author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    STRUCTURAL SYSTEMS, INC., Appellant, v. James P. WORTHEN, Appellee.
    No. AZ-4.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1985.
    Rehearing Denied March 6, 1985.

      Richard H. Weisberg and Robert A. Donahue of Cooper, Rissman & Weisberg, Orlando, for appellant.
    Richard I. Cervelli, Naples, for appellee.
   THOMPSON, Judge.

This is an appeal from an order finding the carrier at the time of the two prior accidents in 1980 liable for temporary total disability (TTD) benefits and past and future remedial treatment resulting from a subsequent accident occurring in 1983 when it was no longer the carrier. We reverse.

Claimant twisted his left leg while working on some scaffolding on October 24, 1980. He did not report this accident. On the evening of the same date, claimant injured his left knee while playing in an employer sponsored softball game. He was examined after the second accident by Dr. Peterson who found that the claimant had sustained an acute tear of the anterior cruciate ligament with a mild peripheral tear of the anterior medial semilunar cartilage. Claimant missed only one day of work from the October 1980 accidents and the carrier at the time, Hewitt, Coleman and Associates, Inc., paid for all medical bills resulting from the October 1980 accidents.

On December 8, 1980 claimant slipped on an oily spot at work and fell on his left knee. He was again treated by Dr. Peterson who drained the fluid out of his knee and diagnosed the injury as acute hemar-throsis secondary to a hyperflexion strain.

On July 18, 1983 the claimant again sustained an injury to his left knee while playing in an employer sponsored softball game. He was again treated by Dr. Peterson who performed arthroscopic surgery on the left knee on July 22, 1983, reconstructive surgery on the same knee on August 29, 1983 and further surgery on December 28, 1983 for the removal of screws that had been placed in the knee for internal fixation.

On October 31, 1983 claimant filed a claim for TTD benefits retroactive to July 18,1983, further remedial care, costs, interest, penalties and attorney’s fees as a result of the accident occurring on July 18, 1983 or the accidents occurring in October 1980. While this claim was pending, the claimant and his attorney reached an agreement with Johns Eastern Company, Inc., the carrier at the time of the July 18, 1983 accident, for a washout settlement pursuant to § 440.20(12)(b), Fla.Stat. (1983). The agreement released the employer and Johns Eastern from any further liability for medical and compensation benefits as a result of the July 18, 1983 accident.

The uncontroverted medical testimony establishes that the earlier injuries caused damage to the claimant’s knee which predisposed him to have the July 18, 1983 injury and the resulting damage to his knee. Dr. Peterson testified that the claimant was “living on kind of borrowed time ... and he probably never would have had [the injury] in July of 1983 had he not had the underlying pathology” from the earlier accidents. However, the record also established that the claimant lost only one day from work as a result of the October 1980 accidents and during the three-year period before July 18, 1983 the claimant missed only a few days of work because of his injuries and received his full wages during that period of time. The record reflects that all medical bills for treatment prior to the July 18, 1983 accident have been paid. Claimant was working regularly prior to the July 18, 1983 accident and was playing softball at the time of his July 18, 1983 injury. At the time of the subsequent accident and injury the claimant was able to work and did not require any medical treatment.

Although the July 18, 1983 accident might not have occurred if the claimant had not had the pre-existing condition resulting from the prior accident, any temporary disability benefits and remedial medical treatment occasioned by the 1983 accident are the responsibility of the carrier at the time of that second accident. See Hayward Trucking, Inc. v. Aetna Insurance Company, 445 So.2d 385 (Fla. 1st DCA 1984). There are several earlier cases that permitted the apportionment of medical benefits. See Neff v. Britto, 404 So.2d 416 (Fla. 1st DCA 1981); Bell Rentals and Sales v. Harvey, 405 So.2d 289 (Fla. 1st DCA 1981). However, all of these cases involved accidents that occurred prior to August 1, 1979, the effective date of a substantial amendment to § 440.15(5), Fla. Stat. Prior to the 1979 amendment, § 440.-15(5) provided:

(5) SUBSEQUENT INJURY.—
(a) If any employee receives any injury for which compensation is payable while he is still receiving or entitled to receive compensation for a previous injury in the employ of the same employer, he shall not at the same time be entitled to compensation for both injuries, unless the latter injury be a permanent injury such as specified in this section; but he shall be entitled to compensation for that injury and from the time of that injury which will cover the longest period and the largest amount payable under this chapter.
(b) If any employee receives a permanent injury as specified in this section, after having previously sustained another permanent injury in the employ of the same employer, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation. When the previous and subsequent injuries received in the same employment result in permanent total disability, compensation shall be payable for permanent total disability.
(c)The fact that an employee has suffered previous disability, impairment, or disease or received compensation therefor shall not preclude him from benefits for a later injury nor preclude benefits for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will represent his earning capacity at the time of the later injury. However, if an employee who has received compensation under this chapter for a previous permanent partial disability, impairment, or disease incurs a subsequent permanent partial disability from injury or occupational disease arising out of and in the course of his employment which merges with the preexisting permanent partial disability, impairment, or disease to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury or occupational disease alone, the compensation received for the previous permanent partial disability, impairment, or disease shall be deducted from the compensation payable for the subsequent permanent partial disability. However, in no event shall the compensation for the subsequent permanent partial disability be less than that allowed for the degree of disability that would have resulted from the subsequent injury or occupational disease if the previous disability had not existed.

In 1979, § 440.15(5) was completely rewritten to provide:

(5) SUBSEQUENT INJURY.—
(a) The fact that an employee has suffered previous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude him from benefits for a subsequent injury nor preclude benefits for death resulting therefrom. Compensation for temporary disability, medical benefits, and wage-loss benefits shall not be subject to apportionment.
(b) If a compensable permanent impairment, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the result of merger with a preexisting impairment, an employee eligible to receive impairment benefits under paragraph (3)(a) shall receive such benefits for the total impairment found to result, excluding the degree of impairment existing at the time of the subject accident or injury or which would have existed by the time of the impairment rating without the intervention of the compensable accident or injury. The degree of permanent impairment attributable to the accident or injury shall be compensated in accordance with paragraph (3)(a). As used in this paragraph, “merger” means the combining of a preexisting permanent impairment with a subsequent compensable permanent impairment which, when the effects of both are considered together, result in a permanent impairment rating which is greater than the sum of the two permanent impairments ratings when each impairment is considered individually-
(c) If an employee receiving wage-loss benefits suffers a subsequent injury causing temporary disability, both wage-loss benefits and temporary disability benefits shall be payable during the duration of temporary disability; however, the total benefits payable shall not exceed the maximum compensation rate in effect for temporary disability at the time of the subsequent injury. Any reduction in benefits due to such limit shall be applied first to the wage-loss benefits payable as a result of the prior injury.
(d) If an employee receiving wage-loss benefits suffers a subsequent injury causing an additional compensable wage loss, benefits for each wage loss shall be payable; however, the total wage-loss benefits payable shall not exceed the maximum compensation rate in effect for permanent disability at the time of the subsequent injury. Any reduction in wage-loss benefits due to such limitation shall be applied first to the benefits payable as a result of the prior injury. (Emphasis supplied).

Although there was a provision for apportionment of permanent impairment in the pre-1979 law, there was no provision for or prohibition against apportionment of compensation for temporary disability and medical benefits. The 1979 amendment specifically prohibited apportionment of compensation for temporary disability and medical benefits resulting from a subsequent injury. Unlike Neff, Bell Rentals, and other cases allowing apportionment of medical benefits, in Hayward and in this case the compensable accidents occurred subsequent to August 1, 1979 and the 1979 law prohibiting apportionment of temporary disability and remedial medical benefits applies.

While 440.42(3) grants the deputy commissioner (deputy) jurisdiction to adjudicate controversies between carriers as to responsibility for payment of benefits, the deputy must follow the law in making his decision. If the clear and unambiguous language of § 440.15(5) (1979) is to be given any force and effect, the deputy is prohibited from apportioning any compensation for temporary disability or medical benefits payable after the subsequent accident.

The fact that the claimant has released the carrier responsible for the compensation and medical benefits claimed is not a basis for holding the carrier on the prior accidents liable for these benefits. If so, a claimant could receive a windfall by reaching a washout settlement with the carrier responsible for the workers’ compensation benefits due as a result of a subsequent accident and proceed successfully against a carrier at the time of a prior compensable accident.

In view of the reversal of the benefits awarded, we also reverse the attorney’s fee awarded. Reversed and remanded with instructions to dismiss the claim as to the employer and the carrier Hewitt, Coleman & Associates, Inc.

BOOTH, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. The majority relies upon Hayward Trucking, Inc. v. Aetna Insurance Company, 445 So.2d 385 (Fla. 1st DCA 1984), in reversing the order on review. In my judgment, the court’s holding in both Hayward and the case on review are inconsistent with opinions from this court and the Florida Supreme court on causation, and I believe them both to have been incorrectly decided. Hayward involved a claim by the employer/carrier (e/c) on the risk at the time of the employee’s second accident for reimbursement, under the provisions of Section 440.42(3), Florida Statutes, from the first e/e for all benefits paid by it to the employee-claimant. The court reversed the deputy’s allowance of reimbursement, holding that the second e/c was itself solely responsible for the payment of the employee’s benefits. In so holding, Hayward apparently drew support from section 440.15(5), barring apportionment for temporary and medical benefits, in reaching its conclusion that until a claimant has obtained maximum medical improvement (MMI), and a permanency rating is achieved, no apportionment can be made between the two carriers as to their respective responsibilities. Regardless of whether the claimant in Hayward had been determined permanently disabled, the carrier on the risk at the time of the second injury was at the very minimum entitled to have the medical costs apportioned between it and the other carrier, assuming of course that the injuries combined to produce the temporary disability. See Neff v. Britto, 404 So.2d 416 (Fla. 1st DCA 1981); Bell Rentals and Sales v. Harvey, 405 So.2d 289 (Fla. 1st DCA 1981).

