author: BARFIELD, Judge.

text:
    The BOARD OF TRUSTEES OF SANTA FE COMMUNITY COLLEGE, Appellant, v. CAUDILL ROWLETT SCOTT, INC., et al., Appellees.
    Nos. AW-19, AX-340.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.
    Rehearings Denied Jan. 22, 1985.

      Robert 0. Stripling, Jr. and Robert J. Denson of Stripling & Denson, Gainesville, for appellant.
    James C. Mize, Jr. of Bull & Neilson, Orlando, for appellees Caudill Rowlett Scott, Inc. William Caudill and Wallie Scott.
    Martin J. Mickler of Bullock, Childs, Mickler & Cohen, Jacksonville, for appellee W.W. Gay Mechanical Contractors, Inc.
    Charles B. Carter of Jones & Langdon, Gainesville, for appellee Drake Contracting, Inc.
    Herbert R. Fanning and Jack W. Shaw, Jr. of Mathews, Osborne, McNatt, Gobel-man & Cobb, Jacksonville, for appellee Anderson & Associates, Inc.
    Victor M. Halbach, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees Arthur Lee Campbell, Craig H. Salley, Campbell, Salley & Associates, Inc. and Salley/Jaekson/Reeger, Inc.
    A. Graham Allen of Freeman, Richardson, Watson & Kelly, Jacksonville, for ap-pellee T. Neal Kenyon.
    Charles B. Carter of Jones & Langdon, Gainesville, for appellee Charles R. Perry Construction, Inc.
    W.C. O’Neal of O’Neal & O’Neal, Gaines-ville, for appellee Mathews Systems, Inc.
   BARFIELD, Judge.

The Board of Trustees of Santa Fe Community College appeals two summary judgments entered in favor of the defendants below in related cases which we consolidated for purposes of this review.

The appellant contends that the trial court erred in determining there were no genuine issues of material fact and ruling as a matter of law that the Statute of Limitations barred the actions of the appellant. We agree and reverse as to both summary judgments. The second issue raised by the appellant is the trial court’s denial of its motion to amend its complaints. Our reversal of the summary judgments renders the second issue moot on this appeal.

The issue to be determined by the trial court was whether the appellant knew or should have known of the corroded condition of underground pipes more than four years before August 21, 1981, on which date it filed suit against the architects, mechanical engineers, general contractors, and mechanical contractors involved in the construction of nine campus buildings.

The contract for construction of Buildings A, B, C and D was entered into in 1968; the buildings were occupied by the college in September of 1972. The construction contract for Building E was entered into in 1972; it was occupied by the college in August, 1975. Other campus buildings were also constructed between 1970 and 1979 by appellees and others; construction was substantially completed by the fall of 1979, after which time the contractors were no longer present on the campus.

As early as 1972, sporadic leaks had occurred in the underground piping system. These leaks were reported to the college, but were usually repaired by the contractors already working on campus, and were generally attributed to mechanical failures and breaks normally incident to large, ongoing construction projects. When the contractors left the campus in the fall of 1979, the physical plant department of the college assumed responsibility for repair of the leaks. In November, 1979, while repairing several underground leaks, the college discovered that the metal pipes were corroded and that the soil surrounding the corroded pipes was “gumbo clay”.

In April, 1980, the college contacted a mechanical engineer who determined that the damage was caused by galvanic corrosion, which he attributed to the clay surrounding the pipes. Upon the engineer’s recommendations, the college retained a metallurgist, Dr. Gould, who examined several pipe failures between April and October, 1980, and recommended a comprehensive survey to determine' whether there was a system-wide corrosion problem. On October 26, 1980, the college called a meeting of the architects and contractors regarding the problem with the piping system. When they refused to participate in further study of the problem, the college retained Dr. Gould to conduct the study, which cost $25,682. Dr. Gould’s report, issued in March, 1981, concluded that a campus-wide corrosion problem existed in the underground piping system and that it was caused by installation of the piping system in clay. Backfilling of the pipe trenches with clay was determined to be in violation of the specifications for the job.

The twenty-two count complaint included claims for negligence, breach of contract, breach of expressed warranties, and breach of implied warranties. Under each count, the college stated:

That as a direct and proximate result of the [negligence or breach] of Defendants, extensive leaks have occurred throughout the underground piping system which have been caused by extensive pitting and corrosion of said water pipes. Said leaks have occurred at regular intervals following the occupancy date of these buildings by the college, the first of said leaks occurring in [September 1972 (for Buildings A, B, C, D); 1976 (for Building E)] and the last of said leaks occurring in [March, 1981 (for Buildings A, B, C, D); the latter part of 1979 (for Building E) ].

The defendants’ motions to dismiss based on the Statute of Limitations were denied. In response to interrogatories requesting the date of discovery of the first corrosive leak and all successive corrosive leaks, as well as the precise location of each leak and the material used in the pipe, the college attached a list of 23 pipe failures occurring from September, 1972 to July, 1981. In response to defendants’ requests for admissions, the college admitted its awareness of subsurface pipe failures since 1972, but. denied knowledge of corrosion in the piping system before November, 1979. The defendants moved for summary judgment, based upon thé above-quoted language of the complaint and the responses to the interrogatories and requests for admissions, asserting, “The leaks which are the subject of this action existed and were discovered more than four years prior to the filing of the action.” In opposition to the motions for summary judgment, the college filed affidavits of several administrators, as well as the mechanical engineer and the metallurgist who studied the corrosion problem, asserting that the galvanic corrosion was a latent defect which was not discovered until November, 1979, and that the isolated leaks occurring before that date were thought to be normal workmanship problems accompanying any large construction project and were repaired by the contractors, who did not notify the college that there was a permanent problem. The affidavit of Dr. Turner explained that the “leak list” used to answer interrogatories was a list of all leaks which had been compiled to aid in Dr. Gould’s study.

The motions for summary judgment were denied, apparently because the trial judge determined that the Statute of Limitations did not apply to the college, a government entity. The college was allowed to amend its complaint to drop and add parties defendant and counts relative to specific buildings. The college was subsequently allowed to amend the complaint to correct the names of two defendant insurance companies.

Defendants’ answers to the amended complaint again asserted the Statute of Limitations defense and defendants again moved for summary judgment, asserting that the statute upon which the college relied in the hearing on the previous motion for summary judgment had been repealed, that section 95.11, Florida Statutes,. governs this action, that the limitations period ran from the discovery of the leaks in 1972, and that the limitation period had expired prior to the 1981 filing of the suit.

The college filed a memorandum in opposition to the motions for summary judgment, asserting that the motions were premature since discovery was not yet complete, that there had been no significant change in the record since the previous denial of the motions for summary judgment, that the college was not on notice of the corrosion defect until November, 1979, and that a corroding underground pipe system is a latent defect. In subsequent proceedings the summary judgments now under review were entered.

The limitation period for an action founded on the design or construction of an improvement to real property is four years from the date of actual possession or completion of the contract, whichever is later, except that, when the action involves a latent defect, the time runs from when the defect is discovered or should have been discovered with the exercise of due diligence. Section 95.11(3)(c), Florida Statutes. Case law recognizes that the limitations period commences when the plaintiff has been given notice of the invasion of his legal rights, i.e., when he has been put on notice of his right to a cause of action. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Neff v. General Development Corporation, 354 So.2d 1275 (Fla. 2d DCA 1978); Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. den., 360 So.2d 1247 (Fla.1978); Smith v. Continental Insurance Company, 326 So.2d 189 (Fla. 2d DCA 1976).

In order to succeed on a motion for summary judgment based upon the Statute of Limitations, the movants in the case at issue were required to conclusively show that there exists no disputed issue of fact with respect to the date .of commencement of the limitations period, specifically, that the defect which forms the basis of the cause of action was discovered, or should have been discovered with exercise of due diligence, more than four years before the suit was filed (i.e. prior to August 21, 1977). Whether one by exercise of reasonable diligence should have known he had a cause of action against the defendant is, ordinarily, a question of fact which should be left to the jury. Perez v. Universal Engineering Corporation, 413 So.2d 75 (Fla. 3d DCA 1982); First Federal Savings & Loan Association of Wisconsin v. Dade Federal Savings & Loan Association, 403 So.2d 1097 (Fla. 5th DCA 1981); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979); Walker v. Dunne, 368 So.2d 640 (Fla. 2d DCA 1979); Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974). After reviewing the entire record, we conclude that at the time of the hearing on the motions for summary judgment there existed a genuine issue regarding whether the college had discovered, or by diligence should have discovered, the corroded pipes which are the basis of its cause of action more than four years before the filing of its complaint. This issue of fact should have been determined by the trier of facts, and not resolved by summary judgment.

It is undisputed that leaks occurred in the underground piping system prior to August, 1977, and that the college was aware of these leaks. There appears to be some dispute regarding whether the college repaired any of the leaks prior to November, 1979 and whether the college had uncovered corroded pipes before the fall of 1979. We find no evidence in the record that indicates that any of the pre-1979 leaks were caused by corroded pipes, although the causes of some of the leaks have not as yet been determined (none of the contractors or engineers involved in the construction and only a few of the college personnel who would have knowledge of the leaks have been deposed at this time).

The appellees assert that by attaching the “leak list” to its response to interrogatories, the college has admitted that the leaks which occurred from September, 1972 were corrosion leaks. However, it should be noted that the affidavits in opposition to the motions for summary judgment established that this list evolved from earlier lists compiled to assist in the study of the problem and included all the leaks of which the college was aware. Examination of the record discloses that there were at least five such lists, that of the approximately 17 leaks discovered before November, 1979, at least 6 were plastic pipes (which are not subject to galvanic corrosion), and that at least three of the other leaks were caused by pipes “splitting”, “bursting” due to a water hammer effect, or being damaged by heavy equipment during construction. This is in contrast to the 27 leaks discovered after November, 1979, 18 of which were caused by corrosion, three by stress fractures, one by the union of dissimilar metals and five due to unknown causes.

Appellant correctly points out that on a motion for summary judgment, all reasonable inferences must be drawn in favor of the nonmoving party. The lack of evidence of corrosion before November, 1979, coupled with the observation that corrosion is an ongoing process that may take many years to manifest itself, allows a reasonable inference that the leaks which occurred prior to August, 1977 were not due to corrosion. It follows that the college could not have been put on notice by such leaks that a cause of action existed for corroded pipes resulting from negligent backfilling of the pipe trenches.

