author: LARRY G. SMITH, Judge.

text:
    EAST MANOR MEDICAL CARE CENTER and Ranger Insurance Company, c/o Crawford and Company, Appellants, v. Violet STEVENS, Appellee.
    No. AP-189.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1983.
    Rehearing Denied Sept. 30, 1983.

      John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
    Alex Lancaster, Sarasota, for appellee.
   LARRY G. SMITH, Judge.

The E/C appeal an order entered October 20,1982 awarding temporary total disability benefits and continuing medical treatment by Drs. Reith and Babcock. The sole issue is whether there was a change in condition under Section 440.28, Florida Statutes (1979) justifying modification of a prior order entered on April 21, 1982 denying a claim for additional temporary total disability and additional medical care. We find that the deputy commissioner did not err in modifying the prior order.

The claimant was injured on July 1, 1981 when she fell while mopping a floor. Her claim for temporary total disability benefits and future medical care came on for hearing on April 14, 1982. Based upon the medical evidence from the reports and depositions of the claimant’s authorized physicians, the deputy found that there was “insubstantial competent evidence to support a claim for additional temporary total or additional medical care.” That ruling was not appealed and its correctness is not attacked in the present proceeding.

A brief review of the claimant’s experience in seeking medical help both before and after the hearing on her first claim will aid in understanding the posture of the case as it appeared before the deputy at the hearing on her second claim. The claimant was last seen by her primary, authorized treating physician on November 11, 1981. She had also been referred to two other authorized physicians. Because she received no relief from them, on her own she sought the services of a doctor of her own choosing in Terre Haute, Indiana, who saw her in October, November and December 1981. She was examined on February 2, 1982 by yet another authorized Florida physician, who also could find no explanation for her condition. Nevertheless, the claimant continued to seek medical help, and was finally referred to Dr. Reith, of St. Peters-burg, by the local medical society in Sarasota. Dr. Reith, an orthopedic surgeon, actually first saw the claimant on April 13,1982, the day before the first hearing. From the first, despite knowledge of the extensive work-ups and examinations of other physicians, he was suspicious that claimant had a protruded intervertebral disc. He decided on a course of conservative treatment in the hospital, including physiotheraphy, pelvic traction, bed rest and medication. She was hospitalized on May 12, 1982, but failed to respond to this treatment. Dr. Reith then consulted with Dr. Babcock, a neurosurgeon, who performed another myleogram, and a CAT scan, both of which produced normal findings. The doctors then proceeded with exploratory surgery, which was conducted on May 26, 1982. Protruded discs were discovered at two levels, L — 4 and L-5, and removed. The claimant testified at the second hearing, which was held on September 14, 1982, that the operation had greatly relieved her pain, and she requested that Drs. Reith and Babcock be authorized to continue her medical treatment.

Evidence before the deputy commissioner indicated that the authorized physicians treating and examining the claimant prior to the first hearing apparently performed the proper tests, including a myleogram and CAT scan, with negative results' At the first hearing, the deputy commissioner had before him the testimony of the primary treating physician, Dr. Boring, that if the claimant had a protruding disc, it was “very mild,” if it existed at all. Also produced was testimony or reports from the other doctors to the effect that they could find no organic cause for the patient’s complaints, which included pain in her left hip, left lower extremity, left foot, and pain and tenderness in her low back. None of these physicians felt claimant was disabled.

Following the first hearing, Drs. Reith and Babcock essentially replicated the tests and procedures performed by the other doctors, with the same results. They decided upon surgery, however, after the period of hospitalization and conservative treatment described above failed to alleviate the claimant’s symptoms. When Dr. Babcock, assisted by Dr. Reith, operated on claimant’s back, he found the L-5 disc to be “bulging fairly markedly” and “extremely soft.” The L-4 — L-5 disc was “not bulging as markedly as that noted at L-5 — S-l but was bulging abnormally and was extremely soft.” The conditions they found and surgically treated were diagnosed as the cause of the claimant’s complaints, and were causally related to the accident of July 1, 1981. There is no dispute on these issues.

At the conclusion of the second hearing, the deputy commissioner entered his order finding, among other things: “It is obvious that there has been a change of condition in that the claimant has had surgery for her injuries which are now related to the industrial accident.” He further found that the claimant’s complaints and symptoms “although insusceptible of prior diagnosis and treatment by the other physicians, are credible and comport with logic and reason.” As to this latter finding we observe that it would have been more accurate to state that her condition was insusceptible of prior diagnosis and treatment by the usual and ordinary means, since there is no evidence that exploratory surgery could not have been performed earlier.

We conclude that the evidence supports the deputy’s finding of a change of condition. As stated by the deputy, the claimant has had surgery, and there is no question but that she was disabled during the operation and for the period required for her recovery. However, we also find further support in the record for a finding of change in condition. We first note that the claimant testified very positively at the second hearing that her painful condition had “gotten worse,” and that it “had gotten so bad that I couldn’t stand it. I was crying 90% of the time.” The fact that she underwent back surgery at all is in itself indicative of the intensity of her discomfort.

Were we confronted with the claimant’s testimony of increased pain alone, of course, we would find difficulty in affirming the finding of a change of condition. As this court recently held, the claimant’s own testimony as to increased pain and inability to do work “standing alone,” is insufficient to establish a change in condition. Austin Co. v. Lindenberger, 410 So.2d 601, 602 (Fla. 1st DCA 1982), citing Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975), and Cheathem v. Fruit Bowl, Inc., 184 So.2d 171 (Fla.1966). Cheathem is the landmark case on this point. Before attempting to apply the Cheathem rule, however, it is necessary to notice a significant recent ruling by the Florida Supreme Court interpreting the Cheathem decision. In Oglesby v. Southern Bell Tel. & Tel. Co., 397 So.2d 291 (Fla.1981), the court in reversing an order denying modification agreed with the claimant’s contention that Cheath-em does not extend the evidentiary standard for proof of a change in condition “to a rigid requirement of objective manifestations without proper consideration of the treating physicians’ observations and evaluation.” Id. at 292. The court went on to explain that the Cheathem court’s rejection of the claimant’s testimony that his pain was worse in intensity, in the absence of other evidence to support it, “does not mean that increased pain may not produce an externally observable manifestation which, when it is established by competent medical evidence, is ‘other testimony.’ ” Oglesby, at 292.

Applying the rule relied upon by this court in Lindenberger, supra, in the light oí Oglesby, we think the fact that Drs. Reith and Babcock were sufficiently impressed by the claimant’s obviously distressed condition to perform exploratory surgery, in the face of negative indications of organic injury detectable by their own and their predecessor’s standard diagnostic tests, in itself provides support for the claimant’s testimony as to her greatly increased pain. Furthermore, the claimant’s testimony is also bolstered by the fact that the surgery itself produced objective evidence as to the cause of her symptoms, a factor which we find it difficult to ignore, even though in all candor we find no evidence indicating that if the surgery had been performed prior to the first hearing, the same or similar conditions would not have been discovered. Nevertheless, Dr. Babcock’s description of the abnormalities observable by means of surgery furnished the first concrete evidence of an organic basis for the claimant’s symptoms.

Appellants urge that the claimant should be barred from relief by the “cumulative evidence” rule. We disagree. This rule, stated in its familiar form in City of West Palm Beach v. Chisolm, 405 So.2d 279 (Fla. 1st DCA 1981), cited by appellant, holds that cumulative evidence “which does nothing more than add to or controvert evidence already taken is insufficient to support a modification.” Id. at 280. Appellants’ reliance upon the cumulative evidence rule is misplaced. As pointed out in Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), in discussion .of Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963) (also cited by appellant here), the cumulative evidence rule is uniquely applicable to petitions for modification based on mistake of fact, but “cannot be applied equally and indiscriminately where the petition is based upon a change in condition.” Flesche at 923. Appellants have also failed to note that the issue in Chisolm was causation, not change of condition. Chisolm correctly held that although the claimant’s hemorrhoid condition had worsened since the first hearing, the claimant “may not now attempt to relitigate the issue of causal connection by the introduction of testimony which is merely more favorable to claimant than that initially presented and which should have been presented initially.” Chisolm, at 280 (emphasis supplied). We do not think the cumulative evidence rule is dispositive in this case.

Under the circumstances presented in this case we are simply not inclined to hold, as appellants would have us do, that the claimant should be barred from relief because she failed to locate on her own, prior to the first hearing, doctors who would perform the exploratory surgery necessary to disclose and treat her compensable injuries. We doubt the wisdom, from a medical standpoint, of placing an injured claimant in a “do or die” position with respect to major surgical procedures. More importantly, we have found nothing in the law that would compel such a result as urged by appellant. Our prior decisions indicate otherwise. See, e.g. General Electric Company v. Osborne, 394 So.2d 1089, 1090 (Fla. 1st DCA 1981):

The change of condition provision applies to those cases in which, at the time of the initial order, claimant failed to show the true extent of the injury either because it was not known or had not manifested itself in sufficient degree to be subject to proof.

We conclude that the order modifying the previous denial of compensation and medical benefits was properly entered so as to conform the benefits awarded to the “existing realities” of the claimant’s disability, consistent with the purposes sought to be accomplished by Section 440.28. Arnold v. Stroud, 221 So.2d 729, 731-732 (Fla.1969).

The order appealed from is AFFIRMED.

ERVIN, C.J., and MILLS, J., concur.


