author: PER CURIAM. HUBBART, Judge

text:
    Maxwell DAUER and Reva B. Dauer, Appellants, v. Leonard FREED, Appellee. Leonard FREED, Appellant, v. Roger DAUER and Edward Dauer, Appellees.
    Nos. 82-2090, 82-2091 and 82-2305.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.

      Holland & Knight and Julian Clarkson, Tallahassee, Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff and Albert G. Caruana, Greene & Cooper and Robyn Greene, Miami, for the Dauers.
    Bailey & Dawes and Sara Soto, Daniels & Hicks and Sam Daniels, Miami, Sibley, Giblin, Levenson & Glaser, Miami Beach, for Freed.
    Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.
   ON MOTIONS TO DISMISS

PER CURIAM.

Case Nos. 82-2090 and 82-2091, consolidated here, are appeals from two interlocutory orders entered by the trial court after a four-and-one-half month bifurcated jury trial on the liability issues only in a multifaceted action arising from a business dispute between the parties. Freed, the plaintiff/appellee, has moved to dismiss these appeals on the ground that this court has no jurisdiction to review these interlocutory orders under Article V, Section 4(b)(1) of the Florida Constitution and Florida Rule of Appellate Procedure 9.130(a). We agree with Freed’s contention and dismiss these appeals on the ground urged by him.

Case No. 82-2305 is an appeal and cross-appeal from a judgment entered in this same cause, after a non-jury trial, in favor of two defendants on all claims brought against them. Freed, in this case the plaintiff/appellant, has moved to dismiss the defendants’ cross-appeal on the ground that they are not aggrieved by this judgment. We agree as to the defendants Maxwell Dauer, Reva B. Dauer and the corporate defendants herein and dismiss the cross-appeal taken by these defendants; we disagree as to the defendants Edward Dauer and Roger Dauer and deny the motion to dismiss the cross-appeal as to these defendants.

The relevant facts are undisputed. On November 21, 1978, the plaintiff Leonard Freed filed an amended complaint below against the defendants Maxwell Dauer, Reva B. Dauer, Edward Dauer, Roger Dauer and three corporate entities. The complaint pled causes of action sounding in breach of contract, fraud, breach of fiduciary duty, civil conspiracy, constructive trust and unjust enrichment. The defendants filed answers denying liability and setting up certain affirmative defenses. Because of the extreme complexity of the factual issues in this case, the trial court entered an order bifurcating the liability issues in the case for a separate trial, with the damage issues reserved for a second trial if necessary.

In February 1982, after a prior abortive mistrial, the case proceeded to jury trial on the liability issues of all claims, except for the equitable claims of constructive trust and unjust enrichment, which were tried simultaneously (as to liability) to the court. At the close of all the evidence after four and one-half months of testimony, the trial court submitted to the jury the liability issues on the claims of breach of contract, fraud, and breach of fiduciary duty against the defendant Maxwell Dauer and the liability issues on the claim of civil conspiracy against the defendants Maxwell Dauer and Reva B. Dauer. The trial court directed a verdict in favor of the defendants Roger Dauer and Edward Dauer on the civil conspiracy claim; all other legal claims were apparently dismissed against the defendants Roger Dauer and Edward Dauer, as such claims were not submitted to the jury. On June 21, 1982, the jury returned an extensive special interrogatory verdict finding for the plaintiff Freed on the liability issues as to all claims submitted to it. The equitable claims of constructive trust and unjust enrichment against all defendants, as to liability, were apparently taken under advisement by the trial court at the close of all the evidence.

On June 29, 1982, the defendants Maxwell Dauer and Reva B. Dauer filed a motion to vacate the jury verdicts and to enter judgment for the defendants in accord with their prior motions for directed verdict or, in the alternative, to order a new trial. On July 1, 1982, all defendants in the cause filed a motion to enter a final judgment in favor of all defendants or, in the alternative, a final order of involuntary dismissal with respect to the equitable claims of constructive trust and unjust enrichment. On September 7, 1982, the trial court, after a full hearing, entered an order which (1) denied the defense motion to vacate the jury verdicts and to enter a judgment for the defendants in accord with the prior defense motions for directed verdict or, in the alternative, to order a new trial; (2) granted the motion for final judgment in favor of the defendants Edward Dauer and Roger Dauer as to the equitable claims of constructive trust and unjust enrichment; (3) granted the motion for final judgment or involuntary dismissal on the unjust enrichment claim and denied the same motion on the constructive trust claim, as to the remaining defendants. On September 22, 1982, the trial court entered a final judgment in the cause in favor of the defendants Edward Dauer and Roger Dauer on all claims in the lawsuit, legal and equitable, in accord with the above order and the court’s prior order directing a verdict at trial for these defendants.

On September 17, 1982, the defendants Maxwell Dauer and Reva B. Dauer filed a motion requesting the trial court to enter an order determining liability in accord with the prior special interrogatory jury verdict for the stated purpose of allowing the defendants Maxwell Dauer and Reva B. Dauer to take an interlocutory appeal to this court from a non-final order which “determines the issue of liability in favor of a party seeking affirmative relief” under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).' On September 29, 1982, the trial court, after a full hearing, entered ah order which, in effect, grants the above defense motion and states as follows:

“THIS CAUSE was heard by a jury which returned a verdict finding Defendants MAXWELL DAUER and REVA DAUER liable for compensatory damages.
“After verdict, Defendants filed a motion to vacate verdicts; to enter judgment for Defendants and for new trial. The Court heard argument of counsel and is otherwise fully advised in the premises. It is hereby
“ORDERED AND ADJUDGED as follows:
“1. Defendants’ motion to enter order determining liability is granted.
“2. The court adopts the jury’s verdict. Pursuant to the jury’s verdict and the order denying post-trial motions dated September 7, 1982, Defendants MAXWELL DAUER and REVA DAUER are determined to be liable for compensatory damages to Plaintiff LEONARD FREED.”

The defendants Maxwell Dauer and Reva B. Dauer filed timely notices of appeal below seeking review of the September 7, 1982 (DCA Case No. 82-2090) and September 29, 1982 (DCA Case No. 82-2091) non-final orders. The plaintiff Leonard Freed filed a timely notice of appeal below seeking review of the September 22, 1983, final judgment in favor of the defendants Edward Dauer and Roger Dauer (DCA Case No. 82-2305). All defendants in this cause, including the corporate defendants, filed a notice of cross-appeal seeking review of the same final judgment.

We turn first to a consideration of the motion to dismiss the appeal taken by the defendants Maxwell Dauer and Reva B. Dauer in Case No. 82-2090 from the interlocutory order of the trial court denying defense motions for a directed verdict or new trial (the September 7,1982, order). It is apodictic that such order does not determine the issue of liability in favor of Freed (the party seeking affirmative relief) and is not appealable under Florida Rule of Appellate Procedure 9.130(a). Cf. Seigle v. Barry, 422 So.2d 63 (Fla. 4th DCA 1982) (order denying defendant’s motion to dismiss not appealable); Lliteras v. Lliteras, 413 So.2d 859 (Fla. 4th DCA 1982) (same); Habelow v. Travelers Insurance Co., 389 So.2d 218 (Fla. 5th DCA 1980) (same); Peavy v. Parrish, 385 So.2d 1034 (Fla. 4th DCA 1980) (same); Vaneo Construction, Inc. v. Nucor Corporation, 378 So.2d 116 (Fla. 5th DCA 1980) (order denying defendant’s motion for summary judgment not appealable); State Farm Mutual Automobile Insurance Company v. Morris, 370 So.2d 828 (Fla. 1st DCA 1979) (same).

We next consider Freed’s motion to dismiss the appeal taken by the defendants Maxwell Dauer and Reva B. Dauer in Case No. 82-2091 from the interlocutory order of the trial court determining liability in accord with the prior jury verdict (the September 29, 1982, order). The order in question, although purporting to be an order determining liability in favor of the party seeking affirmative relief is, in fact, even as the order of September 7, 1982, nothing more than an order which, in another form, again denies the defendants’ motion for new trial and motion to enter judgment for the defendant in accordance with a prior motion for a directed verdict. Orders which deny a defendant’s motion for new trial and motion for judgment notwithstanding the verdict, which, as we have said, are not appealable, are not made ap-pealable simply because the trial court, as here, explicitly adopts and lets stand the jury verdict, a ruling which is always and necessarily implicit in the very denial of the motions. Thus, since an adverse jury verdict is itself not appealable, Ballard v. Hopkins, 142 So.2d 738 (Fla. 2d DCA 1962), the right to appeal an order the effect of which is to leave the verdict undisturbed must await the entry of a final judgment entered pursuant to the verdict.

