text:
    Jennifer Lynn SHUFFLEBARGER and Abbe Elizabeth Shufflebarger, a minor, by their next friends, Raymond G. and Barbara OKTAVEC, Appellants, v. Harry L. SHUFFLEBARGER, M.D., Appellee.
    No. 84-556.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.

      Conrad, Scherer & James and Robert F. Jordan, Fort Lauderdale, for appellants.
    Hendricks & Hendricks and Ben E. Hendricks, Jr., Coral Gables, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Jennifer Lynn Shufflebarger (J.S.) and Abbe Elizabeth Shufflebarger, a minor (A.S.), through their guardians and next friends, the Oktavecs, appeal the order entered by the trial court on their petition for enforcement and modification of a previous child support award.

The Shufflebargers were married twice and divorced twice. One child, A.S., suffers from mental retardation due to the effects of fetal alcohol syndrome. The wife obtained custody of the two children pursuant to the second divorce property settlement agreement. Shortly thereafter, the wife was hospitalized and her sister, Mrs. Oktavec, took the children into her home. The children have since continued to, and presently do, reside with the Okta-vecs. Also pursuant to the second property settlement agreement, the husband agreed to pay child support of $250 per month per child for 48 months, at which time alimony payments would terminate, and thereafter, to pay $350 per month per child until each child reached majority. At the time of the final hearing on the petition for modification, August 17, 1983, J.S. had reached age 18. The parties’ agreement further stated that “all sums paid for the support of the minor children and not actually used therefor shall be placed in a savings account by the wife for the use and benefit of said children.” The father paid the $250 per month for each child until alimony terminated, and thereafter paid the same $500 per month child support, depositing the extra $200 a month in a savings account. The amount accrued in the account, with interest, was $14,500.

On December 1, 1982, the Oktavecs filed a petition for modification of the final judgment of dissolution seeking to enforce payment of the child support arrearages, to increase the monthly support for the children, to receive from the father financial security for the retarded child via a life insurance policy, and to obtain legal custody of A.S. The father stipulated that he had the financial resources to pay any amount the court deemed necessary for child support. After a hearing on the matter the court awarded the Oktavecs custody of A.S. and ordered the father to pay $750 a month for the care of A.S., commencing on August 1, 1983 and continuing until terminated or modified by further order of the court, and to pay for the child’s summer camp. The court additionally ordered the father to purchase a term life insurance policy in the amount of $100,000 with A.S. as beneficiary, but only if the insurance could be purchased at a “normal and ordinary rate.” The court further split the $14,500 arrearages in half, awarding half to the Oktavecs and leaving the remaining half in the savings account, to be used for the education of J.S. Finally, the court ordered the father to pay all dental and medical bills of the children.

The Oktavecs raise four contentions on appeal: (1) the court erred in not awarding an increase in support for J.S. from the date the petition was filed, December 1, 1982, until the date of her eighteenth birthday, August 17, 1983; (2) it was error for the court to award half of the arrearages to the Oktavecs and to leave the remainder in trust for J.S.’s education; (3) the court erred in conditioning the purchase of a life insurance policy on the premium payments; and (4) the award of $750 a month for A.S. was inadequate.

Taking the last contention first, we affirm the court’s award of child support for the disabled child, A.S., of $750 per month. The trial court heard testimony on the amount necessary to provide for A.S., and its award was based on competent and substantial evidence; the court properly made the award retroactive to the date the petition was filed. Menendez v. Menendez, 435 So.2d 287 (Fla. 5th DCA 1983); Aycock v. Aycock, 433 So.2d 680 (Fla. 5th DCA 1983); Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982). A determination of the amount of child support is a matter of trial court discretion, which discretion is subject to a test of reasonableness. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). The test is met and no abuse of discretion is shown in the record before us.

We agree, however, with the Oktavecs’ remaining contentions, for the reasons which follow, and reverse and remand for modification consistent with this opinion.

First, the child support payments agreed upon by the parties are not commensurate with the husband’s present financial ability and the present needs of his children. Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979). Where a party stipulates that he can adequately pay increased child support in order to foreclose inquiry into his present financial circumstances, a court can properly assume that his earnings and assets have substantially increased. Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA), pet. for rev. denied, 392 So.2d 1378 (Fla.1980). The facts of this case, furthermore, satisfy the rule that in order to require an upward modification, “there must also be an increase in the [child’s] needs which may be met only by a change in the existing judicial award.” Young v. Young, 456 So.2d 1282,1284 (Fla. 3d DCA 1984). Since the general rule is that a parent is obligated to support a child until the age of majority. Perla v. Perla, 58 So.2d 689 (Fla.1952), and since the effective date of a modification of child support payments is the date the petition is filed where it appears, as it does here, that the needs of the child existed as of that date, Meltzer v. Meltzer, supra; Friedman v. Friedman, 307 So.2d 926 (Fla. 3d DCA 1975), we conclude that it was error for the trial court to deny the increase in child support for J.S. from the date the petition was filed until the date she reached her majority. Fotorny v. Fotorny, 397 So.2d 329 (Fla. 4th DCA 1981); Steinau v. Steinau, 343 So.2d 631 (Fla. 4th DCA 1977).

Second, a court may order a noncustodial parent to maintain life insurance for the benefit of his minor child. Hinebaugh v. Hinebaugh, 403 So.2d 451 (Fla. 5th DCA), pet. for rev. dismissed, 408 So.2d 1093 (Fla. 1981); Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Moore v. Moore, 311 So.2d 152 (Fla. 3d DCA 1975). Even though a parent’s duty of support ordinarily ceases when a child reaches majority, an exception exists where an adult child suffers from physical or mental deficiencies. Perla v. Perla, supra; Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963). While we agree that the facts of this case support the provision in the modification order requiring the non-custodial parent to purchase a life insurance policy, we do not agree, however, with the condition imposed by the trial court that acquisition of the policy be dependent, on the availability of premiums at an ordinary and standard rate. The record indicates that financial ability was not an issue and that the father had previously experienced ill health. Accordingly, we reverse this portion of the order, with directions to delete the aforementioned condition as to life insurance policy premium rates.

Lastly, we address that portion of the order which ordered one half of the arrearages to be paid to the Oktavecs and left the remainder in trust for J.S.’s education. Unpaid child support is a vested right not subject to modification. Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974); Petrucci v. Petrucci, 252 So.2d 867 (Fla. 3d DCA 1971). By designating one half of the ar-rearages to be used for J.S.’s education the court, in essence, credited the father for future college expenses. While we deem it admirable that the father pay for J.S.’s college education, he owes no duty to do so, nor can the court order him to do so, absent an agreement to provide for same. Kern v. Kern, supra; Petrucci v. Petruc-ci, supra. Thus, the trial court abused its discretion by reducing the amount of the arrearages. The entire amount of accrued child support in arrears should be paid to the Oktavecs. Even though J.S. has now turned eighteen, the Oktavecs are the custodial guardians of the children and had the legal standing to enforce the childrens’ right to support while the children were minors. We believe they are entitled to enforce the payments of child support which accrued before the children reached age eighteen. See Newman v. Newman, 459 So.2d 1129 (Fla. 3d DCA 1984); Massey v. Massey, 443 So.2d 294 (Fla. 3d DCA 1988); Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982) (Sharp, J„ dissenting), pet. for rev. denied, 426 So.2d 25 (Fla.1983).

Accordingly, the order of the trial court under review is affirmed in part and reversed in part and remanded for further proceedings not inconsistent with this opinion.

. Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shirley KOJALI, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 84-609.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Cindy Huddleston, Miami, for appellant.
    M. Carmen Dominguez, Melvin A. Rubin, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The determination by the Department of Health and Rehabilitative Services that the appellant failed to carry her burden to establish good cause for her failure to cooperate in obtaining child support from the father, see Fla.Admin.Code Rule 10C-1.-96(3), a burden which most assuredly was hers, see Learned v. Department of Public Welfare, 15 Mass.App.Ct. 923, 444 N.E.2d 398 (1983), is supported by substantial evidence and is therefore

Affirmed.


author: DELL, Judge.

text:
    George GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2296.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Sara Blumberg of Dubiner & Blumberg, P.A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

George Emmett Green appeals from a judgment and sentence imposed after a jury found him guilty of possession of cocaine. He asserts that the State presented insufficient evidence to sustain the conviction. We agree and reverse.

A police officer and a confidential informant negotiated the purchase of five kilograms of cocaine with several individuals, other than appellant. The police officer and the confidential informant entered the bedroom of an apartment to complete the transaction. In the bedroom they saw cocaine on a table and saw appellant standing about ten feet away. Appellant did not participate in any of the conversations concerning the cocaine nor did he have any physical contact with it. After completing the negotiations the police officer left the room to signal the arrest. The police arrested appellant and the others in the apartment.

. Appellant argues that the State failed to prove that he had constructive possession of the cocaine. In Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981), we held that three elements must be proved to establish constructive possession: “(1) The accused must have dominion and control over the contraband; (2) The accused must have knowledge that the contraband is within his presence, and; (3) The accused must have knowledge of the illicit nature of the contraband.” Appellee presented sufficient evidence to establish the second and third elements only. The evidence established appellant’s presence in a room with cocaine in plain view, and established that appellant knew of the illicit nature of the contraband. However, appellant did not reside at the apartment, and appellee did not present other circumstantial evidence to establish that appellant had the ability to exercise dominion and control over the cocaine.

In Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984), the Third District Court of Appeal stated:

Mere proximity to contraband, without more, is legally insufficient to prove possession. Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964). In many instances, however, the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found. For this reason, the cases have sharply distinguished between the culpability of a mere visitor from that of an owner or an occupant of premises containing illicit drugs in plain view. Compare Brown (ownership and/or joint occupancy of premises is sufficient to support a conviction for constructive possession as to each person where drugs are discovered in plain view in their presence) with Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975) (defendant’s proximity to marijuana in plain view was merely circumstantial evidence insufficient to support conviction for constructive possession where defendant did not own or live on the premises and did not have control or joint control of the premises or the drugs).

See also Gonzalez v. State, 455 So.2d 1131 (Fla. 2d DCA September 19, 1984) and Kickasola v. State, 405 So.2d 200 (Fla. 3d DCA 1981).

Appellee misplaces its reliance on Brown v. State, 428 So.2d 250 (Fla.1983), cert. denied, — U.S. —, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), since it did not prove that appellant resided at the apartment. Appellee’s evidence did not establish that appellant had dominion and control over the contraband, and therefore we reverse appellant’s conviction and remand with directions that he be discharged.

REVERSED and REMANDED.

LETTS and WALDEN, JJ., concur.


author: HURLEY, Judge.

text:
    John MISKOFF, Appellant, v. CROSS FOX CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit; and Cecil J. Rogers, Appellees.
    No. 83-2740.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.

      Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellant.
    Michael L. Hyman of Hyman & Kaplan, P.A., Miami, for appellee, Cross Fox Condominium Association, Inc.
   HURLEY, Judge.

This is an appeal questioning the propriety of the trial court’s grant of an easement of necessity across appellant’s property. We reverse.

Preliminarily, we find incorrect appellee’s contention that since appellant’s initial appeal was dismissed as untimely, this court does not have jurisdiction over this appeal. Appellant’s former appeal involved issues which were interdependent with other issues pending resolution by the trial court and was therefore interlocutory. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974). Dismissal of an interlocutory appeal for untimeliness will not bar subsequent review of the issue on full appeal. Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972).

Appellee occupies an L-shaped parcel which has, without the easement, direct access to and from two streets and an alley. An easement of necessity will not be found in favor of property that has a way of ingress and egress apart from the easement. Roy v. Euro-Holland Vast-goed, B.V., 404 So.2d 410 (Fla. 4th DCA 1981).

REVERSED.

GLICKSTEIN, J., and GOLDMAN, MURRAY, Associate Judge, concur.


text:
    Eric Anthony BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 84-427.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The only issue meriting discussion is whether the trial court erred in retaining jurisdiction over “the first third of the maximum sentence imposed” pursuant to Section 947.16(3), Florida Statutes (1983), of a life sentence.

We adopt the position of the Third and Fifth Districts that Section 947.16(3) is inoperable. Kosek v. State, 448 So.2d 57 (Fla. 5th DCA 1984); Woodson v. State, 439 So.2d 976 (Fla. 3d DCA 1983); Rodriguez v. State, 424 So.2d 892 (Fla. 3d DCA 1982), and Cordero-Pena v. State, 421 So.2d 661 (Fla. 3d DCA 1982). Where a trial court imposes a life sentence, it is improper for it to retain jurisdiction over the first one-third of a life sentence because it is impossible to calculate the length of time over which jurisdiction is retained.

Accordingly, we remand and direct the trial judge to strike that portion of the order retaining jurisdiction. In all other respects, the judgment is affirmed.

LETTS, DELL and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    In re the ESTATE OF Irene M. BRUMAGE, deceased. Roland BRUMAGE, Appellant, v. Arne A. KIVI, Olavi Kivi, Helen Jokinen, Violet Laine, Appellees.
    No. 84-877.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Kirk Friedland of Altman, Colin & Fried-land, Lake Worth, for appellant.
    Robert E. Gordon of McGee, Jordan, Shuey, Koons, Schroeder & Morris, P.A., Lake Worth, for appellees.
   DOWNEY, Judge.

Irene M. Brumage died intestate April 28, 1980, as a result of injuries inflicted by her one living descendant, her son, Roland. She was also survived by four siblings.

In addition to certain probate assets the decedent’s estate consisted of the sum of (a) $12,644.27 deposited in a savings and loan association in a Totten trust in the name of Irene M. Brumage, as trustee for Roland Brumage, and (b) a life insurance policy payable to Roland Brumage in the amount of $5,000.

Roland was charged with killing his mother. However, a jury found him not guilty by reason of insanity. Thereupon, Roland was incarcerated in the Florida State Hospital at Chattahoochee where he remains under observation. Upon receiving notice from the personal representative that his mother’s estate was ready for distribution, Roland petitioned the court to direct the personal representative to distribute all of the estate assets, probate and nonprobate, to him. Irene’s siblings filed responses and alleged Roland was not entitled to all of the estate assets because he had murdered the decedent.

The parties filed a stipulation with the court setting forth the uncontroverted facts, specifying the issues, and agreeing the court could proceed to determine the controversy on written memoranda of "law and oral argument. Thereafter the trial court entered a judgment finding that Roland was entitled to the probate assets of the estate under the provisions of section 732.802, Florida Statutes (1979). Furthermore, the judgment also provided that Roland was not entitled to the nonprobate assets consisting of the savings account and the proceeds of the life insurance policy. The latter aspect of the judgment pertaining to the nonprobate assets is the subject of this appeal.

In the circuit court and here, the appel-lees took the position that Roland was not entitled to the nonprobate assets because those assets do not fall within the purview of section 732.802, Florida Statutes (1979), which only precludes one from inheriting when he has been convicted of murdering the decedent. Roland countered that the appellees stipulated that he was insane at the time of the murder and thus he did not have the mens rea to commit a crime and did not fall within the purview of the principle that one should not profit by his own wrong.

We believe this case is controlled by the decision of Carter v. Carter, 88 So.2d 153 (Fla.1956). There the Supreme Court of Florida held that where one is found not guilty of murder, he could not receive non-probate assets of the decedent if in a subsequent civil proceeding involving the entitlement to those assets he is found by a preponderance of the evidence to have unlawfully killed the decedent. There the court said:

The record before us reveals nothing at all with reference to the facts that produced the homicide. However, if at the trial a preponderance of the evidence should establish the fact that the homicide was intentional and unlawful in nature and therefore was without the purifying effect of excuse or justification, the petitioner insofar as this cause is concerned would be confronted by the rule heretofore announced that a person will not be permitted to profit by his own wrong. If, however, the evidence preponderates in favor of justification or excuse, an example of which would be self-defense, accident or insanity, then there would be no area for the application of the rule that would prevent her recovery.

88 So.2d at 159 (emphasis added). Thus it seems clear, as was done in this case, there should be a civil proceeding between the various protagonists to determine whether the person was sane or insane and the issue is to be proven by the preponderance of the evidence. The foregoing quote from Carter is followed by this further statement:

The burden of proof in the first instance will rest on the party who alleges that the killing was intentional and unlawful.

Thus the burden of proof here was on the appellees as the ones contending the killing was intentional and unlawful. However, no evidence was adduced on that issue by either party to show in the first instance that the killing was wrongful. Thus appellees failed to carry their burden, and so the burden never shifted to Roland to go forward with proof that he was insane.

We specifically reject Roland’s contention that appellees stipulated Roland was insane. We agree with appellees that they stipulated only that the jury had found Roland insane in the criminal trial. However, that does not alter the fact that appel-lees never assumed and carried their burden to prevail in this proceeding.

Accordingly, the trial court erred in paragraph two of the judgment in finding that Roland was not entitled to the nonprobate assets.

REVERSE AND REMAND FOR CORRECTION OF JUDGMENT.

LETTS and HURLEY, JJ., concur.


text:
    Melvin CARROLL, etc., et al., Appellants, v. MAGNAFLUX CORPORATION, etc., et al., Appellees.
    No. 84-894.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Robert Pasin of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellants.
    Gordon B. Linn of Clifford B. Selwood, Jr., P.A., Fort Lauderdale, for appellee Superior Design Company.
    Robert G. David, Jr. of McDonald & McDonald, Miami, for appellees Cooper Airmo-tive, Inc., and Aviall of Texas, Inc.
   DELL, Judge.

Appellants, plaintiffs below, appeal from an order dismissing their Fifth Amended Complaint with prejudice.

Appellants filed a twelve count complaint against eleven defendants seeking damages for personal injuries sustained by Melvin Carroll and members of his family allegedly as a result of his exposure to dangerous chemicals. This appeal concerns only those orders which dismissed the complaint with prejudice as to appellees Superi- or Design Company, Inc., (Superior); Cooper Airmotive, Inc., (Cooper); and Aviall of Texas, Inc., (Aviall). We limit our review to only those allegations of the complaint which pertain to these appellees and more particularly, those contained in Counts I, V, VI and VII through XII.

Appellant Melvin Carroll alleged that Cooper employed him from May, 1973 to 1975 and that Superior employed him from September, 1975 to November, 1975. He alleged that during this period of time, while in the normal course and scope of his employment, he was exposed to chemical substances which caused him to suffer personal injuries. He alleged that Cooper and Superior were negligent because they breached their duty to provide him with a safe place to work when they knew or should have known that the exposure to the chemicals would cause him injury. Finally, appellants allege that Aviall is Cooper’s successor in interest, and has agreed to assume its corporate liabilities. We hold these allegations sufficient to state a cause of action in negligence against appellees for Mr. Carroll’s injuries (Count I). We also hold that the allegations of Count VI adequately state a cause of action for the derivative claims of his wife, appellant Carol Carroll.

