author: DAUKSCH, Judge.

text:
    Leslie Michelle FORD, etc., et al., Petitioner, v. PIPER AIRCRAFT CORPORATION, etc., and F.I.T. Aviation, Inc., etc., Respondents.
    No. 83-621.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.

      Fred Denius, Indialantic, for petitioner.
    Russell K. Dickson, Jr., of Akerman, Sen-terfitt & Eidson, Orlando, for respondent, Piper Aircraft Corp.
    Michael R. Levin, of Rumberger, Kirk, Caldwell, Cabannis & Burke, P.A., Orlando, for respondent, F.I.T. Aviation, Inc.
   ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Judge.

Petitioner filed the petition for certiorari seeking review of an order which granted respondent F.I.T. Aviation, Inc’s motion to disqualify counsel of petitioner. The order concisely states the court’s findings:

1. Before or during the month of June, 1982, Fred Denius represented F.I.T. Aviation, Inc. and Jerry Lauderbaugh, individually, in an action which was brought by a former student at F.I.T. Aviation, Inc. The action was styled John Tzikos v. F.I.T. Aviation, Inc. and Jerry Lauderbaugh, individually, Case No. 82-5796-CA-B.
2. In July of 1982, on behalf of Leslie Michelle Ford, etc., et. al., Fred Denius filed the initial complaint commencing Case No. 82-5948-CA-F. F.I.T. Aviation, Inc. was not named as a defendant at this time.
3. On October 5, 1982, F.I.T. Aviation, Inc., was served with process and named as a party defendant in Case No. 82-5948-CA-F.
4. In November, 1982, Fred Denius officially withdrew as counsel for F.I.T. Aviation, Inc. in the Tzikos case, Case No. 82-5796-CA-B, and other counsel was substituted in his place.
5. During Fred Denius’ representation of F.I.T. Aviation, Inc. in Tzikos v. F.I.T. Aviation, Inc., Case No. 82-5796-CA-B, Mr. Denius conducted his investigation into the crash of Piper Cherokee N56731, which is the subject matter of the present litigation in Case No. 82-5948-CA-F.
6. Frank Litz, an investigator hired by Fred Denius, took a recorded statement from Jerry Lauderbaugh, President of F.I.T. Aviation, Inc., to aid Mr. Denius’ investigation into the crash of Piper Cherokee N56731.
7. While Fred Denius was representing F.I.T. Aviation, Inc., in the Tzikos case, Case No. 82-5796-CA-B, Mr. Denius obtained documents relating to the subject matter of the present case, Case No. 82-5948-CA-F, pursuant to a subpoena duces tecum without deposition.
8. The affidavit of Jerry Lauderbaugh indicates that while Fred Denius represented F.I.T. Aviation, Inc. in the Tzikos case, he discussed with Jerry Lauder-baugh matters relating to the crash of Piper Cherokee N56731, which is the subject matter of the present case.
9. The information obtained by Fred Denius during his prior representation of F.I.T. Aviation, Inc. in Case No. 82-5796-CA-B was substantially related to the subject matter of the present litigation, Case No. 82-5948-CA-F.
10. In accordance with Sears Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979), there is an irrebutable presumption that the information obtained by Fred Denius during his prior representation was protected by Canon 4 of the Code of Professional Responsibility.

Denius caused F.I.T. Aviation to be joined as a defendant after Jerry Lauderbaugh discharged him from representing F.I.T. Aviation in the Tzikos case. The complaint in the Ford case had been filed while Deni-us was still representing F.I.T. Aviation in the Tzikos case. Respondents claim that Denius gathered information concerning the weight and balance characteristics of the Ford aircraft while he was representing F.I.T. in the Tzikos case, in anticipation of litigation on behalf of Ford’s estate.

In support of their motion to disqualify Denius, F.I.T. Aviation filed an affidavit of Jerry Lauderbaugh. The affidavit states that Denius was given access to F.I.T.⅛ documents concerning the plane and was provided detailed information about the weight and balance characteristics of the subject plane. At the hearing on the motion, Denius argued that there were no confidences or secrets obtained during his representation of F.I.T. in the Tzikos case pertaining to the Ford case. Denius prepared a counter affidavit refuting the Lauder-baugh affidavit.

The obligation of an attorney to preserve the confidences and secrets of a client lies at the very foundation of the attorney-client relationship. An attorney is forbidden to use a confidence or secret of a client to the client’s disadvantage or to use a confidence or secret, absent informed consent by the client, for the attorney’s own benefit or the benefit of a third person. The existence of the attorney-client relationship raises an irrefutable presumption that confidences were disclosed. Requiring the disqualification of an attorney is, however, a matter of no small consequence. Before a client’s former attorney will be disqualified from representing a party whose interests are adverse to the former client’s, the former client must show that the matters embraced in the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979) and cases cited therein.

The basic purpose of the trial court is to afford litigants an impartial forum in which their complaints and defenses may be presented, heard and decided with fairness. The trial court may decide, after consideration of a motion alleging sufficient facts which, if true, would warrant removal of opposing counsel, that removal is mandated. The purpose of the hearing is not to determine whether there has been a breach of the CPR but whether, because of such breach, one party has an unfair advantage on the other which can only be eliminated by removing the attorney. Pantori v. Stephenson, 384 So.2d 1357 (Fla. 5th DCA 1980).

In the present case, a hearing was held on the motion. The respondent’s motion and accompanying affidavit alleges the necessary substantial relationship between the confidences disclosed to Denius when he represented F.I.T., and the expertise at issue in the present case. No evidence other than the affidavit and testimony of Denius was presented to rebut the inferences of the substantial relationship, and at the hearing Denius apparently did not make any motion for additional time within which to present witnesses or obtain counter-affidavits. See Trautman v. General Motors Corporation, 426 So.2d 1183 (Fla. 5th DCA 1983). [Affidavit submitted in support of defense motion for disqualification of plaintiff’s attorney in products liability action against truck manufacturer was sufficient, standing alone, to warrant his disqualification, notwithstanding lack of factual specificity, where it was unrebutted and inference was readily available from affidavit of substantial relationship between expertise formerly confided to plaintiff’s attorney as manufacturer’s counsel and expertise at issue].

The petition is denied as petitioner has failed to show a clear departure from the essential requirements of law. The trial court acted correctly in granting the motion for disqualification as petitioner failed to rebut the strong showing of a substantial relationship between the confidences disclosed to Denius when he represented F.I.T., and the expertise at issue in the Ford case.

Petition for Writ of Certiorari denied.

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

      . In that case, attorney Dean represented Roper Corp. in 1972 in an action against Roper and Sears wherein it was contended that a lawnmower was negligently designed by Roper and manufactured by Roper for Sears. During this representation Dean conferred with Roper’s house counsel and the engineer who designed the lawnmower. Later, in 1978, Dean’s law firm undertook representation of a plaintiff suing Sears and Roper based upon a defect in design of a lawnmower designed by the same engineer for Roper. Affidavits filed by Sears and Roper showed that confidential information relating to design, engineering and testing techniques used by Roper in making the mower for Sears had been given to Dean in the earlier case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Ronald KORPINEN and Career Service Commission, Appellees. DEPARTMENT OF CORRECTIONS, Appellant, v. Patricia WOOD and Career Service Commission, Appellees.
    Nos. AP-269, AP-270.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    Rosa Carson, Asst. Gen. Counsel, Dept, of Corrections, Tallahassee, for appellant.
    Gene “Hal” Johnson, Tallahassee, for ap-pellee Wood.
    No appearance for appellee Korpinen.
    Jim Smith, Atty. Gen., Jeffrey A. Miller, Asst. Atty. Gen., Tallahassee, for appellee Career Service Commission.
   PER CURIAM.

The Department of Corrections appeals from two orders of the Career Service Commission which purported to estop the State of Florida, the Department of Corrections, and all other state agencies from retroactively collecting, or attempting to collect, salary overpayments made to Department employees, Korpinen and Wood, which stemmed from clerical errors. We find our recent opinion in Department of Corrections v. Career Service Commission, 429 So.2d 1244 (Fla. 1st DCA 1983) to be directly controlling and agree, as stated in that opinion, that where the Department attempts to recover salary overpayments resulting from clerical error and no reduction in pay or disciplinary action is involved, the Commission is without jurisdiction to review the Department’s action.

Accordingly, we REVERSE.

ERVIN, C.J., and MILLS and LARRY G. SMITH, JJ., concur.


text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. William HELMS and Career Service Commission, Appellees.
    No. AP-296.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    Louis A. Vargas, Asst. Gen. Counsel, Dept, of Corrections, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Jeffrey A. Miller, Asst. Atty. Gen., Tallahassee, for appellees.
   PER CURIAM.

The Department of Corrections appeals from that portion of a final order of the Career Service Commission which directs that “any and all documents in the [employee’s] personnel files with the Agency relating to this appeal and the subject matter thereof ... shall be removed therefrom and placed in an unsealed envelope, which is to be mailed to this Commission’s office in Tallahassee for filing in this cause within thirty (30) days from the Agency’s receipt of a copy of this Order, .... ” We find our recent opinion in Florida Department of Law Enforcement v. Hinson, 429 So.2d 723 (Fla. 1st DCA 1983) to be directly controlling and accordingly REVERSE.

ERVIN, C.J., and MILLS and LARRY G. SMITH, JJ., concur.


author: WIGGINTON, Judge.

text:
    Elizabeth MENDEZ, Appellant, v. FLORIDA POWER AND LIGHT CO., Self-Insured, Appellee.
    No. AP-480.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    Rehearing Denied Aug. 31, 1983.