Unlike Hayward, the case at bar involved no issue of apportionment, for the simple reason that no permanent disability rating had been assigned the claimant, as required by section 440.15(5). The question by the deputy below was simply whether there was any causal connection between the initial injury and the subsequent, temporary disability and need for remedial treatment, and that issue having been decided, our task on review was to determine whether there was competent, substantial evidence supporting the deputy’s conclusion.

What apparently motivated this court’s decision in Hayward, as well as in the present case, in absolving the first carrier from liability, was the claimant’s ability to resume work without difficulty and in continuing to do his work until the final incident occurred. We have held that apportionment should be denied in those instances in which an industrial accident occurs, causing disablement if, at the time of the injury, the preexisting condition was asymptomatic and non-disabling. See Sarasota County v. Reichert, 413 So.2d 163 (Fla. 1st DCA 1982); Barile Excavation and Pipeline Sewer Improvement v. Hough, 417 So.2d 843 (Fla. 1st DCA 1982). The mere fact, however, that a preexisting condition is non-disabling at the time of a later accident is not itself conclusive on the question of whether the final injury solely contributed to the causation of the resulting disablement. Cases involving apportionment clearly reveal the necessity of ascertaining whether a second injury occurred, independently causing disability.

A necessary pre-condition to any consideration of whether apportionment should be applied is to decide first whether there is a causal connection between the preexisting condition and the resulting disability. Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967). Thus, in cases in which apportionment is inapplicable, because, as here, no permanent disability is involved, the maxim requiring the employer to take the employee as he finds him remains valid — assuming that the last injury was caused by a new accident, which independently caused the final disability.

As we stated in U.S. Electric Co. v. Sisk Electric Service, Inc., 417 So.2d 738, 739 (Fla. 1st DCA 1982): “The determinative factor in placing liability under Section 440.42(3) [the statute permitting apportionment of medical benefits between carriers], is whether the second compensable accident causes injury which is independent from or an exacerbation of that from the first compensable accident. Section 440.-42(3) thereafter allows the deputy to divide liability according to each carrier’s responsibilities.” In Sisk, no apportionment of medical benefits was required because the court sustained the deputy’s finding that the second injury was merely an exacerbation of the first, and therefore the first e/c on the risk was solely responsible for the payment of all benefits to claimant. Although Sisk — like Hayward — involved an insurer’s claim for reimbursement against another insurer, pursuant to the provisions of section 440.42(3), and the present case involves a direct claim by an employee for temporary disability compensation and medical benefits, which are not subject to apportionment, section 440.15(5)(a), the same evidentiary rule of causation, announced in Sisk, applies also in the present case.

Professor Larson’s treatise is of particular assistance in those situations wherein a worker suffers two or more episodes of disability with an intervening change of employers, or change of insurance carriers by the same employer. See 4 Larson Workmen’s Compensation Law, § 95.00 (1984) [hereinafter: Larson], He explains that there are three possible solutions to the successive carrier problem: to hold the first insurer liable, to place liability on the insurer on the risk at the time of the last injury, or to apportion the loss upon all. Id. at 17-109. The second solution, assigning liability to the carrier on the risk at the time of the last injury, has been termed the last injurious exposure rule. Id. at 17-112. It should be noted that Florida has by statute adopted that rule as to occupational disease cases only. See Section 440.151, Florida Statutes (1979).

In those states that apply the last injurious rule to accidental injury cases, as well as occupational disease cases, Larson notes that it is the characterization of the type of injury sustained that is most important. The characterization of the injury is also the determinative factor in cases involving apportionment issues; therefore the same causative principles applicable to cases involving the last injurious exposure rule are relevant also to cases involving apportionment issues. Thus, if the second injury is characterized as a recurrence of the earlier injury, rather than an aggravation or a new injury, and if the second incident does not contribute to the causation of the disablement, apportionment is inapplicable and the insurer on the risk at the time of the original injury remains liable for the second. Id. at 17-115, n. 20, 17-127. On the other hand, if the disability in question was caused by an aggravation amounting to a new injury, contributing independently apart from the prior injury to the final disability, the last carrier so exposed is solely liable, and apportionment is also inapplicable. See Miami International Hospital v. Summers, IRC Order 2-3358 (1978), wherein the e/c had urged that the claimant’s second accident, for which it was on the risk, produced only short term effects, and that the subsequent surgery and disability were the result of an earlier accident. Rejecting this contention, the Industrial Relations Commission held that there was a sufficient evidentiary basis to uphold the order of the judge of the industrial claims, placing liability solely on the second carrier. The record there revealed that the treating physician had opined that the last accidental injury aggravated the previous condition and caused the treatment that followed. The reviewing body concluded, speaking through Commissioner Went-worth, that “[w]hen a causal relation is established there is, of course, no basis under the statute for apportionment of the medical and temporary disability benefits awarded_” (e.s.)

To conclude, cases involving both apportionment and the last injurious exposure rule require that there be a second injury contributing to the causation of the disability before the question of which carrier is liable even arises. Larson, pp. 17-127 and 17-193. Once there is evidence revealing the existence of a second injury which contributes, to permanent disability, apportionment between two carriers is proper if both injuries combine to produce the final disability. Larson at 17-181. And see Mandel v. Pratt, 117 So.2d 413 (Fla.1960).

In my opinion, the evidence in the case at bar sustains the deputy’s finding that the incident which occurred in July of 1983 was merely a recurrence of the prior injuries sustained in 1980, and not a new injury independently contributing to claimant’s disablement. Dr. Peterson stated that claimant’s knee probably never would have given way in July, 1983, if he had not had the underlying pathology; that he was predisposed to the injury “100%”, and that claimant was “living on ... borrowed time and probably never would have had the injury of 1983 had he not had the underlying pathology.”

The majority’s opinion suggests that the rule permitting apportionment of medical benefits is no longer applicable after the 1979 amendment to Section 440.15(5), Florida Statutes. The majority, however, apparently overlooks the continuing effect of Section 440.42(3), Florida Statutes (first added by chapter 57-225, § 3, Laws of Florida), which is still extant, and provides generally that in the event of a controversy between two or more carriers as to their obligations with respect to a claim for compensation or other benefits, the deputy commissioner shall have jurisdiction to determine the controversy. Although it is true, as stated by the majority, that the accident which occurred in Neff v. Britto was governed by the pre-1979 law, in my judgment the result would be the same if the accident had occurred following the 1979 amendments, in that section 440.42(3), Florida Statutes, was unaffected by the amendments. The distinction between a dispute involving two carriers’ responsibilities to pay a claim for medical benefits, authorized by section 440.42(3), and a dispute between a claimant and one e/c for benefits was carefully explained by this court in Neff v. Britto, 404 So.2d at 417, as follows:

Contrary to appellants’ arguments, Section 440.02(18) [which, until its amendment in 1979, precluded apportionment of temporary benefits and medical costs] is not applicable to the present case. This statute governs disputes between a claimant and a single employer/carrier and does not apply to disputes between multiple employer/carriers. Seasons from Sarasota v. O’Day, 379 So.2d 1024 (Fla. 1st DCA 1980). Here, the dispute is between two employer/carriers as to each one’s responsibility for payment of claimant’s medical treatment of his psychiatric condition and Section 440.42(3), Florida Statutes (1977), is the relevant statute. Under Section 440.42(3), the deputy commissioner is empowered to apportion the medical benefits awarded between the employer/carriers according to each one’s responsibility. Rowe and Mitchell v. Rodgers, 378 So.2d 1281 (Fla. 1st DCA 1980).

The language now found in Section 440.-15(5), Florida Statutes, forbidding apportionment of medical and temporary benefits as to claims filed by a worker against an e/c, was included until the 1979 revision, under Section 440.02(18), Florida Statutes (1977), defining accident. This provision was first added to then section 440.02(19) by chapter 65-184, § 1, Laws of Florida. Before the 1965 amendment, the court had construed section 440.02(19) as permitting apportionment of medical and temporary benefits. Shores Development, Inc. v. Carver, 164 So.2d 803 (Fla.1964). In 1979, the apportionment bar to such benefits was transferred to section 440.15(5). Thus, for nearly twenty years there has existed no authority to apportion medical or temporary benefits in a claim involving only an injured worker and an e/c. See also Russell House Movers, Inc. v. Nolin, 210 So.2d 859 (Fla.1968). Certainly the transfer of the apportionship bar from section 440.-02(18) to section 440.15(5)(a) in 1979 had no more effect on section 440.42(3), permitting apportionment between carriers, than had the preclusion provision before 1979. Indeed, the transfer to section 440.15, providing generally the types of disability-compensation available to injured workers, serves to clarify the legislative intent that the bar affects only claims between the claimant and an e/c, and not disputes between multiple carriers.

U.S. Electric Co. v. Sisk recognized, even after the 1979 amendments, that apportionment of medical benefits under section 440.42(3) may be permitted in a proper case. From my review of the record in Sisk, I find that the employee was first injured on April 2, 1979, and later on September 13, 1979. Although the court sustained the deputy’s finding that the second injury was not the result of a new accident, but rather an exacerbation of the former, it observed that if a new injury had occurred, “[sjection 440.42(3) ... allows the deputy to divide liability according to each carrier’s responsibility.” 417 So.2d at 739 (e.s.).

