permitted introduction of the credit application and entered final judgment for Ring Power in the amount set forth in the offer of judgment plus $251.60 interest, $56.00 in costs, and $1,000.00 as a reasonable attorney’s fee, for a total of $7,513.17.

On appeal, River Road contends that the trial court erred in awarding attorney’s fees and interest. With respect to the award of interest, that question was not addressed at the above-referred hearing. In fact, Ring Power’s motion to tax costs and attorney’s fees made no reference to any claim for additional amounts attributable to prejudgment interest. On appeal, Ring Power states that the amount of interest awarded by the trial court was arrived at on the basis of “the statutory rate from the time of the acceptance of the offer of judgment through the entry of the order including the costs in (sic) attorney’s fees.”

Two issues coalesce in this case: (1) the burden of the party claiming attorney fees, costs, and interest to plead properly the claim, including setting forth the basis for entitlement to such items; and (2) the effect of an offer of judgment which neither expressly excludes nor includes costs, fees, and interest accrued as of the time the offer is made.

Rule 1.442 provides, in pertinent part, as follows:

At any time more than 10 days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued .... An offer not accepted shall be deemed withdrawn, and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer.

Costs are the statutory allowances recoverable by a successful party as an incident to the main adjudication and need not be specifically pled or claimed. Golub v. Golub, 336 So.2d 693 (Fla. 2d DCA 1976). We find that this allowance should be made regardless of whether the offer itself expressly refers to costs and that such costs are in addition to the amount stated in the offer of judgment. Accordingly, the trial court correctly allowed costs in addition to the stated amount of the offer.

With respect to the attorney’s fees question, the significant point is that Ring Power’s claim for attorney’s fees was based upon contract instead of statute. If the fee claim had been based upon statute, the omission of any reference to fees in the offer or acceptance would not be fatal to the plaintiff’s subsequent claim therefor. See Encompass Incorporated v. Alford, 444 So.2d 1085 (Fla. 1st DCA 1984); Wisconsin Life Insurance Company v. Sills, 368 So.2d 920 (Fla. 1st DCA 1979); Parliament Insurance Company v. That Girl in Miami, Inc., 377 So.2d 1011 (Fla. 3d DCA 1979). However, where fee claims are based upon contract, such claims must be pled and proved as part of the damages suffered by the plaintiff, Wallace v. Gage, 112 Fla. 730, 150 So. 799 (1933), the entitlement thereto and the amount thereof being determined by the trier of fact (absent stipulation otherwise by the parties) in the same manner as other elements of damage. See Baruch v. Giblin, 122 Fla. 59, 164 So. 831, 833 (1935); Lamoureux v. Lamoureux, 59 So.2d 9, 12 (Fla. 1951).

Pertinent to our consideration of both the attorney’s fees and prejudgment interest questions is our holding in a recent offer of judgment case:

Unlike attorney’s fees awardable by statute to a prevailing party, prejudgment interest is an element of compensatory damages which must be determined by the trier of fact as any other element of damages. 32 Fla.Jur.2nd Interest and Usury § 17; Aetna Insurance Company v. Settembrino, 369 So.2d 954 (Fla. 3rd DCA 1978); cf. Division of Administration, etc. v. Tsalickis, 372 So.2d 500 (Fla. 4th DCA 1979). We conclude that an offer of judgment which contains only a single figure includes all elements of damages attributable to plaintiffs cause of action, including the damage resulting from deprivation of the use of the money. See Davis v. Chism, 513 P.2d 475, 482 (Alaska 1973). (e.s.)

Encompass Incorporated v. Alford, supra, 444 So.2d at 1087. Claims for attorney’s fees based upon contract and claims for prejudgment interest should be treated alike as elements of damages which are an integral part of the plaintiff’s cause of action. And when the defendant submits an offer of judgment in a sum certain, the plaintiff who accepts such offer will be precluded from recovering additional sums attributable to prejudgment interest or attorney’s fees not awardable by statute.

Additionally, we find that the trial court, at the hearing on Ring Power’s motion to tax costs and attorney’s fees, reversibly erred in receiving into evidence, over River Road’s objections, the above-referred credit application which provided for attorney’s fees. Ring Power’s complaint was a brief pleading stating a cause of action based upon an account stated. Although the ad damnum included a demand for attorney’s fees, the complaint failed to include, either in the body of the complaint or in the statement of account attached thereto, anything which would frame the issue or suggest a basis for Ring Power’s entitlement to attorney’s fees. Under our rules of procedure, there is ample opportunity for the party seeking affirmative relief to plead his case and place the defendant upon proper notice by the allegations in the body of the complaint. Therefore, even if we were to agree with the trial court’s assumption that an offer of judgment which makes no reference to fees does not preclude a subsequent award of nonstatu-torily based fees, it was nevertheless improper for the court to receive in evidence, over River Road’s objections, a document purportedly embodying an agreement between the parties to pay attorney’s fees where the complaint had failed to state any basis for entitlement to such fees.