      Jay M. Levy, of Silver, Levy & Hershoff, Miami, for appellant.
    Albert E. Harum, Jr., P.A., Miami, for appellee.
   WIGGINTON, Judge.

Appellant/claimant appeals the deputy commissioner’s order denying her claim for penalties, interest, and attorney’s fees for failure of appellee/employer to pay timely workers’ compensation benefits due appellant in accordance with a settlement agreement. We affirm.

On December 4, 1981, when appellant’s claim for benefits was presented to the deputy commissioner for final hearing, the parties presented a washout settlement, pursuant to Section 440.20(10), Florida Statutes (Supp.1978), the terms of which were set forth on the record before the deputy commissioner. Appellant accepted the settlement before the deputy commissioner under oath. The deputy made the following finding on the record:

Okay, I find the settlement to be in claimant’s best interest and do hereby approve it under [Workers’ Compensation] Rule 13. It is a final settlement as of now.

Appellant signed the stipulation and joint petition on December 18,1981. The deputy approved the agreement by order entered on December 22, 1981. Appellee received the benefits due under the agreement by a check dated January 5, 1982.

On February 26, 1982, appellant filed a claim for penalties, interest, and attorney’s fees, asserting that since the deputy announced at the December 4 hearing that the settlement was final at that time and because the settlement was validated by having been dictated on the record, the twenty-day time period during which benefits should have been paid pursuant to Section 440.20(6), Florida Statutes (Supp.1978) began to run on December 5 and thus had expired by the time payment was received on January 5. The deputy commissioner ruled that appellee became obligated to pay benefits only upon the entry and mailing to the parties of the December 22 order. Thus, the time period began to run as of that date.

We agree with the deputy commissioner that the obligation to pay benefits arose on the date copies of the order were mailed to the parties, as provided in Section 440.-25(4)(a), Florida Statutes (Supp.1978). Section 440.20(10), Florida Statutes (Supp. 1978) provided that upon joint petition of all interested parties, if a deputy finds that it is in the best interests of the claimant, he may “enter a compensation order approving and authorizing the discharge of the liability of the employer .... ” It further provides that when the claimant is represented by counsel, final approval of the lump sum settlement agreement “shall be approved by entry of an order within seven days of the filing of such joint petition and stipulation .... ” (Emphasis supplied). The clear intent of those statutes is that the filed stipulation and joint petition for settlement agreement be approved by the deputy by order prior to the obligations becoming due and effective.

Payment was made by appellee within twenty days of the date of the mailing of deputy commissioner’s order. Therefore, payment was made timely and penalties, interest, and attorney’s fees are not due appellant.

AFFIRMED.

JOANOS and ZEHMER, JJ., concur.

      . Fla.W.C.R.P. 13 (1981).

      . Section 440.20(6), Fla.Stat. (Supp.1978) provided that penalties are due if compensation benefits are not paid within twenty days of an award. Section 440.20(7), Fla.Stat. (Supp. 1978) provided for the payment of interest when compensation is not paid timely. Section 440.20(8), Fla.Stat. (1981) provides that penalties are owed if payment is not made within thirty days of an award. The provision for interest now is contained in Section 440.20(9), Fla.Stat. (1981).

      .Now codified in 440.20(12)(b), Fla.Stat. (1981).


author: SHIVERS, Judge.

text:
    SANTA ROSA MARBLE, INC. and United States Fidelity & Guaranty Co., Appellants, v. Raul UBIETA and the Division of Workers’ Compensation, Appellees.
    No. AQ-29.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    Rehearing Denied Sept. 6, 1983.
    Summers Warden, Miami, for appellants.
    Herman M. Klemick, Miami, for appel-lees.
   SHIVERS, Judge.

In this workers’ compensation appeal, the employer/carrier (E/C) seeks reversal of an order awarding claimant’s attorney a fee. The order which is now before us for review awarded claimant’s attorney a $4,000 fee for services rendered up to the date of the hearing and also reserved jurisdiction for “purposes of determining a reasonable attorney’s fee owing to claimant’s attorney for any future wage loss benefits obtained for the Claimant.” The E/C raises several points on appeal, only one of which we find merits discussion. Specifically, the E/C contends that the order in question must be reversed because it erroneously retains jurisdiction to award a reasonable attorney’s fee in the future based on future wage loss benefits which may be paid to claimant.

Reservation of jurisdiction to award attorney’s fees based on future compensation which may be paid to claimant is improper. In Matera v. Gautier, 133 So.2d 732 (Fla.1961), the Florida Supreme Court reversed an attorney’s fee award which was based upon a percentage of annual disability benefits paid to claimant, stating that:

The fee represents compensation for services rendered up to the date of the hearing. There is no reason, either in logic or in law, for not determining the fee to which the attorney is entitled as of that date and awarding it in a lump sum .... To award an indeterminable fee on the basis of future compensation is to place too great an emphasis on the size of the award and insufficient emphasis on the other elements which go into the determination of the attorney’s fee to be awarded.

See also City of Leesburg v. Padgett, 397 So.2d 732 (Fla. 1st DCA 1981). Since it was improper for the deputy commissioner to retain jurisdiction to make a fee award in the future, we strike section 2 of the decre-tal portion of the order which attempts to do so and affirm the order in all other respects.

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


text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Petitioner, v. Paul E. HAVENER, Respondent.
    No. AT-258.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    Augustus D. Aikens, Jr., Div. of Retirement, Tallahassee, for petitioner.
    Leonard F. Mikul, P.A., Key West, for respondent.
   PER CURIAM.

Petitioner’s Petition for Review of Non-final Administrative Action is denied for lack of jurisdiction. Beckum v. Dept. of Professional Regulation, 427 So.2d 276 (Fla. 1st DCA 1983).

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


text:
    TALLAHASSEE PHYSICAL THERAPY AND REHABILITATION SERVICES, Appellant, v. STATE, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AT-317.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.

      Barrett G. Johnson of Johnson & Associates, Tallahassee, for appellant.
    John L. Pearce, HRS Dist. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Having heard oral argument in this expedited appeal, we have determined that the Department erred in denying the hearing pursuant to Section 120.57(1), Florida Statutes, requested by appellant in the “Protest of Proposed Contract Award,” which was sufficient on its face to require a formal hearing pursuant to Section 120.-53(5)(d)2, Florida Statutes.

The contract awarded pursuant to the emergency procedure set forth in Section 120.53(5)(c) was awarded subject to the continuation of the protest instituted by appellant under Section 120.53(5)(b). At this point in the proceedings we decline to determine whether that contract must be set aside as that issue is not ripe for consideration until after the protest proceedings have been concluded. The other issues raised by the parties should be addressed in the Section 120.57(1) hearing.

This case is REMANDED to the Department with directions to refer the case to the Division of Administrative Hearings for a formal Section 120.57(1) hearing.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


author: MILLS, Judge.

text:
    Pat GUARNERA, Appellant, v. STATE of Florida, Appellee.
    No. AL-53.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.

      Michael Allen, Public Defender; Gwendolyn Spivey, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

After he was convicted on two counts of burglary of a dwelling and one count of petit theft, Guarnera instituted this appeal, contending that the evidence at trial, which was entirely circumstantial, was insufficient to exclude every reasonable hypothesis of innocence. We disagree and affirm.

As a preliminary matter, we note that contrary to the State’s suggestion we do have jurisdiction to entertain this appeal. The jury verdict in this case was rendered on 3 December 1981, following which Guarnera filed a motion for new trial. Pursuant to Rule 3.590(a), Florida Rules of Criminal Procedure, he ordinarily would have had until 13 December 1981 to file his motion. However, because that date fell on a Sunday, the time for filing the motion was extended to 14 December 1981. Rule 3.040, Florida Rules of Criminal Procedure. The motion was filed before Judge Wallace M. Jopling in the Columbia County Courthouse on 14 December, but it was not actually filed in the clerk’s office until 15 December. This motion was timely filed because Rule 3.030(d), Florida Rules of Criminal Procedure, permits the judge to receive papers for filing. The fact that Judge Jo-pling was not the trial judge in this case makes no difference.

An authorized and timely motion for new trial tolls the time of rendition of an order until the disposition of the motion. Rule 9.020(g), Florida Rules of Appellate Procedure. Because this motion for new trial was timely, the deadline for filing a notice of appeal was tolled until thirty days from 24 March 1982, the date the motion for new trial was denied. The notice of appeal dated 29 March 1982 was therefore timely.

On the merits, we find that the evidence presented was sufficient to exclude every reasonable hypothesis of innocence.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


text:
    Richard A. CALVERT, et ux., et al., Appellants, v. Sidney L. MORGAN, et ux., et al., Appellees.
    No. AN-293.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    Rehearing Denied Sept. 12, 1983.

      Ronald W. Maxwell, Jacksonville, for appellants.
    John L. Briggs, Jacksonville, for appel-lees.
   MILLS, Judge.

The issues in this declaratory judgment action are whether the trial court had jurisdiction to grant declaratory relief and whether the rule set forth in Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915), applies to the facts of this case. Judgment was entered for the plaintiffs (appellees) and the defendants (appellants) appeal.

The defendants are the owners of several lots of land fronting on Spanish Point Drive in Jacksonville, while the plaintiffs are the owners of several lots fronting on Tontine Road. The rear property lines of both sets of lots are separated by a thirty foot right of way which is the subject of this lawsuit.

All of the land in question was at one time owned by the Woodham Corporation. Woodham began developing lots for sale, and on 14 August 1961, it filed a plat for the Spanish Point Drive property in the public records of Duval County. On that plat, it was noted that a thirty-foot right of way contiguous with and located immediately to the north of the lots was irrevocably and without reservation dedicated to the City of Jacksonville for drainage and utilities purposes.