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    Joseph ARMBRUSTER, Appellant, v. William R. ALVIN and Gulf Insurance Company, Appellees.
    Nos. 82-707, 82-1172.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 7, 1983.
    George, Hartz, Burt & Lundeen and Charles George, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Mark R. Houck, Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt and James Tribble, Miami, for appellees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   NESBITT, Judge.

Armbruster sued Alvin and Gulf Insurance Company for damages alleging that Alvin, as escrow agent, violated the terms of an escrow agreement by recording a deed prematurely and by failing to deliver to Armbruster certain escrowed property. The defendants moved for summary judgment upon several grounds and the trial court entered summary final judgment determining that there was no escrow agreement as a matter of law. Because we disagree with this ruling as well as the alternate grounds raised by the defendants, we reverse.

On March 16, 1977, Armbruster and two Florida corporations executed a Corporate Stock Exchange Agreement whereby Arm-bruster was to transfer his interest in certain real property, patents, and patent applications to Amber Corporation in exchange for 1,200 shares of its common stock. The agreement also provided that Coolaire/Nordic International Corporation was to transfer all of its inventory, equipment, and physical assets to Amber Corporation in exchange for 2,500 shares of Amber stock, a promissory note from Amber in the amount of $156,000, and the acknowledgment of the sum of $100,000 due to Coolaire/Nordic from Amber on open account. In addition, Armbruster was to be named president of Amber Corporation. The agreement expressly stated that closing would take place simultaneously with execution of the agreement and would be an escrow closing. All the property was to be delivered in escrow to William R. Alvin. Alvin was not a signatory to the Corporate Stock Exchange Agreement.

For several months in 1977, Armbruster operated Amber Corporation as its president. It is alleged that during this time, all of Armbruster’s escrowed property was transferred pursuant to the Corporate Stock Exchange Agreement, but that Arm-bruster never received his 1,200 shares of Amber stock. Armbruster and Amber parted ways in September of 1977. Armbruster subsequently brought a suit for rescission against Amber, Coolaire/Nordic, and transferees or assignees of the properties deposited with Alvin by Armbruster. The final judgment in that suit cancelled the Corporate Stock Exchange Agreement ab initio. Alvin was not a party to the rescission action.

Attached to Armbruster’s complaint in the present suit was a letter bearing the same date as the Corporate Stock Exchange Agreement and typed on Alvin’s law office letterhead paper. This letter was to “acknowledge receipt of the various deeds, assignments, bills of sale, shares of corporate stock, et cetera, as Escrow Agent under the Corporate Stock Exchange Agreement between the parties dated March 16, 1977.” The terms of the letter were agreed to by signature of the president of Coolaire/Nor-die and by signature of Armbruster in his individual capacity and as president of Amber Corporation. The letter also contained the typewritten complimentary close “Very Truly Yours, William R. Alvin,” but was unsigned by him.

It is well settled that an escrow agent may be liable in damages for breach of the fiduciary duties owed to the parties to the escrow. Tucker v. Dr. P. Phillips Co., 139 F.2d 601 (5th Cir.1943) (Florida law); First National Bank of Belleair Bluffs v. Maricopa Corp., 230 So.2d 191 (Fla.2d DCA 1970); see Biadi v. Lawyers Title Insurance Corp., 374 So.2d 30, 34 (Fla.3d DCA 1979) (an escrow holder has a fiduciary responsibility and is required to exercise reasonable skill and ordinary diligence). Summary judgment is appropriate only where it is shown that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c). The defendants seize upon the absence of Alvin’s signature on the acknowledgment of escrow as their first ground for supporting the trial court’s summary final judgment.

The mere fact that the acknowledgment of escrow was not signed by Alvin does not mean that as a matter of law it was not binding upon him. Gateway Cable T.V., Inc. v. Vikoa Construction Corp., 253 So.2d 461 (Fla. 1st DCA 1971). Assent may be shown by acts or conduct of the parties. Gateway Cable T.V., Inc. v. Vikoa Construction Corp., supra. The record before us certainly evinces an issue of fact as to whether Alvin acted as an escrow agent pursuant to the March 16, 1977 Corporate Stock Exchange Agreement. It may well be, therefore, that he was bound by the conditions therein and is amenable to suit for any breach of his duties thereunder.

The argument is made, nonetheless, that even assuming Alvin’s assent to serve as escrow agent under the Corporate Stock Exchange Agreement, no valid escrow arose therefrom. In this regard, the defendants claim that the deed placed into escrow by Armbruster was improperly executed, failed to name a grantee, and thus could not import the legal obligation necessary to the creation of an escrow. Love v. Brown Development Co. of Michigan, 100 Fla. 1373, 131 So. 144 (1930). It is irrelevant though that the deed may not have been in proper form when originally deposited, as long as it was properly executed to Amber Corporation as grantee at the time of the alleged breach of duties by Alvin. On this record, the facts as to this issue remain disputed. Moreover, if it turns out that the deed was improperly executed when Alvin recorded it, he may be estopped to raise this defense. At present, however, we cannot and do not attempt a resolution of that issue.

A further challenge to the existence of a valid escrow is based upon the judgment rendering the Corporate Stock Exchange Agreement void ab initio. The defendants contend that if by judgment there was never any agreement creating the escrow, then there was never any escrow. This inventive proposition ignores the realities of escrow arrangements. Were we to accept it, escrow agents could intentionally or negligently scuttle escrow transactions, forcing one of the parties or both to rescind their agreements, with the escrow agent taking cover behind the judgment of rescission. This we cannot condone. See Montgomery v. Bank of America Nat. Trust & Savings Ass’n, 85 Cal.App.2d 559, 193 P.2d 475 (1948) (where escrow holder changed description in deed in violation of express instruction of grantors, grantors were entitled to rescind sale upon returning purchase money to purchasers and escrow holder would be liable in damages for costs and expenses incurred by grantors in recovering their title).

As a corollary, the defendants assert that Armbruster, having already obtained rescission of the Corporate Stock Exchange Agreement, is now barred by the doctrine of election of remedies from maintaining suit against Alvin for breach of his escrow duties. The doctrine of election of remedies applies where the alternative remedies are repugnant and inconsistent. Encore, Inc. v. Olivetti Corp. of America, 326 So.2d 161, 163 (Fla.1976). Rescission of the escrowed transaction and recovery of damages against the escrowee are not necessarily inconsistent remedies. See Montgomery v. Bank of America Nat. Trust & Savings Ass’n, supra; cf. Earven v. Smith, 127 Ariz. 354, 621 P.2d 41 (Ct.App.1980). To the extent they are not and to the extent that any damage not remedied by the judgment of rescission was actually caused by Alvin, see Allen v. Allen Title Co., 77 N.M. 796, 427 P.2d 673 (1967), he should be liable therefor.

Lastly, the defendants seek to avoid suit by setting up the defense of ratification and waiver. They claim that Armbruster may not now sue Alvin for allegedly improper recordation of a deed when in his capacity as president of Amber Corporation, Armbruster used corporate funds to pay mortgages and taxes on the deeded property and even listed the property for sale. We cannot agree. Armbruster, as president of a corporation, had a duty to protect its interests in the corporate property and could not simply act on behalf of his own personal interests. Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 144 So. 674 (1932); Tillis v. United Parts, Inc., 395 So.2d 618 (Fla. 5th DCA 1981). Under these circumstances, it cannot be said that as a matter of law Armbruster waived or ratified the recordation of the deed. That Armbruster did not move to upset the escrow transaction until after he was removed as president of Amber Corporation only reinforces that there is an issue of fact as to waiver and ratification. Consequently, the cases cited by defendants on this point, such as Tollius v. Dutch Inns of America, Inc., 244 So.2d 467 (Fla. 3d DCA 1970), cert. denied, 247 So.2d 437 (Fla.1971) and Alamo Lumber Co. v. Lawyers Title Insurance Corp., 439 S.W.2d 423 (Tex.Civ.App.1969), are inapposite here.

The summary final judgment appealed from is reversed and the cause remanded for further consistent proceedings.

Reversed and remanded.

      . Gulf Insurance Company is a party to these proceedings as Alvin’s professional liability insurer.

      . Although it was not really argued to us we should perhaps note with regard to our discussion of the judgment of rescission that such judgment does not operate on principles of res judicata to bar this suit against Alvin, a fiduciary of certain parties to the rescission action. See generally 46 Am.Jur.2d Judgments § 568 (1969). A damages suit against an escrow holder for breach of his fiduciary duties is not barred by the doctrine of res judicata even though a damages suit against the other party to the escrow would be so barred. Sanwick v. Puget Sound Title Insurance Co., 70 Wash.2d 438, 423 P.2d 624 (1967).


author: HENDRY, Judge.

text:
    CAPE SABLE CORPORATION, a Florida corporation, Appellant, v. METROPOLITAN DADE COUNTY, et al., Appellees.
    No. 82-2014.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 7, 1983.
    Malcolm Lewis Kneale, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Stephen J. Keating, Asst. County Atty., for appellees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

This is an appeal from a final judgment of the Circuit Court of Dade County in favor of Metropolitan Dade County in an action by the appellant to quiet title.