Appellees assert that a letter from the “clerk of the works”, O.D. Thomas, notified the college as early as 1976 that a system-wide problem may have existed. However, appellant points out that Thomas’ deposition explains that the leak to which he was referring was a mechanical failure, not corrosion, that he was unaware at the time of any corrosion problem, and that he suspected a manufacturing defect in the pipe, not improper installation as is alleged in the complaint.

Appellees contend that it is the discovery of the leaks, and not discovery of the corrosion which caused the leaks, which commences the statutory limitations period, citing Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), which overrules School Board of Seminole County v. GAF Corporation, 413 So.2d 1208 (Fla. 5th DCA 1982), upon which appellant had relied in the trial court. Appel-lees also cite Havatampa Corporation v. McElvy, Jennewein, Stefany and Howard, Architects/Planners, Inc., 417 So.2d 703 (Fla. 2d DCA 1982), pet. for rev. den., 430 So.2d 451 (Fla.1983) and K/F Development & Investment Corporation v. Williamson Crane & Dozer Corporation, 367 So.2d 1078 (Fla. 3d DCA), cert. den. 378 So.2d 350 (Fla.1979). However, as the Kelley court noted (in footnote 3), that case did not present the question of whether a cause of action actually existed or whether the school board had, or should have, discovered the existence of a problem. The Supreme Court’s holding in Kelley was a rejection of the “continuous treatment” doctrine which the majority had adopted in the DCA opinion.

In contrast, the instant case presents genuine issues regarding whether (1) a cause of action existed prior to August, 1977 (whether any of the pre-1977 leaks were due to corrosion) and (2) whether the college had, or should have, discovered the existence of the corrosion prior to August 21, 1977 (four years before the suit was filed). We find the trio of “roof leak” cases cited by appellees distinguishable from the instant case in several other ways as well: “roof leaks” which occur as soon as the roof is finished indicate that either the architect, the roofing contractor, or the material supplier is at fault; “leaky pipes” may be due to a variety of accidents or failures completely unrelated to corrosion caused by improper backfill (improper connections, damage by heavy vehicles or later excavation, a “water hammer effect”, defectively manufactured pipe, etc.); defects in underground water pipes are not as easily detectable as defects in a roof, which become apparent after every rainstorm. We further note that Dr. Turner’s affidavit explaining the nature of the “leak list” attached in answer to interrogatories was a credible explanation of the seeming discrepancies in the record as to the dates on which corrosion caused leaks were known.

The summary judgments are REVERSED and the cause is remanded for further proceedings.

JOANOS and WIGGINTON, JJ., concur.


source: Caselaw Access Project

author:
MILLS, Judge.
      WENTWORTH, Judge,

license: Public Domain

text:
    Eldred HORNE, Appellant, v. ALTER SALES and American Mutual Insurance Company of Boston, Appellees.
    No. AX-43.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      George A. O’Brien and Hershoff & Levy, Miami, for appellant.
    Edwin H. Underwood and Richard B. Wingate, Jr. of Underwood, Gillis, Karcher & Valle, P.A., Miami, for appellees.
   MILLS, Judge.

Claimant (Horne) appeals the denial of TPD benefits from 19 May 1983 to 29 June 1983 (MMI) and of wage-loss benefits from 29 June 1983 to 30 September 1983. We affirm.

Horne is a 59-year-old male, who was employed as an accountant by Alter Sales (E/C) when, on 9 February 1983, he sprained his ankle on a door jamb at work.

The E/C paid TTD benefits to Horne from 25 February to 19 May 1983 when payments ceased. Horne has earned no money since 25 February 1983. He filed wage-loss forms with the E/C each month from 19 May to 30 September 1983.

The evidence adduced at the hearing revealed that Horne’s work search has consisted of: 1) mailing resumes in response to classified ads; 2) registering with the Florida State Employment Service and calling twice a week; and 3) contacting vocational placement. Despite the availability of numerous positions in his field, none of these measures has yielded employment. Medical testimony established that, as a result of the injury, Horne now suffers from chronic synovitis of the ankle and, after reaching MMI on 29 June 1983, he has a 2% permanent impairment of the body as a whole. He can continue to work as a bookkeeper despite the impairment, and no specific physical limitations were placed on his activities.

The deputy denied Horne’s claim for TPD benefits from 19 May to 29 June 1983 and for wage-loss benefits from 29 June to 30 September 1983. As to the latter claim, the deputy found that Horne had not fulfilled the burden imposed by Section 440.-15(3)(b), Florida Statutes (1983), “to show that his inability to obtain employment ... is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment.” With regard to both claims the deputy held that “any wage-loss that he has incurred after May 19, 1983, has not been the result of his compensable injury.” The deputy makes no findings at all as to the adequacy of Horne’s work search.

Horne argues on appeal that the deputy erred in using Section 440.15(3)(b) to bar his claim, in that the date of his accident preceded the effective date of the statute. He asserts that prospective application of the statute only is proper, in that it is neither procedural nor remedial, but impacts on his vested rights. Because he conducted such an extensive, unsuccessful' work search, Horne argues, he meets the requirements for receipt of wage-loss benefits.

Horne is incorrect when he argues that Section 440.15(3)(b) has no application to him. In City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), this court found that the statute was a “procedural burden-of-proof enactment” which may be applied retroactively. Therefore, the application of the statute is not governed by Horne’s date of accident. However, we do find that the deputy erred in employing the statute to bar his claim.

The Rumph court found that Section 440.15(3)(b) precluded recovery only when the claim is “predicated solely on economic conditions unrelated to a claimant’s physical limitations by ordinary proximate cause standards.” To that end, a claimant is required to “present evidence indicating that the compensable physical limitation is a contributing causative factor in the wage-loss claimed,” that is, “an element in the causal chain resulting in or contributing to the wage loss.” He does not have to show “that he was not hired as a result of his compensable injury.”

The court was persuaded as to the existence of the limitation as an element in the wage loss by the facts that: 1) “claimant’s industrial injury displaced him from his employment”; 2) “[the] employer refused to rehire”; 3) “the claimant in good faith performed an extensive, but entirely unsuccessful job search, during which prospective employers were generally aware of claimant’s physical condition”; and 4) the E/C failed to show “that claimant limited his income or declined appropriate employment.” Because facts similar to these are reflected in this record, we find that the statute would not bar Horne from recovering wage-loss benefits after MMI. He has shown that his claim is not “predicated solely on economic conditions unrelated to [his] physical limitations .... ”

However, the deputy held, in addition to the statutory findings, that “any wage loss has not been the result of his compensable injury.” Horne does not address this finding on appeal, but relies instead on refuting only the deputy’s statutory analysis and on the quality of his job search, unaddressed by the deputy. It is true that “the work search is inextricably involved in the worker’s entitlement to commensurate benefits for continuing disability. ... To search for work conscientiously and effectively is the Chapter 440 obligation of any injured and unemployed worker not physically disabled to work.” Holiday Care Center v. Scriven, 418 So.2d 322, 324 (Fla. 1st DCA 1982).

However, “a prima facie case of lost earning capacity must include a showing of a causal connection between the loss of employment ... and the industrial accident. The adequacy of a job search becomes relevant only after the initial burden is met.” Photo Electronics Corp/WPEC v. Glide, 432 So.2d 164, 165 (Fla. 1st DCA 1983). Here, Horne does not challenge the deputy’s finding of lack of causal connection, and the issue is therefore beyond the scope of our review. Because that unassailed finding must stand, we can proceed no further but are compelled to affirm.

Horne’s motion for attorney’s fees is denied.

SHIVERS, J., concurs.

WENTWORTH, J., concurs specially with opinion.

WENTWORTH, Judge,

concurring specially.

I agree with affirmance based on claimant’s prima facie showing of wage loss not based solely on conditions unrelated to his physical impairment. I would, however, construe the appellant’s arguments here as controverting the deputy’s finding of ultimate fact that “any wage loss has not been the result of his compensable injury.” I would note also that Rumph did not excuse claimant from showing in some way that his lack of success in a work search resulted in part from his compensable injury. The opinion rejected only the carrier’s “argument that ‘it was incumbent on the claimant to produce live [sic] testimony to the effect that he was not hired as a result of his compensable injury,’ ” (e.s.) and stated that instead “[t]he cause of incapacity to earn may ... be shown by direct or circumstantial evidence” including an unavailing work search, which may under proper circumstances “meet the statutory requirements for prima facie proof of [wage loss] connection with permanent physical limitation.” The evidence in that case illustrated one of the many ways in which the existence of a physical limitation may contribute to wage loss, the connection there being shown, in part, by prospective employers’ rejection “once they found out about the injury.” 450 So.2d 575, 576.

The decision in Photo Electronics Corp./WPEC v. Glide, 432 So.2d 164 (Fla. 1st DCA 1983), was simply that mere lack of success in work search was not relevant to show increased permanent disability from a 1978 injury because causal connection was not shown. In that case the lack of causal relation between claimant’s injury and unemployment was shown by other evidence including claimant’s lengthy unimpaired performance of his original job duties. I find no problem with the opinion’s conclusion in that situation that the “adequacy of a job search becomes relevant only after the initial burden is met,” but that does not in my opinion conflict with Rumph, supra, nor does it preclude meeting that initial burden, i.e. the requirement of prima facie proof of causal connection between injury and wage loss, by evidence of an unavailing work search of the character described in Rumph under the circumstances present there and apparently in the case now before us.


author: WENTWORTH, Judge.

text:
    LYKES BROTHERS, INC., & Hartford Insurance Group, Appellants, v. Evelyn D. JACKSON, Appellee.
    No. AZ-6.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      Susan W. Fox and Richard Crooke, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Irvin A. Meyers and Sherry L. Davis, of Meyers & Mooney, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order and assert that the deputy erred in awarding benefits upon a determination that claimant’s wage loss is related to her industrial injury. We find that the deputy did not err in this regard, and we therefore affirm the order appealed.

