text:
    Jeffrey SMITH and First Impression Industries, Inc., Appellants, v. DANIEL MONES, P.A., Appellee.
    No. 84-1324.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dec. 3, 1984.

      Robert J. Levine, Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory. Horton, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

By this interlocutory appeal, we are asked to review the propriety of a non-final order denying a motion to return certain settlement monies to the appellants. We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla.Const.; Fla.R.App.P. 9.130(a)(3)(C)(ii).

This is an action filed by an attorney, Daniel Mones, P.A., to collect on certain legal fees allegedly due and owing against his former clients, Jeffrey Smith and First Impression Industries, Inc. Prior to filing this lawsuit, the attorney settled a mechanic’s lien action brought on behalf of his clients for $22,000 and placed these funds in a trust account. Although the amount of legal fees owed was contested by his clients, the attorney thereafter disbursed all of these funds to himself, claiming a charging lien on part of the fund as his fee in the mechanic’s lien action and a retaining lien on the balance of the fund for past legal services rendered in unrelated cases on behalf of the same clients. The clients, in turn, filed a motion in the action below for the return of the entire $22,000, which motion the trial court heard and denied. We reverse.

Assuming without deciding that all the legal fees claimed by the attorney are now due and owing, the attorney is nonetheless not entitled to a charging lien on these funds because no notice of such lien was ever filed, nor was the matter ever pursued in the mechanic’s lien action below. Such notice is a necessary pre-condition to perfecting an attorney’s charging lien where, as here, the client disputes the fee owed to the attorney in that action; moreover, the court in the mechanic’s lien action would have to determine the attorney’s entitlement to the charging lien, rather than the attorney himself as urged herein. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So.2d 1383, 1385 (Fla.1983); see Winn v. City of Cocoa, 75 So.2d 909, 912 (Fla.1954); Conroy v. Conroy, 370 So.2d 1188, 1189 (Fla.2d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980). Finally, a retaining lien could not be imposed on any part of the $22,000 trust fund because set-offs for past legal services rendered in unrelated cases, as here, cannot be imposed on an attorney’s trust account. The Florida Bar v. Bratton, 413 So.2d 754 (Fla.1982); Fla.Bar Integr.Rule, Art. XI, Rule 11.02(4).

The order under review is therefore reversed and the cause is remanded to the trial court with directions to transfer the $22,000 in question to the clients herein. This decision, however, shall be without prejudice to the attorney’s legal action below against the clients herein for fees allegedly due and owing in the mechanic’s lien action and for past legal services rendered in unrelated cases. We only conclude that under the facts of this case the attorney has no charging or retaining lien on the trust funds in this case.

Reversed and remanded.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    CONTINENTAL REAL ESTATE EQUITIES, INC., individually and as general partner of Continental Real Estate Partners, Ltd., and Continental Real Estate Partners, Ltd., Appellants, v. RICH MAN POOR MAN, INC., Appellee.
    No. 84-821.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1984.
    Rehearing Denied Nov. 16, 1984.
    J. Brent Walker and David Hywel Leonard of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellants.
    Ernest M. Jones, Jr., Lakeland, for appel-lee.
   GRIMES, Acting Chief Judge.

This appeal involves the issue of whether a shopping mall owner waived its right to collect a proportionate share of real estate taxes from one of its tenants as provided by the lease.

Appellee/lessee rented space in Lakeland Mall from appellant/lessor under a written five-year lease commencing April 1, 1981. The lease required the lessee to pay as additional rent its proportionate share of real estate taxes levied upon the mall. The tax payments were to be made in monthly increments based upon the most current notice of assessment or tax bill, and thereafter adjusted to reflect the actual taxes for the applicable period. As a result of oversight, the lessor did not bill appellee for its proportionate share of taxes from April 1981, through March 1983. On May 3, 1983, the lessor realized that the lessee had not been paying the taxes and made a demand for the back taxes.

After the lessee refused to pay the taxes, the lessor brought suit in county court for collection of the taxes and for eviction of the lessee from the mall. The lessee counterclaimed for more than the county court’s jurisdiction, and the matter was transferred to circuit court. Following a hearing, the judge concluded that the appellant’s inattention to the tax charges constituted a waiver of its right to collect the charges for the years 1981 and 1982 and denied the appellant’s suit for eviction. The court ruled that the lessee was obligated for its share of the taxes commencing on January 1,1983. The counterclaim was severed and remains pending. The lessor appeals all aspects of the ruling, and the lessee cross-appeals contending that the lessor also waived the taxes for the first three months of 1983.

A waiver is an intentional or voluntary relinquishment of a known right. Fireman’s Fund Insurance Co. v. Vogel, 195 So.2d 20 (Fla. 2d DCA 1967). It may be inferred from one’s conduct but does not arise from forebearance for a reasonable time. Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945). In Mercede v. Mercede Park Italian Restaurant, 392 So.2d 997 (Fla. 4th DCA 1981), the court held that the landlord’s failure to bill his tenant for monthly cost of living increases for a period of twenty-one months did not constitute a waiver of the right to collect the back charges.

Since the lessor possessed the data for computation of the monthly tax charges, it may be assumed that the lessor had a responsibility to send monthly bills to the lessee for its share of the taxes. Therefore, its unexplained failure to do so, when coupled with the testimony of the former mall manager that he told the lessee’s president that there would be no real estate tax charges for the first year of the lease is sufficient to support the court’s finding of waiver to that extent. Beyond that point the record reflects the mere absence of monthly billings which, by itself, is insufficient evidence of a waiver.

Under the circumstances, the court properly exercised its discretion in refusing to order an eviction. Our determination of the lessor’s claim for back tax charges necessarily disposes of the cross-appeal adversely to the position of the lessee.

We affirm the judgment in all respects with the exception of the duration of the waiver. We remand the case with directions to enter an order reflecting the lessee’s obligation for its share of the taxes after April 1, 1982.

SCHEB and CAMPBELL, JJ., concur.


author: DAUKSCH, Judge.

text:
    John David STARLING, Appellant, v. STATE of Florida, Appellee.
    No. 83-123.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 15, 1984.

      Angus W. Harriett, of Harriett & Sproull, P.A., Palatka, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a sentence in a grand theft case. The Appellant does not seek any specific relief but we presume he would have a reversal of the sentence. He alleges in his brief that the sentence is cruel and unusual.

Appellant was convicted of numerous counts of grand theft. He was placed on probation as to some counts and no sentence was imposed as to others.

As we said in Phillips v. State, 455 So.2d 656 (Fla. 5th DCA 1984) and as was said by the Supreme Court in Bateh v. Florida, 110 So.2d 7 (Fla.1959), cert. denied, Bateh v. Florida, 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959) it is error to suspend a sentence indefinitely. It is unfair to all concerned, victims and defendant alike, and serves no beneficial purpose.

While the sentence is affirmed, as in Phillips, the practice should be discouraged.

AFFIRMED.

COBB, C.J., and COWART, J., concur.


author: NESBITT, Judge.

text:
    P.L.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1137.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 3, 1984.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

P.L.C. appeals his adjudication of delinquency on charges of burglary of a conveyance and two counts of theft. We reverse.

On January 31, 1983 at approximately 1:00 p.m., Eve Zinner, her sister, Norma Cutler, and their cousin, Ruth Frebish, arrived at Mount Sinai Cemetery to visit the gravesites of several family members. Not seeing anyone in the area, the women left their purses in the unlocked car.

Between 1:15 and 1:20 p.m., the women discovered that their purses were missing. At the same time, Metro police officers Mike Murray and John Kelly observed a car, in which P.L.C. was a passenger, run a stop sign within a block or two of the cemetery. The officers pulled behind the car and turned on the police car’s flashing lights. The vehicle stopped at a red light, then proceeded through it and led the officers on a high speed chase on Interstate 95. After a few miles, the car skidded off the road and the occupants jumped out and fled. P.L.C. was apprehended in the area. Two of the three purses were discovered in the car and the third was found in the possession of one of the other occupants.

The prosecution relies in this case on the well-settled, and now statutorily reflected, inference arising from the possession of recently stolen property. § 812.022(2), Fla. Stat. (1981). The state contends on appeal that the record supports a finding that one of the purses was in the back seat next to P.L.C. Assuming for purposes of decision that such a location shows possession sufficient to allow the inference to operate, we disagree with the state’s contention. The testimony regarding the location of the purse is totally indeterminate. The officer testifying never saw the purses in the car, but for some unexplained reason he believed one of them was in the back seat.

With no indication of where the purses were located in the car, we are left only with a defendant who was present in a car containing stolen purses. Being a passenger in a vehicle containing stolen goods is not, by itself, sufficient to give rise to the inference of knowledge that the goods are stolen. See State v. Maines, 301 N.C. 669, 273 S.E.2d 289 (1981); see also McWatters v. State, 375 So.2d 624 (Fla. 4th DCA 1979). Without the inference operating, the evidence is clearly insufficient to support the adjudication of delinquency. The appellant’s presence in the car two blocks from the scene of the crime and possibly as much as a half hour after it was committed fails to preclude the reasonable hypothesis that he entered the car after the purses were stolen and was unaware of either their presence or their stolen nature. See Fernander v. State, 434 So.2d 24 (Fla. 3d DCA 1983); A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982). Accordingly, the adjudication of delinquency is reversed.

      . The defendant was originally charged with three counts of theft, but one count was abandoned by the state.

      . Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

      .The officer testified that when the car chase ended he immediately pursued the suspects on foot. It is apparent from the record that the first time he saw the purses, when he returned to the cars, they were in the hands of another officer.


author: PER CURIAM.

text:
    H.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1282.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 3, 1984.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The adjudication of delinquency under review is reversed for a new hearing because the lower court improperly failed to hold a Richardson hearing prior to admitting incriminating statements allegedly made by the respondent and not previously revealed by the state in discovery. Cumbie v. State, 345 So.2d 1061 (Fla.1977); Balboa v. State, 446 So.2d 1134 (Fla. 3d DCA 1984). The state’s contentions that the defense was on prior notice of the statements, see Leeman v. State, 357 So.2d 703 (Fla.1978), or acquiesced in the court’s ruling, see Lucas v. State, 376 So.2d 1149 (Fla.1979), are totally unsustained by the record.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    The ESTATE OF Rebecca VADALA, deceased, Appellant, v. Gene FLINN, Appellee.
    No. 84-270.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 3, 1984.
    Rosenblatt, Arnowitz & Roth and Neal A. Roth, Miami, for appellant.
    Gene Flinn, Miami, in pro. per.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Sheffield v. Dallas, 417 So.2d 796 (Fla. 5th DCA 1982); In Re Estate of Ryecheck, 323 So.2d 51 (Fla. 3d DCA 1975); In Re Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969).


author: DOWNEY, Judge. ANSTEAD, Chief Judge,

text:
    T.R. ANDERSON, Trustee, and Sargent Management Company, Appellants, v. Vincent DRADDY and Peer T. Pedersen, Appellees.
    No. 83-2347.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    Rehearing Denied Dec. 5, 1984.
    Elizabeth T. Maass of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellants.
    Steven L. Perry of Crary, Buchanan, Bowdish & Bovie, Stuart, for appellees.
   DOWNEY, Judge.

Appellants, T.R. Anderson and Sargent Management Company, seek review of a final summary judgment determining the amount to be paid by appellees, Vincent Draddy and Peer T. Pedersen, pursuant to the exercise of a right of first refusal.

The case arose out of the proposed sale of a parcel of property held by First American Bank, as trustee, for appellants and appellees. Appellants’ interest in the trust is two-thirds, and appellees’ is one-third. The trust instrument provided that:

When a bona fide offer is received and a majority agree to accept said offer, any or all of the minority shall have the right to retain ownership of the property by purchasing the interest of the majority on the same terms and conditions as the offer.

Pursuant to the direction of the majority interest, the trustee, as seller, entered into a proposed contract with a purchaser, Gonzalez Associates, Inc. One paragraph of that contract provided that the purchase price of the property was $4,500,000. Another paragraph provided that the trustee recognized Gonzalez Associates, Inc., and Fenton and Lang, Inc., as the real estate brokers instrumental in the consummation of the sales contract and agreed to pay a real estate commission to the brokers of 5% of the purchase price. The contract also acknowledged the existence of the first refusal provision of the trust agreement. Within the time allowed, Draddy and Ped-ersen notified the trustee of their election to buy the property upon the same terms and conditions as those contained in the Gonzalez contract. Gonzalez was thereafter notified of the rescission of the sales contract because of the exercise of the first refusal agreement by Draddy and Peder-sen. Gonzalez and Fenton and Lang, Inc., then sued the trustee and all the parties to this suit for specific performance of the sales contract and for a brokerage commission. The trustee filed what was labelled a third party complaint against the trust beneficiaries to determine its rights and obligations under the trust agreement. The trial court rendered a final summary judgment determining that Draddy and Pedersen had properly exercised the right of first refusal; that the Gonzalez sales contract had been properly rescinded; and that no commission was owed to the brokers. That judgment was affirmed without opinion. Gonzalez Associates, Inc. v. First National Bank of Palm Beach County, 424 So.2d 776 (Fla. 4th DCA 1983).

Thereafter a dispute arose between Draddy and Pedersen, on the one hand, and Anderson and Sargent, on the other, regarding the amount that was due and payable under the exercise of the right of first refusal. Anderson and Sargent claimed in a motion for summary judgment that they should be paid two-thirds of the Gonzalez purchase price “and the benefit of the failure of the broker to recover its commission should be distributed prorata among the beneficiaries rather than totally to the parties exercising the right of first refusal.” In their appellate presentation, Anderson and Sargent claim they were “owed two-thirds of the purchase price, with no commission deduction.”

In their motion for summary judgment Draddy and Pedersen claimed they should pay “the same amount which would have been required to be paid under the Gonzalez contract, minus the brokerage commission which the court has already determined need not be paid.” They contend that payment of the Gonzalez purchase price less the commission to Anderson and Sargent would give Anderson and Sargent the amount they would have received had the Gonzalez contract been fully executed. In their appellees’ brief Draddy and Peder-sen contend they owe Anderson and Sargent only two-thirds of the purchase price less two-thirds of the commission. In that way Anderson and Sargent would receive from Draddy and Pedersen exactly what they would have received from Gonzalez after payment of the commission.

The circuit court entered summary judgment for Draddy and Pedersen and found they “shall be required to pay and Third-Party Defendants, T.R. ANDERSON, Trustee, and SARGENT MANAGEMENT COMPANY, shall be entitled to receive only so much as T.R. ANDERSON, Trustee, and SARGENT MANAGEMENT COMPANY, as majority beneficiaries, would have received if the GONZALEZ contract had been approved by the Court and if the real estate broker’s commission under that contract had been found to be valid.” We interpret the circuit court award to have been $2,850,000. We think the amount of that award was erroneous.

In Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854 (Fla. 3d DCA 1970), the court set forth the following relevant principles of law. First, a right of first refusal ripens into an option and is governed by the law of options when the owner of the property in question manifests a willingness to accept a good faith offer for the purchase of the property. Second, in order for an optionee to exercise his option he must strictly comply with the applicable provisions of his contract with the optionor; the optionee must accept the terms of the contract unqualifiedly.

The option contract in Coastal Bay, i.e., the ripened right of first refusal, called for the holder to match the offer of a bona fide purchaser. The purchaser in that case offered to buy the property for $2,200,000 on specific terms. The trial court found, for various reasons, that the optionee’s offer of a $2,000,000 purchase price was not a matching offer. The Third District affirmed, rejecting the optionee’s argument that its $2,000,000 offer was equivalent to the bona fide purchaser’s offer since the optionee’s offer eliminated the need for the payment of a broker’s commission.

In the present case, Draddy on September 2, 1981, telegraphed First American Bank as follows:

Be advised that Mrs. Draddy and Peder-sen hereby exercise their option to retain ownership of reference property by purchasing interest of the majority on the same terms and conditions as Gonzalez offer. Please notify date time and place for delivery of money as per Gonzalez contract.

Under the principles set forth in Coastal Bay, by agreeing to buy from the trustee the majority’s two-thirds interest on the same terms and conditions as the Gonzalez offer, Draddy and Pedersen bound themselves to render to the trustee, the seller of the property, two-thirds (viz., payment of $3,000,000) of the performance Gonzalez, the bona fide purchaser, had agreed to render to the trustee in order to be entitled to the counterperformance of conveyance of the property. Draddy and Pedersen’s obligation to make payment of $3,000,000 to the trustee arose at the time of the telegraphed exercise of the right of first refusal, September 2, 1981. Any duties upon the trustee as to a distribution of net proceeds to the beneficiaries after a sale were not relevant to the question of the price Draddy and Pedersen had to pay to meet the Gonzalez offer.

We conclude that it was error for the circuit court to take into account the brokers’ commission and reduce or increase the amount due Anderson and Sargent from the trustee by any portion of that commission.

For the foregoing reasons we reverse the judgment under review and remand the cause with directions that the court enter a judgment requiring Draddy and Pedersen to pay Anderson and Sargent $3,000,000, in order to exercise their right of first refusal.

REVERSED AND REMANDED WITH DIRECTIONS.

RODGERS, EDWARD, Associate Judge, concurs.

ANSTEAD, C.J., specially concurs with opinion.

ANSTEAD, Chief Judge,

specially concurring:

Were it not for the parties’ agreement that the cause should be resolved by judicial interpretation of the pertinent provision in the trust agreement, I would be inclined to hold the provision ambiguous and remand for an evidentiary hearing as to the parties’ intent.

This is a difficult case to resolve, since on the surface it appears that the majority beneficiaries are receiving more than they would have received had the sale gone through to the third party purchaser of the trust property. However, it is important to note that under the interpretation we approve today the minority beneficiaries will end up with property presumably worth the full purchase price offered by the third party purchaser. If that be so, would it not be inequitable to allow them to do so without paying a full two-thirds of that value to the majority beneficiaries who likewise are entitled to a two-third’s interest in the full value of the property?


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Leonard KLATMAN, Appellant, v. Herman BARNETT and Roslyn Barnett, his wife, Appellees.
    No. 83-2769.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    Rehearing Denied Dec. 25, 1984.
    Richard A. Barnett of Richard A. Barnett, P.A., and Howard S. Miller, Hollywood, for appellant.
    G. William Allen, Jr., and Carl E. Jenkins of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed.

HERSEY and BARKETT, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially-

I concur with the majority but write to express some observations. The facts show that appellant was injured while crossing a poorly maintained parking lot on the premises leased by his employer from the appellee landowners. The lease between the employer and the landowners required the former to maintain the parking lot. The injured employee sued the landowners for their failure to maintain the parking lot in a reasonably safe condition. Depositions of witnesses reveal facts from which it could be reasonably inferred that the parking lot contained holes prior to the lease of the property to the employer. The trial court awarded summary judgment in favor of the landowners, their having surrendered possession and control of the premises.