On May 30, 1975, the County duly issued a tax sale certificate (Certificate No. 6055), on one of the properties at issue herein, i.e., the Everglades Heights property. On February 1,1977, appellant, Cape Sable Corporation, was assigned the certificate for value by the Tax Collector of Metropolitan Dade County. On August 21, 1979, pursuant to the statutory procedures and after the tax sale, the appropriate tax deed was issued to appellant. The deed included the following provision:

THIS DEED IS SUBJECT TO ANY RIGHT, INTEREST, PUBLIC EASEMENTS, RESTRICTIONS, COVENANTS AND GOVERNMENTAL LIENS THAT MAY SURVIVE THE ISSUANCE OF THIS TAX DEED IN ACCORDANCE WITH APPLICABLE LAW.

Section 197.271, Florida Statutes provided in pertinent part at the time of the purchase of the tax certificate that:

Except as specifically provided in this chapter, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed.

In 1979 this section was changed by adding the additional words:

except that a lien of record held by a municipal or county governmental unit, when such lien is not satisfied as of the disbursement of proceeds of sale under the provisions of s. 197.291, shall survive the issuance of a tax deed.

By law the change in the statute took effect and was to affect the assessments for 1980 and subsequent years. The liens in question were filed in 1977.

By summary judgment the trial court ruled that the tax deed was subject to the recorded liens claimed by the County. It is from this ruling that this appeal is taken.

The sole point on appeal is whether section 197.271, Florida Statutes, which was amended after a party purchased a tax certificate, affects retroactively the contractual rights of the purchaser under the statute existing at the time of the purchase of the tax certificate. It is appellant’s contention that it does not, and we agree.

The change in the law in 1979 that went into effect in 1980 does not affect appellant’s rights in the tax certificate. The appellant had acquired certain contractual rights when it purchased the certificate in 1977 and those rights could not be changed by the subsequent change in the law. As was said in State ex rel. Seville Holding Co. v. Draughon, 127 Fla. 528, 173 So. 353, 354 (1937),

[a] tax certificate is a contract between the state and the purchaser thereof who is granted by such certificate the benefit of the laws of the state in force at the time securing and defining his rights under it.

Accord Ivey v. State ex rel. Watson, 147 Fla. 635, 3 So.2d 345 (1941); Overstreet v. Gordon, 121 Fla. 180, 163 So. 477 (1935); State Adjustment Co. v. Winslow, 114 Fla. 609, 154 So. 325 (1934).

For the reasons stated, the judgment appealed is reversed and the cause is remanded with directions to enter summary judgment in favor of the appellant.

Reversed and remanded with directions.


author: PER CURIAM.

text:
    FOUNDATION WELL POINT CORPORATION OF FLORIDA and Eddie Bee Paulk, Appellants, v. Sara Lee Knight BAUMAN and Alfred Jerome Bauman, Appellees.
    No. 83-175.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 7, 1983.

      Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard Sherman, Miami, for appellants.
    Franklin D. Kreutzer and Steven R. Do-brofsky, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

We reverse the order denying the defendant’s motion to set aside a default upon a holding that: (a) an affidavit setting forth a general denial satisfies the requirement that the defendant must present a meritorious defense, North Shore Hospital, Inc. v. Barber; 143 So.2d 849 (Fla.1962); and (b) the corporation’s inadvertence in failing to deliver suit papers to counsel representing the appellant was excusable neglect where separate complaints were filed at the same time on behalf of two plaintiffs against the same defendants, arising out of the same accident and the corporate agent mistakenly thought that the papers represented multiple copies of the same complaint.


author: BERANEK, Judge. HERSEY, Judge,

text:
    Jay Stuart KOBERT, et al., Appellants/Cross Appellees, v. Robert J. ZAREM, et al., Appellees/Cross Appellants.
    No. 82-717.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Motion for Rehearing and/or to Certify Conflict Denied Oct. 3, 1983.

      J.J. Simons and Nancy Little Hoffmann, Fort Lauderdale, for appellants/cross appel-lees.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellee/cross appellant, Aetna Cas. & Surety Co.
   BERANEK, Judge.

This is an appeal by an insured contesting the amount of uninsured motorist coverage and a cross appeal by an insurer contesting the existence of any coverage. We affirm as to coverage and reverse as to the amount.

On May 1, 1979, appellant, Norman Robert, selected uninsured motorist coverage benefits of $10,000/20,000 on a policy which became effective six days later. On June 22, 1979, he added a third automobile and a fourth driver to his policy increasing his premium by $186. At this time, Aetna did not offer Mr. Robert the opportunity to increase his uninsured motorist limits to equal the $500,000 bodily injury protection which he carried. Approximately one year later, his son, Jay, was injured when the uninsured moped he was operating collided with a vehicle operated by a motorist who carried liability insurance of only $10,-000. Mr. Robert and his son sued the tort-feasor, his insurer, and Aetna. They settled with the tortfeasor and his insurer for the policy limits. The suit against Aetna proceeded on the grounds that Mr. Robert had not rejected uninsured motorists limits in an amount equal to his liability coverage. Aetna affirmatively defended claiming that the policy specifically excluded uninsured motorist coverage where an insured was operating a vehicle owned by the insured and not covered under the policy. Furthermore Aetna affirmatively alleged that Mr. Robert had executed a waiver accepting uninsured motorist benefits of $10,000/20,-000.

Two issues were tried before the trial court: (1) whether the policy afforded any underinsured motorist protection to the minor son for the injuries sustained in this accident; and (2) if any coverage was afforded, the amount of said coverage. As to the first issue, Aetna took the position that under the exclusionary provision of the policy coverage was negated. The court rejected that argument and found coverage under the Aetna policy for underinsured motorists benefits. This ruling is the basis of Aetna’s cross appeal. As to the second issue, the Roberts argued that the insurance policy was substantially and materially changed by the addition of the new vehicle and driver and that the policy in effect on the date of the accident was a “new” rather than a “renewal” policy. According to the Roberts, Aetna was required at that time to offer uninsured motorists limits in an amount equal to the bodily injury limits. The trial court disagreed and held that the policy was a “renewal” policy. Thus, the court limited coverage to the amount of $10,000 in accordance with Mr. Robert’s initial selection of uninsured motorist limits in that amount. The Roberts appeal this ruling.

Our task has been simplified by two decisions by this court. On the question of coverage, we recently issued our opinion in State Farm Mutual Automobile Insurance Company v. Lewis, 425 So.2d 603, 606 (Fla. 4th DCA 1982), where we held a similar exclusionary provision invalid:

Accepting appellant’s basic contention, uninsured motorist coverage protects the insured if he is occupying his own insured car or any car, insured or not, that is not owned by him, or if he is not occupying any car at all. Such coverage, though, does not apply while he is occupying cars owned by him, but not insured by him. In our view it does not make sense for uninsured motorist coverage to attach to the insured everywhere except when he enters his own uninsured car. Such an exception would mean that the coverage follows the insured at some times, but follows the insured automobile at other times. Just as the Supreme Court rejected such an exception in Mullís [v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971)] we reject such an exception here.

We affirm the existence of coverage.

As to the issue of amount, the case of Spaulding v. American Fire & Indemnity Company, 412 So.2d 367 (Fla. 4th DCA 1981), is directly on point. That case stands for the proposition that when an insured adds a vehicle and driver to a policy with a commensurate increase in his premium, the insurer is obligated to offer increased uninsured motorist coverage in the amount of liability coverage. Having failed to do so, there is no informed rejection and the insured’s uninsured motorist coverage limits equals his liability coverage limits. Based on this decision, we reverse and remand with directions that a judgment be entered declaring the insured’s limits of uninsured motorist coverage to be $500,000.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, J., concurs.

HERSEY, J., concurs specially with opinion.

HERSEY, Judge,

specially concurring.

Precedent compels me to concur with the result and the reasoning of the majority opinion. Were we blazing a new trail with the benefit of hindsight I would vigorously support the position that the legislature always intended what the statute now provides; that is, uninsured motorist coverage need not be offered an insured except (1) upon an initial application for liability insurance coverage and again (2) at the time of annual renewal thereof. § 627.727, Fla. Stat. (1981). Such coverage need not be offered AGAIN in connection with a policy that “renews, extends, changes, supersedes, or replaces an existing policy issued to him by the same insurer” where coverage has previously been offered and either accepted, limited or rejected. The present rules encourage fraud and lest we lose sight of reality: it is a simple fact that insurance companies do not lose money or pay taxes— stockholders and/or policyholders do. I specially concur.

      . We do not decide whether the moped was a motor vehicle under the policy since we have previously invalidated the exclusion in question. See State Farm Mutual Automobile Insurance Company v. Lewis, 425 So.2d 603 (Fla. 4th DCA 1982).


author: SCHEB, Acting Chief Judge.

text:
    Gregory ISOM, Appellant, v. The CIRCUIT COURT OF the TENTH JUDICIAL CIRCUIT, Appellee.
    No. 82-2714.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1983.

      Gregory K. Isom, pro se.
    No appearance for Appellee.
   SCHEB, Acting Chief Judge.

Appellant, Gregory Isom, appeals from the circuit court’s final order dismissing his petition for change of name. We reverse.

While an inmate at Avon Park Correctional Institution, appellant petitioned the court to change his name from Gregory Keith Isom to Talib Muhammad Abdullah. Appellant’s petition was sworn to and facially complied with all of the requirements of section 68.07, Florida Statutes (1981).

In dismissing appellant’s petition the court stated that “to permit the change of name at this time would obviously create problems for the Department of Corrections and conceal from law enforcement officers his past record.” Appellant filed a motion for rehearing stating, among other things, that:

[T]aking on the muslim name of Talib Muhammad Abdullah would not imply that all the records within the Department of Corrections will have to be changed. In fact, petitioner will not force officials of the Department of Corrections to alter the records by placing his new name on them.