Subsequently, Woodham’s successor in title developed the Tontine Road property. A plat of that property was filed in the public records of Duval County on 22 March 1976.

After the City of Jacksonville passed an ordinance on 22 September 1980 abandoning the right of way, the plaintiffs brought an action seeking a declaratory judgment as to their rights in the strip of land. They contended that they owned all the land up to the center line of the former right of way, while the defendants claimed ownership of the entire strip. The trial court agreed with the plaintiffs and entered judgment accordingly.

Defendants contend that the trial court did not have jurisdiction to grant declaratory relief under Section 86.011, Florida Statutes (1979). This contention is without merit. To trigger jurisdiction under this section, the moving party must demonstrate that he is in doubt as to the existence or nonexistence of some right and that he is entitled to have such doubt removed. Flagship Beal Estate Corp. v. Flagship Banks, Inc., 374 So.2d 1020 (Fla. 2d DCA 1979). As the disposition of this right of way affected the boundary line to the Tontine Road lots, the trial court clearly had jurisdiction to grant declaratory relief.

On the merits, the trial court correctly applied the rule of Smith v. Horn, supra, in setting the boundary between the two sets of lots at the center line of the abandoned right of way.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


author: LARRY G. SMITH, Judge.

text:
    James M. JOSEPH and Clara M. Joseph, his wife, Appellants, v. Carmen M. DURAN and Kenya M. Hadden, Appellees.
    No. AP-398.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.
    H. Randolph Fallin, Jacksonville, for appellants.
    Bernard Nachman, Nachman, Oberdorfer & Barry, Jacksonville, for appellees.
   LARRY G. SMITH, Judge.

Appellants appeal a final judgment quieting title to the easterly one-half of an alley in appellees. The ten foot alley runs north and south separating appellants’ lot from those of appellees, the west boundary of appellees’ lots facing the east boundary of the alley, and the east boundary of appellants’ lot facing the west boundary of the alley. We affirm.

The Morrows owned lots 19 through 23 of Block 6 of the New Riverside subdivision in Jacksonville. When New Riverside was first platted, provision was made for a ten foot alley lying west of and abutting lots 19 through 23. Several years later, on or about March 1, 1979, the City of Jacksonville passed an ordinance closing, vacating and abandoning the alley. On June 27, 1979, the Morrows conveyed lots 19 through 23 by lots and block number only, to appel-lees. The alley is not mentioned in the deed.

Appellants at all times owned lot 18, block 6 of New Riverside which lies west of and abuts the alley. In December, 1980, the Morrows conveyed to appellants, by quit claim deed, the easterly one-half of the abandoned alley. Thereafter, appellants took possession of the property and constructed a fence on that portion, obstructing appellees’ access to the alley. Appellees brought a quiet title action and sought removal of the fence in the alley. The trial court entered a final judgment finding that the quit claim deed from the Morrows to appellants constituted a cloud on appellees’ title to the easterly one-half of the closed alley and quieting title to that property in appellees. Appellants were ordered to remove their fence from the alley.

When the Morrows conveyed lots 19 through 23 to appellees, they conveyed not only title to the lots described in the deed, but also title to the center line of the alley abutting the lots. Servando Building Company v. Zimmerman, 91 So.2d 289 (Fla. 1956); and Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915). The fact that the alley had been vacated prior to the conveyance does not alter this result. Calvert v. Morgan, 436 So.2d 314 (Fla. 1st DCA 1983). See, also, Greenberg v. L.I. Snodgrass Co., 161 Ohio St. 351, 119 N.E.2d 292, 49 A.L.R.2d 974 (1954). Finally, the trial court correctly ruled that the parole evidence rule precluded appellants from introducing evidence concerning Mr. Morrows’ intentions when he conveyed lots 19 through 23 to appellees. Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (1943); Florida Moss Products v. City of Leesburg, 93 Fla. 656, 112 So. 572 (1927).

Accordingly, we affirm the trial court’s evidentiary ruling and the final judgment in its entirety.

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


text:
    Willis Earl DUPREE, Appellant, v. STATE of Florida, Appellee.
    No. AO-101.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    Michael Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

From his conviction and sentence for sexual battery by using physical force and violence not likely to cause serious personal injury, Section 794.011(5), Florida Statutes (1981), Dupree appeals, contending that the trial court erred in allowing the State to call a rebuttal witness. We affirm.

At Dupree’s trial, after the State had presented its case in chief, the defense called Anita Malick, who was to testify about an incident which occurred between Dupree and the victim approximately one week before the trial. She was allowed to testify over the State’s objection that her name had not been disclosed pursuant to discovery. On cross-examination, the prosecutor inquired into the nature of Malick’s relationship with Dupree. She responded that she had dated Dupree “a time or two.”

On rebuttal, the State attempted to call Officer Lee Jennings. He had been working as a jailer at the Washington County Jail approximately one week before the trial when Malick was brought in on a DWI charge. According to Officer Jennings, while Malick was in jail, Dupree showed up, identified himself as Malick’s fiance, and asked permission to see her.

The defense objected to this testimony because the State had failed to disclose Officer Jennings’ name as a potential witness and because he was present in the courtroom during Malick’s testimony. The trial court overruled the objection and allowed Officer Jennings to testify.

There was no error in allowing this testimony. The State could not reasonably have anticipated the need to call Officer Jennings as a rebuttal witness since Mal-ick’s testimony concerning the nature of her relationship with Dupree was not known until she took the stand. In any event, the record shows that there was no violation of the rule set out in Richardson v. State, 246 So.2d 771 (Fla.1971). The trial court conducted an inquiry into the circumstances surrounding the State’s failure to disclose Officer Jennings’ name before it allowed him to testify.

Neither did the trial court abuse its discretion in allowing Officer Jennings’ testimony even though he was present in the courtroom when Malick testified. The trial court has discretion to decide whether a witness should be excluded from the rule of sequestration. The burden is on the defendant to show an abuse of that discretion and a resultant injury. Spencer v. State, 133 So.2d 729 (Fla.1961). We can discern no reason why the rule should be different in this case, where Officer Jennings was not initially placed under the rule because the need for his testimony was not known until almost the end of the trial.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


text:
    STATE of Florida, Appellant, v. James David JAMISON, James Ronald Pilley, Fred H. McVay, Jr., Appellees.
    No. AP-354.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellant.
    Stan Cushman, of Scruggs & Carmichael, Gainesville, for appellees.
   PER CURIAM.

AFFIRMED. DeMontmorency v. State, -So.2d-, 7 FLW 485 (Fla. October 28, 1982).

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


text:
    Ishelnel TELFORD, Appellant, v. FRANK J. ROONEY, INC., and Home Indemnity Company, Appellees.
    No. AQ-30.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    L. Barry Keyfetz, of Keyfetz, Poses & Halpern, P.A., Miami, for appellant.
    Barry A. Pemsler, of Richard & Pemsler, Miami, for appellees.
   WIGGINTON, Judge.

Claimant appeals from the order of the deputy commissioner which in part denied a claim for additional temporary benefits and failed to award penalties and interest on an initial but late payment of compensation. We affirm the order denying the claim for additional temporary benefits; the medical evidence indicated claimant could return to work, and there was no other evidence, i.e., unsuccessful good faith work search, to justify a greater award of benefits for a claimed temporary disability. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982); State v. Campbell, 417 So.2d 1156 (Fla. 1st DCA 1982). However, we remand this cause for computation and imposition of interest and penalties due on the initial compensation payment of $187.20, which payment was conceded by the employer/carrier as being late.. § 440.-20, Fla.Stat. (1981).

JOANOS and ZEHMER, JJ., concur.


text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. James DIXON and Career Service Commission, Appellees.
    No. AQ-368.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    Rosa H. Carson, Asst. Gen. Counsel, Dept, of Corrections, Tallahassee, for appellant.
    William F. Daniel, Tallahassee, for appel-lee James Dixon, and Jim Smith, Atty. Gen., and John J. Rimes, III, Asst. Atty. Gen., Tallahassee, for appellee Career Service Com’n.
   WIGGINTON, Judge.

This cause is before us on appeal from the final order of the Career Service Commission (commission) reinstating with back pay appellee James Dixon to his former position of Correctional Officer I at River Junction Correctional Institution (institution), Chattahoochee, Florida. Appellant Department of Corrections (department) raises two points for our consideration: (1) whether the commission improperly granted Dixon’s motion for a directed verdict; and (2) whether the commission made erroneous findings not supported by the record. We answer both issues in the affirmative and reverse.

Dixon was serving as a Correctional Officer I when, in December, 1980, he seriously injured his hip in an automobile accident unrelated to his employment. He returned to work in January, 1981, with his physician’s instructions to perform only duties of a restricted nature, and to avoid prolonged standing, walking and lifting. Accordingly, the institution provided special, temporary accommodations for Dixon in the control room where he performed clerking duties.

By letter of May 4, 1981, the institution requested an update from the physician on Dixon’s ability to perform his duties as a Correctional Officer I, and an indication as to when Dixon could assume regular duty. The physician recommended that Dixon continue using a crutch for walking for another two months, and indicated that if by that time the fracture was healed, Dixon could begin weight bearing; otherwise, consideration would be given to further hip surgery for a bone graft and insertion of a screw.

In June, 1981, Dixon ceased working at the institution and was admitted to a hospital for surgery. He was placed in a hip cast which was not removed until the following September.

