author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Alan Bruce PILCHER, Appellee.
    No. 82-1270.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is a proper appeal by the state from an alleged illegal sentence. Rule 9.140(c)(1)(I). The state says the sentence is illegal because the judge refused to require appellee to serve a minimum of three years. See, § 775.087, Fla.Stat. (1981). The allegations and proof against appellee regard a burglary where he stole a firearm along with other items.

This case is novel and is not governed by Mills v. State, 400 So.2d 516 (Fla. 5th DCA 1981). In Mills the question was whether one is guilty of armed burglary if he unlawfully enters a structure and steals a gun and its projectiles. We said yes because the statute provides that it is a higher form of burglary if one “[i]s armed, or arms himself within such structure.” See, § 810.02(2)(b), Fla.Stat. (1981). The statute is specific in its wording — if one arms himself after committing a burglary but while “within such structure” then he is guilty of the armed burglary as opposed to the lesser burglary.

Here the statute is different. Section 775.087(2) provides in pertinent part:

“Any person who is convicted of: ... burglary ... and who had in his possession a ‘firearm,’ ... shall be sentenced to a minimum ... of 3 calendar years.”

(emphasis added).

In order to fall within the mandatory minimum statute the defendant must have had the gun in his possession when he committed the burglary. A burglary is committed and is complete when the entering upon the premises occurs. If a person enters, or remains in, a structure with the intent to commit an offense then the crime has occurred. See, § 810.02(1), Fla.Stat. (1981); Estevez v. State, 313 So.2d 692 (Fla.1975) (see especially Adkins, C.J., concurring at 695).

The trial court was correct in not imposing the mandatory minimum sentence.

AFFIRMED.

COBB and SHARP, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alejandrina RODRIGUEZ, Appellant, v. ORANGE, SEMINOLE & OSCEOLA TRANSPORTATION AUTHORITY, etc., Appellee.
    No. 83-4.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant.
    Donald L. O’Dell, of Markel, McDonough & O’Neal, Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983).

ORFINGER, C.J., and DAUKSCH and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Leo VOGEL, Appellant/Cross-Appellee, v. George E. ALLEN, Jr., et al., Appellee, and Dan A. Wilcox, Appellee/Cross-Appellant.
    No. 83-275.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Fred S. Disselkoen, Jr., of Duffett, Seps & Akers, Ormond Beach, for appellant/ cross-appellee.
    William L. Townsend, Jr., and Kate L. Walton, of Walton & Townsend, Palatka, for appellee/cross-appellant Wilcox.
    No appearance for appellee Allen.
   SHARP, Judge.

Vogel appeals from an order of the trial court assessing costs and attorney’s fees against him pursuant to section 57.105, Florida Statutes (1981). We reverse certain of the costs because we think they were not proper, and we reverse the attorney’s fee award because we do not think there was a complete absence of justiciable issues of law and fact raised by Vogel’s complaint. See Allen v. Dutton, 384 So.2d 171 (Fla. 5th DCA), cert. denied, 392 So.2d 1373 (Fla.1980).

Vogel filed a complaint against Flagler County and the City of Bunnell for having commenced construction of roads across his property without having an easement or right-of-way. In the alternative, he sued Wilcox for having failed to show in his survey, done for Vogel at the time he purchased the land, a recorded plat subdividing Vogel’s property into lots and streets. He also sued the former landowners for breach of covenants contained in his warranty deed for selling him land which was subject to the platted roads.

The pertinent paragraphs regarding Wilcox allege that Vogel owned certain real estate in the Northeast Quarter of Section 15, Range 30 East, of Flagler County. At the time of the purchase, Vogel engaged Wilcox, a registered Florida land surveyor, to do a survey of the land. A copy of the survey was attached and it showed no platted road or streets.

Vogel alleged that the land he purchased was subject to the platted roads and lots contained in a plat recorded in Map Book 2, page 2, City of Bunnell. A copy of the plat was attached, and it purports to encompass lands in the Northeast Quarter of Section 15. Vogel alleged he relied on the survey in buying the property, and had suffered damages when the City and County commenced working on the platted roads.

Wilcox filed three motions to dismiss the complaint, all of which were granted. Each time, Vogel was allowed to amend his complaint. The final time, the count regarding Wilcox was dismissed with prejudice. The order was not appealed.

The issue in this case, for purposes of reviewing the validity of the attorney’s fee award against Vogel pursuant to section 57.105, is whether the complaint against Wilcox was frivolous, or whether as a matter of law, it stated or came close to stating a cause of action against him. On its face, the complaint against Wilcox states a cause of action. A surveyor who is retained to do a survey of real estate for a client must perform his task in a professional manner.

The general standard of conduct in such cases is that a professional man must exercise that degree of care which a skilled man of his profession, using ordinary prudence, would exercise under like circumstances. Reasonable care or skill is the measure of obligation created by the implied contract of a surgeon, lawyer, or any other professional practitioner.

Clark on Surveying and Boundaries, § 11 (J. Grimes 4th ed. 1976). Vogel alleged sufficient facts to establish Wilcox owed him a duty to survey in a professional, competent manner when he simply alleged he retained Wilcox to do the survey.

Further, Vogel alleged sufficient facts in the complaint to establish that Wilcox breached his professional duty by failing to show on the survey the streets and lot lines contained in a plat of record. The minimum requirements for an adequate survey of land that have been approved by the Florida Society of Professional Land Surveyors and the Florida Land Title Association include the implied duty to show recorded streets and lot lines.

If the survey is of all or any part of a lot or of several lots in a recorded subdivision, all lot numbers (including those of adjoining lots) and block numbers should be shown on the plat. If the survey is of part of a lot or several lots, the dimensions of the excluded part of the lot or lots must be shown on the plat....
All public and private rights of way shown on recorded plats adjoining or crossing the lands surveyed must be located and shown on the plat.... If streets abutting the lands surveyed are not opened physically, a note to this effect should be shown.

The Florida Bar Continuing Legal Education, I Florida Real Property Practice §§ 13.21 — .22 (2d ed. 1971). The complaint alleges Wilcox was a registered Florida land surveyor. That in itself created a duty to show any recorded plat on the survey.

Finally, the injury allegedly suffered by Vogel and its relation to Wilcox’ alleged breach of duty was sufficiently set forth in the complaint to withstand a motion to dismiss, although it could have been more artfully drawn. Vogel alleged he wanted to buy open timber lands, and not property subject to street rights of way. He alleged that he relied on the Wilcox survey in making his purchase, and that he later discovered his land was subject to rights of way of record and was suffering damages because the city or county had begun work on those streets. To the extent the rights of way and loss of timber diminished the value of the land, sufficient injury and proximate cause were alleged here. “If there is an error in the survey, the surveyor is liable for the damages flowing from the er-ror_” Clark, supra, at 16.

Since the complaint against Wilcox stated a cause of action, it was improper to award attorney fees under section 57.105 to the defendant on the ground that it was a frivolous lawsuit without going beyond the pleadings. For example, had the factual basis for the allegations been shown to be specious or sham, fees might have been properly awarded pursuant to section 57.-105. However, that would have required some sort of evidentiary proceeding, such as takes place upon a motion to strike, Florida Rule of Civil Procedure 1.150, or summary judgment. The frivolity vel non of the factual basis for the count against Wilcox was not established by this record. Therefore, we cannot say, based on these pleadings, that there was “a total or absolute lack of a justiciable issue” in this case, or that the action was “so clearly devoid of merit both on the facts and the law as to be completely untenable.” Allen at 175; Angora Enterprises v. Condominium Association of Lakeside Village, Inc., 432 So.2d 792 (Fla. 4th DCA 1983). Therefore, the award of attorney fees must be reversed.

We also find error in the award of costs. Initially, there is an oversight both parties agree should be corrected. The trial court disallowed the cost of Wilcox’ attorney’s travel and long distance telephone calls (a total of $54.39), but inadvertently included them in its award. Therefore, the $95.69 award of costs should be reduced to $41.30. The balance of the disputed costs encompassed xerox copies of pleadings and a city map of Bunnell. We hold that the cost of xerox copies are part of normal office expenses of counsel, and they are not recoverable. Bolton v. Bolton, 412 So.2d 72 (Fla. 2d DCA 1982). The city map of Bunnell may have been relevant demonstrative evidence to prove the invalidity of the recorded plat, and therefore we conclude the cost of the map may be taxed. Loftin v. Anderson, 66 So.2d 470 (Fla.1953); Collins v. Holland, 409 So.2d 1097 (Fla. 3d DCA 1982); 12 Fla. Jur.2d Costs § 25 (1979).

For the reasons stated, we reverse the attorney fees awarded and we modify the cost judgment from $95.69 to $36.35.

REVERSED in part; AFFIRMED in part as modified.

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

      . Cf. Stevenson v. Rutherford, 440 So.2d 28 (Fla. 4th DCA 1983); Greenberg v. Manor Pines Realty Corporation, 414 So.2d 260 (Fla. 4th DCA 1982).

      . See Stevenson; Greenberg.


text:
    Helen B. PALMER, as Personal Representative of the Estate of William Gregory Palmer, Jr., Deceased, Appellant, v. CITY OF DAYTONA BEACH, a municipal corporation, Appellee.
    No. 83-416.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Fred S. Disselkoen, Jr., of Duffett, Seps & Akers, Ormond Beach, for appellant.
    Alfred A. Green, Jr., of Daytona Beach, for appellee.
   SHARP, Judge.

