author: LARRY G. SMITH, Judge. NIMMONS, Judge,

text:
    DIVISION OF CORRECTIONS, a State Agency, State of Florida, Appellant, v. Mrs. H.W. WYNN, Appellee.
    No. AP-323.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.

      Jerrold K. Phillips, Brooks, Callahan & Phillips, Tallahassee, for appellant.
    Joel S. Perwin, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellee.
   LARRY G. SMITH, Judge.

We affirm the judgment, pursuant to jury verdict, for damages sustained by ap-pellee as the result of the crime of rape committed by Robert Lee White, a work release inmate under the supervision of the Florida Department of Corrections. Appellant asserts error in the trial court’s rulings allowing certain testimony by plaintiff-ap-pellee’s medical expert, and in allowing ap-pellee to introduce the tape-recorded “confession” given by White shortly following the commission of the crime. Wé conclude that there was no abuse of discretion in ruling on the expert’s testimony, and that the error in admitting the tape recording» was harmless. Appellant’s third point, improper jury argument, was not preserved for review.

At the trial, plaintiff called as a witness Dr. Dorothy J. Hicks, M.D., who was qualified as an expert to testify concerning the “rape trauma syndrome.” In her testimony Dr. Hicks pointed out that it is extremely important for the recovery of rape victims that they have the understanding of the people who surround them, and that others acknowledge that a rape victim is a victim of a violent crime, not a responsible party. She explained the pattern of recovery for rape victims and the different stages they go through. On cross-examination, defense counsel asked her if the victim’s knowledge that the rapist was incarcerated would expedite the victim’s recovery. On redirect examination, plaintiff’s counsel asked the doctor whether it would “help or hurt” Mrs. Wynn to have the opposing lawyer in the case suggest that the rapist was going to appear in court and challenge the validity of the rape. There was no objection to this question, and Dr. Hicks answered it. After a few further questions, Dr. Hicks was asked the following question by plaintiff’s counsel: “Let’s get back specifically to the defense being structured and the witness being deposed right up until the eve of trial, with the idea that the existence of the rape is going to be challenged and that it was an issue whether or not the rape had even occurred, right up until the day of the trial.” Defense counsel’s objection to this question was overruled. Dr. Hicks then answered the question thusly:

That is a very traumatic set of circumstances, and maybe one reason that this lady has not begun to resolve this problem any better than she has, the fact that they don’t believe her, she still has to face this, and that sort of thing. It is extremely important that the patient have understanding. The rape victim have understanding that rape is a crime and it is not one of those just off-hand sexual relationships. It is extremely important that the victim realizes that other people understand exactly how traumatic this has been, and what a shock this has been to her, and how it is going to affect her and everybody she comes in contact with.

We fail to find reversible error in the trial court’s ruling allowing the above testimony. The question was relevant to the entire line of testimony, namely, the nature of the trauma suffered by a rape victim, and factors that may aid or retard recovery. The Department “opened the door” to this line of inquiry when it inquired of Dr. Hicks, on cross-examination, whether the fact of the rapist’s incarceration would help speed up Mrs. Wynn’s recovery. Only in that context did Mrs. Wynn’s counsel then proceed to inquire whether her recovery might be undermined (that is, extended or prolonged) by the Department's contention during this litigation that the rapist had been wrongfully incarcerated, because she had consented to the act.

Furthermore, the record fully sustains the position taken by appellee’s counsel that the Department had manifested an intention to defend the case on the grounds that rape did not occur. The fact that the Department did not allege this factual basis for its defense in its pleadings is immaterial. In answers to interrogatories filed by appellee the Department declared positively that it had information to the effect that no rape had taken place, that Mrs. Wynn knew the rapist before the alleged crime, and that Mrs. Wynn was not forcibly raped by the inmate. The Department further indicated that the source of all this evidence was the rapist himself. Mrs. Wynn also encountered questions suggestive of the same defense when deposed by the Department’s counsel prior to trial. Three days before the commencement of the trial, the Department filed its answer to the amended complaint, admitting that the rape occurred.

