author: WIGGINTON, Judge.

text:
    Charles H. MADSEN, Jr., Appellant, v. Susanna Pierce BUIE, Appellee.
    No. AW-367.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 17, 1984.

      Robert E. Gibson, Tallahassee, for appellant.
    Tom R. Hayward, Tallahassee, for appel-lee.
   WIGGINTON, Judge.

Appellant, Dr. Madsen, appeals the trial court’s entry of a final summary judgment for appellee in appellant’s defamation suit. We reverse.

Dr. Madsen holds a PhD in clinical psychology and child development and is a professor of psychology at Florida State University. He also is a founder and stockholder of a private psychological clinic in Tallahassee. This suit arose from a March 5,1981 letter written by appellee to The Tallahassee Democrat newspaper. The letter appeared in edited form in the Letters to the Editor section of the newspaper. The letter was written by appellee in response to an announcement printed in The Tallahassee Democrat. In her letter, which was headlined by the newspaper “Beware of Parenting Classes,” appellee wrote as follows:

IT IS WITH great concern that I read in the Feb. 6 paper that Dr. Charles Madsen, Jr., a member of the Florida State University Department of Psychology, is offering an education program for parents expecting a child by May 30. The course includes training in child development and child management skills.
It is very important for the public to understand that the behavior modification techniques that are advocated by this professor are not approved by either our government educational specialists in early childhood education or by our own mental health authorities, except in very narrow categories of use with severely retarded children.
The behavior modification techniques advocated by Dr. Madsen are the ones used in brainwashing prisoners of war and by the Russian communists in their efforts to reduce their people to roles of passive compliance and non-judgmental acceptance of the authority of their government.
These techniques are very effective but they are also very destructive of the human spirit. They are based on the false premise that human behavior is randomly oriented and incapable of coherent, intelligent growth and adaption to its environment, much less able to achieve intelligent cooperation unless coerced to do so.
This false assumption has been disproved by extensive and brilliant scientific research. Young parents would be much safer to enroll in family life classes in the Department of Home Economics or in the School of Social Work where they would receive a much broader and more accurate base of understanding in the whole process of child development.
SUSANNA PIERCE BUIE

In the pretrial stipulation, the attorneys for the parties agreed that the following questions of law existed: (1) Whether the letter constituted libel; (2) Whether the letter constituted libel per se; and (3) Whether appellant can be categorized as a public figure. Finding no genuine issue of material fact, the trial judge entered summary judgment in answer to those questions, ruling that the letter was merely an expression of opinion and therefore the statements made therein are not actionable as libel. Having found the statements not to be libelous, the court recognized that resolution of the question of whether appellant was a public figure was unnecessary but for purposes of appeal the court did resolve that issue. The court found that appellant was a public figure for the limited purpose of this action since appellant is an outstanding authority in the field of psychology and has authored a number of books and articles, and since the letter clearly discloses that it was written in response to an “advertisement” placed in the newspaper by appellant. We disagree with the trial judge’s rulings.

We first address the question of whether the statements in the letter amounted to mere opinion, which is privileged and protected comment under the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981); Smith v. Taylor County Publishing Company, Inc., 443 So.2d 1042 (Fla. 1st DCA 1983); Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983). We find that appellee’s statements did not constitute pure opinion but, at most, were a mixed expression of opinion. In From, the court distinguished between pure expression of opinion and mixed expression of opinion, stating:

Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener as a member of the public. Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the article or assumed to exist by the parties to the communication. Restatement (Second) of Torts, § 566, pp. 171-172. At 57.

See also Smith and Gellert. The statements made in appellee’s letter reasonably may be understood to imply the assertion of undisclosed facts and, considered in their totality, they bear a defamatory meaning. Mixed expression of opinion is not constitutionally protected and therefore is actionable. Smith; Gellert.

Having determined that appellee’s statements were not opinion and therefore were not privileged comments, the next question of law to be addressed is whether the statements made were libel per se. See Auld v. Holly, 418 So.2d 1020 (Fla. 4th DCA 1982) and Gellert. In Gellert, the court stated:

Any publication, oral or written, which imputes to another a condition incompatible with the proper exercise of his trade or profession, amounts to a slander or libel per se. [Citations omitted].

See also Drennen v. Westinghouse Electric Corporation, 328 So.2d 52 (Fla. 1st DCA 1976), in which the court declared:

Under Florida law, a publication is libelous per se when it imputes to another a criminal offense amounting to a felony, or conduct, characteristics, or conditions incompatible with the proper exercise of one’s lawful business, trade, profession, or office_ At the very least, the publication in question accuses appellant of conduct incompatible with the proper exercise of his employment or profession which is clearly actionable per se. At 54.

In our view, the statements made by appellee in her letter clearly attack appellant’s ability, to perform adequately within his profession and therefore, under the above authorities, constitute libel per se. Thus, appellant is entitled to present his case to the trier of fact for consideration of either viable defenses or damages.

In light of our above rulings, the question of whether appellant was a public or private figure becomes pivotal since the burden of proof at trial differs depending on the classification. See Smith; Miami Herald Publishing Company v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982); and Brown v. Tallahassee Democrat, Inc., 440 So.2d 588 (Fla. 1st DCA 1983). Under the facts of this case, we find that appellant does not qualify as a public figure even to a limited extent. In Smith, the court stated:

In order to become a limited public figure the individual must be involved in an actual public controversy. In addition, a limited public figure is subject to an “actual malice” standard only in those contexts where his participation in a controversy is sufficient to gain him general fame or notoriety in the community, and constitutes pervasive involvement in the affairs of society. [Citations omitted].

In Hutchinson v. Proxmire, 443 U.S. Ill, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), Hutchinson, a research behavioral scientist who had received federal funds to conduct research and who had published writings which reached a relatively small category of professionals concerned with research in human behavior was found not to be a public figure for even limited purposes. The court found that neither Hutchinson’s applications for federal grants nor his publications in professional journals could be said to have invited that degree of public attention and comment on his receipt of federal grants essential to place him within “public figure” status. In Gertz, although the petitioner had long been active in community and professional affairs and had published several books and articles on legal subjects, he was found not to be a public figure even to a limited degree since he did not thrust himself into the vortex of the public issue that gave rise to the defamation suit, nor did he engage the public's attention in an attempt to influence its outcome. Similarly, in the instant case, in our view, appellant had not received such notoriety in the community resulting either from his profession or from the issue giving rise to appellee’s letter, the announcement of the child development program, to place him within the limited public figure status. Compare also From.

REVERSED AND REMANDED to the trial court for further proceedings consistent with this opinion.

SMITH and NIMMONS, JJ., concur.

      . By order, which has not been appealed, the trial court ruled that the editing changes made to the letter by The Democrat did not change the content or the meaning of the letter.

      . The announcement read:
      PROGRAM TEACHES PARENTS
      An education program for parents expecting a child by May 30 is being offered by Dr. Charles H. Madsen, Jr. and Susan W. Blue of Florida State University. The program is being offered free and in the privacy of the participants’ homes. It includes training in child development, child management skills, relaxation skills and communication skills.
      To receive more information, parents may sign up in their obstetrician's office or call 575-8954 from 8:00 a.m. to 6:00 p.m., 644-1747 from 9:00 a.m. to 5:00 p.m., or 575-1366 from 6:00 p.m. to 11:00 p.m.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    James William PEACOCK, Jr., and Mary Patricia Peacock, his wife, and Bill Peacock Leasing and Rentals, Inc., Appellants, v. FARMERS AND MERCHANTS BANK, a Florida banking corporation, Appellee.
    No. AU-492.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Rehearing Denied Sept. 17, 1984.

      Mallory E. Horne and William L. Gros-senbacher, of Horne, Rhodes, Jaffrey & Horne, Tallahassee, for appellants.
    T. Buckingham Bird, Monticello, for ap-pellee.

       Although a party to the proceeding below and named as appellant, the corporation raises no issues on appeal.

   SMITH, Judge.

Appellants, James William Peacock, Jr., and Mary Patricia Peacock, his wife, appeal from a final judgment of foreclosure on real property mortgaged as security for two loans secured from the appellee bank. Appellants raise three grounds for this appeal, two of which relate to collateral proceedings involving the sale in bankruptcy of certain corporate property owned by Bill Peacock Chevrolet, Inc., which also had been included as collateral in the mortgage securing the two loans. The gist of appellants’ contentions is that because of various actions or inactions by the bank, appellants’ liability as guarantors or mortgagors of their own individual properties should be discharged. Finding no merit to any of these grounds, we affirm.

The appellee bank (“bank”) provided appellant Bill Peacock Chevrolet, Inc. (“Peacock, Inc.”) with a $150,000 loan in mid-April 1977. This loan was signed by appellants James William Peacock, Jr., and Mary Patricia Peacock (president and sole stockholder, and secretary-treasurer, respectively, of Peacock, Inc.) both as officers of the corporation and as personal guarantors. The note was secured by two parcels of real property, an office building and a 23-acre tract of land owned by Peacock, Inc., located in Monticello, Florida. Additionally, appellants as guarantors mortgaged a parcel of real property located in Gadsden County, Florida, as well as their family residence located in Tallahassee, Florida. The mortgage provided a future advance clause, and Peacock, Inc., obtained an additional $50,000 loan in August 1979. This note was secured by the 1977 mortgage, with appellants eosigning this note. Since the Peacocks had deeded their 80-acre Gadsden County lands to Bill Peacock Leasing and Rentals, Inc., in June 1978, this corporation signed as a co-maker on the $50,000 note. Appellant James William Peacock, Jr., is the president and sole stockholder of Bill Peacock Leasing and Rentals, Inc., and Mary Patricia Peacock is the secretary-treasurer of this corporation, which is now defunct.