The appellant argues that the trial court erred in dismissing her amended complaint for failure to state a cause of action against the City of Daytona Beach. She alleged that the city’s firemen breached standard firefighting practices in combating a fire in a building on South Beach Street in Daytona Beach, and that their negligence caused the fire to spread to William Palmer’s office, where it destroyed virtually all of his office equipment, library and professional records. We think the complaint states a cause of action.

Steinhardt v. North Bay Village, 132 So.2d 764 (Fla. 3d DCA 1961), cert. discharged, 141 So.2d 737 (Fla.1962), denied liability in a similar situation. But that case relied on the rule that cities are immune from torts committed while carrying out governmental functions. This was in conformity with the weight of authority in this country. See Annot., 84 A.L.R. 514 (1933); Annot., 33 A.L.R. 688 (1924); Annot., 9 A.L.R. 143 (1920). The reason for the rule is expressed in Steinhardt:

a conflagration might cause losses, the payment of which would bankrupt the community. Closely allied with this fear is the realization that the crushing burden of extensive losses can better be distributed through the medium of private insurance.

Steinhardt at 766.

After Steinhardt, Florida waived sovereign immunity for torts committed by cities resulting from acts performed at an operational level. Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979); § 768.28, Fla.Stat. (1981). We have held that the negligent carrying out of city governmental powers and functions at that level may result in tort liability. Sintros v. LaValle, 406 So.2d 483 (Fla. 5th DCA 1981); Jones v. City of Longwood, 404 So.2d 1083 (Fla. 5th DCA 1981), review denied, 412 So.2d 467 (Fla.1982). We cannot distinguish this case from the others on the ground that the city employees here were engaged in discretionary activities. Cf. Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983).

We do recognize that the issue in this case is one of great public importance and we therefore certify to our supreme court the following question:

CAN A CITY BE HELD LIABLE IN TORT TO A PROPERTY OWNER FOR DAMAGES CAUSED BY THE NEGLIGENT ACTS OF THE CITY’S FIREFIGHTERS IN COMBATING A FIRE?

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


text:
    David PAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-451.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Joseph W. DuRocher, Public Defender, and Roger L. Weeden, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., and Dean C. Kow-alchyk, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See Westlake v. State, 440 So.2d 74 (Fla.1983).

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


text:
    Vincent A. CIABATTONI, Appellant, v. STATE of Florida, Appellee.
    No. 83-911.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Appeal dismissed. See Chapin v. State, 427 So.2d 812 (Fla. 5th DCA 1983) and Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

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


author: LARRY G. SMITH, Judge.

text:
    Alam FARZAD, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Florida Board of Medical Examiners, Appellee.
    No. AP-337.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Joseph R. Boyd, Michael L. Berry, Boyd & Smith, Tallahassee, and Melvin A. Rubin, Miami, for appellant.
    Joseph W. Lawrence, II, Chief Atty., Dept, of Professional Regulation, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellant, a licensed physician, appeals an order of the Board of Medical Examiners imposing a reprimand upon her for misconduct. She argues (1) that the Board’s action is barred by the statute of limitations, and laches; (2) that the Board is without jurisdiction, as her alleged misconduct occurred in 1972, three years before she received her Florida license; and, (3) that there is no competent substantial evidence of intentional misconduct on her part since the record establishes that her 1972 action was coerced. We affirm the order on appeal.

Certain background facts must first be related. Appellant and her former husband, Kiumaris Bakshandeh, moved to the United States in 1971 from Iran where they had both studied medicine and received medical degrees. Her sister, Iran Farzad Rafael, a medical doctor in Iran, was also living in the United States. Prior to February, 1972, appellant’s sister took an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG) three times and failed it each time. A passing grade was required before a foreign medical graduate could become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become, licensed in a state.

Appellant’s misconduct, which resulted in this disciplinary proceeding, occurred as follows: At the request of her husband, appellant flew to Chicago in February, 1972, to take the ECFMG examination for her sister. Appellant went to the examination site with the entrance papers she had taken from her sister, forged her sister’s name at the examination site, and took the examination using her sister’s name. Her sister, armed with the passing grade on the examination taken for her by appellant, went on to complete her internship and obtained an Illinois medical license in 1976, specializing in physical medicine and rehabilitation.

Knowledge of appellant’s deception came to the Board in an unusual way. In 1976, appellant and her husband began divorce proceedings. Appellant’s former husband used his knowledge concerning the 1972 incident to coerce appellant into signing a property settlement and custody agreement in the pending divorce proceeding. In early 1978, appellant instituted proceedings in Dade County Circuit Court to set aside the child custody and support provisions contained in the final judgment of dissolution on the grounds of her husband’s coercion and duress. After a lengthy hearing, the circuit court granted appellant’s motion to set aside the agreement and awarded custody of the couple’s minor daughter to appellant. The Third District Court of Appeal affirmed. See, Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). In the concluding paragraph of its decision, the court noted that appellant had taken the ECFMG examination for her sister and observed that the appropriate medical authorities should have knowledge of this fact. On April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court’s opinion to the Board for appropriate action. This was the first notice the Board had concerning the 1972 incident.

On August 18, 1981, the Board filed an administrative complaint charging appellant with violating Section 458.1201(l)(b), (k) and (m), Florida Statutes (1977). Appellant moved to dismiss the administrative complaint on the grounds that it was barred by the statute of limitations and/or laches, which was denied. After a hearing, the hearing officer entered a recommended order finding that the Board had not proved that appellant violated Section 458.-1201(l)(b) by practicing fraud or deceit in obtaining a license to practice medicine for her sister, reasoning that the ECFMG examination was a qualifying examination, not a final examination for licensure. However, the hearing officer found that the Board had sustained its allegation that appellant violated Section 458.1201(l)(m). The hearing officer determined that the facts demonstrated an intentional act of misconduct by appellant which resulted in her sister receiving a benefit to which she was not entitled and that these actions constituted immoral or willful misconduct. The hearing officer recommended that the Board impose a private letter of reprimand. The Board adopted the hearing officer’s recommended order with the exception of the penalty provision.

Appellant’s contentions that this action is barred by the statute of limitations contained in Section 95.11(3)(p), Florida Statutes (1981), and laches, must be decided adversely to her. In Donaldson v. State Department of Health and Rehabilitative Services, 425 So.2d 145, 147 (Fla. 1st DCA 1983), this court ruled that in the absence of specific legislative authority, civil or criminal statutes of limitation are inapplicable to administrative license revocation proceedings. Compare, The Florida Bar v. McCain, 361 So.2d 700 (Fla.1978). We find no legislative intent manifested in Chapter 458 that the limitation provisions of Chapter 95 should be applicable to disciplinary proceedings against a physician.

Although Donaldson indicates that Chapter 95 is not applicable to this administrative proceeding in the absence of contrary legislative intent, appellant urges that our decision in Bishop v. State of Florida, Division of Retirement, 413 So.2d 776 (Fla. 1st DCA 1982), dictates a contrary result. In Bishop, three teachers who had retired in 1973 and 1974 filed a petition for administrative relief in 1980 seeking adjustments in their annuity payments under the Teachers Retirement System, or return of the funds they had contributed to the annuity program under that system. The hearing officer dismissed their petition on the grounds that the statute of limitations had run on their claim and the Division of Retirement adopted this recommendation in its final order. This court disagreed that the statute of limitations had run, concluding instead that the teachers’ claims sounded in contract rather than tort, and that since the contract called for payment in installments, the statute of limitations would run against each installment only from the day it became due. Nevertheless, the court affirmed the final order finding no breach of contract on the state’s part. Bishop involved an action which was an administrative substitute for the common law remedy of a suit for breach of contract, rather than a disciplinary proceeding brought in the name of the sovereign, as here. We hold that this administrative disciplinary proceeding is not barred by Section 95.11(3)(p), Florida Statutes (1981).

Having found that the statute of limitations is not applicable, we are persuaded that the parallel concept, the doctrine of laches, usually utilized in equitable proceedings, is similarly inapplicable to this administrative license revocation proceeding. On this issue we follow the line of authority reflected in the collection of cases discussing the applicability of the statute of limitations or doctrine of laches to a proceeding to revoke a license to practice medicine found in the Annotation, 63 A.L. R.2d 1080 (1959).

Next, we address appellant’s contention that Florida is without jurisdiction to invoke disciplinary measures since the 1972 incident occurred three years before her licensure. In response, appellee relies on Gould v. State, 99 Fla. 662, 127 So. 309 (1930), in which the Supreme Court stated that an attorney could be disbarred for misconduct which occurred prior to his li-censure. See also State ex rel. Turner v. Earle, 295 So.2d 609 (Fla.1975). Similarly, appellee reasons that it may consider acts of misconduct which occurred prior to licen-sure when taking disciplinary action against a licensee.

However, we are constrained to point out that there is a distinction between attorney disbarment proceedings and disciplinary proceedings against a physician under Chapter 458. Disciplinary proceedings against an attorney are within the exclusive jurisdiction of the Florida Supreme Court. Art. V, § 15, Fla. Const. As recognized in Gould v. State, 127 So. at 311, the court has inherent power vested in it to control the conduct of its own affairs and to maintain its own dignity.

On the other hand, disciplinary proceedings against physicians are governed by statute, and the rule is clear that where statutes authorizing revocation of a license to engage in the practice of a profession áre invoked, the provisions of the statutes must be strictly construed and strictly followed, because the statute is penal in nature. State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930).