We cannot agree with appellant’s contention that this line of questioning in effect introduced a separate theory of recovery not raised by appellee's complaint. In our view, this testimony was closely related to the entire subject of Dr. Hicks’ testimony, and as such was simply illustrative of how the psychic and emotional trauma experienced by a rape victim is influenced by events that occur thereafter. In any event, the admission of evidence is a matter within the sound judicial discretion of the trial judge, whose decisions in this regard must be viewed in the context of the entire trial. Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982).

Appellant next contends that reversible error occurred in the trial court’s ruling allowing appellee to play to the jury the tape-recorded statement of Robert Lee White given to police officers shortly after his arrest on the rape charge. There was no showing that White was unavailable for his live testimony. We agree that the un-sworn recorded statement was hearsay. However, appellant has pointed to no fact disclosed or mentioned in the statement that could or did have a prejudicial effect in its defense of the case. Other than establishing the fact of non-consensual intercourse, which the state in its eleventh-hour answer had already conceded, it is difficult to imagine anything in the recorded statement that could possibly have been prejudicial to the Department. In fact, certain portions of the statement could easily be viewed as adverse to appellee. Despite appellant’s contentions to the contrary, we can find no basis for the claim that the statement could be considered scandalous or inflammatory.

Neither of the alleged errors above discussed involve the introduction of evidence which, if erroneously admitted, necessarily requires reversal. Although as a general rule where error is clearly made to appear, injury is presumed to follow, this does not apply when the record affirmatively shows to the contrary. Thus it is said that if, after careful consideration of an entire record, the appellate court has no doubt that the error was harmless, affirmance is proper. Schilpp v. Schilpp, 380 So.2d 573 (Fla. 1st DCA 1980). In reviewing the record we have also given consideration to whether any of this evidence improperly admitted was pursued to the point that it was calculated to unduly excite the passions and prejudices of the jurors. Alexander v. Alterman Transport Lines Inc., 387 So.2d 422 (Fla. 1st DCA 1980). This trial was marked by a great deal of contentiousness on both sides. Based upon examination of the entire record, however, the verdict of the jury was clearly correct beyond doubt. Affirmance is therefore proper.

One final point raised by appellant concerns alleged improper jury argument by appellee’s counsel. Once again, a case arises in which plaintiff’s counsel has indulged in a “comparative verdict” argument, that is, suggesting to the jury that appellee is no less entitled to recovery of a verdict than other injured plaintiffs. Ap-pellee’s counsel here named two successful plaintiffs (Carol Burnett, and “Miss Wyoming”) who won large recoveries in recent and widely publicized damage suits. This is clearly erroneous. Mallory v. Edgar, 128 Fla. 812, 175 So. 863 (1937); Wright & Ford Millworks, Inc. v. Long, 412 So.2d 892 (Fla. 5th DCA 1982). Unfortunately, as in Murray-Ohio Mfg. Co. v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980), and Hercules, Inc. v. Coto, 434 So.2d 4 (Fla. 3rd DCA 1983), there was no objection preserving this error for appellate review. Appellant has failed to demonstrate that the comments made in this case rise to the level of fundamental error.

The judgment appealed is AFFIRMED.

JOANOS, J., concurs.

NIMMONS, J., dissents with opinion.

NIMMONS, Judge,

dissenting.

I respectfully dissent The majority’s opinion, in my view, places this court’s imprimatur upon an unprecedented element of damages in personal injury cases, to wit: increased mental anguish to the plaintiff as a consequence of the vigor with which the case is defended.

