text:
    Scott HASEMEIER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1965.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Jerry Hill, Public Defender, and Deborah A. Adamson, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. See Ashby v. State, 228 So.2d 400 (Fla. 2d DCA 1969).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lola J. ALBRITTON, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Singleton Seafood Company, Appellees.
    No. 83-2482.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Elizabeth R. Mannion, Bay Area Legal Services, Inc., Tampa, for appellant.
    Geri Atkinson-Hazelton, Tallahassee, for appellee Unemployment Appeals Com’n.
   PER CURIAM.

Affirmed. See Bagwell Lumber Co. v. Florida Department of Commerce, 353 So.2d 1261 (Fla. 2d DCA 1978); State Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977).

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


author: HERSEY, Judge.

text:
    KMR DESIGNS, LTD., a foreign corporation, Appellant, v. Ira SHANDLER and Diana Shandler, Appellees.
    No. 83-2049.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Rehearing Denied July 2, 1984.
    Glenn H. Mitchell of Mitchell, Hanser & Schwartz, West Palm Beach, for appellant.
    Spencer M. Sax of Sachs & Weiss, P.A., Boca Raton, for appellees.
   HERSEY, Judge.

KMR Designs, Ltd., appeals an order denying its motion to dismiss based upon improper service of process. We reverse.

Conflicting evidence was presented to the trial court as to whether the process server personally delivered the summons and complaint to the president of KMR Designs, Ltd., or whether it was delivered to another individual unrelated to that corporation, who soon after handed the summons and complaint to the president. The trial court on the record specifically declined to make a finding that process was served by handing the documents directly to the president.

Service of process on a corporation is accomplished as provided in Section 48.-081(1), Florida Statutes:

(1) Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the state.

We have held that strict compliance with the statute is essential. Carlon, Inc. v. Lindy’s of Omni, Inc., 408 So.2d 243 (Fla. 4th DCA 1981). On numerous occasions we have held that service on a lesser agent of the corporation, without a showing that those above him in the corporate hierarchy were unavailable, was defective. See, e.g., Ludlum Enterprises, Inc. v. Outdoor Media, Inc., 250 So.2d 649 (Fla. 4th DCA 1971). See also A-One Dahill Moving & Storage Co. v. American Insurance Company, 436 So.2d 424 (Fla. 4th DCA 1983). Had the court made a finding that service of process was effected upon the president of the corporation in person, that finding would have been upheld as supported by substantial, competent evidence. Nonetheless, it is not the function of the appellate court to weigh the credibility of witnesses on matters of fact. In the absence of an appropriate finding of compliance with the statute the motion to dismiss should have been granted. Accordingly, we reverse.

REVERSED.

LETTS and WALDEN, JJ., concur.


text:
    PENINSULAR FLORIDA DISTRICT COUNCIL OF ASSEMBLIES OF GOD, Appellant, v. PAN AMERICAN INVESTMENT AND DEVELOPMENT CORPORATION, Heller, Weaver and Associates, Inc., Alfred D. Griffin, Sr., and Mary Catherine Griffin, Appellees.
    Nos. 83-2145, 83-2195.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Rehearings Denied June 27, 1984.

      Joel Miller of Miller & Squire, Chartered, Fort Lauderdale, for appellant.
    John E. Aurelius of James, Bielejeski & Aurelius, P.A., Fort Lauderdale, for appel-lees-Pan American Investment and Development Corporation.
    Alvin Capp of Capp, Reinstein, Kopelow-itz & Atlas, P.A., Fort Lauderdale, for ap-pellee-Heller, Weaver and Associates, Inc.
   PER CURIAM.

The plaintiff appeals from an order dismissing both counts of its complaint for failure to state a cause of action. We reverse as to Count I and affirm as to Count II.

With respect to Count I, we find the allegations of fraud against defendant Pan American Investment and Development Corp. (“Pan American”) sufficient to withstand a motion to dismiss. When fraud is asserted as a claim or defense, the facts and circumstances constituting the fraud must be pled with specificity, Fla.R. Civ.P. 1.120(b), and all essential elements of fraudulent conduct must be stated, i.e., that plaintiff relied to his detriment on a false statement concerning a material fact made with knowledge of its falsity and an intent to induce reliance. George Hunt, Inc. v. Wash-Bowl, Inc., 348 So.2d 910 (Fla. 2d DCA 1977). When fraud in the inducement is alleged, plaintiff need not plead that he was precluded from discovering the truth as to misrepresented facts, provided that the complaint alleges reasonable reliance on material representations of existing fact. Avila South Condominium, Association v. Kappa Corp., 347 So.2d 599 (Fla.1977).

In this case, plaintiff alleged that an agent of defendant Pan American made false representations regarding the boundary of certain real estate which it sold to plaintiff, that Pan American corroborated the false representations by furnishing it with an inaccurate drawing prepared by its president with knowledge of its falsity and with intent that plaintiff would rely on it. In addition, plaintiff alleged that it reasonably relied on the false representations to its detriment, and suffered damages represented by the difference in the value of the parcel actually received with the parcel it bargained for in contracting with Pan American. We find that those allegations adequately set forth the specific facts constituting fraud as well as all the elements of a cause of action in fraud, and therefore hold that the trial court erred by dismissing Count I.. Cf. Parker v. Gordon, 442 So.2d 273 (Fla. 4th DCA 1983); Midway Shopping Mall, Inc. v. Airtech Air Conditioning, Inc., 253 So.2d 900 (Fla. 3d DCA 1971); General Dynamics Corp. v. Hewitt, 225 So.2d 561 (Fla. 3d DCA 1969).

In Count II plaintiff attempted to state an action in negligence against defendant Heller, Weaver and Associates, Inc., (“Heller”). It alleged that the president of Pan American made the false survey referred to in Count I on paper bearing Heller’s name, address and logo by copying from an accurate drawing prepared by Heller. Additionally, plaintiff alleged that Heller knew or should have known that its paper was thus being used by Pan American because of its prior dealings with Pan American in which it permitted Pan American’s president to use its property and facilities, yet it remained passive while plaintiff relied on the survey under the mistaken belief that it was prepared by a Heller employee.

We hold that Count II was properly dismissed for failure to state a cause of action because it does not state facts establishing a relationship between Heller and the plaintiff from which the law implies a legal duty. The result may have been otherwise had plaintiff alleged that the inaccurate survey was produced by Heller pursuant to some contractual obligation which it assumed, cf. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981), petition rev. denied, 417 So.2d 328 (Fla.1982), but the complaint is devoid of any such allegation. Therefore, we affirm the dismissal of Count II for failure to state a cause of action.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: OTT, Chief Judge.

text:
    SENTRY INSURANCE COMPANY, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 83-529.
    District Court of Appeal of Florida, Second District.
    June 1, 1984.

      Michael S. Rywant of Prugh & Rywant, Tampa, for appellant.
    Charles W. Hall and Mark E. Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee.
   OTT, Chief Judge.

This case involves cross intervenor complaints for indemnification between insurers for the loss resulting from the negligent operation of an automobile. The trial court ruled that the insurer of the driver’s employer, Sentry Insurance Company, provided primary coverage ahead of coverage provided by the insurer of the vehicle’s owner, Aetna Insurance Company. We vacate the trial court’s grant of final summary judgment and remand for proceedings not inconsistent with this opinion.

Kirby Gould, the manager of S-R-D Corporation and Risser Oil Corporation, d/b/a Red Carpet Car Wash (“S-R-D”), took his personal automobile to a shop for repair. When the repairs were complete, an employee of the automobile repair shop returned the vehicle to the car wash. At that time, Kirby Gould instructed Rebecca Gould, Kirby’s daughter and also an employee of S-R-D, to drive the repairman back to his place of employment in the newly repaired vehicle. During this excursion, the vehicle driven by Rebecca Gould struck a vehicle driven by Mary Ann Pulto-rak. Mary Ann Pultorak asserted her claim against Rebecca Gould as driver, Kirby Gould as owner,-and S-R-D as Rebecca’s employer.

At the time of the accident, Rebecca Gould had an automobile liability insurance policy with the Travelers Insurance Company with coverage limits of $10,000 per person/$20,000 per accident. Kirby Gould’s vehicle was insured by Aetna with coverage limits of $100,000 per person/$300,000 per accident. S-R-D carried a comprehensive insurance policy package with Sentry with large single limit coverage.

Pultorak’s personal injury suit against Rebecca Gould, Kirby Gould, and S-R-D was ultimately settled for a total of $91,-500. Aetna and Sentry each contributed $45,750 to the settlement. A release was executed by Pultorak as to all claims against Rebecca Gould, Kirby Gould, S-RD, Travelers, Aetna, and Sentry.

Following the settlement, Aetna and Sentry intervened in the lawsuit as party defendants. Aetna and Sentry filed cross intervenor complaints seeking a judicial declaration of their respective rights, liabilities, and obligations under their policies and indemnification from the other insurers. Motions for summary judgment were filed and each insurer alleged that there existed no genuine issues of fact. In addition, based on the holding of Hartford Accident and Indemnity Co. v. Kellman, 375 So.2d 26 (Fla. 3d DCA 1979), each insurer alleged that it was entitled to be excused from any contribution as a matter of law. Without written explanation or findings, the trial court entered an order granting Aetna’s motion for summary judgment and denying Sentry’s. In effect, the final judgment requires Sentry to refund Aetna’s contribution to the settlement.

On appeal, as in the trial court, each insurer argues that Hartford controls the instant case and requires a finding that it is entitled to full indemnity from the other insurer. Thus, close scrutiny of Hartford is required.