In January 1980, Peacock, Inc., filed for bankruptcy pursuant to Title 11, United States Code, was subsequently adjudged to be in bankruptcy in August 1980, and a trustee was appointed to take charge of and dispose of all its property. In its order adjudging Peacock, Inc., to be bankrupt, the bankruptcy court, pursuant to Title 11, Section 363, United States Code, issued a stay order preventing secured creditors from selling any of the bankrupt’s assets. In September 1980, the bank, as a secured creditor, filed suit in the bankruptcy court seeking to set aside that court's stay. In response to the bank’s suit, the trustee filed suit seeking permission to sell the corporate assets of Peacock, Inc., free and clear of creditors and further seeking marshaling of the appellants’ personal assets pledged as collateral. The bankruptcy court ruled against the bank, ordering that the trustee would be allowed to sell the corporate assets and that marshaling of the appellants’ personal assets would be allowed. Subsequently, the trustee sold the corporate assets of Peacock, Inc., for a total sales price of $111,000, of which the bank received $82,000, the sales proceeds after the trustee paid off the first mortgage holders on the Monticello parcel of land, as well as fees and costs. Appellants appealed the bankruptcy court’s order to the extent that it allowed marshaling as to their personal assets, but did not appeal the order authorizing the trustee to sell the corporate assets; nor did appellants raise any issue on appeal concerning the sales price actually received for the 23-acre Monticello tract, which had been sold prior to the filing of appellants’ appeal. Appellants also failed to object to the sales price of the second corporate asset, the office building owned by Peacock, Inc.

Subsequent to the appellants’ appeal of the bankruptcy court’s order, the appellee bank filed a foreclosure action in the circuit court against the remaining property covered by its mortgage, appellants’ Tallahassee residence, and the real property located in Gadsden County. It is the trial court’s judgment of foreclosure on these properties that appellants appeal to this court.

Turning to the issues, we note first appellants’ contention that the bank acquiesced in the sale by the trustee of the corporate assets located in Monticello for a price significantly less than their actual value. Appellants offered the testimony of an appraiser suggesting that these properties, sold by the trustee for $111,000, had a combined value of approximately $500,000. Moreover, appellee’s own appraisal expert gauged the value of the property at approximately $126,000. Appellants urge that the bank, even though it filed suit to allow it to sell the corporate assets, did not exercise sufficient diligence in pursuing this remedy. As a result, appellants contend that the bank’s collateral, as represented by the corporate assets, has been impaired to the extent that the sales price of the assets was less than their appraised value. Secondly, appellants contend that the appellee bank materially altered the two notes upon which their obligations to the bank were based. Finally, appellants argue that the bank’s acquiescence in the sale of the corporate assets by the trustee destroyed the appellants’ equitable right to redemption of the mortgages embodied in the notes. Appellants maintain that all three grounds noted above entitle them to discharge from their obligations as guarantors, thus entitling them to reversal of the judgment of foreclosure on their Tallahassee residence and the Gadsden County real property. We are persuaded by none of these arguments.

Appellants’ impairment of collateral claim is based on Section 673.606, Florida Statutes, which provides:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder....
* * * * * *
(b) Unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.

This statutory provision is based on a like provision found in the Uniform Commercial Code, Section 3-606(l)(b), which is said to embody the principle of the law of surety-ship that a release of collateral held by a creditor, or its impairment by improper action or inaction on his part, will extinguish the obligation of the surety, at least to the extent of the value of the security released or impaired. 11 Am.Jur.2d, Bills and Notes, § 957, cited in Annotation, 95 ALR 3d 962 (1979). In raising this defense, the appellants have the burden of proving that an unjustified impairment of collateral has occurred, and the extent of the impairment. Lyons v. Citizen’s Commercial Bank, 443 So.2d 229, 232 (Fla. 1st DCA 1983). An unjustifiable impairment of collateral may be shown to have resulted from negligent action or inaction on the part of the holders of the instruments whose collateral was impaired. Our review of the record convinces us that the requisite showing has not been made here.

Appellants’ impairment claim is based upon the theory that the bank acquiesced or consented to the sale of the corporate assets by the trustee. This theory is simply not borne out by the facts. The bank opposed the trustee’s right to sell the corporate assets by filing suit in the bankruptcy court to lift that court’s stay so as to allow the bank to sell the assets. The bank also in this same proceeding opposed the marshaling of appellants’ personal assets along with the corporate assets in the bankruptcy proceeding. The bank further points out, and properly so, that its ability in the first instance to foreclose against the appellants’ corporate assets before moving for foreclosure of their personal assets was frustrated by the action of appellants, the sole owner and controlling officers of Peacock, Inc., in placing the corporation in bankruptcy. In doing so, appellants inexorably subjected their own interests to the actions of the bankruptcy court, which had the power under Title 11, Section 363(f)(3), United States Code, to allow the trustee to sell the corporate assets despite any objections by appellants or the bank. The correctness of the decisions of the federal courts was of course not a matter for consideration by the circuit court below, nor is it here.

Furthermore, appellants’ own actions below cannot be reconciled with their present attempts to fasten blame upon the bank for allowing a sale by the trustee for an inadequate price. Appellants intervened as parties in the bankruptcy proceedings and appealed from the order issued by the bankruptcy court as it related to marshaling. However, the appellants appealed this order only to the extent that it pertained to their individual lands, disregarding the bankruptcy court’s authorization to the trustee to sell the corporate lands; and the appellants never appealed from or objected to the actual sales price received for either corporate asset. Therefore, appellants, having failed to avail themselves of the opportunity to. challenge the adequacy of the sales price of the corporate assets in the forum having jurisdiction over the issue — the bankruptcy court — are here in effect attempting an improper collateral attack on the same proceeding.

Finally, although appellants suggest that a foreclosure sale of the corporate assets by the bank would have netted a greater sales price than the bankruptcy sale by the trustee of the same assets, this is primarily based upon supposition, rather than fact. There was evidence before the circuit court that the corporate assets had a combined value of $126,000. Since the assets were actually sold by the trustee for a combined price of $111,000, 87% of the appraisal value offered by appellee’s expert, it cannot be said that the assets were disposed of at “substantially less” than their reasonable value. Magnolia Homes Mfg. Corp. v. Montgomery, 451 F.2d 934 (8th Cir.1971).

Appellants’ contention that they should be discharged as guarantors because the two notes were allegedly materially altered by the bank’s president, Mr. Gary Wright, merits little discussion. The differences in the various copies of the two notes (the addition of charges for credit life insurance and an alleged alteration of interest rates) were adequately explained by Mr. White. As to one of the loan transactions, it appears that incomplete copies of the instruments were signed but were thereafter completed and reexecuted by appellants. As to the other note, Mr. Wright testified that the correct interest rate appeared on the note when executed by appellants and that a different interest rate appearing in certain provisions of the note applied to variable rate loans, not a fixed-rate loan, as this was. Here, it is obvious that the trial court below resolved any inconsistencies and conflicts in the evidence concerning alleged alterations of the two notes in favor of the appellee. This weighing process is for the trier of fact, not this court. The only question here is whether substantial competent evidence supports the factual findings made below. Singer Housing Company v. Wren, 390 So.2d 428 (Fla. 1st DCA 1980), Rollins v. Phillips, 444 So.2d 1160 (Fla. 3d DCA 1984), Mann v. Price, 434 So.2d 943 (Fla. 2d DCA 1983), Veda Contract, Inc. v. Lynch, 444 So.2d 1093, 1094 (Fla. 4th DCA 1984). Mr. Wright’s testimony, if believed, supplies ample evidence in support of the trial court’s finding below that there was no material alteration of either note.

Even assuming, arguendo, that the notes were materially altered, appellants’ argument must still fail. Section 673.407(2)(a), Florida Statutes, requires proof that the alteration in question was undertaken for fraudulent purposes. Absent such a finding, a guarantor will not be discharged from his obligation. First National Bank of McCook v. Hull, 189 Neb. 581, 204 N.W.2d 90 (1973), Hughes v. Talley, 400 So.2d 253 (La.App.1981), Lawler v. Federal Deposit Insurance Corporation, 538 S.W.2d 245 (Tex.App.1976). Appellants made no showing that the bank supplied additional terms or materially altered the notes for a fraudulent purpose. On the contrary, the evidence is easily susceptible to the interpretation that all of appellee’s actions with respect to the notes were taken in accordance with the intention of the parties. Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967); see also, First National Bank of McCook v. Hull, supra; Hutcheson v. Herron, 131 Ill. App.2d 409, 266 N.E.2d 449 (1970).

Finally, appellants argue that the appellee’s acquiescence in the sale of the corporate assets by the trustee destroyed the appellants’ equitable right to redemption, thereby releasing them from the notes as guarantors in their individual capacity. This argument must fail. As previously noted, the evidence does not establish that the appellee bank was guilty of acquiescence. Furthermore, the right of redemption can only be exercised where there has been a tender to the mortgagee. Willson v. Buxton, 149 So. 329, 330 (Fla.1933). Appellants made no tender to the appellee below. Appellant James William Peacock, Jr., testified that he went to Sun Federal Savings and Loan in an effort to avoid foreclosure and was told that if the appel-lee succeeded in “reclaiming” the corporate assets from the bankruptcy proceedings then Sun Federal would lend appellant sufficient funds to redeem his mortgages with the appellee. However, appellant admitted that he did not receive a written commitment from Sun Federal, and Mr. Wright testified that appellant never asked him to release the corporate assets. Furthermore, Mr. Wright testified that before the bankruptcy proceedings began he offered to release appellant’s house to him so that appellant could obtain other financing, but appellant never tendered a firm offer of payment nor a commitment from any lending institution for a loan sufficient to meet his obligations to appellee. The evidence is susceptible to no reasonable interpretation other than as given it by the trial court.

For the foregoing reasons, the judgment is AFFIRMED.

MILLS and NIMMONS, JJ., concur.

      . On appeal to the United States District Court for the Northern District of Florida, the marshaling order was reversed.

