author: WIGGINTON, Judge.

text:
    CLAY HYDER TRUCKING LINES, Appellant, v. Dorothy ATHERTON, Appellee.
    No. AV-91.
    District Court of Appeal of Florida, First District.
    May 22, 1984.

      Bernard J. Zimmerman of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellant.
    Richard R. Roach, Jr., of Woods, Murray & Roach, P.A., Lakeland, for appellee.
   WIGGINTON, Judge.

The employer/carrier (E/C) appeal from the deputy commissioner’s order finding claimant to be temporarily and totally disabled, awarding corresponding benefits, and ordering the E/C to enroll claimant in a work evaluation program at Goodwill Industries and to provide such rehabilitation or retraining as indicated by the evaluation. Claimant cross-appeals the deputy’s failure to find her permanently and totally disabled. We affirm in part and reverse in part.

We affirm the finding of temporary total disability. The medical evidence confirms the finding that claimant was temporarily and totally disabled from a psychiatric standpoint as a result of the industrial accident, for at least a portion of the period in question. The evidence as a whole supports the deputy’s excusal of a work search for the remainder of the period, in light of testimony indicating claimant’s drastically reduced ability to cope with the stresses of daily life, both physically and emotionally. In short, it was revealed at the hearing that there was little claimant could do in the job market, Fellows, Read & Weber v. Lance, 406 So.2d 1286 (Fla. 1st DCA 1981), and the deputy was justified in giving little weight to the “domestic work” in which claimant allegedly engaged, instead considering the activity to be merely charitable. Indeed, this alleged domestic work amounted to little more than claimant’s being a companion to a few elderly friends, and even this sedentary activity sorely taxed claimant’s physical and emotional reserves. The award of temporary total disability benefits is therefore affirmed.

Consequently, we also affirm the deputy’s failure to find claimant permanently and totally disabled. Moreover, the medical evidence would support this result, as claimant’s treating physician testified at deposition that claimant’s condition had regressed and that she was no longer at a point of maximum medical improvement.

We reverse, however, that part of the deputy’s order directing the E/C to provide rehabilitation for claimant. The E/C correctly argue that they are not responsible to assume the cost of claimant’s rehabilitation, and that the deputy erroneously relied on W.R. Grace & Co. v. Marshall, 405 So.2d 444 (Fla. 1st DCA 1981), in applying the 1979 version of section 440.49(1), Florida Statutes, in holding the E/C responsible for that cost.

Claimant’s compensable injury occurred on June 20, 1975. Consequently, the 1974 version of chapter 440 would apply where substantive rights are at stake. Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960). Section 440.49(1), Florida Statutes (Supp.1974), provides that the rehabilitation of the injured employee is the responsibility of the Division of Labor, which is authorized “to expend moneys from the special fund established by s. 440.50 ...” in order to carry out its responsibility. However, section 440.49(1), as amended by chapter 79-40, Laws of Florida (1979), states that the employer or carrier, “at its own expense,” (emphasis added) shall rehabilitate the injured employee.

In 1981, this Court issued an opinion in the case of W.R. Grace & Co. v. Marshall, holding that section 440.49(1)(c), enacted in 1979 as chapter 79-40, § 37, Laws of Florida, is “plainly procedural” and therefore “applicable to Marshall’s case notwithstanding that the subject injury occurred in 1977.” 405 So.2d at 445. Relying on W.R. Grace, the deputy concluded that section 440.49(1)(a), enacted by the same chapter, was also procedural, and applicable to claimant’s case. We disagree.

First, W.R. Grace & Co. v. Marshall involves only subsection (1)(c) of section 440.49. It cannot be held as authority for concluding that the whole of section 440.49, Florida Statutes (1979), is procedural. Accordingly, the deputy’s reliance on W.R. Grace was misplaced.

Second, and most significant, that part of the 1979 revision of section 440.-49(1)(a), regarding on whom the responsibility to assume the cost of rehabilitation falls, clearly increases the potential liability of the E/C. For that reason, we hold that it is substantive in nature, and prospective only. Sullivan v. Mayo. Consequently, section 440.49(1), Florida Statutes (Supp. 1974), is applicable in this case, and the division bears the responsibility for the potential rehabilitation of claimant. See generally Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1977).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

MILLS and SHIVERS, JJ., concur.

      . Claimant suffered her compensable injury on June 20, 1975, and was pronounced as having reached MMI on December 23, 1980.

      . 440.49 Rehabilitation of injured employees; Special Disability Trust Fund.—
      (1) In cases in which it appears that disability probably will be permanent the division shall assist injured employees to obtain appropriate training, education and employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal or state agencies in the vocational rehabilitation of injured employees. The division may, and it is authorized to, expend moneys from the special fund established by s. 440.50, for the purpose of assisting such injured employees to obtain appropriate training, education and employment in connection with their vocational rehabilitation.

      . Section 440.49(1)(a), Florida Statutes (1979), provides in pertinent part:
      When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. The employer or carrier, at its own expense, shall provide such injured employee with appropriate training and education for suitable gainful employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees....

      .440.49(1)(c), Florida Statutes (1979), provides:
      Prior to adjudicating an injured employee to be permanently and totally disabled, the deputy commissioner shall determine whether there is a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.


source: Caselaw Access Project

author: SCHOONOVER, Judge.

license: Public Domain

text:
    John J. McGOFF, Appellant, v. STATE of Florida, Appellee.
    No. 83-1476.
    District Court of Appeal of Florida, Second District.
    May 23, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, and William I. Munsey, Jr., Asst. Attys. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, John J. McGoff, has appealed a judgment adjudicating him guilty of first degree murder and a sentence of life imprisonment. Due to a change in decisional law since the appellant’s trial, we must reverse-and remand for a new trial.

On December 8, 1981, appellant was charged with the first degree murder of Dr. Juan Ocana. Prior to trial appellant filed a notice of intention to rely on the defense of insanity, the only defense asserted during trial.

The trial court, relying on this court’s decision in Greenfield v. State, 337 So.2d 1021 (Fla. 2d DCA 1976), ruled that if sufficient evidence was presented to raise a reasonable doubt as to the appellant’s sanity, the burden of establishing sanity beyond a reasonable doubt would shift to the state. Moreover, the state could then submit evidence relating to the appellant’s insistence on his right to remain silent after being given his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Pursuant to the trial court’s ruling, evidence was introduced that after the appellant was arrested and read his Miranda rights, he stated he did not want to say anything and requested an attorney. Thereafter, the appellant was found guilty and upon entry of the judgment and sentence, he filed this timely appeal.

At the time of trial, the trial court’s ruling was in accordance with existing precedent. Greenfield. However, de-cisional law in effect at the time an appeal is decided governs the disposition of the case. Lowe v. Price, 437 So.2d 142 (Fla.1983); Wheeler v. State, 344 So.2d 244 (Fla.1977), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979). After the appellant’s trial, and during the penden-cy of this appeal, the Florida Supreme Court in State v. Burwick, 442 So.2d 944 (Fla.1983), disapproved^ of this court’s holding in Greenfield. ln Burwick, the court held that silence in the face of an accusation of a crime is an enigma and should not be determinative of oné’s mental condition just as it is not determinative of one’s guilt. The court stated it is fundamentally unfair for the state to lure an accused into remaining silent and then impeach him with this very same silence. To allow the state to benefit from the fruits of its deception would violate the due process clause of the fourteenth amendment and article I, section 9 of the Florida Constitution.

Accordingly, the court held that even if the only defense raised is insanity, evidence of a defendant’s post-arrest, post-Miranda silence, and request for an attorney, is not admissible to establish his mental condition near the time of the offense.

Therefore, because Burwick effectively overrules Greenfield, we must reverse and remand for new trial.

REVERSED and REMANDED.

OTT, C.J., and LEHAN, J., concur.


author: HERSEY, Judge.

text:
    FEDONICS WEST HOLLYWOOD CORPORATION, n/k/a West Hollywood Corporation and West Hollywood Utilities, n/k/a Broward Utilities, Inc., Appellants, v. BARNETT BANK OF SOUTH FLORIDA, N.A., Etc., and Parkway Management Corporation, et al., Appellees.
    No. 83-365.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.

      Lee Greenfield of Greenfield & Duval, North Miami, for appellants.
    Wilton L. Strickland of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, Ricki Lewis Tannen, Hollywood, for appel-lees.
   HERSEY, Judge.

This plenary appeal from a summary final judgment requires that we examine certain rights statutorily conferred upon dissolved corporations.

Fedonics owned real property which was mortgaged to Barnett. West Hollywood Utilities, a wholly-owned subsidiary of Fe-donics, operated a utility plant, appropriately certified, on that real property. On December 11, 1976, Fedonics and West Hollywood Utilities were involuntarily dissolved for failure to file annual reports and failure to pay corporate taxes. The corporations subsequently defaulted in their mortgage payments to Barnett, which instituted fore- ‘ closure proceedings culminating in a summary final judgment on January 12, 1978. The property was acquired by Barnett at foreclosure sale and subsequently disposed of to parties other than appellant corporations.

In 1979 appellants and others filed a complaint against Barnett. However, that litigation terminated in a voluntary dismissal. On March 4, 1982, appellant corporations and others again filed a complaint against Barnett seeking to recover the real property and for damages. The theory upon which appellants proceeded involved an alleged oral agreement between the dissolved corporations and Barnett to the effect that appellants would permit the foreclosure to proceed in exchange for Barnett’s agreement to give appellants a right of first refusal whereby the corporations could reacquire the foreclosed real property upon payment of an amount certain, together with a new mortgage. Appellants complain that notwithstanding this agreement Barnett disposed of the property without honoring their right of first refusal.