In Hartford, Herbert Kaplan drove an automobile into the rear end of a Ford Mustang. The gas tank of the Mustang ruptured and exploded, causing serious burn injuries to the two occupants of the car. A $1,000,000 settlement was achieved in the ensuing personal injury suit by the Mustang occupants. Ford Motor Company contributed $500,000 of this sum. Kaplan’s personal automobile liability insurer, Allstate, paid $200,000, admitting its position as the primary insurer. The remaining $300,000 was contributed by the insurer of the leasing company, the insurer of Ka-plan’s employer, and Kaplan’s personal excess carrier. All the insurers reserved the right to litigate the order of priority of the various policies providing coverage for the loss. The trial court determined the order of priority and all the insurers, except Allstate, appealed and assigned different errors to the trial court’s determination.

On appeal in Hartford, the Third District Court of Appeal noted that Kaplan had three separate legal identities at the time of the accident: he was the driver of the car; he was the lessee of the car; he was an employee acting within the course and scope of his employment. There was both a primary and an excess insurer for each of his identities. In an attempt to solve the priority puzzle, the Third District Court of Appeal ranked the insurers in terms of priority based on their insured’s position or relationship to the vehicle involved in the accident, to wit: driver — employer—lessor/owner. The policies covering Kaplan as a driver were ranked first based on the common law rule that an insurer of a driver who is an active tortfeasor has primary responsibility for the payment to the injured party. The policies covering Ka-plan’s employer were ranked next in priority. These policies were ranked ahead of the lessor/owner’s policies because the employer was directly liable under the doctrine of respondeat superior (its employee being actively engaged in its affairs at the time of the accident) while the owner was only liable by operation of law. The policies covering the lessor/owner — the most remote — were therefore ranked last. As to the effect of “other insurance” clauses in the insurance contracts, the court stated that “within the class of responsibility, the policy provisions should be considered, but no provision cited is sufficient to change that policy’s class.” Id., at 30.

In the instant case, Sentry’s position is that Hartford places Aetna ahead of it in terms of priority because, when properly construed, Aetna’s policy is a driver’s policy as it covered Rebecca Gould as an additional insured when she drove her father’s vehicle with his permission. Aetna disagrees, asserting that its policy is an owner’s policy like the leasing company’s policy in Hartford and therefore last in terms of priority.

We decline to apply the rationale of Hartford in the instant case for several reasons. First, the holding in Hartford relative to the rank of the employer’s and lessor/owner’s policies vis-a-vis each other constitutes obiter dictum. A careful reading of the case discloses that disposition of the controversy was complete when the court ranked the driver’s primary and excess policies first, as the remaining settlement amount ($300,000) was completely satisfied within the driver’s excess carrier’s policy limits of $1,000,000. Second, although close, the facts of Hartford are distinguishable from those in the instant case. There, the lessor/owner was a distant leasing company. Here, the owner had a more active role in the affair, having presumed upon his position with his employer to instruct his daughter and subordinate employee to use the vehicle for his own purposes. Finally, Hartford determined responsibility by analyzing each party’s relationship to the accident without regard to the contracts of insurance. The court refused to give effect to the “other insurance” clauses in the sundry policies. In contrast, this court has historically examined such policy provisions and given them full force and effect wherever possible. See Auto-Owners Insurance Co. v. Palm Beach County, 157 So.2d 820 (Fla. 2d DCA 1963). In summary, we believe that the Third District Court of Appeal in Hartford reached what, under the facts of that case, may be considered an equitable and reasonable result. However, at this time, we are not prepared to adopt an across-the-board policy of ranking the order of insurers’ responsibilities for payment of judgments to injured parties on the basis of each carrier’s insured’s status (i.e., driver — employer—lessor/owner), as proposed by our sister court.

In cases where more than one insurer’s policy provides coverage for a loss, it is appropriate to review the insurance contracts to see if the documents address the “ranking” or contribution of other insurers. See Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). There are three principal kinds of so-called “other insurance” clauses: (1) pro rata or proportionate recovery clause; (2) excess insurance clause; (3) escape or no liability clause. Auto-Owners, supra, at 822. If applicable “other insurance” clauses are contained in the contracts and the contracts otherwise satisfy the requirements of law, we believe that the priorities among the insurers should be decided by reference to the provisions in the respective policies. See Insurance Company of North America; Auto-Owners.

The trial court apparently granted final summary judgment in Aetna’s favor based upon its interpretation of Hartford. Because we decline to adopt the rationale of our sister court, the trial court’s grant of final summary judgment must be vacated. The case is remanded for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

BOARDMAN and RYDER, JJ., concur.

      . Travelers was named in the intervenor complaints as an intervenor defendant. The insurance carrier removed itself from the controversy by contributing its policy limits, $10,000, to Aetna and Sentry.


text:
    Lazaro L. ISAAC-RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2244.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds and Renee S. Ruska, Asst. Attys. Gen., for appellee.
    Before NESBITT and FERGUSON, JJ., and PEARSON, TILLMAN, (Ret.), Associate Judge.
   PER CURIAM.

The appellant was indicted and tried for first degree murder. He was found guilty by a jury of the lesser included offense of second degree murder. He was adjudicated guilty and sentenced to life imprisonment.

Upon this appeal he urges that some of his statements to the police were obtained in violation of his constitutional privilege against self-incrimination and his right to counsel. See Harris v. State, 396 So.2d 1180 (Fla. 4th DCA 1981). In addition, he urges error in the admission into evidence of allegedly prejudicial photographs of the victim. See §§ 90.401-.4Ó3, Fla.Stat. (1981).

We have carefully examined the record in the light of each of these contentions and find that they are completely without support therein. The law upon the point directed to the statements of the accused is fully covered by that set forth in Nettles v. State, 409 So.2d 85 (Fla. 1st DCA), pet. for review denied, 418 So.2d 1280 (Fla.1982).

The photographs were relevant to show the repeated stab wounds, the nature of which negated an anticipated claim of self-defense. They were therefore properly admitted into evidence to help the court and the jury in finding the truth. See Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Straight v. State, 397 So.2d 903 (Fla), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Edwards v. State, 414 So.2d 1174 (Fla. 5th DCA 1982).

Affirmed.


text:
    VENEZOLANA INTERNACIONAL DE AVIACION, S.A., Appellant, v. OUTBOARD MARINE DOMESTIC INTERNATIONAL SALES CORPORATION, a corporation, Appellee.
    Nos. 83-1102, 83-1306.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Thornton & Herndon and Gail V. Fer-rington, Miami, for appellant.
    Donovan, Maloof, Culp & Kennedy and W.R. McClenathen, II, Jacksonville, for ap-pellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Our review of the record leads us to conclude that Venezolana Internacional de Aviación, S.A. (VIASA) established by un-refuted evidence that it complied in all respects with the contract of carriage and applicable tariffs, government regulations, orders and requirements and that delivery of the goods to the consignee was effected, in accordance with the tariff, when the consigned goods were delivered to government authorities as required by applicable law or customs regulation. Therefore, there being no evidence upon which a reasonable jury could conclude that VIASA was legally responsible for the non-delivery or loss of the consigned goods, VIASA was entitled to a directed verdict in its favor. Accordingly, we reverse the judgment entered for the appellee upon a jury verdict in its favor, along with the judgment for costs, and remand the case to the trial court with directions to enter judgment for the appellant.

Reversed and remanded with directions.


author: BASKIN, Judge.

text:
    Barbara and Karl COHEN, on Behalf of minor child, Paul COHEN, Appellants, v. The SCHOOL BOARD OF DADE COUNTY, FLORIDA, Appellee.
    No. 83-1993.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.

      Barbara J. Cohen, in pro. per.
    Frank A. Howard, Jr. and Madelyn P. Schere, Miami, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

The issue in this appeal involves a determination of the extent of certain reimbursable expenses allowed by federal statutes providing appropriate free special educational and related services for the handicapped.

An administrative order entered on September 15, 1982, required the Dade County School Board to pay for the education of appellants’ son, Paul, at Anneewakee Treatment Center’s Georgia campus [An-neewakee]. Paul’s severe psychiatric and emotional disorders fell within the authority of the Education of the Handicapped Act [Act] of 1975, 84 Stat. 175, as amended, 20 U.S.C., § 1400 et seq. (1976 & Supp. Y 1981). The order directed the School Board to fund Paul’s placement in the Anneewak-ee residential program, including the cost of “special education” and “related services” defined in 34 C.F.R. § 300.13 (1981). Medical and psychiatric treatment services provided on an ongoing basis were not included. One of the related services to be provided was “parent counseling.” In December, 1982, Paul’s Individualized Education Program [IEP] was developed.

An IEP establishes a handicapped child’s educational goals. Paul’s IEP provides for transportation and parent counseling as related services and delineates certain annual goals, including that “Paul will develop satisfactory inter-personal relationships with adults and peers in the home, school & community,” and, as a short term instructional objective, that Paul will “(i)mprove relationships with parents and siblings through open communications and personal interaction with family members.”