The point of my disagreement with the majority is not that the deputy in the instant case could apportion medical and temporary benefits between the two carriers— clearly he is prohibited from doing so by section 440.15(5) — rather that the majority’s application of the principles stated in Hayward Trucking, Inc. v. Aetna Insurance Company to the case at bar is misplaced, because that case involved a claim for reimbursement by one carrier against another, and as such, was controlled by the provisions of section 440.42(3), which, as stated, permits, in a proper case, apportionment of medical benefits paid.

In the case on review, section 440.15(5) applies, so no issue of apportionment is involved. The only question before us is whether there exists competent and substantial evidence supporting the deputy’s determination. And the questions confronting the deputy in turn were those directed to the issue of causation, asking: (1) Was the second injury such as to constitute a new injury, thereby placing responsibility for all benefits claimed on the second carrier, or (2) was the later injury simply a recurrence of the former, thereby making the first carrier solely responsible? In my judgment, the deputy on competent and substantial evidence made the latter finding, and I would not disturb it now on appeal.

Although I would affirm the award, I would also direct the deputy to deduct from the amount of benefits awarded the lump sum agreed upon between claimant and the later carrier as settlement for all injuries suffered, which, by agreement, were related solely to the incident of July 18, 1983. It was of course later determined by the deputy that none of the later injuries were caused by the July 1983 incident, but instead related only to the first, as a recurrence of the former.

In my view the washout agreement should be deemed a gratuity, insofar as the rights of the second carrier are concerned. Compensation received for temporary disability pursuant to a settlement agreement is not subject to a deduction. Parks v. Dade County Waste Division, 402 So.2d 563 (Fla. 1st DCA 1981). Nevertheless, I see no reason why the first carrier, not a party to the agreement, should be barred from receiving a credit, caused by the amount claimant received by stipulation, against future compensation and medical benefits, which it was directed below to pay. Our opinions have recognized that an overpayment may be applied as a credit against compensation ultimately found to be due, even though such compensation is of another class, if a reasonable basis exists for such overpayment. Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981); State of Florida, Division of Family Services v. Varela, 418 So.2d 1182 (Fla. 1st DCA 1982). Clearly a reasonable basis for the overpayment existed, in that at the time of the agreement, claimant’s final disability had not yet been solely attributed to the earlier accidents.

I recognize that the instant cause involves no issue of whether a credit should be allowed against a different class of disability benefits, as was the situation involved in the above cited cases. Instead, the credit in my opinion should be applied to the same compensation class, temporary total benefits only; yet I know of no reason why such credit could not be allowed to the same category of compensation. It has long been recognized that the employer is entitled to recoup by way of credit advance payments previously made from the same class of compensation benefits remaining unpaid. Daoud v. Matz, 73 So.2d 51 (Fla. 1954). This rule remains unaffected by Belam and its later progeny.

I would therefore affirm the award entered, but remand the case to the deputy with directions for him to credit from future sums owed to claimant, the amount paid to him pursuant to the agreement.

      . While the Sisk opinion did not report the dates of the accidents involved, the court is permitted to take judicial notice of its own records. Department of Legal Affairs v. District Court of Appeal, 5th District, 434 So.2d 310, 313 (Fla. 1983).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lillian Wanda GREEN, Appellant, v. W.J. GREEN, Appellee.
    No. AZ-319.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1985.
    Lloyd C. Hawthorne, Live Oak, for appellant.
    William R. Slaughter, II, of Slaughter & Slaughter, Live Oak, for appellee.
   PER CURIAM.

Appellant contends that the trial court abused its discretion in awarding her $5.00 per week as permanent periodic alimony and $35.00 for 165 weeks as rehabilitative alimony. We reverse and award of permanent periodic alimony and affirm the award of rehabilitative alimony.

The standard of review in dissolution cases is whether the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The test to be applied by the appellate court is whether the trial court’s order is supported by competent evidence. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). We find that there is no competent evidence to support the trial court’s award of $5.00 per week as permanent periodic alimony, and we are certain that reasonable men could not differ as to the inadequacy of this award. However, we affirm the award of rehabilitative alimony as supported by the record.

Accordingly, we reverse the award of permanent periodic alimony and remand for reconsideration in view of evidence of the wife’s needs and the husband’s ability to pay.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

BOOTH, SHIVERS and ZEHMER, JJ., concur.


text:
    Annie Lou GENTRY, Appellant, v. Vernon LeRoy GENTRY, Appellee. Pernell DRIVER, Appellant, v. LAFAYETTE COUNTY, Florida, Appellee. R.J.P., Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. AZ-454, BA-279 and AV-500.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1985.
    John R. Weed, Perry, for appellants.
    Michael S. Smith, Smith & Smith, P.A., Perry, for appellees Vernon LeRoy Gentry and LaFayette County, Florida.
    Jim Smith, Atty. Gen., and James R. Bean, III, Asst. State Atty., for appellee State of Fla.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

These proceedings have been consolidated for the purpose of addressing the failure of counsel, John R. Weed, to respond to orders of this court and comply with the Florida Rules of Appellate Procedure. Counsel’s name has twice appeared on this court’s culpa list, see Mitchell v. State, 433 So.2d 632 (Fla. 1st DCA 1983), in HH-302 (for an unspecified violation) and in AP-136 and AP-137 (for neglect of case, i.e., failure to withdraw).

In AZ-454, appellant’s notice of appeal was filed June 11, 1984. Appellant failed to file an initial brief within the time allotted by Rule 9.110(f), Fla.R.App.P., i.e., August 20, 1984. By motion dated October 10, 1984, appellee moved to dismiss the appeal. An order to show cause was issued October 11, 1984. Appellant failed to respond. On November 5, 1984, an order was entered directing appellant to show cause why he should not be held in contempt or sanctions imposed for his failure to file an initial brief or motion for extension and failure to respond to this court’s order. Counsel’s untimely response to the order to show cause stated that on October 8, 1984, his secretary underwent an operation and he was required to devote much of his time to looking after her affairs as her children lived out of state. Since appellant’s initial brief was due August 20,1984, and counsel’s response advanced no reason why it was not timely served, we directed counsel to appear personally before the court.

In BA-279, the notice of appeal was filed July 9, 1984. Appellant failed to file an initial brief within the time allotted by Rule 9.110(f), Fla.R.App.P., i.e., September 17, 1984. Appellee moved for dismissal on October 24, 1984. An order to show cause was issued October 26, 1984, directing appellant to respond to the motion to dismiss within 10 days. Counsel failed to timely respond. On November 20, 1984, counsel filed a response indentical to that filed in AZ-454 asserting he had been unable to prosecute this appeal due to his secretary’s illness. Counsel requested a 10-day extension in which to file the initial brief.

In AY-500, a juvenile proceeding, a notice of appeal was filed November 8, 1983. As there had been no record activity, this court, sua sponte, entered an order May 11, 1984, directing appellant to show cause why the appeal should not be dismissed for failure to file a brief or record. Appellant filed a response wherein he stated the court reporter who attended the hearing had not filed the notes and transcripts requested by appellant. Counsel further stated that the court administrator for the Third Judicial Circuit was not able to determine which court reporter had been assigned to the case. Finding this response inadequate, we directed counsel to show cause why sanctions should not be imposed for his failure to properly prosecute this appeal. The order further directed counsel to include an appendix to his response including copies of all motions, pleadings or correspondence relating to counsel’s efforts to have the record on appeal prepared. Counsel responded by stating he had “done all within his power” to locate the transcript and prosecute this appeal. Counsel’s response was accompanied by two affidavits, each of which were undated, unverified and unsigned. The court, finding this response inadequate, directed counsel to appear personally before the court and show cause why he should not be held in contempt or exposed to sanctions for his failure to comply with this court’s order and the appellate rules.

We find that neither the written responses nor the oral explanation made to the court constitute good cause for counsel’s failure to comply with the appellate rules and the orders of this court. Counsel advanced no further justification for his failure to file timely briefs in AZ-454 and BA-279. Despite the fact that counsel was associated with another attorney and had two other secretaries in his office, no motion for extension of time was ever filed in either of these causes. During his appearance before the court, counsel was asked why he submitted the above-mentioned affidavits which were undated, unverified and unsigned. Counsel stated that one af-fiant told him she would sign and mail a copy of the affidavit directly to the court (which affidavit was in fact never received). Counsel stated the other affiant had rejected the proffered affidavit and refused to sign it. Nevertheless, counsel forwarded the rejected affidavits to this court as the sole justification for the delay in prosecuting the appeal.

This court will not condone or allow such repeated disregard for the appellate rules and this court’s orders. Despite the fact that previous violations of the rules have been brought to counsel’s attention, he persisted in ignoring the appellate rules and orders of this court. We do not feel counsel’s violations rise to the level of contempt nor do we consider dismissal appropriate. To dismiss the appeals would only serve to penalize the client for shortcomings of counsel. See Winstead v. Adams, 363 So.2d 807 (Fla. 1st DCA 1978). Accordingly, we denied the motions to dismiss in AZ-454 and BA-279 conditioned on counsel’s serving the initial briefs within five days. Counsel has complied with this order and these appeals shall proceed accordingly. In AY-500, counsel was allowed seven days in which to serve a copy of a proposed statement of the evidence on opposing counsel and this court, pursuant to Rule 9.200, Fla.R.App.P. Counsel has complied with this order and this appeal shall proceed accordingly.

The publication of this order in the Southern Reporter Second shall serve as counsel’s public reprimand. In addition, counsel shall be required to serve a copy of this order on his respective clients. As proof of service, counsel shall be required to execute an affidavit stating that this order was served on his clients and return said affidavit to this court. A copy of this order shall be forwarded to the Florida Bar for whatever action it shall deem appropriate.