The trial court allowed plaintiff’s counsel to elicit from plaintiff’s expert witness on “rape syndrome” her opinions regarding the additional emotional distress sustained by the plaintiff as a result of the manner in which the instant suit was defended including the taking of plaintiff’s deposition on behalf of defendant and the defendant’s denial up until the eve of trial that Robert Lee White raped her. Plaintiff advances the novel notion that the defendant’s thorough deposition cross-examination of the plaintiff, which examination assumed something other than the validity of her claim or truthfulness of her testimony, somehow entitled her to claim additional damages.

Affirmance of the trial court’s erroneous allowance of this kind of testimony will add a new and unwarranted dimension to personal injury cases. Henceforth, a defendant in such a case will exercise his constitutional right to defend at his peril. This court should not encourage the creation of a principle that will tend to chill a party’s free exercise of his right to defend against personal injury claims.

Appellee’s alternative argument that appellant’s trial counsel “opened the door” to plaintiff’s above-referred testimony is, in my view, totally groundless. For such proposition, appellee directs our attention to a question asked by defense counsel on cross-examination of the plaintiff’s rape expert. After the expert had opined concerning the on-going nature of the emotional distress suffered by rape victims such as plaintiff, defense counsel asked the perfectly legitimate question as to whether the plaintiff’s knowledge of the rapist’s confinement as a result of his sentence of incarceration would tend to ameliorate her ongoing emotional distress. How that question is supposed to open the door to plaintiff’s counsel for the additional inquiry referred to above is beyond me.

The error in allowing the above-referred inadmissible damages evidence cannot be regarded as harmless. It may well be that the jury placed much stock in the rape expert’s testimony regarding the additional emotional distress suffered as a result of the manner in which the case was defended. Further, I flatly reject the appellee’s assertion that appellant waived its right to assert this error on appeal because, as appel-lee says, no request was made of the trial court to use a special verdict form itemizing the various elements of damages including, presumably, an itemization for mental anguish attributable to the actions of the defendant in defending the case.

With respect to the other two points raised by appellant, I agree with the majority that the trial court’s error in admitting White’s tape-recorded statement was harmless and that the improper jury argument was not preserved for review. However, on the first point discussed above, I would reverse for a new trial. I, therefore, dissent.

      . We find that liability on the part of the Department of Corrections was established by an abundance of evidence, but since the Department has not briefed nor argued this issue, no further discussion is required. Cf., however, Newsome v. Department of Transportation and Department of Corrections, 435 So.2d 887 (Fla. 1st DCA 1983), in which this court held that the Department of Corrections is not shielded by the doctrine of sovereign immunity from liability for its negligent supervision of an inmate who left a work crew without permission and committed rape.

      . No issue has been raised as to the competency of such witness to testify as to such matters.

      . The particularly offensive question of plaintiffs counsel and the witness’ answer thereto are both quoted in the majority opinion. Immediately prior to such answer, the trial court heard extensive arguments by counsel on defense counsel’s objections to such line of inquiry. Appellant has adequately preserved its right to appeal on this issue.


source: Caselaw Access Project

author: NIMMONS, Judge.

license: Public Domain

text:
    FLORIDA SHERIFFS YOUTH FUND and Southeastern Fire Insurance Company, Appellants, v. Leatrice J. HARRELL, Appellee.
    No. AQ-101.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.
    Rehearing Denied Oct. 14, 1983.

      Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, St. Petersburg, for appellants.
    Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith, P.A., Lakeland, for appellee.
   NIMMONS, Judge.

The employer/carrier (E/C) appeal from a wage loss award to claimant. E/C’s sole point is that there was no evidence of permanent impairment under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) under the provisions of Section 440.15(3)(a)3, Florida Statutes (1981), and there was no justification for the deputy commissioner to go outside the AMA Guides to find permanent impairment. We affirm.

On July 3,1981, claimant sustained a fall injuring her back and knee. The knee injury is not an issue here as there was no permanent impairment thereto. Claimant was initially treated by Dr. Melton, an orthopedic surgeon, who testified that the last time he had seen her he did not anticipate that she would have any physical impairment although he did not rule it out. Subsequently, claimant saw another orthopedic surgeon, Dr. Gale, who found no evidence of a permanent injury.