With this distinction in mind, we are reluctant to extend the rule of Gould v. State to cover the situation presented here. In Gould, the misconduct occurred immediately preceding Gould’s admission to the bar; whereas, in this case, the misconduct occurred three years prior to licensure. We note also that while the Gould court permitted disciplinary action against an attorney based on misconduct which occurred prior to admission to the Bar, other jurisdictions are split on this issue. Annot., 92 A.L.R.3d 807 (1979). However, we need not decide this issue in order to affirm the Board’s order.

In its administrative complaint, the Board alleged that appellant was guilty of the following conduct:

On or about February, 1972, the respondent [appellant] took a medical examination in the State of Illinois on behalf of her sister, Alam [sic] Farzad Rafael [sic], for said sister’s admission to a medical training program as a foreign physician in the State of Illinois. The respondent [appellant], in taking the medical examination used her sister’s name.

For this conduct appellant was charged with violating Section 458.1201(l)(b), (k) and (m). See footnote 2, supra. At the subsequent administrative hearing, appellant’s application for licensure in Florida was introduced into evidence as an exhibit. On her application, appellant was asked, among other things, to give her name in full and to list all other names she had used. In response, appellant listed only her married name. She did not advise the Board that she had ever used her sister’s name, or in particular that she had used her sister’s name on the ECFMG examination.

The hearing officer found that appellant went to the ECFMG examination site with the examination papers she had taken from her sister, forged her sister’s name at the examination site, and took the examination using her sister’s name. This finding of fact is not disputed by appellant. Most significantly, the hearing officer further found that “since the facts relating to the 1972 incident were withheld from the Board of Medical Examiners by the respondent [appellant] at the time of her licensure in 1975, the Board’s decision to issue a license was not made on the basis of the actual facts.” This finding is likewise not disputed by appellant. Accordingly, we find that the Board sustained the charge that appellant practiced fraud or deceit in obtaining a license (her Florida license) to practice medicine contrary to Section 458.-1201(l)(b).

Although the Board’s order taking disciplinary action against appellant is grounded upon Section 458.1201(1)(m) rather than Section 458.1201(1)(b), we find no prejudice to appellant. Appellant was charged with conduct which violated Section 458.1201(1)(b). At the administrative hearing, evidence was introduced which sustained the charges alleged in the administrative complaint. The Board’s misdesig-nation of Section 458.1201(1)(m) as the grounds for disciplinary action against appellant is harmless under the circumstances.

Finally, we have examined the record and exhibits introduced below and we find that the hearing officer’s findings of fact which were adopted by the Board are supported by competent substantial evidence.

The order is affirmed as modified.

WENTWORTH and JOANOS, JJ., concur.

      . Appellant also challenges the Board’s action in increasing the penalty to a public reprimand, rather than a private reprimand as recommended by the hearing officer. The hearing officer found that appellant had violated Section 458.1201(l)(m), Florida Statutes (1977) for which he recommended the lowest penalty, a private reprimand, pursuant to Section 458.-1201(3)(a)3., Florida Statutes (1977). The Board adopted the hearing officer’s findings of fact and conclusions of law, but mistakenly applied Section 458.331(2)(e), Florida Statutes (1979), when it determined that the lowest penalty available was the "issuance of a reprimand.” Subsequent to this appeal, the Board met, conceded this error, and ordered a private reprimand. This point raised by appellant is therefore moot.

      . Section 458.1201(l)(b), (k) and (m) provides: (1) The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of any of the following:
      ******
      (B) Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine; employing a trick or scheme in the practice of medicine, practicing fraud or deceit in obtaining a license to practice medicine; or making a false or deceptive annual registration with the board.
      ******
      (k) Violating a statute or law of this state, any other state, or the United States (without regard to its designation as either felony or misdemeanor), which statute or law relates to the practice of medicine or in part regulates the practice of medicine.
      ******
      (m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice whether committed within or without this state.

      . With respect to the charge that appellant had violated an Illinois statute regulating the practice of medicine contrary to Section 458.-1201(l)(k), the hearing officer noted that the Illinois statute in question, Section 16r of Chapter 91 of the Illinois Medical Practice Act, states:
      Any person who employs fraud or deception in applying for or securing a license under this Act, or in passing any examination therefor; is guilty of a misdemeanor, and upon conviction thereof shall be punished as provided by Section 35.1. (emphasis supplied).
      The hearing officer felt that appellant had not violated the Illinois statute by taking the ECFMG examination for her sister since this examination was merely a qualifying examination and the Illinois statute, being penal in nature, should be strictly construed to mean passing an examination for licensure as a physician.


author: WENTWORTH, Judge. BOOTH, Judge,

text:
    RED CARPET CORPORATION OF PANAMA CITY BEACH, a Florida corporation, Appellant, v. B.K. ROBERTS, Fred W. Baggett, Ronald C. LaFace, Barry Scott Richard, and Daniel J. Wiser, d/b/a Roberts, Baggett, LaFace, Richard & Wiser, a Florida general partnership, Appellees.
    No. AQ-369.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearing Denied Feb. 2, 1984.

      R. Vinson Barrett of Barrett, Bajoczky & Barrett, Tallahassee, for appellant.
    Barry Richard of Roberts, Baggett, La-Face, Richard & Wiser, Tallahassee, for appellees.
   WENTWORTH, Judge.

This is an appeal from an order granting partial final summary judgment in favor of the defendant law firm in two counts of a three count complaint. The two counts affected by the order alleged (1) malicious prosecution, and (2) abuse of process. Because we find that the suit, as it pertains to these two counts, is barred by the principles of estoppel by judgment, we affirm the partial summary judgment.

Appellant is a closely held Florida corporation whose controlling stock owners are Jimmy Hatcher and his wife. In 1976 Hatcher retained John Miller to represent him and Red Carpet in separate reorganization proceedings under Chapter XI of the federal Bankruptcy Act. Sometime after that, the law firm of Roberts, Miller, Bag-gett and LaFace was formed; later Richard and Wiser became members of the firm. In addition to representing Red Carpet and Hatcher in the bankruptcy proceedings, Miller represented Hatcher, his wife and the corporation in various circuit court proceedings. One of these proceedings was a mortgage foreclosure which the Hatchers lost in early 1979. Because of this unsuccessful litigation, Hatcher wrote Miller a “scathing letter” expressing his total dissatisfaction with Miller’s representation and his intent to proceed against Miller with a malpractice suit.

On May 29, 1979, Miller filed petitions in the bankruptcy court to have Hatcher and Red Carpet adjudicated bankrupt and their assets liquidated under Chapter VII. No other creditors joined Miller’s petitions, and two objected to it. The petitions were denied because there was every indication that the reorganization would be successful and there was no evidence to the contrary.

In August 1979 Miller filed a complaint in circuit court against Mr. and Mrs. Hatch-er for attorney’s fees for his successful representation of Mrs. Hatcher in a foreclosure action against her. Miller’s complaint alleged that the Hatchers had agreed to pay him $5,000 for representing Mrs. Hatcher in appeals to the First District Court of Appeal and the Florida Supreme Court. In October 1979 the Hatchers answered, denying that the $5,000 was owed.

At the same time, the Hatchers filed a counterclaim against Miller and the law firm. Counts two and three of the counterclaim were for abuse of process and were identical except that one count was brought in Mr. Hatcher’s name and one was in Mrs. Hatcher’s name. Reduced to their essentials, the allegations in the counterclaim were that Miller had filed the suit for attorney’s fees in retaliation because Mr. Hatch-er had:

(1) written the above referenced “scathing letter”;
(2) filed an ethical grievance against Miller;
(3) objected to Miller s application for fees in the bankruptcy proceedings;
(4) filed a motion for examination of the bankrupt’s transactions with his attorney.

The circuit court entered a judgment in favor of Miller for $2,500 on his claim for attorney’s fees, and summary judgment in favor of Miller and the law firm on the counterclaim. The Hatchers appealed the summary judgment and this court affirmed without a written opinion. Hatcher v. Miller, 392 So.2d 70 (Fla. 1st DCA 1980).

On September 29, 1981, the present suit was brought in Red Carpet’s name against Miller and the law firm. Count two of the complaint is for malicious prosecution and alleges that Miller and the law firm (1) filed the suits for attorney’s fees in the circuit court and bankruptcy court, and (2) filed the application to adjudicate Hatcher and Red Carpet bankrupt in order to

punish and discredit Mr. Hatcher and the RED CARPET CORPORATION, extort Mr. Hatcher and the corporation into releasing them from liability for MILLER’s poor representation, and to prevent Mr. Hatcher and the corporation from suing them.

Count three is for abuse of process and alleges that the previously mentioned actions on the part of the defendants were filed

for the purpose of extorting plaintiff into settling all its claims against defendants.

After extensive discovery, the law firm and Miller filed separate motions for partial summary judgment.

We are here concerned with the law firm’s motions pertaining to counts two and three, which assert entitlement to summary judgment for three reasons. The first assertion was that it could not be vicariously liable for the alleged malicious acts of Miller because such acts were not committed in the ordinary course of the law firm’s business, and were not ratified by the members of the firm. Second, the law firm asserted that appellant Red Carpet was collaterally estopped to assert its claims for malicious prosecution and abuse of process because of the previous litigation between the Hatchers and the law firm. The third asserted justification for summary judgment was that the complaint on its face failed to state a prima facie case of malicious prosecution or abuse of process.