In Count V appellant attempts to state a cause of action for punitive damages against all of the defendants named in his Fifth Amended Complaint. We find the allegations of Count V vague, ambiguous, and indefinite. First, the most liberal reading of Count V fails to disclose which allegations, if any, appellant intended to assert against appellees. Second, appellant’s allegation that “the Defendants” (referring to all defendants named in the Fifth Amended Complaint) wilfully, wantonly and with malice, moral turpitude or reckless indifference acted to cause the injury to appellant cannot, absent allegations of supporting ultimate facts, convert his negligence claim to a cause of action for punitive damages.

The use of the descriptive words “willful, wanton or reckless” is not sufficient to state a case entitling recovery of exemplary or punitive damages.... In order to recover exemplary damages, the complaint must allege some general facts and circumstances of fraud, malice, gross negligence, or oppression. Winn & Lovett Grocery Co. v. Archer, 1936, 126 Fla. 308, 171 So. 214. Adjectives employed to label an act are of themselves insufficient to support a claim of gross negligence and are in fact unnecessary.

Rice v. Clement, 184 So.2d 678, 680 (Fla. 4th DCA 1966). We hold the allegations of Count V insufficient to state a cause of action for punitive damages against appel-lees.

In Counts VII through XII, appellants failed to adequately allege ultimate facts which would establish a legal duty flowing from appellees, Mr. Carroll’s alleged employers, toward Mr. Carroll’s wife and children, or facts which would establish that appellees could reasonably foresee their injuries.

Therefore, we affirm the trial court’s dismissal of Counts V and VII through XII of appellants’ Fifth Amended Complaint, and reverse the trial court’s order dismissing Counts I and VI as to appellees Cooper, Superior and Aviall and remand this cause to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

LETTS and WALDEN, JJ., concur.

      . Appellees vigorously argue that they are not Mr. Carroll’s employers. This factual dispute is not appropriately resolved upon appeal from an order of dismissal.


author: HERSEY, Judge.

text:
    Morton ROSENTHAL and Helen Rosenthal, his wife, f/k/a Helen Cuden, Appellants, v. FINGER AND MARGOLIS, P.A., as Trustee, George Margolis and Hortense Margolis, his wife, Appellees.
    No. 84-990.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Rehearing Denied Jan. 10, 1985.
    Curtis G. Levine of Levine, Schwartz, Gold & Cohen, P.A., Boca Raton, for appellants.
    Donald S. Hershman of Donald S. Hersh-man, P.A., Boca Raton, for appellees.
   HERSEY, Judge.

This appeal from a summary judgment determining liability (but not the amount of damages) arises from a contract for the purchase and sale of homestead real property. Two issues, one procedural and one substantive, merit consideration.

Appellants, Rosenthal, executed a purchase and sale agreement as buyers on June 15, 1983. That agreement required acceptance by the sellers, Appellees, George and Hortense Margolis, on the same day. The contract was signed on June 15, 1983, on behalf of the sellers, by “George Margolis and Hortense Margolis by Christopher E. Finger, as attorney, and agent for sellers.” The transaction failed to close as scheduled, the buyers being unable or unwilling to take title and pay the balance of the purchase price. Instead, they instituted suit for return of their earnest money deposit, eventually resulting in the partial summary judgment appealed.

Appellants resist summary judgment based upon the existence of a genuine material issue of fact: the existence vel non on June 15, 1983, of a written power of attorney authorizing Finger to execute a purchase and sale agreement for the conveyance of the Margolis’ homestead. The underlying legal theory is that the contract lacked mutuality if Finger had no authority to sign as and for sellers before expiration of the offer at midnight on June 15, 1983. The lack of mutuality theory is valid but there is simply no basis for its application here. A properly executed power of attorney dated prior to June 15, 1983, is in evidence. Appellants now allege it to have been a recent fabrication. The question is whether its validity was placed in issue by the pleadings. Appellants’ position is that validity of the power of attorney (that is, its existence on the crucial date as opposed to its having been executed later and backdated) is raised by implication in an allegation that appellants’ demand for a copy of the written contract in December of 1983 was met with refusal. The implication is that refusal to furnish a copy is probative of the assertion that it was nonexistent. Accepting, arguendo, the logic of the position that refusal to furnish a copy of a document may be evidence that it does not exist, the argument is still unavailing. What was demanded was a copy of the contract, not the power of attorney. There exists no legal requirement that the power of attorney or a copy of it be attached to the contract. See Tatum Land Co. v. Marjohn Realty Co., 92 Fla. 534, 109 So. 813 (1926) (the authority of an agent to bind his principal to convey real estate need not be in writing).

The case relied on by appellants, Meekins-Bamman Prestress, Inc. v. Better Construction, Inc., 408 So.2d 1071 (Fla. 3d DCA 1982), involved a contract for the sale of goods which was specifically conditioned upon “approval by an officer of Meekins-Bamman_” Id. at 1072. Because the contract so stated, the signature of a non-officer representative was held insufficient. The court thus rejected an argument based on apparent authority. Meekins-Bamman cannot be construed to hold, as appellants contend it does, that “an agent’s signature, absent an attached power of attorney, is not enough to make the contract binding on theory of apparent authority.” For this reason, demand for a copy of the contract does not constitute a demand for a copy of the power of attorney. Therefore, the implication relied upon by appellants never arose. Validity (or timely existence) of the power of attorney was never put in issue in the trial court; it may not now be characterized as a genuine material issue of fact precluding summary judgment.

Appellants contend that a contract to purchase and sell homestead real property must be signed in the presence of two witnesses to be enforceable. The contract here was without witnesses’ signatures. We hold that there is at present no such requirement.

In Zimmerman v. Diedrich, 97 So.2d 120 (Fla.1957), the supreme court held “that agreements to convey homestead property must, to be specifically enforceable, be signed in the presence of two witnesses as required by Section 689.01 _” Id. at 124. This court followed the above rule in Radabaugh v. Ware, 241 So.2d 738 (Fla. 4th DCA 1970), relied on by appellant, which was upheld by the supreme court in Koplon v. Smith, 271 So.2d 762 (Fla.1972).

The Zimmerman court explained that in formulating the rule it was relying on precedent which cited only section 689.01, (requiring two subscribing witnesses to deeds to the transfer of real estate), see Cox v. La Pota, 76 So.2d 662 (Fla.1954), although “it is plain from a study of expressions of this court on the subject ... that the controlling law was ... [Sec.] 4 of Article X of the Constitution, F.S.A.” Zimmerman, 97 So.2d at 122-123. The court explained further:

It is true.that in that section no mention is made of contracts to sell, but only of deeds and mortgages. We apprehend that the writers of the opinions had in mind that if the execution of contracts to sell homesteads were not so formalized, the transfer of homestead property, sacrosanct as it is, could be eventually effected by decree of specific performance, although the contract forming the basis of such a transfer would have small resemblance to the formality with which it was intended that conveyances of homesteads should be accomplished.

Id. at 123-124.

The second district, in two recent cases, has held that there is no longer a requirement that either a mortgage of homestead realty, Wickes Corp. v. Moxley, 342 So.2d 839 (Fla. 2d DCA 1977), aff'd, 356 So.2d 785 (Fla.1978), or a contract to sell homestead property, Carroll v. Dougherty, 355 So.2d 843 (Fla. 2d DCA 1978), be executed in the presence of two subscribing witnesses. In Moxley v. Wickes Corp., the supreme court stated (affirming the second district):

On appeal to the District Court of Appeal, appellee argued that under the new constitution, there is no longer any requirement that a mortgage of homestead realty be signed in the presence of two attesting witnesses. The District Court agreed with appellee and reversed the trial court. The District Court explained that there is no statute in Florida which specifies that a mortgage be signed in the presence of two witnesses, and there is no common law requirement that a mortgage of non-homestead property be witnessed. The court, however, recognized that the words “duly executed” found in Article X, Section 4, of the old Constitution had been interpreted to mean that two attesting witnesses were required on a homestead mortgage just as in executing a deed. Observing that the language of the new provision has been rephrased as an authorization to alienate homestead rather than an exception to a restriction against alienation and that the words “duly executed” have been omitted, the District Court concluded:
“... [W]e believe that the omission of the words ‘duly executed’ in the new Constitution must be given effect to the extent that the court engrafted requirements of two witnesses on a homestead mortgage must give way. The legislature may always pass a law to reinstitute this requirement.”

356 So.2d at 786. The execution of a contract to sell real property is similarly ungoverned by statute, although “one can become legally bound to execute a deed by virtue of having signed the contract.” Carroll, 355 So.2d at 844. Carroll further explains:

Since there is nothing in Section 689.01 to differentiate homestead realty, the requirement for witnesses on a contract to convey homestead had to come from another source. A study of the evolution of this requirement demonstrates that it was grounded upon the “duly executed” provision of the old constitution relating to homesteads and that Section 689.01 was only pertinent for the purpose of determining what these words meant. Zimmerman v. Diedrich, supra; Hutchinson v. Stone, 79 Fla. 157, 84 So. 151 (1920). Thus, by virtue of the deletion of the words “duly executed” from the new constitution, we are drawn to the inescapable conclusion that contracts to convey homestead realty fall into the same category as contracts to convey any other kind of real estate.