Finally, turning to Case No. 82-2305, we consider Freed’s motion to dismiss the cross-appeal taken by all defendants from the final judgment entered in favor of the defendants Edward Dauer and Roger Dauer on all claims filed against said defendants. We have no difficulty in concluding that a cross-appeal by the appellees Edward Dauer and Roger Dauer lies as to the final judgment appealed by the plaintiff Freed herein, even though that judgment is wholly in favor of these appellees. Once Freed invoked our appellate jurisdiction by appealing from a final judgment entered against him and in favor of Edward Dauer and Roger Dauer, their cross-appeal became plainly authorized by Florida Rule of Appellate Procedure 9.110(g). See State v. Williams, 444 So.2d 434 (Fla. 3d DCA 1983). In such cross-appeal, these appel-lees may assert as error any adverse interlocutory orders which preceded the entry of the said final judgment. Fla.R.App.P. 9.110(h). The motion to dismiss the cross-appeal as to the appellees Edward Dauer and Roger Dauer must therefore be denied.

No other party, however, is privileged to file a cross-appeal in this cause other than the above appellees because no other party is an appellee on this particular appeal. The final judgment being appealed ended the litigation below between the plaintiff Freed and the defendants Edward Dauer and Roger Dauer, but the litigation between the plaintiff Freed and the defendants Maxwell Dauer, Reva B. Dauer and the three corporate defendants remains pending. Therefore, only those defendants, Edward Dauer and Roger Dauer, who are parties to that portion of the lawsuit which has been brought to an end by the final judgment being appealed are appel-lees herein. The defendants Maxwell Dauer, Reva B. Dauer and the three corporate defendants are not parties to that portion of the lawsuit which has been brought to an end by the final judgment under review and accordingly are not appellees upon this appeal. The motion to dismiss the cross-appeal as to the defendants Maxwell Dauer, Reva B. Dauer and the three corporate defendants must therefore be granted as they are not proper appellees in this appeal.

In summary, the motions to dismiss the appeal from the interlocutory order denying a post (liability) trial motion for directed verdict or new trial (Case No. 82-2090) and the interlocutory order determining liability in accord with the prior jury verdict herein (Case No. 82-2091) are granted for lack of jurisdiction to entertain said appeal, and said appeals are hereby dismissed. The motion to dismiss the cross-appeal filed from the final judgment appealed by the plaintiff Freed (which judgment ends the lawsuit below between the said plaintiff and the defendants Edward Dauer and Roger Dauer but not the other defendants) (Case No. 82-2305) is granted as to the defendants Maxwell Dauer, Reva B. Dauer and the three corporate defendants herein because said defendants are not proper ap-pellees in this appeal. The said motion is denied, however, as to the proper appellees herein, Edward Dauer and Roger Dauer.

It is so ordered.

HUBBART, Judge

(concurring).

I concur entirely with the results reached by the court on the motions to dismiss filed herein, but find the legal reasoning process employed to justify these results somewhat incomplete. Because of the importance of the issues raised by these motions to the law of this state, I write separately to spell out in more detail why this court has no jurisdiction to entertain the interlocutory appeals taken herein, and why the cross-appeal filed herein is proper in part, and improper in part, under the Florida Rules of Appellate Procedure.

I

Turning to the interlocutory appeals filed in this case, we deal here with appeals taken from two non-final orders entered below. The first is an order which denies defense motions for a directed verdict or new trial on the issue of liability, after a jury verdict for the plaintiff on liability had been returned, concluding the first phase of a bifurcated trial below [the September 7, 1982 order]. The second is an order which “determines” liability in favor of the plaintiff on liability in accord with the aforesaid, previously entered jury verdict [the September 29, 1982 order]. It is urged that these interlocutory orders are appeala-ble under Fla.R.App.P. 9.130(a)(3)(C)(iv) in that they “determine the issue of liability in favor of the party seeking affirmative relief.” We are therefore presented with the issue of whether these orders fall within the purview of this aforesaid rule and are therefore appealable. By today’s decision, the court concludes, and I agree, that these orders are not properly appealable under Fla.R.App.P. 9.130(a)(3)(C)(iv).

Article V, Section 4(b)(1), of the Florida Constitution authorizes the Florida Supreme Court to adopt rules which may invest a district court of appeal with jurisdiction to review stated interlocutory orders of trial courts. This constitutional provision states in relevant part:

“District courts of appeal ... may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.”

Art. V, Sec. 4(b)(1), Fla. Const.

The Florida Supreme Court, in turn, has implemented the above constitutional provision by adopting Fla.R.App.P. 9.130(a), which provides for the review of a number of interlocutory trial orders. The underlying purpose behind this rule is to provide immediate appellate review for those interlocutory orders which are deemed to be “the most urgent interlocutory orders.” Committee note, para. 2, Fla.R.App.P. 9.130(a) (1977 Rev.). To minimize the interruption of trial court proceedings caused by such interlocutory appeals, an expedited method of review is provided for by the rule which substitutes an appendix in lieu of a record, Fla.R.App.P. 9.130(d), (e), 9.220, and requires the appellant’s brief to be filed within fifteen (15) days of the filing of the notice of appeal. Fla.R.App.P. 9.130(e). Plainly, appeals after a full trial with a full-blown trial record are not contemplated by any provision of the interlocutory appeal rule and none are provided for therein. Fla.R.App.P. 9.130(a).

One of the urgent interlocutory orders made appealable under this rule is an order which “determines the issue of liability in favor of a party seeking affirmative relief.” Fla.R.App.P. 9.130(a)(3)(C)(iv). It is this provision of the interlocutory appeal rule which the appellants Maxwell Dauer and Reva B. Dauer contend supports their appeals herein. The underlying purpose behind this rule, as I see it, is to afford a party who is being sued a right to an immediate appeal from a court order which imposes liability upon him without a trial. It is felt, I think, that to deny such a defendant his constitutional right to a trial and impose liability upon him by court order is a serious and far-reaching judicial act which in all fairness should be made immediately appealable. Florida cases have, accordingly, held that under the above rule a defendant has the right to appeal an adverse summary judgment on liability which has been entered against him without a trial, Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Kraver, 364 So.2d 1259 (Fla. 3d DCA 1978); York Insurance Co. v. Becker, 364 So.2d 858 (Fla. 2d DCA 1978), or an order denying a defense motion to vacate a clerk’s default which has been entered against him without a trial, Sunny South Aircraft Service, Inc. v. Inversiones, 1120 C.A., 417 So.2d 676 (Fla.1982); Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982). No Florida court has ever held that an interlocutory order entered after a full trial, as here, is appealable under Fla.R. App.P. 9.130(a)(3)(C)(iv).

Turning to the instant case, it seems clear that the two interlocutory orders appealed from herein do not fall within the purview of Fla.R.App.P. 9.130(a)(3)(C)(iv) and are therefore non-appealable. The defendants plainly were accorded a full-blown jury trial on the issue of liability in this cause, and the orders under review do nothing more than incorporate and decline to set aside the jury verdict rendered in the cause. In my view, these are not the types of orders which fall within the underlying purpose and reach of the rule in question. Beyond that, we are informed that the trial transcript in this cause is over 18,000 pages long which will require that an extensive record be filed. A short appendix obviously cannot be filed in this cause nor is it practical to expect appellants to file a brief within fifteen (15) days after the filing of the notice of appeal. The case is therefore far too complex, I think, for the type of expedited appeal contemplated by the interlocutory appeal rule. Fla.R.App.P. 9.130(a). The orders under review are therefore not appealable under Fla.R. App.P. 9.130(a)(3)(C)(iv), and the consolidated appeal taken therefrom [DCA case nos. 82-2090, 82-2091] must be dismissed for lack of jurisdiction.

II

Turning to the cross-appeal filed in this case, we deal here with an appeal from a final judgment entered in favor of two defendants below, Edward Dauer and Roger Dauer. The plaintiff Freed has taken a proper appeal from this adverse final judgment. All of the defendants in the cause, including the defendants Edward Dauer and Roger Dauer, have subsequently filed a cross-appeal from that judgment. The plaintiff now moves to dismiss this cross-appeal on the asserted ground that an ap-pellee may not cross-appeal from a final judgment which is entirely favorable to the appellee. By today’s decision, the court, correctly I think, denies the motion to dismiss the cross-appeal as to the defendant/appellees Edward Dauer and Roger Dauer and grants the motion to dismiss the cross-appeal as to all the other defendant/appellees herein.