In granting the motion for partial summary judgment, the trial court noted that “[substantially the same issues were presented in a counterclaim in the suit of [Miller v. Hatcher, Case No. 79-2151.]” The court went on to find

that there is no evidence to support Counts II and III and that there is thus no genuine issue as to any material fact with respect to the two partnerships or law firms involved in the cause presently before the Court. Therefore, the Court is of the view that partial final summary judgment should be granted in favor of the two law firms as to Counts II and III.

While a per curiam affirmance, without opinion, is not accorded preceden-tial value as authority in subsequent unrelated cases, it is clear that such a decision becomes law of the case and may bar subsequent litigation between the same parties. State Commission on Ethics v. Sullivan, 430 So.2d 928 (Fla. 1st DCA 1983). Because the injury alleged in the present suit is the same as that alleged in the first suit, and because both suits allege that Miller’s wrongful acts caused the injury, the principles of estoppel by judgment appear to be present here. That is, the alleged wrongful acts of Miller are the issues in controversy in both cases. Since the matters to be actually litigated are the same, the suit is barred even though the second suit purports to include a cause of action not pleaded in the former suit.

There is, however, some difficulty in the application of the doctrine of estop-pel by judgment in that there must be identity of parties in the prior and subsequent litigation. As previously noted, the former suit was brought by Mr. and Mrs. Hatcher personally while the named party plaintiff in the present suit is the Red Carpet Corporation. However, the complaint in the present suit alleges that Miller’s actions resulted in injury to Mr. Hatcher personally as well as to the corporation. Thus, although Mr. Hatcher’s name does not appear in the style of the case, his interest in its outcome is as real as in the prior action. And the identity of parties requirement has been extended to include a person who is technically not a party when that person had an interest in the prior litigation and had the right to participate therein. See McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323 (1935). In this case, the corporate party is entirely controlled by the individuals involved in the prior action, and the events alleged to have resulted in injury to the corporation are the same as those which were or could have been alleged in the former action. In addition, the nature of the alleged injury is the same and, as noted, Mr. Hatcher personally was alleged to be an injured party in both suits. When the totality of circumstances involved in this case is viewed, it becomes clear that the present suit is an attempt to relitigate issues which were settled by the prior litigation. It follows therefore that the plaintiff is estopped by the judgment in the former suit.

While the earlier per curiam decision does not identify the rationale for af-firmance, we are not now precluded from a limited clarification of that ruling, not to “presume to divine the reasoning employed by the previous panel,” Sullivan, supra at 934, but to explain the effect of the estop-pel applied in the present case based on the earlier ruling. We do so now because the focus of the parties’ argument here would indicate that they interpret that decision as based on a determination that a law firm may not be held liable for malicious acts committed by a partner in his professional capacity because such acts are per se outside the scope of the business of law practice. See Jackson v. Jackson, 20 N.C.App. 406, 201 S.E.2d 722 (1974). The record in Hatcher, however, would support an alternative basis for affirmance, finding no abuse of discretion in the trial court’s determination that the Hatchers had failed to demonstrate a prima facie case of malice on the part of Miller and that such a showing was essential to their claim. As we have noted, both that suit and this one were founded on the plaintiff’s allegations that Miller wrongfully used his position as an attorney to punish and discredit them. Also, from the above quoted portion of the judgment in this case, we would conclude that the trial court entered the summary judgment here on the basis of his determination that there was no showing of malice. And our affirmance of the summary judgment does not, accordingly, adopt the rationale of Jackson, supra.

Affirmed.

THOMPSON, J., concurs.

BOOTH, J., concurs in part and dissents in part with opinion.

BOOTH, Judge,

concurring in part and dissenting in part:

I dissent from that portion of the majority opinion which holds that suit is barred by principles of estoppel by judgment, and would reverse the summary judgment below. In other respects, I concur with the majority opinion.

      .It is unclear from this record whether Hatch-er, his wife, Red Carpet or any combination thereof was the party adversely affected by the outcome of the 1979 foreclosure suit.

      . Miller claimed as a creditor because of alleged unpaid attorney’s fees.

      . Miller v. Hatcher, Case No. 79-2151.

      . Department of Legal Affairs v. District Court of Appeal, 5th District, 434 So.2d 310 (Fla.1983).

      . We have not overlooked the fact that the complaint in this case alleges a particular malicious act by Miller which was not alleged in the former suit; i.e., the filing of the petition for adjudication as bankrupts. However, the petition for adjudication was filed (though not disposed of) prior to the filing of Hatcher’s complaint in the former suit. Therefore, that act could have been alleged in the former suit and the underlying wrong alleged with regard to all of Miller’s activities is the same; i.e., that they were done for purposes of intimidation and retribution against Hatcher personally.

      . Id.


text:
    Donnie WARREN and Russell Lee Wilkerson, Appellants, v. STATE of Florida, Appellee.
    Nos. AQ-458, AR-2.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.

      Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   PEARSON, TILLMAN, (Retired), Associate Judge.

These consolidated appeals are by individual defendants who were jointly charged, tried and found guilty on two counts. The first count charged them with burglary, and the second count upon which they were convicted charged them with unlawfully trafficking in certain American Express Travelers Cheques, the property of Gulf Power Employee’s Credit Union, which the defendants knew or should have known to be stolen. They were found guilty by a jury and sentenced, respectively, to five years imprisonment upon the burglary count and to a consecutive fifteen year term for trafficking in stolen property. We find that each defendant is entitled to a reversal of his conviction upon the burglary charge because of an insufficiency of evidence; however, we affirm their convictions for trafficking in stolen property-

Sometime during the night of July 14-15, 1982, a safe, disguised to look like a credenza and containing approximately $24,000 in negotiable American Express Traveler’s Cheques, 200 blank Traveler’s Express money orders, and $400 in cash, was stolen from the Gulf Power Employee's Credit Union. There is no direct evidence as to who actually perpetrated the burglary, nor was the safe ever found.

The State’s primary witness, a prostitute named Linda King White, testified that at 6:30 or 7 a.m. on July 16, 1982, she and a friend met appellant Warren at a hotel in Pensacola in an attempt to buy heroin and cocaine. Counsel for the defendants immediately objected to the anticipated testimony regarding drug usage as being irrelevant to the charges involved, and the jury was excused and a proffer made. At that time, White testified that she and her companion owed money to appellant Warren for some past drug deals and that Warren persuaded her apparently as a quid pro quo to cash some traveler’s checks in his possession. White and Warren then went to various stores in Gulf Breeze, Florida, where White typically purchased inexpensive items with the checks so that she could reap the maximum amount of change. After gaining a sufficient amount of money, the two returned to Warren’s house and ingested more drugs.

White returned to Warren’s house the next afternoon, at which time she saw appellant Wilkerson give to a third person an envelope in which traveler’s checks are typically stored. White, Warren, and this third party, Leon Barnett [who was tried separately and is the subject of a separate appeal to this court], then drove to Mobile, Alabama, where White again attempted to cash traveler’s checks. However, at one store a salesclerk became suspicious and called the police, causing White to be arrested. White also related that prior to the Mobile trip appellants Wilkerson and Warren began laughing at how they had taken the traveler’s checks from one Larry Blocker’s car trunk by distracting him with an argument. The trial court found the sum of this testimony regarding the drug usage to be demonstrative of the relationship of the various parties and indicative of a part of the transaction being tried, and so it was admitted for the jury’s consideration.

Appellants urge as they did before the trial court that White’s testimony regarding the obtaining and ingestion of drugs was irrelevant and highly prejudicial. We disagree and find that the evidence as to the procurement and use of these drugs was relevant to the motive and means used to market the stolen traveler’s checks. See Williams v. State, 110 So.2d 654 (Fla.1959). Moreover, the evidence of drug procurement and consumption was so intertwined with the evidence of trafficking in the stolen checks that the testimony was necessary to an intelligent account of the crime. See Nickels v. State, 90 Fla. 659, 106 So. 479 (1925). This was the basis expressed by the trial judge in denying appellants’ motion, and he will not be reversed in the absence of a showing of an abuse of discretion. See Welty v. State, 402 So.2d 1159 (Fla.1981).

After White had concluded her testimony, the State called Larry Blocker, who testified that in the summer of 1982 he had been employed as a janitor by and worked at the Credit Union. When asked by the prosecutor whether he knew the two defendants, Blocker stated: “l seen them— when I was down in prison — ,” at which time the prosecutor attempted to interrupt any further statement. One of appellants’ attorneys, however, interjected that the witness had not been allowed to complete his answer. Upon being apprised of the content of Blocker’s statement, counsel for appellants moved for a mistrial. After the judge denied the mistrial motion, counsel made no subsequent request for a curative instruction.

While we agree that it was error to allow the admission of such testimony, see Marrero v. State, 343 So.2d 883 (Fla. 2d DCA 1977), we do not find that the error was so egregious as to merit a mistrial. The power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity. See Salvatore v. State, 366 So.2d 745 (Fla. 1978); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977). Such a necessity does not exist in this case. There is no indication that the prosecutor purposely elicited such a statement; indeed, it affirmatively appears that he immediately recognized its impropriety and took action to ameliorate its prejudicial effects. As such, the most this error would seem to demand would be a curative instruction, which as noted was not requested by appellants’ counsel. We therefore conclude that reversible error has not been demonstrated.

The State next called one Angela Gilcrest, another prostitute who had been arrested in Mobile for passing some of the stolen traveler’s checks. The prosecutor displayed a transcript of a statement allegedly made by Gilcrest to the police after her arrest. When she testified that she could not recall being at the police station and that the transcript did not refresh her memory, she was made a court witness upon motion by the prosecution. She repeatedly stated that she did not recall the remarks she had allegedly made to the police. After appropriate objection, the prosecutor read her statement that implicated appellant Warren.