The Cohens requested reimbursement from the School Board for several therapeutic visits with Paul occurring between October, 1982 and April, 1983; these expenses included airfare for Paul, for his parents, and for Paul’s two siblings, as well as hotel, food and car expenses for the entire family. The School Board agreed to pay the expenses for only three of the round trips made by Paul between Florida and Georgia. The Cohens then requested an administrative hearing to determine the extent of the School Board’s obligation. The Cohens asserted that the School Board’s financial responsibility for travel and transportation expenses was mandated by the September, 1982 administrative order, which specified that funding should cover all related services, including transportation and parent counseling. In addition, the Cohens claimed that monthly therapeutic visits with Paul are necessary to implement the goals of his treatment program. The School Board contended that by paying for three round trips for Paul, it fulfilled its obligation to provide “transportation as a service related to the exceptional education of the student, in accordance with the student’s current IEP ... and the contract between The School Board of Dade County, Florida, and Anneewakee.” Agreeing with the School Board, the hearing officer concluded:

Petitioners state the issue of whether they are entitled to reimbursement for more than three of Paul Cohen’s round trips from Anneewakee to south Florida between September 15, 1982, and June 30, 1983, as one of “clarification” of the final order entered in Case No. 81-2927-E. “Clarification” or any other reconsideration of that order is unwarranted, but the evidence in this proceeding revealed a change of circumstances subsequent not only to entry of the final order in Case No. 81-2927-E, but also to the ensuing IEP conference. Even at the time of the IEP conference, the parties were apparently unaware that Paul Cohen would be permitted by Anneewakee staff to make more than three trips home. The evidence will support the inference, indeed, that the Anneewakee staff determination had not then been made. In short, petitioners’ request for clarification as it relates to more than three trips home for Paul Cohen presents a new issue not raised or addressed in Case No. 81-2927-E, and not ripe for disposition at that time. Especially in light of the fact that Dr. and Mrs. Cohen are unrepresented by counsel * it is appropriate to reach the merits of this question and to disregard petitioners’ characterization of the issue as previously decided and requiring clarification, when the facts show otherwise.
PAUL COHEN’S TRIPS HOME
Paul’s placement at Annewakee must now be taken as a given. Case No. 81-2927-E. Florida has “no set regulations, as to an absolute minimum number of trips home when a child is placed in a residential facility.” Petitioners’ Exhibit No. 12. He is to receive “specially designed instruction” at this residential facility, and he is also entitled to transportation at public expense in order to receive education there. He is not entitled, however, to additional trips home at public expense for therapeutic purposes. The school board’s obligation is to educate him, notwithstanding his severe emotional disturbance, not to spend moneys intended for the education of other students in order to provide primary treatment for the handicap itself. As stated in In re:, Current EHLR 504:148 (1982): p. 12.
A distinction must be made in this case between a related service, pursuant to Reg. 300.13, Federal Regulations for the Education of All Handicapped Children Act, and a primary treatment for a handicap (“personality change”). A school must proceed upon the assumption that its mission is not that of providing primary treatments for handicaps, whether surgery, bed rest, psychotherapy or other treatments, but rather its mission is to provide an education for children with existing handicaps, employing those ‘developmental, corrective and other supportive services as are required to assist a handicapped child to benefit from special education.’ Reg. 300.13, Federal Regulations for the Education of All Handicapped Children Act.
In the present case, the IEP states various ambitious objectives, including that Paul “develop satisfactory interpersonal relationships ... in the home.” Like transportation, this objective is ancillary to the primary goal of educating Paul Cohen. An improved family situation is not an end in itself, and the School Board is not required to foot the bill for family gatherings. The “reintegration” of the Cohen family is greatly to be hoped, but the School Board has other claims on its resources.
OTHER ISSUES
At the time the final order was entered in Case No. 81-2927-E, Dr. and Mrs. Cohen had already begun traveling to Annewakee for parent counseling. In the event the Cohens give up their periodic trips for therapy in favor of telephone conferences about Paul Cohen’s progress or some like change of circumstances occurs, institution of separate due process hearing procedures might be appropriate. But, as for the present ease, the final order in Case No. 81-2927-E, which does not provide reimbursement for such trips is dispositive. Similarly, the question of costs in the earlier litigation must now be deemed conclusively resolved. As for costs in the present litigation^ the rule is that none are awarded even to prevailing parties; and petitioners have not prevailed, in any event.
It is accordingly,
ORDERED:
That neither Paul Cohen’s IEP nor the contract between respondent and Anne-wakee be modified in any way.
* Mrs. Cohen is a first-year law student.

Our review of the record discloses that the hearing officer’s findings of fact are supported by substantial, competent evidence. See Butler v. Carter, 123 So.2d 313 (Fla.1960); Bureau of Crimes Compensation v. Reynolds, 443 So.2d 501 (Fla. 3d DCA 1984); Austin v. Gordon, 333 So.2d 118 (Fla. 2d DCA 1976). It is axiomatic that where substantial competent evidence supports the findings and conclusions of the administrative agency and the record discloses neither an abuse of discretion nor a violation of law by the agency, this court should not overturn the agency’s determination. See Home Health Services of the U.S. v. Schweiker, 683 F.2d 353 (11th Cir.1982); Butler; Hayes v. Brown, 91 So.2d 795 (Fla.1957); Charlotte County v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977).

In the present case, the hearing officer found that by paying for three round trips per year for the handicapped student, the School Board adequately met its obligation to provide funding for transportation as a service related to Paul Cohen’s special education. The “free, appropriate education” provided under the Act does not require the states to satisfy all the particular needs of each handicapped child. See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). As the court stated in Rowley:

[T]he intent of the Act was ... to open the door of public education to handicapped children on appropriate terms [rather] than to guarantee any particular level of education once inside.
[T]o require ... the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go.

458 U.S. at 192, 199, 102 S.Ct. at 3043, 3047. The hearing officer therefore neither abused his discretion nor violated any law in determining that the Cohens are not entitled to public funding for any additional trips.

As a general principle, the construction of a statute or regulation by the administrative agency charged with its enforcement and interpretation is entitled to great weight and persuasive force, and the courts will not depart from that interpretation unless it is clearly erroneous. See United States v. Seaboard Coast Line R.R., 368 F.Supp. 1079 (M.D.Fla.1973); Daniel v. Florida State Turnpike Authority, 213 So.2d 585 (Fla.1968); Bureau of Crimes Compensation v. Reynolds. We find that the hearing officer’s ruling comports with the applicable statutes and regulations guiding the public funding of education for handicapped children. See, e.g., 20 U.S.C. § 1400, et seq.; 34 C.F.R. § 300, et seq.; Rowley.

Appellants’ remaining points lack merit.

Affirmed.

      . Among related services defined in 34 C.F.R., § 300.13 are:
      (6) “Parent counseling and training” means assisting parents in understanding the special needs of their child and providing parents with information about child development.

      (8) "Psychological services” include: ... (v) Planning and managing a program of psychological services, including psychological counseling for children and parents.

      . The IEP consists of a written document containing:
      (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.
      20 U.S.C. § 1401(19) (1981).


text:
    Paul Randolph HAYDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2828.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Bennett H. Brummer, Public Defender, Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before HUBBART and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

We adopt the rationale of Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983) and hold that for the purpose of the reclassification statute, which enhances a felony by one degree where a firearm is used, a defendant charged with murder by use of a firearm is also charged with lesser included felonies of the murder charge. We accordingly reject both Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984) and Carroll v. State, 412 So.2d 972 (Fla. 1st DCA 1982) which hold that the reclassification statute has no application where a defendant is not convicted of the felony specified in the charging document but is instead convicted of committing with a firearm any lesser included offense.

Affirmed.

      . Section 775.087(1), Florida Statutes (1983), provides:
      Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
      (a) In the case of a felony of the first degree, to a life felony.
      (b) In the case of a felony of the second degree, to a felony of the first degree.
      (c) In the case of a felony of the third degree, to a felony of the second degree. [e.s.]


author: GRIMES, Acting Chief Judge.

text:
    Michael Marian MASKARON, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 83-2348.
    District Court of Appeal of Florida, Second District.
    June 6, 1984.

      Paul B. Johnson of Johnson, Paniello & Hayes, Tampa, for appellant.
    Joseph W. Lawrence, II, Chief Attorney, Department of Professional Regulation, Tallahassee, for appellee.
   GRIMES, Acting Chief Judge.

Appellant seeks review of an order of the Board of Medical Examiners suspending him from the practice of medicine for one year and placing him on probation for five years thereafter.

The Department of Professional Regulation filed an administrative complaint against Dr. Maskaron seeking to “suspend, revoke or otherwise take disciplinary action” against him. The complaint generally alleged that Dr. Maskaron had injected himself with drugs on three occasions in an effort to commit suicide, thereby violating statutory prohibitions against the administration of drugs. The complaint further alleged that he was unable to practice medicine with reasonable skill and safety by reason of his use of narcotics or as a result of his mental or physical condition. Finally, the complaint alleged that Dr. Maskaron had falsified his application for a Florida medical license by denying that he had ever been treated for mental illness.

Pursuant to section 120.57, Florida Statutes (1981), Dr. Maskaron made a written election for formal proceedings. Thereafter, the department filed a motion requesting the Division of Administrative Hearings to relinquish jurisdiction of the matter to the Board of Medical Examiners for the purpose of conducting an informal proceeding. The motion recited in pertinent part:

2. By telephone conversations, counsels for the parties have concluded that there are no disputed issues of fact and the parties wish to resolve this matter in an informal proceeding pursuant to Section 120.57(2), Florida Statutes, wherein the Respondent would be offering mitigating circumstances. Counsel for Respondent has indicated her concurrence with this Motion.
4. Petitioner, based upon the foregoing, will recommend as disposition of this matter before the Board of Medical Examiners that the Respondent’s license to practice medicine be placed on probation under such terms and conditions as shall be enumerated by the Board, and that no active publication of this action be made.
5. As such, the need for a formal proceeding is no longer present.