In November, the institution again wrote to Dixon’s physician, requesting a medical evaluation as to his ability to perform as a Correctional Officer I. The physician was informed that Dixon’s regular duties involved prolonged standing, climbing of stairs, extensive walking, and the possibility of running after and restraining inmates. The institution was again advised, on December 18,1981, that Dixon could only perform work of a restricted nature which would not require “any contact with prisoners or heavy lifting,” and that Dixon would return for x-rays in two months.

Dixon was placed on compulsory leave status on December 23, 1981, pursuant to department rule 22A-8.12(2)(a), Florida Administrative Code, as being unable to perform his assigned duties. Dixon was notified in writing of the duration of the mandatory leave period of thirty days, and that in order for him to return to his position, he must provide medical certification of his ability to perform the duties assigned to a Correctional Officer I employee. Rule 22A-8.12(2)(b), Florida Administrative Code. Dixon was also notified that the institution’s employment needs required his return to active employment. Following a January 18,1982, medical examination, Dixon submitted a medical opinion to Eddie Lawrence, the institution’s personnel manager, stating that Dixon could work in a controlled environment where no “unprotected load” would be placed on his left hip.

Dixon was dismissed pursuant to rule 22A-8.12(2)(d)4, on February 12, 1982, for physical inability to perform his assigned duties as a Correctional Officer I. He appealed his dismissal to the Career Service Commission and was given a hearing. The department presented its case first, during which the above-referenced medical correspondence and records were introduced into evidence, and Eddie Lawrence testified. At the close of the department’s case, the commission granted Dixon’s motion for a directed verdict, including in its final order, based on its findings of fact, that “the Department has failed to prove by a preponderance of the evidence, by the greater weight of the evidence and by competent substantial evidence that it had just cause to remove the Appellant from his position with the Agency.” We find that the commission’s order is not based on competent and substantial evidence, and reverse.

Rule 22A-8.12(2)(d)4 authorizes the department to dismiss an employee for cause based on the employee’s inability to perform assigned duties. During an appeal challenging the dismissal before the commission, the department, as the party asserting the affirmative of an issue, has the burden of proving that the dismissal was “for cause.” Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974); State Department of Agriculture and Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972). Although this burden never shifts, the proof presented may establish a prima facie case so that the burden of moving forward with the presentation of the evidence will shift to the employee appealing the dismissal. Florida Department of Health and Rehabilitative Services v. Career Service Commission; 1 Fla.Jur.2d Administrative Law § 81.

We hold that the department presented evidence sufficient to establish prima facie cause for dismissal. The evidence demonstrated that Dixon had been unable to perform the duties of a Correctional Officer I, and that he had failed to obtain medical certification to indicate the contrary. There is no basis in the rules for the commission’s implication in its order that the department was under an obligation to find “make-work” for Dixon; and there is no basis in the record for the commission’s finding that other correctional officers had not been dismissed despite allegedly debilitating disabilities. In regard to the latter, the record is clear that all but one of those employees (who was ultimately dismissed) had received medical certification of their ability to perform their assigned duties as correctional officers.

Therefore, in answer to the department’s questions raised on appeal, we hold: (1) the commission improperly granted Dixon’s motion for directed verdict; and (2) the commission made erroneous findings not supported by the record. The commission’s order reinstating Dixon with back pay is REVERSED, and the cause is REMANDED for further proceedings.

ERVIN, C.J., and THOMPSON, J., concur.

      . (2) Compulsory disability leave
      (a) An agency head who believes that an employee is unable to perform assigned duties due to illness or injury may require the employee to submit to a medical examination by a physician named and paid by the agency. If the medical examination confirms that the employee is unable to perform assigned duties, the agency head shall place the employee on compulsory disability leave.

      . (d) If the employee is unable to return to work at the end of the mandatory leave period, based on a current medical certification, the agency head may:
      * * * * * *
      4. Dismiss the employee for cause based on inability to perform assigned duties.


text:
    R.W. BUILDERS and Aetna Life and Casualty Company, Appellants, v. Andrelien DESSOURCES, Appellee.
    No. AR-323.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    Mark J. Mintz, of Ress, Gomez, Rosenberg & Howland, P.A., North Miami, for appellants.
    Mark L. Zientz, Coral Gables, for appel-lee.
   PER CURIAM.

AFFIRMED. See Polk County Board of County Commissioners and Commercial Risk Management, Inc. v. Donald Patterson, 433 So.2d 1298 (Fla. 1st DCA 1983).

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Cesar H. CONDE and Marvin Diaz, M.D., P.A., etc., et al., Appellants, v. PROFESSIONAL MEDIQUIP OF FLORIDA, INC., et al., Appellees.
    No. 83-112.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.

      Richard H. Gaunt, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellants.
    Stuart L. Stein of Stuart L. Stein, P.A., Fort Lauderdale, for appellees Mediscience Technology Corp.
   GLICKSTEIN, Judge.

Plaintiffs/appellants sued several defendants, including Mediscience Technology Corporation, a foreign corporation, for damages due to loss or conversion of a piece of medical equipment shipped for repair. Summons and complaint were served on the Florida Secretary of State as agent of the foreign corporation, who acknowledged in writing acceptance of service. Copies of the summons and complaint and of the Secretary’s acknowledgment of the substituted service were sent to the corporation at its New Jersey address by certified mail, and receipt was returned as requested. Counsel for plaintiffs/appellants prepared an affidavit that substituted service had been effected in compliance with Section 48.161, Florida Statutes. However, the original summons had been lost or misplaced and counsel prepared an affidavit to that effect. Thereafter default judgment was timely entered against Mediscience. Two years later Mediscience successfully moved to set aside the final judgment, on the ground that Section 48.161(1), Florida Statutes, requires the Secretary of State’s return of service, which, absent the original summons, had not been achieved.

Section 48.181, Florida Statutes (1981), authorizes use of substituted service when suing a foreign corporation, on claims arising out of its business, by serving process on the Secretary of State as its “appointed” agent. Section 48.161, Florida Statutes (1981), sets forth the method of substituted service on nonresidents. The two statutory sections are complementary and must be read in pari materia with each other. Atlas Van Lines, Inc. v. Rossmoore, 271 So.2d 31, 32 (Fla. 2d DCA 1972).

If the plaintiff chooses substituted service on the Secretary of State under Section 48.181(1), then perfection of such substituted service requires full compliance with one of the alternative methods provided by Section 48.161. Section 48.-161 requires such substituted service be perfected and evidenced by either: (1) registered or certified mailing to the nonresident of both a notice of such substituted service and a copy of the process, evidenced by the filing of the nonresident’s return receipt and an affidavit of compliance by plaintiff or his attorney; or, (2) an appropriate officer’s return showing service on the nonresident within or without this state.

P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855, 857-58 (Fla. 2d DCA 1978). Section 48.161 further requires the public officer authorized to receive substituted service —i.e., the Secretary of State — to maintain a record of all process served on him, showing the hour and day of service.

The object of service of process is to give defendant notice that a legal proceeding has been instituted, and an opportunity to defend against it. E.g., Mitchell v. Brown, 114 So.2d 178, 183 (Fla. 1st DCA 1959). Appellee Mediscience has not denied receipt of such notice, nor has it by clear and convincing evidence demonstrated the invalidity of the service. Travelers Insurance Company v. Davis, 371 So.2d 702, 703, 704 (Fla. 3d DCA 1970). Plaintiffs’ attorney filed an affidavit to the effect that a copy of the summons and complaint and a copy of the Secretary of State’s acknowledgment of service upon him had been mailed to and received by Mediscience at its New Jersey address. A return receipt accompanied this affidavit. Thus, the trial court had satisfactory proof that prong one of the Section 48.161 procedure, service on the Secretary of State, and alternative (1) of prong two, certified mailing to defendant, were accomplished. Contrary to the reading given Section 48.161 by appellee and the trial court, the statute does not demand return of service by the Secretary of State. The trial court accordingly timely knew it had acquired jurisdiction of appel-lee/defendant’s person. See Klosenski v. Flaherty, 116 So.2d 767, 768 (Fla.1960).

The order setting aside final judgment is reversed.

LETTS and DELL, JJ., concur.


text:
    SIERRA HOLDING, INC., a Florida corporation, Appellant, v. SHARP ELECTRONICS CORP., Appellee.
    No. 83-358.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Henry W. Ciar, Coral Gables, for appellant.
    Thomas A. Truex of Jacobson & Gottlieb, Hollywood, for appellee.
   PER CURIAM.

Appellant, Sierra Holding, Inc., challenges the sufficiency of service of process upon it where same was attempted under the provisions of Sections 48.081(3), Florida Statutes (1979) as amended.

The process server actually served one Charles (Chuck) Drago with process. The dispositive issue is whether Mr. Drago was an employee of appellant at the time. From an examination of the record and testimony we find no basis for a finding that Mr. Drago was an employee of appellant, but to the contrary find he was not. Thus, the service under the mentioned statute was invalid.

We further hold that appellant did not submit to personal jurisdiction by general appearance. Finally we do not rule on the sufficiency of subsequent substituted service since the trial court has not yet adjudicated its sufficiency.

Reversed and remanded.

LETTS, BERANEK and WALDEN, JJ., concur.


text:
    Abraham J. TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 83-252.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1983.

      Abraham J. Torres, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The petitioner Torres, filed a 3.850 motion seeking a credit of 189 days on his sentence imposed November 17, 1981 for trafficking. He received only 21 days jail-time credit on his six-year sentence. We affirm the lower court’s denial of Torres’ petition for post-judgment relief.

Torres was arrested on a trafficking charge on May 12, 1981. He was also arrested on May 12, 1981 for violating his probation in connection with a prior conviction for burglary of a structure. He served 21 days in jail and then was released on the trafficking charge. He continued to be held in jail on the other charge until, and after, he was sentenced for the trafficking charge on November 17, 1981. The judge gave him 21 days of jail-time credit on his six-year trafficking sentence.