While employed as an assembly line worker in a meat plant claimant sustained an industrial injury which necessitated a cervical decompression lamenectomy. Although she continued to experience pain and muscle spasms claimant was eventually released for work, with permanent impairment and restrictions on certain activity after maximum medical improvement. Her physician was of the opinion that claimant would be unable to return to her former employment. Claimant nevertheless briefly attempted to resume such employment, but found it to be beyond her physical capabilities. She then obtained work as an electronics trainee, which was subsequently terminated after her new employer repeatedly made unreasonable personal demands. In addition, the work environment and physical requirements of the job exceeded claimant’s expectations and capabilities.

Claimant thereafter accepted a job offer from a cleaning service, but prior to commencing such employment was advised that her fiance had experienced a life-threatening accident in North Carolina. She immediately left the state to care for him. He was rendered quadriplegic. They were married and continued to reside in North Carolina, where she has been able to obtain only part-time employment despite an extensive work search. Testifying that such residence is only temporary, claimant suggested that as soon as her husband is able to travel they will return to Florida, where she intends to pursue 'employment with the cleaning service which had offered her a job.

Claimant’s industrial injury resulted in her displacement from and incapacity for her former employment. While there was no direct evidence as to why she was not hired in North Carolina, City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), indicates that:

The cause of incapacity to earn may ... be shown by direct or circumstantial evidence.... An unavailing work search, sufficiently extensive and intensive, by a permanently impaired worker such as the claimant in this case, may meet the statutory requirements for prima facie proof of connection with permanent physical limitation, [fn. omitted]

Claimant’s brief term of employment as an electronics trainee does not in itself reestablish an earning capacity, and the record reflects no rebuttal of the prima facie sufficiency of work search evidence offered by her. See Lasher Milling Co. v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983); see also Johnston v. Super Food Services, 461 So.2d 169 (Fla. 1st DCA 1984). Although claimant had obtained and accepted another job offer within Florida, her sudden departure from the state was not motivated by any desire to avoid work and does not, in the circumstances, show lack of due diligence or voluntary limitation of income precluding the award of wage loss benefits. Cf. Genelus v. Boran, Craig, Schreck Construction Co., 438 So.2d 964 (Fla. 1st DCA 1983). The deputy was thus entitled to find that claimant’s wage loss is causally related to her industrial injury and not based solely on factors other than physical limitation.

The order appealed is affirmed.

MILLS and SHIVERS, JJ., concur.


author: PER CURIAM.

text:
    Chriss WALKER, Appellant, v. Larry BUTLER; Jim Hires, a/k/a Christopher Hires, d/b/a South Monroe Exxon; and Exxon Company, U.S.A., Appellees.
    No. AZ-78.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      Chriss Walker, Tallahassee, for appellant.
    Paula L. Walborsky and Edgar C. Booth, Tallahassee, for appellees — Larry Butler and Jim Hires.
    Alan C. Sundberg and George N. Meros, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for ap-pellee — Exxon Co., U.S.A.
   PER CURIAM.

Appellant, a handicapped person, filed a three-count complaint against appellees alleging that Larry Butler, an employee of Jim Hires, doing business as South Monroe Exxon, wrongfully refused to pump gasoline from the self-service island for him contrary to Section 526.141(5), Florida Statutes (1981). Appellant claimed that as a result of Butler’s conduct, he suffered embarrassment, pain and suffering, and inexplicable muscle spasms. In addition, he alleged that Butler’s conduct had a chilling effect upon him, and that he is afraid to request help at self-service islands now and instead uses full-service islands when getting his gasoline. Finding that appellant had not suffered the type of damages this statute was designed to prevent, the trial court granted appellee’s motions for summary judgment. We affirm.

Appellant drove his vehicle displaying an exemption entitlement parking permit on it to the self-service island of the South Monroe Exxon and requested assistance from attendant Butler to pump the gas for him. Unaware of Section 526.141(5), Butler refused to pump appellant’s gas. Appellant alleges that Butler’s refusal was made in a very derogatory manner, albeit without profanity. A bystander interceded and pumped appellant’s gas for him at the self-service island. Appellant paid the lower self-service price and left.

Section 526.141(5) provides that every full-service gas station which offers self-service gas at a lower cost shall require an attendant employed by the station to dispense gas from the self-service island to any motor vehicle properly displaying an “exemption entitlement parking permit” when the person to whom the permit is issued is the operator of the vehicle and requests such service. All the parties agree that Butler did not comply with Section 526.141(5). However, it does not necessarily follow from a violation of this statute that there is actionable negligence since appellant must allege: (1) that he is of a class the statute was intended to protect; (2) that he suffered the type of injury the statute was designed to prevent; and (3) that violation of the statute was the proximate cause of his injury. deJesus v. Seaboard Coastline Railroad, 281 So.2d 198 (Fla.1973). Assuming Section 526.141(5) was intended, among other things, to protect handicapped persons like appellant, and that Butler’s refusal to assist appellant was the cause of appellant’s alleged embarrassment and distress, we agree with the trial judge that the second essential element necessary for appellant to state a cause of action is missing.

After examining the other provisions in Chapter 526, we conclude that Section 526.-141(5) was enacted by the legislature as a safety measure for the prevention of physical injury to handicapped persons who would otherwise be required to pump gas for themselves at a self-service island. We further recognize that Section 526.-141(5) achieves the secondary objective of insuring that disabled persons receive the same economic advantage as able-bodied persons who are able to pump their own gas. In this case, appellant was not physically injured while pumping gas for himself, and he paid the lower gasoline prices available at the self-service island after his gasoline was pumped by a bystander. Appellant has been unable to point to any language of the particular section, or of the chapter in which it appears, that would remotely suggest a legislative purpose to protect against embarrassment — the only type of injury suffered by appellant as a result of Butler’s failure to heed the command of the statute. Accordingly, we are compelled to apply and to follow prior case law in holding that no cause of action has been alleged. deJesus, supra; Groh v. Hasencamp, 407 So.2d 949 (Fla. 3d DCA 1981); and Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978).

Since our ruling on the above point is dispositive of the entire case, we have no occasion to consider other issues raised by appellant, and the trial court’s final summary judgment is AFFIRMED.

SMITH, ZEHMER and BARFIELD, JJ., concur.

      . By this statement, we do not intend to define the entire class of persons which this statute is designed to protect. We expressly leave for another day the question of whether a violation of Section 526.141(5) gives rise to a cause of action in favor of a third party who is personally injured as a result of a violation of this statute.


text:
    Randolph Elias GRIFFIN, Appellant, v. Selena Pearl GRIFFIN, Appellee.
    No. AZ-208.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.
    Martin S. Page, Lake City; and Daniel A. McKeever, Live Oak, for appellant.
    Charles L. Carlton, Lakeland; and J. Victor Africano, Live Oak, for appellee.
   PER CURIAM.

Appellant-husband was found to be in civil contempt for failure to pay his alimony and child support obligations and sentenced to jail. The husband concedes there is sufficient evidence to support a finding of contempt, but he contends there is insufficient evidence in this record that he has the present financial ability to purge himself and therefore he cannot be committed to jail for civil contempt. We agree. Bowen v. Bowen, 454 So.2d 565 (Fla. 2d DCA 1984); Smith v. Miller, 451 So.2d 945 (Fla. 1st DCA 1984); and Ponder v. Ponder, 438 So.2d 541 (Fla. 1st DCA 1983).

Appellant’s sentence is REVERSED and the cause REMANDED for further proceedings as deemed necessary consistent with this opinion and the authorities cited herein.

SMITH, ZEHMER and BARFIELD, JJ., concur.


author: LEHAN, Judge.

text:
    METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, Appellant, v. Robert S. AUSTIN and Alfred S. Austin, co-partners, d/b/a Austin Development Company, et al., Appellees.
    No. 82-2102.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
   ON MOTION TO ENTER JUDGMENT IN ACCORDANCE WITH MANDATE

LEHAN, Judge.

Appellant has filed a motion to require the trial court to enter judgment in accordance with the mandate previously issued by this court on July 6, 1983. This ease arose out of a dispute between appellant, a lessee, and appellees, the lessors, over the meaning of a lease provision that air conditioning would be provided “during usual business hours.”

In our opinion issued June 17, 1983, we stated that the lessee was entitled to air conditioning from 8:00 a.m. to 6:00 p.m. on weekdays and from 9:00 a.m. to 1:00 p.m. on Saturdays. We also held that the trial court did not err in rejecting the lessee’s argument that air conditioning should be provided from 6:00 p.m. to 9:00 p.m. on weekdays. 433 So.2d 36.

The trial court had previously entered a temporary injunction requiring lessor to provide air conditioning from 8:00 a.m. to 9:00 p.m. on weekdays and from 9:00 a.m. to 1:00 p.m. on Saturdays. After remand by this court, the lessee asked the trial court to enter a permanent injunction requiring lessor to provide air conditioning from 8:00 a.m. to 6:00 p.m. on weekdays and from 9:00 a.m. to 1:00 p.m. on Saturdays, in accordance with this court’s opinion, and to dissolve the temporary injunction and deny a permanent injunction as to the hours of 6:00 p.m. to 9:00 p.m. on weekdays. The trial court refused to enter the requested permanent injunction, stating that “[t]he hours for air-conditioning noted in the [appellate court] decision were not in controversy and any need for an injunction had been rendered moot.”

We have reviewed portions of the transcript of the trial in this case, and we believe that some of the hours for air conditioning noted in our opinion were in controversy, specifically the hours of 5:00 p.m. to 6:00 p.m. on weekdays and 9:00 a.m. to 1:00 p.m. on Saturdays. Lessee’s witnesses testified variously that the office had no air conditioning after 5:00 p.m., 5:30 p.m., or 6:00 p.m. on weekdays. Lessor’s witnesses testified that the air conditioning was shut off at 5:00 p.m. or shortly thereafter and that the building remained comfortable until 6:00 p.m.

As to the Saturday hours, lessee’s witnesses testified that no air conditioning was provided. Lessor’s witnesses stated that they considered 9:00 a.m. to 1:00 p.m. to be “usual business hours” and that their policy was to provide air conditioning during those hours at a tenant’s request. However, there was some testimony by lessee’s employees that no air conditioning was provided even after requests were made to the lessor or its agents.

Accordingly, we find that the providing of air conditioning during the hours of 9:00 a.m. to 1:00 p.m. on Saturdays and 5:00 p.m. to 6:00 p.m. on weekdays was in controversy and that the trial court erred in refusing to enter a permanent injunction as to those hours.