In an amicus curiae brief requested by this court, the Department of Corrections takes the position that the decision to grant a change of name is a matter between the petitioner and the court so long as the court does not issue an order to the Department. Should the court consider issuing an order affecting the Department’s procedures, the Department adds, it would request a hearing to explain in detail the administrative burdens and costs in changing some, or all, of its records.

At common law a person could adopt another name at will, absent a fraudulent, criminal, or wrongful purpose. Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (1978). The codification of this common law right was intended primarily to aid the individual’s right to a name change at will, giving the advantage of a public record to document the change. 57 Am.Jur,2d Name § 11; In re Application of Knight, 36 Colo. App. 187, 537 P.2d 1085 (1975); 79 A.L.R.3d 559.

In keeping with the common law tradition, in Florida a person may adopt a name other than his or her own as long as no fraudulent or wrongful purposes are involved. See Adoption of Long, 56 So.2d 450 (Fla.1952). However, adherence to the statutory requirements affords protection to both the applicant and the general public. Therefore, a petition under this statute should generally be granted unless sought for a wrongful or fraudulent purpose. In re Application of Knight; 65 C.J.S. Names § 11; see also In re Hooper, 436 So.2d 401 (Fla. 2d DCA 1983); § 68.07(j), Fla.Stat. (1981).

Here, appellant’s petition states that he desires to change his name only for religious purposes, and that he has no intention to further an ulterior or illegal purpose. The trial court’s conclusion that the granting of petitioner’s name change would create problems for the Department of Corrections and law enforcement officers is not supported by the record. See In re Petition of Knight; Petition of Alexander, 260 Pa. Super. 371, 394 A.2d 597 (1978).

■Therefore, in light of appellant’s facially sufficient petition for name change and the lack of any evidence to support any ulterior or illegal purpose, the trial court erred in summarily dismissing appellant’s petition for a change of name.

Accordingly, we reinstate appellant’s petition and remand for further proceedings consistent with this opinion.

RYDER and DANAHY, JJ., Concur.

      . The Department points out that if an inmate has a grievance concerning the Department’s actions in response to a name change, the inmate may file a grievance pursuant to Rule 33-3.07, Florida Administrative Code.


author: SHIVERS, Judge.

text:
    STATE of Florida, Appellant, v. Clyde MILLER, Appellee.
    No. AQ-243.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1983.
    Rehearing Denied Sept. 30, 1983.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellant.
    David A. Davis, Asst. Public Defender, Tallahassee, for appellee.
   SHIVERS, Judge.

The State appeals the order of the trial court granting Miller’s motion for discharge under the speedy trial rule, Fla.R.Crim.P. 3.191. Appellant argues that the speedy trial time period did not begin to run merely because appellee, who was already in custody due to an unrelated offense, was given Miranda warnings and questioned about the alleged crime. We agree, reverse and remand.

Miller was arrested during a burglary in process at the home of Mrs. Odham on March 25, 1983. A search of appellee’s vehicle on March 31, 1983, uncovered several articles of jewelry. Subsequent investigation revealed that some of the articles of jewelry found in appellee’s car were the property of Mr. and Mrs. Willoughby, who were the alleged victims of a burglary which occurred February 23, 1982.

On April 12,1982, while appellee was still in jail on the Odham charge, Investigator Revell had appellee brought to an interrogation facility at the Leon County Jail. After advising appellee of his constitutional rights and securing a written waiver of Miranda rights, Revell questioned appellee about the Willoughby burglary. On July 1, 1982, Investigator Revell signed a complaint against appellee, who was still in jail on the Odham burglary charge, for grand theft of the Willoughby property. An information charging grand theft in the Willoughby case was filed July 2, 1982.

On December 28, 1982, the trial court granted appellee’s motion for discharge based on the speedy trial rule. The court found that the speedy trial time on the Willoughby offense began to run on April 12,1982, the date appellee was given Miranda warnings and questioned about the Wil-loughby burglary. The trial court acknowledged that speedy trial time would not begin to run on April 12, 1982, under the holdings of State v. Breedlove, 400 So.2d 468 (Fla. 4th DCA 1981) and Giglio v. Kaplan, 392 So.2d 1004 (Fla. 4th DCA 1981). The trial court felt, however, that the decision it reached was mandated by the decisions of this court in Johnson v. State, 409 So.2d 152 (Fla. 1st DCA), rev. denied, 417 So.2d 331 (Fla.1982); Wiggins v. State, 384 So.2d 43 (Fla. 1st DCA 1980); and State v. N.B., 360 So.2d 162 (Fla. 1st DCA 1978), cert. denied, 383 So.2d 1199 (Fla.1980).

The cases of Johnson and Wiggins are not closely analogous to the case at bar. Both Johnson and Wiggins involved situations where the defendant was not already in custody on an unrelated charge at the time he was questioned about the relevant charge. Although the facts of State v. N.B. are somewhat analogous to the situation sub judice, that case was decided prior to the 1980 amendment to the speedy trial rule.

Under the old rule, the time period commenced when a person was “taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” As amended in 1980, the time period commences when a person is “taken into custody as defined under (a)(4).” Fla. R.Crim.P. 3.191(a)(4) states:

(a)(4). Custody. For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.

In the instant case, appellee was not arrested on April 12, 1982, but was merely given Miranda warnings and interrogated. This does not commence the speedy trial time period under the new rule. See Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982).

Accordingly, the order of the trial court is REVERSED, and this cause is REMANDED for further proceedings.

ROBERT P. SMITH, Jr. and NIMMONS, JJ., concur.


author: SHARP, Judge.

text:
    .Audrey GEIGER, Appellant, v. William GEIGER, Appellee.
    No. 82-1735.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.
    Rehearing Denied Sept. 19, 1983.
    Michael R. Walsh, Orlando, for appellant.

      Charles R. Stepter, Jr., of Zinkow, Kosto & Rotella, P.A., Orlando, for appellee.
   SHARP, Judge.

Audrey Geiger appeals from a final order modifying the original decree in a dissolution proceeding. We affirm the trial court’s final order because the trial court did not abuse its discretion in its award of permanent periodic alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Audrey, an English citizen, and William Geiger, appellee, met in England while William was in the armed services. The parties married in England in 1945, and subsequently moved to the United States. The couple separated in 1963, and their marriage was dissolved in 1966. The final decree of dissolution was entered pursuant to a written agreement by the parties that William would pay alimony in the amount of forty dollars ($40.00) per week and child support for the parties’ two children, ages 13 and 18, in the amount of forty dollars ($40.00) per week.

At the time of the original dissolution proceedings, William worked as a construction supervisor and estimator, and his weekly net income totaled approximately two hundred fifty dollars ($250.00). Although William kept his automobile, he gave the remaining marital assets, which included a bank account worth a few thousand dollars and the household furniture, to Audrey. William remarried in 1967. William and his second wife have worked together during their marriage to accumulate various assets. They have several substantial investments in real estate partnerships that were made possible by his wife’s inheritance and several loans.

Audrey had some work experience, but her only earned income in the recent past has been earned by babysitting on Sunday mornings. She has had problems with varicose veins for a number of years. Except for the increase in the cost of living since 1966, Audrey’s financial circumstances have not changed in any significant way since the dissolution. At the time of the modification proceeding, Audrey had been receiving approximately one hundred seventy-two dollars ($172.00) per month in alimony for one year. Throughout the years, William paid the total annual amount of alimony owed at the beginning of the year. After the youngest child turned 18 years of age, William sent an additional check to Audrey during the middle of the year. These additional checks, however, stopped in 1981.

Audrey filed a petition for modification of the dissolution decree. William filed a counter-complaint. The final order of the trial court denied William’s counter-complaint and granted Audrey’s petition to the extent that William would pay the reasonable and necessary medical expenses Audrey would incur in the treatment of her varicose veins, and the amount of permanent periodic alimony was increased as follows:

A. Beginning Friday, November 26, 1982 for a period of 8 months or until the Former Wife remarries or dies, whichever sooner occurs, the Former Husband shall pay to the Former Wife permanent periodic alimony in the amount of $100.00 per week. The Former Husband has pre-paid his permanent periodic alimony obligation for the year 1982; therefore, these payments shall be only $60.00 per week during 1982. Unless the Former Wife dies or remarries sooner, the last payment pursuant to this subparagraph shall be due on Friday, July 22, 1983.
B. Beginning August 1, 1983 until the Former Wife dies or remarries, the Former Husband shall pay the Former Wife permanent periodic alimony in the amount of $375.00 per month.

We think the amount awarded for permanent periodic alimony is low in this case. However, it is not so low as to constitute an abuse of discretion, and we must therefore affirm it. Canakaris. Although we have previously disapproved awards that reduce alimony awards in the future, here, the reduction can be justified on the ground that Audrey’s health problems should improve once she has had the varicose vein condition remedied. Rose v. Rose, 426 So.2d 975 (Fla. 5th DCA 1982); see also Cooley v. Cooley, 409 So.2d 533 (Fla. 4th DCA 1982); DeVito v. DeVito, 393 So.2d 1189 (Fla. 3d DCA 1981); Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980). Finally, we grant Audrey’s motion for attorney’s fees on appeal, and remand this issue to the trial court to determine the appropriate amount, based on her needs and William’s ability to pay. Thornton v. Thornton, 433 So.2d 682 (Fla. 5th DCA, 1982). Accordingly, the judgment is

AFFIRMED; and this case is REMANDED.