In sum, a proper offer of judgment was served and filed by River Road and it was accepted by Ring Power. The fact that Ring Power may not have realized that its acceptance of the offer in that form would preclude recovery of contractual attorney’s fees and prejudgment interest should avail Ring Power nothing. Ring Power must be presumed to know the legal consequences of its own pleadings and its acceptance of River Road’s offer of judgment.

This case is REVERSED and REMANDED to the trial court for entry of a judgment for Ring Power in the sum of $6,205.57 plus the costs as taxed.

Pursuant to Fla.App.R. 9.030(a)(2)(A)(v), we certify the following as questions of great public importance:

Where, in an action at law for damages based upon an account stated, the defendant submits a Rule 1.442 offer to submit to judgment in a sum certain, which offer is accepted by the plaintiff, is the plaintiff entitled to recover an attorney’s fee where such fee is based upon contract? Assuming that the answer to such question is in the affirmative, is it error for the trial court, after the plaintiffs acceptance of the defendant’s offer, to award an attorney’s fee where the complaint made only a bare allegation of entitlement to an attorney’s fee without alleging any basis therefor and without attaching any contract or document referring to an agreement for an attorney’s fee?

WIGGINTON and NIMMONS, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. This court should affirm the trial court’s post-judgment award of attorney’s fees. The majority decision striking those fees is based on a determination that fees allowable by contract are to be treated differently than fees provided by statute. Florida law is clear that statutory fees are considered as “costs” for the purpose of the offer of judgment rule, Rule 1.442, Florida Rules of Civil Procedure, and are allowed in addition to the sum offered unless specified otherwise. No sound reason exists for creating a distinction between contractual and statutory fees for the purpose of the offer of judgment rule.

Attorney’s fees for prosecuting or defending the action itself are allowable as costs when provided for by contract or statute. That general rule was stated by this court in Lutsch v. Smith, 397 So.2d 337, 341 (Fla. 1st DCA 1981), a suit involving contractual attorney’s fees:

Attorney’s fees may of course be taxed as costs incidental to the main cause of action if they are provided for by contract, agreement or statute.

In Miller v. Colonial Baking Company of Alabama, 402 So.2d 1365, 1367 (Fla. 1st DCA 1981), we stated:

[Attorney's fees may be taxed as costs if so authorized by contract or statute.

Specifically as to the offer of judgment rule, this court, in Wisconsin Life Insurance Company v. Sills, 368 So.2d 920, 922 (Fla. 1st DCA 1979), held:

The purposes of the rule [Rule 1.442] would appear to be better served by allowing attorneys’ fees, like costs, to be determined by the Court independently of the merits. A defendant would require prophetic powers to estimate the amount of fees to be awarded for his adversary’s services. Moreover, an insurer defendant who correctly estimates and offers to concede its liability for the benefit in issue should not be required to acquiesce also in liability for attorrieys’ fees accrued to the date of the offer of judgment or else incur continuing liability for still more fees. Rule 1.442 permits the defendant both to settle on the merits and to contest all costs, including attorneys’ fees.

Attorney’s fees may be an element of damages in certain cases, in which event they must be pleaded and proved as any other element of damage. Perhaps some of the confusion in this area of the law has arisen because of the failure to make the distinction between types of fees. This confusion has brought about the practice of putting on evidence as to fees during the trial of the case even when the fees sought are not in the nature of damages, as explained in Taggart Corporation v. Benzing, 434 So.2d 964, 965 (Fla. 4th DCA 1983), wherein fees provided by contract to the prevailing party under a real estate agreement were denied by the trial court due to failure of the attorney to present evidence relating to a reasonable fee. The district court reversed and remanded for setting of a reasonable fee, holding (434 So.2d at 965):

The problem presented here is not a new one. Uncertain as to the solution thereof, most experienced trial lawyers, unless they stipulate otherwise, put on their proof for attorney’s fees during the course of the trial. They thus treat the fee issue just as if it were any other item of damages, expressly to avoid the specter that here materialized.
What is inescapably meaningful, is that even this court has approved presentation of proof concerning attorney’s fees after judgment despite the absence of a stipulation to do so....
We do not perceive this to be an unhappy result. To require each side to be put to the proof when both cannot prevail is a waste of time. Furthermore, one of the factors to be considered in arriving at the amount of a reasonable fee is the outcome. That is obviously an easier task after the fact.