      . Appellant James William Peacock, through his attorney, made an offer in open court to the bankruptcy judge of $40,000 for purchase of the office building property. Appellant nevertheless testified in the state foreclosure action here appealed that the value of the office building property was $285,000.

      . See, e.g., Southwest Florida Production Credit Association v. Schirow, 388 So.2d 338 (Fla. 4th DCA 1980) (loan originally secured by a partnership ranch; plaintiff credit association, without consent of defendants, subsequently allowed a partner to substitute collateral which became worthless); Guida v. Exchange National Bank, 308 So.2d 148 (Fla. 2d DCA 1975) (bank breached its duty to the endorser of a note when it released the collateral under the security agree-merit without the knowledge or consent of the endorser); First Bank and Trust Company v. Post, 10 Ill.App.3d 127, 293 N.E.2d 907 (1973) (failure to properly file a financing statement and thus perfect a security interest in the collateral); Re Estate of Voelker, 252 N.W.2d 400 (Iowa 1977) (same), American Bank of Commerce v. Covolo, 88 N.M. 405, 540 P.2d 1294 (1975) (same). See, generally, Annotation, 95 ALR 3d 962 (1979).


author: THOMPSON, Judge.

text:
    POWER SYSTEMS, INC., Appellant, v. STALLINGS & McCORVEY, INC., an Alabama Corporation, and United States Fidelity & Guaranty Co., a Maryland Corporation, and Ramco Electric Company, a Florida Corporation, Appellees.
    No. AV-28.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    A. Edward Fawwal, Bessemer, Ala., for appellant.
    David A. Simpson, Fort Walton, and J. Lofton Westmoreland, Pensacola, for ap-pellees.
   THOMPSON, Judge.

Power Systems, Inc. (Power Systems) appeals an order dismissing its contract action against Stallings & McCorvey, Inc. (S&M), United States Fidelity & Guaranty Co. (USF&G), and Rameo Electric Co. (Rameo). Power Systems asserts the trial court erroneously concluded that dismissal of a prior action in federal court was res judicata. However, Power Systems does not challenge the dismissal as to USF&G. We reverse.

S&M entered into a contract with the United States Government on May 14, 1976, for construction of the Base Flight Operations Facility at Eglin Air Force Base. United States Fidelity & Guaranty Co. (USF&G) was S&M’s surety on this project. Rameo, an electrical subcontractor on this project, contracted to purchase certain materials and services for the project from Power Systems. A dispute arose between the parties and on October 31, 1979, Power Systems commenced a suit under the Miller Act, 40 U.S.C. §§ 270a-270d, in the United States District Court for the Northern District of Florida. The federal court dismissed Power Systems’s complaint, with prejudice, because it was not filed within the one-year time period required under the Miller Act. On March 30, 1983, Power Systems filed a breach of contract action in the circuit court of Oka-loosa County against S&M, USF&G, and Rameo. The trial court dismissed the contract action, reasoning that the dismissal in federal court was res judicata of the issues between the parties.

The trial court erred in concluding that the dismissal in federal court was res judicata. Since the one-year time limitation in the Miller Act, 40 U.S.C. § 270b(b), is jurisdictional, see United States for the Use of Celanese Coatings Co. v. Gullard, 504 F.2d 466 (9th Cir.1974), the federal court was without jurisdiction to hear the case and therefore could not have decided the case on the merits. Additionally, although United States District Courts have exclusive jurisdiction of actions on bonds under the Miller Act, see United States Fidelity & Guaranty Co. v. Hendry Corp., 391 F.2d 13 (5th Cir.), cert. den., 393 U.S. 978, 89 S.Ct. 446, 21 L.Ed.2d 439 (1968), the Miller Act does not preclude a common law action in state court against the principals. However, under the Miller Act, the surety cannot be named as a party in a state action, is not permitted to intervene in the state action, and is not bound by the state court judgment. Id.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SHIVERS and ZEHMER, JJ„ concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Danny E. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-7.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1984.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Defendant Danny Williams appeals from the order withholding adjudication of guilt and placing him on five years probation. The defendant pled nolo contendere to a charge of possession of marijuana, specifically reserving the right to appeal the denial of his motion to suppress evidence. The state stipulated that the entry of the order denying suppression was dispositive of the case. We reverse and order appellant discharged.

The following relevant facts were developed at the suppression hearing. Two city of Tampa police officers were cruising the projects on routine patrol when an anonymous citizen approached them and announced that a tall, black man was selling marijuana in front of the My Place Bar several blocks down the street. The officers proceeded immediately to the bar whereupon they observed the defendant sitting out front. Although the officers did not observe any suspicious conduct on the part of the defendant, they decided to approach him. Upon reaching the spot where defendant was seated, they said something to the effect of “What are you doing selling marijuana this time of the day?” They also noticed a large bulge protruding from the front of the defendant’s mid-section. One of the officers patted the bulge and felt what he suspected to be marijuana. The defendant was then instructed to pull up his shirt thereby exposing a bag containing smaller baggies of marijuana. At no time did the officers suspect the defendant was armed or dangerous.

The trial court denied the motion to suppress on probable cause grounds. According to the court, the tip was sufficiently corroborated in that a tall, black man was found in front of the named bar. Furthermore, once the officer patted the bulge and determined in his own mind that it was marijuana, the officer had probable cause to do “whatever he wished.”

On appeal defendant asserts that the officers’ investigatory actions should be analyzed pursuant to Florida’s Stop and Frisk Law, section 901.151, Florida Statutes (1983). Specifically, defendant contends the officers’ seizure of the marijuana was improper as they never suspected the bulge in his shirt contained a weapon. While we agree with this contention, we need not address it since we believe the officers exceeded their authority in stopping the defendant.

In order to justify an investigatory stop of an individual, an officer must have a reasonable, well-founded suspicion that the person has committed, is committing, or is about to commit a criminal offense. Wilson v. State, 433 So.2d 1301 (Fla.2d DCA 1983); Kearse v. State, 384 So.2d 272 (Fla.4th DCA 1980); State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978); State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977); Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976), cert. denied, 345 So.2d 427 (Fla.1977); § 901.151, Fla. Stat. (1983). A mere or bare suspicion will not suffice. Sumlin v. State, 433 So.2d 1303 (Fla.2d DCA 1983); Coleman v. State, 333 So.2d 503 (Fla.4th DCA), cert. denied, 342 So.2d 1103 (Fla.1976). The officer’s suspicion must be based on observed facts interpreted in light of the officer’s knowledge, training, and practical experience. Taylor v. State, 384 So.2d 1310 (Fla.2d DCA), petition for review denied, 392 So.2d 1390 (Fla.1980); Wilson v. State. The officer must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably justify the stop. State v. Webb, 398 So.2d 820 (Fla.1981). The question whether a valid stop may be predicated on an anonymous tip is determined by the reliability of the information given in the tip. State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979), aff'd, 387 So.2d 963 (Fla.1980). Such reliability may be shown through the surrounding circumstances or through the nature of the information itself. Id.

Sub judice we have no trouble concluding that the officers did not possess the founded suspicion necessary to conduct the stop. When the officers decided to pursue the tip to the My Place Bar, the only information they had was that a tall, black man was selling marijuana. This vague, general description may have implicated many black men and thus we can not agree with the trial court that defendant’s presence at the bar served to sufficiently corroborate the tip. See Ross v. State, 419 So.2d 1170 (Fla.2d DCA 1982) (tip that a black male with short cropped hair, wearing a white tee shirt and blue jeans was involved in an assault could have fit many people in the black neighborhood). Had the tip been more specific, however, and had the officers been able to corroborate the details of the tip, then the test of the reliability would have been met. Such detail in a tip carries a strong indication that the tip is based on the personal observation of the informant as opposed to mere rumor. State v. Hetland, 366 So.2d at 839.

Upon their arrival at the bar, the officers noticed the defendant sitting out front. Although he fit the description, the officers did not observe him engaged in any suspicious activity. Nor did the officers attempt to corroborate through surveillance the substance of the tip, to wit: that someone was selling marijuana. As the officers approached, the defendant did not make any furtive movements nor did he attempt to flee.

In Hetland, we noted that a vague description will not always suffice to justify a law enforcement officer in stopping every individual who might possibly meet that description. Here, the vague description, combined with the lack of corroborating circumstances observed by the officers, was insufficient to reasonably indicate that the defendant was involved in criminal activity. Thus, we hold that the trial court erred in denying defendant’s motion to suppress.

In view of our disposition of the issue, we need not address defendant’s other point on appeal.

REVERSED.

SCHEB and SCHOONOVER, JJ., concur.


text:
    LaMarcus Edward CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1844.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1984.

      Douglas A. Lockwood, III, of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., and Leonard C. Carter, Lakeland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant LaMarcus Edward Carter challenges an order denying his motion to suppress cocaine seized from his vehicle during a warrantless search. We reverse.

Carter pled not guilty to the charge of possession of cocaine. Following a jury trial, he was found guilty as charged, adjudicated, and sentenced to a five-year probationary term, conditioned upon payment of a fine and service of a period of incarceration. This timely appeal ensued.

The facts are not in dispute and can be summarized as follows:

While undercover detectives Boatner and Ivancevitch were patrolling parking lots in the city of Lakeland — allegedly recognized areas for illegal narcotics distribution and use — they observed Carter and two male passengers seated in a lawfully parked Jeep Cherokee in the parking lot of the Office Lounge at approximately 9:00 p.m. The lounge was open at the time. The detectives’ attention focused upon the vehicle because it was obviously parked, its interior dome light was on, and its occupants were looking around but making no attempt to get out.