Id. at 844-845 (footnote omitted). The court distinguished Koplon v. Smith, 271 So.2d 762 (Fla.1972) (upholding Rada-baugh), since Koplon did not address the effect of the deletion of the words “duly executed” from the old constitution. The second district’s opinion in Wickes Corp. v. Moxley had similarly distinguished conflicting cases, including Radabaugh, stating:

[CJertain recent cases which hold that an unwitnessed contract to sell homestead real estate cannot be enforced lend some support to the contention that the old rule is still viable with respect to mortgages. Koplon v. Smith, 271 So.2d 762 (Fla.1972); Carroll v. Dougherty, 302 So.2d 439 (Fla. 2d DCA 1974); Shedd v. Luke, 299 So.2d 58 (Fla. 1st DCA 1974); Radabaugh v. Ware, 241 So.2d 738 (Fla. 4th DCA 1970). Thus, it may be argued that since an unwitnessed contract to sell non-homestead real estate may be specifically enforced, the courts in requiring two witnesses to a contract to sell homestead realty are continuing to read Article X, Section 4 as requiring two witnesses for the validity of the instruments specified therein. However, we believe these decisions are not controlling because (1) they were not passing on the effect of the deletion of the words “duly executed” from Article X, Section 4 of the new Constitution; (2) they were dealing with contracts to sell real estate rather than mortgages and there remains on the books a statute which requires two witnesses to a deed; and (3) in the only Supreme Court case on the subject, the court simply upheld the ruling in Rada-baugh v. Ware, and while not clear from the Radabaugh opinion, that mortgage appears to have been executed before the effective date of the new Constitution.

342 So.2d at 841 (footnotes omitted). The Carroll court declined as legislative prerogative to undertake to interpret Section 689.01 “to require two witnesses on a contract to convey homestead realty when the same statute has always been construed as not requiring two witnesses on a contract to convey non-homestead realty.” 355 So.2d at 845. See also: Maines and Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U.Fla.L.Rev. 227 at 266-267 (1978). We agree with the Carroll court.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


author: BOARDMAN, Judge.

text:
    T & T COMMUNICATIONS, INC., Appellant, v. STATE of Florida DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Appellee.
    No. 84-19.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1984.
    John R. Newcomer of Yado, Keel, Nelson, Casper, Bergmann & Newcomer, P.A., Tampa, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   BOARDMAN, Judge.

This is an appeal from an order of the Department of Labor and Employment Security, Division of Unemployment Compensation, adopting the special deputy’s recommendation that certain individuals performing services for appellant as cable installers are “employees” under section 443.-036(17), Florida Statutes (1983). We reverse.

The special deputy made the following findings of fact:

In August, 1981, the Petitioner, a corporation, began doing business with a cable television company (hereinafter referred to as the CTV company) in Pinellas County, Florida. The Petitioner’s only business is to provide “cable installers” to the CTV company on a daily “as needed” basis. These installers are the individuals involved in this matter. The CTV company has some installers as employees and the excess work is given to the Petitioner. The work performed by the installer is to go to a customer’s home and completely install a television cable. An installer can perform ten to fifteen such installations in a day. The Petitioner only engages the services of qualified experienced installers so no training or routine instructions are required.
The installers report at the CTV warehouse at 7:30 a.m. to receive that day’s assignments. The work is given out on a first come basis. It is possible for there to be more installers than work assignments. There is no requirement that any installer report on a given day since this is day-to-day work. The installers are usually told the day before how much work will be available the next day. If enough installers do not show up, the Petitioner will call some to see if they will come in and work. The CTV company promises customers what day the cable is to be installed and the assignments are made on that basis. The Petitioner has contracted with another corporation, a consulting firm, to be at the CTV warehouse daily to handle its business with the CTV company. The consulting firm is [a] one man corporation whose only business is with the Petitioner. The consultant distributes the work assignments to the installers, checks every completed job, and handles any complaints from the customers or the CTV company. All materials to accomplish the work are furnished by the CTV company as well as plans, prints, and specifications required to perform the work. Each installer must wear a badge which states that he is a contractor with the CTV company and a similar sign is placed on his truck. In addition, he must wear a tee shirt, which he pays for, with the Petitioner’s name on it. This identification is for the customers since this is a public service in their home. The installers must furnish their trucks and all tools necessary to perform the work which is common in the trade. The work can be performed alone; however, the installers are free to obtain a helper and some do so. However, they may not employ the services of any CTV personnel without the Petitioner’s written approval. The installer guarantees his work for ninety days and is required to correct any defects discovered in this time without additional compensation. The installers are paid on “piece-rate basis” an amount set by the Petitioner for each identifiable unit of work. There are no other forms of payment or fringe benefits except for workers compensation insurance to protect them and the Petitioner in the event of an on-the-job injury. The policy is issued to the Petitioner and he requires the installers to pay him for their individual coverage by paying a stated amount per $100 of compensation.
In accordance with the written agreement, the Petitioner may inspect the work in progress, although this is almost never done; he may require overtime work; he may have the work corrected and if the installer refuses to do it himself, the Petitioner can deduct the cost • from any payment due. The Petitioner may terminate any installer at anytime without notice for such things as poor work performance, failure to correct defective work or failing to supply required materials or labor. The installers may leave any time they choose.

A reading of these findings illustrates that this factual situation bears some strong resemblances to those in our recently decided cases of Burnup & Sims Com Tec, Inc. v. State of Florida, Department of Labor & Employment Security, Division of Unemployment Compensation, 459 So.2d 447 (Fla. 2d DCA 1984) (on rehearing), and D. O. Creasman Electronics, Inc. v. State of Florida Department of Labor & Employment Security, Division of Unemployment Compensation, 458 So.2d 894 (Fla. 2d DCA 1984). Although T & T Communications is not in precisely the same business as the appellants in those cases, there exist many similarities in the relationship between the appellant businesses and the individuals performing work for those businesses.

Although the case law in Florida requires that a number of factors be considered in making a determination of employee or independent contractor status, Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), the most important factor is the extent of control exercised by the employer. In this case, although the installers have agreed with the appellant to complete the cable installations according to the cable television company’s plans and specifications, the installers themselves determine the method by which to accomplish the installation. The appellant’s only concern is with the final product or result. This is the traditional control that a contractor exerts over an independent contractor. Collins. v. Federated Mutual Implement & Hardware Insurance Co., 247 So.2d 461 (Fla. 4th DCA), cert. denied, 249 So.2d 689 (Fla.1971).

Further indicia that these cable installers are independent contractors are the fact that cable installers are normally unsupervised, independent contractors; that cable installers are skilled tradesmen; that the installers provide their own tools and transportation; and that the installers are not employed for any length of time, are paid per installation, and receive no vacation and fringe benefits.

The facts as found by the special deputy do not support the conclusion that the cable installers are employees of the appellant company. For this reason, the decision of the State of Florida Department of Labor and Employment Security is reversed.

RYDER, C.J., and CAMPBELL, J., concur.


author: WENTWORTH, Judge.

text:
    INDUSTRIAL FIBERGLASS MANUFACTURERS & EMPLOYERS CASUALTY COMPANY, Appellants, v. James A. DAVIS, Appellee.
    No. AX-313.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.
    J. Nixon Daniel, III, and Jeffrey A. Stone, of Beggs & Lane, Pensacola, for appellants.
    Philip A. Bates, of Emmanuel, Sheppard & Condon, Pensacola, for appellee.
   WENTWORTH, Judge.

The employer and carrier seek review of the deputy commissioner’s determination of claimant’s average weekly wage. Because of ambiguity in the order and our concomitant inability to determine whether the deputy’s calculation of the average weekly wage was permissible, we remand this case with instructions.

The claimant started working regularly for the employer in 1977, and after 1980 he worked primarily as an over-the-road driver, making deliveries for the employer. Claimant’s pay was $4.00 an hour, and when he was on the road, out of town, he was paid $35 per day “expense money.” The expense money was a set rate and claimant could spend it as he saw fit. He received such payments until February, 1982. On April 23, 1982, an explosion and fire at the manufacturing plant caused a shut down of operations and lay-off of all employees. Claimant returned to work for employer on June 17, 1982. The owner of Industrial Fiberglass Manufacturers testified that business was normally slower during the summer than during the winter, and that when the company reopened in June of 1982 work was not as fast as it had been prior to the fire but business was gradually picking up.

On July 21, 1982, claimant was injured in a compensable accident at work. He reached maximum medical improvement on January 24, 1983, with a seven and a half percent permanent partial impairment. The only controversy between the parties is the amount of claimant’s average weekly wage. Originally, the employer/carrier paid benefits upon a calculation of claimant’s average weekly wage by averaging the last preceding 13 weeks during which he had worked before the accident, although those 13 weeks were not consecutive and therefore extended over a total period of more than 13 weeks. This resulted in an average weekly wage of $191.26.

Claimant contended that the expense money should have been included in the calculation of the amount of his wages. The employer/carrier contested the inclusion of the expense money and the claim was set for hearing. At the hearing the employer/carrier contended, as they do here, that their initial average weekly wage calculation had been wrong and that the proper figure was $160.00.

The deputy found that the original average weekly wage utilized by the employer/carrier was the proper base pay and added an amount to reflect the expense money. This resulted in an average weekly wage of $230.21.