IT IS SO ORDERED.

MILLS, SHIVERS and WENTWORTH, JJ., concur.

      . So named for the maxim culpa teneat suos auctores (“misconduct should bind its own authors”).


author: SHIVERS, Judge.

text:
    Michele ISAACSON, Appellant, v. Harris ISAACSON, Appellee.
    No. BA-469.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1985.
    John F. Roscow, III, of Scruggs & Carmichael, Gainesville, for appellant.
    Thomas A. Daniel and Thomas A. Daniel, P.A., Gainesville, for appellee.
   SHIVERS, Judge.

The wife appeals termination of permanent periodic alimony. We reverse.

At the time of the dissolution in 1982 the wife was in the home, caring for the parties’ three children, one of whom suffered from spina bifida, a congenital defect of the spine. Although the wife had a bachelor’s degree in animal science, she felt it necessary to remain home to care for the child. The husband, a law graduate who had never applied to the bar, was actively engaged in farming. The final judgment provided that the husband pay $35,000 in lump sum alimony, $900 per month in child support, and $700 per month in permanent periodic alimony.

The husband had difficulty in living up to the terms of the final judgment and was periodically brought back to court by the wife seeking enforcement of the judgment.

On March 16, 1984, the husband filed a petition to modify the final judgment, seeking reduction of alimony, child support, and general relief. He maintained that a change of circumstances warranted relief. The changes in circumstance were that the wife was now employed selling veterinary supplies, with a gross salary of $18,000 per year; and that the husband, due to a depletion of his assets, was reduced to freelance front-end loader work, grossing $287.50 per week.

At the hearing, the husband acknowledged an arrearage of $9,215.00 for alimony and child support. The trial judge found that there had been a substantial change in circumstances, such that the husband could no longer pay alimony and that the wife no longer needed it. He therefore terminated alimony immediately.

The wife concedes that the alimony should be temporarily reduced but maintains it should not have been terminated. The thrust of the wife’s appeal is that since the husband only sought reduction of alimony, and not its termination, the court’s action is clearly erroneous. We agree. As was stated in Jennings v. Jennings, 353 So.2d 921 (Fla. 4th DCA 1978):
“The petition, on its face, clearly did not seek a cancellation, but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule. Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974).” p. 921.

As in Jennings, supra, this court is concerned with the finality of a cancellation of alimony.

We therefore, REVERSE as to the termination of the permanent alimony and REMAND for further proceedings.

BOOTH and ZEHMER, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Frank JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AU-198.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1985.

      Quentin T. Till, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for ap-pellee.
   ERVIN, Chief Judge.

Johnson appeals from a judgment and sentence for second degree murder entered upon a plea of nolo contendere, wherein he reserved the right to appeal the denial of his motion for discharge, alleging the state had violated the speedy trial rule. We affirm.

On July 13, 1982, appellant was arrested in Duval County for the murder of John Giles. On July 21, 1982, attorney Neal Betancourt was appointed to represent appellant. On August 4, 1982, the state filed a disposition notice, stating that there was insufficient evidence to warrant prosecution of appellant at that time, and appellant was released from the Duval County Jail on the same day. On October 14, 1982, an information for second degree murder was filed against appellant, and a capias was issued, but attempts to rearrest him were unsuccessful. On January 5, 1983, the state filed a motion to toll the time for speedy trial, alleging that appellant had absented himself from the jurisdiction of the court, or was eluding prosecution. The motion further alleged that the sheriff's office had made a diligent effort to locate and arrest the appellant. On the same date, an ex parte hearing on the motion was held; defense counsel having received no notice. Based upon the state’s representations, the court entered an order tolling the period for speedy trial for an indefinite period based on its finding: (1) that appellant had absented himself from the court’s jurisdiction; (2) that the sheriff’s office had exercised due diligence in searching for appellant; and (3) that exceptional circumstances existed under Rule 3.191(d)(2) and (f), Florida Rule of Criminal Procedure. On January 10, 1983, defense counsel received a letter from the state regarding the motion to toll speedy trial and the order granting the motion. On January 11, 1983, appellant was arrested and returned to custody on the second degree murder charge. Subsequently a motion for discharge was filed due to the passage of more than 180 days from the initial date of arrest and, following an extensive hearing at which evidence was presented by both the state and the defense, the motion was denied.

Under the circumstances we agree that the lower court correctly extended the time for speedy trial, thereby requiring that the motion for discharge be denied. The record of the hearing on the motion for discharge discloses that officers attempted to locate appellant on seven different dates in October, and five separate dates in November, 1982, with no success. Moreover, although appellant’s sister testified that she knew the whereabouts of her brother in Georgia, she never attempted to communicate her knowledge to the authorities, despite the fact that she was aware that a police detective had contacted her husband about her brother’s location, and the detective was told by the husband that the husband did not know where appellant could be reached.

Admittedly the rule is that if the accused had no notice of the new charges filed against him after his release from custody, he has no duty thereafter to remain available for trial. See Florida Rule of Criminal Procedure 3.191(h)(2) (time for speedy trial cannot be extended by the state’s nolle-prossing the crime charged and then its filing new or different charges based on the same conduct). See also Fyman v. State, 450 So.2d 1250, 1252 (Fla. 2d DCA 1984). If, however, there is evidence disclosing that the accused knew he was wanted by the police, or that he was evading arrest, rule 3.191(e) places the burden on the accused to establish “by competent proof ... [his] availability during the term.” Richardson v. State, 340 So.2d 1198, 1199 (Fla. 4th DCA 1976); State ex rel. Green v. Patterson, Pinellas County, 279 So.2d 362 (Fla. 2d DCA 1973). There was evidence below from which the lower court could easily infer that appellant either knew or should have known, if he had maintained proper contact with his attorney, that charges would later be filed against him. Attorney Betancourt, in answer to the question of whether he had given appellant any instructions after his release from jail, replied:

Well, yes, I did give him some instructions.
Well, I knew from conferring with the State the nature of the case and I told him that the State had decided for the moment that they could not prosecute him, but that the possibility of prosecution was very real for several reasons. First of all, they still had some physical evidence that they were trying to refind [sic] and I advised him of all of this.
And also that there were some witnesses in the case who, I felt, might change their testimony or otherwise strengthen, perhaps, the State’s case against him. And I advised him that he could be, you know, he could be prosecuted on the case, and that the State’s decision not to prosecute at that time was not irrevocable.
Also I knew that he would be subpoenaed by the Public Defender’s Office or might be as a witness in the case and I advised him of that. I also told him that should he receive any subpoenas, I wanted to be present and should be present for the giving of those — depositions.

The attorney was also informed by the public defender’s office that it wished to take appellant’s deposition for use in a case involving another defendant with whom appellant had been arrested for the same offense. The attorney wrote appellant, stating in the letter that he had a duty to answer any subpoena served on him and asked appellant to appear in his office at a certain time for the purpose of discussing his deposition testimony. Betancourt received no response to this letter, and he admitted that he had had no contact with appellant since the day following appellant’s release from custody, nor had he any knowledge as to appellant’s specific location. The lower court’s order denying the motion for discharge was clearly supported by evidence showing appellant’s unavailability for trial.

Appellant additionally argues that the ex parte order tolling the speedy trial period is invalid for the reasons that (1) it was entered without an opportunity for appellant’s attorney to be heard, and (2) it was not an order extending the speedy trial period for a specific time, as required by Ehn v. Smith, 426 So.2d 570 (Fla. 5th DCA 1983). We consider the Ehn case factually dissimilar to the case at bar. First, the ex parte order of extension, entered by the trial judge in Ehn, was not based upon any circumstance recognized as exceptional under rule 3.191(f). Rather, such order was entered on the sole ground of the withdrawal from the case by defendant’s former counsel. In the case at bar, the order of extension was based on the explicitly recognized exceptional circumstance relating to the defendant’s absence from the jurisdiction, a circumstance described as “an unforeseeable ... absence of a person whose presence ... is uniquely necessary for a full and adequate trial; ...” Rule 3.191(f)(1). Obviously, if, as in Ehn, no ground for extending the time for speedy trial comports with any of the reasons stated in rule 3.191(f) as exceptional circumstances, prejudice to the defendant is presumed, and the absence of the defendant or his counsel at such a hearing is deemed a critical defect.

We interpret rule 3.191(d)(3) and (f) to state that if the facts display the existence of exceptional circumstances, the attorney’s absence at a hearing on a motion to extend the time for trial, of which he had not received prior notice, is not per se cause for invalidating an order of extension if no prejudice to the defendant can be demonstrated. Central to a showing of an extension order’s invalidity is a showing of prejudice. Cf. Vaughn v. State, 453 So.2d 929 (Fla. 2d DCA 1984). If, in the case at bar, the attorney had been notified of the hearing on the motion for extension, and was present, his testimony at such time would not have been materially different from his later testimony at the hearing on the motion for discharge, revealing that he did not know appellant’s whereabouts. His presence could not, under the circumstances, have had any effect on the lower court’s finding that appellant had absented himself from the jurisdiction.

Finally, we do not view the order as invalid simply because, as in Ehn, it lacked specificity as to duration. Again, appellant has not demonstrated how he was prejudiced by the order, which obviously could not specify a date terminating the time for extension since, at the time it was entered, appellant’s whereabouts were unknown.