The trial court entered summary final judgment, holding that “the plaintiffs Fe-donics and West Hollywood Utilities are barred by operation of the statute of limitations, as set forth in Florida Statute 607.-297 from the bringing of this present action.” We affirm on the premise that the trial court was right, but for the wrong reason. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

The statute relied upon by the trial court, section 607.297, provides as follows:

607.297 Survival of remedy after dissolution.—The dissolution of a corporation either:
(1) By the issuance of a certificate of dissolution by the Department of State;
(2) By a decree of court; or
(3) By expiration of its period of duration shall not take away or impair any remedy available to or against such corporation or its directors, officers, or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within 3 years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. If such corporation was dissolved by the expiration of its period of duration, such corporation may amend its articles of incorporation at any time during such period of 3 years so as to extend its period of duration.

Of particular importance to our discussion of the statute are the words “for any right or claim existing, or any liability incurred, prior to such dissolution....” Thus, the facts in the instant case do not fall within the penumbra of the statute, the alleged cause of action having arisen after dissolution of the corporation, and appellant corporation’s rights, if any, having accrued at that time. The statute, therefore, does not preserve the particular right which appellants seek to enforce in this litigation. Nonetheless, the statute has a peripheral effect as a limitation of another statutory period that we will discuss momentarily.

Under somewhat similar circumstances our sister court in Bahl v. Fernandina Contractors, Inc., 423 So.2d 964 (Fla. 1st DCA 1982), held that as to causes of action not preserved by the statute the common law applies and the rights are unenforceable by the dissolved corporation. In that case the injury occurred, and thus the cause of action arose, beyond the three year period. In our view this is not a significant difference. The material question is whether the cause of action arose prior to or after the date of dissolution. We therefore hold that appellant corporations, having been dissolved, were incapable of accruing a cause of action after the date of dissolution.

We are urged by appellants to consider their status as formerly dissolved but now reinstated corporations. We decline to do so. The trial court found, and we accord that finding a presumption of correctness, that the corporations had not been reinstated. It is in that posture that we have considered and affirmed the summary final judgment.

Even if we were to consider that the corporations had been properly reinstated in 1982 (or any date subsequent to December 1979), the result in this case would be unchanged. Reinstatement is permitted by section 607.271(5), which provides in pertinent part that “the corporate existence shall be deemed to have continued without interruption from the date of dissolution.” We agree with the third district, which held in Haitian Ventures, Inc. v. Wisniewski, 376 So.2d 424 (Fla. 3d DCA 1979), that the .automatic reinstatement provision is limited to the three year grace period contained in section 607.297, Florida Statutes. The court pointed out that the reinstatement provision does not automatically reinstate rights or claims of the corporation. Id. at 426. Thus, a corporation reinstated within three years has remedies available for rights and claims existing prior to the dissolution. However, a corporation reinstated after three years does not have such remedies. Although the Wisniewski case dealt with rights existing on the date of dissolution rather than as here, rights alleged to have accrued subsequent to the date of dissolution, nonetheless, the same rationale should apply if, and we do not here decide this issue, a dissolved corporation may under any circumstances accrue rights and liabilities. Put another way, the Wisniewski court dealt with a right which had accrued to the corporation before dissolution. We go one step further, dealing with the rather ethereal possibility of a right accruing to a non-existent corporation. We do so hypothetically and merely to express our views on the interrelationship of the two statutes which we have previously treated.

Based upon the foregoing, we affirm the summary final judgment.

AFFIRMED.

DOWNEY and DELL, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Eddie George JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1154.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Eddie George Jones, pro se appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Jones appeals from an order denying his motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 after an evidentiary hearing. The stated grounds for post conviction relief was ineffective assistance of trial counsel.

On October 10, 1977, the State filed an information charging Jones with robbery, possession of a firearm by a convicted felon, and having a firearm when engaged in a criminal act. His lawyer did not move for a severance of the counts. At trial, the State introduced evidence of a conviction of second degree murder as proof of the second count. A jury returned a verdict of guilty on all counts.

Jones contends his trial counsel was ineffective because he did not move for a severance of the count charging possession of a firearm by a convicted felon, and the admission into evidence of the conviction of the prior felony prejudiced his case involving the other counts.

We affirm the order appealed from for two reasons. First, Jones filed a previous Rule 3.850 motion to vacate his conviction in which he alleged ineffective assistance of counsel citing various acts of commission and omission that demonstrated ineffectiveness. Notably absent from the cited acts was counsel’s failure to move for a severance. We, of course, recognize that successive Rule 3.850 motions are allowable when the motion raises new grounds. However, it would be anomalous in the extreme to allow a prisoner to file successive Rule 3.850 motions based on the same ground, ineffectiveness of counsel, by using separate omissions of counsel during the trial. For example, the first motion could cite counsel’s failure to call certain essential witnesses. After unsuccessfully proceeding up the appellate ladder and through the various court systems, a second petition could be filed on the same ground citing counsel’s failure to file a motion to sever certain counts for trial, and so on ad infinitum. No rational judicial system would allow that sort of trifling resort to the courts, although our current handling of death cases has about convinced the American public that is what is going on. Jones had his opportunity to present his case for ineffectiveness of counsel in his first motion filed March 26, 1980, and failed to avail himself of counsel’s failure to move for severance. Accordingly, he has waived that complaint.

Secondly, we affirm because in 1978, when Jones was tried, the law in Florida appeared to be that ruling on a motion to sever counts of an information involved a discretionary call by the trial judge. Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975). In later years the courts have held refusal to sever where prejudice results is reversible error. State v. Vazquez, 419 So.2d 1088 (Fla.1982); Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981); Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1980). However, effectiveness of counsel does not involve clairvoyance or anticipation of changes to be made in the law. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Knight v. State, 394 So.2d 997 (Fla.1981).

Our Supreme Court set out the criteria or standards for determining effectiveness of counsel. Without repeating them here in detail, our serious consideration of those standards convinces us that the trial judge was eminently correct in his determination that the alleged omission charged in this case did not demonstrate that Jones was not furnished reasonably effective assistance of counsel in the trial of his criminal case.

For the foregoing reasons, we affirm the order appealed from.

AFFIRMED.

DOWNEY and DELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part, with opinion.

ANSTEAD, Chief Judge,

concurring in part and dissenting in part:

Although I tend to agree with the basic proposition set out in the majority opinion that a defendant should not be allowed to challenge the competency and effectiveness of his trial counsel in successive motions, I cannot agree that trial counsel’s failure to move for a severance in this case is excused by the status of the then prevailing law as enunciated in Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975). Initially I note that this case constitutes something of a procedural nightmare. The appellant is here because he has been specifically directed by the Federal District Court to litigate this issue in the state trial and appellate courts before he will be allowed to present the issue in the federal courts.

On the issue of ineffectiveness of counsel for failure to move for a severance, I would distinguish this situation from the one faced by the Third District Court of Appeal in Panzavecchia which is relied upon by the majority to excuse counsel’s failure to seek a severance. In Panzavecchia the appellant was charged with murder and possession of a firearm by a convicted felon. The prior felony conviction was for passing a counterfeit bill. The Third District held that the failure to sever the two offenses and the disclosure of the prior felony conviction did not constitute reversible error under the circumstances of that case. Those circumstances included the fact that the nature of the prior conviction was brought out by defendant’s counsel during his direct examination of a witness. In any case, the facts in this case are the reverse of Panzavecchia since here we have a defendant charged with robbery and possession of a firearm by a convicted felon. More importantly, the prior felony conviction, established by the state during appellant’s trial, was for murder. Clearly, the degree of prejudice suffered is substantially different when the main charge is murder and the collateral offense counterfeiting, than when the main offense is robbery and the collateral offense is murder. A jury trying a defendant for first degree murder may not be influenced much by the fact that the defendant was previously convicted of passing a counterfeit bill. But can the same thing be said about a jury that is told the man being tried for robbery is a convicted murderer? I think not.

The Florida Supreme Court, in State v. Vazquez, 419 So.2d 1088 (Fla.1982), held that, although severance may not be required in every case, to deny severance under circumstances similar to those involved herein violates a defendant’s right to a fair trial on the main charge faced. The court approved the decision of the Third District Court of Appeal to the same effect, i.e., that a denial of severance constituted an abuse of discretion because the evidence of the collateral offense “was too powerful, too damning, and too prejudicial for any conscientious jury to disregard.” Vazquez v. State, 405 So.2d 177, 180 (Fla. 3d DCA 1981). In Vazquez, the Third District pointed out that in Panzavecchia it was the defendant himself who introduced proof of his prior felony conviction and thus waived any objection. Id. at 181. The court also noted that it had “specifically limited our holding in Panzavecchia to the precise facts of the ease, which facts on the issue of waiver find no counterpart in the instant case.” Id. at 181. The point is that even if the issue of severance is a discretionary matter for the trial court, permitting that discretion to be exercised by a denial of severance under the circumstances of Panzavecchia clearly does not authorize a denial of severance in this case, or more properly stated, excuse counsel from seeking a severance.


author: PER CURIAM.

text:
    Russell E. DENT, Appellant, v. Karen Lynn DENT, Appellee.
    No. 83-2070.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Melvyn B. Frumkes and Cynthia L. Greene of law offices of Melvyn B. Frumkes, P.A., Miami, for appellant.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appel-lee.
   PER CURIAM.