The employer/carrier argue that it was improper to include any amount for the expense money because claimant had not received the allowance for the thirteen weeks prior to the accident. Appellants contend that under § 440.14(l)(d), claimant’s average weekly wage must be based on his full-time wages at the time of the accident. Under Penuel v. Central Crane Service, 232 So.2d 739 (Fla.1970), “full time wages” for purposes of subsection (l)(d) must be based on either the contract of employment or actual earnings. Here, the claimant apparently worked on an “as needed” basis, with no specific indication that the employer guaranteed the amount of work that would be available. On the other hand, claimant’s actual earnings are difficult to compute because his earnings were erratic. Thus, the unique circumstances of the case do not facilitate application of subsection (d). In the past, we have approved the averaging of wages- to establish a claimant’s actual earnings when the circumstances do not easily lend themselves to a proper calculation, but such methodologies would not ordinarily permit the inclusion of an allowance which had not been paid for an extensive period of time prior to the accident.

However, in spite of the parties’ assumption that subsection (d) is the only section applicable in this case, neither the record nor the order indicates that section was in fact applied by the deputy. Instead, the deputy s calculations appear to be based on either: (1) an unauthorized formula devised to fit the circumstances of this case, or (2) an application of § 440.14(l)(c), Florida Statutes. Absent a waiver, the deputy must, of course, utilize statutory methods to reach a fair result in each case. The application of subsection (c) appears to be potentially appropriate here because the employer’s testimony, noted supra, indicates that claimant’s employment may be regarded as seasonal in that the summer months were normally slower than the winter — the season when claimant had been receiving the expense allowance. Thus, the record may support a finding that claimant was a seasonal worker, and the deputy’s order does not negate such a conclusion. However, due to the ambiguity in the order, we are unable to conclude with certainty that the deputy made the essential factual determination that claimant was a seasonal worker. We therefore remand the cause to the deputy commissioner with directions that he reconsider the methodology utilized to arrive at claimant’s average weekly wage, and make a determination of the appropriate average weekly wage on the basis of one of the statutory provisions in § 440.14.

SHIVERS and NIMMONS, JJ., concur.

      . See e.g. Viking Sprinkler Co. v. Thomas, 413 So.2d 816 (Fla. 1st DCA 1982).

      . Due to a mechanical malfunction of the recording equipment, this court did not have the benefit of a transcript of the hearing. However, the parties entered into a stipulated reconstruction of the testimony and arguments.

      . The deputy divided the total amount of expense money received during the year of the accident and divided it by the number of days the claimant worked to calculate an average weekly amount of $38.95.

      . See O.T. Sims & Assoc. v. Merchant, 435 So.2d 884 (Fla. 1st DCA 1983); Florida Cast Stone v. Dehart, 418 So.2d 1271 (Fla. 1st DCA 1982).

      . (c) If an employee is a seasonal worker and the foregoing method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of the 13 weeks immediately preceding the injury, the calendar year or the 52 weeks immediately preceding the injury. The employee will have the burden of proving that this method will be more reasonable and fairer than the method set forth in paragraphs (a) and (b) ....

      . The appealed order is specific insofar as it explains the rationale for finding that the allowance constituted wages (a question not challenged by the employer/carrier) and is specific in describing how the actual figures were reached. The ambiguity lies in our inability to determine which statutory provision the deputy relied on in reaching his conclusion. The order does find that “the few weeks immediately preceding his accident were a very slow work period. The fairest method ... is to use the method originally adopted by the E/C which was to average the 1982 calendar year subtracting the four weeks during which the plant was shut down.”


author: WIGGINTON, Judge.

text:
    William ALFORD, Appellant, v. STATE of Florida, Appellee.
    No. AX-315.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.
    Michael E. Allen, Public Defender, and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Alford challenges his eighteen-month sentence, arguing that the trial court’s reasons for departing from the recommended guideline sentence are not clear and convincing. We agree and reverse.

In departing from the recommended range, the court merely checked off four reasons from a laundry list of mitigating and aggravating circumstances. Those four reasons were:

9. No pretense of moral or legal justification
10. In need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility
13. Drug or alcohol use
17. Sentence necessary to deter others

Without our having to excavate from the record facts to serve as illumination, the reasons wholly fail to relate to anything within the context of the case. Such ambiguity is prohibited by Florida Rule of Criminal Procedure 3.701 d(ll), which requires that departures from presumptive sentences be for clear and convincing reasons, and be set forth in writing.

We hold that the four reasons for departure from the presumptive sentence herein, are, by their form, neither clear nor convincing. Accordingly, we reverse and remand for clarification and imposition of sentence outside the guidelines upon stating clear and convincing reasons, or failing such, for sentencing within the guidelines.

JOANOS and NIMMONS,. JJ., concur.


author: SHARP, Judge.

text:
    McMAHAN CONSTRUCTION COMPANY, INC., a Florida corporation, Appellant/Cross-Appellee, v. CAROL’S CARE CENTER, INC., a Florida corporation, Appellee/Cross-Appellant.
    No. 83-1140.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.

      C. Allen Watts and Frederick B. Karl, Jr., of Fishback, Davis, Dominick, Bennett, Foster, Owens & Watts, Daytona Beach, for appellant/cross-appellee.
    William T. Preston and John Roger Smith, of Landis, Graham, French, Hus-feld, Sherman & Ford, P.A., DeLand, for appellee/cross-appellant. George E. Hovis, Clermont, for appellant.
   SHARP, Judge.

McMahan Construction Company, Inc. (McMahan) appeals from the dismissal of its amended complaint against Carol’s Care Center, Inc., for failure to deliver to the owner (appellee), five days before filing this suit, the affidavit required by sections 713.06(3)(d) and 713.05, Florida Statutes (1983). In. its order, the trial court also denied McMahan’s motion to file a second amended complaint wherein it alleged that an affidavit in compliance with section 713.-06(3)(d) had been filed after the filing of this lawsuit, but more than five days before the motion to amend was filed. We reverse.

McMahan, a general contractor, filed its original complaint on December 12, 1982, seeking to foreclose a mechanics lien on appellee’s property, stemming from its completed construction of a 134 bed nursing home, pursuant to a written contract with Carol’s Care Center, Inc. It alleged the work was completed on June 11, 1982, and a total of $99,296.54 was owed for extras and the balance due under the contract. However, McMahan failed to allege that any affidavit was delivered to the owner/appellee as required by section 713.-06(3)(d). That section provides:

(d) When final payment under a direct contract becomes due the contractor:
1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount dué or to become due each for labor, services or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not. (Emphasis supplied).

Consistent with established precedent, the trial judge allowed McMahan to file an amended complaint alleging compliance with section 713.06(3)(d)(l). Appellees cross-appealed this ruling by the trial judge. We find the cross-appeal without merit.

The amended complaint was filed on February 24, 1983. It contained three counts: one, for mechanic lien foreclosure; one for breach of contract; and one for unjust enrichment. In an effort to allege compliance with section 713.06(3)(d)(l), McMahan claimed its application and certificate for payment, prepared on an A.I.A. form, which it furnished appellee on September 2, 1982, complied with all the requirements of section 713.06(3)(d)(l). The certificate does not state it is an application for final payment, although that fact could be inferred from the figures on the face of the certificate. But in addition, there is no. statement under oath that all lienors under the contract have been paid in full. McMa-han argues that representation should be inferred from the warranties made by McMahan in its construction contract with appellee.

The Contractor warrants that title to all Work, materials and equipment covered by an Application for Payment will pass to the Owner either by incorporation in the construction or upon the receipt of payment by the Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to in this Article 9 as “liens”; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the Contractor, or by any other person performing Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or such other person.

We do not think the certificate meets the requirements of section 713.06(3)(d). Although no particular form is mandated by the statute, the intent of this section is to protect the owner from the hazard of having to pay twice for goods and services performed on or incorporated into improvements on his property. Hardee v. Richardson, 47 So.2d 520, 524 (Fla.1950); Oper v. Russell, Inc., 197 So.2d 13 (Fla. 3rd DCA), cert. denied, 201 So.2d 552 (Fla. 1967). One tooth in the saw of this mechanism is to make the contractor subject to perjury charges if the facts stated in the affidavit are untrue. Climatrol Corporation v. Kent, 370 So.2d 394 (Fla. 3rd DCA 1979). It is doubtful that warranties made prior to the final application for payment and stated in the future tense would suffice for this purpose. § 713.35, Fla.Stat. (1983); Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968).

Had this been all that occurred in this case, we would have affirmed the trial court’s dismissal of the mechanic lien count. Hardee v. Richardson; Sowers v. Hoenstine, 417 So.2d 1137 (Fla. 5th DCA 1982); Atlantic Gardens Landscaping, Inc. v. Boca Raton Land Development, Inc., 360 So.2d 1278 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1361 (Fla.1979); Falovitch v. Gunn & Gunn Construction Company, 348 So.2d 560 (Fla. 3rd DCA 1977). However, regardless of the trial court’s action on the mechanic lien foreclosure count, we think it erred in dismissing the other two counts as it clearly had jurisdiction to hear those matters.

On April 18, 1988, prior to the trial court’s ruling on the amended complaint, McMahan filed a motion for leave to file a second amended complaint. Attached to the motion was the second amended complaint wherein McMahan alleged that on January 21,1983, it furnished appellee with a contractor’s affidavit stating that all lien-ors working on the improvement had been paid. This belatedly served affidavit apparently fully complied with section 713.-06(3)(d)(l).