But regardless of what rule is applied as to pleading and proof of attorney’s fees in general, no purpose is served in offer of judgment proceedings by application of diverse requirements for statutory and for contractual fees. Either both are costs or neither are costs under Rule 1.442.

I further disagree with the majority’s determination that the complaint in the instant case was insufficient to state a claim for attorney’s fees. The complaint is in the form prescribed by the Florida Rules of Civil Procedure for a suit which includes a claim for fees based on contract, though defective in not attaching the contract. Rule 1.130(a), Florida Rules of Civil Procedure. The complaint gives notice of the claim for fees and therefore satisfies the notice pleading concept applicable under the law of Florida. The majority ruling here freezes the complaint as of the time the offer of judgment is made, cutting off rights of amendment, and resulting in an injustice on purely technical grounds. In Brown v. Gardens by the Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983), a suit on a lease which contained a provision for attorney’s fees to the prevailing party, there was a total failure to plead entitlement to fees, and on that basis, they were denied by the trial court. On appeal, the district court reversed, finding that attorney’s fees were referred to at pre-trial conference, in the pre-trial statement, and there was no surprise, stating (424 So.2d 181, 183):

Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise [sic] the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient. ...

To like effect is Marrero v. Cavero, 400 So.2d 802 (Fla. 3d DCA 1981), review denied, 411 So.2d 383 (Fla. 1981), holding that failure to plead did not bar a claim for attorney’s fees based on contract and that the fee was allowable when presented on a timely motion following judgment.

In the instant case, River Road’s offer of judgment was made, not to a complaint totally devoid of pleading a claim for fees, as in the Brown and Marerro cases, supra. River Road was apprised of the claim for fees, and any ambiguity in that regard did not prevent it from making an offer of judgment in the exact amount of the difference between the damages sought by the claim and the amount of the counterclaim. The trial court in the instant case, as in the Brown and Marerro cases, supra, was in the best position to determine whether there was adequate notice of the claim for fees, and that determination should stand.

But even if the majority has correctly determined that, as a matter of law, the trial court could not award the fees provided for by agreement of the parties, the appropriate disposition of this cause is to set aside the entire judgment, simply because there was no meeting of the minds needed for a valid offer and acceptance.

A review of the facts here shows that, after answer was filed and trial (non-jury) date set, River Road filed an offer of judgment which made no mention of costs or attorney’s fees. Ring Power responded by serving and filing, simultaneously, a motion to tax costs and attorney’s fees and an acceptance of offer of judgment. By the majority view here, the offer cannot be taken to include attorney’s fees. Therefore, Ring Power’s qualified acceptance can only be considered as a counteroffer. The record further indicates that River Road had attempted to withdraw its offer, further evidence of no meeting of the minds.

An additional factor to be considered here is the obvious unsettled nature of the law in this area as to when attorney’s fees are to be considered costs as indicated by the cases cited in both opinions here. The unsettled state on this subject was a factor considered in Greenwood v. Stevenson, 88 F.R.D. 225 (1980), in setting aside a judgment entered under the federal offer of judgment rule. In Greenwood, the defendant made an offer of judgment for a sum certain plus “accrued costs,” and the plaintiff filed an “acceptance” of the amount stated “plus costs including attorney’s fees.” The court in Greenwood found that the defendants had not intended to include attorney’s fees in the offer of costs and that plaintiff had made a “counteroffer” rather than an acceptance of the original offer. The court concluded that there was no meeting of the minds and, in reaching that result, considered the confused state of the law as to whether costs included attorney’s fees, holding (88 F.R.D. at 232):

This is sufficient reason for concluding that there was never a “meeting of the minds” on the terms of the offer, and therefore no true acceptance. Moreover, the Court feels that it would be inequitable under the circumstances to hold plaintiff to the agreement. The decisions of both federal courts that had previously considered the precise question supported plaintiff’s belief that “accrued costs” would include attorney’s fees in a civil rights case. Plaintiff might well have considered $20,001 an unreasonably low settlement in the absence of fees.
The Court thinks it better that both sides, now that they are fully aware of their legal positions, approach the settlement question afresh. Therefore, the case will be scheduled for trial in due course ... subject to the parties’ ability to reach a mutually-acceptable offer of judgment in the interim.

The court should either affirm the judgment below or, failing that, adopt the Greenwood, result and allow the parties to “approach the settlement question afresh.”