Claimant was seen by a third orthopedist, Dr. Earp, on February 5,1982. He testified at the hearing before the deputy commissioner that his diagnosis was “chronic fibro-myositis or sprain in the sacroiliac area on the right side” as a result of her industrial accident and that by the time he first saw her she had reached maximum medical improvement. He testified that, in his opinion, she had permanent impairment of 5% to 10% to the body as a whole. However, Dr. Earp acknowledged that such impairment was not based upon the AMA Guides because she had no limitation in range of motion. Instead, he based his opinion on his own experience and on disability ratings derived from guides issued by the American Academy of Orthopedic Surgeons.

According to Dr. Earp, the permanent impairment resulting from claimant’s soft tissue injury to her sacroiliac is not covered by the AMA Guides since the Guides do not measure impairment to the back or pelvis in the absence of limitation of motion, disc lesions or fractures. The following are pertinent excerpts from Dr. Earp’s testimony:

The patient has an area of discomfort rather well localized, aggravated by activity. She will have increased problem in this area, even occasionally developing some spasm, which will then subside and then be cleared up again, usually related to activity.
And it has shown a responsiveness to local injection, as performed by Dr. Melton in his report. So that the — but on a temporary basis, not a permanent basis.
The situation as it arises here represents an impairment of the individual’s capability because of the sensitivity to stress, bending, lifting, prolonged sitting, things of that nature, that are limitations for this particular individual.
Therefore, this recurring situation with these limitations represents, in my opinion, impairment of her capability, or disability, if you prefer the term.
sfe % ⅜ ⅜⅞ ⅜ sfc
The AMA Guidelines cover absence of parts — this is in the orthopedic section now. I am not talking about other areas — covers absence of parts, fixation of joints, arthrodesis in various positions, and only within the normal range of motion, and losses of range of motion from so-called normal range of motion.
# ⅝ ⅜ ⅝: sjs ⅜
... In this instance [the AMA Guides are] particularly not appropriate because [they do] not allow for the problem of the sensitivity of tissue with stress and the recurring difficulties that these patients have. It assumes a static state only, so to speak. It is something that is never changeable.
* ⅜ * * * *
... The AMA Guides refer to fractures. The AMA Guides refer to inter-vertebral disk lesions. And the AMA Guide refers to ranges of motion.
The assumption perhaps being, in somebody’s mind, that the AMA Guide, talking about ranges of motion, that this is a static phenomenon. I submit that it is hot a static phenomenon.
And therefore with soft tissue injuries, it doesn’t truly address itself to the issue, because we are not talking about either disk lesions or fractures.

In Quality Petroleum Corp. v. Mihm, 424 So.2d 112, 113 (Fla. 1st DCA 1982), we observed:

Section 440.15(3), Fla.Stat. (1979), establishes the American Medical Association’s Guides to the Evaluation of Permanent Impairment as the temporary schedule to be used for determining permanent impairment. It appears from that statute that the Legislature did not intend the AMA Guides to remain the sole standard for determining permanent impairment, but rather envisioned the division establishing additional schedules, based on generally accepted medical standards, for determining the existence and degree of permanent impairment. To date, the division has failed to establish any permanent schedule and the American Medical Association’s Guides to the Evaluation of Permanent Impairment continues to be the only schedule authorized by the statute.

Although we have held that the use of the AMA Guides in determining the existence of permanent anatomical impairment is mandatory by virtue of the legislature’s use of the mandatory language contained in Section 440.15(3)(a)3, Decor Painting & Iowa Mutual Insurance Company v. Rohn, 401 So.2d 899, 901 (Fla. 1st DCA 1981), we have recognized certain exceptions such as when the permanent impairment is obviously visible and demonstrable to the deputy or when the particular injury was not covered in the Guides. See Rhaney v. Dobbs House, Inc., 415 So.2d 1277, 1280 (Fla. 1st DCA 1982); Paradise Fruit Co. v. Floyd, 425 So.2d 9 (Fla. 1st DCA 1982).