We agree that such a prosecutorial tactic is clearly improper. See Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983), in which the State used an identical tactic against Leon Barnett, a co-defendant tried separately from appellants Wilkerson and Warren. While we do agree that this was error, we nevertheless conclude that under the facts of this case this error was harmless. The prosecution also presented without objection the testimony of Pensacola police officer James Enterkin, who testified that he took a recorded statement from Angela Gilcrest after her arrest. He testified that she had said she was taken to Mobile by appellants Warren and Wilkerson and upon their direction cashed traveler’s checks for them. Further, the content of these improperly admitted statements by Gilcrest was merely cumulative to what the jury had already heard in a much more damaging form from Linda King White. Compare Barnett v. State, supra, where witness Gilcrest’s statements were the principal evidence directly implicating Barnett in the criminal transaction charged. Since this improperly admitted evidence was cumulative only and the totality of the evidence otherwise clearly establishes appellants’ guilt of the offense of unlawfully trafficking in stolen property, we find that the error was harmless. See Oliver v. State, 239 So.2d 637 (Fla. 1st DCA 1970), reversed on other grounds, 250 So.2d 888 (Fla.1971).

As their fourth point, appellants urge that the trial court erred in denying their motions for judgment of acquittal upon the charge of burglary. We agree, for other than the possession of recently stolen property there is nothing in the record to link these appellants to the burglary of the Gulf Power Employee’s Credit Union. See Smith v. State, 194 So.2d 310 (Fla. 1st DCA 1966). The inference from the possession of recently stolen property was reasonably explained by the State’s case-in-chief, where witness Linda King White noted appellants’ joking about how they had taken the traveler’s checks from Larry Blocker’s car trunk by distracting him with an argument. See K.W.U. v. State, 367 So.2d 647 (Fla. 3d DCA 1979). The State’s argument that Blocker was the burglar and that appellants were aiders and abettors in the burglary is but an inference upon an inference and cannot hold. See Busbee v. Quarrier, 172 So.2d 17, 22-23 (Fla. 1st DCA 1965), cert. den., 177 So.2d 474 (Fla.1965).

Appellants’ final point on appeal urges reversal for a new trial because of the claimed cumulative effect of the several putative errors discussed above. We find this argument to be without merit.

Accordingly, the judgments and sentences upon the convictions for unlawfully trafficking in stolen property are AFFIRMED, and the judgments and sentences upon the convictions for burglary are REVERSED.

AFFIRMED in part, REVERSED in part, and REMANDED for correction of appellants’ sentences.

ERVIN, C.J., and JOANOS, J., concur.


author: MILLS, Judge.

text:
    U.C. LEASING, INC., Appellant, v. BARNETT BANK OF WEST FLORIDA, Appellee.
    No. AR-374.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.

      Michael T. Webster, P.A., Shalimar, Stanley M. Huggins and Richard L. Winchester, Jr., of Winchester, Huggins, Charlton, Leake & Brown, Memphis, Tenn., for appellant.
    Robert E. Lee, Fort Walton Beach, for appellee.
   MILLS, Judge.

U.C. Leasing, Inc. (U.C.L.) seeks reversal of a final judgment awarding Barnett Bank of West Florida (Barnett) certain equipment given as collateral by Ft. Walton Manufacturing Corporation (F.W.M.C.) to Barnett under a security agreement between it and Barnett and allegedly leased by U.C.L. to F.W.M.C.

U.C.L. contends that the trial court erred in finding that the leases entered into between it and F.W.M.C. were security agreements and erred in holding that Barnett had an enforceable security interest in the equipment given as collateral by F.W.M.C. We affirm.

On 5 May 1981, J.P. Molin, as President of F.W.M.C., entered into an agreement with U.C.L. entitled “Master Lease of Personal Property.”

On 11 May 1981, Molin, as President of F.W.M.C., executed a promissory note in the amount of $65,000 payable to Barnett. In conjunction therewith, he simultaneously entered into a security agreement with Barnett pledging certain described equipment as security. Barnett filed its U.C.C. financing statement in the public records of Okaloosa County on 12 May 1981 and with the Secretary of State on 15 May 1981.

When F.W.M.C. failed to make the quarterly interest payment due on the note, Barnett brought suit to recover the collateral. U.C. moved to intervene, contending that it was the owner of a substantial portion of the property which Barnett sought to recover. The motion was granted.

Final judgment was entered for Barnett. The trial court ruled that the lease agreement between U.C.L. and F.W.M.C. was not a true lease but was an agreement intended for security which constituted a secured transaction governed by the provisions of Ch. 679, Florida Statutes (1981). See § 671.201(37), Florida Statutes (1981). It was further held that the security interest of Barnett was properly filed and was superior to all other claims.

We adopt the trial court’s final judgment as the decision of this Court and quote it as follows:

FINDINGS OF FACT
From the evidence presented and the stipulation of certain of the parties, the court finds and determines as follows:
2. U.C. Leasing, Inc. by separate correspondence to the defendant Fort Walton Manufacturing Corp., which correspondence has been introduced into evidence in this cause, specifically granted to Fort Walton Manufacturing Corp., an option to purchase the equipment which was the subject of the various lease agreements between the parties; that such option was for a price which was in all instances less than 15% of the initial price of the equipment and in most instances approximated 10% of the initial price; that notwithstanding the wording of such correspondence indicating that such prices were estimates and that the actual option price was to be fair market value, the overall tenor of such correspondence, including its reference to “lease financing” and “purchasing additional equipment” result in determination by this court that the overall understanding and intention of the parties to the transaction was that Fort Walton Manufacturing Corp. be entitled to purchase the equipment upon expiration of the lease term for the price estimated in such correspondence.
3. The option price required to be paid by Fort Walton Manufacturing Corp. upon expiration of the lease term is nominal when compared to the original cost of the equipment and also nominal when compared to the total rentals payable under the agreement between the parties. [76 ALR3d 11, § 8(b)]
4. The initial payments, monthly payments and option prices as set forth in the various lease agreements and correspondence related thereto are the equivalent of the making of a downpayment, monthly installment payments and balloon payments as would have been the case in a financing transaction and the resulting yield to U.C. Leasing, Inc. is readily equated to a current rate of interest and amortization which would correspond to a rate and amortization charged by a financial institution regularly engaged in the financing of equipment. The testimony of U.C. Leasing, Inc. confirms that these payments are determined and related to the cost of funds and interest rates being charged.
5. U.C. Leasing, Inc. is not regularly involved in the manufacture or sale of equipment, but its business instead consists of procuring equipment at the instruction of a broker or buyer who has previously made arrangements for the purchase of such equipment at a specific price; that U.C. Leasing, Inc. does not negotiate nor procure such price nor participate in any way in the determination of price; that in these particular transactions the price of all new equipment was quoted to the defendant Fort Walton Manufacturing Corp. by a broker for purchase without mention of U.C. Leasing, Inc. or lease arrangements, all as evidenced by written quotations introduced in evidence at time of hearing. [76 ALR3d 11, § 10]
6. All new equipment which was the subject of these transactions was shipped direct to the defendant Fort Walton Manufacturing Corp. and U.C. Leasing, Inc. had no contact with such equipment except to make payment for the same to the vendor; that U.C. Leasing, Inc. does not regularly have inventory available for lease nor facilities or personnel to handle such inventory.
7. U.C. Leasing, Inc., on occasion, requires a guaranty of payment from the vendor or from other third parties which reflects security anxiety indicative that the lease is actually intended for security. [76 ALR3d 11, § 11(a) ]
8. The remedies of U.C. Leasing, Inc. set forth in the various lease agreements in the event of default are basically the equivalent of the rights and remedies of a secured party under the provisions of Florida Statutes Chapter 679. [76 ALR3d 11, § 12]
9. The various obligations and entitlements of Fort Walton Manufacturing Corp. under the lease agreements and separate correspondence related thereto are consistent with and indicative of ownership rather than leasing. Such agreements require that Fort Walton Manufacturing Corp. pay taxes, procure insurance, maintain and repair such equipment and bear responsibility for loss and damage and further provide that Fort Walton Manufacturing Corp. shall be entitled to investment tax credit. [76 ALR3d 11, § 15; In Re AAA Machine Co., Inc., 30 B.R. 323 (Bankr.S.D.Fla. 1983).]
10. It appears from the evidence that Fort Walton Manufacturing Corp. had no design other than to obtain the equipment and have someone else finance its cost, while U.C. Leasing, Inc., except for its previously repossessed equipment, had no property to lease and had as its concern only the supplying and financing of such equipment at a profitable earning and to be secure in so doing.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact the court makes the following conclusions of law:
2. The lease agreements under consideration between U.C. Leasing, Inc. and Fort Walton Manufacturing Corp. are not true leases but are instead agreements intended for security and thus constitute secured transaction governed by the provisions of Florida Statutes Chapter 679. Such leases contain option provisions which entitle Fort Walton Manufacturing Corp. to become the owner of the equipment described therein for a nominal consideration.
8. The plaintiff Barnett Bank of West Florida is the holder of a security interest properly filed and perfected which is superior to the claim of all other parties to this cause in and to the following described property.
Barnett Bank of West Florida is entitled to possession of such equipment or, in lieu thereof, the funds which the parties have stipulated now represent such equipment.