In response to the motion to relinquish jurisdiction, Dr. Maskaron’s lawyer wrote the department’s attorney seeking assurance “that whatever action is taken by the board, does not in reality end up proving to be the equivalent of a suspension.”

The parties then appeared before the Board of Medical Examiners. The department’s attorney recommended probation and no active publication of the probationary status. The attorney for Dr. Maskaron argued for a reprimand. The board members, however, expressed serious concern over the charge that Dr. Maskaron had falsified his medical application. They voted to suspend his license for a year followed by five years of probation. Dr. Mas-karon, through a new attorney, moved to set aside the action of the board and requested a formal hearing. The board refused to vacate its previous order and declined to enter a stay pending appeal.

On appeal Dr. Maskaron’s attorney makes a number of due process arguments. Suffice it to say, we find it necessary to reverse the order of suspension because the action taken at the informal proceeding was more severe than the action proposed in the motion to relinquish jurisdiction.

Section 120.57, Florida Statutes (1981), provides that unless waived by the parties, formal proceedings shall be conducted before a hearing officer whenever a matter involves a disputed issue of material fact. Unless otherwise agreed, all other cases are to be conducted as informal proceedings. Section 120.57(2)(a) provides:

(2) INFORMAL PROCEEDINGS. — In cases to which subsection (1) does not apply:
(a) The agency shall, in accordance with its rules of procedure:
1. Give reasonable notice to affected persons or parties of the agency’s action, whether proposed or already taken, or of its decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor.
2. Give affected persons or parties or their counsel an opportunity, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the agency’s action or refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.
3. If the objections of the persons or parties are overruled, provide a written explanation within 7 days.

Thus, it appears that the primary purpose of an informal proceeding is to provide a simplified method for disposing of a less serious or an uncontested matter.

Dr. Maskaron originally. asserted that there were disputed issues of fact and elected to have a formal proceeding. Thereafter, his lawyer negotiated with the department’s attorney for disposal of the matter in an informal proceeding, at which the department would recommend probation and Dr. Maskaron would argue for a reprimand. On this basis, Dr. Maskaron waived his election for a formal proceeding and agreed to proceed to an informal proceeding. Later, the board perceived the charges as more serious and voted for a suspension.

We do not suggest that the board was obligated to follow the recommendation of the department’s attorney. However, the only notice of the action proposed to be taken at the informal proceeding was that which was recited in the department’s motion to relinquish jurisdiction. Obviously, Dr. Maskaron only agreed to have an informal proceeding because he understood that probation would constitute the most severe punishment imposed. Therefore, the board could not invoke a more serious punishment without (1) either promulgating a new notice for an informal proceeding to which Dr. Maskaron would have to agree that there were no disputed issues of fact, or (2) starting again the process of a formal proceeding.

The department’s contention that Dr. Maskaron knew that his license could be suspended because of the allegations of the administrative complaint ignores the statutory requirement for notice of the action proposed to be taken at an informal proceeding. Dr. Maskaron was put on notice that the severest form of action that could occur at the informal proceeding was probation. Therefore, the board could not order his suspension at that hearing.

The department also argues that notwithstanding the deficiencies in notice, there were no disputed issues of fact and Dr. Maskaron had a fair hearing because at the informal proceeding his attorney was permitted to fully argue his position. Of course, the department cannot unilaterally decide that there are no disputed issues of fact. Moreover, Dr. Maskaron’s attorney cannot be faulted for failing to bring witnesses to the informal proceeding because of the contemplated nature of the hearing. Dr. Maskaron did bring his psychiatrist to the hearing on the motion to vacate, but the board declined to permit him to testify. To sustain Dr. Maskaron’s suspension under these circumstances would violate basic principles of due process.

The order of suspension is reversed, and the case is remanded for further proceedings.

SCHEB and LEHAN, JJ., concur.


author: COBB, Judge.

text:
    BROWN & ROOT, INC., a foreign corporation, Appellant, v. RING POWER CORPORATION, a corporation authorized to do business in the State of Florida, Appellee.
    No. 83-379.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    Robert W. Batsel of Ayers, Cluster, Curry, McCall & Briggs, P.A., Ocala, for appellant.
    Paul M. Harden, Jacksonville, for appel-lee.
   COBB, Judge.

Brown & Root, Inc. (hereinafter Brown), appeals from a final summary judgment denying it a writ of replevin to recover possession of a Caterpillar loader stolen from it in Houston, Texas. The facts, as ascertained by the trial court, are set forth in the judgment:

1. On March 4, 1979, BROWN & ROOT, INCORPORATED, purchased from Mustang Tractor Equipment Company a 920 wheel loader. Thereafter on March 26, 1982, said 920 wheel loader was stolen from Brown & Root.
2. On April 3,1982, Southeastern [sic] Equipment Company, Incorporated, a Louisiana corporation, purchased from Stevens Equipment Company, a Texas corporation, the wheel loader stolen from Brown & Root on March 26, 1982. Thereafter, on April 6, 1982, Ring Power Corporation, a Florida corporation, purchased from Southeastern [sic] Equipment Company, Incorporated, the same 920 wheel loader for $29,500.00. Said transaction took place in Kenner, Louisiana.
3. Thereafter, Ring Power Corporation brought the 920 wheel loader to its office in Ocala, Florida.
4. Article 524 of the Civil Code of the state of Louisiana provides in pertinent part as follows:
“the owner of a lost or stolen moveable may recover it from a possessor who bought it in good faith in a public auction or from a merchant customarily selling similar things or [sic] reimbursing the purchase price.”
5. That the laws of the state of Louisiana do not require that a purchaser who purchased lost or stolen moveables from a possessor in good faith at a public auction or from a merchant customarily selling similar things to hold the property for three years despite the wording of Article 3506 of the Civil Code of the state of Louisiana (same not having been repealed until January 1, 1983).
6. The laws of the state of Louisiana control the property rights of Ring Power Corporation with regard to the equipment in that the state of Louisiana is the situs of the property at the time of the purchase. Greer vs. Commercial and Exchange Bank, 118 So.2d 566; 6 Fla. Jur. Conflict of Law § 25.

Pursuant to those findings, the trial court denied Brown a writ of replevin, ruled for Ring Power on its counterclaim, and held that Brown could take possession of the loader only upon reimbursement to Ring of the sum of $29,500.00, Ring’s purchase price, within thirty days of the judgment. This appeal ensued.

The trial court’s factual findings in paragraph 1 omit the undisputed facts that the original purchase of the loader by Brown occurred in Texas, and that the theft from Brown occurred in Texas. Nothing in the record before us suggests Brown has any connection or contact with the State of Louisiana in either a contractual or tortious context. Nevertheless, the applicability of Texas law was not raised as an issue before either the trial court or on appeal. Instead, in the proceedings below, Brown argued Florida law was applicable as the contract between Ring Power and Southeast was made in Florida. Ring contended its right of possession arose out of Louisiana law, as the contract for its purchase was made in that state. The court agreed with Ring and applied Louisiana law, which requires the owner, as a prerequisite to recovery of his property, to reimburse an innocent purchaser in possession.

Unlike Louisiana, Florida follows the general rule that one who acquires possession of property by theft cannot confer good title by its sale, even to a bona fide purchaser. Avis Rent-A-Car System, Inc. v. Harrison Motor Co., 151 So.2d 855 (Fla. 2d DCA 1963). At best, a purchaser in good faith has the title and right to possession of the property against all except the rightful owner. 67 Am.Jur.2d Sales 256. However, Florida now recognizes that a voidable title may be successfully perfected by the ultimate buyer who purchases for a valid consideration and without notice of the title defect where the rightful owner lost possession through conversion following entrustment. Carlsen v. Rivera, 382 So.2d 825 (Fla. 4th DCA 1980); see § 672.403, Fla.Stat. (1981).

The reasoning that Ring’s right of possession arises out of Louisiana law because its contract for purchase was made in that state applies equally to Brown so that Texas law should determine its right of possession, since Brown purchased the loader in Texas and that was the situs of the theft. Cf., State Farm Mutual Automobile Ins. Co. v. Olsen, 406 So.2d 1109 (1981). Texas, unlike Louisiana, follows Florida’s position that a thief cannot defeat an owner’s title. Saenz Motors v. Big H. Auto Auction, Inc., 653 S.W.2d 521 (Tex.Civ.App. 13th Dist.1983), affirmed, 665 S.W.2d 756 (Texas 1984); Chapman Motors, Inc. v. Taylor, 506 S.W.2d 724 (Tex.Civ.App. 10th Dist.1974); Jamison v. Sockwell, 405 S.W.2d 618 (Tex.Civ.App. 5th Dist.1966); McKinney v. Croan, 144 Tex. 9, 188 S.W.2d 144 (Tex.1945).

Therefore, as between the law of Texas and that of Louisiana, the lower court would have been correct in applying Texas law, which is consistent with Florida’s position. However, Brown did not raise below or on appeal the issue of the applicability of Texas law. In fact, it can be said Brown invited the error of applying Louisiana law because it relied on the theory, albeit the wrong theory, that the applicable law was the law of the state in which the contract between Ring and Southeast was made. See: Bould v. Touchette, 349 So.2d 1181 (Fla.1977).

The facts adduced before the trial court adequately support its finding, as a matter of law, that the contract between Ring and Southeast took place in Louisiana rather than in Florida, as Ring contended. The sole viable issue left for appellate review is whether this state should recognize and enforce the Louisiana law cited in the trial court’s judgment. We must do so unless that law contravenes a positive policy of the law of Florida, the forum state. See 16 Am.Jur.2d Conflict of Laws § 6. This issue has been preserved by appellant for our consideration.