Appellee has argued that the trial court’s refusal to enter the order imposing the injunction is not appealable because portions of a counterclaim in the case remain pending. However, the denial of an injunction is appealable ■ under Florida Rules of Appellate Procedure 9.130(a)(3)(B).

DANAHY, A.C.J., and SCHOONOVER, J., concur.


text:
    CITY OF HIALEAH, a municipal corporation, Appellant, v. Richard RECIO, Appellee.
    No. 83-2947.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    Ralph F. Miles, Hialeah, for appellant.
    Holden & Holden and Thomas Holden, Hialeah, for appellee.
    Before HUBBART and FERGUSON, JJ„ and TILLMAN PEARSON (Ret.), Associate Judge.
   ON REHEARING

PER CURIAM.

A City of Hialeah employee who is aggrieved by a termination notice has a right to a hearing, if he wishes to have one. § 98(c), Charter of the City of Hialeah. Further, no discharge of a permanent employee in the classified service is final until written notice of the termination has been served upon the employee and an appeal has been waived or disposed of. See Rule XI, §§ 1, 3, Civil Service Rules and Regulations of the City of Hialeah. Appellee never sought an appeal, timely or belatedly, from his termination. He sought by the court action only to be reinstated to employment. The trial court granted reinstatement.

The employee’s complaint was that (1) a hearing must precede a termination notice, or (2) simultaneous with the termination notice, an employee must be reinformed of his right to appeal. The first point is meritless. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion). The second point, even if assumed meritorious, would entitle the employee only to the belated hearing which the City has offered.

Reversed and remanded for further proceedings.

      . It is not contended here, nor was it asserted in support of the motion for summary judgment, that appellee-movant was otherwise unaware of the right accorded him by Civil Service Rules to appeal a termination notice.


text:
    Florene FRUGGIERO, Appellant, v. BEST WESTERN RESORT INN and Aetna Insurance Company, Appellees.
    No. AY-33.
    District Court of Appeal of Florida, First District.
    Dec. 26, 1984.

      E. Douglas Spangler, Jr., Sarasota, for appellant.
    Mark E. Hungate, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Pe-tersburg, for appellees.
   PER CURIAM.

Claimant appeals contending the deputy-commissioner erred in reducing the benefits payable to her by fifty percent (50%) in accordance with Section 440.15(3)(b)4., Florida Statutes (Supp.1982). Her contention that Section 440.15(3)(b)4. violates the equal protection clauses of both the federal and state constitutions has been rejected by the Florida Supreme Court in Morrow v. Amcon Concrete, Inc., 452 So.2d 934 (Fla.1984), and Sasso v. Ram. Property Management, 452 So.2d 932 (Fla.1984).

Next, this court rejected the contention that Section 440.15(3)(b)(3)d. violates the federal supremacy clause because it conflicts with Section 403(f)(3) of the Social Security Act, Title 42, U.S. Code, in Acosta v. Kraco, Inc., 448 So.2d 562 (Fla. 1st DCA 1984). Claimant’s similar challenge to Section 440.15(3)(b)4. is controlled by our decision in Acosta. Moreover, we reject claimant’s constitutional argument for the further reason that claimant does not have standing to raise this issue since she is only 63 years old and Section 403(f)(3) only affects persons 65 and older. See Sasso v. Ram Property Management, 431 So.2d 204, 208 n. 6 (Fla. 1st DCA 1983).

Finally, in O’Neil v. Department of Transportation, 442 So.2d 961 (Fla. 1st DCA 1984), this court addressed and rejected the contention that Section 440.-15(3)(b)(3)d. violates the federal supremacy clause because it conflicts with the Age Discrimination in Employment Act, 29 U.S.C., § 621, et seq. That decision controls claimant’s similar challenge to Section 440.15(3)(b)4. in this ease. Nevertheless, because O'Neil is still pending in the Florida Supreme Court, we certify the following question:

DOES SECTION 440.15(3)(b)4., FLORIDA STATUTES (Supp.1982), VIOLATE THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION BECAUSE IT CONFLICTS WITH THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, 29 U.S.C., § 621. ET SEQ.?

AFFIRMED.

BOOTH, SMITH and THOMPSON, JJ., concur.

      . Section 440.15(3)(b)4. was amended in 1983 to permit for the first time, persons 65 and over and eligible for social security to also obtain wage loss benefits. This court recently held that the amendment was substantive and could not be applied retroactively to accidents occurring prior to the effective date of the amendment. Ralston Purina Company v. Byers, 457 So.2d 1138 (Fla. 1st DCA 1984).


author: NIMMONS, Judge.

text:
    HOBBS CONSTRUCTION & DEVELOPMENT, INC., a Florida corporation, and Insurance Company of North America, a Pennsylvania corporation, Appellants, v. COLONIAL CONCRETE COMPANY, a Kentucky corporation d/b/a Southern Concrete, Appellee.
    No. AY-168.
    District Court of Appeal of Florida, First District.
    Dec. 26, 1984.

      Bill R. Hutto, Hutto & Nabors, Panama City, and Thomas M. Ervin, Jr., and Mary L. Sweet, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    Arnold H. Slott, Block & Slott, Jacksonville, for appellee.
   NIMMONS, Judge.

Hobbs Construction and Development, Inc. (Hobbs) and its surety, Insurance Company of North America (INA), defendants in the court below, appeal from an award by the trial court, sitting non-jury, in favor of Colonial Concrete Company, d/b/a Southern Concrete (Southern), in an action brought by Southern for sums allegedly owed for concrete which Southern supplied in connection with the 1982 renovation and expansion of the Gator Bowl in Jacksonville. Hobbs was the general contractor. We affirm the final judgment.

The facts summarized in our opinion are either those recited in the trial court’s final judgment or, where not so recited, based upon evidence which supports the trial court’s award.

On December 17, 1981, Hobbs entered into a contract with the City of Jacksonville whereby Hobbs agreed to do expansion and renovation work on the Gator Bowl for a total contract price of $12,801,400. The work was to be substantially completed by the next Florida-Georgia football game which was scheduled for November 6,1982.

Prior to signing the purchase order for the concrete, Southern’s vice president and general manager met with Hobbs’ project superintendent at the construction site and discussed certain terms, including, but not limited to, prices for certain concrete materials. Overtime was discussed and it was agreed that the delivery schedule for concrete materials would be between 7:00 a.m. and 7:00 p.m., Monday through Friday, and 7:00 a.m. to 5:00 p.m. on Saturdays. A purchase order was prepared at Hobbs’ office in Panama City where it was signed by Hobbs’ president and forwarded to Jacksonville where it was signed by Southern’s sales manager.

The purchase order, which covered some but not all of the materials purchased by Hobbs from Southern, contained the following:

Above prices are to remain in effect for duration of the job. There will be no additional charges for concrete on Saturdays or for overtime. There is no minimum on concrete to be shipped per order.

At the outset of the job, Hobbs, viewing the project as a so-called “6-10 job,” commenced work on a 6-10 basis, i.e., six days per week and ten hours per day.

By early summer, the concrete pouring schedule established by Hobbs increasingly involved deliveries into the night. Initially, Southern complied with Hobbs’ extended scheduling. However, Southern eventually began to refuse to deliver concrete if the pouring was going to take until 9:00 or 10:00 p.m.

In mid-July, 1982, Hobbs’ project manager initiated discussions with Southern’s general manager in order to reach agreement on a night schedule for the delivery and pouring of concrete. By this time, Hobbs had determined that it needed the cranes, which were used for hauling the concrete buckets, to do other things during &e day. In response to Hobbs’ project manager’s request, Southern’s general manager quoted the price of $140.00 per hour as the service charge for deliveries from 7:00 p.m. to 7:00 a.m., Monday through Saturday, and from 5:00 p.m. Saturday to 7:00 a.m. Monday, with a four-hour minimum. A day or so later, Hobbs’ project superintendent went to Southern’s office, and the parties agreed upon the above extended schedule terms except that the service charge would be $120 instead of $140. Hobbs’ project superintendent mentioned to Southern’s general manager that he would get him a purchase order. Hobbs’ orders for nighttime pourings under the new arrangement commenced that night and continued until the latter part of October 1982.

For each of the many pourings which were ordered by Hobbs for nighttime and Sundays, Southern prepared a special delivery ticket designating the date, time period and an amount of time designated as “overtime.” The deliveries were accepted by Hobbs’ agent who signed the tickets when the concrete was delivered to the site.

Southern forwarded to Hobbs’ home office periodic billings for overtime under the July extended schedule agreement. Hobbs paid the first such bill on or about August 15, 1982, in the amount of approximately $15,000.00. As Hobbs continued to utilize nighttime and Sunday pourings by Southern, Southern forwarded similar billings for overtime to Hobbs. Although Hobbs’ home office personnel advised Southern on more than one occasion that payment for these billings would be forthcoming, no further payment for the overtime was ever received by Southern. Finally, as the project neared completion nine days before the Florida/Georgia football game, Hobbs notified Southern that Hobbs would not pay the overtime billings, citing as the basis for refusal the language of the original purchase order. Accordingly, Southern stopped further deliveries of concrete. Thereupon, Hobbs stopped payment on its October 22 check for $42,099.96 which had been sent to Southern in payment of materials less a deduction for the sum previously paid by Hobbs on August 15 for overtime.

Hobbs contends that: (1) assuming ar-guendo that Hobbs’ agents had authority to contract for their principal, the July agreement was void because of lack of consideration; (2) its agents lacked authority to bind Hobbs to the July overtime agreement; and (3) the evidence established Hobbs’ affirmative defense that Southern charged Hobbs for materials which Southern never delivered to the job site. We will discuss such contentions in the above order.

Hobbs’ first point depends upon the conclusion that the evidence presented required a finding by the judge, sitting as trier of the fact, that around-the-clock pourings, including Sundays, were contemplated by the parties in the January purchase order. We have no difficulty in rejecting that position. The record includes competent testimony that a normal or standard work week for a concrete supplier is eight hours per day, five days per week. As we earlier noted, the trial court found, based upon the evidence, that the parties originally contemplated a delivery schedule of between 7:00 a.m. and 7:00 p.m., Monday through Friday, and 7:00 a.m. to 5:00 p.m. on Saturdays, a schedule which was in excess of the above norm. We cannot say that the brief provision in the January purchase order that “[tjhere will be no additional charges for concrete on Saturdays or for overtime” necessarily meant that Southern was obligated to deliver and pour at the purchase order price at any time of the day or night including Sundays. If that is, indeed, what Hobbs intended, it should have spelled out such intent in more explicit terms.