In his scholarly concurring opinion in Mansur v. Eubanks, 368 So.2d 645 (Fla. 1st DCA 1979), quashed, 401 So.2d 1328 (Fla.1981), Judge Ervin places the relationship of landlord and tenant in historical perspective. So does John J. Boyle, Esquire, in his current article, The Landlord’s Warranty of Habitability: A Plea for Statutory Reform, 18 The Florida Bar Journal 509 (1984). Both Judge Ervin and Mr. Boyle were concerned with liability of the landowner to the tenant in their studies. Yet, by his following remarks, Judge Ervin has raised a question in my mind that I felt bore expression herein:

It is possible our Supreme Court may wish to consider the approach followed by the New Hampshire Supreme Court in Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 64 A.L.R.3d 329 (1973), which, having previously applied the implied warranty of habitability to landlord-tenant contractual relationships, extended it to tort actions as well. The court, in rejecting the doctrine, stated that henceforth landlords, as other persons, must exercise reasonable care not to subject others to an unreasonable risk of harm, and a landlord must act as a reasonable person. 308 A.2d at 534. Moreover, it continued, questions of control, hidden defects, and common or public use, formerly employed to establish a prerequisite to a consideration of the negligence of the landlord, would be relevant only to a determination of the basic tort issues such as foreseeability and unreasonableness of the particular risk. Id. at 535. The court concluded that the focus of inquiry would be shifted from “the traditional question of ‘who had control?’ to a determination of whether the landlord, and the injured party, exercised due care under all the circumstances.” Id.
By analogy, the obviousness of the danger existing in machinery is now not an exception to liability in actions where recovery is sought against the manufacturer, but is rather a defense available to the manufacturer by which it may show the plaintiff did not exercise a reasonable degree of care under the circumstances. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979). There appears to be little justification in continuing to apply a doctrine which would bar an action to a tenant whose only notice of the risk is implied by law simply because he acquired control of the premises, yet permit an action to a plaintiff who was injured by a product which is patently dangerous.
To summarize, I conclude that in the absence of statute, and other exceptions not relevant here, caveat lessee still applies to bar a tenant from recovering damages for personal injuries caused by defects on leased premises which the landlord was unaware existed. The wisdom of its continued application may judicially be determined only by the Florida Supreme Court.

368 So.2d at 650-51 (footnote omitted).

The question is simple enough; namely, why should landowners be absolved from liability to a lessee’s employee because of the lessee’s assumption of responsibility for maintenance, when the defect occasioning injury to the employee was in existence at the time of the lease and was known to the landowners to exist? Why should an employee be restricted in such circumstance to a claim for worker’s compensation against his employer, leaving the landowner unaccountable to the employee— who has no control over the condition of the property or over his employer?

At oral argument, appellant’s counsel raised a number of points to justify this court’s certification of an appropriate question to the Supreme Court of Florida in this case, in order to determine if the exception to the doctrine of caveat lessee, carved out by the court in a residential framework, by Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981), should be extended to commercial leases. He suggested the following reasons for extending the exception:

1.The cutting of feudal vestiges, no ' longer appropriate to modern society’s concerns.

2. The absence of a landowner’s incentive to remedying known defects by perpetuation of caveat lessee.

3. The absence of a distinction with a difference between dangerous instrumen-talities and dangerous conditions.

4. The appropriate bearing of risk by landowners through insurance.

5. The absence of control by the employee over the landowner or the employer.

6. The public’s use of commercial property.

7. The landowners’ superior knowledge of the condition of the property.

8. The incompleteness of relief available from worker’s compensation; e.g., no recovery for pain and suffering.

9. The ongoing relationship between landowners and their property by virtue of a lease as opposed to a termination of that relationship by virtue of a sale.

Appellee’s counsel countered the foregoing reasons by expressing concern with the following:

1. More lawsuits, involving unnecessary defendants.

2. The absence of justification for landowners to bear the expense of exposure, having contractually obligated the employer to effect maintenance.

Personally, I find merit in the reasons suggested by appellant’s counsel, as well as possible answers to appellee’s above concerns in the form of section 57.105, Florida Statutes (1983) and Third Party Complaints. However, I feel that these are social issues that are best debatable on the floor of the two legislative bodies elected by the citizens of Florida. It was the Legislature which codified the implied warranty of habitability in Chapter 83, Florida Statutes; therefore, it seems appropriate for it to be the body to consider this particular issue.

That is not to say that the highest court of this state has not appropriately responded to societal needs. As Judge Ervin has pointed out:

In the past, the court has not been reticent in changing established principles of law when conditions for their continued application were deemed no longer relevant. The court reserves to itself the option of exercising a “ ‘broad discretion’ taking ‘into account the changes in our social and economic customs and present day conceptions of right and justice.’ ” Duval v. Thomas, 114 So.2d 791, 795 (Fla.1959).

368 So.2d at 649, 650 (footnote, citing examples of such changes, omitted).

In his 1984 introduction to the paperback edition of Megatrends, John Naisbitt describes Florida as one of the two bellwether states of the nation. Hopefully, the courts of this state will continue to initiate sensitive opinions in the future which respond to changing societal needs. In this instance, however, the appropriate response seems to be legislative.


author: BOOTH, Judge.

text:
    Anna Tedder ALVAREZ, David N. Bole, Marie W. Burleson, Paul V. Gonzalez, Henry W. Meritt, and Victoria M. Patrignani, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, ACUPUNCTURE, Appellee.
    Nos. AV-100 to AV-105.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Carlos Alvarez and Carolyn S. Raepple of Hopping, Boyd, Green & Sams, Tallahassee, for appellants.
    Frank Vickory and Drucilla E. Bell, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Professional Regulation (DPR) denying the appellants licenses to practice acupuncture in the State of Florida based upon their failure to receive a passing score on the clinical practical portion of the August, 1982 Acupuncture Licensure Examination. The appellants contend, inter alia, that they were given insufficient notice and misleading instructions as to what was required on the clinical practical portion of the examination.

The August, 1982 Acupuncture Licen-sure Examination, the second such examination given in Florida, was divided into four parts:

Part I — state laws and rules relating to acupuncture, health, and safety requirements;
Part II — theory and practice of acupuncture;
Part III — diagnostic techniques and procedures and point/meridian selection; and
Part IV — Section 1: competency in the performance of needle insertion, manipulation, and removal;
Section 2: competency in patient care, sanitation, and antiseptic application.

All six appellants received passing scores for the first three parts. All six appellants failed Part IV, Section 1. Two appellants additionally failed Part IV, Section 2.

Part IV, Section 1 tested the following subject matter areas: (1) accuracy of location of acupuncture point; (2) length of needle/angle of insertion/manipulation; (3) condition of needle — handle comes in contact with skin; and (4) needle manipulation and removal. Examinees received by mail the following instructions regarding the practical examination procedure:

For the final portion of your practical Acupuncture examination, you will be required to perform needle insertion, manipulation and removal on yourself for three (3) different Acupuncture points. Restrooms will be available to all candidates to prepare for his/her examination. Each candidate will be told by the examiner the point(s) on which needle insertion, manipulation and removal are to be performed. You will demonstrate for the two (2) examiners (i.e., a pair) how you will treat a patient in your clinic when performing needle insertion, manipulation and removal. You are not required to ask questions or narrate these procedures. You are required to demonstrate only the proper sterilization and sanitation procedures and proper needling techniques for the designated Acupuncture points....

The examinees were also mailed a bibliography of three books to study for Part II of the examination, “Theory and Practice of Acupuncture.”

At the examination, DPR directed the examiners to tell each examinee to tonify (or sedate) three different acupuncture points using the correct angle and needle manipulation. In order to receive a passing score for correct needle manipulation, the examinee had to demonstrate the technique of “twisting and twirling” or “lifting and thrusting.” A higher score for superi- or manipulation was awarded if the exami-nee demonstrated both techniques. An ex-aminee received a failing score if he did not demonstrate either of the two techniques. The two techniques are among several used for tonification and sedation. The examinee also received a failing score for the subject matter area of length of needle/angle of insertion/manipulation if he did not use the technique of angled needle insertion.

The parties stipulated that appellee did not notify the appellants expressly in writing prior to the examination that they had to demonstrate one of the needle manipulation techniques known as “twisting/twirling” or “lifting/thrusting” in order to receive a score for correct manipulation, nor that they were required to insert the needle at an angle, either with or against the flow of energy along the meridian, in order to receive a score for correct angle.

The basic question presented as to Part IV, Section 1 was whether the instructions given were so insufficient and misleading as to render that portion of the test invalid.