The appellant contends Louisiana law in this regard is contrary to section 672.403, Florida Statutes (1981), the common law, the Uniform Commercial Code and “the law of the remainder of the states in the United States.” In urging the public policy argument for declining to enforce Article 524 of the Civil Code of the State of Louisiana, the appellant states:

Only in Louisiana can a thief defeat the property rights of the true owner. The essence of the Lower Court’s ruling is that any item purchased from a merchant customarily selling similar things is then owned by the purchaser free and clear of the original and true owners claim. Basically, the Lower Court interprets the law - of Louisiana to allow a person to steal a loader in Florida on Monday night, remove it to Louisiana the same day and sell it to a dealer in Louisiana and this “merchant customarily selling similar things” can then immediately sell the loader to a Florida resident by telephone and the Florida resident purchasing the loader then defeats the ownership rights of the original Florida owner. Under the Louisiana law, as interpreted by the Lower Court, the original Florida owner could recover the loader only if [sic] on the payment of the purchase price.
This is repugnant to common sense, the law of Florida, the other forty-nine states and encourages theft, theft rings, and organized crime. As the depositions reveal in this case, Southeast purchased five pieces of heavy equipment from the same source and all five had been stolen. Regardless of the “title” or lack of “title” the purchaser from a Louisiana business gets good title.
In Florida a purchaser cannot obtain clear title from a thief to defeat the original owner. The most a bona fide purchaser for value in Florida can obtain from a thief is superior title to everyone except the original owner. Section 672.-403, Florida Statutes.
The law of Florida is clear that the rules of comity may be departed from when the laws of another state are repugnant to the laws of the State of Florida or when those laws violate the public policy of the State of Florida. Herron v. Passailaigue [92 Fla. 818], 110 So. 539 (Fla.1926).

The appellee, on the other hand, argues that a mere difference between the laws of Louisiana and Florida, standing alone, does not mandate departure from the rules of comity. See Warner v. Florida Bank & Trust Co., 160 F.2d 766 (5th Cir.1947); 10 Fla.Jur.2d Conflict of Laws § 14. In response to appellant’s “common sense” argument relating to the encouragement of theft and organized crime, Ring urges that Article 524 allows a possessor of property to avail himself of its protection when (1) he purchased the property in “good faith,” and (2) he purchased at a public auction or from a merchant customarily selling similar things. As to the reasonableness of the Louisiana approach, as compared to that of Florida and other states, Ring argues:

The Louisiana law seeks to make a fair determination when dealing between two innocent purchasers, that is an owner who has lost equipment and a good faith purchaser who has done nothing wrong. The Louisiana legislative body reasoned: A good faith purchaser cannot protect himself through the purchase of insurance or any other means whereas the owner of the lost equipment can insure against such loss. The law of the State of Louisiana seeks under this rationale to provide a fair and equitable means of division of losses and clearly is not intended to encourage thievery. An attempt to cause finality in commercial sales and a fair outcome based on sound reasoning is surely not contrary to the public policy of the State of Florida.

What, then, is “public policy” in regard to this unique factual situation? Although Florida case law is clear that a thief cannot confer good title by sale, no Florida statute or constitutional provision directly addresses the clash between the rights of an “innocent” theft victim and an “innocent” purchaser of stolen property. The difficulties inherent in any attempt to concisely define the term “public policy” so as to confidently apply it to varying factual situations are elucidated at length in Atlantic Coastline R.R. Co. v. Beazley, 54 Fla. 311, 45 So. 761 (1907). Various writers quoted in that opinion have characterized the term as “an unruly horse,” “a matter of individual opinion,” “political expedience,” and a matter of “the habits and fashions of the day.”

In Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926), cited by both the appellant and the appellee, the general rule governing comity is set forth in a quotation from Joyner v. Joyner, 131 Ga. 217, 62 S.E. 182 (1908):

[I]n a proper case the laws and judicial proceedings of one state will be enforced in another state, provided they do not involve anything immoral, contrary to general policy, or violative of the conscience of the state called upon to give them effect.

Id. 110 So. at 544.

In State Farm Mutual Automobile Ins. Co. v. Olsen, 406 So.2d 1109 (Fla.1981), the Florida Supreme Court was confronted with the issue of whether the public policy of Florida favoring the doctrine of comparative negligence over the doctrine that contributory negligence completely bars a cali-mant would prevent the enforcement of Illinois law in Florida as the forum state. The Supreme Court, despite the strong policy language in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and the existence of legislation implementing comparative negligence, opted to enforce Illinois law as paramount to Florida law. If enforcement of the “unjust and inequitable” concept of contributory negligence as a bar does not defeat comity, it seems reasonable to argue that Louisiana’s approach to the respective rights of two innocent parties (rightful owner and ultimate purchaser for value) should not defeat comity.

In a recent case emanating from the First District, the same question which confronts us here was answered in favor of the victim of the theft and against the ultimate purchaser. In Anderson Contracting Company, Inc. v. Zurich Ins. Company, 448 So.2d 37 (Fla. 1st DCA 1984), Judge Barfield, writing for the court, said:

Comity does not require Florida public policy to be supplanted by foreign law. Comity is not a rule of law, but of practice, convenience and expediency. Where it would be contrary to the statutory law or contravene some established and important policy of the forum state, it is not applied.... It is the public policy of Florida that one in possession of stolen property, even if he has innocently purchased it from a “dealer,” has no posses-sory or ownership right to the property as against the rightful owner from whom the property was stolen, since the dealer could convey no better title than he received from the thief.

The First District opinion relied primarily on three Florida Supreme Court cases for its conclusion: Gillen v. United Services Automobile Assn., 300 So.2d 3 (Fla.1974); Cerniglia v. C & D Farms, Inc., 203 So.2d 1 (Fla.1967); Sherbill v. Miller Mfg. Co., 89 So.2d 28 (Fla.1956). These cases, respectively, denied comity based on Florida public policy in regard to “other insurance clauses” in a New Hampshire auto policy, a contract not to compete, and a waiver of homestead exemption as to debt.

We agree with the conclusion of our sister court in Anderson, despite our difficulties in reconciling Olsen with the prior Florida Supreme Court cases cited above. Accordingly, the judgment below is reversed and this cause remanded for entry of judgment for the appellant.

REVERSED and REMANDED.

ORFINGER, C.J., and CYCMANICK, M.F., Associate Judge, concur.

      . The trial court’s reliance on the case of Greer v. Commercial & Exchange Bank, 118 So.2d 566 (Fla. 2d DCA 1960), is misplaced. That case held that a Georgia bank that loaned money on a car purchased in Georgia by a non-resident, and failed to record its lien in the county of sale as required by Georgia law, could not prevail on that lien as against an innocent purchaser for value and without notice. The purchase by the defendant therein was from the true owner; no theft broke the chain of title.

        . Hoffman at 436.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Willie James WARREN, Appellee.
    No. 83-586.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    Edwin R. Ivy, Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order suppressing evidence. Appellee was arrested for carrying a concealed firearm and it was the firearm which was suppressed.

The testimony in this matter is short and somewhat conflicting. That is explained by the fact that the testimony available to the trial judge, so far as our record reveals, was in the form of a deposition attended only by the defense attorney and the policeman. Although apparently notified of the taking, the prosecution did not attend, however, the record does reveal the basis for the search and reversal of the order.

At 4:00 A.M. Officer Peck was flagged down by a woman he knew to be a prostitute who told him appellee Warren had robbed her of $250.00. Peck had seen Warren’s car leaving the woman and knew it was Warren’s car at that time. After she told him Warren had robbed her, Peck went after Warren and stopped him. Peck requested a computer check on Warren’s driver license and determined it had been suspended so he arrested him for driving on a suspended license or driving without a valid license (the testimony varies) and searched underneath the seat and found the firearm. A violation of Section 322.34, Florida Statutes (1983) calls for an arrest. A search of the immediate area around the arrestee is permitted when incident to arrest. A firearm under the seat but not visible from outside is a concealed weapon. Savoie v. State, 422 So.2d 308 (Fla.1982); State v. Bowlin, 435 So.2d 986 (Fla. 4th DCA 1983); State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982). See also, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

The order granting the motion to suppress was error because the search was a lawful search incident to arrest. Although not mentioned by the parties, it is noted the officer also had probable cause to arrest appellee and seize the car and its contents for the reported robbery. That too justifies the search and seizure of the firearm. The order suppressing the evidence is reversed and this cause remanded for trial.

REVERSED and REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: GRIMES, Judge.

text:
    Robert T. FYMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-137.
    District Court of Appeal of Florida, Second District.
    June 8, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant attacks his conviction for grand theft on the ground that his right to a speedy trial was violated.

On April 6, 1981, appellant was arrested and taken into custody for delivery of, possession of, and conspiracy to traffic in methaqualone. A laboratory report dated April 9, 1981, indicated that the purported quaalude tablets were actually aspirin. On May 8, 1981, an information was filed charging appellant with the above mentioned crimes. Appellant was subsequently released on his own recognizance.

On July 1, 1981, a second information was filed charging appellant with grand theft and conspiracy to traffic in methaqua-lone. This information was based upon the same transaction as the original information. A capias was immediately issued pursuant to the new information.

On July 2, 1981, appellant appeared in court with his attorney for a disposition of the original charges. The state attorney advised him that the state had nolle prossed the original information. On July 31, 1981, the capias issued pursuant to the second information was stricken by the circuit court. On September 14, 1982, appellant was served with a capias and arrested for grand theft and conspiracy to traffic in methaqualone. The appellant subsequently filed a motion for discharge under the speedy trial rule.