In Askew v. County of Volusia, 450 So.2d 233 (Fla. 5th DCA 1984), we held that the statutory notice required by the sovereign immunity statute could be given after the suit was filed, and that the trial court should either have allowed an amended complaint to be filed, or a new suit to stand. Although Askew did not involve the affidavit required by section 713.06(3)(d)(l) of the mechanic lien law, we recognized that our holding was irreconcilable with Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982), which did involve that section.

Saleh followed Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3rd DCA 1975) and held that the affidavit had to be delivered prior to the time the suit was filed. If it was not then the trial court had no recourse but to dismiss the mechanic lien foreclosure suit or enter judgment for the owner.

We receded from that view in Askew. Applying the concept of Askew to this case, the filing of the affidavit belatedly was not fatal to the mechanic lien foreclosure count. Since McMahan alleged the affidavit was filed five days before the amendment was sought, the trial court should have allowed the second amended complaint to be filed.

Accordingly, the order appealed disallowing the filing of the second amended complaint and dismissing counts two and three of the amended complaint are reversed.

REVERSED AND REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ„ concur.

      . Section 713.05 provides, in pertinent part, “A lienor ... who is in privity with the owner and claims a lien under this section shall furnish the contractor’s affidavit required in s. 713.-06(3)(d)."

      . Moore v. Crum, 68 So.2d 379 (Fla.1953); Stern v. Perma-Stress, Inc., 134 So.2d 509 (Fla. 1st DCA 1961).

      . Article 9.33 of the contract between the parties provides:

        . Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3rd DCA 1975); Oper v. Russell, Inc., 197 So.2d 13 (Fla. 3rd DCA), cert. denied, 201 So.2d 552 (Fla.1967); Camps v. Cardenas, 389 So.2d 320 (Fla. 3rd DCA 1980); Divine Homes, Inc. v. Gulf Power Co., 352 So.2d 115 (Fla. 1st DCA 1977); Herman v. Bob Woschnik Construction, Inc., 336 So.2d 1 (Fla. 4th DCA 1976); see Oppenheim v. Newport Systems Development Corporation, 348 So.2d 328 (Fla. 3rd DCA 1977); Sorenson/Fletcher Construction Co. v. Grosso, 319 So.2d 194 (Fla. 4th DCA), cert. dismissed, 324 So.2d 90 (Fla.1975).

      . McMahan also alleged that no final affidavit was required of it because it had furnished owner with a payment bond pursuant to section 713.02(6), Florida Statutes (1983). See Walter Harvey Corp. v. Cohen-Ager, Inc., 317 So.2d 775 (Fla. 3rd DCA 1975); Oppenheim. We do not reach this latter point because of our disposition of the case on the basis of the sufficiency of the affidavit.

      . § 768.28(6), Fla.Stat. (1983).


author: COWART, Judge. DAUKSCH, Judge,

text:
    Nick Arthur JONES, Appellant, v. WILLIAMS STEEL INDUSTRIES, INC., Appellee.
    No. 83-1677.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.

      Richard H. Langley, Clermont, for appel-lee.
   COWART, Judge.

This case involves a subrogation action by one co-judgment debtor, who paid a joint judgment in full, against the other co-judgment debtor.

Bob Wade Ford, Inc., entered into a construction agreement with appellee, Williams Steel (formerly Konsler Steel) whereby appellee agreed to provide plans and specifications and labor and materials to erect a steel building and to relocate another one. Bob Wade Ford took plans and specifications prepared by appellee to appellant Jones, a registered architect, and paid appellant to review, approve and to sign and affix his architectural seal to the plans and specifications. During construction certain defects and errors were discovered in the plans and specifications. Bob Wade Ford did not pay a balance due appel-lee on the construction contract and when appellee filed an action to foreclose a mechanic’s lien, Bob Wade Ford joined appellant Jones as a party and counterclaimed and obtained a judgment for $12,314.28 against appellee and appellant for damages resulting from the defective plans and specifications. Appellee paid and satisfied the Bob Wade Ford judgment in 1977.

In 1982 appellee filed a complaint against appellant for contribution. After that complaint was dismissed on the basis of the statute of limitations (apparently section 768.31(4)(c), Fla.Stat.) appellee filed an amended three count complaint alleging theories of subrogation, equitable assignment and contribution. The trial court entered judgment finding that appellee was entitled to “contribution” from appellant for one-half of the amount appellee paid to satisfy the Bob Wade Ford judgment plus interest and costs.

On this appeal appellant claims that the Bob Wade Ford judgment was recovered either on the theory of negligence, in which case the one year statute of limitations as to contribution among joint tortfeasors (§ 768.31(4)(c), Fla.Stat.) barred appellee’s recovery, or on the theory of breach of contract, in which case a four year statute of limitations (§ 95.11(3), Fla.Stat.) barred appellee’s recovery.

North v. Albee, 155 Fla. 515, 20 So.2d 682, 157 A.L.R. 490 (1945), relied on by the trial judge, holds that where a judgment is against several co-debtors who are each jointly and severally and primarily liable thereon, the payment of the judgment by one co-debtor constitutes an equitable assignment of the judgment to the paying debtor; the paying debtor’s cause of action against the other debtors for their proportionate share is, in effect, an enforcement of the assigned judgment and the applicable statute of limitations is not that applicable to the cause of action against the joint debtors that resulted in the judgment but the statute of limitations applicable to the enforcement of the judgment, which is twenty years under section 95.11(1), Florida Statutes.

Appellant argues that North is not applicable because North relates to subrogation and the trial judge in this case entered judgment expressly on the theory of contribution, and recovery on that theory is barred by the one year statute of limitations in section 768.31(4)(c), Florida Statutes. Contribution and subrogation are distinctively different and if the reference in the judgment was to the cause of action known as contribution that reference was erroneous because the judgment was correctly entered on the theory of subrogation. A trial judge may be correct even though his reasoning is wrong and when so, he should be affirmed. Subrogation is the restitutionary equitable action “implied in law” in favor of one whose money is used to discharge the obligation of another under circumstances where, in good conscience, the plaintiff ought to be subrogat-ed to the rights of the obligee against the obligor.

Appellant further argues that trial court erred in ruling that the Bob Wade Ford judgment was res judicata as to the issue of apportionment between appellant and appellee. Appellant is probably correct because there was no issue framed

by cross-claim between appellee, who was the plaintiff in the mechanic’s lien action, and the appellant, Jones, who was named as a codefendant by the defendant Bob Wade Ford in a “third party counterclaim”. In the mechanic’s lien foreclosure the defendant Bob Wade Ford joined appellant Jones as a defendant but not because appellant Jones was or might have been liable to Bob Wade Ford for all or part of the claim of Williams Steel against Bob Wade Ford. Therefore under proper third party practice (Florida Rules of Civil Procedure 1.180(a)), appellant does not appear to have been properly joined as a third party defendant in the mechanic’s lien foreclosure case in which Bob Wade Ford on counterclaim recovered the joint judgment against appellant and appellee. However that action became the law of that case and it is not now possible to ascertain on what theory appellant and appellee were held jointly and severally liable on the counterclaim of Bob Wade Ford in the mechanic’s lien case and, therefore, appellant has not demonstrated, and there is no basis for our finding, that the trial judge in this case (who, incidentally, was the same trial judge in the mechanic’s lien action) erred in finding that the liability of appellant and appel-lee, as joint debtors, was equal.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

DAUKSCH, J., concurs in part, dissents in part, with opinion.

DAUKSCH, Judge,

concurring in part; dissenting in part:

I would affirm the essentials of the judgment on appeal but would require an evi-dentiary hearing to apportion the amount between Jones and Williams.

      . An alternative theory is that subrogation, being an equitable cause of action, is not barred by statutes of limitation applicable to actions at law but only by laches. However, see section 95.11(6), Florida Statutes.

      . North was written before Florida, in 1975, adopted the Uniform Contribution Among Tort-feasors Act, section 768.31, Florida Statutes. North did not relate to joint tortfeasors. Therefore the principle in North is not applicable to the matters covered by the statute.

      . See Annot., "Right of One Co-Judgment Debtor Who Pays Judgment to be Subrogated Thereto as Against the Other Co-Judgment Debtors", 157 A.L.R. 495 (1945); 12 Fla.Jur.2d Contribution, Indemnity and Subrogation, § 26 (1979). “Contribution and subrogation, although they stand upon the same broad principle of natural justice, are separate and distinct things; contribution is not derived from, or dependent upon, subrogation, notwithstanding in a given case both rights may be sustained and the latter may be available to enforce the former. Subrogation, where available, gives the party paying the common obligation all the rights and remedies of the obligee and accordingly it is said that in equity it is a broader right which may include the right to contribution. On the other hand, a right to contribution may exist in cases where the principle of subrogation is not applicable." (emphasis supplied) 157 A.L.R. at 496, citing 13 Am.Jur. 6, Contribution, § 2. See also Meckler v. Weiss, 80 So.2d 608, 609 (Fla.1955).