The burden was placed on appellant by rule 3.191(e) to establish by competent proof his availability for trial during the term. He failed to do so. The judgment of conviction is

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


text:
    Glen A. HOFFMAN, Appellant, v. Kye S. HOFFMAN, Appellee.
    No. AX-386.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1985.
    James L. Schmidt, Fort Walton Beach, for appellant.
    Gordon R. Rahmes, Jr., of Dewrell, Blue & Brannon, Fort Walton Beach, for appel-lee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee moves to dismiss this appeal on grounds that the notice of appeal was not timely filed. The issue here is whether a notice of appeal is “filed” so as to vest appellate jurisdiction in this court where the notice was timely “filed” in a branch office located away from the county seat, but was not timely received for filing in the main office of the clerk of the circuit court located in the county seat. We find that the timely filing in the branch office vested jurisdiction in this court, and deny the motion to dismiss.

Rule 9.110(b), Florida Rules of Appellate Procedure, requires that the notice be filed with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed. The order in question was entered by the trial court January 12, 1984, and was filed with the clerk of court January 13, 1984. Rule 9.020(g), Florida Rules of Appellate Procedure, defines rendition as “the filing of a signed, written order with the clerk of the lower tribunal.” Thus, for the purpose of calculating the 30-day period for filing the notice of appeal, January 13, 1984, represents the date on which the order is considered rendered. Pursuant to Rule 9.420(e), Florida Rules of Appellate Procedure, the last day for filing the notice of appeal was February 13, 1984.

On February 13, 1984, appellant filed a notice of appeal at the “Okaloosa County Courthouse Annex” (annex) in Shalimar, Florida, where a branch office of the clerk of the circuit court for Okaloosa County is located. The county seat of Okaloosa County is Crestview, Florida. The annex provides a courier service between the annex and the clerk’s main office in Crest-view as it has apparently been the practice of the clerk’s office that pleadings such as a notice of appeal will not be considered filed until stamped “received” at the county courthouse in Crestview. In the instant case, though the notice of appeal was filed at the annex on February 13, 1984, it was not transported to the county courthouse until February 14, 1984, when it was stamped “received.” Thus, if the notice is not deemed “filed” until received at the county seat then the notice of appeal is untimely and this court lacks jurisdiction. See Apone v. Green, 249 So.2d 488 (Fla. 3d DCA 1971), and Hawks v. Walter, 409 So.2d 524 (Fla. 5th DCA 1982).

Apparently, the practice of not considering the notice of appeal filed until receipt at the county seat was adopted in order to comply with the Florida Constitution, Article VIII, Section l(k), which provides:

In every county there shall be a county seat at which shall be located the principal offices and permanent records of all county officers. The county seat may not be moved except as provided by general law. Branch offices for the conduct of county business may be established elsewhere in the county by resolution of the governing body of the county in the manner prescribed by law. No instrument shall be deemed recorded in the county until filed in the county seat according to law.

After the response to the motion to dismiss had been filed, appellee filed a “suggestion” pointing out that the response raised an issue of great importance to the local Bar in Okaloosa County, i.e., whether the presentment of a document or pleading at the courthouse annex constituted a filing. In order to develop a factual predicate on which to consider the issue raised by the motion to dismiss, we appointed Judge Erwin P. Fleet as a special commissioner for the purpose of holding a hearing and taking evidence to determine if the annex was a legally established branch office of the clerk of circuit court.

The commissioner’s report states that the annex was constructed to serve the population of Okaloosa County, which is increasingly centered in the southern portion of the county (away from the county seat, Crestview). In 1972, the board of county commissioners, the governing body of Okaloosa County, adopted resolutions authorizing the construction of a courthouse annex to be located in Shalimar. The commissioner found that by adoption of these resolutions, the county commissioners satisfied “any and all” requirements of Florida Constitution, Article VIII, Section l(k), regarding establishment of branch offices for the conduct of county business. The clerk of court established within the annex an official branch office of the clerk of court, pursuant to Section 28.07, Florida Statutes (1983). The branch office accepts documents and pleadings, issues process and defaults and provides for transmittal of these instruments to the clerk’s main office in Crestview. The commissioner found it was “widely known” among members of the local Bar that pleadings and documents are not deemed officially filed until filed at the main office in Crestview.

The Fifth District was confronted with a similar fact pattern in Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979). There the notice of appeal was filed in Daytona Beach at the courthouse annex with a deputy clerk. Daytona Beach is located in Volusia County, the county seat of which is DeLand. The notice of appeal was not transmitted to DeLand until after the 30-day period had run. The Fifth District held that the notice was not timely filed and stated that filing in the annex was “the equivalent of filing in the wrong court.” (Citing to Southeast First National Bank of Miami v. Herin, 357 So.2d 716 (Fla. 1978), and Estate of Hatcher, 270 So.2d 45 (Fla. 1st DCA 1972)).

We do not see any constitutional impediment to the practice of filing a notice of appeal with a branch office of the clerk of circuit court in a courthouse annex. The constitutional provision in question states, in part:

No instrument shall be deemed recorded in the county seat until filed at the county seat according to law. (emphasis added)

Florida Constitution, Article VIII, Section l(k). A notice of appeal need not be “recorded” in order to vest jurisdiction in the reviewing court. Rule 9.110(b), Florida Rules of Appellate Procedure, provides:

Jurisdiction of the court under this rule shall be invoked by filing two copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of the order to be reviewed, (emphasis added).

We feel that a distinction should be drawn between those instruments which must be recorded in order to manifest ownership or priority (e.g., mortgages, deeds to land, notices of security interest) and those for which the act of filing is all that is required (e.g., a notice of appeal).

Section 28.07, Florida Statutes (1983), provides in part:

[I]n those counties in which the clerk feels such offices to be necessary, he may establish branch offices in other places than the county seat and may provide such offices with a deputy clerk authorized to issue process; provided, that all permanent official books and records shall be kept at the county, courthouse.

The above statute, as well as Article VIII, Section l(k), Florida Constitution (previously quoted), clearly contemplates the establishment of branch offices to serve the needs of the public. Each provides that the clerk of the circuit court’s office at the county seat shall be the permanent, central repository for all permanent records. It would seem apparent that the drafters of the constitutional provision, as well as the statute, were well aware that the ever growing population of many Florida counties has placed great burdens on the offices of the clerks of circuit courts throughout the state. To hold that these lawfully established branch offices may accept pleadings for filing, but that said documents are not officially filed until received at the county seat would seem to be at loggerheads with the stated purpose of providing for the establishment of branch offices in order to better serve the needs of the public.

Accordingly, we hold that the notice of appeal filed with the branch office of the clerk of the circuit court at the courthouse annex in Shalimar constituted a timely filing within the contemplation of Rule 9.110(b), Florida Rules of Appellate Procedure. We hereby certify that this holding is in direct conflict with the holding of the Fifth District in Perego v. Robinson, supra. Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure. This holding is not meant to be interpreted as holding that such branch offices may serve as the home of permanent records as the Constitution reserves this function for the clerk’s office located in the county seat. Nor do we intimate that documents for which recording is necessary will be considered recorded on receipt at a branch office or annex. Therefore, the notice of appeal is timely filed, the motion to dismiss is denied and this appeal shall proceed accordingly.

SMITH, JOANOS and ZEHMER, JJ., concur.

      . Rule 9.420(e), Florida Rules of Appellate Procedure, governs computation of the time periods set by the appellate rules. The rule provides that the day of the act from which the period of time begins to run shall not be included in calculating the period. Accordingly, January 14, 1984, is the first day of the 30-day period, January 15th is the second day, etc. The thirtieth day of the period fell on February 12, 1984 — a Sunday. Rule 9.420(e) provides that if the last day of the period is a Saturday, Sunday or legal holiday, it shall not be included and the period shall be extended to the next day which is not a Saturday, Sunday or legal holiday. Accordingly, the last day on which the notice of appeal could be timely filed was Monday, February 13, 1984.

      . These cases seem to stand for the proposition that if a notice of appeal is not filed in the office of the clerk of the correct court within 30 days of the judgment for which review is sought, the appeal must be dismissed for lack of jurisdiction. Both of these cases involved the filing of a notice of appeal from a judgment of the county court in the district court of appeal rather than the circuit court. We feel the analogy is inappo-site in that the notice of appeal was filed with the clerk of the circuit court albeit at a branch office, in both Perego and the instant case. Filing was thus accomplished with the correct court although arguably at the incorrect clerk’s office.


text:
    AETNA CASUALTY & SURETY COMPANY; Chase Federal Savings & Loan Association of Miami Beach and H.L. Edwards Construction Co., a Florida corporation, Appellants, v. Stella KAUFMAN and Isadore Kaufman, her husband, Appellees.
    Nos. 83-1503, 83-1533.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Adolfo Del Castillo, Walton, Lantaff, Schroeder & Carson and Sally R. Doerner, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward Perse, Lawrence Rodgers, Miami, for ap-pellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Following return of a jury verdict in favor of Mr. and Mrs. Kaufman, the trial court granted a new trial solely as to damages. The court based its ruling on what it determined to be a “grossly inadequate” award in light of the damages sustained by Mrs. Kaufman when she slipped and fell as a result of defective pavement. The court found that the jury was prejudiced by improper closing remarks of counsel for appellant, H.L. Edwards Construction Co.

Noting that a trial judge is in a “much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict,” Pyms v. Meranda, 98 So.2d 341, 343 (Fla.1957); Staib v. Ferrari, Inc., 391 So.2d 295, 297 (Fla. 3d DCA 1980), citing Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975), we affirm the trial court’s order. Furthermore, we rely upon the well-established law of Florida that a trial court’s discretion to grant a new trial should not be disturbed except upon a clear showing of abuse. Cloud v. Fallis, 110 So.2d 669 (Fla.1959). We find no abuse of discretion. Appellants’ remaining points lack merit.

Affirmed.