At the hearing on the appellant’s motion for discharge, defense counsel contended that speedy trial ran from the date of appellant’s original arrest, April 6, 1981, and that appellant had not been arrested or brought before the court on the second information within 180 days. The state argued that appellant had been released on his own recognizance on May 8, 1981, but moved without providing a forwarding address to the clerk of the court. Thus, the state contended that appellant was unavailable for trial until his arrest by capias on September 14, 1982. The state noted that an investigator had attempted to find appellant on one occasion prior to his arrest. The trial court denied appellant’s speedy trial motion.

On January 3, 1982, appellant entered a plea of nolo contendere to the offense of grand theft, reserving the right to appeal the denial of his motion for discharge. In order to perfect the record, appellant testified that before his second arrest he did not know that a new information had been filed against him. Appellant stated that he had been continuously available for trial in the first case which was nolle prossed on July 2, 1981. If appellant had known new charges were filed, he would have contacted his attorney. After the appellant testified, the assistant state attorney asked that a ledger in which appellant’s rental payments were recorded be included in the court file. The ledger showed that appellant had vacated his apartment on August 10, 1981. Appellant’s plea of nolo conten-dere was then accepted, adjudication was withheld, and appellant was placed on four years probation.

Florida Rule of Criminal Procedure 3.191(a)(1) provides that a person charged with a felony shall without demand be brought to trial within 180 days. This time period begins to run when the defendant is arrested “as a result of the conduct or criminal episode giving rise to the crime charged.” Wright v. State, 387 So.2d 1060 (Fla. 5th DCA 1980); Fla.R.Crim.P. 3.191(a)(4). Under the speedy trial rule, the time within which a person must be tried cannot be extended by the state entering a nolle prosequi to a crime charged and then prosecuting new or different charges based on the same conduct or criminal episode. State v. Rheinsmith, 362 So.2d 698 (Fla. 2d DCA 1978); Fla.R.Crim.P. 3.191(h)(2).

Because appellant was first arrested as a result of the same conduct which gave rise to the charges in the second information, the speedy trial period commenced on April 6, 1981, the date of that first arrest. There is no dispute that more than 180 days had elapsed between the date of the first arrest and the date appellant filed his motion for discharge. Essentially, the state argues that the appellant was unavailable for trial during the 180-day period because he moved without providing a forwarding address. However, the record reflects that the recognizance form which directed that appellant leave a forwarding address was for the first information which was nolle prossed. Since appellant had no notice of the new charges filed on July 1, 1981, there was no reason why he should have remained available for trial. A defendant is unavailable for trial if he or his counsel fails to attend a proceeding where their presence is required by the rules. Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981); Fla.R. Crim.P. 3.191(e). Such absence was not proved by the state below. Moreover, there was no testimony or finding that appellant knew he was wanted by the police or was evading arrest. See State ex rel. Green v. Patterson, 279 So.2d 362 (Fla. 2d DCA 1973). Thus, the delay in trial was not attributable to him.

Accordingly, the conviction is reversed, and the appellant is discharged.

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

      . Although it is unclear from the record, it appears that the appellant was served with the capias which had been previously stricken.

      . The charge of conspiracy to traffic in metha-qualone was nolle prossed by the state.

      . The state also contends that because this court previously denied without opinion the appellant’s petition for writ of prohibition on the same point, such ruling has become the “law of the case” and cannot be changed. Even though the filing of a petition for writ of prohibition is a proper remedy to attack a speedy trial violation, prohibition is a discretionary writ. State ex rel. Rheinauer v. Malone, 40 Fla. 129, 23 So. 575 (1898). Therefore, we do not view our denial of the petition which was filed only a few days .before the scheduled trial and supported by insufficient documentation as establishing the "law of the case.” In any event, since we still have jurisdiction, we have the authority to change the "law of the case” if we conclude that our prior ruling was in error. Beverly Beach Properties, Inc. v. Nelson, 68 So.2d 604 (Fla.1952), cert. denied sub nom. Rensta v. Beverly Beach Properties, Inc., 348 U.S. 816, 75 S.Ct. 27, 99 L.Ed. 643 (1954).


author: GRIMES, Judge. CAMPBELL, Judge,

text:
    Joseph A. BARNES, Appellant, v. Linda L. OSTRANDER, Appellee.
    No. 83-2503.
    District Court of Appeal of Florida, Second District.
    June 8, 1984.
    Elihu H. Berman of Krug, Berman & Silverman, Clearwater, for appellant.
    Gary A. Hewetson, P.A., Clearwater, for appellee.
   GRIMES, Judge.

This appeal involves a suit for change of custody under the Uniform Child Custody Jurisdiction Act.

The parties were divorced in Michigan in 1974. Custody of their minor daughter, Victoria, was awarded to the wife. Victoria and her mother moved to Illinois, and the husband now lives in Florida. In October of 1983, the husband filed suit in Florida for change of custody, alleging that Victoria had been living with him since July of 1983. He asserted that Victoria had been seen by several physicians and the All Childrens’ Hospital Cleft Palate Team and that she was in need of surgical intervention to correct certain facial deformities. The husband claimed that he had previously sought to have the wife take such action but that she had neglected to do so.

The wife moved to dismiss for lack of jurisdiction and filed an affidavit stating that the husband had illegally kept Victoria in Florida following her summer visitation with him. She also pointed out that she had been advised in the past to “hold off” on surgery but that she had now scheduled an appointment for Victoria at the University of Illinois Hospital. The court entered an order declining jurisdiction to modify the Michigan custody decree upon the authority of section 61.1318(2), Florida Statutes (1983), and Mondy v. Mondy, 428 So.2d 235 (Fla.1983). We affirm.

The husband does not contend that Florida is the “home state” of the child as defined by the uniform act. He asserts jurisdiction under section 61.1308(l)(b), which authorizes a court to make a custody determination if:

(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

Section 61.1318(2), the statute upon which the court declined jurisdiction, reads in pertinent part:

Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody....

The husband first suggests that it does not appear from the face of the complaint that he had improperly retained the child following a period of temporary custody. However, the wife filed an affidavit to this effect, and he never denied the truth of the assertion. Speaking motions with supporting affidavits may be filed in order to attack jurisdiction over the subject matter. See H. Trawick, Florida Practice and Procedure § 3-3 (1983).

The husband also argues that the court should have at least taken testimony in order to determine whether to accept jurisdiction “in the best interest of the child.” Even assuming the truth of the husband’s allegations, we cannot say that the court erred in concluding that the interest of the child did not require the Florida court to assume jurisdiction. The husband was in violation of the Michigan judgment, and section 61.1318(2) is designed to discourage child snatching and forum shopping in custody cases. Cf. Mondy v. Mon-dy (wherein the supreme court reversed the trial judge for failure to decline jurisdiction by invoking the clean hands provision of the statute).

AFFIRMED.

BOARDMAN, A.C.J., concurs.

CAMPBELL, J., specially concurs with opinion.

CAMPBELL, Judge,

specially concurring with opinion.

I concur with the result reached in this case because I cannot say that the trial judge so abused his discretion as to require our reversal. However, I would also, on the same basis, have affirmed his actions if he had concluded that the best interests of the child warranted his exercise of jurisdiction.

If the “best interest of the child” is to remain a viable standard in Florida child custody proceedings, it would seem incumbent upon the trial judge to have taken testimony to determine what in fact were the best interests of the child. However, because those interests can still be determined in Illinois, the child’s home state now, and because we are sitting in an appellate capacity, I cannot say the trial judge below abused his discretion by deciding the question upon the pleadings and supporting affidavits.


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Appellant, v. James F. SCHMITZ, Appellee.
    No. 84-117.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.

      Jim Smith, Atty. Gen., Julie S. Thornton, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, Rory S. Stein, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The state appeals from a pre-trial order in a manslaughter-DUI case which suppressed the result of a blood alcohol test on the ground that the person who took the sample from the defendant was not authorized under Sec. 316.1932(l)(f)(2), Fla.Stat. (1981). We affirm because (a) the state attorney interposed no objection below and indeed specifically agreed that the motion to suppress was well taken, State v. Evans, 388 So.2d 1104 (Fla. 4th DCA 1980); and (b) on the merits, the ruling was entirely correct. State v. Roose, 450 So.2d 861 (Fla. 3d DCA 1984).

Affirmed,

      . Whether the state's attempt to reverse an order on appeal which it represented was correct to the trial court is characterized as merely "unseemly,” Finney v. State, 420 So.2d 639, 643 (Fla. 3d DCA 1982) (Pearson, J., concurring spe-dally), or in the more pejorative terms it seems to warrant, such a change-of-face-and-heart will not be permitted to succeed. See State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980).


author: WIGGINTON, Judge.

text:
    Dykes DAY, Appellant, v. INLAND CONSTRUCTION and CNA Insurance Group, Appellees.
    No. AV-307.
    District Court of Appeal of Florida, First District.
    June 12, 1984.

      George J. Adler, of George J. Adler, P.A., Orlando, for appellant.
    Wendell J. Kiser and Paul J. Morgan, of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellees.
   WIGGINTON, Judge.

We affirm the deputy commissioner’s order denying claimant’s request for psychiatric care and orthopedic treatment by Dr. Gutman, and authorizing and reauthorizing Dr. Stanford and Dr. Maleki, respectively, to provide any future orthopedic care if necessary. The deputy’s finding that claimant is not in need of psychiatric care as a result of his industrial accident is supported by competent and substantial evidence, as is his finding that claimant has been provided appropriate orthopedic care by the physicians authorized by the employer/carrier. Also, the deputy gave a reasonable explanation for rejecting Dr. Gutman’s opinions. For these reasons, we find the circumstances in this case to be clearly distinguishable from those in McCandless v. M.M. Parrish Construction, 449 So.2d 830 (Fla. 1st DCA 1984).