Torres was sentenced on December 4, 1981 for burglary to three years, and he received jail credit for six months served in 1980 plus the time served until sentencing on December 4, 1981. Torres argues here that the period of time between his arrest on May 12, 1981 and his sentencing on the trafficking charge, on November 17, 1981 (189 days), should have been credited against the first of the two sentences he received pursuant to Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974) and section 921.161(1), Florida Statutes (1981).

Section 921.161(1) provides:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence. (Emphasis added).

The statute does not deal with which sentence the credit should be applied to in the event a defendant is held on multiple charges and is sentenced at different times. As was noted by oür sister court, this statute presents difficulties in its application by trial courts where there are multiple sentences.

In Miller, the defendant was arrested on one charge but was thereafter released on bond. Subsequently he was arrested on other charges, some of which related to crimes in other counties, and the bondsman went off his bond for the offenses involved in that case. When brought for sentencing on the first charge, Miller argued he should receive credit for jail time against all of his sentences.

The First District said a defendant was not entitled to duplicate credit against multiple charges. It adopted the following rule for the First District:

When a defendant is held in jail to answer for multiple charges or cases, the first sentencing judge who sentences him to jail or to the state prison shall give him credit on the sentence or sentences in that case for all time spent in jail between the date of his arrest in that case and the date of such sentence even though the defendant may have also been held to answer for other charges during some or all of such time. If the defendant’s jail time exceeds the sentence or sentences pronounced by the first sentencing judge, the next sentencing judge shall give the defendant credit for such excess credit on the sentence pronounced by him. Since a defendant will not be given credit by the first sentencing judge for any jail time incurred prior to his incarceration on the offense or offenses for which the first sentencing judge sentences him, credit for such prior jail time shall be given him by the judge who sentences him for the offense for which he was held during such prior time. Each judge imposing sentence shall state in the sentence the period of time covered by any jail time allowance so that a judge imposing a subsequent sentence will not duplicate jail time credit. (Emphasis added).

Miller at 38.

Unlike Miller, Torres was held only 21 days on multiple charges. He was released on the trafficking charge after 21 days. Therefore, the total 189 days for which he seeks credit on the trafficking sentence would not apply to that charge because he was held to answer for multiple charges only 21 days. He properly received credit for the remainder of his jail time in the December 4, 1981 sentence.

The trial court’s denial of Torres’ 3.850 motion' is

AFFIRMED.

DAUKSCH, COBB and SHARP, JJ., concur.

      . Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).

      . In fact, he got another credit for the same 21 days in the total credit applied to the burglary sentence.


author: OTT, Chief Judge.

text:
    Jerri L. ILJAZI, Appellant, v. Mevlud T. ILJAZI, Appellee.
    No. 82-2048.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 1983.

      David L. Levy, Largo, for appellant.
    Brian E. Johnson and Walter J. McNi-chols, Clearwater, for appellee.
   OTT, Chief Judge.

On October 29, 1980, the marriage of appellant and appellee was dissolved in Pi-nellas County, Florida. There were two children, ages three and one, at the time of dissolution.

The parties had entered into a comprehensive separation agreement providing, inter alia, for support, medical care, private school education, and primary custody of the two children in the mother (appellant), with liberal specific visitation periods and rights for the father (appellee), including taking the children to visit the appellee’s parents in Yugoslavia from time to time.

The appellant was employed. She waived all rights to alimony except for $5,000 lump sum alimony which was originally to be paid out of the proceeds of the sale of the marital home but was later paid by the appellee in cash. The separation agreement was modified accordingly by order of the trial court dated December 10, 1980.

Both parties remarried, and the appellant moved to Texas with her new husband, while appellee continued to reside in the former marital home with his new wife.

On May 24, 1982, the appellee petitioned the trial court to award primary custody of the two children to him. The appellant also moved for and secured an order releasing to her child support payments being held in appellee’s attorneys’ trust account.

In 1982 the legislature of the State of Florida mandated shared parental responsibility under the conditions and limitations set forth in section 61.13, Florida Statutes (Supp.1982). The law specifically provided that it would apply to all proceedings under chapter 61, Florida Statutes, Dissolution of Marriage, pending on the effective date of the law, July 1,1982. Ch. 82-96, § 3, Laws of Florida.

Appellee’s motion for change of child custody came on for hearing on August 24, 1982. The children were now ages five and three years. The trial court heard considerable testimony concerning the living conditions and habits of the parties — some favorable and some questionable as to each party

At the conclusion of the hearing the trial court orally pronounced:

The Court finds as of July 1, 1982 the policy of this state, the public policy of the state as it relates to child support is embodied in the amendment of Chapter [61], Florida Statutes, under the section dealing with equal parental responsibility-

Again in his written order dated September 3, 1982, the trial court stated that:

[T]he court ... finds regarding the Motion for Change of Child Custody that the primary criteria is not the unfitness of the parent but the best interest of the children as is now the law of this State effective July 1, 1982, more specifically Chapter 61.13 which grants shared parental responsibility.
The court further finds that [appellant’s] ... position with her current husband is unstable and further that she has lived in seven (7) places in the last twenty (20) months since the divorce and ... that [appellee’s] employment and residence has been stable since 1973, coupled with the finding of this court that [appellant] ... has been less than cooperative regarding rights of visitation to the [appel-lee] with the children and finds that the best interests of the children would be served by granting the primary residence to the [appellee] ....

The trial court thereupon ordered shared parental responsibility with primary physical residence of the children with appellant during the school year and with appellee during summer vacation and other specific visitation periods and conditions. At no place in his oral conclusions at the end of the hearing or in his written order of September 3, 1982, did the trial court find or indicate that he felt a material change of circumstances had occurred since the original Final Judgment of Dissolution of Marriage warranting a change of custody of the children.

Florida’s new shared responsibility law alone is not a sufficient basis for ordering a change in the custody of children where the question has been litigated and determined in a prior proceeding. The evidence must support and the trial court must find a material change in circumstances which, in the best interests of the child or children, requires a change of their custody from the parent previously awarded custody. See e.g., Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982), and Alonso v. Alonso, 432 So.2d 174 (Fla. 3d DCA 1983).

It appearing that the trial court mistakenly concluded a material change in circumstances was not required in a custody modification proceeding under section 61.13, Florida Statutes, we VACATE the order and REMAND for reconsideration in the light of this opinion. If a material change has occurred, shared parental responsibility can then be granted.

Nothing herein should preclude the court from the taking of further testimony on the issue.

RYDER and DANAHY, JJ., concur.


author: CAMPBELL, Judge.

text:
    “Jane DOE,” Appellant, v. SARASOTA-BRADENTON FLORIDA TELEVISION COMPANY, INC., Appellee.
    No. 82-2517.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 1983.

      Alan D. Bennett of Klein & Bennett, P.A., Sarasota; and Mark R. Lewis, St. Petersburg, for appellant.
    William H. Meeks, Jr., Bradenton, for appellee.
   CAMPBELL, Judge.

The appellant, Jane Doe, was raped by a man who was later tried and convicted for that crime. After consulting with state prosecutors, appellant agreed to testify against her assailant at his upcoming trial. Important to her decision to testify was an assurance by the state that her name and photograph would not be published or displayed.

On March 10, 1982, appellant testified at the rape trial. Appellee’s television news team was also present in the courtroom. That night, during the evening news, appel-lee ran a video tape of the trial featuring appellant’s testimony. While the video tape ran, the newscaster identified appellant by name to the viewing audience.

Appellant filed a four-count complaint against appellee. In count I, she sought a declaration that she was a member of the class protected by section 794.03, Florida Statutes (1981). In count II, she sought damages for a violation of that statute, and in counts III and IV, she sought, respectively, damages for intentional invasion of privacy and intentional infliction of emotional distress. Appellee moved to dismiss the complaint, relying primarily on the decision in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). After receiving memoranda of law from the parties and hearing argument on the motion, the trial court dismissed counts I, II and III with prejudice on the basis of Cox Broadcasting and also dismissed count IV with prejudice. Appellant then filed this appeal, and we now affirm.

In Cox Broadcasting, the Supreme Court concluded that the State of Georgia could not punish a reporter and his employer for accurately publishing the name of a deceased rape victim where the information had been obtained from otherwise public judicial records. We agree with the trial court here that Cox Broadcasting controls. We conclude that the fact that the plaintiff in Cox Broadcasting was the deceased victim’s father and the appellant here is the victim herself does not distinguish the cases. Like the plaintiff in Cox Broadcasting, appellant here is complaining about the publication of information which, though completely accurate, is embarrassing and painful. Like the defendant in Cox Broadcasting, appellee here, through its agents, obtained its information from a source already open to public view. In Cox Broadcasting, the information came from public documents made available to a reporter during an ongoing judicial proceeding. In the instant case, the information came from a video tape taken without any apparent restrictions during the course of a public criminal trial. In neither case was there any indication that the press used improper methods to obtain the information disclosed. Also, the record in the instant case indicates that the state, despite its promise to appellant, never sought to restrain the video taping as it occurred nor objected to or otherwise sought to prohibit the video tape report of appellant’s trial testimony. Apparently, the state never made any effort to ensure that appellant’s name and picture remained closed to the public. Because the information was readily available to the public, through the vehicle of a public trial, we must therefore affirm on the basis of Cox Broadcasting.