The evidence is undisputed that the impairment resulting from the soft tissue injury described by Dr. Earp is not covered in the AMA Guides. Under virtually indistinguishable circumstances, this Court in Quality Petroleum Corp. v. Mihm, supra, recognized that the circumstances warranted an exception to the required use of the AMA Guides. We do so as well in the case sub judice and hold that it was not error for the deputy to rely upon competent medical testimony of permanent impairment based upon other generally accepted medical standards, particularly where it was contemplated over four years ago that the AMA Guides were to be used only on a temporary basis pending adoption of a permanent schedule by the Division of Workers’ Compensation, no such schedule having, been adopted.

The deputy’s order is, therefore, AFFIRMED.

ROBERT P. SMITH and SHIVERS, JJ., concur.


author: SHIVERS, Judge. ROBERT P. SMITH, Jr., Judge, NIMMONS, Judge,

text:
    Wallyce V. VANDERGRIFF, Appellant, v. Jack C. VANDERGRIFF, Appellee.
    No. AQ-277.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.
    Rehearing Denied Oct. 21, 1983.

      John L. Myriek of Kinsey, Myrick & Troxel, P.A., Pensacola, for appellant.
    David H. Levin and Richard E. Scherling, Pensacola, for appellee.
   SHIVERS, Judge.

The issue in this dissolution action is whether the final judgment has made adequate and reasonable financial and property arrangements for the wife.

The specific questions on appeal relate to permanent alimony as opposed to rehabilitative alimony, and the sufficiency of it, the length of time for the wife’s use of the marital home, the personal property award to the wife, provisions for the wife’s health insurance, and the failure of the trial court to dispose of the parties’ savings plan account. We affirm in part and reverse in part. We affirm the provisions as to the wife’s use of the marital home and the personal property award to the wife. We reverse and remand the alimony award, the provisions for the wife’s health insurance, and the failure to divide and dispose of the parties’ Telco savings plan account.

The parties were married over 32 years. Although the wife received a degree in elementary education, her teaching certificate long ago lapsed. The wife has stayed home to raise the parties’ three daughters and has not been gainfully employed for 26 years. Her activities outside the home have included teaching at church school, helping with Southern Bell functions, and family/community service as a leader in Brownie and Girl Scouts, a room mother, a teacher’s helper, an unpaid volunteer teacher and lunchroom helper.

The husband has been employed 34 years with Southern Bell, is now an associate manager earning an annual gross salary of $36,000 — $37,000 ($3,133.34 per month). The marital home is unencumbered. The husband owes $6,500 to his credit union.

The final judgment dissolving the marriage awards custody of the 15-year-old minor child to the wife, requires the husband to pay the wife $180 monthly for the child’s support and to pay the child’s Catholic high school tuition. The judgment orders the husband to pay the wife $300 per month rehabilitative alimony for a period of three years, reserving the right to revise or extend the rehabilitative alimony.

Exclusive use of the marital home and personal property therein is awarded the wife until the child attains her majority or until the wife dies or remarries. The husband is required to pay taxes on the marital home and a lot owned by the parties, to make certain home repairs, but to receive credit for all these payments upon sale or disposition of these properties. (Although the record is not entirely clear, it is assumed the marital home is titled in both names.)

The wife makes a forceful argument for her continued use of the marital home and property therein following the child’s reaching 18, but we affirm the trial court’s discretion that the parties’ ownership of the marital home and personal property therein as tenants in common shall cease being subject to the wife’s exclusive use upon the child’s majority or the wife’s remarriage. We do this, confident that upon remand adequate support provisions will be made for the wife. We note, parenthetically, that husband is to receive credit for taxes and repairs paid by him. We assume this means that, upon sale or disposition, he will receive credit against the wife’s share for half the taxes and repairs paid by him.