The hearing officer's recommended order contained the following findings of fact, which were adopted by the agency:

Respondent did not notify the petitioners expressly in writing prior to the examination that they were required to insert the needle at an angle, either with or against the flow of energy along the meridian, in order to receive a score for “correct angle” on the August, 1982, acupuncture licensure clinical practical examination.
Respondent did not notify Petitioners expressly in writing prior to the examination that they had to demonstrate one of the needle manipulation techniques known as “twisting and twirling” or “lifting and thrusting” in order to receive a score for “correct manipulation” on the August, 1982 acupuncture licen-sure clinical examination.
Respondent did not notify Petitioners by rule or otherwise that “needle manipulation” would be graded in two separate items on the grade sheet for each acupuncture point on the examination. Nor did Respondent notify Petitioners expressly in writing prior to the examination that they had to close the hole for tonification and leave the hole open for sedation in order to receive a score for “proper removal” of a needle on this examination.
Acupuncture is defined in the statutes and rules to mean “the insertion of needles into the human body, or the treatment of specific skin areas by means of mechanical, thermal, or the electrical stimulation, for the purpose of controlling and regulating the flow and balance of energy in the body.” There are numerous “schools” of acupuncture throughout the world where “masters” teach different techniques. However, all of these schools teach the traditional Chinese theory of acupuncture which is to balance the energy in the body by “toni-fying” those areas where there is insufficient energy and “sedating” those areas with too much energy. No evidence was presented that different acupuncture “points” are used at the differing schools of acupuncture or that proper results can be obtained if the needle is not inserted accurately on the point to be needled. These “points” are where needles are inserted and manipulated to increase or decrease the flow of energy on that meridian. The differences in these schools of acupuncture, including the western or scientific, consist mainly of techniques used to attain the desired end. Of these techniques, depth of needle insertion, angle of insertion, and how a needle is manipulated to stimulate the point are perhaps the most significant. (emphasis added)
Of the three texts referred to the applicants for study, two describe the traditional Chinese art of acupuncture, while the third, by Felix Mann, tests the Chinese art of acupuncture against western scientific bases to demonstrate the efficacy or lack thereof of some of these procedures. While a scientific basis for certain of the traditional Chinese theories cannot be demonstrated, Mann, and others in the scientific world, contend1, these theories to be without merit.
Traditional Chinese acupuncture emphasizes the importance of point location, angle of insertions, depth of penetration of the needle, the type manipulation used and opening or closing of the hole. All schools emphasize the importance of point location. Some schools, finding little scientific basis for angle and depth of insertion, de-emphasize the importance of these techniques. Many contend that there is no basis for angled insertions solely for tonification or sedation, that with adequate stimulation, depth of needle is unimportant and that almost any type of stimulation is adequate for either tonification or sedation. Little scientific basis for leaving the hole open or closing the hole for sedation and tonification, respectively, has been demonstrated. Since many acupuncture practitioners in the western world, particularly medical doctors, attain stimulation by the use of electricity, and electricity will pass through body tissue easier than manually transmitted vibrations of the needle, the depth of penetration for these practitioners using electrical stimulation is not particularly important. Accordingly, those practitioners give little weight to depth of penetration. (emphasis added)

Thus, the hearing officer found differences between various recognized schools of acupuncture and further found these differences were most significant as to needle insertion, angle, and manipulation, the very skills tested in Part IV, Section 1. Based on these findings, the hearing officer and the agency should have concluded that DPR’s failure to specify at any time the school or technique to be followed was critical error. However, the hearing officer, in his conclusions of law adopted by the agency, states:

Most of the Petitioners are aware of the various acupuncture techniques espoused by traditional Chinese acupuncturists but declined to demonstrate such techniques during their examination....
It is undoubtedly true that some of these petitioners would have passed the clinical practical portion of this examination if they had known exactly what the examiners expected them to demonstrate. This does not mean that they should have been given such explicit instructions. The bibliography, the wording of the statute and the directions to “tonify using the correct angle and needle manipulation” should certainly place the examinee, with a modicum of training, on notice that he was being graded on his demonstration of traditional Chinese acupuncture techniques.

Thus, the conclusions below are inconsistent and incompatible with the findings of fact. Further, we note that the statute requiring the licensure of acupuncturists does not specify traditional Chinese acupuncture techniques. The bibliography suggested for the written portion of the examination by the Department of Professional Regulation is certainly susceptible to more than one interpretation as to which acupuncture techniques are appropriate for a demonstration of competency in the clinical portion of the examination. The directions to “tonify using the correct angle and needle manipulation” convey little information as to which tonification technique is acceptable since, as found by the hearing officer, there is more than one acceptable angle and needle manipulation. Furthermore, the directions “to demonstrate for the two (2) examiners (i.e., a pair) how you would treat a patient in your clinic when performing needle insertion manipulation and removal,” (emphasis added) would indicate that any recognized acupuncture technique would earn a passing score if properly performed.

We find the agency’s instructions as to Part IV, Section 1 are substantially insufficient and misleading. The error is of fundamental import in that appellants are thereby unfairly deprived of the opportunity to practice their chosen profession. The challenge as to Part IV, Section 2 on separate grounds we find to be without merit, and the order below is affirmed as to that section.

Accordingly, those examinees who failed only Part IV, Section 1 of the examination and who were, for that reason alone, denied licensure may, upon making of a proper application, but at no cost to them, retake the clinical portion, Part IV, Section 1, of the Acupuncture Licensure Examination at the next regularly scheduled examination. Rule 21-11.13(1), Florida Administrative Code. Under the circumstances, such action is fair to both sides in that it protects the public but does not penalize examinees for the agency’s inadequate and sometimes misleading directions. The agency’s order is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

SHIVERS and JOANOS, JJ., concur. .

      . Section 468.322(1), Florida Statutes (1981), defines acupuncture as "the insertion of needles into the human body for the purpose of controlling and regulating the flow and balance of energy in the body.” Rule 21-12.19(2), Florida Administrative Code (1982 Annual Supp.), further defines acupuncture as "the insertion of needles into the human body, or the treatment of specific skin areas by, means of mechanical, thermal, or electrical stimulation, for the purpose of controlling and regulating the flow and balance of energy in the body.” The specialized terminology includes "meridian,” a channel crossing the human body; "tonification,” the process of increasing the energy flowing along a particular acupuncture point's meridian; and "sedation,” the process of decreasing the energy flowing along a particular acupuncture point’s meridian.

      . Infra at note 1.

      . Section 21-11.13(1), Florida Administrative Code: "In practical examination, if it is determined that a candidate was graded improperly in a portion of the examination through no fault of his/her own, he/she shall be permitted to retake at the next regularly scheduled examination that portion of the examination at no charge.”


author: SMITH, Judge. THOMPSON, Judge,

text:
    Neil CRAWFORD, Appellant, v. P.C. THOMPSON CONSTRUCTION COMPANY and Aetna Life & Casualty Company, Appellees.
    No. AX-228.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Rehearing Denied Nov. 28, 1984.
    James M. Moran and Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    R. Franklin Ritch of Ritch & Graves, Gainesville, for appellees.
   SMITH, Judge.

We reverse the order awarding only $1250.00 to claimant’s attorney for his services rendered in obtaining a stipulated wash-out settlement of the claimant’s future compensation and medical benefits for the sum of $75,000.

Claimant’s attorney argues, and we agree, that the deputy commissioner was not at liberty to disregard the attorney’s services in representing the claimant in arriving at, negotiating with the carrier, ultimately agreeing upon, and securing the approval of the settlement by the deputy commissioner. That the deputy commissioner did ignore the attorney’s time, effort and beneficial results secured by claimant’s attorney is clear from the orders entered. The initial order, dated January 4, 1984 stated, in part, that other than benefits obtained pursuant to claims requesting reimbursement for mileage and certain medical expenses, “it has not been demonstrated to the undersigned that Claimant’s attorney has obtained any benefits not voluntarily paid either to Claimant or in behalf of Claimant by the Employer/Carrier.” In ruling on claimant’s attorney’s motion to vacate that order, the deputy commissioner again refused to consider the claimant’s attorney’s services in connection with the wash-out, and to clarify his refusal, amended the January 4, 1984 order by adding an additional paragraph, stating:

9. The undersigned is of the opinion that under the circumstances of this case, there is no binding authority for the undersigned to award claimant’s attorney an attorney’s fee from the employer/carrier based upon the agreement between the employer/carrier and claimant and the claimant’s attorney that claimant’s attorney was to be paid an attorney’s fee from the employer/carrier for his services in negotiating and obtaining a wash-out settlement for claimant. See Sullivan v. Mayo, 3 FCR 165. Therefore as to the fee awarded herein, no consideration has been given to claimant’s attorney’s services in obtaining the wash-out amount or in the time he may have spent in that endeavor.

The deputy commissioner misconceived his role in ruling upon the fee to be received by claimant’s attorney. The attorney’s entitlement to reasonable attorney’s fees payable by the carrier for his services in connection with the wash-out settlement became vested when the deputy commissioner approved the stipulated settlement. The agreement for attorney’s fees, which was incorporated in the joint petition for approval of the stipulation and settlement, provided:

8. The claimant has been represented by Thomas W. Davis, Esquire, and the parties agree that Mr. Davis is due a reasonable fee for his services. The amount of the fee is to be determined by the Deputy Commissioner if the parties are unable to agree upon a fee. The Deputy Commissioner may take into consideration Affidavits to be filed and all other relevant factors in determining a reasonable fee to be paid to Mr. Davis by the Carrier.

We cannot agree that in devoting the necessary time to the investigation and analysis of a case, and in undertaking the responsibility of advising a claimant in connection with the securing and acceptance of a wash-out settlement, a claimant’s attorney performs no legal services worthy of remuneration. Neither do we find applicable Sullivan v. Mayo, 106 So.2d 4 (Fla. 1st DCA 1958), a case dealing with the statutory obligation of the carrier under Section 440.34, Florida Statutes (1957) to pay claimant’s attorney’s fees in a lump sum settlement proceeding. The issue before the deputy commissioner here was not whether the law imposed a legal obligation upon the E/C to pay claimant’s attorney’s fees. The legal obligation to pay such fees had already been settled, as a contractual matter, by the execution of the joint stipulation and petition for settlement. The approval of this settlement agreement, including the obligation to pay attorney’s fees, is uncon-troverted. The only issue remaining for the deputy commissioner was to determine the amount of the fee to be awarded to claimant’s attorney. The position of the deputy commissioner was no different than in any other legal proceeding in which the parties agree upon liability for attorney’s fees, leaving the amount to be determined by the court if not otherwise agreed upon between them.