Appellant alleged that appellee’s conduct violated section 794.03. That statute is inapplicable to the facts of this case. However, by so holding, we do not conclude that the statute can never be invoked by persons seeking to shield themselves from public scrutiny. Justice White pointed out in Cox Broadcasting that the states are not completely helpless to provide protection to the privacy rights of their citizens. “If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information.” 420 U.S. at 496, 95 S.Ct. at 1046, 43 L.Ed.2d at 350.

Thus, there certainly exist situations in which section 794.03 could be applied to protect privacy interests without running afoul of the first amendment. The same view has been espoused in an opinion of the attorney general that this statute would protect citizens when the information was not yet available for public inspection.

Prior to open public judicial proceedings, the name or other identifying information concerning victims of sexual assaults is not part of an open public record and may not be publicly disclosed in any manner by the custodian of such records. In the event such nonpublic information is obtained and printed, published, or broadcast prior to open, public judicial proceedings, the holding of Cox does not purport to prohibit the state from prosecuting those individuals who have violated s. 794.03, ... by publishing or broadcasting or causing to be published or broadcasted such identifying information.

1975 Op. Att’y Gen. Fla. 075-203 (July 14, 1975).

Although not raised by the parties, we note that Florida’s constitutional right of privacy could provide, under circumstances not present here, a means of further protection for those wishing “to be let alone.” However, this state constitutional provision must yield to the federal constitution’s guarantee of press freedom.

Although we affirm the trial court in all respects, we do so reluctantly because the information disclosed during the television broadcast appears to us to have been completely unnecessary to the story being presented. Withholding the name and photograph of the victim in this case would in no way have interfered with or restricted publication and dissemination of “news of the day.” New Jersey State Lottery Commission v. United States, 491 F.2d 219 (3d Cir.1974), vacated and remanded, 420 U.S. 371, 95 S.Ct. 941, 43 L.Ed.2d 260 (1975) (Douglas, J., dissenting).

We deplore the lack of sensitivity to the rights of others that is sometimes displayed by such unfettered exercise of first amendment rights. While we shall remain ever attentive to protect inviolate these first amendment rights, we do so with the admonition that those rights should not be arbitrarily exercised when unnecessary and detrimental to rights of others. To do so only reminds us of the proverbial bull in the china shop. We hasten to add that we fully recognize that the appellee here did no legal wrong nor any other conscious or deliberate impropriety, although its actions may have been insensitive. Nevertheless, it is that very lack of any sense of duty to the individual rights of others that concerns us here. Prior to this trial, appellant was simply an ordinary citizen; she lacked fame and prominence, the nature of which might make the publication of her name and visual image newsworthy, but she had the unhappy circumstance of becoming a victim of a crime. The publication added little or nothing to the sordid and unhappy story; yet, that brief little-or-nothing addition may well affect appellant’s well-being for years to come.

We understand the difficulty of prosecuting a case such as this and the emotional trauma of a victim revealing some of her most private feelings. Despite our understanding of these difficulties, or perhaps because of it, we cannot resist the opportunity to chastise the state somewhat for not having sought a protective order regarding cameras in the courtroom or other proper steps to support its alleged assurance to appellant that her name and photograph would not be published. Any criticism of appellee is tempered by the fact that once its employees were allowed into the courtroom to video tape the proceedings, they could well assume no responsibility not to publish the video tape. Cognizant of the frequent conflict between freedom of the press and the right of privacy, we take this opportunity to encourage the use of compassionate discretion in situations such as this by quoting from Cantrell v. Forest City Publishing Co., 484 F.2d 150, 156-57 (6th Cir.1973), rev’d on other grounds, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974):

[Djespite vigorous efforts to avoid publicity, some people remain newsworthy because of circumstances which arouse a legitimate interest in their lives. In Sidis v. F-R Publishing Corporation, 113 F.2d 806 (2d Cir.1940), cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1941), this was held to be true in the case of a child prodigy who had made every effort for 25 years to avoid publicity and for whom the results of later publicity were disastrous. The judgment of what is newsworthy must remain primarily a function of the publisher. However, in cases where essentially private persons are the subject of publicity because of their involuntary connection with events of widespread interest, this discretion or judgment of the publisher cannot be absolute. The curiosity and voracious appetite of the public for scandal would be too easily exploited by unscrupulous publishers. The right of the public to know is clearly one of the primary values protected by the First Amendment and its “... guarantees are not for the benefit of the press so much as for the benefit of all of us.” Time, Inc. v. Hill, supra, 385 U.S. [374] at 389, 87 S.Ct. [534] at 543 [17 L.Ed.2d 456]. No test has been authoritatively formulated (see Bloustein, Privacy, Tort Law and the Constitution, 46 Texas L.Rev. 611, 626 for a thoughtful suggestion) for judicial review of “newsworthiness” in these cases. Only in cases of flagrant breach of privacy which has not been waived or obvious exploitation of public curiosity where no legitimate public interest exists should a court substitute its judgment for that of the publisher. This is not such a case.

In Rosenbloom v. Metromedia [403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296], Justice Brennan writing for the Supreme Court stated the problem and the American answer to it as follows:

We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall’s answer to Talleyrand’s complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U.S.Cong.1832):
“ ‘Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which correct without enslaving the press, they have never yet been devised in America.’ ” 6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed. 1906) (emphasis in original). 403 U.S. at 51, 91 S.Ct. at 1823.

Because we are no nearer to solving this dilemma now than they were then and be-, cause we are prohibited by Cox Broadcasting from balancing the competing interests at stake here, “reliance must rest upon the judgment of those who decide what to publish or broadcast.” 420 U.S. at 496, 95 S.Ct. at 1046, 43 L.Ed.2d at 350. Therefore, we believe that in the future it would behoove the media to engage in their own balancing test with an eye to avoiding harm such as may have occurred here.

AFFIRMED.

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

      . 794.03 Unlawful to publish or broadcast information identifying sexual offense victims.— No person shall print, publish, or broadcast, or cause to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter....

      . Fla. Const, art. I, § 23.


author: BOARDMAN, Acting Chief Judge.

text:
    FLORIDA SHERIFFS YOUTH FUND, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and Mary E. Mikell, Appellees.
    No. 83-258.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 1983.

      Keith C. Tischler of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Com’n.
   BOARDMAN, Acting Chief Judge.

The Florida Sheriffs Youth Fund appeals an order by appellee Unemployment Appeals Commission (the Commission) ruling appellee/claimant Mary E. Mikell eligible for unemployment compensation benefits. We reverse.

Claimant and her husband, James Mikell, were hired by appellant in March 1978 to work at the Girls Villa in Bartow as “cottage” or “group” parents. At the Girls Villa, a team of two group parents lives with a small number of children, providing a stable, family setting.

In order to produce a family environment, appellant requires that each team of group parents be a married couple. With the limited exception of relief or temporary parents, all persons serving as group parents fulfill this requirement. This arrangement is the standard practice in institutions such as this.

The Mikells were advised of their team status when they were hired. It was made clear to them that to continue employment as group parents, both must perform satisfactorily and that the resignation or discharge of one would result in the discharge of the other.

On May 27, 1982, both Mr. and Mrs. Mi-kell were discharged due to Mr. Mikell’s misconduct, i.e., his failure to comply with appellant’s guidelines. Claimant was a satisfactory employee not guilty of any misconduct; her discharge was due solely to the condition of employment requiring a husband and wife team as group parents.

Claimant applied for unemployment compensation benefits and was awarded benefits by the claims adjudicator. Appellant requested a hearing before an appeals referee, who found that claimant had left her employment without good cause attributable to her employer and was therefore disqualified for benefits. She appealed to the Commission, which reversed the referee’s decision. This appeal followed timely.

The instant case is one of first impression and does not fit neatly within one or the other of the alternatives set forth in the statute. Accordingly, this court must look to the intent and spirit of the statute to fashion an equitable remedy.

This approach was taken in W.M. Palmer Co. v. Meeks, 354 So.2d 893 (Fla. 1st DCA 1978), in which the claimant advised her employer that she wished to remain at home to take care of her children. The company asked her to stay on until a replacement for her could be found, and she agreed to do so. Thereafter, once the employer had made arrangements for replacing her, she was advised that her services would no longer be needed after á certain date and was terminated. Because there was no misconduct on her part, the appeals referee and the Commission ruled that she was entitled to unemployment compensation benefits. The first district, however, found this ruling “a tortured misconstruction of the letter and spirit of the unemployment compensation law.” Id. at 894.

More analogous to the case before us is Paschal v. Florida Department of Labor & Employment Security, 405 So.2d 1020 (Fla. 3d DCA 1981), petition for review denied, 412 So.2d 468 (Fla.1982), which affirmed the Commission’s ruling that a county employee was disqualified from unemployment compensation benefits because he had voluntarily left his employment without good cause attributable to his employer where he was terminated from his job, which required the use of a privately owned vehicle, after his automobile was repossessed and he did not secure another. There, as here, the employee had failed to meet a known condition of his employment. Whether or not this failure was the employee’s fault, i.e., whether the employee had the ability to meet the employment condition if he so chose, was immaterial; the issue was whether his failure to meet his job requirements was due to good cause attributable to his employer. See also Coolaire Nordick International Gorp. v. Florida Department of Commerce, 356 So.2d 1317 (Fla. 4th DCA 1978).

Section 443.101(l)(a), Florida Statutes (1981), provides that an individual shall be disqualified for benefits when “he has voluntarily left his employment without good cause attributable to his employer or has been discharged by his employing unit for misconduct connected with his work .... ”

The employer in Paschal clearly had nothing to do with the employee’s loss of his means of transportation. Here, in contrast, it was the very action of the employer which resulted in claimant’s sudden inability to meet an employment condition of paramount importance. Nevertheless, the employer cannot be held to be at fault when its action was precipitated by misconduct on the part of claimant’s husband, an indispensable member of her group parent team.