DAUKSCH and COWART, JJ., concur.

      . E.g., Rion v. Rion, 421 So.2d 541 (Fla. 5th DCA 1982); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980).


text:
    Francisco Martinez FRAGA, Appellant, v. STATE of Florida, Appellee.
    No. 83-314.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

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


author: NIMMONS, Judge. ZEHMER, Judge,

text:
    Jack L. McLEAN, Jr., Appellant, v. Carol BELLAMY, James R. Ford, Hurley W. Rudd, Kent Springgs, and Sam Teague, as and constituting the Canvassing Board of Tallahassee, Florida, and W. Judd Chapman, Appellees.
    Nos. AN-219, AS-53.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1983.

      Howell L. Ferguson of Ferguson & She-rill 'and Roosevelt Randolph of Knowles, Randolph & Cooper, Tallahassee, for appellant.

      Bryan W. Henry, James R. English, and Martin W. Proctor of Henry, Buchanan, Mick & English, Tallahassee, for appellees Bellamy, et al; and Roy T. Rhodes and William L. Grossenbacher of Horne, Rhodes, Jaffry & Horne, Tallahassee, for appellee Chapman.
    P. Kevin Davey of Douglass, Davey, Cooper & Coppins, Tallahassee, for appel-lees/intervenors Dasher.
   NIMMONS, Judge.

This is an election contest involving a seat on the Tallahassee City Commission, appellee Judd Chapman having been declared the winner in the February 23, 1982, election over appellant Jack L. McLean, Jr. McLean appeals from an adverse summary judgment. Although McLean received 116 machine ballots more than Chapman (7,932 to 7,816), Chapman received 205 absentee ballots more than McLean (281 to 76). This contest involves the validity of 293 of the absentee ballots. Although the City Commission, sitting as the duly constituted canvassing board, accepted and counted 357 absentee ballots, 64 ballots were not challenged by McLean.

McLean filed suit in the Circuit Court in Leon County seeking to have the court declare him winner on the basis of the machine votes only. McLean contended that all of the absentee ballots must be thrown out because at least 90 of the ballots (90 being the numerical margin of Chapman’s victory) were invalid. The general rule is that where the number of invalid absentee ballots is more than enough to change the result of the election, the machine votes shall solely determine the election results. Boardman v. Esteva, 323 So.2d 259, 268 (Fla.1976).

Several state election code requirements were alleged to have been violated with respect to the handling of absentee ballots by city election officials. The various categories of allegedly tainted absentee ballots may be summarized as follows: (1) Unrequested Ballots — 81 absentee ballots were cast in the runoff election which had been automatically (without request) sent to those electors who had voted absentee in the primary election; there were 89 persons who had received absentee ballots for the primary but who did not cast such ballots and were, therefore, not sent an absentee ballot for the runoff election; (2) Improperly Witnessed Ballots — There were 17 absentee ballots in which one of the two witnesses who signed the ballot envelope was not physically present when the elector signed such envelope; (3) Non-conforming Voter Certification on Envelopes — In each of the 293 contested absentee ballots, the envelope containing the ballot failed to specify the various statutory grounds entitling an elector to vote absentee; (4) Ballot Distribution to Unauthorized Persons — Approximately 32 absentee ballot forms were released by election officials to third persons requesting ballots for electors without written authorization from the elector. •

As in previous years, the office of the City Auditor-Clerk was responsible for the city election process in 1982. For the previous thirteen years, Mr. Wilbur Gramling of the Auditor-Clerk’s Office had performed the actual supervision of city elections, including the handling of absentee ballots. Due to his retirement in 1981, Mr. Herb Seckel, the incumbent Auditor-Clerk, undertook for the first time the direct supervision of the 1982 city elections. In view of his relative inexperience in elections supervision, Seckel sought advice from time to time from others, including Leon County Supervisor of Elections John Sullivan.

Before treating each of the above categories of irregularities, we shall outline those legal principles applicable to a case such as this. We do so by quoting at length from the largely controlling opinion of Justice Adkins in Boardman v. Esteva, supra:

At issue is whether the absentee voting law requires absolute strict compliance with all its. provisions, or whether substantial compliance is sufficient to give validity to the ballot.
We first take note that the real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people.... By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right. [323 So.2d at 262, 263]
Assuming that the absentee ballots counted in the election were cast by qualified, registered electors, who were otherwise entitled to vote absentee, notwithstanding the alleged defects, a majority of the voters in the Second District preferred Mr. Boardman over Mr. Esteva in October, 1973. This must not be overlooked. If we are to countenance a different result, one contrary to the apparent will of the people, then we must do so on the basis that the sanctity of the ballot and the integrity of the election were not maintained, and not merely on the theory that the absentee ballots cast were in technical violation of the law. [323 So.2d at 263]
* ⅜ ⅜ * ⅜ Hs
[Realizing as we do that strict compliance has been required by this Court in other cases, we now recede from the rule and hereby reaffirm the rule adopted in [State ex rel. Hutchins v. Tucker, 106 Fla. 905, 143 So. 754 (1932) ] to the effect that substantial compliance with the absentee voting laws is all that is required to give legality to the ballot. [323 So.2d at 264]
⅜ * * * * *
In developing a rule regarding how far irregularities in absentee ballots will affect the result of the election, a fundamental inquiry should be whether or not the irregularity complained of has prevented a full, fair and free expression of the public will. Unless the absentee voting laws which have been violated in the casting of the vote expressly declare that the particular act is essential to the validity of the ballot, or that its omission will cause the ballot not to be counted, the statute should be treated as directory, not mandatory, provided such irregularity is not calculated to affect the integrity of the ballot or election, [emphasis in original] [323 So.2d at 265]
¾: sfc sfc * ⅜ ⅛
Absolute strict compliance, even with mandatory provisions in every case, however, could reach absurd proportions. [323 So.2d at 265]
* ⅝: ⅝! ⅜ * sfc
In expanding the privilege of voting to those citizens who may not be able to vote in person on election day, the Florida Legislature has prescribed statutory requirements which are intended to insure that those who vote are qualified and registered to vote and that they do so in a proper manner. There is no magic in the statutory requirements. If they are complied with to the extent that the duly responsible election officials can ascertain that the electors whose votes are being canvassed are qualified and registered to vote, and that they do so in a proper manner, then who can be heard to complain that the statute has not been literally and absolutely complied with? Strict compliance is not some sacred formula nothing short of which can guarantee the purity of the ballot. [323 So.2d at 267]
* % * * * *
When the voters have done all that the statute has required them to do, they will not be disfranchised solely on the basis of the failure of the election officials to observe directory statutory instructions. [323 So.2d at 268]
In summary, we hold that the primary consideration in an election contest is whether the will of the people has been effected. In determining the effect of irregularities on the validity of absentee ballots cast, the following factors shall be considered:
(a) The presence or absence of fraud, gross negligence, or intentional wrongdoing;
(b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and
(c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the ballot and the integrity of the election.
The underlying concern of the election officials in making the initial determination as to the validity of the absentee ballots is whether they were cast by qualified, registered voters, who were entitled to vote absentee and who did so in a proper manner. [323 So.2d at 269]

After almost one year of the pendency of this suit in the trial court and exhaustive utilization of the available tools for pre-trial discovery, appellant was able to turn up only ten absentee ballots which should not have been counted: three ballots of electors who were not eligible to vote absentee and seven ballots of electors who received unlawful assistance.

We next address the various categories of alleged irregularities upon which appellant relies for his contention that all absentee ballots should be disregarded and that he be declared the winner based upon the machine ballots.

UNREQUESTED BALLOTS

Prior to the February 9, 1982, primary, City Auditor-Clerk Seckel obtained from County Supervisor Sullivan’s office a list of electors who had submitted requests to vote absentee. Seckel’s office then mailed out and issued absentee ballots for the primary to those on that list plus others who had submitted absentee requests to the City. After the primary, Seckel did not know whether the City should redistribute absentee ballots to all those to whom his office had sent out absentee ballots for the primary or to just those on the absentee list who had voted absentee in the primary. Seckel consulted with Sullivan. Sullivan testified that he thought that Seckel said he was going to mail ballots to everyone on the list regardless of whether they voted absentee in the primary. Sullivan suggested to Seckel that he might want to mail them only to those who voted in the primary. Seckel did not recall Sullivan making any definite recommendation in that respect. In any event, it was determined to mail the absentee ballots for the runoff only to those who had voted absentee in the primary. Of course, we are speaking here only of the absentee ballots which were “automatically” mailed out. In addition, there were numerous other absentee ballots for the runoff issued to those specifically requesting to vote absentee for the runoff.

McLean contends that the unrequested issuance of absentee ballots for the runoff to electors who had voted absentee in the primary was in contravention of the provisions of Section 101.62, Florida Statutes (1981), which basically contemplate the submission of a request by the elector for an absentee ballot before the election officials are authorized to issue such ballot. McLean points to the fact that the appellees conceded that 81 of those who received such unsolicited ballots voted absentee in the runoff. McLean claims this adversely affected him because the absentee voters in the primary preferred Chapman 153 votes .to 40 votes for McLean. McLean also points to the fact that, as the parties stipulated, 89 persons who were sent an absentee ballot for the primary did not vote in the primary, were not sent absentee ballots for the runoff and did not vote in the runoff either by absentee ballot or by machine.