We conclude that Southern’s agreement in July to deliver and pour at any time, day or night, including Sundays, certainly constituted consideration over and above that which was given for the January agreement and, therefore, rendered the July agreement enforceable.

We turn now to Hobbs’ next contention that its agents lacked authority to bind Hobbs to the July agreement for overtime. Hobbs asserts that the trial court erred in finding that Hobbs’ agents had apparent authority to agree to the overtime arrangement. Significant to this issue is the fact that, as work on the project progressed, it became apparent to Hobbs that it would be necessary to materially alter its performance, in order to complete the project on time, by resorting to an around-the-clock pouring schedule with its concrete supplier. Having affirmed, as discussed above, the trial court’s finding that such á schedule was not provided for in the original agreement, we are entitled to assume that Hobbs knew that its agreement with Southern did not provide for such schedule. Knowing that its concrete supplier was refusing to deliver on an around-the-clock schedule without a satisfactory agreement therefor and that, in order to have a reasonable chance of completing the project timely and avoiding a material breach of the contract with attendant substantial penalties, Hobbs knew that it must revise its agreement with its concrete supplier, and do so quickly. Hobbs was apparently content to leave it up to its project manager and project superintendent to make arrangements with the concrete supplier for such around-the-clock deliveries. When Hobbs’ agents and Southern’s general manager reached agreement on the new schedule, Hobbs’ orders for night deliveries commenced immediately. And so the evidence justifies the conclusion that Hobbs knew or should have known that its agents, in fact, reached agreement for the extended pouring schedule because it knew that its agents were negotiating for such with Southern and that night deliveries commenced immediately thereafter.

Under the circumstances, it was reasonable for Southern to assume that Hobbs’ agents had authority to speak for the company in contracting for the around-the-clock pouring schedule. At least such an inference is permissible from the evidence. And that inference is not necessarily precluded by the fact that Hobbs’ agent told Southern’s general manager that he (Hobbs’ agent) “would get him a purchase order.” The trier of fact was not required to find that Southern should have interpreted this to mean that issuance of a purchase order from the home office was a prerequisite to the existence of an agreement for nighttime deliveries. This is especially true where Hobbs immediately thereafter, without issuance of a purchase order, commenced ordering nighttime deliveries. Moreover, from the project’s inception, numerous concrete products were ordered from Southern by Hobbs’ on-site personnel without a purchase order. Further, Hobbs’ president testified that its project manager and project superintendent had actual authority to enter into “minor” agreements and that there was no set rule on the distinction between major and minor agreements.

Even if the Hobbs infrastructure was such that Hobbs’ project manager and project superintendent did not have actual authority to enter into the subject agreement for overtime deliveries, the circumstances in this ease were such that the trier of fact could properly find that such agents had the apparent authority to order on Hobbs’ behalf concrete based upon the new agreement. As was stated in Tampa Sand & Material Company v. Davis, 125 So.2d 126, 127 (Fla. 2nd DCA 1960):

The power of an agent to bind his principal may rest on real or actual authority conferred in fact by the principal or may be founded on apparent or ostensible authority arising when the principal allows or causes others to believe the agent possesses such authority, as where the principal knowingly permits the agent to assume such authority to where the principal by his actions or words holds the agent out as possessing it.

See also O’Neal v. Crumpton Builders, Inc., 143 So.2d 844 (Fla. 1st DCA 1962); Taco Bell of California v. Zappone, 324 So.2d 121 (Fla. 2nd DCA 1975); 2 Fla.Jur. 2nd, Agency and Employment § 35. The question of whether acts are within the scope of an agent’s apparent authority is a question of fact, the resolution of which will not be set aside unless clearly erroneous. One Hour Valet of America, Inc. v. Keck, 157 So.2d 83 (Fla. 2nd DCA 1963).

It is apparent from the evidence that, by early summer, Hobbs found itself in a tight situation insofar as completing the project timely and that it relied heavily upon its project manager and superintendent to get the project on track by making the necessary arrangements with its concrete supplier. Hobbs’ project manager described the project as unique and found themselves with a “tiger by the tail.” He graphically described his efforts at obtaining a new concrete pouring schedule thusly: “I tried to play like a duck, stay calm on the surface and I was paddling like mad underneath.”

In short, the evidence in this case is susceptible of the view that Hobbs’ on-site people had apparent authority to contract for the critically-needed around-the-clock pouring schedule in that Hobbs’, by its actions during an apparent near-crisis situation, held out its agents as having authority to speak for Hobbs in agreeing to the new schedule.

Inasmuch as the trial court’s judgment was predicated upon and sustainable under the principle of apparent authority, we do not choose to address other related principles which may have application to the circumstances of this case, such as- estoppel or ratification of an agent’s unauthorized acts. See 2 Fla.Jur.2nd Agency and Employment §§ 56, 58; Spurrier v. United Bank, 359 So.2d 908 (Fla. 1st DCA 1978); C.Q. Farms, Inc. v. Cargill, Inc., 363 So.2d 379 (Fla. 1st DCA 1978); United Chemicals, Inc. v. Welch, 460 So.2d 540 (Fla. 1st DCA 1984).

In their third point, appellants challenge the trial court’s adverse ruling on appellants’ claim that Southern was not entitled to the full amount awarded because Hobbs, so it says, did not actually receive the 11,695 cubic yards of concrete for which it was billed. Hobbs sought to impeach the credibility of Southern’s delivery tickets (which showed the quantity delivered as well as the date and time of delivery) by presenting expert testimony based, in part, upon estimates as to what the project called for. On the other hand, evidence relied upon by Southern included the delivery tickets which were signed by Hobbs’ people when each delivery was made, and the testimony of Southern’s drivers whose testimony included descriptions of the substantial quantities of concrete wasted by Hobbs. And, of course, Hobbs was responsible for the concrete it ordered even if, upon the truck’s arrival at the project site, Hobbs was, for some reason, unable to accept all of the truck’s contents. The issue of the quantity of concrete delivered was a question of fact for the trial court, and the court’s resolution of the issue in favor of Southern is clearly sustainable under the evidence.

AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.

      . Prior to the August 15, 1982, payment, Southern’s general manager, not having received the purchase order which Hobbs’ project superintendent had mentioned in July when the parties reached the agreement on the overtime arrangement, called Hobbs’ project manager who advised that he thought that a purchase order had been issued and said he would look into it. That telephone conversation and the subsequent August 15 payment for overtime apparently allayed any concern on the part of Southern regarding the lack of a purchase order.

      . Hobbs’ vice-president and general manager, Mr. Wenick, who was among the company’s personnel with actual authority to enter into major agreements on behalf of Hobbs, was fully aware of the negotiations going on between Hobbs’ agents and Southern's general manager for around-the-clock pourings. Wenick was also aware of the rate which had been agreed upon in the negotiations for around-the-clock pourings and that such pourings commenced shortly thereafter. Wenick knew that it would be necessary to reach agreement on the new pouring schedule in order to meet the completion deadline and avoid liability for breaching its contract with the City including substantial penalties in the range of $13,000 per day.


text:
    PRESTRESSED SYSTEMS, INC. and Claims Center, Appellants/Cross-Appellees, v. James E. GOFF, and Division of Workers’ Compensation, Appellees/Cross-Appellants.
    No. AY-184.
    District Court of Appeal of Florida, First District.
    Dec. 26, 1984.
    H. Jack Miller of Miller, Hodges & Ka-gan, Miami, for appellants/eross-appellees.
    Irving E. Dunn of Dunn & Johnson, Miami, for appellees/cross-appellants.
   PER CURIAM.

We affirm the award of nursing or attendant care in the amount of $200 per week to claimant’s mother. We interpret this award as affording attendant care only while claimant is domiciled at home receiving care, and shall cease when claimant enrolls full-time at Northwest Dade County Mental Group Home.

We find appellee/claimant’s cross-appeal without merit.

AFFIRMED.

ERVIN, C.J., and BOOTH and THOMPSON, JJ., concur.


text:
    John Lee LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. AZ-249.
    District Court of Appeal of Florida, First District.
    Dec. 26, 1984.

      John Lee Lucas, in pro. per., for appellant.
    Jim Smith, Atty. Gen. and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

This is another appeal spawned by sentencing guidelines.

Lucas appeals from the trial court’s denial without hearing of his Fla.R.Cr.Pr. 3.850 motion. He asserted several grounds which he claims tainted his plea of guilty and entitles him to have his judgment, sentence and guilty plea set aside. We believe one of the grounds has merit and reverse.

Lucas’ motion was, in part, based upon ineffective assistance of counsel. He alleged that, prior to the entry of his guilty plea, he inquired of his attorney regarding the applicability of sentencing guidelines since, although the offense was committed prior to the October 1, 1983, effective date of guidelines, sentencing would be after October 1. The motion alleges that his attorney advised him that he had no right to be sentenced under the guidelines but that the State had the option in that regard. Lucas further alleged that his attorney’s patently erroneous advice induced him to plead guilty in that, had he known that he had the right to be sentenced (whether after trial or plea of guilty) under the sentencing guidelines scheme, he would not have pled guilty.

The portions of the record which we have before us as attachments to the trial court’s order do not necessarily refute Lucas’ allegations regarding the attorney’s advice. In fact, an inference can be drawn from the attachments that defense counsel herself may have been under the erroneous impression that Lucas was not entitled to elect to be sentenced under the guidelines, which is contrary to the provisions of Section 921.001(4)(a), Florida Statutes (1983). The following colloquy occurred between defense counsel and the court prior to the entry of the defendant’s guilty plea:

[DEFENSE COUNSEL]: Your Honor, I might also add this is not a guideline ease.
THE COURT: The Information in the case was filed June 24, the date of the alleged offense is June 3, 1983, and he is not electing to be sentenced pursuant to the guidelines?
[DEFENSE COUNSEL]: Your Honor, he is not.