Fla.R.App.P. 9.110(g) provides that “[a]n appellee may cross appeal by serving a notice within 10 days of service of the appellant’s notice or within the time prescribed in section (b) of this rule [30 days], whichever is later.” The committee note to this rule states that “[provision for cross appeal notices has been made to replace the cross assignments of error eliminated by these rules.” Committee note, para. 8, Fla. R.App.P. 9.110(g) (1977 Rev.). We have held that “[t]he rule allowing for a cross-appeal contemplates an appeal from the same judgment from which the original appeal is taken.” Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So.2d 1058, 1059 (Fla. 3d DCA 1981). We are supported in this view by the form approved by the Florida Supreme Court for cross-appeals which identifies the final judgment, presumably under review by the main appeal, as the order to which a cross-appeal is addressed. Fla.R.App.P. 9.900(b).

Without question, a cross-appeal from a final judgment which is under review by a main appeal lies where the final judgment is not wholly favorable to the appellee. Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., supra. Although the question is not free from doubt, I think this is not, as urged, the only situation wherein a cross-appeal may lie. If there are interlocutory orders which are adverse to an appellee entered in the cause prior to an otherwise entirely favorable final judgment, an appellee, I think, may file a notice of cross-appeal from such final judgment and raise in his cross-appellant’s brief the alleged errors committed by the trial court in entering such adverse interlocutory orders. See Fla.R.App.P. 9.110(h). Indeed, this is precisely what the prior [abolished] cross-assignment of error practice amounted to, except that cross-assignments of error were employed instead of a notice of cross-appeal, Fla.R.App.P. 3.5(b) (1962); and, as previously noted, the present cross-appeal practice under Fla.R.App.P. 9.110(g) is designed to supplant the prior cross-assignment practice. Moreover, a contrary rule would mean that no cross-appeal would ever lie from a final judgment which was wholly favorable to the appellee, a result which would not be in accord with prior cross-assignment practice and, indeed, would drastically limit the scope of cross-appeals as compared to cross-assignments of error under the prior rules. In accord, then, with the purpose of the cross-appeal rule, an appellee may cross-appeal a final judgment which is wholly in his favor and later raise as error in his cross-appellant’s brief any adverse interlocutory orders entered prior to the final judgment.

An “appellee” is the only party authorized to file a cross-appeal under Fla.R.App.P. 9.110(g). An “appellee” is defined as “every party in the proceeding in the lower tribunal other than an appellant.” Fla.R. App.P. 9.020(f)(2). Where an appellant appeals a final judgment or final order, the “proceeding in the lower tribunal” is quite obviously the lawsuit filed below or portion thereof which the final judgment or final order has brought to an end. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). If a final judgment or final order ends the entire lawsuit, then all parties to that lawsuit, other than an appellant, are appellees upon an appeal from the final judgment or final order. If, on the other hand, a final judgment or final order brings to an end the lawsuit between the plaintiff and some, but not all of the defendants below, see Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334 (Fla. 1st DCA 1966), all parties to that portion of the lawsuit which has been brought to an end, other than an appellant, are appellees upon an appeal from that type of final judgment or final order.

Turning to the instant case, it is clear, as the court properly concludes, that a cross-appeal by the defendants Edward Dauer and Roger Dauer lies under the law as to the final judgment appealed by the plaintiff Freed herein; the fact that this judgment is wholly in favor of these defendants cannot change this result. No one else, however, is privileged to file such a cross-appeal because, as the court properly points out, no other defendant is an appellee on this appeal.

For the above-stated reasons, then, I concur in the results reached by the court on the motions to dismiss filed herein.

      . The order does not direct a verdict for the plaintiff so as to be a determination by the court that as a matter of law the defendants are liable to the party seeking affirmative relief. We therefore need not and do not decide whether such an order entered in a bifurcated trial at the conclusion of the trial on liability would be appealable under Rule 9.130(a)(3)(C)(iv). Although it is abundantly clear that under the above rule a defendant has the right to appeal an adverse summary judgment on liability which has been entered against him without'a trial, Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Kraver, 364 So.2d 1259 (Fla. 3d DCA 1978); York Insurance Co. v. Becker, 364 So.2d 858 (Fla. 2d DCA 1978), or an order denying a defense motion to vacate a clerk's default which has been entered against him without a trial, Sunny South Aircraft Service, Inc. v. Inversiones, 1120 C.A., 417 So.2d 676 (Fla.1982); Silva v. Pedro Realty, Inc., 411 So.2d 872 (Fla.1982); Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982), no Florida court has ever addressed the question whether an interlocutory order entered after a full trial on liability is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). While the plain language of the rule, permitting review of a non-final order which determined "the issue of liability in favor of a party seeking affirmative relief,” would appear to allow such an appeal, a persuasive argument might be made that the expedited method of review provided for by the rule, see Fla.R.App.P. 9.130(d), (e) and 9.220, the extensiveness of the record after a full trial on liability, and other factors, militate against a construction of the rule which would permit an appeal from a directed verdict after trial.


source: Caselaw Access Project

author: SCHWARTZ, Chief Judge.

license: Public Domain

text:
    Fabian HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2144.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 20, 1984.

      Bennett H. Brummer, Public Defender and Gitlitz, Keegan & Dittmar and James D. Keegan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

The primary argument for reversal of the defendant’s armed robbery conviction raises a substantial question concerning the prosecutor’s final argument to the jury. We have concluded, however, although portions of the summation were in fact unsupportable, and even assuming that the issue was properly preserved below, that the improprieties do not justify reversal. The evidence against Hall, including the testimony of the victim and, more important, two eyewitnesses who had previously known the defendant and who identified him as the perpetrator they had seen commit the crime when he was apprehended very shortly after it occurred, was so overwhelming as to render the argument legally harmless. State v. Murray, 443 So.2d 955 (Fla.1984); Carr v. State, 430 So.2d 978 (Fla. 3d DCA 1983); Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982). Our function is to determine the result of this and every other appeal in accordance with the demands of essential justice to all litigants in the cause. That high purpose is not achieved if a reversal is employed in a criminal case solely to discipline an attorney for misconduct which did not affect the outcome of the trial or the substantial rights of the defendant. Other means in appropriate eases exist for that purpose. United States v. Beckett, 706 F.2d 519, 521 (5th Cir.1983) (although improprieties harmless and therefore conviction affirmed on the ground that “criminal is not to go free because the prosecutor blundered,” court ordered disciplinary proceedings to be conducted against Assistant United States Attorney); see generally, United States v. Modica, 663 F.2d 1173 (2d Cir.1981) (per curiam), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); Murray v. State, supra; Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982). On this record, the judgment below is therefore Affirmed.

      . The other has no merit and requires no discussion.

      . One of the remarks in question is the following appeal for sympathy with the victim:
      Do not decide this case because you feel sorry for anybody, because if you really feel sorry for anybody, I would ask you to feel sorry for Mr. Manfready.
      You have heard so much about the Defendant’s right, and it’s well and good that our constitution gives people rights, but what about the rights of Mr. Manfready, that hard working cab driver, to earn a living, to be safe from this kind of action that you heard about today, in the last few days? His rights are the ones that have been sacrificed.
      Feel sorry for him. Don’t feel sorry for him (indicating) because he’s the one that started this whole thing.
      But see, e.g., Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982), and cases cited.

      .It is obvious that the mere fact that prosecuto-rial misconduct does not result in reversal does not render it acceptable behavior. See United States v. Beckett, supra, 706 F.2d at 521-22.


author: PER CURIAM.

text:
    IOWA MUTUAL INSURANCE COMPANY, Appellant, v. Fernando LOPEZ; Jonathan P. Lynn; Stephens, Thornton & Schwartz, P.A.; and Northbrook Excess and Surplus Insurance Company, Appellees.
    Nos. 82-2637, 83-544.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.
    Peters, Pickle, Flynn, Niemoeller & Downs ■ and Donna S. Catoe, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The orders under review in these consolidated appeals dismissing the appellant’s amended third-party complaint for indemnity, contribution and professional malpractice are affirmed. As the appellant now concedes, no cause of action for indemnity lies under the principles laid down in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). Likewise, because the plaintiff’s bad faith claim against Iowa Mutual is an action ex contractu rather than a tort, Nationwide Mutual Insurance Company v. McNulty, 229 So.2d 585 (Fla. 1969), Iowa’s third-party claim against Lynn for contribution among tortfeasors cannot lie. Finally, although Iowa may sue Lynn for professional malpractice, this claim must be brought in an independent action rather than, as here, in a third-party complaint. Accordingly, the dismissal of the claims for indemnity and contribution is affirmed; the dismissal of appellant’s claim for professional malpractice is affirmed without prejudice to the appellant instituting an independent action based on such claim.