Boatner and Ivancevitch drove past the vehicle, assumed a surveillance position in the parking lot, and observed the suspects for approximately three to five minutes. During this period, the detectives saw Carter, the driver, look toward the front and back of the vehicle “as though looking for someone who might be watching him” and then bend down toward the middle of the front seat on at least two occasions. Based upon their experience as narcotics investigators, the officers believed that these motions were consistent with the inhalation of cocaine and “felt” or “suspected” that a controlled substance might be present in the vehicle and that criminal activity might be taking place.

The foregoing observations prompted Bo-atner and Ivancevitch to radio for police back-up, exit their car, and approach the suspect vehicle to further their investigation. During their approach, the officers heard one passenger say, “They’re cops.” Boatner then observed the passenger throw a commercially rolled cigarette out of the back window of the vehicle; Ivancev-itch witnessed the same activity but was unable to identify the item discarded. Believing that the passenger’s recognition of them as police officers gave them “even further latitude in [their] investigation,” the officers rushed to opposite sides of the vehicle, produced departmental identification, and secured the occupants after “brandishing]” Boatner’s service revolver. In the process of securing the occupants, Boatner observed Carter place a rolled bill, which Boatner recognized as a common implement for cocaine inhalation, in Carter’s right front pants’ pocket. While later removing Carter from the vehicle, Ivancev-itch observed a “white powdery substance,” which he believed to be cocaine, on the armrest of the front seat. Upon detecting the powdery substance, Ivancevitch formally arrested Carter, searched him, and found a rolled twenty dollar bill in his right front pants’ pocket. A subsequent search of the vehicle produced what may have been traces of cocaine on the armrest; however, the officers found no other evidence of contraband either in the vehicle or on Carter’s person.

When presented with the foregoing facts in Carter’s motion to suppress, the trial court concluded that the officers possessed a well-founded suspicion of criminal activity which authorized them to approach Carter’s vehicle and to conduct a lawful investigatory stop and detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and section 901.151, Florida Statutes (1981). We disagree.

Neither party contends that the officers’ initial interaction with the occupants of the suspect vehicle was anything less than an investigatory detention under Terry, which was justifiable only if the officers possessed a “founded” suspicion of the occupants’ criminal activity. Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983); Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); R.B. v. State, 429 So.2d 815 (Fla. 2d DCA 1983); State v. Perera, 412 So.2d 867 (Fla. 2d DCA), petition for review denied, 419 So.2d 1199 (Fla.1982); § 901.151, Fla. Stat. (1981). See Terry v. Ohio; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 65 L.Ed.2d 497 (1980) (distinction exists between a police intrusion which amounts to “seizure” of the person and an encounter which intrudes upon no constitutionally protected interest); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); United States v. Thompson, 712 F.2d 1356 (11th Cir.1983); Lightbourne v. State, 438 So.2d 380 (Fla.1983); State v. Cahill, 388 So.2d 354 (Fla. 2d DCA 1980). Thus, it is clear that the instant investigatory detention was justified only if a “founded suspicion” existed in the minds of the detaining officers that the suspects had committed, were committing, or were about to commit a crime. Wilson; Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

A “founded suspicion” arises if the circumstances observed by the officer, interpreted in light of the officer’s knowledge, reasonably indicate the possible presence of criminal activity. Stevens at 1247. The officer’s suspicion is “founded” upon an objective foundation which reasonably supports his assessment of the particular circumstances. Conversely, a “mere” or “bare” suspicion lacks sufficient objective justification and thus is akin to random selection, mere guesswork, or a hunch. Id. Accord Wilson; Freeman. Because a mere suspicion cannot support a valid detention, an officer cannot lawfully infringe upon a citizen’s fourth amendment interests solely upon a “hunch” sparked by his professional experience.

In the instant case, it is clear that Detectives Boatner and Ivancevitch seized Carter, or significantly interfered with his liberty, after making only brief observations of conduct which was at least equally consistent with noncriminal activity. Indeed, the officers candidly admitted that their observation of Carter’s motions inside of a lighted vehicle, which was lawfully parked outside a lounge during its regular business hours, led them only to “feel,” “suspect,” or “believe” that criminal activity might be afoot. Therefore, we conclude that the officers’ initial observations did not, and in fact could not, give rise to anything more than a bare suspicion of unlawful activity. Although the detectives apparently believed that the back seat passenger’s recognition of them as police officers and subsequent action in discarding the commercially rolled cigarette permitted them to take “even further latitude in [their] investigation,” we do not agree that these additional observations increased the reasonableness of the officers’ suspicion. See Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976) (officers dispatched to investigate report of “speeding autos and intoxicated juveniles” did not have founded suspicion to stop nonspeeding vehicle which “appeared to have no destination,” even though passenger pointed to police or froze when she saw them and officers believed that something was thrown out of rear window as car stopped).

While the activities observed legitimately may have aroused the officers’ suspicions, we do not believe that they created the founded suspicion necessary to justify appellant’s detention. Because the initial stop was unlawful, the evidence seized as a result of the illegal detention should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 So.2d 407, 9 L.Ed.2d 441 (1963); Caladonato v. State, 348 So.2d 326 (Fla.1977); Lewis v. State, 382 So.2d 1249 (Fla. 5th DCA 1980); Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977). Accordingly, we reverse Carter’s conviction and remand with directions for his discharge.

We have reviewed appellant’s remaining contentions and have found them to be without merit.

REVERSED and REMANDED.

SCHEB and SCHOONOVER, JJ., concur.

      . Carter maintains that the seizure was, in fact, an arrest which was justifiable only if the higher standard of probable cause were satisfied. While we need not address this issue in light of our holding, we note that this court rejected a similar contention in State v. Perera, 412 So.2d 867, 870-71 (Fla. 2d DCA), petition for review denied, 419 So.2d 1199 (Fla.1982).

      . Carter could have been searching for a misplaced cigarette lighter, as he maintained at trial, or performing numerous other innocent activities.


author: PER CURIAM.

text:
    Odyl Jean JACQUES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1094.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 1984.
    Bennett H. Brummer, Public Defender and Sanford D. Rockowitz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

Affirmed. McIlwain v. State, 402 So.2d 1194 (Fla. 5th DCA 1981), pet. for review denied, 412 So.2d 467 (Fla.1982); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981).


text:
    Frank PETRUCCI, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 1984.
    Gelber, Glass & Durant and Joseph Durant, Miami, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Upon review of the record, the briefs, and argument of counsel, it is apparent to this court that the trial judge imposed a sentence at variance with the plea agreement entered into between the state and the defendant. We remand this case to the trial court with directions to conform the sentence to the plea agreement or, in the alternative, permit the defendant to withdraw his plea.

Reversed and remanded with directions.


author: MILLS, Judge.

text:
    ATLANTIC PLASTERING, INC. and Risk Management Services, Appellants, v. Charles W. O’HARA, Appellee.
    No. AW-361.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.

      William W. Contóle, West Palm Beach, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellee.
   MILLS, Judge.

Atlantic Plastering, Inc. and Risk Management Services (E/C) appeal an award to O’Hara of catastrophic loss benefits pursuant to Section 440.15(2)(b), Florida Statutes (1983).

O’Hara, a plasterer, was injured in a fall at his workplace, suffering head, rib and back injuries. The head and rib injuries healed without incident, but the back injury, diagnosed as a herniated disc, continued to affect O’Hara, manifesting itself in shooting pains primarily down the right leg, and in frequent collapse of the leg without warning. The E/C paid O’Hara standard TTD benefits as described in Section 440.15(2)(a), Florida Statutes (1983) (66%% of the AWW) beginning the day after the accident, but by this claim for catastrophic loss benefits pursuant to Section 440.15(2)(b), O’Hara sought to increase the level of those TTD benefits to 80% of his AWW for the period extending six months after the date of the accident.

To qualify for catastrophic loss benefits, a claimant must demonstrate 1) the total loss of use of an arm, leg, hand or foot, 2) because of organic damage to the nervous system. Section 440.15(2)(b). The E/C argue that O’Hara has demonstrated neither of the statutory requirements. No “total loss of use” of the leg has been shown, because the record reflects that O’Hara could drive short distances, stand, walk without mechanical aids and was not paralyzed. Further, the E/C concede that the herniated disc suffered by O’Hara is “organic damage to the nervous system,” but contend that the loss of use is not “because of” such damage, but because of the pain suffered as a result of the damage, based on testimony that pain was preventing the use of his leg. We disagree and affirm.

Regarding the “total loss of use” requirement of Section 440.15(2)(b), the law is clear that the phrase does not require amputation or loss of use so akin to amputation as to amount to the same thing before a claimant may be entitled to catastrophic loss benefits. Santiago v. Orr Industries, Inc., 407 So.2d 1026, 1028 (Fla. 1st DCA 1981). Therefore, it is irrelevant that O’Hara’s leg was not paralyzed as a result of his injury. The key to “total loss of use” is the inability to perform functions required in an industrial setting considered in light of the use which a claimant must reasonably make of the member (here, a leg) in his employment. See Van Eyk v. R.N. Hicks Construction Co., 377 So.2d 793, 794 (Fla. 1st DCA 1979); Santiago at 1028. Here, the testimony was unrefuted that O’Hara’s employment as a plasterer involves climbing up and down scaffolding, bending, carrying various construction material, kneeling, standing and squatting, all for the duration of an eight-hour day. The record further demonstrates that, primarily due to the pain and frequent collapse of his leg, the greatest amount of time at any one time that O’Hara can be on his feet is 2 hours, that he has not worked as a plasterer since the accident and that, due to his back injury and complaints arising therefrom, he could not perform the functions of employment as a plasterer. We find ample support in the record for the deputy’s finding that O’Hara has suffered a “total loss of use” of his leg within the meaning of the statute.