The final judgment is affirmed.

THOMPSON and WIGGINTON, JJ., concur.


text:
    David SCHEININGER, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. AU-38.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearing Denied Jan. 25, 1984.
    Albert Datz, Datz, Jacobson & Lembcke, Jacksonville, for appellant.
    Joseph W. Lawrence, II, Chief Atty., Dept, of Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

We find competent substantial evidence in the record to support the Agency’s order suspending Dr. Scheininger’s license based on charges of violating Sections 458.-331(1)(t) and 458.331(1)(q), Florida Statutes, relating to the failure to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances, and the inappropriate prescribing of scheduled controlled substances, respectively.

The record supports the hearing officer’s finding that on two occasions Dr. Schein-inger dispensed phentermine and phendime-trazine, both scheduled controlled substances, to patients under his continuing care for obesity control without first giving them physical examinations as required by the minimum acceptable prevailing community medical standard. The hearing officer’s findings support the Board’s conclusion that Dr. Scheininger routinely dispensed said drugs to weight control patients on a continuing basis without appropriate follow-up care contrary to the best interests of the patients. We find no error in the findings and conclusions in the Agency’s final order. AFFIRMED.

BOOTH, LARRY G.- SMITH and SHIVERS, JJ., concur.


text:
    Leonard J. OSTERINK, Appellant/Cross-Appellee, v. Jack R. MOON, trustee and individually, Barnett Bank of Naples, trustee, Patent Concern, N.V., a foreign corporation, William E. Townsend, Walter R. Rogers, William T. Barrett, Jr., Robert T. Benson, Jr., J. Thad Moss, William H. Buchannan, III, Benny Ruth Goodman, and Walter Rogers, Appellees/Cross-Appellants, v. LEE COUNTY BANK & TRUST COMPANY, as trustee under the will of William Day Hixon, deceased, Mary Jo Hixon, and Flagship National Bank of Miami, as personal representative of the Estate of William Day Hixon, Cross-Appellees.
    No. 82-2209.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1983.
    Louis X. Amato of MacLean, Amato, Ar-len & Anderson, Naples, for appellant/cross-appellee.
    John R. Asbell of Asbell, Hains, Doyle & Pickworth, Naples for appellees/cross-appellants.
    Richard J. Aaron of Richard A. Aaron, P.A., Naples, for cross-appellee Mary Jo Hixon.
    Jackson L. Boughner of Jackson L. Boughner, P.A., and Lynn Hixon-Holley, Naples, for cross-appellee Lee County Bank & Trust Co.
    Zemel and Kaufman, P.A., Miami, for cross-appellee Flagship National Bank of Miami.
   PER CURIAM.

Finding support in the record for the trial court’s ruling that no contract existed between the parties, we affirm that decision. We also affirm the trial court’s requirement of the return to the purchaser of his deposit money, plus expenses, and the denial of interest and attorney’s fees. We find no error in the trial court’s ruling that Hixon was not bound by the trust agreement.

AFFIRMED.

RYDER, A.C.J., and DANAHY and LE-HAN, JJ., concur.


author: OTT, Chief Judge.

text:
    Marilyn F. MASTERS, Appellant, v. Marion Neal MASTERS, Appellee.
    No. 83-868.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1983.

      William L. Lyman of William L. Lyman, P.A., Clearwater, for appellant.
    Wayne 0. Smith, St. Petersburg, for ap-pellee.
   OTT, Chief Judge.

In this postdissolution proceeding, the trial court found that lump sum alimony payable in installments to appellant pursuant to a property settlement agreement was actually the discharge of a debt. We reverse.

The marriage of the parties was dissolved in 1980. The final judgment of dissolution approved and incorporated by reference a settlement agreement previously executed by both parties whereby the ap-pellee agreed to pay as lump sum alimony $154,000 in monthly installments over a fifteen-year period.

In 1982, appellee filed bankruptcy proceedings. He thereafter ceased making the monthly payments and filed a motion seeking to have the payments determined to be the discharge of a debt, presumably in an attempt to have the payments discharged by the bankruptcy court. The lower court found that the provision in question was for the payment of debts owed by appellee to appellant.

We find no evidence that the lump sum alimony was anything other than what it was labeled. Lump sum alimony may be utilized to ensure equitable distribution of property acquired during the marriage. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). Upon entry of the final judgment incorporating the agreement to pay lump sum alimony, appellant had a vested right which was not subject to modification (unless the parties had agreed otherwise). Id.

The decision of the trial court is REVERSED.

HOBSON and LEHAN, JJ., concur.


author: ZEHMER, Judge.

text:
    WALT DISNEY WORLD CO., Appellant, v. Dorothy Conklin HARRISON, Appellee.
    No. AN-430.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.

      Lee G. Schmudde, Lake Buena Vista, for appellant.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   ZEHMER, Judge.

Walt Disney World appeals a worker’s compensation order awarding Dorothy Harrison attendant care benefits for the month immediately following her release from the hospital after a spinal fusion operation. Disney contends that (1) no attendant care benefits were due because claimant actually took care of herself; (2) the amount of benefits awarded was not supported by competent, substantial evidence; and (3) in any event, no remedial care benefits should be payable prior to March 1, 1982, the date of a letter to Disney from claimant’s attending physician indicating the need for such care. We reverse in part on issue 2 and affirm on the remaining issues.

Claimant is a young woman who studied dancing most of her life. She was employed as a dancer at Walt Disney World for several years. She first injured her back during a dance routine on January 11, 1981. After a spinal operation, she went home to recuperate and eventually returned to work. She neither requested nor received any attendant care benefits while recuperating at home on this occasion.

On August 2, 1981, claimant sustained a second back injury when she was dropped by a fellow dancer. As a result of this injury, claimant underwent a low back spinal fusion operation on February 5, 1982, by Dr. Reddick, an orthopedic surgeon approved by Disney to provide medical treatment to claimant. On February 12, 1982, claimant was discharged from the hospital to return home and recuperate. She was instructed to wear a full body cast, which greatly restricted her body movement, for one and one-half months following her discharge from the hospital. The cast, although described as “removable,” was to be worn at all times except while bathing and taking care of personal hygiene. Claimant was not advised that her worker’s compensation benefits would cover necessary attendant care during this period. Claimant normally lived alone in her own home, but she had made arrangements to temporarily reside with a friend who agreed to provide her care and assistance with such things as going to the bathroom, bathing, dressing, eating, cooking, changing her bed, and other necessary daily functions that claimant was unable to perform for herself while in the cast.

Unfortunately, several days after claimant’s arrival at this temporary residence, her friend was injured in an automobile accident and rendered incapable of providing any assistance to claimant. Because of her lack of financial ability, claimant did not hire anyone to provide her with needed care. Instead, claimant did what she could to care for herself. For example, being unable to walk unassisted, she had to slide off the bed or couch onto the floor and crawl to the bathroom. She could not wash herself, change her bed, nor properly feed herself. Claimant’s mother, who lived in the Orlando area and held a full-time job, and another friend of the claimant came over as frequently as they could to provide assistance to claimant. Before claimant fully recovered, however, her mother became seriously ill • and died. Claimant’s emotional and psychological status deteriorated substantially during this period.

In a letter dated January 13, 1982, Dr. Reddick advised Disney that the claimant would be undergoing a back fusion operation. Disney, however, contends that it had no knowledge of claimant’s need for attendant care until it received Dr. Red-dick's letter dated March 1, 1982, wherein he explicitly advised Disney of claimant’s need for such care during the period from February 12 through at least March 11, 1982. Claimant’s attorney filed a claim for attendant care benefits for that entire four-week period, plus costs, interest, penalties, and attorney’s fees. Disney declined to pay, and a hearing was held July 1, 1982. The deputy commissioner entered an order directing Disney to pay attendant care benefits to claimant for the described four-week period, calculated on the basis of four dollars per hour for sixteen hours each day (these being the estimated hours claimant was awake each day).

One is obviously led to inquire how this pitiful state of affairs could have come to pass and who, under the statutory scheme, should be held responsible for this tragic failure of the “self-executing system of worker’s compensation” to provide for this deserving employee. We heard oral argument in this case and have devoted much time and attention to it because of our deep concern that anyone in such a helpless condition and so clearly qualified to receive attendant care should have been left to fend for herself.

Claimant argues, and the deputy agreed, that the award of attendant care benefits should be made on the basis of demonstrated need, without regard to whether such services were actually received and paid for by claimant, relying on Khawam v. Collision Clinics International, Inc., 413 So.2d 827 (Fla. 1st DCA 1982), and Coca-Cola Co. — Foods Division v. Long, 420 So.2d 900 (Fla. 1st DCA 1982).

Disney counters that the deputy erred as a matter of law in awarding any benefits because “the claimant cared for herself and actually never used the services.” Rich International Airways v. Cahvasquis, 416 So.2d 902 (Fla. 1st DCA 1982). Therefore, Disney argues, the award to claimant is a prohibited windfall because the act only reimburses a claimant for the economic loss suffered. Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974).

We find Disney’s “windfall” argument to be absolutely frivolous. There is more than sufficient competent substantial medical and lay evidence in the record to support the deputy’s finding that claimant’s immobility, because of her injuries and the body cast, required that she have nonskilled attendant care during this period. Thatcher Glass Mfg. Co. v. Buyna, 411 So.2d 1029 (Fla. 1st DCA 1982). Although claimant was unfortunately left on her own much of the time, the evidence also establishes that some attendant care and services were provided by claimant’s friends and mother. Claimant, therefore, was entitled to recover attendant care benefits under section 440.13(1), Florida Statutes (1981). Khawam v. Collision Clinics International, supra; Coca-Cola Co.— Foods Division v. Long, supra. The decision in Rich International Airways v. Cahvasquis, supra, is consistent with this result. The Brown case involved insurance benefits provided to the claimant by her employer in addition to worker’s compensation benefits and is inapposite because Disney provided no attendant care whatsoever.