Affirmed.


text:
    Saturnino Gonzalo JORGE, Appellant, v. Miriam JORGE, Appellee. Miriam JORGE, Appellant, v. Saturnino Gonzalo JORGE, Appellee.
    Nos. 83-703, 83-1703.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 20, 1984.
    Paul R. Lipton, North Miami Beach, for Saturnino Gonzalo Jorge.
    Jerome S. Reisman, Miami, for Miriam Jorge.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: DANIEL S. PEARSON, Judge.

text:
    Donald S. STRAUBEL, Appellant, v. Manuel Antonio GOBAYRA, Appellee.
    No. 83-794.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.

      Hall & O’Brien and Richard F. O’Brien, III, Miami, for appellant.
    Leland E. Stansell, Jr. and Victor E. Rocha, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Straubel, the plaintiff below, appeals from an order dismissing his action for failure to • prosecute. He contends that once he filed and served a notice pursuant to Florida Rule of Civil Procedure 1.440(b) advising the trial court that the case was at issue and ready for trial, he was relieved of all further responsibility to take action in the case, notwithstanding that the trial was thereafter set pursuant to his notice and then continued at his request. We disagree with this contention.

Where a case has been set for trial pursuant to a party’s notice that the case is at issue and ready for trial, and the trial is continued at the request of the plaintiff, who (here, because of a change of counsel) is not in fact ready for trial, it is incumbent upon the plaintiff thereafter to file and serve a notice that the action is once again ready to be set for trial, and his failure to do so within a year of the order of continuance subjects him to a dismissal for failure to prosecute in the absence of other record activity within the year or a showing of good cause why the action should remain pending. Bogart v. F.B. Condominiums, Inc., 438 So.2d 856 (Fla.2d DCA 1983). While we, as the court in Bogart, adhere to the view that the filing of a proper notice of trial will avoid a dismissal for lack of prosecution when an order of trial is not forthcoming, see City of Miami v. Dade County, 321 So.2d 140 (Fla.3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976), we are also of the view that a notice of trial is no longer viable after a trial date has been set and subsequently continued, where, as here, the continuance is based on the plaintiff’s lack of readiness for trial. In such a situation, the plaintiff by procuring the continuance has effectively vitiated his prior notice of readiness and must begin again.

The appellant suggests that our holding in Visuna v. Metropolitan Transit Authority, 353 So.2d 183 (Fla.3d DCA 1977), is contrary to the view just expressed. While it is true that in Visuna this court held that the duty of the court to set the action for trial survives its order continuing the trial so as to preclude a dismissal for lack of prosecution where counsel does not renotice the case for trial within a year after the continuance, it does not appear that the continuance in Visuna was at the plaintiffs’ request, but instead appears that at the time of the continuance and at all times thereafter, the plaintiffs were ready for trial. Thus, the plaintiffs in Visuna, as distinguished from the appellant here, did nothing to vitiate their notice of readiness, and an order of dismissal for want of prosecution was found to be an inappropriate response to the plaintiffs’ post-continuance inaction. We therefore read Visuna as limited to its factual setting, that is, one where the continuance is not brought about by the plaintiff’s lack of readiness for trial.

We do, however, agree with the appellant’s alternative contention that he was misled into his post-continuance inaction by the language of the order continuing the case, namely, that “this cause shall be reset for trial upon further proper notice therefor.” The appellant argues that the quoted language was susceptible to the construction, and he so construed it to mean, that the trial court would undertake to reset the action for trial at a later date. In light of the fact that a trial court, as well as any party, is authorized to set an action for trial on its own motion, by giving proper notice, Fla.R.Civ.P. 1.440(c), the appellant was justified in believing that the court had undertaken the responsibility of renoticing the case for trial and that further action on the appellant’s part was unnecessary. Therefore, under these circumstances, we think that good cause why the action should remain pending has been shown, and the order dismissing the cause for failure to prosecute must be reversed. See Neff Machinery, Inc. v. Allied Electrical Company, 258 So.2d 314 (Fla.3d DCA 1972) (order postponing trial “to a future date to be set by this court,” combined with fact that court, on its own initiative, had set trial dates after prior continuances, justified plaintiffs belief that trial court would set new trial date without further action on plaintiff’s part; dismissal for failure to prosecute reversed); Kizer v. Martin, 132 So.2d 14 (Fla. 1st DCA 1961) (same, where trial court’s letter advised counsel for the parties that “at the appropriate time, I will notice all concerned setting the matters for Pre-Trial, and after the Pre-Trial has been completed a trial date will be set”).

Lastly, we add a caveat: reliance on ambiguous orders is a dangerous game. See Bogart v. F.B. Condominiums, Inc., 438 So.2d 856 (order continuing trial “until a date during the fourth quarter of 1978 or thereafter to be established by this court” did not justify plaintiff’s belief that trial court would set new date without further action by plaintiff; dismissal for failure to prosecute affirmed). Therefore, whether on the motion of the plaintiff, the defendant or the court, if an indefinite continuance of a trial date has been ordered, the plaintiff will be well advised to renotice the case for trial, unless the trial court has in no uncertain terms relieved the plaintiff of such responsibility. See Megdell v. Adeff 296 So.2d 596 (Fla.3d DCA 1974) (dismissal for failure to prosecute reversed where, after trial continued, trial judge stated that he would set the case for trial without further notice of hearing). “He hath a wisdom that doth guide his valour to act in safety.” W. Shakespeare, Macbeth III i.

Reversed and remanded.

      . The court’s opinion in Visuna notes that the continuance was made by the court on its own motion "when it appeared that one of the parties was hospitalized for an operation." 353 So.2d at 184 (emphasis supplied). Since the opinion goes on to mention "the plaintiffs’ ... continued and subsequent readiness for trial,” 353 So.2d at 185, we think it reasonable to assume that either the defendant, Davis, was hospitalized or if one of the plaintiffs were hospitalized, his or her counsel and the remaining plaintiffs indicated their willingness to go forward with the trial on the scheduled date in the absence of the hospitalized plaintiff.


text:
    David E. LEHR, Will Contestant, Zoona E. Doughman, Individually and as Personal Representative of the Estate of John Shoop, Alfred J. Shoop, Individually, and the Estate of John Shoop, by its Personal Representative, Will Contestants, Appellants, v. Wayne A. BISHOP and Ray B. Cheatwood, Jr., Appellees.
    Nos. 83-824, 83-840.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.

      Cristol, Mishan & Sloto and Julie Feig-eles and Steven Mishan, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Douglas J. Chumbley and R. Benjamin Reid, Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is a consolidated appeal by the contestants below from an adverse ruling of the Circuit Court of Dade County, Florida, Probate and Guardianship Division, arising out of proceedings for the probate of the will of Eugene K. Shoop, deceased.

The trial court’s order and judgment under appeal provides, as follows:

THE ABOVE CAUSE came on for trial upon a petition to probate a will of the above named decedent [Eugene K. Shoop] and the answers and objections to such petition filed by beneficiaries of earlier wills. One of the beneficiaries of the will in question is also an objector since he would benefit more from one of the prior wills. The answers of the various objectors also include eounterpetitions for probate of other wills, which were not the subject of this trial. In order to simplify the position of the parties to this trial the Court will refer to “proponents” and “contestants.”
The will in question, executed on February 27, 1982, was the last of several wills executed by the decedent during his lifetime. The proponents of the will in question are Wayne A. Bishop and Ray B. Cheatwood, Jr., personal representatives and principal beneficiaries named in the will. Contestants are David E. Lehr, Zoona E. Doughman and Alfred Shoop.
In addition to general denials of allegations of fact to petition for administration, the contestants have specifically and affirmatively alleged:
1. That decedent did not possess the mental capacity to execute a will on February 27, 1982, and was not mentally competent to understand the nature and extent of his estate, the natural objects of his bounty; [sic]
2. That the will was executed as a result of the undue influence of Wayne A. Bishop or Ray B. Cheatwood, Jr., or both, upon the decedent; that both Bishop and Cheatwood stood in a fiduciary relationship with the decedent and were major beneficiaries and that Cheatwood was active in the procurement of the will of the decedent.
At the commencement of the trial, Louis Schwarzkopf, the attorney who drew the will, and his son Robert L. Schwarzkopf, who was a witness to the will, testified as to the execution of the will, which was then admitted into evidence, and proponents rested. The contestants then called several witnesses to the stand and eventually rested. At that point proponents moved for a verdict on the defense of undue influence which the Court denied.
Thereupon the proponents presented additional testimony, followed by additional testimony on behalf of contestants.
The Court heard final argument by all parties and took the matter under advisement for the reading of two depositions and a consideration of all of the exhibits and testimony.
The questions of fact in the trial of this cause have been very difficult to decide and resolve. Almost all of the testimony relevant to the main issues was by parties interested on one side or the other. There is some evidence that Ray Cheatwood, Jr., was at least somewhat active in the procurement of the will. At the conclusion of the contestants’ case upon motion by proponents for a verdict on the question of undue influence this Court ruled that contestants had successfully raised a presumption of undue influence. In retrospect this Court might have ruled somewhat preeip-itously without encouraging argument from proponents on that question. At any rate, the evidence produced in contestants’ case barely raised such a presumption.
In the opinion of the Court, the contestants have not proved by the preponderance of the evidence that the will was procured by undue influence. The facts as found by this Court in this case are not nearly as strong in favor of a finding of undue influence as those facts found in Florida’s leading case of In Re: Estate of Carpenter, 253 So.2d 697 [Fla.1971]. It does not clearly appear to this Court that the free use and exercise of the testator’s sound mind in executing his will was in fact prevented by deception, undue influence or other means.