Prior to the entry of the guilty plea, Lucas and his attorney signed a plea form. Paragraph one of the printed form recites, “My sentence has been negotiated in this case in that I will be sentenced to.” Immediately thereafter was the handwritten notation, “30 years with a minimum mandatory of 3 years. This is not a guidelines sentence.” During the plea dialogue, the following colloquy occurred between the court and the defendant:

Q I have in my hand a plea of guilty and negotiated sentence form number three. Have you had a chance to read this form?
A No, sir, she read it to me.
Q Do you understand it?
A Yes, sir, I understand what she read to me.
Q Do you have any questions about anything that she read to you from this form?
A No, sir, I don’t.
Q Paragraph number one of this form states my sentence has been negotiated in this case and that I will be sentenced to thirty years with a minimum mandatory of three years and that you are not electing to proceed under the sentencing guidelines.
Has anything else been promised to you?
A No, sir.
Q Is that your understanding of the sentence in this case?
A Yes, sir.

Did the defendant, when he entered his plea of guilty for a negotiated sentence, know that he had a right to be sentenced under the sentencing guidelines if he wished to so elect? As noted, the form signed by the defendant said, “This is not a guidelines sentence.” One cannot determine whether the intent of that statement was: (1) that it is not a guidelines sentence because (as Lucas says his attorney erroneously advised him) the defendant had no right, to. elect to be sentenced under the guidelines or (2) that it is not a guidelines sentence because the defendant decided to forego an election to be sentenced under the guidelines in favor of the negotiated sentence. Further, the trial judge’s reading to the defendant of paragraph one of the form (as noted above) cannot be regarded as remedying the plea deficiency in this case.

We conclude that the allegations of the defendant’s 3.850 motion may entitle the defendant to relief from his guilty plea and sentence. The portions of the record attached to the trial court’s order do not, for the reasons noted above, refute the defendant’s allegations. We hasten to add that we do not now hold that the defendant is entitled to have his judgment, sentence and guilty plea set aside. The defendant is entitled, at this point, only to an evidentia-ry hearing. For all we know, the defendant’s allegations regarding the advice he received from his attorney as to his entitlement to be sentenced under the guidelines may not be true. The evidentiary hearing will afford the opportunity to explore this and any other relevant questions under the criteria enunciated in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

With respect to the other grounds raised by the defendant in his motion, we find that the trial court did not err in denying the same without hearing.

Affirmed in part and Reversed in part and Remanded for further proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ. concur.

      . We note that, in reading to the defendant paragraph one of the form which the defendant had signed, the court did not read the latter portion verbatim, an occurrence which itself introduces further ambiguity or confusion.

      . The criteria established in Strickland do not differ significantly with those set forth by the Florida Supreme Court in Knight v. State, 394 So.2d 997 (Fla.1981). See Adams v. State, 456 So.2d 888, 891 (Fla.1984); Downs v. State, 453 So.2d 1102 (Fla.1984).


text:
    SEASCAPE RESTAURANTS, INC., Appellant, v. VAN D. COSTAS, INC. d/b/a Custom Pools and Spas, Appellee.
    No. 83-1729.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.

      Stanley Hendricks, J. Geoffrey Pflugner, and Beth E. Antrim-Berger of Dent, Pflug-ner, Rosin & Hendricks, Sarasota, for appellant.
    Robert C. Widman of Nelson Hesse Cyril Smith Widman & Herb, Sarasota, for appel-lee.
   PER CURIAM.

Appellee (Custom Pools) agreed to create a “mystical entrance” to the Magic Moment Restaurant which was owned and operated by appellant (Seascape). The parties entered into a written agreement which provided for payment as follows:

$22.50 per hour, per man. Truck charges: Dump Truck, $22.50 per hour, Loader, $15.50 per hour. Total labor & materials Plus 15% overhead, Custom Pool labor. Plus 20% profit on subs and materials.

As the work proceeded, the parties had various disagreements. Custom Pools ultimately sued Seascape for monies remaining due under the contract. Seascape counterclaimed for damages for inferior work plus other relief. The court ultimately entered judgment for Custom Pools in the sum of $22,910.75.

Seascape raises only one point which has merit. As part of the billing upon which the court made its award, Custom Pools invoiced for the services of Payton (cement work), Long (carpentry), and Marceau (masonry) as Custom Pool labór, thereby charging an hourly rate plus 15% overhead. Actually, these parties were subcontractors who had charged Custom Pools much less for their services. Therefore, Custom Pools was only entitled to reimbursement for their charges plus a 20% profit.

The judgment is reversed, and the case is remanded for entry of a reduced judgment which will reflect the balance owing to Custom Pools according to the analysis set forth above.

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


author: SCHEB, Acting Chief Judge.

text:
    Jeanne Carter YOHN, a/k/a Jeanne Carter Lake, Appellant, v. STATE of Florida, Appellee.
    No. 84-560.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.

      Jerry Hill, Public Defender, and David Dwiggins, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant appeals her sentences imposed pursuant to the sentencing guidelines. Fla.R.Crim.P. 3.701.

In December 1981 the trial court placed defendant on probation for three years for the offense of grand theft. On November 15, 1983, an affidavit of violation of probation was filed against defendant. Thereafter, from December 1983 to January 1984, numerous informations were filed charging defendant with five counts of grand theft and two counts of obtaining property by worthless checks. Defendant pled nolo contendere to all the above charges and came before the court for adjudication and sentencing on March 8,1984. The court adjudicated defendant guilty of all charges and sentenced her under the guidelines to concurrent two and one-half year terms of imprisonment.

Defendant argues that the score-sheet used by the court was computed incorrectly. This incorrect computation, defendant contends, resulted in a sentence in excess of the correct recommended guidelines range. We agree.

The trial court’s completed guidelines scoresheet showed a total of thirty-eight points, which would have resulted in a sentence of community control or twelve to thirty months incarceration. Defendant contends, and the state agrees, that the total score should have been only thirty-four points. This would result in a sentence of “any non-state prison sanction.” Thus, the court erred in sentencing defendant to concurrent two and one-half year terms of imprisonment.

The state argues that we should nevertheless affirm defendant’s sentences, because the trial court intended to depart from the guidelines due to defendant’s violation of probation. The record does not support this argument and, in fact, the judge even stated that “the [cjourt does not intend to sentence her to the maximum, but intends to sentence her in accordance with the sentencing guidelines.”

Finally, we note that the trial court applied a credit ranging from forty-three to 128 days against each of the defendant’s sentences for the time she spent in county jail before sentencing. Defendant relies on Blackwell v. State, 449 So.2d 1296 (Fla. 2d DCA 1984), and Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984), in arguing that the court should have awarded the maximum credit of 128 days against each sentence, since they were all to run concurrently. Contrary to the state’s position, defendant can raise this point on direct appeal and is not limited to seeking correction through a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982). Nevertheless, defendant’s reliance on Blackwell and Martin is misplaced. Those cases are distinguishable in that each involved credit time against concurrent sentences resulting from incarceration on multiple charges. Here, however, defendant was charged at different times with a series of offenses for which she was incarcerated. See § 921.-161(1), Fla.Stat. (1983). Cf. Shepard v. State, 459 So.2d 460 (Fla. 3d DCA 1984); Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984); Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983), aff'd on other grounds, 456 So.2d 448 (Fla.1984); Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).

Accordingly, we vacate defendant’s sentence and remand for resentencing under the guidelines in effect on March 8, 1984, see Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984), with her score to be computed in accordance with our opinion.

DANAHY and CAMPBELL, JJ., concur.


author: HENDRY, Judge.

text:
    J. Fernando BANDERAS, Monica L. Banderas, Pablo Rodrigo Banderas, Milton R. Bengoa, Pan American Bank of Miami, N.A., P.A.P. General Hospital, Voight, Inc., a/k/a Voight Hospital, American Baptist Hospital, St. John’s Hospital, Florida Aviation Corp., Banla International Sales Corp., et al., Appellants, v. BANCO CENTRAL del ECUADOR, an agency of the Government of Ecuador, Appellee.
    Nos. 83-1477, 83-2070.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.

      Andrew C. Pavlick, Miami, Lawrence D. Felder, Fort Lauderdale, Shepherd D. Johnston, Miami, for appellants.
    McDermott, Will & Emery and Charles A. Intriago, Mark L. Yeager and Kevin T. Keating, Chicago, Ill., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

The individual and corporate defendants appeal from a final judgment entered after a non-jury trial on Banco Central del Ecuador’s (“Central Bank”) cause of action for common law fraud and damages under the Florida Racketeer Influenced and Corrupt Organizations Act (“RICO”), sections 895.-01-895.06, Florida Statutes (1981). The trial court, after making extensive findings of fact and conclusions of law, found for the Central Bank and awarded it treble and punitive damages in the amount of $12,-104,503.83, as well as other relief set out infra. We affirm the trial court’s award.

I.

Central Bank, the Ecuadorian equivalent of the Federal Reserve Bank, filed suit alleging participation by the individual and corporate defendants (with the exception of Pan American Bank which was a third-party stakeholder) in a fraudulent scheme relating to Ecuador’s medical assistance and import programs. The Ecuadorian government operated a humanitarian social program from 1976 until May 13, 1982, which was administered by the Central Bank. This program extended a favorable currency exchange rate to Ecuadorian citizens who received medical treatment in the United States; the import program extended a favorable currency exchange rate, to those citizens importing into Ecuador certain types of machinery. The claimant or his representative would submit his hospital bill and a check for payment of the bill in Ecuadorian sucres; the Central Bank then exchanged the sucres provided by the claimant into the requisite amount of U.S. dollars at a rate of 24.95 sucres per dollar, the market rate being 28 to 45 sucres to one U.S. dollar. Central Bank absorbed the difference. The bank paid either the claimant or his representative, or paid the bill directly, or authorized payment by wire transfer through various correspondent banks in the U.S.. Central Bank alleged the defendants entered into and conducted a pattern of racketeering activity in violation of the Florida RICO Act by presenting fraudulent statements for medical services by defendant hospitals which were non-existent and by presenting fraudulent invoices for machinery that was never imported into Ecuador.