On the other hand, we are unable to agree with the deputy's method for estimating the value of attendant care benefits that should be allowed. As construed in Rich International Airways v. Cahvasquis, supra, section 440.13(1) does not permit recovery of compensation for nursing or attendant care services claimant performed for herself, no matter how great the need for assistance from others may have been. The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the attendant services claimed. Thatcher Glass Mfg. Co. v. Buyna, supra. It was improper for the deputy to allow compensation for attendant care services for every hour he estimated the claimant to have been awake without regard to the actual performance of services by persons other than claimant. Since there was no competent, substantial evidence to support the award on the basis of sixteen hours per day, the amount of that award must be vacated.

Claimant is, however, entitled to receive compensation for attendant care services provided by the friend with whom she temporarily lived and by her mother and other friend who came by from time to time to care for her needs. In the usual case, time spent for shopping, cooking, and performing other ordinary household services by a spouse or other family member is considered gratuitous and cannot form the basis for an award for attendant care services. State Dept, of Agriculture and Consumer Services v. Handy, 413 So.2d 808 (Fla. 1st DCA 1982); B. G. Willis Painting v. Willis, 413 So.2d 1276 (Fla. 1st DCA 1982). But when a spouse or family member provides services that go beyond those which would normally be provided on a gratuitous basis, compensation for nursing or attendant care services may be awarded. Rich International Airways v. Cahvasquis, supra. The gratuitous services contemplated by this general rule are those which would normally be provided by family members who live with the claimant and usually perform like services for the benefit of the household. See, e.g., Silver Springs Sportswear v. Marlin, 389 So.2d 702 (Fla. 1st DCA 1980). It is not the purpose of section 440.13 to burden family members with medically required nursing services and unskilled attendant care when claimant leaves the hospital and returns home.

We do not believe that the care and services provided by claimant’s mother and friends fall within the above rule excluding gratuitous family services, even though such services involved shopping for food, cooking, doing laundry, and similar household services. Claimant ordinarily lived alone in her own home, and both her mother and friends substantially departed from their usual daily routine to visit her and provide special care and services required during claimant’s post-operation recovery. On remand, the deputy commissioner should determine the quantity, quality, and duration of the care and services provided by these individuals, determine the appropriate value thereof, and make a commensurate award for attendant care benefits. The deputy may take additional evidence on this issue if deemed necessary.

Finally, Disney’s contention that benefits should not be allowed prior to Dr. Red-dick’s March 1 letter formally requesting attendant care is without merit. Claimant argues that Disney was informed by Dr. Reddick’s January 13 letter that she was to have a spinal fusion operation; thus Disney either knew of her need for attendant care or knew of the nature of her injury and treatment so that knowledge of her need for attendant care should be imputed to Disney. Disney replies that the January 13 letter was not adequate notice of the prospective need for attendant care services because it did not advise Disney that claimant would be discharged in a body cast. Disney also points to the fact that claimant had previously undergone back surgery and did not request or receive such care on that occasion.

Ordinarily, a claimant should know whether she needs attendant care, and section 440.13(1) explicitly requires that the employer pay the employee for such services, if actually needed, when requested by the employee. Here, claimant made no such request. But unless claimant knew that such services would be provided under the act, how could she be expected to make such a request? We have been troubled by this case because the young claimant was apparently not aware of her right to such care until approximately March 1, some three weeks after her discharge from the hospital on February 12, 1982. Should claimant’s failure to request such care be allowed to excuse the employer from responsibility for such obviously needed benefits from February 12 until the March 1 letter? We do not believe so.

No section of the act explicitly directs an employer to inform a claimant of the employee’s rights, benefits, and obligations under the workers’ compensation act in the manner section 440.185(4) requires the Division to so inform an employee when notice of a claim is received. Nevertheless, an employer must offer or furnish benefits when the employer knows, or should know from facts properly and diligently investigated, that such benefits are due. An employer is under a continuing obligation, once it has knowledge of an employee’s injury, to place needed benefits in the hands of the injured worker. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203, 211 (Fla. 1st DCA 1981); Holiday Care Center v. Scriven, 418 So.2d 322, 327 (Fla. 1st DCA 1982). This obligation cannot be met unless the employer informs the injured worker of the benefits to which he or she is entitled. Section 440.13(1) requires the employer to pay the claimant for attendant care services obtained by her, even though not first requested, if the nature of the injury requires such nursing services and if the employer, having knowledge of the injury, failed to provide such services. City of Leesburg v. Balliet, 413 So.2d 860 (Fla. 1st DCA 1982). The nature of the claimant’s injury and necessary treatment may be such as to impute knowledge of claimant’s need for attendant care services to the employer. Ibid., Silver Springs Sportswear v. Marlin, supra. There was no error in the deputy’s finding that benefits were due from February 12, 1982.

There is also another and equally important ground for sustaining the award of benefits from February 12, 1982. The record does not show that Disney’s alleged failure to receive notice before the March 1 letter actually prejudiced its ability to investigate and determine the validity of claimant’s need for attendant care services. Nor has Disney asserted that it has been so prejudiced by claimant’s understandable failure to request care immediately upon her discharge from the hospital. Disney was notified by the March 1 letter of claimant’s need for care before that need had ended, and prompt investigation by Disney would have readily revealed the sufficiency of the claim. In the absence of demonstrated prejudice to Disney, claimant's attendant care benefits should be paid from February 12,1982, even though not formally requested until March 1. Hughes v. Public Finance Service, Inc., 319 So.2d 18 (Fla.1975).

We vacate the amount of benefits and remand for redetermination of the proper amount due consistent with this opinion. Appellee concedes, and we agree, that no penalties should be assessed on this redetermined amount. In all other respects, the order is affirmed.

AFFIRMED IN PART and REVERSED IN PART.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.


text:
    Vicenta PINA, Appellant, v. GENERAL INSURANCE COMPANY, Appellee.
    No. 83-520.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.
    Hershoff & Levy and Jay M. Levy, Miami, for appellant.
    Joe N. Unger, Kopplow & Flynn, Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant seeks review of a final judgment entered by the Circuit Court in and for Dade County, Florida determining that appellee, General Insurance Company, afforded no coverage under the policy of insurance, issued to appellant Vicenta Pina. Coverage was denied on the basis that appellant had violated section 627.409(1), Florida Statutes (1979), by omitting from the application for insurance the name of her son, Oscar Pina, as a driver in insured’s household who had driven the insured’s vehicle with her consent prior to the date of the application.

It is appellant’s contention that she is entitled to reversal on the grounds that (1) the insurance application was ambiguous and therefore, as a matter of law, the ambiguity had to be resolved against the insurer without any testimony as to the party’s understanding of the ambiguity, (2) the judgment of the trial court is without evi-dentiary support and the record contains no evidence as to the appellant’s understanding of the ambiguous phrase in the appellee’s insurance application, and (3) the trial court erred in failing to grant the appellant a jury trial on the issues.

We have carefully considered the points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. See: McTeague v. Treibits, 388 So.2d 309 (Fla. 4th DCA 1980); Safeco Insurance Co. v. Rochow, 384 So.2d 163 (Fla. 5th DCA 1980); General Insurance Co. of America v. Sentry Indemnity Co., 384 So.2d 1305 (Fla. 5th DCA), pet. for rev. dismissed, 389 So.2d 1110 (Fla.1980); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979); New York Life Insurance Co. v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979); Zero Food Storage, Inc. v. Henderson’s Sea Food, Inc., 121 So.2d 462 (Fla. 3d DCA 1960); section 627.409(1), Florida Statutes (Supp.1982).

Therefore the judgment appealed is affirmed.

Affirmed.


text:
    Luis GARCIA and Fernando Quincutti, Appellants, v. The STATE of Florida, Appellee.
    Nos. 83-958, 83-959.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.
    Richard Hersch, Miami, for appellants. Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Graham v. State, 362 So.2d 924 (Fla.1978).


author: BASKIN, Judge.

text:
    Isadore H. MAGRAM and Magram Motor Cars f/k/a Charlie Kolb’s Auto City, Ltd., Inc., Petitioners, v. Blair A. RAFFEL and Allan R. Knight, Respondents.
    No. 83-2548.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.
    Worley & Harnage and Henry Harnage, Miami, for petitioners.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for respondents.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

In this petition for writ of common law certiorari, petitioners seek review of the trial court’s order denying them a jury trial on the liability issues contained in count IV of their complaint. We grant the petition.

In June, 1981, petitioners filed their second amended complaint alleging three counts of legal malpractice against respondents. Petitioners failed to demand a jury trial as to any of these counts within the time required by Florida Rule of Civil Procedure 1.430(b). They did, however, file a subsequent motion requesting leave to amend their second amended complaint to include a demand for jury trial pursuant to Florida Rule of Civil Procedure 1.430(d). In response, the trial court ordered a non-jury trial on the liability issues in the three counts and a jury trial, if required, on the issue of damages. Following some initial discovery, petitioners filed a motion to amend the second amended complaint to add count IV, alleging the respondent-attorneys’ breach of escrow agency relationship as to petitioner Magram. Petitioners made a timely demand for a jury trial as to count IV. The trial court granted petitioners’ motion to add count IV and deemed it filed on the date of the order. The court ruled that as to count IV, the liability issues would be tried non-jury but damages would be tried by a jury. Although petitioners renewed their demand for jury trial as to all issues in count IV, the trial court again denied petitioners’ request. Petition for writ of certiorari ensued.