The findings of the Court are as follows:

A. That the will of EUGENE K. SHOOP, dated February 27, 1982, admitted in evidence as petitioner’s Exhibit 1. was executed properly in accordance with the law.
B. That EUGENE K. SHOOP possessed testamentary capacity to execute the will on February 27, 1982; and was mentally competent to understand the nature and extent of his estate, the natural objects of his bounty and the effect of the purported will.
C. That WAYNE A. BISHOP was not standing in a fiduciary relationship with the decedent at the time of the execution of the will, nor prior to that time, and was not active in the procurement of the will of the decedent.
D. That RAY B. CHEATWOOD, JR., was a person standing in a fiduciary relationship with the decedent at the time of the execution of the will and prior thereto.
E. That the execution of said will of February 27,1983, [sic] was not procured by undue influence of WAYNE A. BISHOP or RAY CHEATWOOD, JR.; Wherefore, it is

ORDERED AND ADJUDGED as follows:

1. That the aforesaid will bearing the date of February 27, 1982, petitioner’s Exhibit I herein, shall be, and is, admitted to probate as and for the last will of the decedent;
2. That WAYNE A. BISHOP and RAY B. CHEATWOOD, JR., are appointed personal representatives of the estate of the decedent, and that upon taking the prescribed oath, filing designation of resident agent and acceptance, and entering into bond in the sum of $20,000.00, letters of administration shall be issued.

Appellants’ points on appeal are (1) that the trial court erred in finding that Wayne Bishop was not in a fiduciary or confidential relationship with the testator and (2) that a presumption of undue influence was raised by the contestants and the presumption was not rebutted by the proponents.

We have carefully considered the points on appeal in the light of the record, briefs and argument of counsel and have concluded that the trial judge’s order and judgment are fully supported by the facts and the controlling principles of law. See Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Laufer v. Norman Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982); Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); In Re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). No reversible error having been demonstrated, the order and judgment appealed are affirmed.

Affirmed.


text:
    Gerardo S. URCUYO, Appellant, v. Alvaro S. URCUYO, Appellee.
    No. 83-1479.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Sanford L. Bohrer and Charles V. Senatore, Miami, Wachtell, Man-heim & Grouf and Robert Braunschweig, New York City, for appellant.
    Holland & Knight and John K. Aurell and Elizabeth W. McArthur, Tallahassee, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the order under review on the sole basis that the appellant has failed to demonstrate that the trial court abused its discretion in dismissing this action between non-residents without prejudice to the appellant’s right to reinstate the action in a more convenient forum. We do not pass upon the other grounds for dismissal of the complaint or any count thereof recited in the trial court’s order, since we are of the view that these grounds, if renewed, must be resolved by the ultimate forum court.


text:
    Burton R. LEVEY, Appellant, v. Michael J. GETELMAN, Appellee.
    No. 83-1573.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack; Ellen C. Freidin, Miami, for appellant.
    Lapidus & Stettin, and Herbert Stettin, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The first appearance of this case before the court resulted in reversal of a summary judgment entered by the trial court in favor of appellee-defendant. Levey v. Getel-man, 408 So.2d 663 (Fla. 3d DCA 1981). The present appeal is from a final judgment entered on an order granting appel-lee’s motion for a directed verdict made at the end of appellant-plaintiff's case. Again, we reverse.

On examination of the record we find that sufficient evidence was presented to raise a jury question on the issues of material fraud and damages. Where evidence is conflicting, or will admit of different reasonable inferences, the issue should be submitted to the jury as a question of fact, and not passed upon by the judge as a matter of law. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981).

Reversed and remanded for further proceedings.


author: NESBITT, Judge.

text:
    R.K. COOPER, INC., Raymond K. Cooper, and Dorothy B. Cooper, Appellants, v. URGENTAG INVESTMENTS, N.V., Appellee.
    No. 83-1728.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 24, 1984.
    Holland & Knight and Julian Clarkson and Andrea Simonton, Tampa, for appellants.
    Goldberg & Vova and Philip S. Vova, Miami, for appellee.
    Before HENDRY, NESBITT, and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The sellers appeal from a final judgment denying an injunction against the purchaser’s operation of a cocktail lounge. We reverse.

The facts were stipulated to at trial. The plaintiffs were prior owners of a certain parcel of land. In 1981, they conveyed this property to the defendant’s predecessor in interest subject to the following restriction:

There shall be no retail or wholesale units erected on this property prior to the year 2000.

The plaintiffs retained other property in the vicinity which is used for retail shopping centers.

This action was brought to enjoin the proposed construction of a cocktail lounge on the subject property. The case was tried on the narrow issue of whether the term “retail unit” encompasses a cocktail lounge. The trial court ruled as a matter of law that the lounge was not prohibited by the deed restriction.

It is well settled that a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. Barrett v. Leiher, 355 So.2d 222 (Fla.2d DCA 1978). The plain meaning of retail as defined by Webster’s New International Dictionary (2d ed. 1960), is “to sell in small quantities ... to sell directly to the consumer.” Clearly, the operation of a cocktail lounge is encompassed within this definition of retail.

We reject the defendant’s'argument that the retail sale is merely an incident of the service provided by a cocktail lounge. Undeniably, a lounge does provide a service; however, dispensing alcohol by the drink for a consideration predominates. Without it, the society of other patrons and the ambiance would be a dubious enticement at best.

Because we find that the dominant activity engaged in by a cocktail lounge is the sale of alcoholic beverages and that such a sale falls within the clear and unambiguous meaning of “retail,” we hold that the restrictive covenant should be enforced.

Reversed and remanded.


author: PER CURIAM. FERGUSON, Judge

text:
    Lori SANDOR, Appellant, v. Roger E. SANDOR and Cynthia A. Sandor, Appellees.
    No. 83-1798.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied Feb. 20, 1984.
    Guy Spiegelman, Miami, for appellant.
    Edward C. Yining, Jr., Miami, for appel-lees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

This is an appeal taken by the former wife [Lori Sandor] from an order granting child visitation rights to the half-sister of the parties’ minor children in post-marriage dissolution proceedings. The former wife had previously, by court order, been granted custody of the parties’ two minor children. The former husband [Roger E. San-dor] has since remarried and has another child, a daughter, born of his second marriage; this child is the half-sister of the parties’ minor children. The former husband has since disappeared, and his present wife [Cynthia A. Sandor] petitioned the court below to allow her daughter [the half-sister herein] to be allowed visitation rights with the parties’ minor children. All three children had at one point lived together with the former husband. The trial court granted the motion and allowed their half-sister to visit the said minor children under certain stated restrictions.

The law is well-settled that “[a]n order granting visitation rights to a nonparent of a child whose custody has been awarded to a fit parent ... is unjustified and unenforceable.” Rodriguez v. Rodriguez, 295 So.2d 328, 329 (Fla.3d DCA 1974); see also Parker v. Gates, 89 Fla. 76, 103 So. 126 (1925); Tamarago v. Tamarago, 348 So.2d 1163 (Fla.2d DCA 1977); Sheehy v. Sheehy, 325 So.2d 12 (Fla.2d DCA 1975); Lee v. Kepler, 197 So.2d 570 (Fla.3d DCA 1967). The only exception to this rule is that, by statute, the court may award child visitation rights to the grandparents of a minor child. § 61.13(2)(b)(2)(c), Fla.Stat. (Supp. 1982). As custody of the minor children herein has been awarded by the court to the former wife, it is plain that the order under review awarding visitation rights to the half-sister of the minor children must be reversed as being unjustified and unenforceable.

The order under review is reversed and the cause is remanded to the trial court with directions to vacate the said order and to dismiss all proceedings directed toward implementing the said order.

Reversed.

FERGUSON, Judge

(dissenting).