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: DELL, Judge.

text:
    In re the ESTATE OF Torkild L. STERNER, Deceased.
    No. 83-2149.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for appellant — Virginia Sullivan.
    Karl W. Adler of Adler, Tolar & Adler, Fort Lauderdale, for appellee — Carol Perry.
   DELL, Judge.

Virginia K. Sullivan, beneficiary of a life tenancy under the will of Torkild L. Sterner, appeals from an order directing her to pay all real estate taxes, encumbrances, liens, pledges, etc., assessed against the real property.

The decedent initially devised all his property to his daughter, Carol Perry, but later executed a codicil to his will which provided:

In consideration of the duties undertaken by my housekeeper and personal nurse, Virginia K. Sullivan, now residing with me for a number of years in my resident property which is located- at 1213 Cordova Road, Fort Lauderdale, Florida, and who is taking care of my welfare and comfort, in addition to any compensation she may have received for her services, I direct my Executor to give and permit Virginia K. Sullivan, the right to reside in my said residence property after my death for the rest of her remaining years in life and as long as she wants to reside therein, free of rent and of any encumbrance of any nature whatsoever, such as taxes, liens, pledges, etc., except utilities and telephone. In the event this property is to be disposed but only with the approval and consent of Virginia K. Sullivan, for any reason whatsoever, then she shall be entitled to half or fifty (50%) percent of the proceeds resulting therefrom. [Emphasis added.]

Other than the real property which is the subject of the foregoing specific devise, the estate had only $1,846 in cash. Appellant paid the 1980 real estate taxes because the estate no longer had sufficient funds to pay them and filed suit against the personal representative in county court for reimbursement. The personal representative petitioned the probate court to interpret the will. Appellant thereafter dismissed the county court action and requested the probate court to grant a lien in her favor against the real property for the 1980 taxes, and for such other future exempted expenses which she may be required to pay during her life tenancy. The probate court found:

that any implied trust for benefit of Virginia Sullivan has failed and becomes void for lack of a corpus. Virginia Sullivan, as life tenant, has the duty to pay the real estate taxes, encumbrances, liens, pledges, etc. assessed against the property during her life tenancy and shall not have a lien in her favor for said payments against the property. The 1980 real estate taxes would be an obligation of the estate, and the taxes assessed after 1980 must be paid be [sic] Virginia Sullivan as life tenant.

Appellant contests this order, contending that since the codicil specifically provided for her to take a life tenancy free from encumbrances, the probate court could not require her to pay them. We agree.

Section 733.803, Florida Statutes (1983), provides:

The specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense of the residue of the estate only when the will shows such an intent. A general direction in the will to pay debts does not show such an intent.

The codicil demonstrates the testator’s clear intent to devise the life tenancy free of specified encumbrances. Section 733.-803 provides for these encumbrances to be paid from the residue of the estate. In this instance, the only asset remaining to be distributed as part of the residue of the estate is the remainder interest in the home. Therefore we hold that the probate court erred when it imposed the duty upon appellant to pay the exempted expenses, without making provision for reimbursement of those expenses from the remainder when the life tenancy terminates.

We reverse the order of the probate court and remand this cause with directions for the probate court to enter an order providing that appellant, or her estate, shall have a lien against the proceeds derived from the sale of the real property equal to the amount of her payments of real estate taxes, encumbrances, liens, pledges, etc., except utilities and telephone. Such lien shall become enforceable upon termination of the life tenancy.

REVERSED and REMANDED.

ANSTEAD, C.J., and DOWNEY, J., concur.


text:
    SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Melvin L. MUROFF and Gloria Muroff, Appellees.
    No. 83-1529.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Stanley J. Niego, West Palm Beach, for appellant.
    Charles C. Chillingworth of Chilling-worth & Axelrod, P.A., Palm Beach, for appellees.
   HERSEY, Judge.

South Florida Water Management District appeals from- a summary final declaratory judgment voiding a reservation of oil, gas and mineral rights in a deed from the District to appellees’ predecessor in title.

The trial court was concerned, as are we, with the effect of two Florida cases relating to the efficacy of a tax lien foreclosure by the District on lands held by the Trustees of the Internal Improvement Fund without benefit of an application for mandamus.

In the leading case of Hunt v. Bd. of Comm’rs of Everglades Drainage Dist., 160 Fla. 955, 37 So.2d 534 (1948), it was established that while land held by the Trustees of the Internal Improvement Fund was subject to taxation by the Everglades Drainage District “the proper method to enforce payment of taxes on public lands is by mandamus.” Id. at 958, 37 So.2d at 535. In essence, the supreme court held that the trustees are mandated by statute to pay the requisite taxes and that mandamus therefore lies to compel such payment. Subsequently, in the case of State ex rel. Southern States Land & Timber Corp. v. Gladeview Drainage Dist., 38 So.2d 818 (Fla.1949), the court was presented with the question whether or not the trustees were statutorily required to pay taxes where the amount involved exceeded the fair market value of the land. The court held, upon appeal from an application for mandamus, that the trustees had the authority to abandon the land rather than to pay the taxes where the amount of taxes exceeded the value of the land. The holding in Gladeview appears to be a simple extension of the rationale of Hunt with the added possibility that the trustees are empowered to surrender the land rather than to pay the taxes where circumstances render that alternative attractive. The difficulty that arises from the Gladeview case comes about because the opinion contains a direct quotation from the brief of counsel which suggests that a suit in rem to foreclose tax liens may under such circumstances be substituted for the mandamus action. We hold that such an interpretation is not justified. Our holding is based upon the fact that the opinion quotes counsel with approval in a general sense, but does not make any specific holding that would obviate the necessity for the remedy of mandamus. Secondly, since Gladeview arises in the context of mandamus, any such language would be dictum in any event. Under most circumstances we would certify the foregoing to the supreme court as a matter of great public interest. However, to do so here would be premature because the point is not dispositive of the present appeal.

Appellees acquired title to the real property involved in the litigation from the Trustees of the Internal Improvement Fund. The trustees’ title derives from two sources, giving rise to the controversy between the parties. The first source of title is a Special Master’s Deed executed and recorded in 1932 conveying title directly to the trustees. The second source of title is a deed from the Everglades Drainage District (now the South Florida Water Management District), executed and recorded in 1947 and containing a reservation of oil, gas and mineral rights. The Everglades Drainage District traces its title to tax sale certificates originating in 1941. The record does not establish that mandamus proceedings were brought by the Everglades Drainage District against the Trustees of the Internal Improvement Fund for payment of delinquent taxes in or around 1941.

Appellees filed a complaint for declaratory relief, to which the District responded with a motion to dismiss. Appellees then filed a motion for summary final declaratory judgment. No answer to the complaint has ever been filed by the District.

The trial court granted summary final declaratory judgment on the basis that since there was no action for mandamus in connection with the transfer of 1941, no title vested in the District, with the result that the District’s 1947 deed back to the trustees (which contained the reservation of oil, gas and mineral rights) was void. The trial court’s rationale accords with our analysis that Gladeview does not postulate in rem tax foreclosure proceedings as an adequate substitute for mandamus as a remedy for nonpayment of taxes on lands held by the Trustees of the Internal Improvement Fund.

The problem with the summary final judgment is that while a party may file a motion for summary judgment at any time after the expiration of twenty days from the commencement of the action pursuant to Florida Rule of Civil Procedure 1.510(a), “if a plaintiff moves for summary judgment prior to the defendant filing an answer, the movant must demonstrate conclusively that the defendant cannot plead a genuine issue of material fact.” Gutterman-Musicant-Kreitzman, Inc. v. I.G. Realty Co., 426 So.2d 1216 (Fla. 4th DCA 1983). In that case we quoted with approval the following language from Settecasi v. Board of Pub. Instruction, 156 So.2d 652, 654 (Fla. 2d DCA 1963):

Although a plaintiff may move for summary judgment before the defendant has answered, the motion should not be granted unless it is clear that an issue of material fact cannot be presented. At such point in the pleading when the plaintiff moved for summary judgment, the plaintiff had the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitled it to judgment as a matter of law. This burden is upon the movant irrespective of whether he or his opponent would at trial have the burden of proof on the issue concerned, and it rests on the mov-ant whether he is by it required to show the existence or non-existence of facts_ In such an instance, the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.

426 So.2d at 1217-18.

The District postulates as affirmative defenses to appellees’ complaint abandonment, estoppel, ratification and waiver, laches, statute of limitations, and Marketable Record Title Act. It would be virtually impossible for this court on the existing record to determine whether or not one or more of these proposed affirmative defenses might give rise to a genuine issue of material fact. It is clear that the appellees have not dispelled that possibility on the record. For that reason we reverse the summary final declaratory judgment and remand to the trial court for further appropriate proceedings.

REVERSED and REMANDED.

ANSTEAD, C.J., and BERANEK, J., concur.


author: ANSTEAD, Chief Judge.

text:
    William HANSON and Isabelle Hanson, Appellants, v. GENERAL ACCIDENT FIRE & LIFE INSURANCE CORPORATION, LTD., etc., et al., Appellees.
    No. 83-1400.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Martin J. Sperry of Krathen & Sperry, P.A., Fort Lauderdale, for appellants.

      John Edward Herndon, Jr., of Thornton & Herndon, Miami, for appellee General Ace.
   ANSTEAD, Chief Judge.