      . The rule as to statutory fees is most recently stated in Encompass, Inc. v. Alford, 444 So.2d 1085, 1086-87 (Fla. 1st DCA 1984): "We hold that unless the offer [of judgment] and acceptance affirmatively indicate that the amount specified in the offer is to include attorney's fees, the plaintiff, by accepting the offer, is not pre-eluded from seeking attorney’s fees to which he may be entitled by statute [citations omitted].”

      . In Miller v. Colonial Baking Company of Alabama, 402 So.2d 1365, 1367 (Fla. 1st DCA 1981), and Glusman v. Lieberman, 285 So.2d 29, 31-32 (Fla. 4th DCA 1973), the court states the distinction between attorney's fees provided for prosecuting the action itself allowable pursuant to contract or statute, and fees which are an element of damage to compensate for the wrong done, such as fees allowable for wrongful attachment, false imprisonment, and malicious prosecution.

      . Compare Newcombe v. South Florida Business Negotiators, Inc., 340 So.2d 1192, 1194 (Fla. 2d DCA 1977); Lhamon v. Retail Development, Inc., 422 So.2d 993 (Fla. 5th DCA 1982); and Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla. 3d DCA 1977), case holding that in a jury trial, a claim for fees is element of damages for the jury.

      . See, e.g., Form 1.934, Florida Rules of Civil Procedure. Complaint here states in body that "[pjlaintiff is obligated to pay its attorney a reasonable fee for his services in bringing this action," and the ad damnum demands "attorney's fees."

      . Motion to vacate judgment filed by River Road alleges it withdrew the offer two days before Ring Power's acceptance. The trial court did not expressly rule on this point.


author: WIGGINTON, Judge.

text:
    Adam JOLLY, Appellant, v. STATE of Florida, Appellee.
    No. AV-329.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.
    Rehearing Denied Aug. 28, 1984.
    Michael E. Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant, who was a juvenile at the time of the commission of a criminal offense, asserts error in the trial judge’s failure to follow the juvenile sentencing provisions of section 39.111(6), Florida Statutes (1981). Although appellant voiced no objection to that failure in the trial court, we are compelled to reverse and remand for resentenc-ing in light of the recent decision by the Florida Supreme Court in State v. Rhoden, 448 So.2d 1013 .(Fla.1984), in which the court declared:

We hold that the provisions of section 39.111(6) must be followed by a trial judge in sentencing a juvenile as an adult, and the failure to do so requires a remand for resentencing.

In Rhoden, the court rejected the state’s argument that the respondent’s failure to object to the trial court’s failure to follow the statute precluded appellate review of that issue.

We reverse and remand to the trial coúrt for resentencing in compliance with the provisions of section 39.111(6), Florida Statutes (1981).

MILLS and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    ORLANDO MENDEZ, INC. and Old Republic Insurance Company, Appellants, v. Lereis BECHARA and Division of Workers’ Compensation, Appellees.
    No. AW-163.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 6, 1984.

      John F. McMath, of John F. McMath, P.A., Miami, for appellants.
    Albert E. Harum, Jr., of Albert E. Ha-rum, Jr., P.A., Miami, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeal an order of the deputy commissioner which, based on change of condition, modifies a prior order and awards permanent total disability. We find that the testimony of claimant and Dr. Lusskin provides competent, substantial evidence that claimant has suffered an unanticipated change of condition subsequent to the entry of the prior order and that the claimant’s condition is related to the industrial accident. We also find competent, substantial evidence to support the finding of the deputy commissioner that the claimant’s work search was adequate. Appellants, in essence, ask this court to reweigh the evidence and come to a different conclusion than the deputy commissioner on factual issues. See, e.g., McClinton v. Royal Moving & Storage, 435 So.2d 965 (Fla. 1st DCA 1983).

Whether the deputy commissioner’s personal observations of claimant, stated in the order sub judice, constitute a sufficient basis for modification of the prior order is an issue we need not reach since the deputy commissioner’s conclusions in the order sub judice are supported by medical evidence.

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.


text:
    DAYTONA LINEN SERVICE and Mission Insurance Company, Appellants, v. Cora M. DAVIS, Appellee.
    No. AW-433.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.
    Rehearing Denied Aug. 28, 1984.

      F. Bradley Hassell, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellants.
    Joseph D. Krol, of Ossinsky, Krol & Hess, Daytona Beach, for appellee.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeal an order of the deputy commissioner which awards the claimant, Davis, temporary total disability (TTD) benefits and medical benefits. Appellants argue that there is no competent, substantial evidence to support the award of TTD benefits or to show that claimant’s condition arose out of her employment. .Appellants also contend that the deputy commissioner erred in admitting certain medical bills into evidence and ordering their payment when such relief was not claimed by appellee. We affirm in part and reverse in part.