Appellant/husband has failed to demonstrate that the trial court abused its discretion in awarding temporary attorney’s fees and, therefore, that portion of the order on appeal is affirmed. See Conner v. Conner, 439 So.2d 887 (Fla.1983). The award of suit money, however, is not supported by substantial competent evidence and, consequently, the suit money award shall be reduced to $7,500. This reduction is without prejudice to the wife’s right to reapply to the trial court and produce evidence showing the necessity for additional suit money.

AFFIRMED IN PART & REVERSED IN PART. _

BERANEK, HURLEY and DELL, JJ., concur.


text:
    HOWARD JOHNSON COMPANY, Appellant, v. DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. 83-2154, 83-2155.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Lee Mandell of Gaston Snow & Ely Bartlett, Hall & Swann, Coral Gables, for appellant.
    H. Reynolds Sampson, Tallahassee, Alan E. DeSerio, Fred Reedy and John H. Beck, Dept, of Transportation, Tallahassee, for appellee.
   HERSEY, Judge.

In condemnation proceedings appellant unsuccessfully sought business damages and brings this appeal.

The condemnation proceedings involved the taking of one parcel of land in fee simple and the taking of a construction easement over another parcel of land, both of which were occupied by appellant as tenant under a lease extending for more than five years.

The statute upon which appellant relies in seeking business damages, section 73.071(3)(b), Florida Statutes, delineating the extent of compensation, provides:

Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is by the Division of Road Operations of the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his written defenses the nature and extent of such damages ....

Appellant’s interpretation of this provision is indicated by the following colloquy between counsel and the court:

THE COURT: Would you make this distinction, again, of the type of damages you’re seeking, here? Is it damages that were sustained during the construction period or after the construction period? Did you make a distinction of that?
MR. MANDELL: During the construction.
THE COURT: During the construction?
MR. MANDELL: Yes, Your Honor, but these are not severance-damages, this that we’re asking for. These are business loss damages which are as result of the effect of the taking.
THE COURT: You are claiming business loss damages during the construction period?
MR. MANDELL: That’s correct, Your Honor.

The record demonstrates that appellant seeks damages for a temporary loss of business during construction of the expansion of the highway occasioned by use of the parcel taken as an easement and the noise, vibration, dust and related nuisances resulting from the construction.

It is well established that such consequential damages are not compensa-ble in condemnation proceedings. In State Road Dep’t v. Lewis, 170 So.2d 817 (Fla.1964), the Florida Supreme Court indicated that:

These special business damages authorized by the statute are predicated upon the effect the taking of an owner’s land for a right of way has upon such a business and not upon the effect the construction ... of a roadway has upon such business.

Id. at 819. See also Leeds v. City of Homestead, 407 So.2d 920 (Fla. 3d DCA 1981), and Division of Admin., State Dep’t of Transp. v. Hillsboro Ass’n, 286 So.2d 578 (Fla. 4th DCA 1973). Further, an owner sustains no enforceable claim for damages resulting from incidental impairment of rights to ingress and egress. Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457 (Fla.1891).

Appellant was not seeking severance damages. Instead, the damages of which appellant complains are those which would be suffered in common by all owners of property abutting the new construction, and (as we previously indicated) such damages are not compensable in condemnation proceedings. In Anhoco Corp. v. Dade County, 144 So.2d 793 (Fla.1962), Anhoco was entitled to severance damages for the destruction of its access. However, the court added:

[W]hen assessing any damages suffered[,] [the landowner] is not entitled to recover for losses occasioned merely by the customary limitations on the flow of traffic over a highway which is being constructed under so-called “traffic conditions.” Every business abutting an established highway which is being reconstructed suffers the same type of loss. To this extent any damage suffered is damnum absque injuria.

Id. at 799.

Accordingly, we affirm.

DOWNEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    CHRYSLER CORPORATION, a Florida Corporation, Petitioner, v. Gerard F. MILLER, Respondent.
    No. 84-395.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Richard G. Rosenblum of Walton, Lan-taff, Schroeder & Carson, Fort Lauderdale, for petitioner.
    Robert J. Moraitis of Law Offices of William H. Kilby, Fort Lauderdale, for respondent.
   GLICKSTEIN, Judge.

Petitioner seeks certiorari from an order, compelling it to comply with a discovery order. We grant the petition and quash the trial court’s order.

The bare record reflects a multi-count action by a purchaser of a 1981 Dodge Omni. As we gather, the Omni was a lemon and respondent wants to know about all of the other lemons bearing the same mark and year which have surfaced throughout the country. He does not allege tragic injuries nor death of anyone but apparently wants whatever relief to which he is entitled because he was sold a piece of junk with an attractive name.

Petitioner submitted an affidavit to the trial court, reflecting a cost to it of $50,000, were it required to comply with the discovery order. Respondent apparently filed no counter-affidavit but instead offered the unsworn analysis of his counsel in rebuttal to the sworn allegations tendered by petitioner.

The trial court should not have considered the unsworn analysis by respondent’s counsel. This court, in an opinion written by the present writer, said in Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982):

[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

Our companion court concurred in the essence of this expression in Westinghouse Elevator Company v. DFS Construction Company, 438 So.2d 125 (Fla. 2d DCA 1983).

What we are left with is a law suit worth what appears to be considerably less than the cost of compliance by the defendant with the discovery order. While that conceivably could be appropriate in another case, it is not in this one. We cannot help but believe that in a case like the present there are relevant, simple inquiries that can be made without excess cost to get at the heart of the matter. It perplexes us how simple matters can be made unnecessarily complex only to submerge under the excess weight.

DOWNEY and WALDEN, JJ., concur.


text:
    R. HASNER HOLDINGS, INC., J. Hasner Holdings, Inc., L.H. of Palm Beach, Inc., and McIntosh Properties, Inc., Appellants, v. Antonio E. GARCIA, individually and as Trustee, et al., Appellees.
    No. 84-627.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Kathryn M. B earner of Schuler & Wilkerson, P.A., West Palm Beach, for appellants.
    James L.S. Bowdish of Crary, Buchanan, Bowdish & Bovie, Stuart, for appellees.
   ON MOTION TO DISMISS

GLICKSTEIN, Judge.

We take the time to write an opinion on appellee’s motion to dismiss the appeal because of the notion that by doing so we add a footnote to the existing body of law.

At issue is whether the entry of a final declaratory judgment as to one count of a multi-count complaint entitles appellant to an appeal therefrom when the remaining counts arise out of the same transaction, are interrelated and are all contractual in nature. We conclude that appeal will not presently lie under such circumstances, and grant the motion.

Count I sought declaratory judgment, construing a promissory note and mortgage. Count II sought foreclosure of the mortgage. The trial court deferred consideration of Count II until disposition had been made of Count I.

Recognizing that a declaratory judgment has the force and effect of a final judgment does not require the quantum leap that such judgment in every case is a final judgment for the purpose of immediate appeal. Declaratory judgments are creatures of statute, namely, Chapter 86, Florida Statutes; whereas Article V, Section 2, of the Florida Constitution mandates that the Supreme Court of Florida has the constitutional authority to adopt practice and procedural rules for the judiciary. Accordingly, although declaratory judgments were not involved in S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974), and Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974), the principles adopted there apply to the situation in the present case.

Let us assume that the plaintiffs here had opted to file a one-count complaint to foreclose the mortgage, alleging the construction of the documents in a light most favorable to the plaintiffs, without seeking judicial declaration per se of the construction sought. Let us assume further that before allowing the mechanics of foreclosure to begin, the court made a finding with respect to certain paragraphs within the count that supported the plaintiffs’ position. We believe an appeal would have been unavailable as would certiorari. Accordingly, neither should be available simply because of the manner in which the allegations were presented and the form of the findings. The parties remain the same, as do the battle lines.

BERANEK and DELL, JJ., concur.

      . § 86.011, Fla.Stat. (1983). See Eastern Shores Sales Co. v. City of North Miami Beach, 363 So.2d 321, 323 (Fla.1978).


author: JOANOS, Judge.

text:
    Mack HOBBLEY and Dorothy H. Hobbley, Appellants, v. SEARS, ROEBUCK AND COMPANY, Appellee.
    No. AU-67.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    J. Dixon Bridgers, III of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellants.

      Thomas E. Wheeler, Jr. of Fisher, Bell, Hahn & Schuster, Pensacola, for appellee.
   JOANOS, Judge.

Mack Hobbley and Dorothy Hobbley appeal from the trial court’s final judgment striking Count II of ■ their complaint — a claim for damages for physical discomfort and embarrassment. The issue before us is whether the damages sought by the Hobbleys were in contemplation of the respective parties at the time of entering into the agreement. We reverse in part.