Although the error apparent on the face of the orders entered by the deputy commissioner alone warrants reversal, one additional aspect of the case merits consideration. The order approving the settlement was entered November 8, 1983. The E/C, without waiting for claimant’s attorney to submit a statement or affidavit pertaining to his services rendered, filed an affidavit made by an attorney who stated that he had “reviewed correspondence from the Carrier relative to the participation by Mr. Davis in the settlement of the case and in representing Mr. Crawford_” This affidavit, dated November 18, 1983, was premature. It did not and could not have taken into consideration the statements of fact relative to services rendered by the claimant’s attorney as contained in his affidavit, which was subsequently executed on November 28, 1983, and filed with the deputy commissioner. Examination of the carrier’s file no doubt would be adequate to apprise an attorney of certain essentials regarding the case; nevertheless, we are persuaded that review of the carrier’s file alone cannot be determinative of the extent of the legal services rendered by the claimant’s attorney.

Accordingly, the amended order of February 2, 1984, is reversed insofar as the amount of attorney’s fees payable by the carrier to claimant’s attorney is fixed at $1,250.00, and the cause is remanded for the award of a reasonable attorney’s fee consistent with the mandates of this opinion.

BOOTH, J., concurs.

THOMPSON, J., dissents with written opinion.

THOMPSON, Judge,

dissenting.

I dissent. I would affirm the award of the $1,250 attorney’s fee to claimant’s attorney.

Claimant sustained a compensable injury on October 9, 1974 and the carrier timely commenced payment of temporary total disability (TTD) benefits. The claimant was furnished medical treatment including four operations on his back, the last of which was in July 1978. The attorney who formerly represented the claimant filed a claim for PTD, future medical and attorney’s fees and costs on January 28, 1978 before claimant reached maximum medical improvement (MMI). On September 13, 1978 the employer/carrier (E/C) accepted claimant as permanently totally disabled (PTD) as of July 13, 1978. On December 5, 1978, the same deputy that entered the order appealed from here entered an order finding that the E/C had voluntarily accepted the claimant as PTD, that the claimant had not reached MMI and that no disability rating had ever been assigned by any physician of whom the claimant or the E/C’s attorney was aware before the E/C accepted the claimant as PTD. The deputy further found that motion for assessment of attorney’s fees and costs should be denied. This order was appealed and affirmed by order of the Industrial Relations Commission. Certiorari was denied by the Supreme Court of Florida on May 16, 1980.

Sometime subsequent to 1978, and before November 11, 1982, the claimant retained his present attorney of record who filed a claim for compensation requesting reimbursement for mileage and miscellaneous expenses relating to the receipt of medical care. This claim was disposed of without the necessity of a hearing. The present attorney also filed a claim for medical benefits on May 11, 1983 claiming two hospital bills totaling $70 and one doctor's bill for $101.85 had not been paid. A review of the file showed that those bills had been paid by the E/C. Giving the benefit of the doubt to the claimant’s attorney, the only beneficial service he had rendered the claimant at this stage was the nominal amount of mileage and other miscellaneous expense relating to medical care he obtained as a result of the November 11,1982 claim. An attorney’s fee for these services, if one was due, should have been awarded at that time. There is no basis for the award of a fee for those services as a result of the parties’ stipulation to pay a reasonable fee for services rendered by claimant’s attorney in connection with the washout settlement. The claimant’s attorney did negotiate a washout settlement with the E/C and as a part of the settlement it was stipulated that the claimant’s attorney would receive a reasonable fee for his services in negotiating the washout. The E/C had already accepted the claimant as PTD and was currently paying him PTD benefits. This is a case where the E/C promptly accepted the claim and promptly began the payment of TTD benefits. The E/C also promptly paid all other benefits including very substantial medical benefits for four back operations. The E/C timely accepted the claimant as PTD and was paying PTD benefits to the claimant at the time the washout settlement was negotiated. The claimant’s attorney did not obtain any additional benefits as a result of the washout settlement but merely obtained a lump sum settlement of the balance of the PTD benefits due reduced to present value in return for a irrevocable settlement of all future claims of the claimant. $1,250 is a reasonable fee for those services.

I do not think that it comports with the spirit of the workers' compensation act to penalize a carrier which has timely performed its obligations under the act by assessing it a large fee for a lump sum settlement of an amount it has already agreed to pay and is paying and to further assess the carrier with a larger than normal $2,500 fee on appeal.

Although the deputy may have based his decision on incorrect reasons, his conclusion that a $1,250 fee was reasonable was correct, and I would affirm.


author: BARKETT, Judge.

text:
    Phyllis HART, Appellant, v. Ronald E. HART, Appellee.
    No. 83-2586.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.
    Rehearing Denied Dec. 7, 1984.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellant.
    Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee.
   BARKETT, Judge.

The wife appeals from an order which “awarded ... permanent custody” of the parties’ minor child to the husband following a hearing which was noticed for temporary relief. The wife alleges a denial of constitutional due process. We agree and reverse.

The wife filed a petition for dissolution of marriage in October, 1982, seeking, among other things, custody of the child, age 7. The parties executed a Property Settlement Agreement on January 1, 1983, which provided that the parties would have shared parental responsibility and that the child would reside primarily with the wife.

On September 7, 1983, the trial court bifurcated the divorce proceeding and dissolved the marriage. Subsequently, the husband noticed the wife for a hearing on his motion for temporary relief requesting a change in the primary residence of the child. The ensuing hearing was held with no indication that it was anything other than a hearing for temporary relief. At the end of the hearing, the trial judge stated:

I don’t need any more psychological evaluations. I think because of my experience through the years of handling divorce cases I can handle this myself from here on out.

Four days later, the trial court entered the order awarding “permanent custody” of the child to the husband. The order stated, in relevant part:

This matter came on before the court upon the former husband’s motion for temporary custody of the minor child of the parties.... This court strongly feels that ... this child should not be subjected to any more protracted litigation concerning his custody. For these reasons and for the reason that all the testimony, the argument and the evidence presented were consistent with a final hearing in that there is no conceivable additional testimony that could be presented which would be inconsistent with the holding herein, the court hereby determines that the full-day temporary relief hearing held Friday, October 21, 1983, was and is the final hearing as to custody of [the child].

In observing the requirements of due process of law, the opportunity to be heard must be full and fair. Tomayko v. Thomas, 143 So.2d 227 (Fla. 3d DCA 1962). The notice required for any proceeding which may produce a final result is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Quay Development, Inc. v. Elegante Building Corporation, 392 So.2d 901, 903 (Fla.1981).

Thus, the general rule is that a court cannot determine “matters not noticed for hearing and not the subject of appropriate pleadings.” Fickle v. Adkins, 394 So.2d 461, 462 (Fla. 3d DCA 1981). See also Connolly v. Connolly, 448 So.2d 641, 642 (Fla. 4th DCA 1984) (error to award alimony, child support, de facto child custody, and to determine visitation rights where there was no prayer, or other predicate requesting such relief).

In Lentz v. Lentz, 414 So.2d 292 (Fla. 3d DCA 1982), the court reversed an order in a child custody case increasing visitation rights for one parent when the motion served on the other parent requested only that specific visitation dates be established for the moving parent. The court held that the trial court’s action constituted a “fundamental lack of due process to the appellant resulting from the failure to give him notice and an opportunity to be heard on the issue decided against him in the order.” Id. at 293.

In Sardinas v. Sardinas, 401 So.2d 909 (Fla. 4th DCA 1981), this court held that a trial court lacked authority to define what constituted “reasonable rights of visitation” when the only relief sought in the movant’s pleading was for the custodial parent to be held in contempt. Id. at 911. See also Cortina v. Cortina, 98 So.2d 334 (Fla.1957).

In this case, neither party was advised that the hearing in question would produce a permanent result. To the contrary, the hearing was noticed as a temporary custody hearing, and no indication was given, until issuance of the final order four days after the hearing, that the result was to be a permanent one.

In addition to the clear violation of due process considerations, we note that the best interests of a child are not served by denying a party the opportunity to present evidence which might have a bearing thereon.

Accordingly, the order in question is to be considered a temporary order, and we remand with directions to the trial court to conduct a final hearing after due notice on the issues pertaining to the primary residence of the minor child in accordance with the shared parental responsibility law, Section 61.13(2)(b)2., Florida Statutes (1983).

WALDEN, J., and GREEN, OLIVER L„ Jr., Associate Judge, concur.

      . The order used the phrase "temporary and permanent custody of the minor child.” It is assumed that the trial court intended to order "shared parental responsibility" for the child pursuant to Section 61.13(2)(b)2.a., Florida Statutes (1983), and did not intend to order "sole parental responsibility" pursuant to Section 61.-13(2)(b)2.b., Florida Statutes (1983). The only issue involved here appears to be the primary residence of the child. It is not clear why the court below did not use the language of Section 61.13(2)(b)2., Florida Statutes (1983). It is anticipated the final order will do so.


text:
    Ruth Haislip TILLEY, et al., Appellants, v. BROWARD HOSPITAL DISTRICT, etc., Appellee.
    Nos. 83-2320, 83-2709.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.
    Rehearing Denied Dec. 3, 1984.
    Donald A. Wich, Jr., of Sullivan, Bailey, Gleason & Wich, P.A., Pompano Beach, for appellants.
    Ellen Mills Gibbs of Gibbs & Zei, Fort Lauderdale, and William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauder-dale, for appellee.
   BARKETT, Judge.

The appellants, Mr. and Mrs. Tilley, sued the appellee hospital alleging medical malpractice resulting in the wrongful death of their infant son. At trial the jury returned a verdict for the hospital. The appeal of the ensuing judgment is based upon: (1) the trial court’s failure to give standard jury instruction 5.1(b) on concurring cause; (2) the trial court’s failure to give appellants’ special jury instruction on the standard of care owed to a pregnant woman; (3) the trial court’s failure to give appellants’ jury instruction on the responsibility of the hospital for the actions of “borrowed servants”; and (4) the trial court’s partial denial of appellants’ pretrial motion in li-mine regarding the admissibility of the decision of the Medical Mediation Panel in this matter. We reverse.