Although it is true that a causal relationship between accident and disability must be shown within reasonable medical probability, the causal connection can be proved by medical or lay testimony. Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla. 1970); Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981). It is not necessary for a physician to utter the magic words “reasonable medical probability” to support a finding of causal relationship if a combination of lay and medical evidence provides competent, substantial evidence of a causal relationship. See Custodis Construction v. Register, 435 So.2d 947 (Fla. 1st DCA 1983). Although the record in the instant case suffers from a lack of testimony by any physician, we think a combination of the medical records and claimant’s testimony provides competent, substantial evidence to support the deputy commissioner’s finding of causal relationship.

Claimant testified that her back began to hurt after the industrial accident and that ever since her pain has worsened. Dr. Seltzer’s medical reports refer to an injury in the form of musculoligamentus strain resulting from the industrial accident of February 21, 1983. Where an injury is shown, and the evidence presents a sufficiently logical explanation of a causal relationship between the accident and the subsequent injury, the burden shifts to the employer/carrier to show a more logical cause. Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970); Poorman v. Muncy & Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983). Although appellants suggest that claimant’s 1977 industrial accident might be the cause of her low back pain, this proposition was not proven.

We agree with appellants that there is no medical evidence in this record to support a finding that claimant was totally unable to work during the time period for which TTD benefits were awarded and that claimant’s bare complaints of pain do not excuse the absence of a work search. Generally, these facts would require reversal. The medical evidence in this record does reveal, however, that claimant was advised not to work by her treating physician. Dr. Seltzer’s report of March 2, 1983, states his “plan” for claimant. “She is instructed to conform to strict modification of activities with bed rest at home and heat application.” There is no evidence in this record that claimant at any time was told to go back to work or otherwise released for that purpose. In Fulmer-Orlando v. Taylor, 419 So.2d 734 (Fla. 1st DCA 1982), this court stated;

Although claimant’s employment history was varied and the circumstances would ordinarily dictate diligent attempts at other work if he had been so advised, neither the doctor’s office notes nor any other part of the record to which we are referred indicates that claimant was released or informed that he could return to work until May of 1981. The equivocal nature of the doctor’s quoted testimony does not, in the context of this record, require that the deputy find otherwise. Even assuming direct retrospective testimony that claimant was able to undertake some light employment as early as October of 1980, a reversal of benefits here cannot logically rest on his, failure to seek work in the absence of any evi-denee that he knew or should have known that he was released for that purpose.

Id. at 734-735; accord, Lakeland Construction Co. v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983). Accordingly, we affirm the award of TTD benefits.

The deputy commissioner did not err in admitting claimant’s hospital bills as evidence. The bills were relevant to show claimant’s continued attempts to obtain medical treatment. It was error, however, to award payment of these bills. Appel-lee’s application for hearing, which is also the claim in this case, does not ask for the payment of these bills. Nor does the pretrial stipulation reflect that these bills were in issue. The employer/carrier objected to the introduction of these bills on the basis that no claim had been made for them. That portion of the order sub judice ordering the employer/carrier to pay the emergency room hospital bills is reversed. Cf. Dade County School Board v. Walker, 379 So.2d 1026 (Fla. 1st DCA 1980) (modifying an order which appeared to award payment of an unclaimed medical bill). In all other respects, the order sub judice is affirmed.

AFFIRMED in part, REVERSED in part.

MILLS and WIGGINTON, JJ„ CONCUR.

      . E.g., Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981); Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). We note that many of the cases which deny TTD benefits in the absence of medical evidence showing an inability to work or a good faith work search involve situations where a claimant was explicitly released to work by one or more physicians. See, e.g., Wilbro Dairies v. Hesch, 438 So.2d 968 (Fla. 1st DCA 1983); Fair-Way Restaurant v. Fair, 425 So.2d 115 (Fla. 1st DCA 1982); Quality Petroleum Corp. v. Mihm, 424 So.2d 112 (Fla. 1st DCA 1982); Commercial Carrier Corp. v. Bennett, supra; Walter Glades Condominium v. Morris, supra.

      We also note that the rule is subject to exceptions. For example, a deputy commissioner may rely on lay testimony and his own observations to determine ability to work vel non when the issue does not require medical expertise but rather lies within the actual knowledge of the claimant, is readily observable by lay people or involves physical conditions and symptoms involving ordinary evidentiary credibility standards. Lindsley Home Care Centers v. Fuster, 413 So.2d 810 (Fla. 1st DCA 1982); Square G. Construction Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982). The rule is also subject to qualification with respect to short periods of time. Southern Bell Telephone & Telegraph Co. v. Seneca, 433 So.2d 1369 (Fla. 1st DCA 1983); Square G. Construction Co. v. Grace, supra.


author: HERSEY, Judge.

text:
    Walter Thomas VAN ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1456.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 12, 1984.
    H. Dohn Williams, Jr., of Varón, Bogen-schutz, Williams & Gulkin, P.A., Hollywood, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

At issue in this appeal is the validity of a search where the law enforcement officers failed to comply with the “knock and announce” requirement.