The evidence presented included the following. On December 3, 1980, the Hobb-leys, long-time customers of Sears, had a Sears serviceman perform a routine service inspection of their furnace. The serviceman recommended that the furnace be replaced as it was unsafe for use. The Hobb-leys then purchased a new furnace from a Sears salesman, who checked their premises before advising them concerning the model to purchase. The purchase price included the cost of installation, and the Sears salesman arranged for installation by a Sears installer. In the opinion of the Sears salesman, who had thirty years of experience in the sales and installation of units similar to the one he sold the Hobb-leys, it was possible by removing the exterior cover of the furnace, to place the new furnace in the area occupied by the old one. The installer disagreed, maintaining that the new furnace could not be placed in the Hobbleys’ attic without making structural changes in the roof trusses. As it turned out, the installer refused to perform the work at the price quoted by Sears, yet Sears failed to explain this to the Hobbleys.

The availability of the Hobbleys in order to have the installation performed is in dispute. According to Sears, the Hobbleys were difficult to reach. On the other hand, the Hobbleys testified that they were both employed by the county school system and were available at home after 3:00 p.m., and that they had tried repeatedly, without success, to reach an agreement with Sears’ service personnel. Although Sears never installed the furnace, the Hobbleys were billed by Sears and they paid in full for the furnace, for insulation, and for installation.

During the winter of 1980-1981 (December, January and February), the Hobbleys relied on three space heaters for warmth. In addition to the fact that the space heaters were inadequate for the purpose, due to the wiring in the Hobbleys house they could not all be used at the same time. The Hobbleys testified to their embarrassment when guests in their home implied they had not paid their electric bills. Mr. Hobbley testified too that the cold house aggravated his arthritic condition.

Finally, around March 1, 1982, the Hobb-leys bought a furnace from another company and had it installed. In May 1981 the Hobbleys sued Sears for the purchase price of the furnace, plus interest, and in Count II — they sued for expense incurred for space heaters and for their physical discomfort and embarrassment. The Hobbleys prevailed on the Count seeking return of the purchase price, but the trial court struck the Count II claim for damages for physical discomfort and embarrassment.

Damages are awarded in a breach of contract action as an attempt to place the injured party in the position he or she would have occupied had the contract been performed. Hodges v. Fries, 34 Fla. 63, 15 So. 682, 684 (1894). To be recoverable, such damages must arise naturally from the breach, or have been in contemplation of both parties at the time they made the contract, as the probable result of a breach. Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Rep. 145 (1854). See also: Brock v. Gale, 14 Fla. 523 (1874).

We agree with the trial court that a jury may not consider “intangible” damages such as embarrassment as an element of compensation damages in a contract action. Nevertheless, we do find that the Hobbleys’ claim for physical discomfort, although inartfully framed, clearly has merit. (While this claim should have been framed as a claim for “loss of use,” under notice pleading the claim was adequately presented.) We find that it was readily foreseeable that the Hobbleys would need heat in the winter. They acted to replace their old furnace on the advice of Sears’ service personnel, and they negotiated the purchase of a new furnace on the advice of Sears’ sales personnel. We find that the physical discomfort suffered by the Hobb-leys because of Sears’ failure to install their new furnace was clearly in the contemplation of the parties at the time they entered into the agreement. The value of a warm home during the winter months, is not so uncertain or speculative as to be impossible to fix in a monetary award. Therefore, we reverse that portion of the Count II dismissal which claimed damages for physical discomfort and remand to the trial court for proceedings consistent with this opinion.

BOOTH and SHIVERS, JJ., concur.

      . Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750, 752 (Fla. 1st DCA 1983).

      . See Hampton-Chrysler-Plymouth-Dodge, Inc. v. White, 448 So.2d 87, 88 (Fla. 1st DCA 1984).


author: WENTWORTH, Judge.

text:
    Robert J. MILLER, Appellant, v. BILL RIVERS TRAILERS, INC., and Bill Rivers Corp., Appellees.
    No. AU-322.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    Dennis Lanahan, Jacksonville, for appellant.
    Douglass E. Myers, Jr., of Smith & Myers, Jacksonville, for appellees.
   WENTWORTH, Judge.

Appellant seeks review of an order by which its complaint against appellee was dismissed with prejudice as “insufficient to state a cause of action.” We find that the complaint contains allegations of a contractual breach which are sufficient to permit recovery, and we therefore reverse the order appealed.

Appellant’s complaint alleges that he was requested by appellee to act as sales manager and that he was promised a commission for sales orders which he secured. The complaint further alleges that appellant did secure sales orders, but that appellee refuses to pay the promised commissions. The complaint does not allege any specific amount as, or computational method for determining, the appropriate commission, or that the parties ever reached agreement in regard thereto. But if appellee desires a more specific allegation of damages, such relief may be obtained by a Fla.R.Civ.P. 1.140(e) motion for a more definite statement. See Augustine v. Southern Bell, Telephone & Telegraph Co., 91 So.2d 320 (Fla.1956); Arcade Steam Laundry v. Bass, 159 So.2d 915 (Fla. 2d DCA 1964). And to the extent that the parties may have failed to reach full agreement as to the compensation for appellant’s services, recovery might nevertheless still be had “on the basis of quantum meruit, that is, the reasonable worth of the services_” Moncrief v. Hall, 63 So.2d 640 (Fla.1953); see generally, Symon v. J. Rolfe Davis Inc., 245 So.2d 278 (Fla. 4th DCA 1971). Appellant’s failure to specify quantum meruit as a basis of recovery does not preclude such relief.

Accordingly, the order appealed is reversed and the cause remanded for further proceedings.

ERVIN and BOOTH, JJ., concur.


text:
    R.S. JOHNSON and Margie Mae Johnson, his wife, Appellants, v. Clarence McWHITE and Ruthie Lee McWhite, his wife, Appellees.
    No. AV-261.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    Bill A. Corbin, Blountstown, for appellants.
    Joann G. Slay of Harnett, Curry & Slay, Quincy, for appellees.
   PER CURIAM.

AFFIRMED. Seddon v. Harpster, 403 So.2d 409 (Fla.1981).

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: WATSON, R.O., Associate Judge.

text:
    Tula MOUCHA, Appellant, v. BURGER KING CORPORATION, etc., et al., Appellee.
    No. 83-408.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.

      Robert D. Keough of Woolf oik & Estes, P.A., Orlando, for appellant.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, P.A., Orlando, for appel-lee.
   WATSON, R.O., Associate Judge.

Appellant, Plaintiff, Tula Moucha, an employee of Appellee, Defendant, Dav-Gar Restaurants, Inc., and Defendant, St. Pe-tersburg Beverage Company, Inc., sued Defendant, Dav-Gar and Defendant, St. Pe-tersburg Beverage, on four counts of negligence following an assault on Plaintiff. The trial court granted Defendants’ motion to dismiss Plaintiff’s amended complaint on the ground that Plaintiff’s exclusive remedy is a claim for worker’s compensation benefits.

Section 440.11(1), Florida Statutes (1979) provides that an employers’ liability under Section 440.10, Florida Statutes (1979) is exclusive. Defendant is immune from tort liability to Plaintiff for her inju-nes if those injuries arose out of and in the course of Plaintiff’s employment. Sullivan v. Liberty Mutual Insurance Company, 367 So.2d 658 (Fla. 4th DCA 1979), cert. den. 378 So.2d 350 (Fla.1979).

Worker’s compensation immunity is an affirmative defense and ordinarily is not properly raised by a motion to dismiss the complaint. Sullivan v. Liberty Mutual Insurance Company, 367 So.2d 658 (Fla. 4th DCA 1979). However, an affirmative defense appearing on the face of the complaint may be raised by a motion to dismiss the complaint. Rule 1.110(d), Florida Rules of Civil Procedure. Davis v. Sun First Nat. Bank of Orlando, 408 So.2d 608 (Fla. 5th DCA 1981).

The amended complaint does not contain any allegations regarding worker’s compensation insurance coverage. The exclusionary provision of Section 440.11, is an affirmative defense and cannot be raised by a motion to dismiss. Walker v. I.T.D. Industries, Inc., 437 So.2d 230 (Fla. 2nd DCA 1983); Gonzalez v. Addi Co., 444 So.2d 1132 (Fla. 4th DCA 1984).

The order dismissing Appellant’s complaint is reversed.

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


author: COWART, Judge.

text:
    M.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-696.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.

      Sally D.M. Kest, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

When (1) a police officer encounters a person under circumstances that authorize the officer to temporarily detain that person under Florida’s Stop and Frisk statute (§ 901.151, Fla.Stat. (1983)) and (2) in the lawful execution of his legal duties the police officer intends to detain that person for the purpose of ascertaining the person’s identity and to learn the circumstances surrounding his presence, and (3) under the facts and circumstances of the particular case that person learns, knows, or understands that the officer desires to detain that person, then if that person flees or takes other intentional action that prevents lawful detention, he may be guilty of obstructing or opposing such officer in violation of section 843.02, Florida Statutes (1983). See Price v. State, 318 So.2d 468 (Fla. 1st DCA 1975), cert. denied, 334 So.2d 607 (Fla.1976). See also Johnson v. State, 433 So.2d 648 (Fla. 2d DCA 1983). Burgess v. State, 313 So.2d 479 (Fla. 2d DCA 1975), relates to the constitutional right to refuse to provide information and is distinguishable.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

      . As to reasonable suspicion justifying detention and inquiry, see State v. Hunt, 391 So.2d 760 (Fla. 5th DCA 1980); as to probable cause, see State v. Jones, 417 So.2d 788 (Fla. 5th DCA 1982).


author: ORFINGER, Chief Judge.

text:
    FLAGSHIP BANK OF SEMINOLE, Appellant, v. COMPLETE INTERIORS, INC., d/b/a Continental Homes of Florida, Appellee.
    No. 83-882.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.