        .See Annot., "Judgment in Action Against Code-fendants for Injury or Death of Person, or for Damage to Property as Res Judicata in Subsequent Action Between Codefendants as to Their Liability Inter Se," 24 A.L.R.3d 318, 323-324:
      [S]uch a prior judgment is not conclusive in the subsequent action unless the codefendants occupied adversary positions in the prior action and actually litigated therein the issue of their liability inter se as well as the issue of their liability to the injured party. The reasoning underlying such rules is that in the absence of a statute or rule requiring a defendant to cross-claim against his codefend-ant, and in the absence of such a cross-claim, the judgment in the prior action merely adjudicates the rights of the plaintiff as against each defendant, and leaves unadjudicated the rights of the codefendants as between themselves. ... (emphasis supplied)

      . See McGillicuddy, Third-Party Practice in Florida, 17 U.Fla.L.Rev. 94 (1965). A change in rule 1.180 to be effective January 1, 1985, illustrates the problem in this. Appellant was not a proper third party defendant under the present rule but would be. under the amendment because the claim of Bob Wade. Ford against appellant Jones, being for damages resulting from defective plans approved by appellant Jones, did arise out of the transaction or occurrence that was the subject matter of the action by Williams Steel against Bob Wade Ford, that is, the construction of the building that cost more because of the defective plans.

      . Appellant Jones’ liability to Bob Wade Ford was contractual and appellee Williams Steel’s liability to Bob Wade Ford was likewise contractual. However the liability of each was based on distinctly different contracts; hence their liability was diverse and several, not joint. This error in the Bob Wade judgment, while beyond correction, is the basis for much of the confusion in this case. Because the legal, theoretical, relationship, if any, between the parties to this appeal was not clearly alleged in the "notice” type pleading in the Bob Wade counterclaim, the theoretical basis for the resulting joint judgment is likewise unclear. That basis, if clear and correct, would have provided a clear basis for a proper resolution of this subro-gation action between the joint co-debtors.


text:
    BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, Florida, Petitioner, v. The Honorable Hugh D. HAYES, Circuit Judge In and For the Twentieth Judicial Circuit of Florida, Daniel R. Monaco and Nelson A. Faerber, Jr., Respondents.
    No. 84-1458.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.

      R. Bruce Anderson, Asst. County Atty., Naples, for petitioner.
    Nelson A. Faerber, Jr. of Faerber & Wilson, Naples, for respondents.
   PER CURIAM.

The Board of County Commissioners of Collier County filed this petition for writ of certiroari asking this court to quash an order of the respondent circuit judge awarding attorney’s fees of $14,000. The award consisted of $7,000 to each of the two attorney respondents for their joint representation of two indigent defendants under section 925.035, Florida Statutes (1983). We grant the petition, reverse the awards and remand.

The trial court had appointed respondent Monaco to represent three co-defendants in a first degree murder case after the public defender had withdrawn by reason of conflict of interest. Later, Monaco moved for appointment of assistant counsel, and the trial court appointed respondent Faerber as assistant counsel. Those two attorneys subsequently withdrew from representing one of the defendants because of conflict of interest but continued to represent the other two defendants through their trial.

After the trial, Monaco and Faerber filed a motion for attorney’s fees. The trial court, over objection by the Board, awarded Monaco and Faerber $14,000 for their representation of the two defendants.

In its petition to this court, the Board contends that the $14,000 award was contrary to the provisions of the relevant statutes which provide:

If the court determines that the defendant in a capital ease is insolvent and desires counsel, it shall appoint a public defender to represent the defendant. If the public defender appointed to represent two or more defendants found to be insolvent determines that neither he nor his staff can counsel all of the accused without conflict of interest, it shall be his duty to move the court to appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender in his capacity as such or in his private practice, to represent those accused. The attorney shall be allowed compensation, as provided for in s. 925.-036 for representing a defendant.

Section 925.035(1), Florida Statutes (1983).

An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit; however, such compensation shall not exceed the maximum fee limits established by this section. In addition, such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. If the attorney is representing a defendant charged with more than one offense in the same case, the attorney shall be compensated at the rate provided for the most serious offense for which he represented the defendant. This section does not allow stacking of the fee limits established by this section.
The compensation for representation shall not exceed the following:
For capital cases represented at the trial level: $3,500.

Section 925.036(1) and (2)(d), Florida Statutes (1983). The Board argues that the proper construction of these two statutes mandates a payment of no more than $3,500 for the total representation of a defendant in a capital case, regardless of the number of attorneys appointed to undertake that representation. Accordingly, the Board contends that the fee to Monaco and Faerber for their representation of two defendants in this case should have been $3,500 per defendant, or a total of $7,000.

Monaco and Faerber, on the other hand, argue that section 925.035 contemplates the appointment of “one or more” attorneys and that, although section 925.036 uses the singular word “attorney” in referring to compensation, the statutes can and should be read together as allowing payment of the $3,500 maximum fee to each appointed attorney. Accordingly, they contend that the trial court properly awarded a $14,000 fee on the basis of $3,500 per each attorney per each defendant.

The Board cites Pinellas County v. Maas, 400 So.2d 1028 (Fla. 2d DCA 1981), in which this court held that the statutory maximum fee could not be paid to each of two attorneys who had jointly represented a defendant. However, Monaco and Faer-ber point out that when Maas was decided section 925.036 provided that the statutory fees would be the maximum paid “per case per defendant” and that language has since been dropped from the statute. Maas does not explicitly state the reason for its holding; the court may or may not have relied upon the “per case per defendant” language. Monaco and Faerber contend that Maas is not controlling because of the subsequent change in statutory language.

We agree that Maas does not control this case because it cannot be determined if the result in Maas was based on the “per case per defendant” language. But, for reasons explained below, we reach the same result as Maas in our interpretation of the amended statute. See also County of Seminole v. Waddell, 382 So.2d 357 (Fla. 5th DCA 1980), and Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DCA 1980), which were cited to us by the Board and which Monaco and Faerber distinguish for the same reason that applies to Maas.,

Monaco and Faerber further argue that the legislature’s dropping of the “per defendant” language indicates an intention to allow more than one fee per case and to allow the maximum statutory fee to be paid to each of more than one appointed attorney per each defendant’s case. We do not believe that the 1981 amendment to section 925.036 indicates the intent the attorneys assert. Prior to the amendment, courts had interpreted the “per case per defendant” language as allowing “stacking” of fees, i.e., payment of the statutory fee for each of multiple counts charged in an indictment or information. See, e.g., Wakulla County v. Davis, 395 So.2d 540 (Fla. 1981). The 1981 amendment to section 925.036 added a specific prohibition against stacking. The “per case per defendant” language was deleted at the same time, logically because Wakulla relied upon that language for reaching a result which permitted stacking for multiple counts. Our review of drafts of this amendment prior to its adoption and of other legislative history does not reveal any indication that the deletion of the “per case per defendant” language was intended to allow payment of the maximum statutory fee to each of multiple appointed attorneys for a particular defendant.

As the attorneys argue, the language in section 925.035 does contemplate the possibility of appointing more than one attorney. However, that does not provide necessarily logical support for their position. Instead, the statute could well be intended to refer to the appointment of more than one attorney only when the public defender has a conflict in representing three or more defendants and, to avoid that conflict, retains the representation of one defendant while requesting the appointment of separate counsel for each of the other defendants. This latter intention may well be evidenced by the legislature’s use in section 925.035 of “two or more” in its reference to the number of defendants involved, followed by its use of “one or more” in referring to the number of attorneys to be appointed. That is, the reference to “two” defendants may be coupled with the reference to the appointment of one attorney (the other defendant to be represented by the public defender) and the reference to “more” than two defendants may be coupled with the reference to the appointment of “more” than one attorney (one defendant to be represented by the public defender and each other defendant to be represented by a different attorney). We readily concede that the statutes are not a model of clarity.

In a situation, as here, involving the appointment of more than one attorney to represent a defendant, we do not believe the legislature evidenced an intention to allow payment for that representation to exceed the statutory maximum amount. The statutory maximum fee, to a large extent, represents an arbitrary decision by the legislature to limit the amount that the government is to pay for appointed counsel. It seems obvious that, on the basis of the actual time reasonably expended, the amount of an earned fee could well be much more than the permitted statutory maximum. For example, in this case there was testimony that a reasonable fee for representation of the two defendants would be $25,000. We are not saying that the statutory fee limit is right. We are only saying that the matter is legislative, and our province is only to construe the legislative intent.

We are concerned, as was the supreme court in Wakulla County, about fair and reasonable compensation to attorneys in these types of circumstances. However, we do not have before us for construction, as did the supreme court in Wakulla County, a statute providing for “reasonable compensation.” Id. at 542. When section 925.035 was amended to its present form, the requirement of “reasonable compensation” was dropped. Therefore, we have no basis upon which to construe the statutes at hand as requiring fair or reasonable compensation to the attorneys. The validity of the statutes is not in issue. Notwithstanding what our feelings may be on the subject and the public policy reasons which may exist for providing fair and reasonable compensation to attorneys for indigent criminal defendants, we have no basis in this case, to permit more compensation than the statutes allow. Arguments to permit payment of earned fees in this type of situation, however meritorious, must be addressed to the legislature.

The maximum fees established by statute do seem to have some potential intended relation to the amount of time involved in that the statutory maximum fee is larger for the more serious crimes which might be thought to require, as a general rule, more time and preparation. But the statutory fees cannot seriously be thought to be intended to constitute full payment of amounts earned. To allow payment of the statutory maximum fee to each of multiple appointed attorneys for each defendant in this case would seem to circumvent the legislature’s apparent intent to set a limit on the expense to the government for representation of criminal defendants, regardless of whether the earned amount of fees would be higher, whether done by one attorney or multiple attorneys.