The statutory provision applicable here is Section 933.09, Florida Statutes (1983), which relates to searches. That section provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein.

The “knock and announce” rule is more commonly encountered in the application of Section 901.19(1), Florida Statutes (1983), governing official entries for the purpose of making an arrest. Both statutes impose the same salutary requirement of knock and announce, and both are grounded in the same policy considerations. Thus, cases under one statute are “persuasive authority” for application of the other. See State v. Collier, 270 So.2d 451 (Fla.4th DCA 1972).

The historical reasons for a knock and announce rule were discussed by the Supreme Court of Florida in Benefield v. State, 160 So.2d 706 (Fla.1964). In that case Justice Terrell, for the majority, explained.

Entering one’s home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus. Judge Prettyman for the Court of Appeals in Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, 465, discussed the history and reasons for it. See also 22 Mich.L.Rev. 541, 673, 798, “Arrest Without a Warrant,” by Wilgus. William Pitt categorized a man’s home as his castle. Paraphrasing one of his speeches in which he apostrophized the home, it was said in about this fashion: The poorest pioneer in his log cabin may bid defiance to the forces of the crown. It may be located so far in the backwoods that the sun rises this side of it; it may be unsteady; the roof may leak; the wind may blow through it; the cold may penetrate it and his dog may sleep beneath the front steps, but it is his castle that the king may not enter and his men dare not cross the threshold without his permission.
This sentiment has moulded our concept of the home as one’s castle as well as the law to protect it. The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and the sanctity of the home in a free country. Liberty without virtue is much like a spirited horse, apt to go beserk on slight provocation if not restrained by a severe bit.

Id. at 709.

The court in Benefield next proceeded to analyze the statute against a backdrop of common law applications:

As we interpret the common law authorities in relation to § 901.19(1), Florida Statutes, F.S.A., we conclude that even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows of the officer’s authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. Time and experience will no doubt suggest other exceptions,, but when the facts of this case are measured against the statutory criteria and its exceptions, it is clear that the unannounced entry of the officers in this case violated the statute and vitiated the arrest made pursuant to probable cause without warrant.

160 So.2d at 710. See State v. Drowne, 436 So.2d 916 (Fla. 4th DCA), pet. for review denied, 441 So.2d 633 (Fla.1983), where we had occasion to apply the statute in an appropriate setting.

In the present case the police officers had been told by appellant that he and another individual would be out of town. This information coincided with the statement of a confidential informant that appellant and another person frequently went to Atlanta on the weekends to sell stolen property. The police officers obtained a search warrant and went to the premises with reasonable cause to believe they were unoccupied. An officer, when later asked how entry was gained, testified: “[tjhere was one jalousie out beside the door, and I hollered in ... is anybody home? I didn’t say ‘police’ or anything like that, but I said, ‘anybody home?’ in a loud enough voice that if there had been anybody in there, they would have heard me.” The officer is to be commended for his candor, but the fact remains this was a clear violation of the knock and announce requirement. The question is, does it matter that the premises were unoccupied.

In Kistner v. State, 379 So.2d 128 (Fla. 1st DCA 1979), the appellate court rejected a contention, similar to the one the state makes here, that it was futile to knock and announce where it reasonably appeared no one was home to hear the call. The difference between that case and this one is that in Kistner the officers were mistaken in their belief. The premises were in fact occupied. We are thus required to decide whether this is a difference without legal distinction. In both cases the officers reasonably believed the premises to be unoccupied. In Kistner they were wrong; here they were right.

Benefield points out four exceptions to the knock and announce rule, the first of which is that knock and announce is unnecessary “where the person within already knows of the officer’s authority and purpose.” 160 So.2d at 710. Thus, even though the premises be occupied, knock and announce may be excused based upon the subjective state of mind of the occupant. If this is so, then logic and common sense would seem to indicate that announcing to a non-occupant is as fruitless as announcing to an occupant already possessed of the facts. Application of this rationale can do no harm to the goals of knock and announce if strictly limited to unoccupied premises. Thus, regardless of what the officers reasonably believe (and assuming none of the Benefield exceptions apply), if the premises are actually occupied there is a violation under Kistner. On the other hand, if the officers are correct and the premises are unoccupied there is no violation (if our rationale here withstands subsequent scrutiny).