This is not a case, as the majority opinion suggests, where Cynthia instituted proceedings against Lori seeking visitation rights between her child and Lori’s children. Instead, Cynthia sought and obtained an order to continue visitation rights which had already been granted to Roger, the father of all of the children. Lori’s argument is that since Roger is out of the state, she may unilaterally regard the visitation order as moot, and Cynthia has no standing to enforce it on behalf of her child. The trial judge correctly ignored the petty hostilities between the mothers and looked solely to the children’s wishes and best interests — for good reason.

Two children were born of the marriage between Lori and Roger. That marriage was dissolved in 1979. Shortly thereafter, Roger married Cynthia and they had a child. The three children, two of the first marriage and the one of the second marriage, lived with Roger and Cynthia for approximately 2V2 years. In November, 1981, Lori obtained a change of custody order with regard to her two children. Pursuant to this order, liberal visitation rights were reserved to Roger, which rights were enjoyed by the children. It is this order Cynthia sought to enforce.

The matter was referred to a General Master who took testimony and made findings of fact and recommendations which were adopted by the trial court. The recommendations included a schedule for visitation between the children once a month. The circuit court went much further, referring the case to the Conciliation Unit to recommend a plan for the designation of a neutral third party to supervise the visitations — to allay Lori’s concerns.

Those cases cited by the majority, which hold' as void an order granting visitation rights to a nonparent where custody has been awarded to a fit parent, are entirely inapposite. Here, Roger had been granted visitation rights as the father of Lori’s children, and all of the children benefited from this arrangement. The fact that Roger is out of the state at this time should not preclude the court from continuing the force of the order on behalf of the children. It does not appear from the record that Roger’s absence is other than temporary. The posture of the case would have been different, and perhaps my view as well, if it were before us on Lori’s appeal from an order denying a good cause motion to terminate Roger’s visitation rights.

The remedy created by the trial court was a commendable exercise of discretion. The reversal of that order penalizes the children unjustly. I would affirm;


author: WENTWORTH, Judge.

text:
    Johnny JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AR-336.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    Rehearing Denied Feb. 24, 1984.
    Jerry S. Luxenberg, Orlando, for appellant.
    Jim Smith, Atty. Gen., David Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment and sentence entered upon a finding that appellant committed an indirect criminal contempt. Since appellant has failed to present any point of reversible error, we affirm the order appealed.

Appellant is a self-proclaimed “King of the Gypsies” who often intercedes on behalf of gypsies involved in the American legal system. The present case involves representations appellant made as interpreter and plea negotiator for two gypsy women charged with burglary. The transcript of the plea proceeding indicates that the court would not have accepted the negotiated plea without appellant’s assurance to the effect that he would undertake responsibility for the women and insure their transportation and delivery to immigration officials, and thereafter advise the court by affidavit as to the women’s status. However, the women were not delivered to immigration officials, and it appears that appellant misrepresented to the court the circumstances of the women’s transportation. Appellant also failed to make any affidavit as to the women’s status.

Although appellant was not a party to the prior proceeding, in appropriate circumstances a non-party may be held in contempt. Cf. Husky v. Safer, 419 So.2d 1158 (Fla. 1st DCA 1982). In the present case appellant’s extensive participation in both plea negotiations and the in-court proceeding, culminating in affirmative material representations and an express assumption of responsibility, are sufficient circumstances to render appellant susceptible of a contempt adjudication, as defined in § 38.-23, Florida Statutes, upon a “refusal to obey” the court’s order.

The judgment and sentence appealed are affirmed.

LARRY G. SMITH and JOANOS, JJ., concur.


author: NIMMONS, Judge.

text:
    Ronald KOEHLER, Appellant, v. STATE of Florida, Appellee.
    No. AS-348.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    Rehearing Denied Feb. 24, 1984.
    Michael Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Koehler, having entered a plea of nolo contendere to the offense of burglary of a dwelling, appeals the trial court’s order denying his motion to suppress tangible evidence and statements. Koehler contends that the evidence seized and the statements made were products of an illegal arrest. He asserts two grounds: (1) that the warrantless arrest was made without probable cause; and (2) that the arrest at his home without warrant was violative of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). We affirm as to both grounds. We do not treat further the first question other than to note that the officers, at the time they arrested Koehler, had probable cause to believe that he was the one who burglarized Mrs. Collins’ residence and stole a box filled with rolled coins. It is necessary, however, to discuss further the alleged Payton violation.

Koehler was a suspect when Officers McLanahan and Coxen went to his residence at approximately 8 p.m. to “get his side of the story” concerning suspicious circumstances surrounding Koehler’s having attempted to cash certain rolled coins. They had not yet determined to arrest Koehler. The officers parked their vehicle on the street near the front door of Koeh-ler's residence. The front yard was unfenced. They walked onto the unenclosed front porch and Mrs. Koehler, appellant’s ex-wife, answered the door. The officers identified themselves and told her they needed to speak to Koehler with reference to a burglary. Mrs. Koehler, who said that she would get Koehler, went back inside and closed the door. A few minutes later, Koehler came out onto the front porch. The officers gave him the Miranda warnings and then asked him if he had any knowledge of the burglary. Koehler stated that he did not and that he had been home all day. The officers knew that Koehler was lying about his whereabouts inasmuch as they had reliable information that Koehler had been seen at various places other than his residence earlier in the day. The officers decided that Koeh-ler’s false statements, together with other facts which their investigation had disclosed, gave them the requisite probable cause to place Koehler under arrest, and they did so. At that time, Koehler and the officers were on the porch approximately six feet from the front door of Koehler’s residence. Upon his arrest, the officers searched Koehler and found rolled coins similar to those taken in the burglary. An hour later, Koehler confessed to the burglary.

Generally, Payton v. New York held that the police may not enter a suspect’s home to arrest without an arrest warrant absent exigent circumstances. The Supreme Court said:

The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right pf the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable Government intrusion.” Silverman v. United States, 365 U.S. 505, 511, [81 S.Ct. 679, 682] 5 L.Ed.2d 734, 97 A.L.R.2d 1277 [1961]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

[445 U.S. at 589, 100 S.Ct. at 1381]

The principles of Payton were not violated by the arrest in the instant case. Koehler, situated as he was on his unenclosed front porch and exposed to public view, was not within the protected threshold contemplated by Payton. Nor was the arrest an invasion of the defendant’s privacy within the meaning of Article I, Section 12, of the Florida Constitution.

Appellant’s reliance upon our decision in Brown v. State, 392 So.2d 280 (Fla. 1st DCA 1980), is misplaced. As the following excerpt from our opinion will reveal, the facts in Brown were materially different from those involved in the case at bar:

In contrast to [United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976)], the officers in the case sub judice drove into Brown’s enclosed yard at approximately 1:45 a.m. and arrested him when he came out on his back porch. Both the officers and Brown were in a place where Brown, particularly at that time of night at his back door, could expect privacy. He was on his back porch, a part of the house, and the officers had driven into his enclosed private yard. On the other hand, in the Santana opinion, there is no indication that the officers drove into an enclosure of Mrs. Santana’s premises.

[392 So.2d at 284]

Appellant having failed to demonstrate reversible error, the judgment is AFFIRMED.

SMITH and WIGGINTON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Mary Catherine ZEDIKER, Appellant, v. Arthur Clayton ZEDIKER, Appellee.
    No. AT-61.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    Rehearing Denied Feb. 24, 1984.

      C. David Fonvielle of Green & Fonvielle, Tallahassee, for appellant.
    Rhonda S. Martinec, of John F. Daniel, Chartered, Panama City, for appellee.
   ERVIN, Chief Judge.

Appellant, Mary Catherine Zediker (wife), appeals a post-dissolution order modifying a final judgment of dissolution, contending that the trial court abused its discretion by changing custody of the parties’ three minor children from the wife to the appellee, Arthur Clayton Zediker (husband), and in converting the wife’s permanent periodic alimony to rehabilitative alimony. We address on the merits only that portion of the order directing a change of custody, and reverse.

When the parties’ fifteen-year marriage was dissolved in 1980, the wife was awarded custody of the three children, child support, permanent periodic alimony and the marital home. This court affirmed the marital dissolution judgment in Zediker v. Zediker, 398 So.2d 915 (Fla. 1st DCA 1981). Thereafter, the husband, a successful dentist, continued both his professional practice and residence .in Panama City, where he had close family ties, while the wife, intending to pursue a second college degree in engineering, moved to Orlando with the children. The record discloses recurring disputes between the parties which in 1982 culminated with the wife’s petition, and the husband’s counter-petition for modification of the final judgment. The husband, alleging a substantial change in circumstances, sought custody of the children, as well as a reduction in the $1,000.00 per month in alimony that had been awarded the wife, or a conversion of such alimony from permanent periodic to rehabilitative. The case was heard by a special master who, finding that a substantial change in circumstances had occurred, determined that the best interests of the children would be served by awarding custody of the children to the husband.