This is an appeal from a final summary-judgment holding that appellant, William Hanson, was not covered under the liability provisions of his homeowner’s policy with appellee, General Accident Fire & Life Insurance Corporation, with reference to an incident that occurred away from Hanson’s home premises. We reverse.

James Fritz was injured while he and William Hanson were removing a CB antenna owned by Hanson from the roof adjacent to a store rented by Hanson in a small shopping center in Broward County. Hanson had ceased doing business at this location although he had not yet completely removed all of his business property from the premises. At the time of the accident Hanson and Fritz were standing in a parking lot behind the store. The antenna was attached to the roof of the building near the store. After Hanson and Fritz removed the antenna, and while Hanson was trying to lower it to the ground, it hit power lines and Fritz was injured by the electrical shock that resulted. Hanson did not rent the roof or parking areas. Rather, they were owned and maintained by the shopping center owner who testified that Hanson had no control over these areas. It is also uncontroverted that the antenna had never been used in Hanson’s business and that Hanson was removing the antenna for personal reasons to return it to his home. The antenna had originally been installed to facilitate personal communications between Hanson and his wife, but even that use had been abandoned long before the incident in question.

In the trial court General Accident relied upon two exclusions in its Homeowners Policy with Hanson to deny him coverage for his alleged liability to Fritz for negligently handling the antenna. The policy excluded coverage “to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits” and “to bodily injury or property damage arising out of any premises, other than an insured premises, owned, rented or controlled by any insured.... ” On appeal, General Accident agrees that the trial court based its decision on the second exclusion and General Accident relies solely on that exclusion to sustain the trial court’s ruling. In short, General Accident claims that the accident arose out of premises controlled by Hanson.

This court has repeatedly held that use of the phrase “arising out of” indicates an intention to narrow the scope of an exclusion to incidents that have a causal relationship to the premises, as opposed to incidents that merely occur on such premises. General Accident Fire & Life Assurance Corp. v. Appleton, 355 So.2d 1261 (Fla. 4th DCA), cert. denied, 361 So.2d 830 (Fla.1978). Also see St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973). Other exclusionary language has been given a broader meaning. For instance, it was noted in Jackson v. Lajaunie, 270 So.2d 859 (La.1972), that a clause excluding accidents that happen “in connection with” owned, but uninsured, premises excludes more broadly than a clause excluding accidents that “arise out of” such premises. The Jackson court denied coverage under a homeowner’s policy for a shooting that occurred at the insured’s business.

In Lititz Mutual Insurance Co. v. Branch, 561 S.W.2d 371 (Mo.App.1978), the court held that a dog bite injury by the insured’s personal dog and occurring on the insured’s business premises did not “arise out of” such premises. The court reasoned that in order to “arise out of” such premises the specific tortious conduct must “originate from, grow out of, or flow from” such premises. Id. at 373. “That [the bite] occurs upon the premises does not establish a causal connection between the bite and the premises.” Id. at 373.

Under the Lititz reasoning, with which we agree, and our previous decisions construing the phrase “arising out of,” even assuming that the premises where the incident occurred were controlled by Hanson, we do not believe the evidence will support a finding that the accident herein arose out of those premises. Because the insurance excludes accidents “arising out of” rather than “occurring on” other premises, the insurance should not be read to blanketly exclude such accidents. The homeowner’s insurance provides broad general coverage for conditions of the specifically insured premises and for the personal conduct of the insured wherever he may be located. The exclusion for damages arising out of other premises owned, rented or controlled by the insured logically protects the insurer from liability for unsafe conditions in those specified premises in which the insured has an interest but for which he has not secured coverage under the homeowner’s policy. The accidental touching of the antenna to the uninsulated wire was totally unrelated to the condition of the premises. Indeed, if Hanson is to be held liable at all it would be because of his alleged personal negligence in handling the antenna after it was detached from the roof. Thus, in our view, coverage cannot be denied under this exclusion.

Accordingly, having determined that the trial court erred in concluding that no coverage was available, we reverse and remand this cause with directions that further proceedings be conducted in accord herewith.

DOWNEY and DELL, JJ., concur.

      . The first clause excludes coverage to injury "arising out of business pursuits.” It is apparent in this case that, even if the CB antenna may have been located at Hanson's business, its use and removal were irrelevant to his business. Thus, coverage cannot be denied under this clause. See Michigan Mutual Liability Co. v. Ferguson, 15 Mich.App. 298, 166 N.W.2d 525 (1968); Crane v. State Farm Fire and Casualty Co., 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129 (1971); and State Farm Fire & Casualty Co. v. Moore, 103 Ill.App.3d 250, 58 Ill.Dec. 609, 430 N.E.2d 641 (1981). Also see generally Annot., 48 A.L.R.3d 1096 (1973).

      . Of course, Hanson also claims that the accident did not occur on property "owned, rented, or controlled” by him. Again, the intent of such an exclusion must at least be to exclude properties that the insured himself has an interest in and could separately insure. See St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973). Thus, if Hanson could separately insure himself against injuries occurring on this property, perhaps the exclusion would be valid. Of course, if Hanson owned or rented this property, he could clearly insure it. It is not clear, however, whether an insurance company would write a policy for Hanson to insure the common areas of the parking lot and roof where the injury occurred. While no case law has developed regarding the meaning of "control" in this exclusion, cases have defined this term in relation to exclusions of property damage to property in the control of the insured. In Klapper v. Hanover Insurance Co., 39 Misc.2d 215, 240 N.Y.S.2d 284 (N.Y.Sup.Ct. 1963), the court held that a window washer did not have control over the window that he was washing. Control remained in the building owner. Control "is indicated by an occupation exclusive of the control of anyone else.” Id. 240 N.Y.S.2d at 286. In general, the courts have held that an insured with only limited access to property does not control the property. Bigelow-Liptak Corp. v. Continental Insurance Co., 417 F.Supp. 1276 (E.D. Mich. 1976); Leiter Electric Co. v. Bituminous Casualty Corp., 99 Ill.App.2d 386, 241 N.E.2d 325 (1968); Gibson v. Glens Falls Insurance Co., 241 S.C. 293, 128 S.E.2d 157 (S.C.1962). Thus, because Hanson only had limited access to the roof, and clearly did not "own, rent or control” the parking lot where the accident happened, these cases also indicate that the exclusion would not apply. Because we have concluded that the exclusion would not apply even if the premises were “controlled” by the insured we need not decide this issue.


author: SHIVERS, Judge.

text:
    Sarah Frances CARTER, Appellant, v. AMERICAN FINNISH NURSING HOME and Southeastern Fire Insurance Company, Appellees.
    No. AU-433.
    District Court of Appeal of Florida, First District.
    June 13, 1984.

      Kevin F. Richardson of Law Offices of Clyatt & Richardson, P.A., West Palm Beach, for appellant.
    Richard H. Gaunt, Jr. of Cibula, Gaunt & Pratt, West Palm Beach, for appellees.
   SHIVERS, Judge.

The claimant in this workers’ compensation case appeals the deputy commissioner’s order denying her claim for payment by the employer/carrier of various medical bills incurred during an emergency hospitalization. We affirm.

Claimant injured her back in a compensa-ble accident on July 17, 1982. On March 21, 1983, claimant was admitted to Doctors Hospital of Lake Worth for pain in her back by an unauthorized physician, Dr. Phillip Levitt, after claimant’s authorized physician informed her he could not see claimant until the following day. At the time of her admission, Doctors Hospital was informed that claimant’s injury was workers’ compensation related and was further informed of the name of the carrier handling claimant’s case. Dr. Levitt was also aware that claimant’s injury was workers’ compensation related and that a carrier was handling claimant’s case.

On March 30, 1983, claimant filed claim for, among other benefits, authorization of treatment by Dr. Levitt and continuing medical treatment. At the two hearings held on this matter, claimant argued that her admission to Doctors Hospital and her treatment by Dr. Levitt was on an emergency basis. The deputy agreed. Nevertheless, the deputy denied the assessment of Dr. Levitt’s and Doctors Hospital’s medical expenses against the employer/carrier on the basis that claimant did not present any evidence of any bills or reports from Doctors Hospital or Dr. Levitt on the proper workers’ compensation forms, nor an excuse as to why such bills and reports were not timely and properly submitted. We find no error in this order.

Section 440.13(1), Florida Statutes, requires that within ten (10) days after a physician or hospital furnishes their first remedial treatment to a claimant, a report of the claimant’s injuries and treatment must be furnished to appropriate entities. Untimely medical reports may be excused by the deputy commissioner for good cause. Good cause has been found in cases where a confused legal situation exists, or where the employer waives the requirements of section 440.13(1) with actual knowledge, or where complex factual circumstances exist. See Walt Disney World Co. v. Schiebel, 414 So.2d 602 (Fla. 1st DCA 1982).

In the instant case, claimant’s attorney failed to present any evidence at the hearings conducted on claimant’s claim as to why Doctors Hospital and/or Dr. Levitt should have been excused from filing timely medical reports. Moreover, our review of the record does not suggest good cause for the failure of Doctors Hospital and Dr. Levitt to timely file their reports. Accordingly, we find and hold that the deputy did not abuse his discretion in denying payment by the employer/carrier of Dr. Levitt’s and Doctors Hospital’s medical bills. See Edwin Kalmus & Company v. Berkarich, 421 So.2d 584 (Fla. 1st DCA 1982) (as to the standard of appellate review).

The deputy’s order is AFFIRMED.

MILLS and WIGGINTON, JJ., concur.