      Jack T. Bridges of Cleveland & Bridges, Sanford, for appellant.
    Sutton G. Hilyard, Jr., and Greg W. Sahlsten of Pitts, Eubanks & Ross, P.A., Orlando, for appellee.
   ORFINGER, Chief Judge.

Flagship Bank appeals a partial summary final judgment against it in favor of Complete Interiors, Inc., a bank customer which had sued the bank to recover on ten checks which allegedly had been altered, thus improperly charged against its account. The bank contends that factual issues exist for trial and that a summary judgment was therefore erroneously entered. We agree and reverse for trial.

The partial summary judgment involves only five of the ten checks sued upon. The record reflects that all ten checks were apparently altered by the same person, the customer's bookkeeper. The bookkeeper would prepare checks in accordance with written authorization of appellee’s general manager, who would then compare the prepared checks with the authorizations, and if the checks matched, he would sign them and return them to the bookkeeper for distribution. It appears that the bookkeeper then proceeded to alter the checks using either an eraser or a correcting typewriter, naming herself as payee of the checks and in some instances, increasing the amount.

The first four of the series of checks were written and paid by the bank between April 3, 1981 and April 29, 1981. These checks appeared on and were returned to appellee with the April bank statement which appellee received on or about May 2, 1981. The fifth in the series of checks was paid by the bank on May 11, 1981, and it appeared on and was returned to appellee with the May bank statement, which appel-lee received on or about June 2, 1981. The remaining checks were paid between May 21, 1981 and August 13, 1981, and are not involved in this appeal. The trial court entered a partial summary judgment for the first five checks, totalling $19,697.30, plus interest of $4,809.84.

To support the trial court’s judgment, appellee relies on section 674.406, Florida Statutes (1981). Subsection (1) of this statute, provides, in essence, that the bank’s customer has the duty to exercise reasonable care and promptness to examine its bank statements and items to discover any unauthorized signatures or alterations. The customer must notify the bank promptly if any irregularities are discovered. Under section (2)(a), the failure of the customer to comply with this duty precludes his assertion against the bank of unauthorized signatures or alterations if the bank establishes that it suffered a loss by reason of such failure. Under Subsection (2)(b) of the statute, if the customer fails to comply with this statutory obligation the customer is precluded from asserting against the bank payment on any subsequent unauthorized signature or alteration by the same wrongdoer, paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding fourteen calendar days. Appellee contends that the summary judgment was properly entered because, on May 11, 1981, when the last of the five checks was paid, appellee had not had its April bank statement for fourteen days, thus making the bank absolutely liable for at least these checks.

When a bank is sued because it has charged a customer’s account with unauthorized or altered checks, it may raise as a defense thereto and present evidence, if it can, that the customer did not exercise due care and promptness to examine the bank statement where such items appear and failed to “promptly” notify the bank after discovery thereof, and that the bank has suffered a loss by reason of such failure (subsection (2)(a)). Additionally, under subsection (2)(b) of the statute, with respect to subsequent alterations or forgeries by the same wrongdoer, the bank may assert the customer’s failure to comply with its duty under subsection (1), after the first item and statement was available to the customer “for a reasonable period not to exceed fourteen days.”

With respect to the first four checks involved here, the bank may establish, under subsection (2)(a) of the statute, that notwithstanding the fact that these checks appeared for the first time on the April statement, the customer did not comply with its duty under subsection (1) to “promptly” notify the bank of these alterations, and that because of such failure the bank suffered a loss. With respect to the fifth check, the bank has the right, under subsection (2)(b) of the statute to establish that the customer failed to “promptly” notify the bank of the alterations after it received the statement on May 2, 1981 which reflected the alteration of the first four checks in question. If this can be established, and if the customer is not able then to establish the lack of ordinary care on the part of the bank in paying the item(s) as provided under subsection 3 of § 674.406, then the customer is precluded from asserting the alteration against the bank. The issues of whether the customer exercised reasonable care and promptness to examine the statement, and whether the customer had an opportunity to review the statement for a reasonable length of time, raise substantial questions of material fact ordinarily making summary judgment inappropriate. Space Distributors, Inc. v. Flagship Bank of Melbourne, 402 So.2d 586 (Fla. 5th DCA 1981).

Contrary to the appellee’s position, section 674.406 does not create an absolute liability on the part of the bank for payments made on checks during the fourteen day period after the first statement is available to the customer. Rather, the customer has no more than fourteen days to report alterations to the bank or the customer will be precluded from asserting any claim with respect to documents already honored by the bank. But depending on the facts and circumstances, the trier of fact may conclude that the customer neglected its duty by not reporting the discrepancy within the fourteen day period. In Ashley-Hall Interiors, Ltd., Inc. v. Bank of New Orleans, 389 So.2d 850 (La.App. 4th Cir.1980) the Louisiana appellate court, applying a statute almost identical to Florida Statute § 674.406, concluded that where a depositor failed to exercise reasonable care in examining his statements the bank would not be liable for forged or altered checks even though paid within fourteen days from the date of receipt of the first bank statement containing evidence of alterations. If the customer’s negligence rather than the bank’s lack of care causes the injury, the bank will not be liable. Here the appellant should have been entitled to present evidence that if Complete Interiors had promptly notified Flagship upon learning of the first forgeries the bank might not have honored the fifth check presented by the bookkeeper eight or nine days after the statement was mailed to appellee. This was a question which should properly be resolved by the trier of fact. See First Nat’l Bank of Cape Canaveral v. Keshishian, 427 So.2d 313 (Fla. 5th DCA 1983).

Additionally, and as to all the checks, we also find summary judgment inappropriate here because a material issue of fact was raised concerning conduct by the appellee which may have facilitated the forgeries. Florida Statute § 673.406 (1981) states:

Negligence contributing to alteration or unauthorized signature. — Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an authorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.

The Official Code Comment to U.C.C. § 3-406, from which Florida Statute § 673.-406 derives, expressly provides:

No attempt is made to define negligence which will contribute to an alteration. The question is left to the court or the jury upon the circumstances of the particular case ...
The section extends ... to cases where the party has notice that forgeries of his signature have occurred and is negligent in failing to prevent further forgeries by the same person. It extends to negligence which contributes to a forgery of the signature of another ... [N]o attempt is made to specify what is negligence, and the question is one for the court or the jury on the facts of the particular case.

The record contains allegations of negligence both in appellee’s checkwriting procedures and in hiring its bookkeeper. Appellant argued below that Complete Interi- or’s use of an erasable typewriter to prepare its checks contributed to the forgeries. As well, appellant maintained that Com-píete Interiors was negligent in hiring a bookkeeper who was on probation for a felony charge of check kiting. The bookkeeper was placed in a position of trust, and the appellant contends that it should have been permitted to show that Complete Interiors failed to exercise sufficient care in investigating her background. The scope of the investigation Complete Interiors was obligated to make and whether it negligently contributed to the alterations are factual questions. Space Distributors, Inc.; Keshishian; Florida Federal Savings and Loan Association v. Martin, 400 So.2d 151 (Fla. 2d DCA 1981). Accordingly, the issue of whether or not Complete Interiors was negligent and whether such negligence contributed to the forgeries should have been decided by the trier of fact. See Travelers Insurance Company v. Jefferson National Bank at Kindall, 404 So.2d 1131 (Fla. 3d DCA 1981).

REVERSED and REMANDED.

COBB, J., and LEE, R.E., Associate Judge, concur.

      . Section 674.406, in relevant part, says:

        Customer’s duty to discover and report unauthorized signature or alteration.

      (1) When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.
      (2) If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by subsection (1) the customer is precluded from asserting against the bank:
      (a) His unauthorized signature or any alteration on the item if the bank also establishes that it suffered a loss by reason of such failure; and
      (b) An unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding 14 calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration.
      (3)The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).


text:
    Paul K. HOPWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1359.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

ORFINGER, C.J., and COBB and CO-WART, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    ORANGE COUNTY, Florida, Petitioner, v. FLORIDA LAND COMPANY, etc., et al., Respondent.
    No. 83-1624.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.

      Philip H. Trees of Gray, Harris & Robinson, P.A., Orlando, for petitioner.
    Timothy J. Manor of Lowndes, Drosdick, Doster & Kantor, P.A., Orlando, for respondent Florida Land Co., etc.
   FRANK D. UPCHURCH, Jr., Judge.

Petitioner, Orange County, Florida, seeks a writ of certiorari to partially quash an order of the circuit court which requires it to produce certain documents for discovery.

Respondent Florida Land Company sued Orange County after a dispute arose over its alleged entitlement to a certain amount of sewage capacity in the county’s waste disposal system. Florida Land sought to compel the county to disclose numerous documents. The county furnished some of the requested documents, but contended that others were within the attorney-client or work-product privileges. The trial court eventually held that the county was entitled to assert an attorney-client privilege, but not a work-product privilege. Following an in camera examination of the contested documents, the court released a list of thirty-eight documents which it found were not subject to the attorney-client privilege, but constituted work-product materials, which were nevertheless subject to disclosure under the Florida Public Records Act, Chapter 119, Florida Statutes (1981). Orange County, by this petition, is challenging the order as it applies to twenty-five of the thirty-eight documents.