As noted above, the E/C concede that O’Hara’s herniated disc is “organic damage to the nervous system,” but argue that the damage is not causing the loss of use herein, as required by the statute, but, rather, pain is the cause thereof. We cannot accept this argument. It is not disputed that the disc injury is the cause of the shooting pain and tendency to collapse that is preventing the use of O’Hara’s leg. It is ■ specious to agree that nerve damage exists, and then to argue that the damage has not caused the loss of use but rather the pain generated by the damage. The deputy was therefore correct in holding that the loss of use of the leg was caused by damage to the nervous system, as required by the catastrophic loss statute.

The award of catastrophic loss benefits is affirmed.

BOOTH and BARFIELD, JJ., concur.


text:
    DON HARRIS PLUMBING COMPANY, INC. and New Hampshire Insurance Company, Appellants, v. John N. HENDERSON, Appellee.
    No. AX-180.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    John J. Schickel of Coker, Myers, Schick-el & Pierce, P.A., Jacksonville, for appellants.
    Stephen J. Pajcic of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellee.
   MILLS, Judge.

Don Harris Plumbing Company, Inc. and New Hampshire Insurance Company (E/C) appeal an award to Henderson’s spouse for attendant care services, from the date of his industrial accident to the present and continuing.

Prior to his claim for these services, the deputy found Henderson permanently and totally disabled as a result of the accident, which left him with a herniated disc. The accident was also found to have been at least a partial cause of certain psychiatric conditions suffered by him, namely psychogenic pain syndrome, anxiety and depression. The order of the deputy in which these findings appeared was not appealed, and the E/C commenced paying PTD benefits to Henderson. He subsequently filed this claim for attendant care services by his wife from the date of the accident to the present and continuing, as well as a lift chair, a swimming pool and a waterbed. The latter three claims were denied, but the deputy awarded attendant care services in the amount of $43.40 per week from the date of the accident through 31 December 1980 and $46.90 per week from 1 January 1981 to the present and continuing. It is from this award of benefits that the E/C appeal.

The E/C contend that there is no CSE in the record to support the award. They point out that Henderson’s treating neurologist testified that, in his opinion, there was no need for such services, and that the only evidence of the nature of any necessary services, and the time necessary to perform them, came from the wife herself. The E/C contend that the services provided by the wife, even if accurately recounted, amount to no more than a spouse would normally supply and therefore do not qualify as attendant care services. The E/C further argue that, even should the award be justified, it should not date from the date of the accident but rather from the date of the claim for such services, as they had no knowledge of the need for the service until that time. See City of Leesburg v. Balliet, 413 So.2d 860 (Fla. 1st DCA 1982).

Henderson responds that there is ample evidence to support the award, in that his treating psychiatrist testified that, due to the superimposition of the related psychiatric conditions on the back injury, such care was necessary, at least for a time. The neurologist’s testimony does not necessarily contradict this opinion, states Henderson, in that he may have been speaking from a strictly physiological point of view while the psychiatrist was familiar with the additional debilitations caused by his psychiatric condition. Further, his wife detailed her duties with him, testifying that she spent from two to six hours per day in performing them. Therefore, CSE supports this award. We agree and affirm.

Section 440.13(2)(d), Florida Statutes (1983), provides that “a family member may not be paid [for custodial care] when the services they provide do not go beyond those normally provided by family members gratuitously.” Ordinary household services, such as shopping and cooking, are gratuitous when performed by a spouse. See State v. Handy, 413 So.2d 808, 810 (Fla. 1st DCA 1982), but see Khawam v. Collision Clinic International, Inc., 413 So.2d 827 (Fla. 1st DCA 1982). When services go beyond these, however, benefits for attendant care may be awarded. See Rich International Airways v. Cahvas-quis, 416 So.2d 902 .(Fla. 1st DCA 1982). Such services have been defined as dressing, Craftsmen’s Village v. Benach, 8 FCR 372 (1974); bathing, Craftsmen’s Village, supra; Pan Am World Airways, Inc. v. Weaver, 226 So.2d 801 (Fla.1969); administering medication, Pan Am, supra; Edward L. Nezelek Construction v. Terlizzese, 9 FCR 328 (1975); and assisting with sanitary functions, Craftsmen’s Village, supra. Here, uncontradicted testimony indicates that Henderson’s wife performed all of these functions, plus assisting him in rising and in donning therapeutic apparatus. His psychiatrist confirmed that his psychiatric condition superimposed on the related back injury resulted in the need for this assistance.

The award of attendant care benefits is supported by CSE and we affirm.

We do not address the E/C’s contention that the award was inappropriately made from the date of the accident rather than the date of the claim, as this question was not substantially raised before the deputy and consequently is not preserved -"or review by this court. See Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

BOOTH and BARFIELD, JJ., concur.


text:
    Elizabeth J. DYES, Appellant, v. Jack W. DYES, Sr., Appellee.
    No. AZ-17.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.

      Carlton Welch, Jacksonville, for appellant.
    No appearance for appellee.
   MILLS, Judge.

Appellant takes an interlocutory appeal challenging the trial court’s grant of a motion for protective order and partial grant of a motion for judgment on the pleadings. We dismiss the appeal on our own motion.

The protective order is neither a final order nor a nonfinal, interlocutory order reviewable pursuant to Florida Rule of Appellate Procedure 9.130. In addition, the protective order does not warrant the exercise of our certiorari jurisdiction. City of Williston v. Roadlander, 425 So.2d 1175, 1176 n. 1 (Fla. 1st DCA 1983).

The order partially granting appel-lee’s motion for judgment on the pleadings is likewise neither a final order nor a nonfi-nal, interlocutory order reviewable pursuant to Fla.R.App.P. 9.130. Sgrignuoili v. Barakat, 384 So.2d 657 (Fla. 3d DCA 1980).

The appeal is dismissed.

BOOTH and BARFIELD, JJ., concur.


author: SHARP, Judge.

text:
    MID-FLORIDA REALTY ASSOCIATES, INC., a Florida corporation, Appellant, v. R.F. TRUESDELL and the Estate of Joseph O. Young a/k/a J.O. Young, Deceased, Appellees.
    No. 83-1531.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 1984.

      Mikel W. Carpenter, of Arnold, Matheny & Eagan, P.A., Orlando, for appellant.
    William M. Rowland, Jr., of Rowland & Thomas, P.A., Orlando, for appellees.
   SHARP, Judge.

Mid-Florida Realty Associates, Inc. (Mid-Florida), a broker, appeals from the dismissal of its amended complaint seeking to recover a real estate commission from Truesdell and Young, sellers, on both an express and an implied contract theory. The suit was filed against Young’s estate because he died after the events occurred which were alleged in the complaint as entitling appellant to a real estate commission. We reverse because we think appellant alleged a cause of action for a real estate commission.

Appellant alleged that it entered into an express exclusive right of sale contract for the appellees’ 9.6 acres located in Orange County, Florida. The appellees agreed (expressly and impliedly) to pay appellant a commission if it obtained a buyer willing and able to purchase the property for $600,000.00 with 29% down, and the balance within five years, at 12% per annum interest. Mid-Florida procured such a buyer, and delivered to the attorney for the sellers, William Rowland, an executed contract substantially in compliance with the listing and the instructions given to it by the sellers.

Appellees succeeded in having the first complaint dismissed because the contract attached to the complaint contained paragraph number 22, that allowed the brokers to participate in the sale as buyers. The court ruled this was a material deviation from the listing agreement.

In the amended complaint Mid-Florida added two allegations to overcome the apparent discrepancy. First, it alleged the sellers had accepted the terms of the proffered contract, except they wanted more money than the $600,000.00 agreed upon. The sellers’ assent was allegedly told to the brokers by the attorney for the sellers, William Rowland, and appellant alleged Rowland was authorized to act for the sellers in this regard. Further, appellant alleged that Truesdell told appellant he agreed to the terms of the contract; and that both Truesdell and Young later, through their attorney, Rowland, approved the terms of the contract.

A real estate broker earns his commission in this kind of a contract listing when he presents to the seller a customer who is ready, able, and willing to buy the property on the terms prescribed by the owner in the listing agreement—be it express or implied. McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957); Cammack v. Leonhardt, 302 So.2d 170 (Fla. 4th DCA 1974). The contract to purchase must be satisfactory to the owner.

If the contract departs from the owner’s terms, or adds a provision not prescribed by the owner, it is considered to be a counter-offer, which the owner may accept. The issue in such a case is whether the owner actually agreed to the variation and accepted the contract as presented. Schmalzried v. Findley, 394 So.2d 436 (Fla. 3d DCA 1981); Jerry Norris, Inc. v. Ackel, 311 So.2d 712 (Fla. 4th DCA 1975). If the owner accepts the contract, or waives his objections, the broker may recover his commission, whether the contract actually closes or not. Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876 (1944); General Development Corporation v. Chaffin, 126 So.2d 748 (Fla. 2d DCA 1961).

Further, such waiver or acceptance may be proved by showing actions or words of the seller inconsistent with a posture of rejecting the contract, Taylor, or by express assent to the contract—written or verbal. Block v. Drucker, 212 So.2d 890 (Fla. 3d DCA 1968). Such communications between buyer and seller may be transmitted through the parties’ attorneys. See Schuele v. Sposato, 177 So.2d 864 (Fla. 2d DCA 1965).

In this case we think Mid-Florida pleaded a cause of action against appellees for a brokerage commission, even if paragraph 22 constitutes a material departure from the express or implied listing agreement. Appellant is entitled to try to prove appellees accepted the contract presented to them through Rowland by words or acts communicated directly to appellant, or through their attorney, or by their attorney acting on their behalf as their agent.

Accordingly, we reverse the judgment of dismissal and remand for further proceedings.

REVERSED AND REMANDED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . The paragraph provided:
      The parties recognize that the Agent, or principals of the Agent, may acquire from Buyer an interest in the property.

      . This later possibility is generally within the ambit of the pleadings, but proof of special authority will be required. See Rushing v. Garrett, 375 So.2d 903 (Fla. 1st DCA 1979).


author: MILLS, Judge. SHIVERS, Judge,

text:
    Albert SWEAT, Appellant, v. STATE of Florida, Appellee.
    No. AW-100.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.

      Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Sweat appeals his 18-month sentence, contending the trial court erred in exceeding the sentence recommended by the sentencing guidelines set forth in Rules 3.701 and 3.988, Fla.R.Crim.P. (1983). We affirm.

On 22 August 1983, Sweat was charged with sexual battery of a four-year-old mongoloid child contrary to Section 794.011, Florida Statutes. Subsequently, he pled guilty to the lesser included offense of lewd and lascivious or indecent assault or act upon or in the presence of a child contrary to Section 800.04, Florida Statutes.

Sweat elected to be sentenced under the sentencing guidelines. At the sentencing hearing, it was developed that Sweat was reared by the victim’s parents, that he was intoxicated at the time of the incident, and that the victim was not injured by the assault. The recommended sentence under the sentencing guidelines was any nonstate prison sanction. The trial judge departed from the sentencing guidelines and sentenced Sweat to 18 months in the Department of Corrections, recommending that he be confined to a facility for the treatment of mentally disoriented sex offenders.

The Committee Note to Rule 3.701(d)(ll), in existence at the time of sentencing, suggests that sentences under the Mentally Disoriented Sex Offender Act (Chapter 917) “need not conform to the guidelines.” The Supreme Court adopted the committee notes at the time it adopted the sentencing guidelines. See Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984). We interpret this note to mean that once an offender is determined to be a candidate for mentally disoriented sex offender treatment, Rule 3.701 is not applicable.

A word of caution, however. On 8 May 1984, the Supreme Court approved changes in the sentencing guidelines and the committee note to Section 3.701(d)(ll) has been deleted. The Court stated that “The Committee Note to 3.701(d)(ll), which discusses statutory alternatives, has been completely eliminated. While these statutory alternatives are acknowledged, the sentencing court is required to explain the guideline departure when an alternative program is used.”

The sentence imposed in this ease is affirmed.

WIGGINTON, J., concurs.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting:

I respectfully dissent and would hold that the sentencing guidelines, should be applied.

Section 921.001, Florida Statutes (1983), authorized the Supreme Court to develop and implement statewide sentencing guidelines. This statute provides in subsection (4)(a), in pertinent part, that “[t]he guidelines shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act.” (e.s.) Manifestly, the guidelines should be applied to the offense pleaded to by Sweat, since violation of section 800.04, Florida Statutes, results in the offender being guilty of a felony of the second degree. The committee note to Rule 3.701(d)(ll) carving out an exception to the statute, and relied upon by the majority, cannot control since the statute must prevail over the committee note, prescribed punishment for criminal offenses being substantive law. See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).

Moreover, I note that the initial guidelines adopted by the Supreme Court as set forth In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), were not adopted by the Legislature. Significantly, however, the revisions to the sentencing guidelines promulgated by the Supreme Court were adopted by the Legislature and these revisions specifically deleted that part of the committee note relied upon by the majority. Although I can only hypothesize that the Sentencing Commission, the Supreme Court, and the Legislature through its adoption of the Supreme Court’s revisions, deleted this part of the committee note in order to conform the note to Section 921.001(4)(a), such hypothesis is unnecessary since the committee note would not be controlling even if this revision had not been made.


text:
    Lawrence Erwin WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AW-300.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    John B. Monroe, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

In this appeal, the only issue of substance raised by Williams is whether the trial court erred in exceeding the sentence recommended by the sentencing guidelines. The trial court did not err and we affirm.

Shortly after midnight on 26 August 1983, Williams, a 19 year old with no prior criminal record, walked out to the trash pickup area of the apartment complex where he lived. He noticed a light on in the bathroom of a nearby house and, upon closer inspection, saw a woman taking a shower inside.

Williams went to the house, cut a hole in •a screen with his pocket knife, reached in through the hole and unlatched the backdoor. Once inside, he took off his clothes, walked to the bathroom and switched off the light. Williams forced the victim to perform fellatio on him. He then made her lie down on the bathroom floor where he had intercourse with her.

Williams ran from the house and was apprehended a short time later. At the time of the offense, the victim’s children were asleep in a bedroom in the house and her husband was away at work.

Williams was charged by information with the first degree felony of burglary pursuant to Section 810.02(2), Florida Statutes (1983), and the second degree felony of sexual battery pursuant to Section 794.-011(5), Florida Statutes (1983). On 18 October 1983, Williams withdrew his initial plea of not guilty and pleaded guilty to both offenses as charged.

At the hearing on the plea change, the following exchanges took place:

THE COURT: All right. Do you understand that burglary while armed is a first degree felony, punishable by up to the life imprisonment? The second count is a second degree felony, punishable by up to 15 years in prison. Is that clear?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: Mr. Williams, the sentencing guidelines recommendation regarding sentencing is three years in the State Prison. The State Attorney states that at the time of sentencing they’re going to try to urge the Court to deviate from that and to give you a greater period of time in State Prison. Did you hear and understand that recommendation?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: Which means new (sic) could be sentenced up to life imprisonment. Is that clear?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: All right. Do you understand here that the recommendation and the statements of the prosecutor are not binding upon the Court?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: I will consider the sentencing guidelines recommendation, I will consider the recommendation of the State, but sentencing in the final end is completely up to the Judge to do what he thinks is best after reviewing all the facts in your case. Is that clear?
DEFENDANT WILLIAMS: Yes, sir.

Williams’ counsel stated at the same hearing:

I might add for purposes of clarification that our position is that the three year sentencing guidelines should be followed,

On 22 November 1983, the court held a sentencing hearing. After giving the prosecutor, defense counsel, and Williams an opportunity to make statements, the trial court departed from the recommended sentence under the guidelines of three-years incarceration. The trial court sentenced Williams to 25 years imprisonment for burglary and 12 years imprisonment for sexual battery; the sentences to run concurrently. Pursuant to Florida Rule of Criminal Procedure 3.701(d)(ll), the trial court prepared a written statement giving reasons for the departure.

The reasons for the trial court’s departure are as follows:

1. On October 26, 1983, a little after midnight, the Defendant went to the victim’s private dwelling and observed her through the bathroom window taking a bath. The Defendant then went to the back door, unlatched it by puncturing a hole through the screen with his knife, went inside where, in the kitchen, he removed his pants, then proceeded to the bathroom where he reached inside and turned the light switch off. At that point, the victim screamed and the Defendant jumped into the bathtub with her, commanding her to commit oral sex. Thereafter, he forced her outside the tub and forced her to lie on the' bathroom floor, where he engaged in sexual intercourse for five to ten minutes. He then left the premises, apologetically.
2. The Defendant invaded the privacy and sanctity of the victim’s house at a time when she was weakest and most susceptible to an attack without being afforded the benefit of self-defense or resistance.
3. The Defendant intentionally created a moment of terror by turning the lights off in the bathroom where the assault took place.
4. At the time of the attack, the Defendant’s husband was at work and her two children were asleep in an adjacent bedroom. The Defendant had a disregard for the possible implication or the consequences upon innocent children if they had been awakened.
5. The Defendant consciously and carefully planned his crime which was spontaneous which reflects an unbridled release of his passions.
6. The Defendant committed two definite acts of Sexual Assault, to-wit: Fellatio and Sexual Intercourse.
7. The recommendation of Sentencing Guidelines is unconscionable in light of the facts and pleas of guilty. No reasonable person could disagree that the Sentencing Guidelines recommendation is woefully inappropriate for the nature and severity of the crime.
8. A three-year guideline sentence does not afford the time within which there can be adequate retribution, rehabilitation, and deterrence to the Defendant and to others.

When considered in totality, the reasons for departure are “clear and convincing” as required by Florida Rule of Criminal Procedure 3.701(d)(ll). Particularly clear and convincing are the reasons set forth in paragraphs 4, 7 and 8. In support of paragraph 8, see Sweat v. State, 454 So.2d 749 (Fla. 1st DCA 1984).

Williams ex post facto argument is without merit. He voluntarily selected guideline consideration. If he had not selected this method of sentencing, he would have been eligible for parole consideration. He affirmatively selected this alternative and thus waived any right he may have had for parole consideration. He affirmatively selected this alternative and thus waived any right he may have had for parole consideration. It is too late for him to complain.

AFFIRMED.

WIGGINTON, J., concurs.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting.

I respectfully dissent.

The trial judge must have “clear and convincing reasons” for departing from the guidelines. Fla.R.Crim.P. 3.701(d)(ll). This rule also provides that reasons given for departure shall not include factors relating to the instant offense for which convictions have not been obtained. The reasons given for departure were either facts common to nearly all offenses of this nature or improper, such as the additional sexual battery.

I would reverse and remand for resen-tencing under the guidelines.


author: ZEHMER, Judge.

text:
    M.L.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. AW-327.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.

      Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

M.L.K., a juvenile offender, appeals his conviction of dealing in stolen property, section 812.019, Florida Statutes, on two grounds: (1) that the trial court erred in admitting appellant’s incriminating statements in the absence of sufficient independent evidence to establish the corpus de-licti, and (2) that the state failed to prove beyond a reasonable doubt that appellant intended to participate in the crime. We affirm.

On July 29, 1983, a citizen of Leon County, Bill Lewis, complained to the sheriff’s department that a Shakespear trolling motor he purchased for $300 from K-Mart two months earlier had been stolen. On September 1, 1983, appellant was charged in a petition of delinquency with dealing in stolen property, i.e., the stolen motor. He pleaded not guilty and received a nonjury trial. At the close of both the state’s case and his own, appellant moved for a judgment of acquittal on the grounds that the state had failed to prove he knew the motor was stolen or that he facilitated the sale. Both motions were denied. At the close of trial, the court found that appellant had admitted he knew the motor was stolen and that he had facilitated the sale by transporting the motor in his car to the place where it was sold. Appellant was adjudicated delinquent and placed on community control.