A total of 521 absentee ballots were issued for the runoff of which 366 were cast. The canvassing board rejected eight ballots and one ballot did not reflect a vote for either candidate, thus leaving a total of 357 absentee ballots accepted and counted. The breakdown of the absentee votes in the runoff was 281 for Chapman and 76 for McLean.

Section 101.62 does indeed contemplate issuance of an absentee ballot only upon the request of the elector. Nevertheless, appellees assert that the primary and the runoff should be regarded as one election process and that no additional or special request for a runoff ballot is necessary for those to whom the officials properly distributed absentee ballots for the primary. The trial judge agreed with appellees’ position in his judgment stating that he “could find no authority to suggest that when a ‘run-off’ election becomes necessary it is to be considered a separate election requiring an application or new indication of a desire to vote absentee.” Appellees’ assertion that a request for a primary absentee ballot should be regarded as a request for a runoff ballot because there is actually only one election leaves the appellees traveling down a dead end street inasmuch as that theory fails to justify the election officials’ failure to send runoff absentee ballots to the 89 who requested and received primary absentee ballots but who failed to cast their ballots in the primary. We need not reach the issue as to whether the trial court correctly ruled that the primary and runoff should be regarded as one election because even viewed as two elections as appellant contends, the failure to conform to the requirements of Section 101.62 are not the kind of irregularities as should result in the court’s invalidation of the subject absentee ballots.

Central to the resolution of this issue is the determination of whether the Section 101.62 statutory criteria for issuance of absentee ballots are directory or mandatory. Our examination of Section 101.62 leads us to conclude that its provisions are directory. We are unable to glean from the provisions of that section a legislative intent that the failure to follow the letter of its provisions should result in the invalidation of absentee ballots cast by qualified electors who are also qualified to vote absentee. In 1977, the Legislature, Chapter 77-175, s. 21, Laws of Florida, relaxed some of the former rigidities of Section 101.62 regarding requests for absentee ballots. Formerly, a written application for an absentee ballot on an official application form was required. The statute no longer requires a written application. In fact, an elector is entitled to receive by mail an absentee ballot which he may request by telephone.

In applying the heretofore quoted principles enunciated by the Florida Supreme Court in Boardman v. Esteva, supra, we find no declaration in Section 101.62, implied or explicit, that strict compliance with its provisions is essential to the validity of the ballot or that the failure to strictly follow any of its provisions will cause the ballot not to be counted.

If it is assumed that it was proper for the election officials to mail absentee ballots to those who had requested them for the primary, what about the 89 electors, McLean asks, who received a ballot for the primary but did not receive one for the runoff because they did not vote in the primary? This is a legitimate and troublesome question. We have found no authority which suggests that in such a situation, the proper resolution would be to throw out the absentee ballots cast by qualified electors because of the highly speculative effect of certain electors not having received absentee ballots. Moreover, it is not insignificant that we are dealing here with a group of 89 voters who did not have sufficient interest to vote in the primary, either by casting their absentee ballot or visiting the polls on the day of the primary. Further, it cannot be said that these 89 persons were denied their right to vote. There is no indication that any of them contacted the election office or otherwise complained of not having received a runoff absentee ballot. The inference which McLean suggests that the City’s failure to mail absentee ballots to the 89 primary nonvoters somehow skewed the runoff absentee balloting in Chapman’s favor is highly speculative and conjectural.

A related point, though not urged at argument, was appellant’s complaint regarding the failure to send out, for either the primary or runoff, absentee ballots to overseas military personnel. However, there was no allegation or evidence of the number of such personnel who may have requested to vote absentee and, in the absence thereof, there could be no finding that there was a sufficient number to change the election result. See Potter v. Bolden, 416 So.2d 6 (Fla. 1st DCA 1982).

IMPROPERLY WITNESSED BALLOTS

McLean sought to invalidate the absentee ballots of 17 persons who were patients at the Tallahassee Regional Medical Center for the reason that only one of the two witnesses who signed the ballot envelope actually saw the elector sign the envelope.

Celeste Hertz, an employee of the hospital, was assigned by the hospital to deliver the absentee election materials to each elector confined to the hospital. Ms. Hertz personally saw each patient mark the ballot, seal the envelope and affix his signature to. the mailing envelope. She then signed as a witness and delivered the envelopes to the office of Betty Taylor, the secretary to the director of the hospital. Ms. Taylor signed the envelopes as the second witness. Ms. Taylor testified that John Bramlett of the Auditor-Clerk’s Office told her that one witness was sufficient and that she could sign as a second witness “for consistency.” In his deposition, Mr. Bram-lett stated that he told Ms. Taylor that two witnesses were necessary. Ms. Taylor stated that her purpose in signing the envelope was actually to verify that the elector was a patient in the hospital.

The pertinent statutory provisions do contemplate two witnesses. Section 101.54, Florida Statutes (1981), contains a form of certificate and provides that the certificate utilized “shall be substantially in ... [that] form....” In the statutory form after the place for the voter’s signature, the following appears: “Two Witnesses Eighteen (18) Years or Older” followed by places for two witness’ signatures. Section 101.64(2) also provides: “The absent elector and the attesting witnesses shall execute the form on the envelope.” Also, Section 101.65, Florida Statutes (1981), provides for an instruction sheet for absentee electors which is required to be substantially in the form set forth in that statute. With respect to witnesses, the form states: “Any two persons 18 years of age or older may serve as attesting witnesses.”

Thus, it is apparent that the pertinent statutes call for two witnesses. Does that mean that an absentee ballot in which the second witness did not actually see the elector sign the envelope is void? We think not. No one questions that the 17 hospital patients were qualified electors and entitled to vote absentee. Rejection of the attack on these 17 ballots does not prevent a full, fair and free expression of the will of the people. See Boardman v. Esteva, supra, at page 265. The subject statutes do not declare that the ballot will be invalid if it appears that one of the attesting witnesses did not actually see the elector sign the envelope. The witness requirements should, therefore, be treated as directory, not mandatory, provided that the fact that only one of the two attesting witnesses actually observed the elector’s act of signing the envelope is not calculated to affect the integrity of the ballot or election. Clearly, such omission did not have such an effect on these ballots or the election.

Our conclusion regarding this one-witness deficiency might very well be different under pre-Boardman v. Esteva law. Indeed, but for the striking departure from prior law announced in Boardman, we would be persuaded by such cases as Parra v. Harvey, 89 So.2d 870 (Fla.1956), cited by appellant, to apply a strict construction of these statutory requirements and invalidate these ballots.

McLean asserts that the witness irregularity regarding these 17 ballots should be viewed more severely by reason of the fact that: (1) Ms. Taylor, who signed as the second witness on these ballots was a contributor to Chapman’s campaign, and (2) Ms. Taylor testified that Mr. Bramlett told her that one witness was sufficient whereas Bramlett testified that he told her that two witnesses were required. The fact that Ms. Taylor may have been very much a partisan in this election campaign avails McLean nothing with respect to the issue regarding these ballots. There has been no suggestion that her partisanship had any effect on the voting by these 17 electors. She apparently had no communication with any of them prior to their recording their votes on the ballots and she had no knowledge of the candidate favored by these electors when she subsequently signed the sealed envelopes as the second witness. As far as the above-referred conflicting testimony between Bramlett and Taylor, it makes no difference for purposes of our inquiry as to whether Bramlett told Taylor that one or two witnesses were required. We have assumed that the requirement is two and have considered the attack on these 17 ballots in the light of that assumption. Moreover, even if it is assumed that either of them deliberately lied (as opposed to an honest difference in recollection) about what was said in their conversation, the 17 hospital patients were no less qualified to vote absentee and they should not be disfranchised because of any misinformation conveyed by Bramlett to Taylor.

Appellant points to the fact that the canvassing board threw out one absentee ballot because the mailing envelope bore the signature of only one instead of two attesting witnesses. Appellant says that if it was proper for the canvassing board to regard that ballot as invalid, then those which, as later was shown, bore signatures of two witnesses, one of whom did not actually see the elector sign the ballot, should also be regarded as invalid. Appellant misconceives the proper role of the canvassing board. It was not improper for the board to invalidate the absentee ballot which bore only one signature. It was also proper for the board to accept at face value those ballots which bore two signatures. As the Supreme Court stated in Boardman:

[A]s a general rule elected officials are presumed to perform their duties in a proper and lawful manner in the absence of a sufficient showing to the contrary ... and also that there is a presumption that returns certified by election officials are presumed to be correct. [323 So.2d at 268]
The canvassing of returns, including absentee ballots, is vested in canvassing boards in the respective counties who make judgments on the validity of the ballots. Those judgments are entitled to be regarded by the courts as presumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is accorded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law. [323 So.2d at 268, f.n. 5]

See also Anderson v. Canvassing and Election Board, 399 So.2d 1021 (Fla. 1st DCA 1981).

NON-CONFORMING VOTER CERTIFICATION ON ENVELOPES

Appellant claims that each of the 293 contested absentee ballots were invalid because the outer envelope which was signed by the elector and attesting witnesses did not recite the statutory reasons for which an elector is entitled to vote absentee.