Certiorari is appropriate to review an order requiring a party to produce certain documents or disclose certain information in discovery. See Ponte Vedra Recorder, Inc. v. Carpenter, 401 So.2d 834 (Fla. 5th DCA 1981); Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1958). The question here is whether the lower court departed from the essential requirements of law in ordering disclosure of the twenty-five documents at issue. The court found that these documents came within the Public Records Act, that the Act does not contain a work-product privilege and therefore the documents had to be disclosed. The county argues that the Act does or should contain a work-product privilege and that in any event, many of the documents in question are not “public records” and hence are not subject to disclosure under the Act.

B) March 11 list: 25, 35, 39, 48, 70, 71.

As to the county’s first argument, in Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979), the supreme court held that the work-product privilege does not apply to the Public Records Act and hence does not preclude access to documents otherwise subject to inspection under the Act. See also Hillsborough County Aviation Authority v. Azzarelli Construction Co., Inc., 436 So.2d 153 (Fla. 2d DCA 1983); City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983); Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982). The court in Wait stated that no statutory exemption for work-product exists in the Act and if such common law privilege is to be included as an exemption, it is up to the Legislature and not the courts to amend the statute.

The county’s claim that discovery matters are procedural and that Florida Rule of Civil Procedure 1.280(b)(2), which contains a work-product privilege takes precedence over the Act, was recently rejected by the Second District in Hillsbor-ough County Aviation. The court there held that access to public records is a matter of substance rather than practice and procedure and therefore the Act takes precedence over the rule of procedure. See also City of Tampa v. Titan Southeast Construction Corp., 535 F.Supp. 163 (M.D.Fla.1982). It could be said that the supreme court in Wait also recognized this, at least by implication, when it declared that no work-product privilege is included in the Public Records Act and it is up to the Legislature and not the courts to include such an exemption in the Act.

The question of whether the documents here are “public records” and hence subject to disclosure under the Public Records Act is more difficult. The twenty-five documents were either developed by county attorneys in preparation for a hearing on Florida Land’s request for a temporary injunction or were correspondence from one of the county’s attorneys to another.

Section 119.011(1), Florida Statutes, defines “public records” as:

[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

In Shevin v. Byron, Harless, Schaffer, etc., 379 So.2d 633, 640 (Fla.1980), the supreme court declared that under this section, a public record “is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” The court explained as follows:

To be contrasted with ‘public records’ are materials prepared as drafts or notes, which constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.

In that case, the court found that letters, memoranda, resumes and travel vouchers made or received by a consultant who had been hired by the Jacksonville Electric Authority to screen applicants for the Authority’s director’s position were intended to formalize the information contained in them and hence were “public records.” However, handwritten notes made during or shortly after the interviews with job prospects were merely preliminary materials intended to aid the consultant when he later formalized the knowledge gained during the interviews and hence were not “public records.”

The county correctly points out that the documents here differ from those in Wait and some of the district court cases following it such as City of Williston v. Roadlander and Tober v. Sanchez. For instance, in Wait, the documents were records concerning the planning, operation, and maintenance of the city’s electrical system. In Tober, accident records and reports of the county transit authority were sought. City of Williston involved hospital medical records. However, Hillsborough County Aviation involved what were labeled “trial preparation materials” and the Second District found these to be “public records” and rejected the county’s claim that such documents were merely preliminary or preparatory materials and that what the county actually presents at trial is the formal agency statement on the matter. Likewise, in City of Tampa v. Titan Southeast, the federal court found two documents in the city’s possession, one entitled “Memorandum Analysis of Titan’s administrative claim” and the other “Analysis of Titan’s administrative claim” to be “public records” which had to be disclosed.

An examination of the twenty-five documents here reveals that most of them are “trial preparation materials” in the nature of inter-office and intra-office “memo-randa communicating information from one public employee to another or merely prepared for filing” which even though not a part of an agency formal public product, are “public records” because “they supply the final evidence of knowledge obtained in connection with the transaction of official business.” Shevin v. Byron, Harless, 379 So.2d 640.

However, we conclude that a handful of the documents, specifically numbers 2, 9, 10, 11, and 15 (February list) do not constitute “public records” under Shevin v. Byron, Harless. Document No. 2 is a list in rough outline form of items of evidence which may be needed for trial. Document No. 9 is a list of questions the county attorney planned to ask a witness. Document No. 10 is a proposed trial outline. Document No.' 11 contains handwritten notes regarding the county’s sewage system and a meeting with Florida Land’s attorneys. Document No. 15 contains notes (in rough form) regarding the deposition of an anticipated witness. These documents are merely notes from the attorneys to themselves designed for their own personal use in remembering certain things. They seem to be simply preliminary guides intended to aid the attorneys when they later formalized the knowledge. We cannot imagine that the Legislature, in enacting the Public Records Act, intended to include within the term “public records” this type of material. See Shevin v. Byron, Harless.

AFFIRMED in part, QUASHED in part.

DAUKSCH and COWART, JJ., concur.

      . The documents have been organized on two lists, one dated February 25 and the other March 11. The twenty-five documents involved in this appeal are as follows:
      A) Feb. 25 list: 3, 6, 7, 8, 9, 10, 11, 12, 13, 15, 69, 70, 74, 141, 142, 143, 164, 190, 193.

      . Numerous decisions have recognized that this situation places public agencies involved in litigation at a distinct disadvantage compared to private parties but that it is up to the Legislature to remedy this. Hillsborough County Aviation, 436 So.2d at 155 (Boardman, Acting C.J., specially concurring); Tober v. Sanchez, 417 So.2d at 1055.

      . Rule 1.280(b)(2) provides in relevant part as follows:
      In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.


author: BOARDMAN, Acting Chief Judge.

text:
    Kevin John MARQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-1748.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant challenges his conviction and sentence for escape under section 944.40, Florida Statutes (1981), on three grounds; we reverse on the basis of the sole point which we consider to have merit.

Appellant allegedly escaped from the Lee County jail while awaiting sentencing on three convicted offenses. During the jury trial on the escape charge, the state attempted to establish appellant’s status as a prisoner under section 944.40 by showing that he had been lawfully arrested, incarcerated, brought to trial, convicted, and held without bond pending sentencing on the three convicted offenses. Consistent with this line of proof, Lt. Thomas J. Wallace of the Lee County Sheriff’s Department testified over defense counsel’s objection concerning the circumstances surrounding appellant’s arrest on the three initial charges. Wallace’s testimony not only disclosed the nature of the three offenses, but also outlined the factors establishing probable cause for appellant’s arrest. Specifically, Lt. Wallace revealed that he arrested appellant after an apprehended suspect identified appellant as the “mastermind” of the various offenses. We believe that this prejudicial testimony necessitates a new trial.

The supreme court held in State v. Williams, 444 So.2d 13, 15 (Fla.1984), that a presumption of lawful custody exists when the state proves that an accused was confined in any of the penal institutions described in section 944.40. Thus, the unlawfulness of the confinement constitutes an affirmative defense to be raised by the accused, and the state is not required to prove the technical correctness of the prisoner’s original arrest. Indeed, as the supreme court recognized in Williams, the accused undoubtedly would be prejudiced by the introduction of proof detailing the nature of his arrest. 444 So.2d at 15.

While the state did not have benefit of Williams when this' case was tried, it is clear that appellant’s conviction was obtained in a prejudicial manner and, thus, cannot stand. Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.


text:
    Alphonso BULLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-2215.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s motion to mitigate and correct sentence upon the authority of Palmer v. State, 438 So.2d 1 (Fla.1983), and Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984) (on rehearing).

OTT, C.J., and DANAHY and LEHAN, JJ., concur.


text:
    Otho Eldridge THOMAS, Petitioner, v. Honorable William L. WALKER, Circuit Judge, Respondent.
    No. 84-715.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Joseph T. Barron, Jr., Clearwater, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, Karla J. Staker, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

This petition for writ of prohibition is brought to review an order denying a motion to dismiss a capias and to restrain further prosecution of petitioner for charges of grand larceny stemming from an information filed against petitioner on March 26, 1975. The charges were dismissed in 1978. Thereafter no further proceedings ensued until September 12, 1980 when the state moved to reinstate the capi-as. On that date the court entered an order reinstating the capias. Pursuant to the reinstated capias petitioner was arrested in 1983. He filed a motion to dismiss alleging that the Statute of Limitations had run on the 1974 incidents giving rise to the charges. The motion to dismiss was denied.

It is undisputed that the applicable Statute of Limitations is Section 932.465, Florida Statutes (1973) which was in effect at the time of the alleged offenses. Subsection (2) reads as follows:

Prosecution for offenses not punishable by death must be commenced within two years after commission, but if an indictment, information, or affidavit has been filed within two years after commission of the offense and the indictment, information, or affidavit is dismissed or set aside because of a defect in its content or form after the two year period has elapsed, the period for commencing prosecution shall be extended three months from the time the indictment, information, or affidavit is dismissed or set aside. (Emphasis supplied)

Although the state filed its first information within two years after commission of the alleged felonies, that information was dismissed and no new charge was filed within the following three months.

The state now argues that the dismissal in 1978 was error. However, the state does not allege that it opposed the dismissal and it is undisputed that it did not appeal the dismissal. The state’s argument that petitioner was unavailable for most of the time period involved might be persuasive to us if this were a speedy trial case. Here, however, the state’s remedy was to appeal the dismissal or possibly refile within the three-month period. It failed to do either.