       Counsel for appellant, H.L. Edwards Construction Co. stated:
      I added all this up at $461,775 [the total of damages suggested as compensable by plaintiff s attorney] and the only thing that I see is Mr. Rodgers and Mr. Virgin [counsel for the plaintiffs] getting rich.
      That’s all that I see with $461,000.


text:
    Michael PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2015.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Michael Parks, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order revoking the defendant’s probation is affirmed. The sentence of seven and one-half years imprisonment imposed exceeds the statutorily permissible maximum of five years and is fundamental error. State v. Rhoden, 448 So.2d 1013 (Fla. 1984); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). The cause is remanded with directions to reduce the sentence to five years.


text:
    James L. HOPKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2252.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The record before us, although replete with evidence which would support the conclusion that the extended terms of imprisonment meted out to the defendant under the habitual offender law were indeed “necessary for the protection of the public from further criminal activity by the defendant,” § 775.084(4)(a), Fla.Stat. (1981), nevertheless contains no such conclusion or essential findings of fact in support of such a conclusion and as such is deficient. See Adams v. State, 376 So.2d 47, 58-59 (Fla. 1st DCA 1979). Therefore, the sentence is reversed with directions that the trial court either forego sentencing under the habitual offender statute or reimpose such a sentence after making a finding on the record that the extended term of imprisonment is necessary for the protection of the public.

On the authority of Shepard v. State, 459 So.2d 460 (Fla. 3d DCA 1984), we reject the defendant’s further contention that he is entitled to full credit for time served on each of the concurrent sentences imposed.

Reversed and remanded for resentenc-ing.


author: BASKIN, Judge.

text:
    George LEVIE, Appellant, v. Mary Ellen LEVIE, Appellee.
    No. 83-2653.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.

      Greene & Cooper and Joan M. Bolotin, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

The husband has appealed the Amended Final Judgment of Dissolution of Marriage. We reverse upon a finding that he is entitled to a special equity in the marital home, Landay v. Landay, 429 So.2d 1197 (Fla. 1983); to credit for mortgage payments made from the date of dissolution until the sale of the marital home, Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980), review denied, 397 So.2d 778 (Fla.1981); to a determination of ownership of specific items of non-marital property, see Lopez v. Lopez, 447 So.2d 898 (Fla. 3d DCA 1983); and, absent evidence demonstrating necessity, to reversal of the requirement that he pay for the child’s attendance at private school.

We remand with directions to the trial court to: award the husband a special equity in the marital home pursuant to Lan-day; provide for a mortgage payment credit to the husband; and determine ownership of specific items of non-marital property. Furthermore, we direct the trial court to review the respective financial positions of the parties and to apply equitable distribution principles to determine the appropriate disposition of this cause. Tronconi v. Tronconi, 466 So.2d 203 (Fla.1985). Upon remand, the parties may present evidence in connection with the need for the child to attend private school.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    J. Fernando BANDERAS and Monica L. Banderas, Appellants, v. BANCO CENTRAL del ECUADOR, an agency of the Government of Ecuador, and David Rabinowitz, Receiver, Appel-lees.
    Nos. 84-600, 84-677.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.

      Andrew C. Pavliek, Miami, Lawrence Felder, Boca Raton, for appellants.
    McDermott, Will & Emery and Charles A. Intriago and Susan Guller, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the contempt orders entered by the trial court. We hold that appellants received adequate notice of the provisions contained in the Final Judgment prohibiting the transfer, sale, or disposal of any assets; that there was no fatal defect in the institution of process, rule 3.840, Florida Rules of Criminal Procedure, [see Aiello v. State, 338 So.2d 1101 (Fla. 4th DCA 1976) ]; and that substantial competent evidence supports the judgments of conviction for indirect criminal contempt and for indirect civil contempt. In addition, we affirm the conviction for direct criminal contempt based upon J. Fernando Banderas’s failure to appear at a hearing.

Affirmed.


text:
    MIKE CALHOUN, INC., Appellant, v. The KEYES COMPANY, a Florida corporation, Appellee.
    No. 84-669.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Buchbinder & Elegant and Harris Buch-binder and Carolina A. Echarte, Miami, for appellant.
    Friedlander & Associates and Bruce Friedlander, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The summary final judgment in favor of The Keyes Company awarding it fifty per cent of the real estate brokerage commission in a somewhat complex transaction is reversed. The procurement of the ultimate purchaser by Calhoun and the uncertain language employed in the brokers agreement created a question of fact as to the intended division of the commission.

Reversed and remanded for further proceedings.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Louis James WILLIAMS, a/k/a Louis James William, Appellee.
    No. 84-751.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS APPEAL

DANIEL S. PEARSON, Judge.

The imposition of a 364-day sentence upon the defendant, substantially below the seven-to-nine-year sentence recommended by the applicable sentencing guidelines, prompted this appeal by the State. The defendant has moved to dismiss the appeal, contending that because the notice of appeal filed on April 3, 1984, was filed more than fifteen days after the rendition of the judgment and sentence on March 12, 1984, we are without jurisdiction. The State’s response is that its notice, admittedly not filed within fifteen days of the judgment and sentence, is nonetheless timely, having been filed within fifteen days of the trial court’s order of March 22, 1984, the first writing setting forth the reasons for the departure from the sentencing guidelines. We agree with the State and deny the defendant’s motion to dismiss.

Florida Rule of Criminal Procedure 3.701 d. 11 requires that “[a]ny sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure.” Where a sentence is imposed below the range recommended by the guidelines, the State is given the right to appeal. See Fla.R.App.P. 9.140(c)(l)(J). But unlike an appeal from an illegal sentence under Rule 9.140(c)(l)(I), where the illegality is manifest with the mere pronouncement of sentence, the propriety vel non of a sentence imposed outside of the recommended guideline range cannot be said to be known until the written reasons for the departure from the guidelines are given. The essence of an appeal under Rule 9.140(c)(l)(J) is not that the trial court departed from the guidelines, but rather that the reasons given by the trial court for departing from the guidelines do not justify the departure. Thus, an appeal which precedes the filing of the written statement delineating the reasons for departure is premature.

In the present case, we need not decide whether the requirement of a written statement can be satisfied by the transcription and filing of the trial judge’s recorded oral sentencing statement. Her sentencing comments, even if read as reasons for departure, were not in fact transcribed and filed until well after the appeal was lodged in this court; the earliest filed writing which set forth reasons for departure was the trial court’s written order of March 22, 1984. Since the State’s appeal was taken within fifteen days of that order, it was timely.

Motion to dismiss denied.

      . In a criminal case, excepting appeals under Florida Rule of Appellate Procedure 9.140(c)(1)(H), the State’s notice of appeal must be filed "with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed.” Fla.R.App.P. 9.140(c)(2).

      . The Second District, see Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984); Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Fourth District, see Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984); and Fifth District, see Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), have held that a transcript of the trial court’s oral statement of reasons for departure is the functional equivalent of the written statement of reasons because it is equally amenable to appellate review. The First District reads Florida Rule of Criminal Procedure 3.701 d. 11 literally and holds to the view that a written statement must be filed contemporaneously with the pronouncement of sentence, see Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984). Whether the transcript, rather than the separate written order, is or is not equally amenable to appellate review, nothing less than a filed transcript will fulfill the requirement of a written statement. At least until one or the other is a matter of record, the State’s appeal time does not begin to run.


author: NESBITT, Judge.

text:
    METROPOLITAN DADE COUNTY, Appellant, v. BOUTERSE, PEREZ & FABREGAS ARCHITECTS PLANNERS, INC., Appellee.
    No. 84-1253.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Robert A. Ginsburg, County Atty., and Ralph C. Rocheteau, Asst. County Atty., for appellant.
    Marlow, Shofi, Smith, Connell, DeMahy & Valerius and Joseph Lowe, Miami, for appellee.

      Before BARKDULL, DANIEL S. PEARSON, JJ. NESBITT and
   NESBITT, Judge.

Metropolitan Dade County (the County) appeals the award of prejudgment interest in a contract dispute. Finding error in the calculation of the award, we reverse for a determination of when progress payments were due so that an accurate award of prejudgment interest can be made.

The County entered into a contract for architectural services with Bouterse, Perez and Fabregas, Architects Planners, Inc. (BPF). The agreement called for progress payments as certain phases of the project were completed. In March 1982, before work had begun on the contract, the County informed BPF that a portion of the contract had been awarded to another architectural firm. BPF sued for breach of contract and obtained a judgment for $279,-249.81. The trial court, finding that the breach occurred in March 1982, awarded prejudgment interest from April 1, 1982, in the amount of $73,315.31.

Prejudgment interest is to be awarded, in the case of a liquidated claim, from the date when payment is due. Jockey Club, Inc. v. Bleemer, Levine & Associates Architects & Designers, Inc., 413 So.2d 433, 434 (Fla. 3d DCA 1982); see also Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1955); Brooks v. School Board of Brevard County, 419 So.2d 659, 661 (Fla. 5th DCA 1982). Since the contract in question calls for progress payments, the total amount of prejudgment interest can only be accurately computed by: (1) determining when each progress payment would have become due if the contract had been performed as agreed; (2) calculating the interest on each progress payment from the date it would have become due; and (3) totaling the interest due on each progress payment. Edward Klein Truck & Heavy Equipment Co. v. Pitman Manufacturing Co., 512 F.Supp. 101 (W.D.Pa.1981); Jarvis v. Jarvis, 27 Ariz.App. 266, 553 P.2d 1251 (Ct.App.1976); Recordex Corp. v. Southeastern Metal Products, Inc., 147 Ga.App. 79, 248 S.E.2d 159 (Ct.App.1978); Dryden v. Dryden, 205 Neb. 666, 289 N.W.2d 525 (1980); Goodwin v. Upper Crust of Wyoming, Inc., 624 P.2d 1192 (Wyo.1981). Awarding prejudgment interest from a time prior to the date any payment became due provides BPF with a windfall and unjustly penalizes the County. See Klein v. Newburger, Loeb & Co., 151 So.2d 879, 881 (Fla. 3d DCA 1963).