Appellant Ruth Tilley was seven months pregnant when her baby was delivered by Caesarean Section at the hospital. The baby had numerous medical problems and surgery was performed on two occasions. There was testimony that a surgical sponge was left inside the child after the second surgery. The child developed an infection shortly after that surgery, and died at the age of five months. The hospital contended death was due to natural causes including the prematurity of birth; the Tilleys contended death was due to the negligence of the hospital and its employees in delivering and treating the baby.

The only issue raised by appellants which we find has merit is the failure of the trial court to give standard jury instruction 5.1(b) on concurring cause. The trial court justified the refusal to give the requested instruction on the ground that the requested instruction was subsumed by a version of standard jury instruction 5.1(c) on intervening negligence, which was given.

If evidence adduced at trial creates an issue, litigants have the right to have the trial court instruct the jury on the law applicable to that issue. Goodman v. Becker, 430 So.2d 560, 561 n. 2 (Fla. 3d DCA 1983); Caputo v. Taylor, 403 So.2d 551, 554 (Fla. 1st DCA 1981); Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d 153, 154 (Fla. 2d DCA 1975). The standard for reviewing the failure to give a jury instruction is “whether ... there was a reasonable possibility that the jury could have been misled by the failure to give the instruction.” Little v. Miller, 311 So.2d 116, 119 (Fla. 4th DCA 1975), quoting Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d at 155.

It is clear that the omitted standard jury instruction 5.1(b) addressed a material issue in the case. The record contains much expert testimony on the inherent problems of premature babies (the “natural cause” element), as well as much expert testimony on the possibly negligent conduct of the hospital in attending to Mrs. Tilley and the child (the concurring “negligent cause” element). Therefore the instruction was applicable and should have been given. Marrero v. Salkind, 433 So.2d 1224, 1225 (Fla. 3d DCA 1983), pet. for rev. den. sub nom. Salkind v. Marrero, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2d 560, 561 (Fla. 3d DCA 1983).

The hospital argues, however, that notwithstanding the omission of the applicable instruction, the other charges given by the court sufficiently conveyed to the jury the law of concurrent causation. See Llompart v. Lavecchia, 374 So.2d 77, 80 (Fla. 3d DCA 1979). Specifically, appellee contends that the law presented in standard jury instruction 5.1(b), which was not charged, is included in standard jury instruction 5.1(c), which was charged. We disagree. We think the instructions mean what they clearly say. “Concurring” refers to negligence occurring “at the same time” as another possible cause, and “intervening” refers to some other possible cause occurring “after” the alleged negligence. There was evidence in the record supporting both instructions. The giving of one obviously cannot cure the lack of the other since the instructions apply to two entirely different situations.

Accordingly, there is a reasonable possibility the jury could have been misled when the trial court failed to instruct on concurring causes. Such failure to give the applicable concurring cause instruction constitutes reversible error. Goodman v. Becker, 430 So.2d at 561; Little v. Miller, 311 So.2d at 119; Clooney v. Geeting, 352 So.2d 1216, 1219 (Fla. 2d DCA 1978).

Accordingly, we reverse and remand for a new trial in accordance herewith.

The remaining points raised by the appellants are without merit.

REVERSED.

WALDEN, J., and GREEN, OLIVER L„ Jr., Associate Judge, concur.

      . In order to be regarded as a legal cause of injury resulting in death, negligence need not be the only cause. Negligence may also be a legal cause of injury resulting in death, even though it operates in combination with some natural cause or some other cause, if such other cause occurs at the same time as the negligence, and if the negligence contributes substantially to producing such injury resulting in death.

      . Negligence may also be a legal cause of injury resulting in death even though it operates in combination with the act of another or. some natural cause or some other cause occurring after the negligence occurs, if such other cause was itself reasonably foreseeable and the negligence contributes substantially to producing such injury resulting in death.


author: NIMMONS, Judge.

text:
    Jefferson MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. AW-271.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.

      Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Mitchell appeals from convictions of three counts involving offenses which arose out of a major disturbance at Cross City Correctional Institution where he was an inmate. We reject appellant’s assertion that the trial court erred in denying his motion for judgment of acquittal on the count one charge of attempting to cause a riot under Section 944.45, Florida Statutes (1981). However, we must reverse and remand for a new trial on all three counts by reason of a juror’s failure to respond truthfully to a material question propounded by defense counsel during jury selection.

Prior to allowing the attorneys to address questions directly to the prospective jurors, the trial court asked the jurors a number of questions. One of the questions was whether any of the jurors had any family member, relative or friend who was employed at the Cross City Correctional Institution. All of the jurors, including a Mrs. Newman, responded in the negative. After the trial judge completed his questioning of the jurors, he turned the voir dire over to counsel admonishing them against repetition of the areas already covered by the court. No further inquiry or comment was made during jury selection regarding any relationship between the jurors and employees at the correctional facility.

After the verdict, it was discovered by defense counsel that Mrs. Newman was the aunt of a Cross City correctional officer. In fact, her nephew had been present in the courtroom during the trial assisting in security.

At the hearing on the motion for new trial, defense counsel asserted that, although he eventually used all of his peremptory challenges, he still had several challenges remaining at the time that the subject question was asked and that he would have used one of them by excusing Mrs. Newman had she given a truthful response. The trial court took testimony from Mrs. Newman who stated that she recalled being asked the subject question but responded as she did because she thought the question was limited to her immediate family. She said that she was aware that her nephew was present in the courtroom during the trial but that her relationship to him and his presence in the courtroom had no effect on her deliberations.

Trial counsel are entitled to truthful responses to questions propounded during the jury selection process. Notwithstanding Mrs. Newman’s after-the-fact insistence that she thought the court was referring to her immediate family, the question was obviously not so limited. The question was framed in such a way that it should have elicited a positive response from the prospective juror who knew her nephew to be a correctional officer at the Cross City facility. The question and negative answer being both clear and straightforward, it was not incumbent upon defense counsel to explore the topic further particularly in view of the trial court’s admonition of counsel to avoid repetitive questioning.

The state relies, in part, upon the Florida Supreme Court’s recent decision in Lusk v. State, 446 So.2d 1038 (Fla.1984). That case is inapposite inasmuch as it dealt with the question of whether a juror was excusable for cause. The Supreme Court held that it was not error to deny the defendant’s motion to excuse a correctional officer for cause on the ground, as the defendant contended, that a law enforcement position inherently creates a disability to serve as a fair and impartial juror.

The examination of a juror on voir dire has a dual purpose, namely, to ascertain whether a legal cause for challenge exists and also to determine whether prudence and good judgment suggest the exercise of a peremptory challenge. The right of peremptory challenge implies the right to make an intelligent judgment as to whether a juror should be excused. Counsel have the right to truthful information in making that judgment. See Minnis v. Jackson, 330 So.2d 847 (Fla. 3rd DCA 1976); Loftin v. Wilson, 67 So.2d 185 (Fla.1953); Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2nd DCA 1972).

The state argues that the defendant should be denied relief because the juror’s untruthful response was not intentional. We might abide that argument if, for example, the juror was not aware of her nephew’s employment or the question were reasonably susceptible to being interpreted as an inquiry about the juror’s immediate family. Compare Rouede Construction, Inc. v. First National Bank of Eau Gallie, 177 So.2d 375 (Fla. 2nd DCA 1965). No such reason appears in the instant case for the juror’s untruthful response. Even assuming, as the trial court found, that the juror had no intent to deceive, nevertheless relief will be afforded where (1) the question propounded is straightforward and not reasonable susceptible to misinterpretation; (2) the juror gives an untruthful answer; (3) the inquiry concerns material and relevant matter to which counsel may reasonably be expected to give substantial weight in the exercise of his peremptory challenges; (4) there were peremptory challenges remaining which counsel would have exercised at the time the question was asked; and (5) counsel represents that he would have peremptorily excused the juror had the juror truthfully responded.

Failure to enforce the right to elicit from prospective jurors truthful answers to material questions renders hollow the right of peremptory challenge.

Reversed and Remanded for a new trial.

SHIVERS and WENTWORTH, JJ., concur.

      . Although the record does not indicate how defense counsel learned of the relationship, no issue is raised with respect thereto.

      . In Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2nd DCA 1972), the court stated (quoting from Drury v. Franke, 247 Ky. 758, 797, 57 S.W.2d 969, 984-5 (1933)):
      [T]he fact that the false information was unintentional, and that there was no bad faith, does not affect the question, as the harm lies in the falsity of the information, regardless of the knowledge of its falsity on the part of the informant; while willful falsehood may intensify the wrong done, it is not essential to constitute the wrong; ... when the fact appears that false information was given, and that it was relied upon, the right to a new trial follows as a matter of law. See also Redondo v. Jessup, 426 So.2d 1146 (Fla. 3rd DCA 1983). To the extent that the phrase “regardless of the knowledge of its falsity” contained in the above quote would be deemed to encompass a situation where, for example, Mrs. Newman did not actually know that her nephew was employed at the correctional facility when she answered the subject question in the negative, we doubt that we would follow a literal application of the principal announced in the above quote. However, that is not the situation before us as Mrs. Newman did have such knowledge when she responded to the question.


text:
    FIRST AMERICAN TITLE INSURANCE COMPANY, INC., a California corporation authorized to do business in Florida, Appellant, v. FIRST TITLE SERVICE COMPANY OF THE FLORIDA KEYS, INC., a Florida corporation, Appellee.
    No. 82-431.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1984.
    Richard P. Brinker, Miami, Buck & Tatum, Fort Lauderdale, for appellant.
    Turner, Fascell & Russo, Coral Gables, for appellee.
   ORDER

WHEREAS, the judgment of this court was entered on December 21, 1982 (423 So.2d 600) affirming the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed June 28, 1984, 457 So.2d 467, and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on January 6, 1983 is withdrawn, the judgment of this court in this cause filed June 28, 1983 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, and the cause is remanded to the trial court for further proceedings consistent with said opinion. Costs allowed shall be taxed in the trial court (Rule 9.400 Florida Appellate Rules).


author: BOARDMAN, Judge.

text:
    Peter RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 83-554.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1984.