We therefore hold that no violation of the knock and announce rule occurs where law enforcement officers, reasonably believing premises to be unoccupied, otherwise lawfully intrude upon premises without announcing their authority and purpose, when in fact the premises are unoccupied.

Appellant's other points on appeal are without merit. We therefore affirm.

AFFIRMED.

GLICKSTEIN and DELL, JJ., concur.


text:
    Kenneth HEMMERLE II and Lynn H. Hemmerle, Appellants, v. MGB CORPORATION, d/b/a Gulfstream Seafoods; Kenneth V. Hemmerle, Maria Popejoy and Hemmerle Development Corporation, d/b/a Hemmerle Restaurant, Appellees.
    No. 83-1576.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 10, 1984.
    Kenneth Hemmerle II and Lynn H. Hem-merle, Fort Lauderdale, pro se appellants.
    John A. Gentry, III, of Law Offices of John A. Gentry, III, P.A., West Palm Beach, for appellee-MGB Corp.
   PER CURIAM.

We affirm that portion of the trial court’s order which denied the defendants’/appellees’ motion to quash execution and vacate a final judgment. We reverse, however, the award of attorney’s fees, granted pursuant to section 57.105, Florida Statutes (1983). The record demonstrates that the proceeding below cannot be characterized as one in which there was “a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action [was] frivolous.” Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla.1982) (quoting Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980)).

Accordingly, the order on appeal is affirmed in part and reversed in part.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: HURLEY, Judge.

text:
    Michael SULLIVAN, individually and as personal representative of the Estate of Suzanne Sullivan, his deceased wife, Appellant, v. ATLANTIC FEDERAL SAVINGS & LOAN ASSOCIATION, and Donald Streeter, individually, Appellees.
    No. 83-1913.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 7, 1984.

      Judith M. Korchin and Talbot D’Alem-berte of Steel, Hector & Davis, Miami, for appellant.
    Albert P. Massey, III, of Pyszka & Kes-sler, P.A., Fort Lauderdale, for appellee Atlantic Federal Sav. & Loan Ass’n.
   HURLEY, Judge.

Michael Sullivan, individually and as personal representative for the estate of his deceased wife, sued Atlantic Federal Savings & Loan Association (Atlantic Federal), alleging that its negligent failure to provide adequate security at its bank proximately caused the death of Mrs. Sullivan. In addition, he requested damages for the intentional tort of assault and battery. The trial court entered final summary judgment in favor of Atlantic Federal. We affirm.

Mrs. Sullivan was employed as the bank manager at Atlantic Federal’s branch office in Davie. Armed robberies occured there on October 13, 1981, and June 1, 1982. On the latter occasion, the robber escaped after threatening to return and kill Mrs. Sullivan. Despite repeated requests by bank employees for improved security, Atlantic Federal refused to provide security guards to protect the premises. On July 23, 1982, the same robber returned to the Davie branch and, in the course of the robbery, he shot and killed Mrs. Sullivan.

The threshold question we must consider is whether plaintiff’s wrongful death claim is barred by the exclusivity provision of the Florida Workers’ Compensation Law, section 440.11(1), Florida Statutes (1983). Plaintiff maintains that an employer may be held liable in tort to its employees, notwithstanding any exclusivity provision in the Workers’ Compensation Law, where the injury alleged resulted from a breach of duty owed to the employee independent of the employer-employee relationship. Plaintiff’s theory, commonly referred to as the “dual capacity doctrine,” has found limited acceptance in other jurisdictions, but has not yet been embraced by Florida courts. We need not confront the issue today because application of the doctrine is clearly inappropriate under the facts of this case.

The dual capacity doctrine has generally been confined to situations where an employer has taken on a truly separate role with respect to the employee, such as where an employer acts as a manufacturer of a defective product distributed for the purchase or use by the general public, see, e.g., Mercer v. Uniroyal, Inc., 49 Ohio App.2d 279, 361 N.E.2d 492 (1976), or where an employee sues the employer for medical malpractice for injuries sustained as a patient in a facility open to the public. See, e.g., D’Angona v. County of Los Angeles, 27 Cal.3d 661, 613 P.2d 238, 166 Cal.Rptr. 177 (1980); Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978). In contrast, attempts by employees to hold their employers liable for injuries resulting from an employer’s maintenance of unsafe premises have generally been rejected on the rationale that an employer’s duty to provide a safe work place is inseparable from its general duties as an employer. See, e.g., Royster v. Montanez, 134 Cal. App.3d 362, 184 Cal. Rptr. 560 (1982); Holzworth v. Fuller, 122 N.H. 643, 448 A.2d 394 (1982); Gore v. Amoco Production Co., 616 S.W.2d 289 (Tex.Civ.App.1981); Stone v. United States Steel Corp., 384 So.2d 17 (Ala.1980).