Accordingly, the award of prejudgment interest is reversed. The case is remanded for determination of the proper amount of prejudgment interest.

Affirmed in part, reversed in part and remanded with directions.

      . The County also raised two other issues which we find to be without merit. Consequently, the case is affirmed in all respects, but that discussed above.

      . The amount of the judgment itself was not appealed and is not before us.

      . We note that for purposes of calculating the prejudgment interest any portion of the judgment which represents future progress payments earns interest only from the date of judgment. Also, the trial judge should be conscious of the amendment to section 687.01, Florida Statutes (1981), which was effective July 1, 1982, and which changed the statutory rate of interest from six per cent to twelve per cent.


author: FERGUSON, Judge.

text:
    Nicole CHAPMAN, a minor, By and Through her parents and next friends, Verna D. CHAPMAN and Kenneth Chapman; Verna D. Chapman and Kenneth Chapman, individually; and Lawrence B. Rodgers, Esq. and Lawrence Rodgers, P.A., Petitioners, v. Jorge GARCIA, M.D.; North Shore Medical Center, Inc.; Florida Patient’s Compensation Fund; and Milton Kelner, As Guardian Ad Litem and Attorney Ad Litem For and On Behalf of Nicole Chapman, a minor, Respondents.
    Nos. 84-2361, 84-2362.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Horton, Perse & Ginsberg, and Arnold Ginsberg, Miami, for petitioners.
    Lanza, Sevier & O’Connor, and Kevin O’Connor; Milton Kelner, Miami, for respondents.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   FERGUSON, Judge.

On January 26, 1984, defendants Florida Patient’s Compensation Fund and Dr. Garcia were heard on motions for summary judgment which set forth as grounds therefor that plaintiffs’ medical malpractice claim was barred by the statute of limitations. The court reserved ruling on the motions and instead entered an order, sua sponte, appointing an attorney/guardian ad litem to represent the minor plaintiff, giving as the reason

that in view of the pending Motions [for Summary Judgment], based upon the Statute of Limitations ... the Court [is] of the opinion that the interests of NICOLE CHAPMAN, the Minor, in this cause, may be adverse to that of the attorneys representing her and her parents and next friends in this cause....

A simple medical malpractice action was on its way to procedural chaos.

The newly appointed attorney/guardian ad litem filed a “Third Amended Complaint” against counsel for plaintiffs alleging attorney malpractice in permitting the statute of limitations to expire against both defendants, even though the limitations issue had not yet been resolved by the trial court. Plaintiffs’ counsel filed a motion to remove the attorney/guardian ad litem alleging that there was no basis for the appointment and that plaintiffs had been denied notice and an opportunity to be heard on the issue of the appointment. Dr. Garcia then filed a motion for disqualification of plaintiffs’ counsel on conflict of interest grounds, alleging that due to the new malpractice complaint, the plaintiffs’ counsel “will be called as a witness on behalf of his client, and possibly on behalf of himself, on the contested issue of the Statute of Limitations defense.” Chaos had struck.

On September 28, 1984, the trial court granted summary judgment in favor of the Florida Patient’s Compensation Fund from which a timely appeal was taken. That appeal is pending in this court. (There has yet been no ruling on Dr. Garcia’s motion for summary judgment). On the same date the court entered additional orders (1) denying plaintiffs’ motion for removal of the attorney/guardian ad litem, and (2) disqualifying plaintiffs’ attorney from further representation of the plaintiffs and removing him as counsel of record. Plaintiffs/petitioners seek review by common law certio-rari of these latter two orders.

Whether there is a cause of action for attorney malpractice depends initially on whether the medical malpractice claim against the Fund and Dr. Garcia is in fact time-barred. The limitations issue as to Dr. Garcia has not yet been ruled on by the trial court. Moreover, the trial court’s determination that the claim against the Fund is time-barred has been appealed, and until this court issues its decision — or until the Florida Supreme Court resolves the issue if further review is sought — the question has not been resolved to finality. See Wilson v. Clark, 414 So.2d 526 (Fla. 1st DCA 1982) (on timely appeal by the defendant from an adverse judgment the action continues to have life). And so long as the medical malpractice claim against the defendants remains viable and pending, there can be no cause of action against plaintiffs’ counsel for negligently allowing the statute of limitations to expire. See Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981). It was a departure from the essential requirements of law to disqualify plaintiffs’ attorney from the action.

More significantly, there is no showing that the statute of limitations defense raised by the defendants creates any adversity between the interests of the parents and the child. A final determination on the issue presented will have the same effect on both of their claims. For this reason it is clear that the appointment and intervention of an attorney/guardian ad litem on behalf of the minor child at this stage of the proceedings will not advance) indeed will thwart, the orderly administration of justice.

Certiorari is granted. The orders disqualifying plaintiffs’ attorney and appointing an attorney/guardian ad litem to represent the minor child are quashed.

      . The issue presented in the appeal is the same as was before this court in Fabal v. Florida Keys Memorial Hospital, 452 So.2d 946 (Fla. 3d DCA 1984). The majority there held that for failure to make the Fund a party-defendant to the malpractice action within two years after the cause of action accrued — notwithstanding that the action was commenced timely as against the health care provider — the claim against the Fund was barred by the statute of limitations. This writer dissented. That dissent was adopted in the opinion of a sister court, Florida Patient’s Compensation Fund v. Tillman, 453 So.2d 1376 (Fla. 4th DCA 1984), which acknowledged a direct and express conflict with Fabal and a line of other district court cases. We also certified Fabal to the supreme court as presenting a question of great public importance.


author: DOWNEY, Judge.

text:
    The PORT SEWALL HARBOR AND TENNIS CLUB OWNERS ASSOCIATION, INC., Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MARTIN COUNTY, Appellee.
    No. 83-2389.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Michael Jeffries of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellant.
    William D. Anderson, Jr., of Anderson, Dungey & McFarland, P.A.; and Martha C. Warner, Stuart, for appellee.
   DOWNEY, Judge.

This is an appeal from a final judgment for appellee, First Federal Savings and Loan Association of Martin County (First Federal), entered upon appellee’s renewed motion for directed verdict.

Appellant, The Port Sewall Harbor and Tennis Club Owners Association, Inc., (Association) is a home owners’ association representing the owners of residential property in a subdivision known as Port Sewall Harbor & Tennis Club. In 1972 and 1973 the developer of the subdivision encumbered the property with a mortgage for $1,100,000.00 to First Federal. When the bulk of the subdivision improvements had been made the developer fell upon hard times and First Federal foreclosed its mortgage. Thereafter, First Federal completed the development and attempted to sell the lots.

The Association brought this suit against First Federal in two counts to recover for (a) defects in the construction of certain roads and drainage areas and (b) breach of express warranty. There was no proof adduced in support of the latter count and the court charged the jury that the issue for its determination on the claim of the Association against First Federal was whether First Federal breached an implied warranty of fitness and merchantability in favor of the Association. First Federal moved for a directed verdict at the end of the Association’s ease and at the close of all of the evidence contending (a) no implied warranty existed for the defective work complained about, and (b) First Federal could not be held liable for the defective work in question because that work had been completed before First Federal foreclosed the developer’s mortgage. The motions were denied and the jury returned a verdict for the Association. Judgment in accordance with a renewed motion for directed verdict was eventually entered for First Federal based upon Conklin v. Hurley, 428 So.2d 654 (Fla.1983).

The sole question presented on this appeal is: does the holding in the Conklin case prevent a party from recovering against a developer who fails to construct the common elements in accordance with the plans and specifications filed with the governmental regulatory agencies?

For clarification it might be well to note that this case does not involve condominium property so we are not concerned with Chapter 718 of the Florida Statutes nor are some of the condominium cases entirely relevant. Furthermore, the issues pleaded and presented to the jury did not include a cause of action for negligence. The Association’s theories were express and implied warranty, but no proof was adduced at trial of any express warranty. The Association did furnish evidence at trial of the cost to repair the roads and drainage areas and the cost of building a wooden footbridge shown in the plans but not furnished by the developer.

In our judgment the trial court reached the correct conclusion in granting the directed verdict and entering judgment for First Federal.

The foot bridge in question and the defective work complained of involved roads and drainage in the subdivision and did not pertain to the construction of homes or other improvements immediately supporting the residences. That is the extent of the application of implied warranties to first purchasers of residential real estate in Florida. The Supreme Court of Florida completely reviewed the extent of the application of implied warranty to real property in the Conklin ease and under strong urging to do so declined to further extend that theory of liability. Therefore, the trial judge was correct in his conclusion that Conklin precluded liability for the defects complained of on the theory of implied warranty.

Furthermore, the trial judge acted correctly because even if implied warranty was a relevant theory of liability it could hot be applied to the peculiar facts of this case.

First Federal was simply a mortgage lender when this project began in 1972-73. The developer built the roads and drainage complained of; First Federal had nothing to do with their construction. These improvements were unattended and not maintained for several years before the development began to grow. Thus, when First Federal took over the property and sought to dispose of the lots it did not become liable for every delict or breach of contract committed by the original developer. A lender who forecloses a mortgage on a construction project and becomes the developer of that project is liable to a purchaser of a unit of the project for (a) performance of express representations made to the purchaser by the lender, (b) patent construction defects in the entire project, and (c) breach of any applicable warranties resulting from defects in the portions of the project completed by the lender. Chotka v. Fidelco Growth Investors, 383 So.2d 1169 (Fla. 2d DCA 1980). Were this not the case no lender could buy in the property at public sale without potential catastrophic exposure to liability.