At trial, Detective White testified that after meeting with Lewis, on August 4, 1983, he questioned C.R., a codefendant, about the theft of the motor and that C.R. implicated both M.B. and appellant; that on the same day he interviewed appellant and M.B., and both denied the motor was stolen; that he asked them to return the following day, August 5, which they did; that they then told Detectives. Johnson and White they did not steal the motor, but had known it was stolen; that the three of them, C.R., M.B., and appellant had unsuccessfully attempted to sell the motor at several pa\yn shops, all of which were closed because it was Sunday; that the three had returned to appellant’s house, where several phone calls were made, one to Mr. Chester, who indicated interest in purchasing the motor; and that the three had driven in appellant’s car to Chester’s service station, where they had bargained with Chester for the sale of the motor.

M.B. testified that although C.R. said the motor belonged to him, M.B. suspected it was stolen because C.R. did not own a boat. But M.B. also testified he did not tell White on August 5 that he knew the motor was stolen. Appellant testified he did not know the motor was stolen and he did not tell White on August 5 that he knew at the time of the sale that it was stolen. M.B. and appellant both testified they remained in the car while C.R. went into the service station to see Chester but about five minutes later they left the car and went into the station, where they observed C.R. and Chester close the sale.

Regarding appellant’s first issue, we conclude that the state presented evidence, independent of appellant’s statements, sufficient to establish the corpus delicti and, thus, permit admission of those statements in evidence. Prima facie evidence of the corpus delicti, or the elements of the crime with which a defendant is charged, must be established by independent evidence before a confession to the crime may be used to prove guilt. State v. Allen, 335 So.2d 823 (Fla.1976); Ruiz v. State, 388 So.2d 610 (Fla. 3d DCA 1980); Ussery v. State, 382 So.2d 380 (Fla. 3d DCA 1980). The statutory offense of dealing in stolen property is defined in section 812.019(1):

Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree ....

Trafficking is defined in section 812.012(7): ‘Traffic’ means:

(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

The elements of the offense are (1) that the defendant traffic or attempt to traffic in property, Coley v. State, 391 So.2d 725, 727 (Fla. 1st DCA 1981), (2) that he knows or should know to be stolen. State v. Rios, 409 So.2d 241, 243 (Fla. 3d DCA 1982).

The corpus delicti was established by Lewis’s testimony that his $300 Shakespear trolling motor had been stolen, Chester’s testimony that he bought a similarly described motor from C.R. while M.B. and appellant observed from a distance, and the state’s showing that the motor stolen from Lewis was the same motor sold to Chester. This evidence, independent of appellant’s statements, authorized a reasonable inference that the crime charged had been committed. See, State v. Allen, supra, at 824, 825; Ruiz v. State, supra, at 612. The state met its preliminary burden of establishing a prima facie corpus delicti and, thus, laid a sufficient predicate for the admission of appellant’s' incriminating statements.

Appellant further argues that even if his incriminating statements are admissible, the trial court nevertheless erred in denying his motion for judgment of acquittal because there is a reasonable hypothesis of innocence regarding the element of his intent which precluded the court’s finding beyond a reasonable doubt that he knew the motor was stolen, citing Davis v. State, 90 So.2d 629, 631 (Fla.1956), and Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982). The cited cases involved proof of criminal intent based solely on circumstantial evidence in the absence of a confession or admission of guilty knowledge. Since appellant’s admission of guilty knowledge was properly received in evidence, the state was not compelled to rely solely on circumstantial evidence of criminal intent. White’s testimony regarding appellant’s incriminating statement supplied direct evidence of appellant’s guilty knowledge, at the time of the sale, that the motor had been stolen. Although appellant denied admitting to White that he was aware the motor was stolen, the evidence on this issue was conflicting. The credibility and probative force of conflicting testimony is not determined on a motion for judgment of acquittal. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The trial court properly denied appellant’s' motion for judgment of acquittal.

AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.

      . This Latin phrase means, literally, "the body of the crime.” It is regularly used in appellate decisions to mean the legal elements necessary to show that a crime was committed. State v. Allen, 335 So.2d 823, 824, n. 2 (Fla.1976).

      . Appellant, citing Knight v. State, 402 So.2d 435 (Fla. 3d DCA 1981), asserts that his failure during trial to object to the introduction of his incriminating statements on the ground that the corpus delicti had not been established is not fatal to his present claim that he was entitled to judgment of acquittal since his conviction was obtained on the confession alone. While we agree with Judge Pearson's opinion in Knight v. State, supra, that sufficient evidence of corpus delicti is not only a predicate to the admission of a confession but is, as well, the sin qua non of conviction, application of that principle is not necessary here because the state adequately established the corpus delicti and did not stand on the lack of such objection as a basis for affirmance.


text:
    Earl WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AY-161.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    Earl .Williams, pro se.
    No appearance for appellee.
   MILLS, Judge.

Williams appeals the summary denial of his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. As grounds for his motion, Williams stated that he had been denied effective assistance of counsel and the right to appeal, based on the failure of his court-appointed counsel to file an appeal on his behalf, despite his alleged request that he do so. The trial court denied the motion, stating that it was untimely due to Williams’ delay in filing of nine months after sentencing. This appeal followed.

We affirm, but not on the ground relied on by the trial court. It was error to deny Williams’ motion as untimely because Rule 3.850 provides that “[a] motion for ... relief [under the rule] may be made at any time.” (Emphasis supplied). However, the motion was properly denied because “frustration of appeal does not occur during trial and does not affect the validity of a conviction, therefore Rule 3.850 is not the appropriate procedure for raising this issue.” Chaudoin v. State, 383 So.2d 645, 646 (Fla. 5th DCA 1980). This court has also affirmed the denial of a Rule 3.850 motion alleging similar error, holding that such error “does not affect the validity of the conviction and sentence.” See Edwards v. State, 410 So.2d 635 (Fla. 1st DCA 1982).

The summary denial of Williams’ Rule 3.850 motion is affirmed.

BOOTH and BARFIELD, JJ., concur.

      . We note that Williams’ notice of appeal appears to be untimely filed. However, the trial court failed to include in its order denying the motion “a statement that the movant ha[d] the right to appeal within 30 days of the rendition of the order,” as required by Rule 3.850. Therefore, the appeal is correctly treated as one timely filed. See State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50, 51 (Fla.1975).


text:
    Robert W. IRBY, Appellant, v. STATE of Florida, Appellee.
    No. AY-496.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.

      Robert W. Irby, pro se.
    Jim Smith, Atty. Gen., for appellee.
   MILLS, Judge.

Irby appeals the summary denial of his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In his motion, he alleges numerous grounds, among them the denial of various motions by the trial court, error by the court in holding a joint trial with his codefendant, and failure to grant requests for certain standard jury instructions. The final ground stated by Irby is the ineffective assistance of his appellate counsel. His conviction was affirmed in Chapman, et al. v. State, 399 So.2d 1149 (Fla. 1st DCA 1981). The trial court denied the motion, stating that all grounds raised by Irby were improperly raised in a Rule 3.850 motion. We agree and affirm.

All of the grounds for relief raised by Irby, with the exception of the final ground, either were or could have been raised during the direct appeal of his conviction. This defect has been found sufficient to support the summary denial of a Rule 3.850 motion. See Alday v. State, 431 So.2d 714 (Fla. 1st DCA 1983).

The motion is also deficient in that it does not set forth sufficient facts to support the claim for relief but, rather, only conclusions of law. The assertion of conclusions of law without specific allegations of fact in support is not adequate in making a claim for relief under Rule 3.850. See McElroy v. State, 436 So.2d 417, 418 (Fla. 1st DCA 1983); Moore v. State, 453 So.2d 148 (Fla. 1st DCA 1984) (opinion filed July 13, 1984). These defects render the motion facially insufficient, see Evans v. State, 393 So.2d 80, 81 (Fla. 5th DCA 1981).'

The proper method by which to raise allegations of ineffective assistance of counsel is by petition for writ of habeas corpus directed to the appellate court which considered the appeal, see Knight v. State, 394 So.2d 997 (Fla.1981).

We affirm the trial court’s summary denial of Irby’s Rule 3.850 motion.

BOOTH and BARFIELD, JJ., concur.


text:
    Walter D. DICKINSON, individually, and Walter Dickinson, Inc., a Florida corporation, Petitioners, v. Clyde N. WELLS, Jr., Respondent.
    No. AZ-457.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.

      S. Gordon Blalock of Blalock, Holbrook & Akel, Jacksonville, for petitioners.
    Clyde N. Wells, Jr., Jacksonville, for respondent.
   MILLS, Judge.

Wells filed suit against Walter D. Dickinson, Inc. and Walter D. Dickinson, individually, seeking to have the defendants adjudged constructive trustees of certain property and seeking to have the defendants convey title to the property to him. Wells alleged the defendants breached their fiduciary relationship as real estate brokers to their client, Wells. The defendants say Wells never engaged their services and that no confidential or fiduciary relationship was ever established.

During the course of pretrial discovery, Wells propounded interrogatories to the defendants which, in essence, asked the defendants what, in their opinion, one would have to do to secure the services and become a client of the defendants. The defendants objected to the interrogatories.

After a hearing, the trial judge issued an order overruling the objections and giving defendants 20 days to answer the interrogatories. The defendants invoke the certio-rari jurisdiction of this court seeking to have the order quashed.

Orders relating to the scope of discovery are within the wide discretion of the trial court and should not be overturned absent departure from the essential requirements of law. Burroughs Corp. v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4th DCA 1979).

The interrogatories in question do not seek the mental impressions, conclusions, opinions or legal theories of petitioners’ counsel, but only the opinions of petitioners. The interrogatories therefore do not violate Florida Rule of Civil Procedure 1.280(b)(2). As stated in Fla.R.Civ.P. 1.340(b), “An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or calls for a conclusion or asks for information not within the personal knowledge of the party.”