We conclude that this case falls within the latter category of cases, where application of the doctrine would undermine the policy sought to be achieved by the Workers’ Compensation Law. Therefore, we refuse to apply the doctrine here and affirm the entry of summary judgment in favor of Atlantic Federal on the wrongful death claims. See Doe v. St. Michael’s Medical Center, 184 N.J. Super. 1, 445 A.2d 40 (1982) (holding that Workers Compensation statute barred suit of medical technologist who was allegedly raped and robbed in dormitory room which she rented from the hospital at which she was employed); see also Katchis v. Miami Heart Institute, Inc., 434 So.2d 11 (Fla.3d DCA 1983); McDaniel v. Sheffield, 431 So.2d 230 (Fla.1st DCA), petition for rev. denied, 440 So.2d 352 (Fla.1983); Davis v. Sun First National Bank of Orlando, 408 So.2d 608 (Fla. 5th DCA 1981), petition for rev. denied, 413 LSo.2d 875 (Fla.1982) (upholding dismissal of negligence claim against Bank based on its alleged failure to provide adequate security, reasoning that even if properly alleged, claim would be barred by exclusivity provision of Florida Workers’ Compensation Law).

We further conclude that the plaintiff’s intentional tort claim was properly disposed of by the trial court. In his amended complaint, plaintiff alleged in pertinent part that:

The decision by Atlantic ... not to provide any reasonable adequate security measures at the Davie Branch was made with conscious knowledge that such a decision would expose Suzanne Sullivan to certain harm, which was likely to result in personal injury or death caused by an armed robber .... In the alternative, the decision by Atlantic ... not to provide any reasonable adequate security measures at the Davie Branch was made with willful, wanton and reckless indifference to the fact that Suzanne Sullivan would thereby be exposed to certain harm, including but not limited to personal injury or death caused by an armed robber. Such conduct demonstrates a willful and wanton and reckless indifference by Atlantic ... to the rights of Suzanne Sullivan, including but not limited to her right to life. Such conduct is so egregious as to constitute an intentional tort.

We are aware that the element of intent in civil assault does not necessarily involve a subjective desire to do harm, see Spivey v. Battaglia, 258 So.2d 815 (Fla.1972), but nevertheless conclude that the complaint fails to state a cause of action because assault and battery cannot be premised upon an omission or failure to act.

An “assault” is an intentional, unlawful offer of corporal injury to another by force, or exertion of force directed toward another under such circumstances as to create a reasonable fear of imminent peril. See Lay v. Kremer, 411 So.2d 1347 (Fla. 1st DCA 1982). Thus, it must be premised upon an affirmative act — a threat to use force, or the actual exertion of force. Similarly, a battery consists of the intentional infliction of a harmful or offensive contact upon the person of another, see Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981), but

[t]he defendant must have done some positive and affirmative act ... which must cause, and must be intended to cause, an unpermitted contact. Mere negligence, or even recklessness which only creates a risk that the contact will result, may afford a distinct cause of action in itself, but under modern usage of the term it is not enough for battery.

W. Prosser, Law of Torts, § 9, at 35-36 (4th ed. 1971). Because the complaint in this case purports to establish the intentional tort of assault and battery on the basis of an omission, it is insufficient as a matter of law to state a cause of action against Atlantic Federal.

Therefore, even assuming that the exclusivity provision of the Workers’ Compensation Law is no bar to an intentional tort claim brought by an injured employee against his employer, see Brown v. Winn-Dixie Montgomery, Inc., 427 So.2d 1065 (Fla. 1st DCA 1983); Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982), a point we need not decide today, we hold that summary judgment properly entered in favor of Atlantic Federal on the intentional tort claim.

AFFIRMED.

DOWNEY and WALDEN, JJ., concur.

      . Other cases relied on by plaintiff do not suggest a different result. In Sheedy v. Vista Properties, Inc., 410 So.2d 561 (Fla. 4th DCA), petition for rev. denied, 419 So.2d 1201 (Fla.1982) and State ex rel. Auchter Co. v. Luckie, 145 So.2d 239 (Fla. 1st DCA), cert. denied, 148 So.2d 278 (Fla.1962) negligence suits against landowners were permitted on ground that the defendants were not statutory employers. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983) is likewise inappo-site because in Pfeifer, the collateral tort suit brought by an injured longshoreman against his employer was expressly authorized by federal statute.