Accordingly, we hold appellant has failed to demonstrate any reversible error.

AFFIRMED.

ANSTEAD, C.J., and RODGERS, EDWARD, Associate Judge, concur.


text:
    Marcia Z. BRANCOLINO, Appellant, v. Frances CARRETTA, guardian, Richard E. Brancolino, Appellees.
    No. 84-342.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellant.
    Joanna R. Martin of Oliver H. Harris, III, P.A., North Palm Beach, for appellees.
   PER CURIAM.

We reverse the trial court’s finding of a special equity for the husband in the former marital abode, which finding was grounded in the fact that the husband’s parents had conveyed the property to husband and wife jointly. Without more, such a conveyance constitutes an equal gift to the joint grantees and cannot form the basis for a special equity in subsequent dissolution proceedings. Manley v. Manley, 360 So.2d 489 (Fla. 4th DCA 1978). See also Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981). Because the ability of the husband to pay child support, the manner of its payment and the security therefor will be affected by our reversal on this point, the trial court, upon remand, will be required to take further evidence to determine the employability of the husband, the extent of his assets and ultimately his ability to pay and secure child support.

We also disagree with the trial court’s determination that the wife was not entitled to a special equity in the balance of the jointly held certificate of deposit, the funds for which came from the sale of property belonging to the wife’s father. We are not prepared to say, however, that the ultimate scheme of distribution could not be justified under other equitable principles and we therefore do not reverse on that point.

Except as originally indicated, we affirm the final judgment.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

HERSEY, and WALDEN, JJ., and FLEET, J. LEONARD, Associate Judge, concur.


text:
    Mary Ann SYDLEMAN, Appellant, v. Daniel W. BENSON, M.D., and Florida Physicians Insurance Reciprocal, Appellees.
    No. 84-377.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    J. Blayne Jennings of Law Office of J. Blayne Jennings, Gifford, for appellant.
    Everett J. VanGaasbeck of Moss, Henderson & Lloyd, Vero Beach, and Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellees.
   PER CURIAM.

We affirm the final judgment and write only to express concern as to the trial court’s action in rejecting appellant’s challenge for cause of two jurors who had been patients of a physician-expert witness called by the appellee doctor. Upon review of the entire colloquy between the jurors, the judge and the lawyers, we conclude that the judge acted within his discretion in denying the challenge for cause. General Foods Corp. v. Brown, 419 So.2d 393 (Fla. 1st DCA 1982). However, the impartiality of the finders of fact is an absolute prerequisite to our system of justice. Close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.

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


author: DELL, Judge.

text:
    MACMA CORPORATION, Appellant, v. SARA M. CORPORATION and Sara Moskin, Appellees.
    No. 84-1106.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Dana Robert Stoker of Hmielewski & Stoker, P.A., Fort Lauderdale, for appellant.
    George J. Blutstein, North Miami Beach, for appellees.
   DELL, Judge.

Appellant in an action for breach of warranty and for fraudulent misrepresentation arising out of the sale of appellees’ laundromat, seeks reversal of a directed verdict in favor of appellees.

Appellee Sara M. Corporation expressly warranted that the laundromat had produced gross income amounting to $113,000 per year. Prior to closing, appellee Sara Mos-kin, individually, provided appellant with two profit and loss statements which showed total sales of $115,000 for the year 1980 and $103,583 for the first eleven months of 1981. Mrs. Moskin signed the profit and loss statements, which her stepson had prepared. Appellant sold the business when it did not produce as represented and filed suit. At trial, appellees objected to the introduction of the Sara M. Corporation’s 1980 and 1981 tax returns. The trial court sustained the objection and excluded the tax returns. The trial court also excluded the 1982 tax returns of the MAGMA Corporation. At the conclusion of appellant’s case, the trial court directed a verdict in favor of appellees.

Appellant contends that the trial court erred when it excluded appellees’ tax returns as well as its tax returns, and when the court entered a directed verdict in favor of appellees. We agree.

The tax returns tended to prove that the Sara M. Corporation’s income was actually much less than the amount represented in the profit and loss statements. Thus, they were relevant to prove that the representations in the profit and loss statements were false. Although Sara Moskin testified that she knew nothing about the tax returns, this does not justify their exclusion. A fraud may consist of a knowing or a reckless misrepresentation.

For a misrepresentation to support an action for damages, it must be a misrepresentation of a material fact. Finney v. Frost, Fla.App.1969, 228 So.2d 617. The person charged with the misrepresentation must be shown to have had knowledge of the falsity of the statement at the time it was made or the evidence must show the equivalent of such knowledge which is that the statement was made without knowledge as to its truth or falsity or was made under circumstances in which the truth should have been known to the person making the statement. Nantell v. LimWick Construction Company, Fla.App.1969, 228 So.2d 634, 637, and Joiner v. McCullers, 1947, 158 Fla. 562, 28 So.2d 823.

First National Bank of Stuart v. Jackson, 267 So.2d 697, 699 (Fla. 4th DCA 1972). If the trial judge had properly admitted the returns, it could not be said that “the record is devoid of any evidence from which a jury of reasonable men could find liability.” Allen v. Florida Power Corp., 253 So.2d 401, 403 (Fla.1971).

Accordingly we hold that the trial court erred when it excluded appellees’ income tax returns from evidence and when it directed a verdict in favor of appellees. We reverse and remand this case for trial. On remand, the trial court should reconsider the admissibility of appellant’s 1982 tax return, which may be relevant to prove damages.

REVERSED and REMANDED for a new trial.

HERSEY and WALDEN, JJ., concur.


text:
    Nicola S. GUERRA, Petitioner, v. Honorable Gene FISCHER, Circuit Judge of the Circuit Court In and For BROWARD COUNTY, Florida, Respondent.
    No. 84-1156.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., and G. Carlton Marlowe, P.A., Fort Lauderdale, for petitioner.
    Caryn S. Grainer, Fort Lauderdale, for respondent-wife Lynnette L. Guerra.
   PER CURIAM.

Petitioner, Nicola S. Guerra, seeks issuance of a writ of prohibition or certiorari to overturn the action of the trial court in overruling petitioner’s objection to the jurisdiction of the subject matter of this ease. The matter arises out of proceedings to determine the custody of a minor child of petitioner and the child’s mother, Lynnette L. Guerra.

Nicola S. Guerra and Lynnette were husband and wife living in the state of New York when they separated in 1981. After the parties separated, the wife was given temporary custody of the only child of this marriage, but the husband took the child and went to parts unknown to the mother. The wife spent the next several years trying to find her child and finally, with the assistance of the Federal Bureau of Investigation, found the husband and the child in California. Upon the wife’s arrival in California, the husband sought a modification of the New York custody award in the California court. On March 12, 1984, the California court ordered the return of temporary custody of the child to the wife and scheduled another hearing for May 2, 1984. The wife was ordered to maintain contact with the court by supplying a current address and telephone number, which she did.

The wife had been residing with her parents in Florida for at least six months, and after she returned there with the child on April 9, 1984, she filed a petition for dissolution of marriage and prayed for sole custody of and support for the child. The matter was originally scheduled to be heard on April 19, 1984, but the respondent postponed the proceeding until April 30, 1984, apparently for the purpose of communicating with the California court pursuant to section 61.131, Florida Statutes (1983). On April 30, 1984, the respondent entered an order denying the husband’s objection to respondent’s jurisdiction and made a temporary award of custody to the wife. On May 2, 1984, The Honorable Anthony C. Joseph of the Superior Court of California dismissed the action in that state and issued an order stating: “THIS COURT FINDS IT HAS NO JURISDICTION TO MAKE FURTHER ORDERS IN THIS CASE. THE JURISDICTION IS WITH THE STATE OF FLORIDA.”

Husband contends that California had exclusive jurisdiction to determine custody prior to the filing of the proceedings in Florida, relying on section 61.1314(1), Florida Statutes (1983), which provides:

A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

We find the husband’s contention moot because the California court, which was apparently in communication with the Florida court as provided for in section 61.1314(2) and (3), terminated its jurisdiction and declared jurisdiction to be in the Florida courts. See Burch v. Burch, 424 So.2d 187 (Fla. 4th DCA 1983). Thus, jurisdiction in Florida would be appropriate under section 61.1308(l)(d), which states that a court of this state that is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if “another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and... [i]t is in the best interest of the child that a court of this state assume jurisdiction.”

The husband also argues that the Florida court did not have jurisdiction to determine custody because Florida was not the child’s home state in that he had not resided here for six months prior to the commencement of the proceeding below. See § 61.1308(l)(a)l, Fla.Stat. (1983). However, the requirement of Florida as the home state of the child is only one of four possible bases for jurisdiction. As already mentioned, jurisdiction under subsection (l)(d) would be appropriate because the California court found Florida to be the appropriate forum. Furthermore, under subsection (l)(b) jurisdiction is appropriate in Florida if:

It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

The wife and the child have a significant connection with this state and there is the potential for substantial evidence to be adduced before the Florida court regarding the child’s care, protection and personal relationships, since the wife and the child’s grandparents have resided here for at least six months prior to commencement of the proceeding and during that time the wife made every effort to locate and be with the child. See Reeve v. Reeve, 391 So.2d 789 (Fla. 1st DCA 1980).

In view of the foregoing, we hold the trial court was correct in overruling the husband’s objection to jurisdiction and thus the petition for writ of prohibition or certio-rari is denied.

DOWNEY, LETTS and WALDEN, JJ., concur.