We therefore hold that where, as here, an employee becomes unable to meet a known, understood, and accepted condition of employment, and where, as here, that inability cannot be considered to be the fault (in the sense of blameworthiness) of the employer, the employee will be considered to have “voluntarily left his employment without good cause attributable to his employer,” regardless of whether the employee resigns or is discharged and regardless of whether the employee’s inability was reasonably avoidable or is reasonably remediable by the employee. We see no justifiable basis for transferring the economic misfortune of one innocent party onto a second innocent party over that second party’s objection.

The Commission stated in its order: “Disqualification of the claimant would require that we attribute to the claimant the misconduct of her husband. Such an attribution would require a finding of guilt by association.” We disagree. It is unnecessary to attribute “guilt” or moral culpability to an employee in order to hold him or her not entitled to unemployment compensation benefits. Our holding here simply refuses to place the responsibility for an employee’s sudden inability to meet an essential and reasonable condition of his or her employment agreement on the employer unless the employer both caused the employee’s inability and can be considered morally or legally blameworthy therefor.

An additional consideration here is that if claimant is awarded unemployment compensation benefits, the payments will inure to the benefit of her husband as well, although it was his misconduct that engendered the dispute before us. It is a basic equitable tenet that no one shall be permitted to profit by his own wrong. Ashwood v. Patterson, 49 So.2d 848 (Fla.1951); Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944).

Chapman v. Florida Department of Labor & Employment Security, 415 So.2d 820 (Fla. 2d DCA 1982), upon which appellees rely, is distinguishable. Chapman involved a husband and wife who were employed at an apartment complex. The wife was discharged following a dispute with the employer. When questioned by the employer about his plans concerning his job, the husband replied that he would eventually leave the job, but would remain as long as the employer wanted. The employer then told him to leave the job immediately. This court concluded that the employer’s action amounted to a discharge, contrary to the Commission’s ruling that the husband had voluntarily left the job. While these facts are strikingly similar to those in the instant case, a crucial element is missing in Chapman. There is no indication that the Chap-mans were hired as an inseparable team, as were the Mikells here.

Accordingly, the Commission’s order ruling claimant Mary E. Mikell eligible for unemployment compensation benefits is REVERSED and the cause REMANDED to the Commission with directions to affirm the appeals referee’s ruling that claimant left her employment without good cause attributable to her employer and is therefore disqualified for benefits.

DANAHY, J., and THREADGILL, EDWARD F., Jr., Associate Judge, concur.

      . In fact, her resident director stated at the hearing before the appeals referee that he was willing to give claimant a positive letter of recommendation for submission to future prospective employers.


text:
    SEA WORLD OF FLORIDA and the Hartford Insurance Group, Appellants/Cross-appellees, v. Scott ANDERSON, Appellee/Cross-appellant.
    No. AM-68.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.

      Richard H. Weisberg of Cooper & Riss-man, P.A., Orlando, for appellants/cross-ap-pellees.
    George J. Adler, P.A., Orlando, for appel-lee/ cross-appellant.
   MILLS, Judge.

In this workers’ compensation action, the employer/carrier appeals the inclusion of income from an endorsement contract in claimant’s average weekly wage. The claimant cross-appeals the exclusion of previous tournament winnings in his average weekly wage computation. We affirm the order on both points.

Scott Anderson, claimant, is a professional water skier. He was employed by Sea World to perform in their ski shows. Anderson also had an endorsement contract with Master Craft Boats. He was required to use Master Craft products and to appear in Master Craft sponsored events, dealer seminars, and boat shows. In return, Master Craft provided Anderson with a boat and trailer, skis, and a monthly salary. Additionally, Anderson participated annually in ski tournaments and clinics. In the 1979 tournament season, from June to November, he had won several cash prizes. He had no tournament earnings in the thirteen weeks prior to the accident. While jumping for Sea World on 19 June 1980, Anderson fell and fractured his neck. The only issue at the hearing on his claim was the appropriate average weekly wage.

The employer/carrier contends that the endorsement income should have been excluded as income from professional athletics or self-employment income. We need not determine whether water skiing is professional athletics under the Workers’ Compensation Act for we find Anderson’s activities for Master Craft to be entirely promotional and not athletic. We reason here, as we did in Miles v. Montreal Baseball Club, 379 So.2d 1325 (Fla. 1st DCA 1980), that Anderson’s duty to Master Craft “was not the kind of work or labor particularly associated with [professional water skiing], but was an additional activity imposed upon him by the employer and to the employer’s substantial benefit.” Id. at 1326. The Master Craft contract was employment within the meaning of the act and is appropriately treated as concurrent employment. The conclusion that Anderson performed substantially the same service for both Master Craft and Sea World is supported by the record. The two wages were properly combined to determine average weekly wage. J.J. Murphy and Son, Inc. v. Gibbs, 137 So.2d 553 (Fla.1962).

In his cross-appeal, Anderson claims that his income from ski tournaments and clinics should have been included in his average weekly wage as “seasoned income.” Section 440.14(l)(c), Florida Statutes. He, however, wholly failed to meet the statutory requirement that he “must document prior earnings with W-2 forms, written wage statements, or income tax returns.” For this reason, the deputy commissioner’s order is also affirmed on this point. We note that the possibility of Anderson having actually lost tournament winnings is speculative.

For the above reasons, the order of the deputy commissioner is affirmed and appel-lee/cross-appellant is granted fees of $1,250.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


text:
    William LA GRANDE, Appellant, v. B & L SERVICES, INC., and Florida Insurance Guaranty Association, Appellees.
    No. AM-141.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.
    Robert W. Schlorff, II, Fort Lauderdale, for appellant.
    John M. Kelly of Pyszka & Kessler, Fort Lauderdale, for appellees.
   ORDER ON “MOTION FOR SPECIAL CONSIDERATION”

PER CURIAM.

Appellant has filed a motion which he denominates “Motion for Special Consideration” which seeks the following relief:

(1) allowing Appellant the opportunity to file a Motion for Rehearing in conjunction with his previously filed Motion for Rehearing En Banc and/or, (2) allowing Appellant additional time within which to file his Notice of Appeal to the Florida Supreme Court.

Following this Court’s opinion on the merits rendered on June 9, 1983, 432 So.2d 1364 (Fla.App.), appellant filed a “Motion for Rehearing En Banc.” That motion was not filed in conjunction with a motion for rehearing under Fla.App.R. 9.330(a). Indeed, no such motion for rehearing was filed at all. Fla.App.R. 9.331(c) provides in pertinent part:

Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc hearing solely on the ground that such consideration is necessary to maintain uniformity in the court’s decisions. [e.s.]

A motion for rehearing en banc not filed in conjunction with a Rule 9.330(a) motion for rehearing is a nonallowable motion under Rule 9.331 and is a nullity. State v. Kilpatrick, 420 So.2d 868 (Fla.1982).

Accordingly, appellant’s motion for rehearing en banc was properly dismissed administratively and our mandate issued on July 8, 1983.

Appellant’s present motion seeks the relief described above because, as he says, this Court in a previous unrelated case in which appellant’s counsel was involved denied his motion for rehearing en banc (also not filed in conjunction with a Rule 9.330 motion for rehearing) instead of administratively dismissing it as a nullity. Appellant’s motion is without merit and it is therefore denied.

BOOTH, WIGGINTON and NIMMONS, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Jessie Mae HARRIS, Appellant, v. The LEWIS STATE BANK, Appellee.
    No. AP-230.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.
    Rehearing Denied Aug. 31, 1983.

      Samuel T. Adams, Panama City, for appellant.
    Cynthia S. Tunnicliff of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for ap-pellee.
   ERVIN, Chief Judge.

In this appeal from entry of summary judgment on behalf of appellee, the Lewis State Bank (Bank), appellant, Jessie Mae Harris (Harris), contends that summary judgment was improper because material issues of fact remain unresolved in her action for malicious prosecution and false imprisonment. We agree, as to the count alleging false imprisonment only, and affirm in part and reverse in part.

The record discloses that Harris, a semi-literate, ninety-pound black woman, partially crippled from a bout with polio, received a statement from the Bank in July of 1980, which was addressed to “John Lewis and Jessie Mae Harris”, General Delivery, Woodville, Florida. The statement had been forwarded to Harris at her correct mailing address of General Delivery, Craw-fordville, Florida. Knowing that she did not have any bank account in general and that she did not have one at the Lewis State Bank in particular, Harris went to Tallahassee to find out what the statement meant. Upon arriving at the Bank, Harris told a teller that she had received the statement; that, while she had some relatives in South Florida named “Lewis”, she was not familiar with a “John Lewis”, and that she did not understand why she had received the statement. After checking Harris’ personal identification, but not the signature cards for the account on file at the Bank, the teller informed Harris that some one must have put the money in the bank for her and that she could make withdrawals on the account. Harris returned to the Bank on July 21, 1980 and was allowed to withdraw $500.00 after presenting her social security and voter’s registration cards as identification. To facilitate future withdrawals, Harris was told she should have a picture identification card made and was directed to another bank employee for that purpose. Harris received the Bank identification card approximately one week later by mail. Between July 23, 1980 and September 17, 1980, Harris made four more withdrawals totaling $475.00.

Meanwhile, John Lewis, who had been hospitalized for some time, returned home. On September 22, 1980, he went to the Bank and discovered the deductions from the account. Lewis was told by bank officials that either his daughter, “Jessie Mae Harris” of Miami, had withdrawn the money or someone had forged her name and made unauthorized withdrawals. Lewis’ daughter came to Tallahassee from Miami and verified that she had not made the withdrawals; the Bank reimbursed Lewis for the missing money, and a new account in the name of “John Lewis” in trust for “Jessie Mae Harris” was opened.