At trial, Central Bank introduced evidence and testimony and called certain individual defendants, including J. Fernando Banderas and Monica L. Banderas, his wife, as adverse witnesses. The Banderas-es refused to answer any questions, invoking their fifth amendment right to remain silent. Other evidence showed that Central Bank had begun an investigation in 1982 which subsequently disclosed that between June, 1981 and April, 1982, it had paid some 70 bills totalling $3.7 million from the fictitious hospitals for patients whose names included the individual appellants, as well as entirely fictitious persons or persons not involved in the scheme; representatives who presented the bills to Central Bank were sometimes certain individual appellants, but the names used usually belonged to actual citizens of Ecuador who were not involved in the scheme; there was a great deal of movement of funds among the bank accounts of the “hospitals” and other corporate defendants (including accounts in Pan American Bank, N.A.); the Banderases were implicated in the import fraud scheme in which six fictitious invoices paid by Central Bank totalled some $1.4 million. These monies were deposited in the Banla International Sales Corporation bank account. All checks in Ecuadorian sucres for the purchase of U.S. dollars for payment of the six fictitious invoices were drawn on the bank account of J. Fernando Banderas in Ecuador, as were some of the checks for payment under the medical assistance program. Banderas also endorsed certain checks to the “hospitals” and was a signatory, along with Monica, on certain bank accounts in the names of the corporate defendants. All individual defendants were implicated by name or by endorsement or signatory listings on bank accounts. Evidence of Central Bank’s losses was that it cost the -bank $851,131.00 plus lost interest of $87,946.00 to provide the fraudulent medical assistance benefits and that the six fictitious invoices cost the bank $367,610.00 and $38,256.00 in lost interest for the import assistance program. Total damages from the two programs amounted to $1,344,944.87. The defendants’ conduct resulted in the termination of the medical assistance program. The defendants put on no evidence in their behalf.

The trial court’s findings of fact, conclusions of law and judgment order reflected the essential facts and found the defendants had committed the acts alleged, constituting obtaining property by false personation, § 817.02, Fla.Stat. (1981); mail fraud, 18 U.S.C. § 1341 (1976); wire fraud, 18 U.S.C. § 1343 (1976); and transportation of stolen goods, 18 U.S.C. § 2314 (1976). These activities were held to constitute a pattern of racketeering activity in violation of §§ 895.03(1) and 895.03(3), Fla.Stat. (1981), entitling plaintiff to treble and punitive damages under the RICO Act. Plaintiff’s (trebled) damages of $4,034,834.00 and punitive damages of twice that amount of $8,069,669.00 were awarded as against the defendants jointly and severally, the defendant corporations were dissolved, their assets to be distributed by receivers, and Pan American Bank was ordered to deliver to plaintiff all sums in the accounts of defendants there. Damages were also awarded based on common law fraud. The court additionally concluded an adverse inference could be drawn against the Bander-ases, and another defendant, Bengoa, for failing to testify, although it did not need to rely on such inference in reaching its findings of fact or conclusions of law.

II.

Appellants raise four issues on appeal: 1) whether the civil damages provisions of RICO were improperly applied to these defendants because there was no showing that they were connected to organized crime; 2) whether the civil damages provisions were improperly applied to a mere “garden variety” fraud case; 3) whether the evidence at trial was insufficient to prove that the defendants committed the acts alleged in the complaint; and 4) whether the amount of punitive damages awarded by the trial court was excessive.- Each of these issues will be discussed, if only briefly; however, none of them has any merit.

In disposing of appellants’ first issue, we note that the question of whether application of civil RICO provisions requires a finding of a nexus to “organized crime” is one of first impression in this state. In Carlson v. State, 405 So.2d 173 (Fla.1981), and Moorehead v. State, 383 So.2d 629 (Fla.1980), both involving criminal prosecutions under RICO, a variation on this issue was raised by appellants when each attacked the statute as being unconstitutionally overbroad because it included certain misdemeanors unrelated to organized crime. Since appellants in both cases had been charged with serious crimes, the Florida Supreme Court ruled that appellants lacked standing to raise the argument and thus, it did not reach the question of whether a connection to organized crime was required. The closest the Florida Supreme Court has come to a pronouncement on this subject is Bowden v. State, 402 So.2d 1173 (Fla.1981), another criminal RICO prosecution, where the court, in rejecting appellants’ attack on the statute as unconstitutional because it imposed strict liability without requiring criminal intent or knowledge, stated:

By requiring a continuity of criminal activity as well as a similarity and interrelatedness between these activities, the target of RICO Act prosecutions will, be, appropriately, the professional or career criminal and not non-racketeers who have committed relatively minor crimes.

Id. at 1174 (e.s.) We believe that the court in Bowden could have used the more restrictive term “member of organized crime” had it intended to so limit the target of the statute. Instead, the court appropriately focused on the nature of the activities rather than the status of the violators.

The Florida RICO Act, promulgated in 1977, is nearly identical to the federal RICO statute, 18 U.S.C. §§ 1961-1968 (1970), passed as Title IX of the Organized Crime Control Act of 1970. Thus, we can also look to a wealth of material on the federal RICO statute for guidance on this issue. The legislative history shows that Congress was clearly concerned, during the drafting of this bill, with the constitutional problems associated with trying to limit the statute’s target to “organized crime” only; that is, that the statute would not survive attacks on the grounds that it was unconstitutionally overbroad or that it created status crimes. See 116 Cong.Rec. 18,918-14; 35,204; 35,343-46 (1970), reprinted in 1970 U.S. Code Cong. & Ad. News 4007. Status crimes, related as they are to the old English bills of attainder, are especially disfavored. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (state cannot make drug addiction a crime); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (state cannot make being a “gangster” a crime). Secondly, Congress deliberately made the scope of the statute as broad as possible “to avoid opening loopholes through which the minions of organized crime might crawl to freedom.” See Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984); 116 Cong. Rec. 18,940 (1970). Congress chose the only course available to it which would effectuate the broad purpose of the statute without creating serious constitutional issues. It imposed enhanced sanctions for the types of activities which were characteristic of “organized crime”. 116 Cong. Rec. 18,940. Thus, all persons who engage, over a period of time, in activities which Congress has defined as being “racketeering activities” are subject to criminal prosecution or civil litigation under RICO.

Against this background, it is now well established in the federal courts that it is not necessary to prove a nexus to organized crime in order to obtain damages in a private civil RICO suit. Battlefield Builders, Inc. v. Swango, 743 F.2d 1060, 1063 (4th Cir.1984); Alexander Grant & Co. v. Tiffany Industries, Inc., 742 F.2d 408, 413 (8th Cir.1984); Sedima S.P.R.L. v. Imrex Co., Inc., supra, 741 F.2d at 492; Alcorn County, Mississippi v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1167 (5th Cir.1984); Owl Construction Co. v. Ronald Adams Contractor, Inc., 727 F.2d 540, 542 (5th Cir.1984); Sutliff, Inc. v. Donovan Companies, Inc., supra, 727 F.2d at 654.

Appellants’ second argument, that the trial court permitted Central Bank to turn a “garden variety” fraud case into a treble damage civil RICO action is, paraphrasing Mr. Justice Cardozo, to spread the study of horticulture to unaccustomed fields. United States v. Constantine, 296 U.S. 287, 299, 56 S.Ct. 223, 228, 80 L.Ed. 233, 241 (1935) (Cardozo, J., dissenting). We cannot accept appellants’ argument. The statute makes no ‘distinction between levels or degrees of fraudulent activity. See § 895.02(l)(a)16. Thus, courts are not in a position to decide whether certain frauds are “garden variety” subject only to simple compensatory and possible punitive damages, and whether other frauds are “exotic arrangements” meriting the full range of enhanced penalties available under RICO. Schacht v. Brown, 711 F.2d 1343 (7th Cir.), cert. denied, — U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983). Fraud is not so easily parsed.

Section 895.02(4) defines “pattern of racketeering activity” as:

[Ejngaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.

This case fits precisely within the parameters of the statute. This was not a technical securities or business fraud. This was a well organized, on-going, systematic, criminal scheme devised by appellants to defraud the government of Ecuador — their own government.

At some time prior to June, 1981, the individual appellants and Florida Aviation Corp. (FAYCO) and Banla formed a conspiracy for the express purpose of carrying out this scheme. In furtherance of this scheme, these appellants created four fictitious “hospitals” in three different states (Florida, Texas and Missouri). Appellants sent “statements”, in medical terminology, on invoices which they caused to be printed in the names of these non-existent hospitals. They sent seventy of these statements over the course of thirteen months, which the Central Bank paid in good faith. The bank didn’t realize there was a problem with the medical assistance program until the spring of 1982 when an employee at Southeast Bank noticed that the address listed for St. John’s Hospital corresponded to a vacant lot. Appellants earned over $851,000.00 on a few dollars invested in printing and a medical dictionary. Innocent banks were drawn into the scheme. As a result, there were also violations of the federal mail and wire fraud statutes. At the same time, these appellants were perpetrating the import fraud in which they used their expertise in international sales to fill out the requisite paperwork and obtain the necessary license so that it appeared as if the goods actually had been imported into Ecuador. That scheme netted them over $351,000.00. Those checks were deposited in accounts belonging to Banla International Sales Corp. — a further violation of the Florida RICO statute. As a result, this case presents one version of precisely the sort of activity that should, without controversy, fall within the statute’s application.

Appellants next argue that the evidence produced at trial was insufficient to prove that the individual defendants committed the alleged acts. We disagree. The trial court found that there was substantial, competent evidence to prove that the appellants engaged in all of the complained of acts in furtherance of the scheme and conspiracy. We will not disturb these findings on appeal. Rollins v. Phillips, 444 So.2d 1160 (Fla. 3d DCA 1984); Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983).

Because of appellants’ refusal to testify, there was little direct evidence, but substantial circumstantial evidence, which linked these appellants with the conspiracy; that is to say, there was almost no direct evidence tending to prove that these appellants, as opposed to people posing as them, opened bank accounts, sent fictitious hospital bills to the Central Bank and deposited monies fraudulently received. “Such direct evidence is not indispensible for it is beyond peradventure that circumstantial evidence is also quite sufficient to prove a case.” Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So.2d 891, 893 (Fla. 2d DCA 1983), pet. for rev. denied, 447 So.2d 885 (Fla.1984).