      Thomas E. Cunningham, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant challenges the denial of his motion to suppress contraband seized under an allegedly invalid search warrant. Police obtained the warrant on the basis of probable cause established during a war-rantless aerial surveillance of appellant’s fenced backyard. According to appellant, the aerial observation of an area in which he had manifested a reasonable expectation of privacy constituted an unreasonable search proscribed by the fourth amendment of the United States Constitution and article I, section 12 of the Florida Bill of Rights. Appellant, therefore, seeks to invalidate the subsequent warrant-sanctioned seizure on the ground that a preceding illegal search cannot furnish probable cause to support the issuance of a search warrant. Purcell v. State, 325 So.2d 83 (Fla. 1st DCA 1976). For the reasons discussed below, we affirm.

Police officers executed an aerial overpass above appellant’s duplex apartment after a reed fence surrounding his backyard precluded them from otherwise visually confirming an anonymous tip that appellant was growing marijuana there. From the vantage point of a helicopter flying at a routine patrol altitude, the officers, with unaided vision, observed plants which one officer identified as marijuana. After making a second overpass the next day to photograph their findings, the officers obtained a search warrant and seized the contraband from appellant’s backyard. When the trial court denied appellant’s dis-positive motion to suppress, appellant pled nolo contendere to the charged offense of cultivating marijuana under section 893.-13(l)(a)(2), Florida Statutes (1981), reserving the right to appeal the denial of his motion. This timely appeal ensued.

We reject appellant’s contention that the aerial overflight conducted in the instant case constituted an unreasonable search. Conversely, under the particular facts of this case, we believe that the officers’ aerial observation of appellant’s fenced backyard was a legally permissible preintrusion “open view,” as that concept has been defined by the Florida supreme court in State v. Rickard, 420 So.2d 303 (Fla.1982), and Ensor v. State, 403 So.2d 349 (Fla.1981).

The fourth amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” As the United States Supreme Court held in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a “search” occurs within the meaning of the fourth amendment when government action invades an individual’s justifiable or reasonable expectation of privacy. Katz, 389 U.S. at 353, 88 S.Ct. at 512, 19 L.Ed.2d at 583. See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Under Katz and its progeny, a reasonable expectation of privacy exists if the individual has exhibited an actual, subjective expectation of privacy which society is prepared to recognize as reasonable. See Smith, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226. The Florida supreme court applied the Katz analysis in State v. Rickard, a case involving a factual situation similar to that posed here.

In Rickard, the defendant’s neighbor informed police that he had observed what he believed to be marijuana growing in the defendant’s backyard. When police were unable to view the alleged contraband from the neighbor’s yard, they proceeded to an orange grove located behind the defendant’s property and from this vantage point obtained an unobstructed view of the marijuana growing approximately fifty feet away. Notwithstanding the visual accessibility of the contraband from the adjoining grove, the supreme court ruled that Rick-ard had demonstrated a subjective expectation of privacy by surrounding his property with a chain link fence, placing the marijuana behind a shed, and erecting a plywood partition to obstruct the view of his only adjacent neighbor. Rickard, 420 So.2d at 306. Furthermore, the court noted that society was willing to honor the expectation of privacy which Rickard had objectively manifested. Id.

After observing the marijuana from the orange grove, investigating officers ultimately arrested Rickard and seized the marijuana from his backyard without obtaining a search warrant. The supreme court invalidated the seizure, holding that, in the absence of exigent circumstances, police officers may not undertake a war-rantless seizure of contraband from an individual’s backyard when the individual has exhibited a reasonable expectation of privacy in that area. Rickard, 420 So.2d at 307. Significantly, however, the court noted that the officer’s initial observation of the contraband from the adjacent orange grove had not constituted a search, but rather had qualified as a legally permissible prein-trusion open view. Rickard, 420 So.2d at 305. According to Rickard, a valid “prein-trusion open view” occurs when an officer, who is located outside of a constitutionally protected area, looks into the protected area and observes contraband. The officer’s observation merely furnishes him with probable cause to seize the item; he must either obtain a warrant or qualify under an exception to the warrant requirement before he may enter the protected area and seize the contraband. Id. at 305.

Applying the reasoning of Rick-ard to the instant case, we believe that appellant exhibited a reasonable expectation of privacy in the backyard of his duplex apartment when he installed a reed fence around the perimeter of his property and thus obstructed the area from view by adjacent neighbors and other passers-by. See Fixel v. Wainwright, 492 F.2d 480 (5th Cir.1974) (resident of multiunit dwelling possessed reasonable expectation of privacy in backyard area which was sufficiently removed and private in character). Accord Olivera v. State, 315 So.2d 487 (Fla.2d DCA 1975), cert.denied, 330 So.2d 21 (Fla.1976). Under the circumstances presented, we reach this conclusion even though appellant’s attempt to manifest his expectation of privacy in the curtilage of his home did not protect his backyard from aerial observation. Certainly an individual need not construct “an opaque bubble” over his backyard in order to have a reasonable expectation of privacy regarding his activities there. United States v. Allen, 675 F.2d 1373, 1380 (9th Cir.1980).

While we acknowledge the validity of appellant’s expectation of privacy, we still conclude that the aerial surveillance conducted in the instant case did not constitute a governmental intrusion which rose to the level of an impermissible search. The investigating officers unquestionably made their observation from a place where they had a legal right to be. They did not hover over appellant’s property or survey it from an unreasonably low altitude. Nor did they make repeated flights over the property, subjecting it to daily scrutiny over a prolonged period until they finally discovered contraband. Furthermore, the officers made their initial aerial observation of the contraband with their unaided vision, without resort to high-powered lenses or other telescopic devices.

As numerous cases make clear, it is not dispositive under Florida law that the officers resorted to aerial surveillance in a deliberate attempt to see what otherwise may have been obstructed from their ground view. The open view doctrine does not require an inadvertent observation. See Olivera, 315 So.2d at 489 n. 1; State v. Flores, 305 So.2d 292 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 189 (Fla.1975). Conversely, as the supreme court stated in State v. Ashby, 245 So.2d 225, 228 (Fla.1971), “In application of the ‘open view’ doctrine, it is not an unreasonable search without warrant for an officer to move to a position where he has a legal right to be, and look for things he may have reason to believe will be seen.” Indeed, in Rickard, the officers deliberately positioned themselves in an adjacent orange grove in order to see what otherwise had been obstructed from view from the neighbor’s yard.

While the efforts undertaken by police officers in order to gain a view into a constitutionally protected area undoubtedly must be considered in determining the degree of governmental intrusion, we do not deem aerial observation alone to be unreasonably intrusive under the circumstances presented. Society appears willing to accept aerial surveillance as a reasonable and necessary investigative tool in effective modern law enforcement. Furthermore, we do not believe that requiring police to procure a warrant before executing a general aerial overflight such as that conducted in the instant case would significantly advance the protection of legitimate privacy interests. See Oliver v. United States, — U.S. -, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (addressing, peripherally, aerial surveillance of an open field). In short, we conclude that the nonharassing surveillance conducted in the instant case struck an acceptable balance between society’s interest in effective modern law enforcement and the individual’s interest in the values protected by the fourth amendment.

Unlike the police officers in Rick-ard, the officers in the instant case secured a search warrant before entering appellant’s backyard and seizing the sighted contraband. Consequently, the procedure utilized here appears to comport with that which the supreme court inferentially approved in Rickard. See Rickard, 420 So.2d at 305. While we affirm the trial court’s ruling on the basis of our understanding of Rickard, we certify the following question as one of great public importance:

WHETHER POLICE OFFICERS, RESPONDING TO AN ANONYMOUS TIP, MAY MAKE A LEGALLY PERMISSIBLE PREINTRUSION OPEN VIEW FROM THE VANTAGE POINT OF A HELICOPTER TRAVELLING AT A LAWFUL PATROL ALTITUDE ABOVE AN AREA IN WHICH AN INDIVIDUAL HAS MANIFESTED A REASONABLE EXPECTATION OF PRIVACY FROM GROUND SURVEILLANCE, AND, ON THE BASIS OF THIS AERIAL OBSERVATION, OBTAIN A SEARCH WARRANT JUSTIFYING SEIZURE OF SIGHTED CONTRABAND.

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

      . Addressing this point, the court stated: "Police were in an orange grove where they had a legal right to be when they observed marijuana growing in [Rickard’s] backyard. The plants were open to view only fifty feet away; therefore, no search occurred.” Rickard, 420 So.2d at 305.

      . As the First District noted in State v. Bowen, 444 So.2d 1009, 1010 n. 2, (Fla. 1st DCA 1984), "It is, of course, well settled that the mere viewing of property by a police officer from a point where such officer has a legal right to be does not, in and of itself, constitute sufficient evidence to prove that the property is not subject to a reasonable expectation of privacy."


text:
    Ramon Benitez CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-888.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Bennett H. Brummer, Public Defender, and Chaykin, Karlan & Jacobs and Sharon B. Jacobs, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We reject as without merit any claim by Cruz that the trial court committed reversible error during the course of the trial upon a holding that there was overwhelming evidence to support the conviction.