Under the circumstances, we find that the Statute of Limitations for the various counts of grand larceny alleged to have occurred in 1974 has run. We therefore grant the petition and prohibit further prosecution on those charges.

Writ of prohibition granted.

SCHEB, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Ronnie BRUCE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-921.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Oliver v. State, 393 So.2d 1191 (Fla. 3d DCA 1981); Whipple v. State, 438 So.2d 934 (Fla. 3d DCA 1983).


text:
    Waldo SANCHEZ and Carlos Manuel Sanchez, Appellants, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 83-1940.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Claudia B. Greenberg, Coral Gables, Abramson & Magidson and David Magid-son, Miami, for appellants.
    Jeanne Heyward, Goodhart, Rosner & Green, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Bennett v. Berk, 400 So.2d 484 (Fla. 3d DCA 1981); Auto-Owners Ins. Co. v. Yates, 368 So.2d 634 (Fla. 2d DCA), cert. denied, 378 So.2d 351 (Fla.1979).


text:
    Katherine LAKE, Appellant, v. Glenn A. LAKE, Appellee.
    No. 83-2478.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Alden S. Tarte, Hialeah, for appellant.
    Robert J. Levine, Miami, for appellee.
    Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the award of rehabilitative alimony and child support because there is no showing that the trial court abused its discretion. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Lopez v. Lopez, 438 So.2d 984 (Fla. 3d DCA 1983). We remand, however, so that the trial court may adjudicate the remaining issues not disposed of in the final judgment, specifically, a division of personal property acquired and debts incurred by the parties during the course of the marriage, and provision for medical insurance coverage for the minor child.

Affirmed in part, reversed in part, and remanded.


text:
    AV-MED, INC., Appellant, v. Arthur LEVA, Appellee.
    No. 83-2617.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Markus, Winter & Feldman and Steven M. Ziegler, Miami, for appellant.
    Papy, Poole, Weissenborn & Papy and Sheridan K. Weissenborn, Coral Gables, Ress, Gomez, Rosenberg & Howland, North Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. City of West Palm Beach v. Palm Beach County Police Benevolent Ass’n, 387 So.2d 533 (Fla. 4th DCA 1980); Newport Motel, Inc. v. Cobin Restaurant, Inc., 281 So.2d 234 (Fla. 3d DCA 1973).


text:
    Samuel LADERMAN, Appellant, v. CERAMO, INC., Appellee.
    No. 83-2671.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    J. Jay Simons and Daniel S. Simons, Pat Winburn, Fort Lauderdale, for appellant.
    Lanza, Sevier, Womack & O’Connor and Judith A. Bass, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Appellee having shown the absence of any genuine issue of material fact, we find no error in the trial court’s grant of final summary judgment. Arlen Realty, Inc. v. Penn Mutual Life Insurance Co., 386 So.2d 886 (Fla. 1st DCA 1980).

Affirmed.


text:
    W.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2674.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HUBBART and FERGUSON, JJ., and PEARSON, TILLMAN, (Ret.) Associate Judge.
   PER CURIAM.

Affirmed. See State v. Carroll, 404 So.2d 844 (Fla. 5th DCA 1981); § 812.022(2), Fla.Stat.(1983).


text:
    MILYN CORPORATION, a Florida corporation, Appellant, v. SISLER-BAAL, INC., a Florida corporation, Appellee.
    No. 83-2950.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Cohen, Brown, Reed, Ivans & Schwartz and Jay D. Schwartz, Miami, for appellant.

      Sidney S. Margrey, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Bermil Corp. v. Sawyer, 353 So.2d 579, 584 (Fla. 3d DCA 1977); First Realty Corp. of Boca Raton v. Standard Steel Treating Co., 268 So.2d 410 (Fla. 4th DCA 1972).


text:
    Robert D. MONAHAN, Ruan Financial Corp., an Iowa corporation d/b/a Ruan Leasing Co., the Southland Corporation, a Texas Corporation d/b/a Bancroft Dairies, and American Motorists Insurance Company of Long Grove, Illinois, Appellants, v. Terry W. WEISZ, Appellee.
    No. 83-321.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, and Pyszka & Kessler, Fort Lauderdale, for appellants.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980).

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Dorothy HOLMES, as Administratrix and Personal Representative of the Estate of James Holmes, Appellant, v. Wayne PORTER, M.D., et al., Appellees.
    Nos. 83-828, 83-1770.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Mark Marks, North Miami, for appellant.
    James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee, Wayne Porter, M.D.
    Timothy J. Payne of Conrad, Scherer & James, Fort Lauderdale, for appellee, Cypress Community Hosp., Inc.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee, Emergency Physicians Associates, P.A.
   PER CURIAM.

Affirmed. See, Nardone v. Reynolds, 333 So.2d 25 (Fla.1976).

HERSEY, HURLEY and DELL, JJ., concur.


text:
    Peter Brian CIKORA, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1341, 83-1357.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction because no reversible error was made to appear. As to the order revoking probation, four violations were claimed. We record that the first alleged violation, attempted burglary of the home of Florence Jarboe, was unsupported by record evidence and, thus, was not proven. However, the three remaining alleged violations were proven and furnish adequate support for the revocation.

Affirmed.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    Charles NORMAN, Appellant, v. Anna O. KADEL, Vernon Anthony Kadel, Allstate Insurance Company and Grocery Warehouse II, Inc., Appellees.
    No. 83-1575.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, and Henry L. Stan-field of Krupnick & Campbell, P.A., Fort Lauderdale, for appellant.
    Maxine Caster of Conrad, Scherer & James, Fort Lauderdale, for appellee — Grocery Warehouse II.
   PER CURIAM.

The trial court entered summary judgment in favor of appellee Grocery Warehouse upon a finding that appellee Vernon Kadel was acting as an independent contractor rather than an employee at the time he collided with appellant’s motorcycle. The record demonstrates numerous questions of material fact as to Mr. Kadel’s employment status. We therefore reverse summary judgment and remand for further proceedings. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977).

HERSEY, HURLEY and DELL, JJ., concur.


text:
    Steven Mitchell DARA, Appellant, v. STATE of Florida, Appellee.
    No. 83-2005.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Paul M. Rashkind and Richard E. Ger-stein of Bailey, Gerstein, Rashkind & Dres-nick, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, Clark v. State, 363 So.2d 331 (Fla.1978).

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    John ISHMAEL, Appellant, v. Christel SCHMIDT, Appellee.
    No. 83-2244.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    R. Alan Hale of the law offices of R. Alan Hale, Fort Lauderdale, for appellant.
    Joseph M. Balocco of Sobo, Wellens & Balocco, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed on the authority of Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968).

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Winston R. WILKINS, Appellee.
    No. 84-25.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard G. Lubin, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977); D’Agostino v. State, 310 So.2d 12 (Fla.1975).

DOWNEY, LETTS and WALDEN, JJ., concur.


author: MILLS, Judge.

text:
    LYKES MEMORIAL HOSPITAL and All Risk Corporation of Florida, Appellants, v. Rebecca POPE, Appellee.
    No. AV-391.
    District Court of Appeal of Florida, First District.
    May 30, 1984.
    David W. Young of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Lakeland, for appellants.
    Joseph L. Thury of Antinori & Thury, P.A., Tampa, for appellee.
   MILLS, Judge.

We affirm the deputy commissioner’s order which awarded temporary total disability benefits and continuing medical treatment. The deputy commissioner found that Pope’s present condition was caused by her industrial accident, and that finding is supported by competent, substantial evidence.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    CITY OF CLEARWATER and Hewitt, Coleman & Associates, Appellants, v. Bernard DONAHUE, Appellee.
    No. AW-85.
    District Court of Appeal of Florida, First District.
    May 30, 1984.
    Peter H. Dubbeld of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellants.
    Enrique Escarraz, III, and Donald C. Anderson, St. Petersburg, for appellee.
   MILLS, Judge.

We find competent substantial evidence to support the deputy commissioner’s finding of a causal relationship between Donahue’s compensable injuries and his present psychiatric condition. We also find competent substantial ’ evidence to support the finding that Donahue suffered a compensa-ble injury on 4 April 1983. Accordingly, the City of Clearwater’s argument that Section 440.19, Florida Statutes (1983), bars Donahue’s claim for benefits is without merit.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    STATE of Louisiana v. Douglas JOHNSON.
    No. 84-KH-0610.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Douglas Johnson, applying for writ of habeas corpus to the First Circuit Court of Appeal, No. 82-KW-0799; 19th Judicial District Court, Parish of East Baton Rouge, No. 4-82-393.

Denied. The Court of Appeal has reviewed relator’s conviction in compliance with the order of this Court and has reversed the conviction.


text:
    STATE of Louisiana ex rel. Arthur TURNER v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 83-KH-1433.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Arthur Turner, applying for writ of habeas corpus, from Criminal District Court, No. 267-391, Section “H”, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Leroy M. SMITH v. Hon. Edwin A. LOMBARD, Clerk and Hon. Matthew S. Braniff, Judge, Criminal District Court, Section "B", New Orleans, LA, 70119.
    No. 83-KH-1419.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Leroy M. Smith, applying for reconsideration of denied writ of April 2, 1984, 447 So.2d 485, from Criminal District Court, for the Parish of Orleans, No. 282-967.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Frasher WILLIAMS v. STATE of Louisiana.
    No. 84-KH-0733.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Frasher Williams, applying for writs of certiorari, prohibition, or mandamus, to Criminal District Court, Parish of Orleans.