In providing for the furnishing to the absentee elector the necessary materials to vote absentee, Section 101.64, Florida Statutes (1981), requires the election supervisor to enclose a mailing envelope bearing “a certificate which shall be substantially in the following form.” The form provided for is, in pertinent part, as follows:

Note: Please Read Instructions Carefully Before Marking Ballot and Completing Voter’s Certificate.
VOTER’S CERTIFICATE
YOU COME UNDER THE PURVIEW OF THE DEFINITION OF “ABSEN- . TEE ELECTOR” IF YOU:
1. Are unable without the assistance of another to attend the polls.

[The remaining statutory grounds are set forth in five additional paragraphs.]

I HEREBY CERTIFY THAT I AM VOTING ABSENTEE FOR ONE OF THE REASONS STATED ABOVE AND THAT I AM DULY QUALIFIED AND REGISTERED AS A (party) ELECTOR OF THE (precinct) OF (insert appropriate county) COUNTY AND THE STATE OF FLORIDA
(Signature of Voter)
VOTER MUST SIGN ABOVE

The envelopes used by the City election officials included a certificate which certified that the voter was entitled to vote as an absentee elector but did not specify the various grounds for which an elector may vote absentee. Appellant says that the absentee ballots are, therefore, invalid and must be disregarded. A review of the recent legislative history relating to the above provisions is useful in resolving the question. It will be seen that there has been a gradual relaxation of the formalities required of electors in voting absentee.

• Section 101.62, Florida Statutes (1971), required an elector to complete a written application in order to be issued an absentee ballot. The application was to be in substantially the form as set out in that statute. The form called for’ the elector to “check the appropriate reason” for which he qualified as an “absent elector” which reasons were reproduced in the form. Section 101.64, Florida Statutes (1971), provided for a similar form to be included in an “elector’s certificate” form on the outer envelope containing the first envelope with the marked ballot. In other words, Section 101.64 (1971), called for the elector to again certify as to the specific reason for which he was authorized to vote absentee.

In 1973, the Legislature amended Section 101.64, Chapter 73-157, Laws of Florida, eliminating from the elector’s certificate the enumeration of reasons authorizing absentee voting and instead substituting the following:

“[I] am entitled to vote an absentee ballot for the reason stated in the application for an absentee ballot which I have signed.”

Section 101.62 still provided for a written absentee ballot application requiring specification by the elector of the specific reason authorizing his absentee vote.

Section 101.62 was amended in 1977, Chapter 77-175, Laws of Florida, eliminating the requirement of a written application in order for an elector to receive an absentee ballot and eliminating any requirement that the elector certify to the reason for voting absentee as a prerequisite for receiving an absentee ballot. However, Section 101.64 was amended by the same law by again modifying the elector’s certificate form appearing on the outer envelope by the inclusion of the various reasons for which an elector may vote absentee and further providing:

“[I] am entitled to vote an absentee ballot for the following reason: Check Only One”

In 1981, the Legislature again amended the elector’s certificate form in Section 101.64 by eliminating the requirement that the elector certify as to which of the reasons listed in the form entitled him to vote absentee. Instead, as indicated previously in this opinion, the 1981 version of the Section 101.64 form (which was applicable to the subject 1982 City election) provided for a certification in which the elector certifies that “I am voting absentee for one of the reasons stated above.” And so no longer was the elector required at any point in the process (whether in an application or request for ballot, elector certification accompanying the marked ballot, or otherwise) to specify the ground entitling the elector to vote absentee.

Of significance to this discussion are other statutory changes which paralleled the above changes. Prior to 1975, there was a statutory provision, Section 101.66, Florida Statutes (1973) which specifically charged the absentee elector with certain responsibilities in the manner in which the absentee ballot was to be completed including following the Section 101.65 instructions enclosed with the ballot and marking the ballot in secret. Section 101.66 was repealed by Chapter 75-174, Laws of Florida. No statute comparable to Section 101.66 was in effect at the time of the subject 1982 election. And so, although the statutes in existence in 1982 (Sections 101.64 and 101.65) did provide for the election official to send to the absentee elector instructions for completing the absentee ballot and an elector’s certificate in substantially the form set out in the statutes, there was no longer the specific legislative mandate charging the elector with the responsibility of complying with certain instructions.

Also, prior to 1977, Section 101.67(3) provided in part that an “absentee ballot shall be counted only where the application for absent elector’s ballot is properly executed .... ” That subsection was repealed by Chapter 77-175. Presumably, of course, it was repealed because of other changes in 1977 eliminating the previous requirement of written applications for absentee ballots. However, we think that this legislative action in 1977 is significant when it is realized that the Legislature has not seen fit to specifically provide for the invalidation of absentee ballots in which the voter’s certification may vary from that provided for in Section 101.64.

Neither the 1981 version of Section 101.64 (the version applicable in the instant case) nor any other applicable statutory provision indicates a legislative intent that the inclusion of the specific grounds for voting absentee on the voter’s certification is essential to the validity of the ballot or that omission thereof will cause the ballot not to be counted. Indeed, the legislative history outlined above suggests the contrary.

The essence of the 1981 version of Section 101.64 is the requirement that the elector certify that he is qualified to vote absentee under Florida law, not that the various criteria of absentee voting be reproduced in any particular place or form. If the voter, at the time he marks his absentee ballot, can certify generally, as contemplated by Section 101.64, that he is a qualified elector, we do not see how the failure to include on the certification forms the various grounds for voting absentee can be regarded as kind of irregularity rendering invalid a ballot cast by an admittedly qualified elector. It cannot be fairly said that such irregularity is calculated to affect the integrity of the ballot or election.

BALLOT DISTRIBUTION TO UNAUTHORIZED PERSONS

The evidence showed that 32 absentee ballot forms for the runoff were released by election officials to third persons requesting ballots for electors without written authorization from the elector.

As previously noted, Section 101.62(4) (1981) provides that the election supervisor shall deliver or mail an absentee ballot to each elector for whom a request has been made. That section further provides, however, that the elector “may designate in writing a person to pick up the ballot for him” in which case the supervisor “may give the ballot to such designee for delivery to the elector.” It appears that the 32 absentee ballots were released to third persons without written authorization from the elector because the city election officials were unaware of the above provisions of Section 101.62(4).

It is not contended that the lack of written authorization for any of the above referred absentee ballots resulted in votes being cast by anyone not qualified as an absentee elector. We agree with the trial court that the statute’s provisions for written authorization is directory rather than mandatory. The applicable voting laws neither declare that the written authorization is essential to the validity of the ballot nor indicates that failure to require written authorization will cause the ballot not to be counted. As was stated in Cam v. Moore, 76 So. 337, 340 (Fla.1917):

A voter may sacrifice his right to have his ballot accepted and counted for wrongful or illegal acts on his part; but he is not to be deprived of his constitutional rights by the neglect or willful wrong of a public officer charged with the duty of supplying him with the means or the opportuni-
ty of expressing his choice. To deprive an innocent person of his rights because some public official fails to do his duty is abhorrent to our sense of right and justice, and we will not give to a statute a construction which will produce that result.

See also Boardman at 267.

Our opinion of the directory quality of the above provision for written authorization is further bolstered by the fact that the legislature has, through Section 101.62, authorized the supervisor of elections to mail an absentee ballot to an elector upon telephone request without any written application or authorization therefor. Although the statute presumably contemplates that the person making the telephone request be the elector himself, there would be no practical way for an election official to determine the identity of the person who was requesting the ballot. It would, therefore, be impossible to avoid an “unauthorized” person from telephonically causing the elections office to distribute by mail an absentee ballot to an elector.

Appellant contends, however, that the failure to require written authorizations for distribution of these 32 absentee ballots should be viewed differently by reason of the election officials’ alleged discriminatory manner of enforcing the written authorization provision. On the day of the primary, election officials had become concerned over the number of persons coming into their office on primary day requesting multiple absentee ballots and Seckel informed appellant that no one could pick up an absentee ballot for a voter unless there was written authorization from the voter. Appellant assumed that this requirement of written authorization would be applied to the runoff election as well.

However, after the primary, the elections office reverted to its previous practice of not requiring written authorizations as a condition to the issuance of absentee ballots. Appellant claims that he was prejudiced by reason of the issuance of the 32 absentee ballots without written authorization and points to the fact that two such ballots were issued to candidate Chapman’s son. With the exception of these two ballots, there is no indication, after exhaustive discovery, that any of the other 30 ballots were distributed to Chapman partisans. It cannot be fairly said that the issuance of those absentee ballots without written authorization was calculated to affect the integrity of the ballot or election.

FRAUD, INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE

The presence or absence of fraud, intentional wrongdoing or gross negligence are factors to be considered in determining the legal effect of irregularities in the administration of the voting laws. Boardman at p. 269. Appellant alleged that the various irregularities were a result of intentional wrongdoing or gross negligence.

In addition to the facts already alluded to in this opinion, appellant relies upon certain additional facts to support his assertion that the election officials set out deliberately to skew the election in favor of Chapman. Appellant relies heavily upon Seckel’s conflicting recollections as to whether absentee ballots for the runoff had been automatically mailed to all those who had received primary absentee ballots or just those who had voted absentee in the primary. During the canvassing of the voting by the canvassing board, Seckel, in response to a question by a canvassing board member, incorrectly stated that all of the individuals who had requested an absentee ballot for the primary received one for the runoff. Subsequently, during his deposition, Seckel stated that he was almost positive that the personnel in his office had informed him that the ballots went out to everyone who had requested a ballot for the primary but he did not recall telling the canvassing board that the ballots went out to all such voters. He also testified that he could not recall whether he instructed his office personnel to send the ballots to everyone or to just those voting in the primary. Seckel then stated that at the time of the canvassing board meeting, he was under the impression that the absentee ballots were sent out to only those who had voted in the primary.