The petition for writ of certiorari is denied.

BOOTH and BARFIELD, JJ., concur.


text:
    NORTH FLORIDA REGIONAL HOSPITAL, INC., also known as North Florida Regional Hospital, and Parthenon Insurance Company, Petitioners, v. Nina Ann DOUGLAS and Ralph J. Douglas, Respondents.
    No. BA-70.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.

      Marilyn R. McLean of Jones & Langdon, P.A., Gainesville, for petitioners.
    W. Roderick Bowdoin of Darby, Peele, Bowdoin, Manasco & Payne, Lake City, for respondents.
   MILLS, Judge.

Nina and Ralph Douglas sued North Florida Regional Hospital alleging negligent administration of chemotherapy to Nina. In a separate suit, the Douglases also sued a treating physician and Gaines-ville Obstetrics and Gynecology, P.A., alleging malpractice. In both cases, the Douglases sought discovery of the employment and personnel records of four nurses employed by the hospital and allegedly involved in the accident.

The defendants objected, the plaintiffs filed motions to compel, and the trial judge ' issued orders requiring the hospital to produce all employment and personnel records of the nurses excluding items that are “clearly committee evaluations.” Among other things, the trial judge found:

a. Defendant has no standing to assert any rights of privacy that may inure to the benefit of the four above named individuals;
b. § 768.40, Fla.Stat., and its interpretive case law, prohibits discovery of committee evaluations of nurses; and
c. The items requested in the request to produce are relevant to the subject matter of the pending action and reasonably appear calculated to lead to the discovery of admissible evidence.

The trial judge also provided for in-camera inspection of items which the hospital is unable to determine are or are not committee evaluations.

The hospital (and the hospital’s carrier) petition for a writ of certiorari quashing the orders. We deny the petition.

Orders relating to the scope of discovery are within the wide discretion of the trial court and should not be overturned absent departure from the essential requirements of law. Burroughs Corp. v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4th DCA 1979).

The hospital has not proven it has standing to assert the privacy rights of the nurses. A mere employee/employer relationship is not the kind of special relationship necessary for third party standing. See, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Also, the nurses have moved to intervene. If they are allowed to intervene, they can assert their own rights.

Of course, the hospital may assert its own interests in preventing disclosure. In this regard, however, the hospital has asserted no privilege.

We agree with the trial judge’s finding that discovery of the nurses’ employment and personnel files is not completely barred by statute. We will not disturb the trial judge’s findings of relevance.

The petition for writ of certiorari is denied.

BOOTH and BARFIELD, JJ., concur.


text:
    DAYTONA DEVELOPMENT CORPORATION, a/k/a Daytona Corporation, a Florida corporation; K.D. Sauder, a/k/a Kenneth D. Sauder and Anita L. Sauder, his wife; Gregg, Inc., a Florida corporation; Cleardale, Inc., a Florida corporation, Appellants, v. Donald O. McFARLAND; Phillips, McFarland, Gould, Wilhelm & Wag-staff, P.A., a Florida professional corporation, formerly Phillips, McFarland, Gould & Kornes, P.A., a Florida professional corporation; St. Paul Fire & Marine Insurance; the Travelers Indemnity Company; Gulf Insurance Company; United States Fire Insurance Company; and Select Insurance Company, Appel-lees.
    No. 83-1770.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami; Walt Logan of Stolba, Logan, Conklin & Verona, P.A., St. Petersburg; and Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for appellants.
    A. Broaddus Livingston, John W. Boult and Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellees.
   PER CURIAM.

The plaintiffs filed a legal malpractice suit against the defendants on February 22, 1978. The defendants raised as an affirmative defense that the action was barred by the applicable statute of limitations, section 95.11(4)(a), Florida Statutes (1977). This section provides that a suit for legal malpractice shall be commenced within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” At the conclusion of the plaintiffs’ case at trial, the court granted the defendants’ motion for a directed verdict on the ground that the evidence presented during the plaintiffs’ case proved the defendants’ statute of limitations defense as a matter of law. The plaintiffs appeal the final judgment rendered pursuant to the directed verdict.

Evaluating the evidence on the statute of limitations issue in a light most favorable to the plaintiffs, and indulging every reasonable inference adduced therefrom in their favor, it cannot be held that the evidence presented during the plaintiffs’ case proved as a matter of law that they discovered or should have discovered their cause of action with the exercise of due diligence before February 22, 1976. See Smith v. Hussey, 363 So.2d 1138 (Fla. 2d DCA 1978). See also Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981).

Accordingly, we REVERSE the final judgment and REMAND for a new trial.

HOBSON, A.C.J., and BOARDMAN and DANAHY, JJ., concur.


text:
    MIDSTATE SALES & SUPPLY COMPANY, a Florida corporation, Appellant, v. V.F. AIR SYSTEMS, INC., a Florida corporation, individually, and Ronald L. Fedder, Margaret M. Fedder, Nick J. Vaporis and Janice M. Vaporis, jointly and severally, Appellees.
    No. 83-2128.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.
    Leslie N. Shade, Jr., Tampa, for appellant.
    Richard W. Nelson of Eckert & Nelson, St. Petersburg, for appellees.
   PER CURIAM.

The plaintiff appeals a final summary judgment order which was rendered in favor of the defendants on the ground that the service charges which the plaintiff sought to collect from the defendants in 1981 were usurious and, hence, forfeited.

Reviewing the record on appeal, including the deposition of Walter Ware, the plaintiff’s president and sole stockholder, in a light most favorable to the plaintiff, as we must, the defendants and the plaintiff entered into separate agreements in 1978, 1980 and 1981. A genuine issue of material fact exists as to whether the 1981 service charges were assessed under the 1980 or 1981 agreement, in which event they may not have been usurious, cfi Carter v. Leon Loan & Finance Co., 108 Fla. 567, 146 So. 664 (1933), or assessed pursuant to the 1978 agreement, as the trial court inappropriately determined in its final summary judgment order, in which case the service charges were indeed usurious.

Accordingly, we REVERSE the final summary judgment order and REMAND for further proceedings not inconsistent with this opinion.

HOBSON, A.C.J., and BOARDMAN and SCHOONOVER, JJ., concur.


text:
    Charles B. BLAND, d/b/a Southeast Mechanical Services, Appellant, v. VIKING FIRE PROTECTION, INC. OF THE SOUTHEAST, Appellee.
    No. 83-2241.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.
    Stephen F. Baker, Winter Haven, for appellant.
    Norman Stallings, Jr. of Hill, Hill & Dickenson, Tampa, for appellee.
   PER CURIAM.

Charles Bland appeals the order denying his motion to vacate the final judgment entered upon a default. We reverse.

It is well established that under appropriate circumstances courts should liberally set aside defaults so that lawsuits may be determined on their merits. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). A party seeking to vacate a default judgment must first demonstrate that the failure to file a responsive pleading was the result of excusable neglect and that there exists a meritorious defense. Brandt v. Dolman, 421 So.2d 689 (Fla. 4th DCA 1982); Lacore v. Giralda Bake Shop, Inc., 407 So.2d 275 (Fla.3d DCA 1982); Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977). Here, the secretary’s misfiling of the summons and complaint constituted excusable neglect. See County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla.3d DCA 1976). See also Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla. 1977); Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla.3d DCA 1972); Travelers Insurance Co. v. Bryson; North Shore Hospital, Inc. v. Barber. Additionally, appellant states a meritorious defense in his answer and sworn affidavit by claiming that he had no contractual dealing of any kind with appel-lee and that he has never done business as Southeast Mechanical Services.

Accordingly, we reverse the final judgment and the default and remand for proceedings consistent with this opinion.

BOARDMAN, A.C.J., and GRIMES and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Michael D. MYERS, Appellee.
    No. 84-119.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellant.
    Richard V. Ellis and Jonathan E. Haus-burg of Hausburg, Jaensch & Ellis, Sarasota, for appellee.
   OTT, Judge.

Appellee was charged with possession of a felony amount of marijuana and paraphernalia. The trial court granted appel-lee’s motion to suppress evidence which officers observed in plain view while executing a warrant for appellee’s arrest. We reverse.

Law enforcement officers lawfully and properly entered appellee’s bedroom for the purpose of executing a warrant for his arrest. Upon entering the room, two officers immediately — albeit independently of each other — observed an open box protruding from under a bed on which appellee was sleeping. Both officers clearly identified a quantity of marijuana seeds in the box. These facts are not disputed. Testimony presented at the suppression hearing is conflicting as to the exact sequence of events that thereafter followed. The trial court found that appellee was taken from the bedroom to the living room and thereafter the box containing the marijuana seeds was removed from the bedroom. We accept, as we must, this finding of fact. It was then discovered that the box also contained drug paraphernalia. Based on the testimony which supports the trial court’s finding and which he obviously believed, a three-to-six-minute delay occurred between defendant being removed from the bedroom and the box being brought out by an officer or officers who remained in the bedroom after appellee was removed to the living room.

The trial court granted appellee’s motion to suppress, reasoning that once appellee was removed from the bedroom the officers no longer had a right to seize the contraband.

Appellee has not challenged the officers’ right to enter the bedroom. When an officer legally enters a constitutionally protected area and observes contraband in plain view, he may constitutionally seize it without first obtaining a warrant. Ensor v. State, 403 So.2d 349 (Fla.1981). Neither the delay of a few minutes between observance of the contraband and actual seizure nor the physical removal of appellee from the room negated the right of the officers to seize the contraband observed in plain view. Cf. State v. Johnson,. 403 So.2d 1095 (Fla. 4th DCA 1981).

Accordingly, it was error for the trial court to grant appellee’s motion to suppress.

REVERSED and REMANDED.

GRIMES, A.C.J., and LEHAN, J., concur.