As to the issue of conversion of alimony, the special master recommended that if custody were changed, the permanent alimony then be converted to rehabilitative. Because there was insufficient evidence presented to allow a determination as to the appropriate duration of such alimony, the special master suggested that additional hearings be held. Affirming and adopting the special master’s findings and recommendations, the trial court, on April 22, 1983, ordered that custody be changed in favor of the husband; that the husband’s child support obligations be terminated, and that the husband continue to pay $1,000.00 per month, but as rehabilitative alimony. The order further directed the special master to take additional evidence on the issue of alimony and to make recommendations as to the duration and amount of such alimony.

We note initially that notwithstanding the parties’ assumption that the order of April 22 was final as to all issues, it is in fact a non-final order. Although it conclusively determines the issue of change of custody and is thus appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(-C)(iii), the order fails to resolve with finality the issue pertaining to the conversion of alimony. Because that issue, the propriety of which is appellant’s second point on appeal, has yet to be fully determined by the trial court, we decline to reach the merits of that point, without prejudice to appellant’s right to raise again that issue, if necessary, after final resolution of this case by the trial court on remand.

The wife first contends, as to the custody modification, that reversal is required because the husband failed to satisfy his burden of proof in the custody modification proceeding and that the granting of such modification thus amounted to an abuse of the trial court’s discretion. We agree. Unlike proceedings to modify awards of child support or alimony, the non-custodial parent seeking to modify a prior award of custody “carries an extraordinary burden." McGregor v. McGregor, 418 So.2d 1073, 1074 (Fla. 5th DCA 1982) (emphasis supplied). Accord Elkins v. Vanden Bosch, 433 So.2d 1251 (Fla. 3d DCA 1983). See generally Iljazi v. Iljazi, 436 So.2d 326 (Fla. 2d DCA 1983); Stearns v. Szikney, 386 So.2d 592 (Fla. 5th DCA 1980); Berlin v. Berlin, 386 So.2d 577 (Fla. 3d DCA 1980); Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980); Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974); Wilson v. Condra, 255 So.2d 702 (Fla. 1st DCA 1971); Bennett v. Bennett, 73 So.2d 274 (Fla.1954). In satisfying this burden, it is essential that the movant rely only on changes occurring after entry of the original final judgment of dissolution because that judgment is res judicata as to “all matters involved and known at the time of the [judgment].” Teta, 297 So.2d at 646 (emphasis supplied). Accord Wilson, 255 So.2d at 703.

In the case at bar, the husband and his witnesses testified at length regarding the relationship between the husband, the wife, the children and the husband’s relatives. Much of this testimony, however, improperly relates to circumstances existing prior to the dissolution. The remaining testimony, although somewhat supportive, indicates, as stated by the wife’s counsel, that “the real problem in this case stems from the complete inability of the mother and father to ‘get along.’ ” The record is replete with accusations and counter-accusations, chronicling constant and often embittered bickering between the husband and wife over such subjects ranging from the payment of orthodontic and medical bills incurred by the children, to the length of the childrens’ “good-byes” with their father. The issue before us is whether the inability of two otherwise intelligent and rational adults to communicate before, during or after visitation amounts to a substantial or material change of circumstances following dissolution which would justify a change of custody. We hold that it does not, and therefore conclude that the court’s award of change of custody amounts to an abuse of discretion requiring reversal.

Just as the record fails to support a finding of substantial change of circumstances, it also fails to support the special master’s opinion that a change of custody would be in the best interests of the children. Although all three children had, at various times, expressed some desire to live with their father, their testimony before the special master can at best be characterized as ambivalent and inconclusive. Had they all evinced a clear and definite desire to live with their father and not with their mother, that preference would not alone be dispositive of the issue whether their best interests would be served by ordering a change in custody. See Elkins, 433 So.2d at 1252. The only other evidence presented by the husband on this issue was in the form of expert testimony by a marriage therapist. The therapist had seen the husband on a number of occasions after the dissolution, and the children only once. She had not, however, had the opportunity to visit the wife at any time after the dissolution and admittedly had not conducted any psychological tests on the parties. Neither did she have adequate information upon which to base an opinion as to the propriety or necessity of a change of custody from mother to father. She was, nevertheless, allowed to give her opinion that a boy of fourteen years of age or older would probably benefit more from living with his father than with his mother. Although this opinion may be generally shared by experts in this field, we do not find that it rose to that level of competent and substantial evidence which requires a showing that the best interests of the children would be promoted by a change of custody. It is therefore our view that the husband has failed to satisfy the heavy burden imposed upon him as a noncustodial parent seeking to modify a prior award of custody.

In urging that affirmance is nevertheless required, the husband argues that we are bound to apply the “reasonableness” test of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), holding that “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Id. at 1203. Because reasonable men could differ as to the propriety of the order of modification entered below, the husband insists that this court has no option but to affirm. The wife, on the other hand, responds that the Canakaris test should not be applied to this factually different and procedurally distinct case, as it relates to the issue of change in custody. We agree with the wife’s position and reject the husband’s suggestion that Canakaris mandates affirmance of an order granting a modification of an earlier custody award. Canakaris, in reviewing an appellate court decision reversing a trial court’s final judgment of dissolution, which had awarded to the wife both lump sum and periodic alimony, made sweeping and dramatic changes in the remedies and methods available to trial judges faced with the “difficult problem of apportioning assets required by the parties and providing necessary support” in dissolution cases. 382 So.2d at 1202 (emphasis supplied). In addition to re-defining and expanding the various options available to the trier-of-fact in resolving such questions, Canakaris also enlarged the trial court’s discretion over such matters, while concomitantly narrowing the scope of appellate review by adopting the “reasonableness” test of abuse of discretion. See Note, Canakaris v. Canakaris: An Examination of Aspects of Florida’s Law on the Dissolution of Marriage, 34 U.Miami L.Rev. 1227 (1980). The issue before us, then, is whether the “unusually broad discretion accorded to trial judges in dissolution cases since Canakaris”, Tommaney v. Tommaney, 405 So.2d 454, 456 (Fla. 2d DCA 1981) (emphasis supplied), is to be similarly accorded to a trial judge considering a post -dissolution motion for modification of child custody. We are of the view it is not.

Although the Canakaris test has been applied to determine if abuses of discretion have occurred in cases involving requests for the modification of prior alimony awards, see Parkhurst v. Parkhurst, 413 So.2d 853 (Fla. 4th DCA 1982); Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981), prior child support awards, see Burrows v. Burrows, 384 So.2d 1312 (Fla. 4th DCA 1980), or both, see Brooks v. Brooks, 423 So.2d 995 (Fla. 3d DCA 1982); Rhoades v. Rhoades, 416 So.2d 1233 (Fla. 1st DCA 1982); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA 1980), it has yet to be applied explicitly to a situation in which a modification of a prior custody award was sought. Moreover, the pre-Canakaris rule governing custody modifications has never been expressly disapproved. We therefore consider that the following rule remains unaffected by the reasonableness test adopted in Canakaris: “When considering petitions for modification of custody or visitation arrangements, the court does not have the same degree of discretion as it does in entering the original decree.” Teta v. Teta, 297 So.2d at 646 (emphasis supplied). Accord Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So.2d at 1184; Garvey v. Garvey, 383 So.2d 1172 (Fla. 2d DCA 1980); Adams v. Adams, 385 So.2d 688 (Fla. 3d DCA 1980); Baker v. Baker, 360 So.2d 19 (Fla. 4th DCA 1978); Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976); Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975). Our position is additionally supported by the following rule, also unaltered by Canakaris, requiring the non-custodial parent, who seeks modification of the earlier custody award, to satisfy a two-part evidentiary test not imposed upon parties asking changes in prior alimony or support awards: “Upon proof of a substantial change in circumstances, the moving party must show that the welfare of the child would be promoted by the changed custody.” Stearns v. Szikney, 386 So.2d at 594 (emphasis supplied).

Given the extraordinary burden placed upon one moving to modify a custody award, and the limited discretion that has traditionally been accorded the trial court when considering such a request, we cannot accept the husband’s position that this court’s scope of review in such cases is restricted simply to determining whether reasonable men could differ as to the result reached below. Our task, instead, is to determine whether the trial judge’s discretion is supported in the record by competent and substantial evidence revealing that substantial or material changes in the parties’ circumstances had occurred subsequent to the dissolution, and that a change of custody would promote the best interests of the children involved. When, as in this case, the record fails to reflect such evidence, we must hold that the lower court has abused its discretion. See Wilson v. Condra; Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979). We nevertheless certify to the Florida Supreme Court, pursuant to Article V, Section 3(b)(4) of the Florida Constitution, the following question as one of great public importance:

DOES THE REASONABLENESS TEST OF ABUSE OF DISCRETION, STATED IN CANAKARIS V. CANAKARIS, 382 So.2d 1197 (Fla., 1980), APPLY TO POST-DISSOLUTION ORDERS DIRECTING CHANGES IN CHILD CUSTODY?