Appellant also asserts that “Seckel himself encouraged at least one voter to vote for Defendant Chapman.” This allegation actually derives from friendly banter between Seckel and a young man in the parking lot of a Tallahassee store. In answer to the young man’s admonition to vote for McLean, Seckel, in a jocular manner, said, “no, go ahead and vote for Judd Chapman.”

Appellant asserts that “Seckel’s action favoring Defendant Chapman was part of a larger pattern of city officials’ support for Defendant Chapman’s candidacy.” In support of that assertion, appellant says that “[0]ne of Mr. Seckel’s top assistants [Mr. Bramlett] helped Dr. Chapman in setting up a meeting with the head of the electrical department.” The evidence relating to this assertion is that Mr. Bramlett, an administrator in Seckel’s office, was approached by Chapman who expressed an interest in acquiring information regarding the city’s power system. Bramlett recommended that Chapman see the head of the electrical department and Bramlett helped arrange for Chapman to meet with him.

Appellant also points to certain campaign advice given to Chapman in letter form by outgoing City Commissioner Sam Teague. The letter contained advice by Teague on campaign issues to Chapman, his long-time friend.

Appellant’s case for fraud or intentional wrongdoing is lacking as reflected by the above examination of its component elements. We agree with the trial court’s conclusion that the voluminous record in this case, developed after lengthy and exhaustive discovery, amply demonstrates that there is no genuine issue of material fact regarding the claim of fraud or intentional wrongdoing on the part of the city election officials.

It is obvious that the subject election was managed by the election officials in a manner other than in strict conformance with the applicable voting laws. It may well be that such irregularities were the result of negligence on the part of the election officials. However, any such negligence avails the appellant nothing because such negligence did not descend to the kind of gross negligence which the Supreme Court in Boardman equated with fraud or intentional wrongdoing. In any event, for the reasons previously discussed herein, we are of the view that the nature and extent of such irregularities, under the statutory provisions applicable at that time, were not of sufficient magnitude to support the invalidation of the absentee ballots and the concomitant disfranchisement of a large number of voters whose qualifications as electors have not been questioned and who have no fault whatsoever in the manner in which they east their ballots.

The trial judge correctly entered summary judgment in favor of appellees and we therefore AFFIRM both partial and final summary judgments.

ROBERT P. SMITH, Jr., J., concurs.

ZEHMER, J., concurs specially.

ZEHMER, Judge,

concurring specially.

Although I concur with the majority opinion, I feel it necessary to more fully explain my reasons for doing so.

I am convinced, based on the record in this case, that a full, fair, and free expression of the public will occurred in this election and that the irregularities shown to have taken place did not affect the integrity of the ballot or the election. Under Boardman v. Esteva, 323 So.2d 259 (Fla.1976), that is the ultimate test. The decision in Esteva and our decision in this case are concerned primarily with a request to invalidate a large number of absentee ballots for the failure of election officials, rather than the individual voters, to follow statutory requirements. The validity of these absentee ballots should be upheld mainly because, “when the voters have done all that the statute has required them to do, they will not be disfranchised solely on the basis of the failure of the election officials to observe directory statutory instructions.” Boardman v. Esteva, supra, at 268.

The decisions in Esteva and this case, however, should not be taken as license to disregard either mandatory or directory requirements in the election statutes. Election officials are under an affirmative duty to determine the requirements of the election laws and to insure compliance therewith. Neither Esteva nor the decision in this case condones or excuses the derelictions and deviations from statutory requirements by election officials such as occurred in this case.

I concur in that portion of the majority opinion dealing with “Non-Conforming Voter Certification on Envelopes” only for the reason that the statutory provisions in effect at the time of the election in this case contained no requirement that a voter indicate the specific reason for voting absentee. The decision in this case refuses to invalidate absentee ballots because the form on the “mailing envelope,” certifying that the voter is authorized to vote absentee, did not also include the several statutory reasons authorizing one to so vote. The voters in this case obviously signed the certificate provided by the election officials on the reasonable assumption that they had done all that was required of them. Our decision on this issue is not concerned with the validity of absentee ballots where voters, rather than officials, have deviated from a statutory requirement that is within the voters’ control. Judge Nimmons’ excellent analysis of the history of Section 101.64, Florida Statutes, and the various changes made to that section from time to time by the legislature convincingly demonstrates that the 1981 version of Section 101.64 applicable to this election contained no statutory requirement that a voter certify the specific reason for voting by absentee ballot. Since this disputed election occurred after the 1981 amendment eliminating that requirement and before the legislature restored that specific requirement by amendment in 1982 (Ch. 82-143, § 10, Laws of Florida), our decision necessarily leaves open the question of whether non-compliance with that requirement would invalidate an absentee ballot. Unlike derelictions by election officials, however, a voter’s failure to comply with such statutory requirement that is properly brought to the voter’s attention by instructions on the mailing envelope, being a matter within the voter’s responsibility and control, may well be cause to invalidate the ballot.

      . The trial court entered a partial summary judgment on July 8, 1982, from which appellant filed an appeal to this Court. Subsequently, this Court granted appellant’s motion (consented to by appellees) to stay the prosecution of that appeal pending final resolution in the trial court of the remaining issues not disposed of by the partial summary judgment. On February 23, 1983, the trial court entered its final summary judgment disposing of all remaining issues. Appellant’s appeal therefrom was consolidated with the previously filed appeal.

      . Section 12-11 of the Tallahassee City Code provides that municipal elections shall be conducted “substantially on the principle adopted for state elections insofar as there is no conflict with the terms of this chapter or the terms of this charter.”

      . The election was held in two phases, a nonpartisan primary on February 9, 1982, in which there were six candidates and the February 23, 1982, runoff between appellant McLean and appellee Chapman.

      . “101.62 Request for Absentee ballots.—
      (1) An absent elector may request from the supervisor of elections or his deputy an absentee ballot during the 1-year period preceding an election. The supervisor may accept a request for an absentee ballot for an elector from any person designated by such elector. Such request may be made in person, by mail, or by telephone. One request shall be deemed sufficient to receive an absentee ballot for each election which is held within such 1-year period, provided the elector or his designee indicates at the time the request is made the elections for which the elector desires to receive an absentee ballot.
      (3) For each request for an absentee ballot received, the supervisor shall record the date the request was made, the date the absentee ballot was delivered or mailed, the date the ballot was received by the supervisor, and such other information he may deem necessary.
      (4) As soon as the absentee ballots are printed, the supervisor of elections shall deliver or mail an absentee ballot to each elector for whom a request for such ballot has been made. Any elector, however, may designate in writing a person to pick up the ballot for him.

      . In addition, according to deposition testimony and affidavits filed on behalf of McLean, there were eleven officers who said that they cast unrequested absentee ballots.

      . Nowhere in the record of this case is there any indication of the machine votes cast in the primary and we are, of course, not at liberty to venture dehors the record.

      . Lest there be any confusion with respect to these unrequested ballots, we should point out that there was no indication that any of these ballots were mailed out by the election officials without their having been properly marked or identified for use by a particular qualified elector.

      . We recognize that, as indicated in Boardman, the determination that election irregularities arose out of the failure to comply with directory, as opposed to mandatory, statutory provisions is not the end of the inquiry if the irregularities were calculated to affect the integrity of the ballot or election. We will treat this aspect of our inquiry later in this opinion after examining each of the categories of claimed irregularities.

      . The 1982 Legislature again amended Section 101.64 by restoring the requirement that the particular ground for voting absentee be specified in the elector’s certificate. Chapter 82-143, Laws of Florida. Of course, that change is not applicable to the subject 1982 City elections which occurred before passage of the above amendment, and we express no opinion as to what our conclusion on this issue would be had the Chapter 82-143 amendments been applicable to this election.

      . “Upon the receipt of the absentee ballot and printed instructions as provided in § 101.65, the absent elector shall, in secret, mark his ballot, follow the instructions enclosed with his ballot, place only the marked ballot in a plain envelope and return same to the supervisor of the county in which his precinct is located.”

      . A qualified elector in Florida, as provided by Section 97.041, Florida Statutes, is a person who is over 18 years of age, a citizen of the United States and a permanent resident of Florida and the county where registered, has not been declared mentally incompetent and not restored to competency, has not been convicted of a felony and not been restored to civil rights.

      . It should be noted that in Boardman v. Es-teva, supra, the trial court concluded that a voter’s failure to comply with the statute then in effect by making a checkmark by one of the five reasons for voting absentee in the place provided on the mailing envelope would not be deemed fatal to the validity of some seventy-nine ballots; but it further stated that even if such ballots were treated as illegal they would not change the results of the election. This court refused to treat this requirement so lightly and did not agree that such ballot would be valid. Esteva v. Hindman, 299 So.2d 633 (Fla. 1st DCA 1974). The Supreme Court’s decision in Esteva, although quashing that decision, did not discuss what effect the “substantial compliance rule” would have on this particular statutory requirement. In view of the legislature’s having restored this requirement in 1982 after having deleted it in 1981, it hardly seems that such requirement could now logically be merely directory and freely excusable under that rule.