We turn now to the wife’s point that she should have been awarded permanent alimony. She should have been. A husband who has been married over three decades to a wife whom he has supported, who has raised his three children, and who has no present ability to support herself, but whom he can support, should provide her permanent alimony. See Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980). Permanent alimony is used to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the parties. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) at 1201. The standard of need for the award of alimony after a marriage of some duration is the standard of living enjoyed during its course. The trial court abused its discretion in awarding rehabilitative instead of permanent alimony and in making an inadequate award of only $300 per month. See De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983). We reverse the rehabilitative alimony award with directions to award an adequate and increased amount of permanent periodic alimony sufficient for the wife’s support and in accordance with the husband’s ability to pay.

A part of the wife’s needs is health care. Although the wife suffers from high blood pressure, allergies, and a back condition, the final judgment makes no provision for the wife’s health care. The record indi-' cates that upon dissolution the wife will no longer be a beneficiary on the husband’s health, hospital and dental insurance policies. Upon remand this portion of the wife’s needs should be specifically addressed and met.

Upon remand the trial court should also address the status and/or disposition of the Telco savings account.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., J., concurs and dissents, with opinion.

NIMMONS, J., specially concurs.

ROBERT P. SMITH, Jr., Judge,

concurring and dissenting:

I agree with the court’s opinion that the record as a whole indicates a shortchanging of the appellant wife and that the judgment should be reversed for its failure to make adequate provision for her. I also share the court’s concern over the amount of alimony awarded, there being no explanation in the trial court’s judgment of the facially inadequate award of $300 per month; and I join my colleagues in calling for reconsideration of the wife’s health care needs and her claim to rights in the Telco savings account.

Yet I must respectfully disagree that, as a matter of law, the trial court must be held to have erred in awarding at this time rehabilitative alimony only, and in not awarding permanent alimony. The significant factor in this judgment, indicating the chancellor’s purpose more than any other, is his retention of jurisdiction “to revise or extend said rehabilitative alimony” within the three-year period in which those sums are to be paid. Within the context of prior decisions of this court, that provision represents a decision by the circuit court to motivate the college-trained and avocationally active wife to test and establish her financial dependence or independence, as the case may be, reserving her right to move later for extended rehabilitative or permanent alimony “upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful .... ” Barker v. Barker, 384 So.2d 925, 926 (Fla. 1st DCA 1980). See also Roberson v. Roberson, 401 So.2d 873 (Fla. 1st DCA 1981); Quick v. Quick, 400 So.2d 1297 (Fla. 1st DCA 1981). There is a view of the record evidence that would indicate a rather cavalier attitude by the wife toward rehabilitating her powers of self-support. That view of the evidence, I take it, explains both the court’s choice of rehabilitative alimony, which I regard as a wholly permissible choice, and the rather parsimonious award, which I agree needs further consideration.

Granted that there is some apparent warrant for an ironclad entitlement to permanent alimony in the Third District’s decisions cited by my colleagues, I had not understood that this court was wed to the invariable proposition that 32 years of marriage yields to a 52-year-old wife an entitlement to permanent alimony regardless of what seems to be, in appellee’s legitimate view of the record, her earning capacity and her determination not to exploit it.

Among the factors to be considered in determining the kind and amount of alimony to be paid is “[t]he contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party.” Sec. 61.08(2)(f), Fla.Stat. (1981). In appellee husband’s legitimate view of the record, which need not be recounted here in detail, the appellant wife was anything but a model partner in this marriage. On this evidence the circuit judge might have found that the wife constantly nagged and belittled her husband, committed physical violence upon him, and pointed a rifle at him and pulled the trigger. The wife’s mother, who lived with the family without the husband’s approval, contributed and still contributes financially to maintaining the home, so lessening the wife’s financial dependency even now. That the circuit judge was perhaps overper-suaded by this evidence, so shortchanging the wife, is not in my opinion cause for this court to try the case anew and award permanent alimony as though this were simply a textbook case involving a 32-year marriage, grown or nearly-grown children, and a 52 year-old wife. My colleagues seem to have discounted entirely the very factors, appropriately considered under the statute, which most influenced the circuit judge.