As a general principle of review, common law certiorari is appropriate in exceptional cases, such as those in which “the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate....” Kauffman v. King, 89 So.2d 24, 26 (Fla.1956). This court has held that certiorari is the appropriate remedy to address the present issue involving an interlocutory order denying the right to jury trial. Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).

In ordering a non-jury trial for the liability issues in petitioners’ amended count IV, the trial court departed from the essential requirements of law. The demand for jury trial was proper and timely under Florida Rule of Civil Procedure 1.430(b), and the issues contained in amended count IV are triable to a jury as a matter of right. See Biadi v. Lawyers Title Insurance Corp., 374 So.2d 30 (Fla. 3d DCA 1979).

Furthermore, although the petitioners have waived their right to a jury trial on the first three counts by failing to make a timely demand under Florida Rule of Civil Procedure 1.430(b), the jury demand was timely on the fourth count. We agree with the court’s opinion in Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971), that where one is entitled to a jury trial on issues sufficiently similar or related to the issues not triable to a jury, and where a determination by the first factfinder would necessarily bind the later factfinder, such issues may not be tried non-jury by the court because to do so would deprive the litigant of his constitutional right to trial by jury. See also Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Sarasota-Manatee Airport Authority v. Aiderman, 238 So.2d 678 (Fla. 2d DCA 1970).

Order quashed.


text:
    KINGSWAY CONDOMINIUM APTS. NO. 1, INC., A Florida corporation, et al., Appellants, v. KINGSWAY BUILDERS, INC., a Florida corporation, Appellee.
    No. 82-2063.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Edward R. Rumin and Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellants.
    Martin G. Brooks, of Martin G. Brooks, P.A., Hollywood, for appellee.
   PER CURIAM.

Our review of the affidavits and depositions filed in this cause compels the conclusion that appellee, plaintiff in the trial court, failed to negate the existence of genuine issues of material fact. Consequently, the summary final judgment entered below is reversed. See Landers v. Milton, 370 So.2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

REVERSED AND REMANDED for further proceedings.

DOWNEY, HURLEY and DELL, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Dominic STABILE and Lucas Mesa, Appellees.
    No. 82-2137.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Sharon B. Jacobs of Chaykin, Karlan & Jacobs, Coral Gables, for appellees.
   ANSTEAD, Chief Judge.

This is an appeal from the dismissal with prejudice of anti-trust charges filed by the state against appellees, Dominic Stabile and Lucas Mesa.

Stabile and Mesa were initially charged with violations of section 542.05, Florida Statutes (1979) on September 30, 1980. On October 1, 1980, chapter 542 was substantially amended. The amendments added, inter alia, three new procedural requirements: defendants must be charged by indictment, section 542.27(1); any state attorney instituting proceedings under this section must obtain the written permission of the Attorney General, section 542.27(1); and the commencement of trial for civil penalties shall bar a subsequent criminal prosecution for the same acts and vice-ver-sa, section 542.21(3).

Stabile and Mesa moved the trial court to dismiss the charges because the state’s action was not by indictment, no permission had been secured from the Attorney General and the state had filed a civil action against these defendants at the same time the criminal proceedings were initiated. Implicit to this motion was the claim that the new statutory procedures applied to the appellees even though they were charged before the amendment became effective. This motion was granted, and the charges were dismissed without prejudice to the state to refile. The grounds for the dismissal were not specified. The state appealed to this court, arguing only that the trial court erred in ruling that the new procedures applied. This court affirmed without opinion.

The state then brought identical charges against Stabile and Mesa by indictment after securing written authorization from the Attorney General to proceed. Stabile and Mesa again moved to dismiss the charges. This motion claimed that the earlier dismissal and this court’s affirmance became law of the case, foreclosing reconsideration of any of the grounds previously presented to the trial court, including the claim that the initiation of civil proceedings now barred a criminal prosecution. The appel-lees also claimed that the charging document was deficient because it did not specifically allege that the Attorney General had given the state attorney permission to proceed; and that, regardless of the res judicata effects of the prior dismissal, section 542.21(3) prevented the filing of criminal charges since civil charges had also been filed by the state. The trial court found for the appellees on each of these issues and dismissed the criminal charges.

We construe the prior order of dismissal without prejudice to constitute, in essence, a ruling by the trial court that the new statute applied and that the state’s pleadings did not comply with the provisions thereof. It is undisputed that the prior charges were initiated by information and that the state made no attempt to demonstrate that it had secured the Attorney General’s permission to proceed. These omissions could have been, and in fact were, cured by the state in the subsequent proceedings, therefore giving effect to the “without prejudice” holding of the trial court. Furthermore, if the trial court had based its prior dismissal on the fact that the trial of civil proceedings had already commenced such dismissal would necessarily have been with prejudice since the statute bars a criminal action under such circumstances. See § 542.21(3).

The law of the case precludes re-litigation of all issues necessarily ruled upon by the court, as well as of all issues upon which appeal could have been taken, but which were not appealed. Alford v. Summerlin, 423 So.2d 482 (Fla. 1st DCA 1982); Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976); Marine Midland Bank Central v. Cote, 384 So.2d 658 (Fla. 5th DCA 1980). A per curiam affirmance does establish the law of the case. State Commission on Ethics v. Sullivan, 430 So.2d 928 (Fla. 1st DCA 1983). In this instance, however, our affirmance without opinion left the parties in the same posture they were in immediately after the dismissal. The charges stood dismissed, but without prejudice to the state to refile. We conclude that since the original dismissal was without prejudice, that dismissal and its affirmance did not prevent the state from refiling so long as the new charges were filed in conformance with the amended statute.

The trial court also ruled that the second charging document was deficient because it did not allege that the state attorney had the permission of the Attorney General to commence this prosecution. Stabile and Mesa candidly concede that this permission had been given but contend that this permission must be alleged in the charging document. We cannot agree. The statute does not explicitly require that this permission be alleged in the indictment. Furthermore, this situation is not analogous to situations in which an essential element of the crime is missing from an indictment, for in this case the appellees will not be prejudiced at trial by being faced with new information which they must defend against. We construe the statute as not requiring pleading of such permission.

Finally, the appellees claim that section 542.21(3)’s prohibition on criminal prosecutions after the commencement of a civil trial based on the same acts bars criminal prosecution here. While the appellees admit that the trial in the civil proceedings has not commenced, they claim that the statute must be interpreted to bar prosecution after a civil suit is filed. However, the section refers to the “commencement of trial” rather than the commencement of a civil action. Sections 542.21(4), 542.26, and 542.29 refer to an action being “commenced.” Section 542.27(1) mentions “commencement and trial of ... prosecutions _” Thus, the legislature used “commencement” in conjunction with both action and trial. This indicates that “commencement” is intended to mean “beginning” and that the “commencement of trial” was deliberately chosen as the relevant time for section 542.21(3) rather than commencement of the action. Since the legislature differentiated between the commencement of a prosecution and its trial in section 542.27(1), it seems clear that the phrase “commencement of trial” means just what it says rather than commencement of legal proceedings as appellees contend.

The appellees also object to this interpretation because they claim that their rights against self-incrimination will be violated. In a criminal proceeding, a defendant may refuse to testify at all, but in a civil proceeding a defendant’s refusal to testify is limited and its invocation may carry with it prejudicial consequences to the defendant’s ability to defend the action. Delisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982).

We do not believe the statute is violative of a defendant’s constitutional rights any more than those rights would be affected when both civil and criminal cases may be brought arising out of the same alleged misconduct. For instance, we know of no constitutional bar to the prosecution of both civil and criminal proceedings when a defendant’s alleged wrongful conduct results in personal injuries to another. In that case the defendant’s dilemma would be no less burdensome than the appellees’ alleged dilemma here. Thus, in our view the appellees’ self-incrimination argument is not well founded.

Accordingly, for the reasons set out above, we reverse the order of the trial court and remand for further proceedings in accord herewith.

HERSEY and DELL, JJ., concur.


text:
    John A. KAMPFF, Appellant, v. STATE of Florida, Appellee.
    No. 82-2328.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court denied appellant’s motion for post conviction relief which alleged ineffective assistance of counsel in defendant’s first degree murder conviction. The court ruled that this issue had been previously raised on direct appeal to the Supreme Court, thus barring appellant from again presenting it by way of collateral attack. We reverse.

As a general rule, a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal. Williams v. State, 438 So.2d 781 (Fla.1983). The fact that appellant erroneously attempted to raise this claim on direct appeal to the Supreme Court is immaterial here. The Supreme Court affirmed appellant’s conviction but reversed his death sentence. Kampff v. State, 371 So.2d 1007 (Fla.1979). The Court’s opinion does not comment specifically on the ineffective counsel argument, and the overall holding that the evidence was sufficient to support the jury’s verdict cannot be viewed as an adjudication on the merits of appellant’s claim of ineffective counsel. We remand the matter to the trial court for an evidentiary hearing on appellant’s motion filed pursuant to Rule of Criminal Procedure 3.850.

REVERSED AND REMANDED.

BERANEK, HERSEY and DELL, JJ., concur.