The strongest direct evidence came from Johnny Wall, a defendant who was voluntarily dismissed during the presentation of appellee’s case in chief. Mr. Wall, an employee of FAVCO, made an in-court identification of J. Fernando Banderas and testified that on one occasion Mr. Banderas had given him an envelope to deliver to Southeast Bank. The envelope contained an authorization to pick up a check from the bank. Mr. Wall picked up .a check in the amount of $61,596.16 payable to St. John’s Hospital, signed for it, and gave it to Mr. Banderas. Other witnesses identified Mr. Banderas as being linked to FAVCO and Banla. An employee of Southeast Bank testified to two telephone conversations she had with a man who identified himself as Fernando Banderas. In the first, he stated that he represented St. John’s Hospital and inquired why the hospital had not received payment of a bill from Central Bank. Later, she telephoned Banla and again spoke with a man who identified himself as Fernando Banderas.

The circumstantial evidence consisted of the testimony of an expert handwriting analyst, Edward Whittiker, Commander of the Metro-Dade Police Department’s Crime Laboratory Bureau. Mr. Whittiker examined five original ink signature cards bearing the signatures of “J. Fernando Bander-as” and “Monica L. Banderas”. He then compared these signatures to the signatures on corporate reports of FAVCO and BANLA, checks, invoices and other documents bearing their signatures and found that they were the same. Thus, the same two people opened two accounts for Voight Hospital, a personal account for Fernando Banderas and Monica L. Banderas, and a corporate account for FAVCO and one for Banla, and also signed FAVCO and Banla corporate records and documents. Therefore, appellants’ sub silentio suggestion that perhaps there were phantom people signing the Banderases’ names on everything in sight is ludicrous and is not to be believed.

Appellants Milton R. Bengoa and Pablo Rodrigo Banderas did not appear at trial at all but were represented by counsel. Mr. Bengoa also refused to answer questions at his deposition, exercising his privilege against self-incrimination. Mr. Bengoa maintained a personal bank account into which Central Bank checks payable to St. John’s Hospital were deposited. A number of checks payable to two currency exchange houses in Quito, Ecuador were written on this account. Pablo Banderas was a signatory on the Voight Hospital account and the P.A.P. General Hospital account. Both Bengoa and Banderas presented photo identification when they opened their respective accounts.

Based on the foregoing, we find that there was sufficient substantial, competent evidence to prove that appellants were the perpetrators of the fraud.

Appellants’ final issue on appeal, that the punitive damages award is excessive, is without merit. Punitive damages, which are permitted in section 895.05(7), are appropriate where fraudulent conduct is accompanied by malice, moral turpitude, wantonness, willfulness, or reckless indifference to the rights of others. Walsh v. Alfidi, 448 So.2d 1084 (Fla. 1st DCA 1984). They are to be measured by the enormity of the offense. Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039 (Fla.1982).

Appellants’ contention that the award must bear a relationship to the compensatory damage award, a “rule of thumb” approach limiting punitive damages to two or three times the compensatory damages, is simply wrong. The law is clear that although punitive damages must bear a relationship to the fact of injury or invasion of legal right, that is, there must have been some injury for which compensatory damages-were assessed, they need not bear a reasonable relationship to the amount of actual damages awarded by the jury. Smith v. Vining, 407 So.2d 1048 (Fla. 3d DCA 1981).

Finally, it is proper to set aside a punitive damages award if the manifest weight of the evidence shows that the amount of punitive damages assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the conduct. Arab Termite & Pest Control v. Jenkins, supra, 409 So.2d at 1043. In finding that the manifest weight of the evidence in the record supports this award, we set out the trial court’s conclusion of law to show the true dimensions of this case:

This court further concludes that the trebling of the compensatory damages of the Central Bank is an insufficient award to do justice in this case. From its inception, the scheme and conspiracy of the defendants was clearly and purely criminal. These defendants defrauded their own government and fellow citizens, and in doing so, they jeopardized, if not destroyed, humanitarian programs that were instituted by a developing nation for the betterment of its populace. In committing this fraud and conversion, the defendants acted willfully and wantonly, utilizing innocent banks in the State of Florida, as well as corporations formed under its laws. Accordingly_

Ecuador’s medical assistance program, which helped Ecuadorian citizens obtain medical care in the United States, was halted on May 13, 1982, following the discovery of the appellants’ fraud.

The judgment appealed is AFFIRMED.

      . The direct cost amount represents the difference in U.S. dollars between the sucre value, at the free market rate of exchange, of the payments made to the fictitious hospitals and the amount of sucres received by Central Bank from the fictitious patients’ representatives.

      . Many courts find it useful to cite to the legislative history as a way of showing, either approvingly or disapprovingly, the legislative intent behind a statute remarkable in its scope and penalties. Compare United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 60 L.Ed.2d 246 (1981) with Sedima S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2d Cir.1984). Commentators also do exhaustive searches of legislative history when writing on the subject of RICO. Cf. Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennet v. Berg, 58 Notre Dame L.R. 237 (1982); Note, Civil RICO: The Temptation and Impropriety of Judicial Restriction, 95 Harv.L.R. 1101 (1982).

      . To be sure, some federal courts have expressed deep concern over the breadth of the RICO statute. See Sedima S.P.R.L. v. Imrex Co., Inc., supra, 741 F.2d at 487 (“It [RICO] has ... led to claims against such respected and legitimate ‘enterprises' as the American Express Company, E.F. Hutton & Co., Lloyd’s of London, Bear Stearns & Co. and Merrill Lynch, to name a few defendants labeled as ‘racketeers’ in civil RICO claims resulting in published decisions.”) The statute certainly has been put to uses which Congress may not have envisioned. See Dan River, Inc. v. Icahn, 701 F.2d 278 (4th Cir.1983) (defensive use of RICO to stave off hostile corporate take-over). Some commentators have suggested removing whole areas of the law, securities, for example, from RICO’s purview as a way of limiting the statute’s scope. See Note, Civil RICO and "Garden Variety" Fraud — A Suggested Analysis, 58 St. John’s L.R. 93 (1983). While all of this is very interesting, it still remains the case that it is not the judiciary's role to weigh the costs involved in applying the enhanced penalties under this statute and then to search for ways to modify the plain language in order to narrow its scope. That remains, as always, the duty of the legislative branch. Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir.1983).

      . It is not clear from the record whether FAVCO and Banla were legitimate corporations used to hide or "launder" the money received through the fraudulent activities or whether they were illicit enterprises created before the inception of the scheme to serve the same purpose. Either way, the two corporations fall under the definition of "enterprise” in section 895.02(3).


author: ORFINGER, Judge.

text:
    SUMMIT POOL SUPPLIES, INC., Appellant, v. Philip W. PRICE, as personal representative of the Estate of John W. Beresford, Deceased, Appellee.
    No. 83-1558.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.

      Michael T. Kovach, Inverness, for appellant.
    George H. Anderson III, John Crider, P.A., Crystal River, for appellee.
    Douglas L. Stowell, Mang & Stowell, P.A., Tallahassee, for amicus curiae, Fla. Funeral Directors Ass’n.
   ORFINGER, Judge.

We are confronted with the issue of whether a corporate creditor of a decedent may file its own written statement of claim in the estate proceedings, or whether such claim may be filed only by an attorney at law licensed to practice in this state. We hold that the statement of claim may be filed by the corporate creditor, and reverse the order of the probate court holding to the contrary.

Appellant, by its corporate president, filed a $250.00 claim in the estate for work performed for decedent. Appellee, as personal representative, filed a motion to strike the claim on the sole ground that the claim was void ab initio because it was presented by a corporation and not signed by an attorney at law. At the hearing, at which appellant was represented by counsel, the court granted the motion and struck the claim.

Section 733.703, Florida Statutes (1983), states, in pertinent part:

Form and manner of presenting claim.
—A creditor shall file with tire clerk a written statement of the claim, indicating its basis, the name and address of the creditor or his agent or attorney, and the amount claimed. The claim is presented when filed.

While the statute does not define “creditors,” it does define “claims” as liabilities of the decedent, whether arising in contract or tort, or otherwise, and funeral expenses. Fla.Stat. .§ 731.201(4) (1983). The word “creditor” is generally defined as a person to whom a debt is owing by another person, who is the debtor. Black’s Law Dictionary, (rev. 5th ed. 1979). Thus a creditor is one who holds a “claim.” Appellee insists that we should construe section 733.703 to mean that individual creditors may file a claim in proper person but, because corporations may not practice law, corporations may file their claims only through an attorney.

We reject this argument for two reasons. First, there is nothing in the statute itself which suggests that interpretation. It is a matter of common knowledge that “claims” may be held by corporate creditors as well as by individuals. The statute makes no distinction; it merely refers to creditors]. Section 733.212, Florida Statutes (1983), requires the personal representative to publish a notice of administration which, among other things, requires all interested persons to file with the court, within three months of the first publication of the notice, all claims against the estate. Section 1.01(3), Florida Statutes (1983) defines “persons” as including corporations. Read in pari materia with section 733.703, these statutes permit corporate creditors as well as individual creditors to file their claims in the estate. We thus see no statutory basis for appellee’s position.

Moreover, the filing of a statement of claim against an estate is not an appearance in court or the filing of a “pleading” and therefore is not the practice of law. The filing of a statement of claim in an estate proceeding requires no action by the court. It is merely a procedural step in the administration of an estate whereby the personal representative is advised, within the statutorily limited time, who the creditors are and what their claims amount to. Thus, the filing of a statement of claim is nothing more than presenting a bill to the personal representative in the manner required by the statute.

Because a statement of claim by a creditor is not a pleading or a court appearance, and because nothing in the statute proscribes the filing of a statement of claim by a corporate creditor, it was error for the probate court to strike appellant’s claim for that reason alone. We reverse the order striking the claim and remand the cause to the trial court for further proceedings.

REVERSED and REMANDED.

DAUKSCH, and COWART, JJ., concur.

      . This court has held that generally a corporation may not appear in court "in proper person” and represent itself, nor may a corporate officer, not an attorney, sign a pleading on behalf of the corporation. Daytona Migi Corporation v. Daytona Automotive Fiberglass, Inc., 417 So.2d 272 (Fla. 5th DCA 1982). An exception to this general rule is found in the Rules of Summary Procedure (RSP), 7.050(2) by virtue of which a corporation may represent itself in actions in the county courts where the demand or the value of the property claimed does not exceed $1,500.00. Although we do not decide this case on this basis, it would be illogical to require the appellant to have an attorney file its $250.00 claim against the estate when the appellant could, under the Rules of Summary Procedure, then file its action against the estate without the use of an attorney.