Denied. Moot.


text:
    Eugene BARRIFFE, Jr., and Errol Ware v. Luis ORTIZ and Alma Ortiz.
    No. 84-CC-0926.
    Supreme Court of Louisiana.
    May 9, 1984.
   In re Luis Ortiz, applying for supervisory writ and stay order, to the Civil District Court, Parish of Orleans, Division “J”, No. 82-19655; Fourth Circuit Court of Appeal, No. C-2294.

Denied.


text:
    STATE of Louisiana ex rel. Robert SAWYER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KP-0919.
    Supreme Court of Louisiana.
    May 10, 1984.
   In re Robert Sawyer, applying for writ of review and stay of execution to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 79-2841, Division G.

In view of the fact that counsel assigned by the trial judge in this capital case was not admitted to the bar for at least five years prior to trial as required by La.Code Crim.P. art. 512 and considering defendant’s contentions relative to ineffective assistance .of counsel, we grant the application, stay the execution and remand the case to the district court with instructions to the trial judge to conduct an evidentiary hearing on whether defendant received effective assistance of counsel and to reconsider defendant’s entire application in light of that evidence.


text:
    STATE of Louisiana, ex rel., Joseph LADD, Jr., v. COURT REPORTER/SECTION "E", CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-1508.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Joseph Ladd, Jr., applying for writ of mandamus, Parish of Orleans, No. 288-902.

Granted. Boykin transcript ordered furnished.


text:
    Michael S. BREAUX v. Eleanor M. BAILEY.
    No. 84-CC-0914.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Eleanor M. Bailey, applying for writ of review and stay order to the First Circuit Court of Appeal, No. CW-83-1453, Parish of Assumption, Twenty-Third Judicial District Court, No. 15300.

Denied.


text:
    STATE of Louisiana v. Clarence LAWRENCE.
    No. 84-KH-0759.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Clarence Lawrence, applying for writ of certiorari and mandamus, 15th Judicial District Court, Parish of Lafayette, No. 46855; Court of Appeal, Third Circuit, No. K84-106.

Denied.


text:
    Judy Theresa JONES v. Lee Anthony THIBODEAUX.
    No. 84-C-0532.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Lee Anthony Thibodeaux, applying for reconsideration of writ denial of April 13, 1984, 448 So.2d 112, to the Fourth Circuit Court of Appeal, No. CA-1234; Civil District Court, Parish of Orleans, No. 81-8503.

Not considered. Rule 9 Section 6.


text:
    Norman JAECKLE v. DRESSER INDUSTRIES, INC.
    No. 84-C-0629.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Norman Jaeckle, applying for writ of certiorari or review, to the First Circuit Court of Appeal, No. 83-CA-0137, from the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 68866.

Granted.


text:
    Verna Lou SNIDER, as Tutrix for the Minor Children of Jerry Wayne Snider v. KEMPER INSURANCE COMPANY et al. Donna Bates SNIDER v. Gloria M. MURRAY, Kemper Insurance Companies and State Farm Insurance.
    No. 84-C-0797.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re State Farm Insurance Company, applying for writ of review to the Second Circuit Court of Appeal, Nos. 16124-CA, and 16125-CA; Eleventh Judicial District Court, Parish of DeSoto, Nos. 38707 and 38235.

Granted.


text:
    STATE of Louisiana ex rel., Garrett Decatur RICHARDSON v. Sheriff Charles C. FOTI, Jr., La. Department of Correction, La. State Parole Board, Sheriff Elmer Litchfield, et al.
    No. 84-KH-0636.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Garrett Decatur Richardson, applying for reconsideration of denied writ of April 13, 1984, 448 So.2d 118, from the Criminal District Court, Parish of Orleans, No. 267-196.

Denied.


text:
    STATE of Louisiana ex rel. Eddie Lee MAYES v. STATE of Louisiana.
    No. 84-KH-0679.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Eddie Lee Mayes, applying for writ of mandamus and prohibition to the Seventh Judicial District Court, Parish of Cata-houla, No. 791540.

Denied Moot


text:
    STATE of Louisiana v. Gary Glen COGHLAN.
    No. 84-K-0681.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Gary Glen Coghlan, applying for writ of review to the Second Circuit Court of Appeal, No. 15731-KA, from the First Judicial District Court, Parish of Caddo, No. 121-205.

Denied.


text:
    STATE of Louisiana v. Edward OGLETREE.
    No. 84-KH-0708.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Edward Ogletree, applying for remedial writ, Criminal District Court, Parish of Orleans, No. 289-752.

Denied. Moot.


text:
    STATE of Louisiana v. Curtis J. MARTIN, Jr.
    No. 84-KO-0722.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Curtis J. Martin, Jr., applying for writ of certiorari, or writ of review, to the Fourth Circuit Court of Appeal, No. KA-1335; Criminal District Court, Parish of Orleans, No. 291-837, Section F.

Denied.


text:
    STATE of Louisiana In the Interest of Minor, Senedra Madrill BARTEE.
    No. 84-CK-0771.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Mrs. Mabel Barley, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-1244; Juvenile Court, Section C, Parish of Orleans, No. 198-785.

Denied.

3


text:
    STATE of Louisiana v. Frank SCOTT, Jr.
    No. 84-K-0774.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Frank Scott, Jr., applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. KA-0618; Parish of Orleans, Criminal District Court, Division B, No. 283-069.

Denied.


text:
    Don K. BROWN and F.M. Brown v. Billy Ray BEDSOLE, Jerry M. Smith, and Georgia Casualty Insurance.
    No. 84-C-0776.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Jerry M. Smith, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-527; 11th Judicial District Court, Parish of Sabine, No. 33791.

Denied.

DIXON, C.J., would grant the writ.


text:
    GERTRUDE GARDNER, INC. v. Earl BRYANT, Jr.
    No. 84-C-0777.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Earl Bryant, Jr., applying for writs of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-0785, from the Civil District Court, Parish of Orleans, No. 82-3340.

Denied.


text:
    STATE of Louisiana ex rel. James E. SMITH v. Ross MAGGIO, Jr., Warden, L.S.P.
    No. 84-KH-0788.
    Supreme Court of Louisiana.
    May 11, 1984.
    Reconsideration Denied June 15, 1984.
   In re James E. Smith, applying for writ of habeas corpus to the Twenty-First Judicial District Court, Parish of Tangipahoa.

Denied.


text:
    STATE of Louisiana v. Claude MARQUER, Sr., Claude Marquer, Jr. and Esther Marquer.
    No. 84-K-0789.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Claude Marquer, Sr., Claude Mar-quer, Jr. and Esther Marquer, applying for writ of certiorari and review, to the Fourth Circuit Court of Appeal, No. KA-0377, from Criminal District Court, Parish of Orleans, No. 281-847, Division “H”.

Denied.


text:
    Moses E. WILCOX, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. 84-C-0793.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Moses E. Wilcox, M.D., applying for writ of certiorari, or review to the Fourth Circuit Court of Appeal, No. CA-1026, from' the Civil District Court, Parish of Orleans, No. 82-8542, Division “C”.

Denied.


text:
    Harold Wayne DOSS v. HARTFORD FIRE INSURANCE COMPANY and Dr. George Belchic, Jr.
    No. 84-C-0803.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Harold Wayne Doss, applying for writ of certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16,-073-CA; Parish of Caddo, First Judicial District Court, No. 246661.

Denied.


text:
    Walter BAILEY and Robert L. Bailey v. Huey Earl BAILEY, et al.
    No. 84-C-0815.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Huey Earl Bailey, applying for writ of certiorari or review to the Court of Appeal, Second Circuit, No. 16065-CA;. 11th Judicial District Court, Parish of DeSoto, No. 40841.

Denied.


text:
    T.W. ALLEY, Sr. v. Thomas COURTNEY, Jr.
    No. 84-C-0817.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Thomas Courtney, Jr., applying for writ of certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16138-CA; First Judicial District Court, Parish of Caddo, No. 260962.

Denied.


text:
    MASSEY-FERGUSON CREDIT CORPORATION v. Samuel F. DOUGLAS, Jr.
    No. 84-C-0818.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Massey-Ferguson Credit Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16074-CA; 6th Judicial District Court, Parish of Tensas, No. 15277.

Denied.


text:
    STATE of Louisiana ex rel. Johnny Lee SULLIVAN v. STATE of Louisiana, Judge Frank Shea, Harry Connick Dwight Doskey.
    No. 84-KH-0872.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Johnny Lee Sullivan, applying for writs of mandamus to the Criminal District Court, No. 276-394, Section “G”, Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana v. Albora SOSA.
    No. 84-K-0757.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Albora Sosa, applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. KA-1011; Criminal District Court, Parish of Orleans, No. 285-312.

Denied.


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. Pugh T. HUCKABAY, Jr. and His Wife, Julie Rocquin Huckabay. CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. James M. HERRING and His Wife, Paula Vetter Herring.
    No. 84-C-0799.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Pugh T. Huckabay, Jr., et al. and James M. Herring et al., applying for writ

of certiorari to the Second Circuit Court of Appeal, Nos. 16000-CA and 16001-CA; Thirty-Ninth Judicial District Court, Parish of Red River, Nos. 25725 and 25726.

Case below: 446 So.2d 1327; 446 So.2d 1333.

Denied.