John Lewis, believing that someone had forged his daughter’s signature and that the culprit was one of his neighbors who had taken advantage of him while he was in the hospital, contacted the Leon County Sheriff’s Department to report the incident. Detective Franklin was assigned to investigate the report, and, in the course of that investigation, contacted Lewis, the suspected neighbor, and bank officials. At no time was Franklin told that Bank employees had allowed Harris to withdraw the money. Franklin told Bank officials to be on the lookout for anyone attempting to withdraw money from Lewis’ account.

In January of 1981 the Bank sent a statement for the new account to Lewis and that statement was again erroneously forwarded to Harris in Crawfordville. On January 21, 1981, Harris returned to the bank to make a withdrawal. When she identified herself and stated her purpose bank officials were called and the Bank security guard, Manley Woodson (an off-duty Tallahassee police officer), detained Harris until the arrival of Detective Franklin, who arrested Harris, and then took her to the Sheriff’s Department for questioning. Harris there recounted the events surrounding the withdrawals and told Franklin that she believed, based upon information received from Bank employees, that someone had left the money for her in a will. Despite the fact that Detective Franklin later stated he believed Harris honestly thought someone had left her the money, he executed a probable cause affidavit charging Harris with grand theft. She was later tried and acquitted on all counts.

After the trial, Harris filed a complaint against Leon County Sheriff Eddie Boone, alleging false imprisonment and malicious prosecution. No answer to the complaint was made; instead Boone moved for summary judgment. Harris then sought leave to join the Bank as a defendant and to amend her complaint by alleging the same torts against the Bank. The lower court first granted, then denied, Boone’s motion for summary judgment and the action against Boone is still pending. The court also granted Harris’ motions to amend pertaining to the Bank. The Bank, then a party to the action, without filing an answer, moved for summary judgment. Summary judgment was entered in favor of the Bank on October 12,1982, the court finding that there were no genuine issues as to any material facts in dispute and that the Bank’s alleged participation in Harris’ arrest, detention and prosecution consisted of no more than her arrest and brief detention by an “off-duty police officer employed by this Defendant, but acting under his authority as a law enforcement officer .... ”

In addressing the issue before us we return to the well-worn maxim that summary judgment “should not be granted unless the facts are so crystallized that nothing remains but questions of law ... ”, Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810, 817 (Fla. 1st DCA 1976), and if there is “the slightest doubt upon any issue of material fact[,] then ... summary judgment may not be entered.” Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975) (e.s.). Despite the Bank’s failure to frame the issues in this case by not filing an answer, we agree that the lower court properly granted summary judgment as to that count alleging malicious prosecution. In order to recover for this tort, Harris has the burden of alleging and proving a concurrence of the following six elements:

(1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff.

Johnson v. City of Pompano Beach, 406 So.2d 1257, 1258 (Fla. 4th DCA 1981). The absence of any one element is fatal to the action. Clements v. Eastern Airlines, Inc., 183 So.2d 264, 266 (Fla. 3d DCA 1966). The record indicates that John Lewis, upon learning of the unauthorized withdrawals, notified the Leon County Sheriff’s Department, thus setting in motion the investigation which led to Harris’ arrest and prosecution. While Lewis’ initial report to law enforcement officials may have been prompted by the erroneous information he received from the Bank, the relationship between that misinformation and Harris’ later detention, arrest and prosecution is simply too tenuous to ever reach the level of legal causation and malice required in a malicious prosecution action. We therefore affirm that portion of the lower court’s order granting summary judgment as it relates to the charge of malicious prosecution.

We find, however, that the lower court erred in granting summary judgment on the count for false imprisonment. This tort is defined as “... the unlawful restraint of a person against his will, the gist of which action is the unlawful detention of the plaintiff and deprivation of his liberty.” Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 700 (1944). The plaintiff need not show that force was used in the detention, Lewis v. Atlantic Discount Company, 99 So.2d 241, 242 (Fla. 1st DCA 1957), nor that she made an oral protest to demonstrate that the detention was against her will. Rose’s Stores, Inc. v. Mason, 338 So.2d 1323 (Fla. 4th DCA 1976). See also 24 Fla.Jur.2d False Imprisonment § 2 (1981). A plaintiff alleging false imprisonment must show, however, that the restraint was “unreasonable and unwarranted under the circumstances.” Kanner v. First National Bank oí South Miami, 287 So.2d 715, 717 (Fla. 3d DCA 1974) (e.s.). The undisputed facts of this case show that Harris was in fact detained by the Bank’s security guard against her will, thereby satisfying the basic requisites of an action for false imprisonment. The only substantial issue is whether under the circumstances the detention was unreasonable and unwarranted. In order to resolve this issue it is first necessary to determine the status of the security guard at the time of the detention. It is Harris’ position that the guard was acting in his capacity as a Bank employee at the time of the detention. If that is true, then the notice or knowledge of other Bank officials or employees, relating to the circumstances surrounding the initial withdrawals, may be imputed to the security guard. That is because

... a corporation ... acts only through individuals and, of course, in the operation of its business acts through many individuals. But the defendant [corporation] is charged with notice of all transactions had by those through whom it does business. When ample time exists for communication between different employees a failure of one employee to advise another of transactions affecting the corporate business is the fault only of the corporation.

St. Petersburg Coca-Cola Bottling Co. v. Cuccinello, 44 So.2d 670, 676 (Fla.1950) (e.s.). See also 8 Fla.Jur.2d Business Relationships § 330 (1978). Thus, it is argued, if the security guard were acting as a Bank employee at the time of the detention, he would be charged with knowledge of the fact that Bank tellers had told Harris that she was free to withdraw money from Lewis’ account some six months prior to her detention. His imputed knowledge would then have a bearing on whether the detention of Harris was unreasonable and unwarranted under the circumstances. The Bank sought to refute this argument by filing an affidavit wherein the guard stated that in his opinion he had acted, in detaining Harris, in his capacity as a uniformed, off-duty Tallahassee police officer, and not in his capacity as a security guard for the Bank. Harris filed a counter-affidavit, attaching a letter from Chief Melvin Tucker of the Tallahassee Police Department, in which Chief Tucker stated that the Department considered the guard to have been acting “primarily as a Bank employee during this incident.” Thus, the lower court had before it two opposing affidavits on this crucial factual issue. It apparently accepted the representations made by the security guard in granting the Bank’s motion.

A summary judgment proceeding, however, is not intended to be a “trial by affidavit or deposition.” Connell, 306 So.2d at 196. Because the granting of summary judgment is “in derogation of the constitutionally protected right to trial”, the party moving for summary judgment must conclusively show the “non-existence of a genuine issue of material fact.” Holl v. Talcott, 191 So.2d 40, 48, 48 (Fla.1966). The conclusion that issues of material fact remain in dispute in this case, as far as the claim of false imprisonment by the Bank is concerned, is thus inescapable and requires reversal of that portion of the summary judgment relating to the claim of false imprisonment.

Accordingly, this case is AFFIRMED in part, REVERSED in part, and REMANDED to the lower court for further consistent proceedings.

THOMPSON and WIGGINTON, JJ., concur.

      . We note that the issues of fact in any case are initially framed by the pleadings and not by motions, depositions or affidavits. Hart Properties, Inc. v. Slack, 159 So.2d 236, 239 (Fla. 1963). Motions, of course, are not pleadings. H. Trawick, Florida Practice and Procedure § 6-1 at 60 (1979 ed.). Accord White v. Fletcher, 90 So.2d 129 (Fla.1956) (motion for summary judgment is not a pleading). The purpose of the civil rules of procedure, that is to reach the issues of law and fact in “one affirmative and one defensive pleading”, is obviously frustrated'if “operative issues, as distinguished from evidential issues, are allowed to be created outside the pleadings....” Hart Properties, Inc., 159 So.2d at 239. Since no responsive pleading has ever been filed in this case, it is difficult to understand what material issues are in dispute, much less to determine, as did the lower court, that no dispute remains.

      . The Bank’s position that the security guard was not acting as a bank employee at the time of the detention is a form of defense and may not be raised for the first time in an affidavit in support of a motion for summary judgment. See Wiggins v. Portmay Corp., 430 So.2d 541, 542 (Fla. 1st DCA 1983) (affirmative defenses may not be raised in affidavits for summary judgment).

      . Harris alternatively contends that if summary judgment were proper this court should affirm the lower court’s judgment but, at the same time, should remand for purposes of allowing her to amend the complaint so as to allege additional causes of action sounding in fraud and negligence, despite the fact that she has not sought leave below to make such amendment. Because we find summary judgment to be improper, insofar as the claim of false imprisonment is concerned, we need not reach the merits of this final point. We note, however, that the Florida Supreme Court has expressly receded from a line of prior decisions which had approved such procedure. See Dober v. Worrell, 401 So.2d 1322 (Fla.1981) (to allow an appellate court to affirm summary judgment but then to allow the losing party to amend his initial pleadings would render a mockery of the concept of finality in our system of justice). On remand, however, Harris may of course move for leave to amend her complaint to include additional counts. Fla.R.Civ.P. 1.190(a). Leave to amend is within the discretion of the trial court, but is to be freely given where justice requires, with all doubts resolved in favor of amendment unless that privilege has been abused. See Townsend v. Ward, 429 So.2d 404 (Fla. 1st DCA 1983); David Miller Distributing Co., Inc. v. Florida National Bank at Arlington, 342 So.2d 856 (Fla. 1st DCA 1977).