At the time of the sentencing the trial court imposed a 120-year sentence on Count I and erroneously (a) imposed a concurrent (sic) 120-year sentence on Count II, and (b) retained jurisdiction for one-third of 240 years, for a total of eighty years.

Upon being advised that the sentence on Count II was unlawful and that under the statute the retention order was incorrect, the trial court vacated the sentences previously imposed, imposed lawful sentences to run consecutively and retained jurisdiction for one-half of the total sentence of 125 years. The state concedes a clerical error was made and that the retention of jurisdiction order should be corrected to be sixty-two and one-half years instead of sixty-seven and one-half years.

It is clear from the record that the trial court’s intention was to impose a maximum sentence for the crimes involved and the court, consistent with its sentencing plan, properly corrected its sentence to be a legal sentence and has committed no sentencing error. See Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982).

Affirmed as modified.

      . Under the applicable law at the time the case was heard retention of jurisdiction applied to one-half of the total consecutive sentence. § 947.16(3), Fla.Stat. (1982). Presently the law again calls for retention of jurisdiction over one-third of the total consecutive sentence. § 947.16(3), Fla.Stat. (1983).


text:
    Manuel FERREY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2400.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles M. Faulbusch, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

The defendant Manuel Ferrey appeals his first degree murder conviction and contends that: (1) the trial court erred in admitting his confession in evidence at trial, (2) the evidence presented below was insufficient to convict without the allegedly inadmissible confession, and (3) the trial court committed a sentencing error. We reject these points on appeal and affirm.

The defendant’s first point has previously been rejected in a companion case, which necessarily means that his first and second points on appeal must fall. Ferrey v. State, 457 So.2d 1122 (Fla. 3d DCA 1984). His third point has no merit and requires no discussion.

Affirmed.


author: HENDRY, Judge.

text:
    Sylvia SILVERS, on behalf of herself and all others similarly situated, Appellant, v. COUNTY OF DADE, State of Florida, Appellee.
    No. 83-2994.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.

      Pardo & Pardo and Jeffrey J. Pardo, Miami, for appellant.
    Robert A. Ginsburg, Co. Atty., and Murray A. Greenberg, Alan Fein and Thomas W. Logue, Asst. Co. Attys., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant seeks reversal of a judgment of the Circuit Court for Dade County which dismissed appellant’s claim for declaratory judgment and denied certification as a class action.

The trial court concluded, in a lengthy and well-reasoned opinion, that appellant had not established the prerequisites for class certification under Rule 1.220, Florida Rules of Civil Procedure, that the gravamen of the complaint was for monetary damages and not for declaratory relief, and that since the individual claim was below the jurisdictional amount, the court lacked subject matter jurisdiction.

Appellant contends that the final judgment should be reversed because (1) the parties have a bona fide dispute over the interpretation of their bond contract, (2) the complaint asserts an action for declaratory judgment, and (6) the trial court’s final judgment concludes matters and issues not yet before the court for decision, assumes facts not in evidence, improperly applies law and assumes the interpretation of the ultimate issue in the case without a motion for summary judgment or a trial of the cause. We cannot agree with appellant’s points.

From our consideration of the record, briefs and arguments of counsel, we have concluded that no reversible error has been demonstrated. We note that without the class certification, appellant’s action is reduced to one for monetary damages only, which, as the trial court recognized, might be redressed in the county court.

The judgment entered by the trial court is, accordingly, affirmed.

Affirmed.


text:
    GLOBE SECURITY SYSTEMS CO., a Pennsylvania corporation, Appellant, v. MAYOR’S JEWELERS, INC., a Florida corporation d/b/a Mayor’s, Appellee.
    No. 83-3011.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.

      Magill, Reid & Lewis and R. Fred Lewis, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Kendall B. Coffey and Mark D. Bloom, Miami, for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Mayor’s, a jewelry store, was burglarized after appellant’s security guard, who was assigned to watch the premises, left his post without permission in the early morning hours to spend time with his girlfriend. Appellant was hired specifically to protect against “smash-and-grab” burglaries, the same type of crime which caused the loss in this case. A jury found that Globe breached the contract and awarded compensatory damages of $45,188.21. There is no serious challenge to the breach of contract finding or to the award of actual damages, both of which were firmly established. The main issue raised by this appeal is whether an award of $135,000 in punitive damages is sustainable on the facts. We think not and reverse the punitive damages award.

Mayor’s alleged in its complaint that (1) Globe breached its contract to guard the premises continuously during the hours between 9:00 p.m. and 9:00 a.m. on the night of the burglary, and (2) Globe was “grossly negligent” in that it failed to have a guard present at the premises, failed to effect a method for monitoring its on-duty guard, and employed a guard who might not have been hired if a routine background investigation had been conducted.

By special interrogatory verdict the jury found:

I. VERDICT ON BREACH OF CONTRACT CLAIM
(_) A. We, the jury, find for Plaintiff, MAYOR’S JEWELERS, and assess its damages at $45,188.21.
II. VERDICT ON NEGLIGENCE CLAIM
(_) A. We, the jury, find for Defendant, GLOBE SECURITY SYSTEMS. (If you find for GLOBE SECURITY SYSTEMS on this claim, do not answer B, but date and sign this form and return it to the Clerk).
(_) B. We, the jury, find for Plaintiff, MAYOR’S JEWELERS, and assess punitive damages in the amount of $135,-000.00.
Dated this 4 day of October, 1983.
/s/ Leonard Morgen As Foreman/Forewoman

The jury awarded no additional compensatory damages to support the negligence-based punitive damages award.

The rule in this district is that where an award of compensatory damages is based on one cause of action, and an award of punitive damages is based on an entirely separate cause of action, the award of punitive damages will not stand unless the jury also makes an express finding of separate compensatory damages in support of the punitive damages claim, whether actual or nominal. See Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229 (Fla. 3d DCA 1981), appeal dismissed, 415 So.2d 1359 (Fla.1982); Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla. 3d DCA 1979); Sonson v. Nelson, 357 So.2d 747 (Fla. 3d DCA), cert. denied, 364 So.2d 889 (Fla.), 364 So.2d 891 (Fla.1978). The rule derives from the general principle that “exemplary or punitive damages are not recoverable in an action of tort unless actual damages are shown....” Lassitter v. International Union of Operating Engineers, 349 So.2d 622, 625 (Fla.1977) (citing McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221, 222 (1943)). Unless there is a separate finding of actual or nominal damages — an essential element of the tort — the tort is not established notwithstanding a finding of liability by the jury. Because the jury made no finding that Mayor’s suffered compensatory or nominal damages beyond the damages attributable to the breach of contract, and the facts do not support such a conclusion, the award of punitive damages cannot stand.

The award of compensatory damages is AFFIRMED; the punitive damages award is REVERSED.

      . As noted by Judge Daniel Pearson writing for the court in Guthartz v. Lewis, 408 So.2d 600, 602 n. 4 (Fla. 3d DCA 1981), aff'd, 428 So.2d 222 (Fla.1982), there is disagreement in the district courts as to whether Lassitter is a restatement of the general rule that actual or nominal damages are required, or whether it intended to relax the rule so as to permit recovery of punitive damages merely on a showing of liability without an award of nominal damages. Favoring the latter interpretation he suggests that a finding of liability is the functional equivalent of a finding of at least nominal damages. See Nales v. State Farm Mutual Automobile Insurance Co., 398 So.2d 455 (Fla. 2d DCA), rev. denied, 408 So.2d 1092 (Fla.1981); Eglin Federal Credit Union v. Curfman, 386 So.2d 860 (Fla. 1st DCA 1980). That view has not been adopted by this court.


text:
    The STATE of Florida, Appellant, v. Paul JORDAN, Appellee.
    No. 84-10.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Jim Smith, Atty. Gen. and Calvin Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The State of Florida appeals from a final order granting appellee’s motion to suppress physical evidence. We reverse.

Appellee was observed accepting money from another person and then placing a small manila envelope in his right rear pocket. The two plain clothed police officers then approached appellee, told him that they suspected that he was involved in a drug transaction and asked him to remove his right hand from his right rear pocket. One officer testified that there was an open manila envelope in appellee’s hand. He looked into the envelope and saw several wrapped pieces of a substance which appeared to be cocaine. Thereafter, appellee was arrested and, as he was being placed in the police car, the officers observed another manila envelope in appel-lee’s rear pocket. Upon examining the envelope, the officers discovered heroin.

At the suppression hearing the officers testified that this area of Coconut Grove had a history of drug transactions and that the area had been targeted for special attention because of citizen complaints about the amount of drugs sold there. Both officers testified that in their experience the type of manila envelope which they observed in appellee’s possession was used in almost all of the drug transactions in this area. The trial court granted the motion to suppress because, while it accepted the police officers’ testimony as true, neither officer observed appellee pass anything to the other person in exchange for the money received. Thus, it found that the officers had no probable cause to conduct a war-rantless search of appellee.

We find that our reversal is compelled by P.L.R. v. State, 455 So.2d 363 (Fla.1984), in which the Florida Supreme Court found that a police officer at a narcotics transaction site, making an unrelated narcotics arrest, had probable cause to arrest the juvenile when he observed in the juvenile’s pocket an envelope of a type only used in narcotics transactions. The facts herein are identical to those in P.L.R., with the additional fact that appellee was observed accepting money from another person and then placing the manila envelope in his pocket.

Reversed.