The order, insofar as it dictates a change of custody is REVERSED, and this cause is REMANDED for further proceedings consistent with this opinion.

JOANOS, J., and MINER, CHARLES E., JR., Associate Judge, concur.

      . The wife’s petition for modification was premised on what she had alleged was (1) the husband’s failure to supervise adequately the children during the eight to nine weeks the children were with him each summer, and (2) his unreasonable insistence that orthodontic care, including periodic check-ups, be provided for the children in Panama City where he could oversee their progress and could also obtain such care at a reduced rate. Although testimony relating to those issues was presented before the special master, no findings or rulings were made with respect to the wife’s petition and those issues are therefore not before us at this time.


text:
    Joseph D’AMICO, Appellant, v. MARINA INN & YACHT HARBOR, INC., & Aetna Insurance Co., Appellees.
    No. AT-75.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    L. Barry Keyfetz, of Keyfetz, Poses & Halpern, Miami, for appellant.

      Anthony J. Beisler, Fort Lauderdale, for appellees.
   WENTWORTH, Judge.

The claimant in this workers’ compensation case appeals an order denying his claim to set aside a September 23, 1981 order which had approved a lump sum settlement agreement between claimant and the carrier. Because the record permits only a conclusion that maximum medical improvement (MMI) had not been reached six months prior to the settlement, we reverse.

Claimant suffered a herniated disc in the course and scope of his employment on March 14, 1980. The employer and carrier (e/c) paid temporary total benefits until August 16, 1980, when they were terminated on the asserted ground that claimant had refused to undergo recommended surgery and was therefore at MMI. There is some indication that the delay in surgery was due in part to the treating physician’s concerns regarding claimant’s weight problems, and while claimant apparently was reluctant to have the surgery, we find no record substantiation that he had in fact refused any unequivocal medical recommendation for surgery for a specific time before the settlement. In any event, after claimant employed an attorney who filed wage loss claims on his behalf, on October 6, 1980, the e/c commenced paying total wage loss benefits retroactive to August 16, 1980.

In June, 1981, the carrier authorized treatment at the Siegal Clinic for weight loss. Claimant lost approximately twenty five pounds in a very short time, and entered Florida Medical Center in late July with chest pains. These symptoms were subsequently determined to be the result of a chemical imbalance in claimant’s blood caused by the rapid weight loss and the hospitalization was accepted as compensa-ble by the carrier. In an August 21, 1981 report, Dr. Lane stated that due to claimant’s weight loss he was ready to have a myelogram and possible laminectomy.

Less than a week before September 21, 1981, claimant called the carrier’s attorney, told him that he was frustrated and aggravated with the handling of his case, and indicated that he wanted to settle it for $10,000. The attorney promptly drew up a stipulation of settlement and a hearing was held on September 21, 1981. After questioning claimant regarding his motives for wishing to settle, and pointing out to him that his benefits could amount to substantially more than $10,000, Deputy Commissioner Seppi approved the settlement. In doing so, he signed a form order which contains a printed statement that “the claimant reached maximum medical improvement more than six (6) months prior to the date the undersigned Deputy Commissioner entertained said lump sum settlement.” After securing the services of a new attorney, claimant filed a claim on July 14,1982, seeking to have the settlement set aside.

In his order denying the claim to set aside the settlement, Deputy Commissioner Branham found, among other things, that the record supported a determination that MMI had been reached’ six months prior to the hearing on the stipulation. Although § 440.20(12)(b) provides that an order approving a lump sum settlement “shall not be subject to modification or review,” appellee does not in this appeal challenge Deputy Branham’s right to review and determine the question of whether MMI had been reached six months prior to the settlement hearing. Based on the language in § 440.20(12)(a), pertaining to the approval of lump sum settlements, we agree that review of the issue was proper in this case. That section provides in pertinent part that:

In no case shall a lump sum payment be allowed until six months after the date of maximum medical improvement has been reached.

The quoted language is plainly mandatory in character. The absence of a proper record basis for the required time lapse results, in our opinion, in a voidable order. See Ferrand Corp. v. McKenney, IRC Order 2-3324 (1977); of., Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1977).

Upon the merits of the medical issue, however, we can find no support in the record before Deputy Branham for his determination that the statutory condition had been met. The order on appeal on this point is as follows:

The claim that the order should be set aside because the Claimant had not reached maximum medical improvement six months prior to the settlement is denied. At the settlement hearing, it was represented to the Deputy Commissioner that the Claimant had reached maximum medical improvement more than six months prior to the hearing (Transcript of Hearing, P-5). This fact was borne out by the deposition of the Claims Representative, Jan Mathiesen, who relied on reports from Dr. Krulik and Dr. Reiman (depo 16-21) when she took the position that the Claimant had reached maximum medical improvement on August 15, 1980. Of course, a myelogram and surgery had been recommended to the Claimant but, at this point, he had turned them down. The issues involved herein must be resolved upon the facts as they existed at the time the settlement was approved. At that time, it would seem obvious that the Deputy Commissioner considered that the Claimant had reached maximum medical improvement (without surgery) more than six months prior to the hearing or he would not have approved the settlement. This order was entered under the provisions of F.S. 440.-20(12)(a) & (b) and is not subject to modification for ‘change of condition’ or ‘mistake in a determination of fact’. For this reason, circumstances which may have occurred subsequent to the entry of this order are not material.

The stated conclusions are patently irreconcilable with the actual circumstances, here-inabove noted and appearing in the settlement hearing transcript, including the fact that claimant was undergoing remedial treatment at the Siegal Clinic in June 1981, approximately three months prior to the settlement; that the parties contemplated continuing treatment and there was renewed hope for surgical repair as demonstrated by Dr. Lane’s report; and that the e/c’s attorney conceded the question of future remedial treatment to be a live issue between the parties. In short, the evidence at the time of the settlement hearing was that MMI had not been reached more than six months previously, but even if that could have occurred at some point the condition had not subsisted for the six months preceding settlement.

Because we find that the settlement agreement was voidable for failure to comply with the statutory requirement that approval be deferred for six months after the date of MMI, we do not consider the question of whether there was fraud or overreaching on the part of the e/c. The order denying the claim to set aside the settlement is reversed and this case is remanded for further proceedings consistent herewith.

NIMMONS and ZEHMER, JJ., concur.

      . At that time, claimant was no longer represented by an attorney and he claimed to have been harassed by the Siegal Clinic and Medical Center as to unpaid bills.

      . We note that the claim to set aside the settlement was filed within two years of the order approving it. We therefore do not consider the applicability of § 440.19(2)(a) to such a claim.

      . The provision in question follows immediately another sentence by which the statute was also amended to state that “In no case shall a lump-sum payment be allowed in exchange for the release of an employer's or carrier’s liability for future medical expenses."

      . None of the referenced medical reports appear in the record. Other reports were excluded upon objection by carrier to claimant’s proffer before Deputy Branham, upon grounds that made further proffer futile.

      . The transcript reflects colloquy as follows:
      THE DEPUTY: Have you made arrangements for the pain pills?
      MR. MORCROFT: No Judge. He is actually under the care of Dr. Lane, and I don’t know what arrangements have been made. One of the reasons that we are bringing this to you is that he has indicted to me that he wants to move back to New York, and obviously arrangements will have to be made for a treating physician in New York. All right. That’s the first point.
      The second point is that — just for the record — maximum medical improvement was reached over six months ago on this case. In fact, the reports in the file indicate it was in July of 1980.
      THE DEPUTY: He would begin now on a palliative basis?
      MR. MORCROFT: Well, I guess that's an issue or could be an issue. There is a situation where there is a questionable disc, and Dr. Lane had talked about doing a myelo-gram, and we had not had a myelogram done. I don’t think Mr. D’Amico is very anxious to have one as long as he is able to get by in his present state.
      THE WITNESS: That’s why I went on a diet. Did he explain that to you? I went on a diet.

        Q. Well, this is the reason why I am telling you—
      Q. —that if I approve this settlement, this is the end of your compensation, but you are not ending your case as far as your medical benefits are concerned.
      A. Yes. I understand that.

      . The record does not reflect whether claimant will refuse surgery in light of the referenced report of Dr. Lane.