In the final analysis, we cannot avoid a conclusion that the legislature intended to be frugal as to fee amounts involved in comparison to fees otherwise earned in these types of cases. See Wakulla County where the supreme court said the legislature “clearly intended to limit the burden which such representation places on public treasuries_” Id. at 542.

Apparently this issue under the current statutes has not previously been addressed by an appellate court in Florida. The arguments by respondents Monaco and Faerber are well presented and persuasive. We certify the following question to the Florida Supreme Court as being of great public importance:

CAN EACH OF MULTIPLE ATTORNEYS APPOINTED PURSUANT TO SECTION 925.035 TO REPRESENT A DEFENDANT ON A SINGLE CHARGE BE AWARDED THE MAXIMUM COMPENSATION PROVIDED IN SECTION 925.036 FOR THAT CHARGE?

The petition for writ of certiorari is granted, the order of the trial court is reversed, and this cause is remanded for proceedings consistent herewith.

RYDER, C.J., and CAMPBELL and LEHAN, JJ., concur.


author: MALONEY, DENNIS P., Associate Judge.

text:
    GENERAL GUARANTY INSURANCE COMPANY, Appellant, v. Louise C. BOLIVAR, Appellee.
    No. 84-1761.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellant.
    J. Bert Grandoff and Leonard R. Poe of Lawson, McWhirter, Grandoff & Reeves, Tampa, for appellee.
   MALONEY, DENNIS P., Associate Judge.

Appellant, General Guaranty Insurance Company, appeals the trial court’s order of an involuntary dismissal for failure to prosecute pursuant to rule 1.420(e), Florida Rules of Civil Procedure. We affirm.

In 1973, Commercial Roof Decks of Tampa, Inc. filed suit against Rene Bolivar Construction Co., Inc. and General Guaranty Insurance Co. (“General Guaranty”). General Guaranty filed its third-party complaint and later a first amended third-party complaint, against several third-party defendants. Louise Bolivar, appellee, was not one of the third-party defendants.

In January 1977 Bolivar was brought into this action by being served General Guaranty’s second amended third-party plaintiff’s complaint. Approximately two weeks later Bolivar filed a motion to dismiss and a motion for more definite statement. These two motions were still pending and Bolivar had not answered the second amended third-party plaintiff’s complaint when, more than six years later, on April 21, 1983, General Guaranty served its notice stating that the third-party action was at issue and requested that the same be set for trial. On April 27, 1983, the court sua sponte entered an order of recu-sal. Nothing further occurred in the case until May 29, 1984, when Bolivar filed a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). Bolivar’s motion for involuntary dismissal was granted by the court. This appeal followed.

General Guaranty argues that Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla.1984), controls. In Mikos, the Florida Supreme Court affirmed this court’s holding that once a plaintiff has given notice that it is ready for trial, the trial court must enter an order setting a trial date and is therefore precluded from dismissing an action for lack of prosecution. There is a critical distinction, however, between Mikos and the case at bar. In Mikos, the action was at issue, both parties had filed notices for trial and, thus, notices for trial were proper. Here, as conceded by General Guaranty, the action was not at issue when the notice for trial was filed and therefore General Guaranty’s notice for trial was improperly filed. This court in Sarasota Cattle Co. v. Mikos recognized this distinction:

Rule 1.440(c) states that, “[i]f the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial.” We hold that the rule requires the trial court to set a cause for trial once notice is given if, in fact, it is ready for trial.

431 So.2d 260, 261 (Fla. 2d DCA 1983) (emphasis added). See Balboa Insurance Co. v. Shores of Madiera, Inc., 457 So.2d 596 (Fla. 2d DCA 1984).

Thus, notwithstanding the Mikos holding, we conclude that upon receiving a notice for trial, the trial judge may review the case file and if he finds that the case is not at issue he is not required to set the case for trial and an otherwise proper motion for involuntary dismissal should be granted.

AFFIRMED.

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


text:
    Lounzio JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-317, 83-2966.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    Bennett H. Brummer, Public Defender, and Paul Morris and Rachelle Bijou, Sp. Appointed Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So.2d 997 (Fla.1981); Singletary v. State, 290 So.2d 116 (Fla. 4th DCA), cert. dismissed, 293 So.2d 361 (Fla.1974).


text:
    Diego SAEZ, Appellant, v. Abbie SAEZ, Appellee. Abbie SAEZ, Appellant/Cross-Appellee, v. Diego SAEZ, Appellee/Cross-Appellant.
    Nos. 83-2238, 84-88 and 83-2191.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.

      DeMeo & Sherman and Thomas G. Sherman, Coral Gables, for Diego Saez.
    Edward C. Vining, Jr., Miami, for Abbie Saez.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Elmer Clayton EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2483.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    William Kuypers, Key West, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Oats v. State, 446 So.2d 90, 93 (Fla.1984); Johnson v. State, 393 So.2d 1069, 1071 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978); Alvarez v. State, 358 So.2d 10, 12 (Fla.1978); Fields v. State, 379 So.2d 408, 409 (Fla.3d DCA 1980); White v. State, 324 So.2d 115, 115-16 (Fla.3d DCA 1975), cert. dismissed, 339 So.2d 1173 (Fla.1976); Fla. R.Crim.P. 3.390(d).


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. DIVERSIFIED WATER SYSTEMS CORPORATION and Virgil Lepar, Appellees.
    No. 84-885.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    Charles B. Atwood, III, and Theresa E. Dalba, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy and Michael Kennedy, Miami, for appellees.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

We reverse the summary judgment entered in favor of the defendants Diversified Water Systems Corporation and Virgil Le-par upon a holding that the evidence before the trial court does not establish, as a matter of law, an accord and satisfaction. See Redding v. Powell, 452 So.2d 132 (Fla. 2d DCA 1984); see also Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So.2d 637 (1944).

Reversed and remanded for further proceedings.


text:
    Jacob DORFMAN, Appellant, v. Beatrice SCHULTZ, as Personal Representative of the Estate of Fannie Dorfman, Deceased, Appellee.
    No. 84-1197.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    John J. O’Brien, Miami, for appellant.
    Joseph Gluckman and Kevin F. Kline, Miami Beach, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Berkenfield v. Jacobs, 83 So.2d 265 (Fla.1955); State v. Sandler, 145 Fla. 425, 199 So. 356 (1940).


text:
    Wade GERRARD and June Gerrard, Appellants, v. BAPTIST HOSPITAL OF MIAMI, INC., Appellee.
    Nos. 84-1300, 84-1549.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    Stephen Cahen, Miami, for appellants.
    Schwartz & Hasty, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Baker v. Varela, 416 So.2d 1190 (Fla. 1st DCA 1982); Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA), cert. denied, 362 So.2d 1051 (Fla.1978); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So.2d 69 (Fla. 3d DCA 1972); E & E Electric Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA), cert. dismissed, 239 So.2d 827 (Fla.1970); § 768.56, Fla. Stat. (1981).


text:
    Joan D. DECKER, Appellant, v. Dwayne M. HUNTER, Appellee.
    No. 84-1448.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.

      Melvin A. Rubin, Miami, for appellant.
    Dwayne M. Hunter, in pro. per.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

In a proceeding on a motion for contempt for failure to pay child support, the trial court ordered the mother, the father and the child to submit to a Human Leukocyte Antigen (HLA) blood test when the father denied paternity. The order also suspended the child support payments pending the outcome of the test. The mother appeals.

If an alleged father has doubts concerning the paternity of a child born during the marriage, he should raise and resolve those doubts during the dissolution proceeding. Here, the issue of the child’s paternity was resolved in the final judgment of divorce rendered March 3, 1971. This judgment incorporated an alimony, child support and property settlement agreement entered into by the parties. The divorce action involved an identity of the cause of action and parties and involved the same issue as the father now attempts to relitigate. Therefore, the final judgment of divorce is res judicata and bars any redetermination of the paternity of the child. See Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981). .

Furthermore, the suspension of the father’s requirement to pay ongoing child support constitutes a modification of a prior order, and the father did not file a petition for modification. The trial court cannot modify child support absent a pleading for modification. Parmer v. Parmer, 431 So.2d 257 (Fla. 2d DCA 1983); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977).

Accordingly, the order under review is vacated and the cause remanded for further proceedings.


text:
    Allen Leon FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1752.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    Allen Leon Frazier, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Neil, 457 So.2d 481 (Fla.1984); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

COBB, C.J., and DAUKSCH and SHARP, JJ., concur.


text:
    John Andrew LANZER, etc., et al., Appellants, v. James WANDLESS, etc., et al., Appellees.
    No. 83-1335.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    Sammy Cacciatore, Ronald G. Duryea and John N. Hamilton, of Nance, Caccia-tore & Sisserson, P.A., Melbourne, for appellants.
    Douglas H. Glicken of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellees.
   PER CURIAM.

Upon consideration of the briefs and record on appeal, we find that construing all the evidence most favorable to appellants, genuine issues of material fact do exist which must be resolved by a jury. Therefore, the lower court erred in holding that appellee Misch was entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Squitieri v. Aetna Casualty & Surety Co., 382 So.2d 730 (Fla. 5th DCA 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982). Accordingly, the summary final judgment entered in favor of appellee Misch is reversed and this case is remanded.

REVERSED and REMANDED.

ORFINGER and COWART, JJ., and POWELL, R.W., Associate Judge, concur.