In these difficult cases, the financial decisions are complex and indivisible. The choice of appropriate provisions invokes the circuit court’s most sensitive and dispassionate powers of judgment. The appropriate choices of remedies vary with the circumstances. “Only our duty remains constant, which is to conceive of the alternatives as the chancellor did, if possible, and to affirm if the prescribed course of action is within the range of lawful choices under all the circumstances.” Quick, supra, 400 So.2d at 1299. Since in principle the choice of rehabilitative rather than permanent alimony was at this time a permissible one, in my view, I would sustain that choice and remand the case for further consideration of the amount of alimony and the other issues.

NIMMONS, Judge,

specially concurring.

I concur in Judge Shivers’ opinion. In Judge Smith’s concurring and dissenting opinion, he posits a view of the evidence which he suggests would support the trial court’s denial of permanent alimony. Had the trial court actually made the kinds of factual findings which such view of the evidence assumes, then I would be inclined to agree that the denial of permanent alimony would not be error. Short of such findings, however, I am of the view that the wife was entitled to an award of permanent alimony.


author: COWART, Judge. SHARP, Judge, ORFINGER, Chief Judge,

text:
    Pauline HOLLAND, et al., Appellants, v. J.M. HATTAWAY, et al., Appellees.
    No. 82-532.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1983.

      Kenneth L. Mann and Raymer F. Ma-guire, III of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellants.
    Phillip H. Logan of Shinholser, Logan, Moncrief & Barks, Sanford, for appellees J.M. Hattaway, J.R. Hattaway and R.R. Bruce.
    Marvin E. Rooks of Robison, Rooks & Owen, Casselberry, for appellee Com-bank/Seminole County.
   COWART, Judge.

This case involves a contest between two land titles and the effect of a curative act (§ 95.231(2), Fla.Stat. (1981)), the recording statute (§ 695.01, Fla.Stat. (1981)) and of the Marketable Record Title Act (MRTA) (§ 712.02, Fla.Stat. (1981)).

Appellants filed a quiet title action seeking an adjudication that appellants owned Lot 2, Block B, and that appellees did not have an easement over the northerly 25 feet of that lot. Appellees defended on several theories discussed below. As appellees claim no rights by prescriptive use counsel stipulated that the entire controversy would be disposed of upon motion for a final summary judgment. The trial judge found that appellees had a “fee simple title” to an easement for road purposes over the northerly 25 feet of Lot 2 because (1) appellants’ action was barred by the statute of limitations (§ 95.231(2), Fla.Stat. (1981)); (2) ap-pellees had a marketable title to the easement under the Marketable Record Title Act (MRTA) (§ 712.02, Fla.Stat. (1981)); and (3) that appellants had constructive notice of appellees’ claim and that such notice was contained in a deed in appellants’ chain of title. This appeal resulted.

The parties claim under competing chains of title as follows:

By the deed in entry 6 dated July 2,1929, and recorded February 20, 1930, Winter Park Ferneries conveyed Lot 2, Block B, to H. Casselberry, appellants’ remote grantor. That deed conveyed the entire title to Lot 2 undiminished, unlimited and unencumbered by any easement against it. The deed in entry 12 from Winter Park Ferneries to Winter Park Gladiolus Gardens, Inc., was not only subsequent to the deed in entry 6 by which Winter Park Ferneries parted with their title to Lot 2 but it expressly excepted Lot 2. Therefore the deed in entry 12 is actually not in the chain of title of either party. Appellees’ record claim of an easement across Lot 2 commences with the deed at entry 13-24 dated May 7,1949 from Casselberry Gardens, Inc. to Besecker dated May 7, 1949, conveying adjoining Lot 1, Block B, and including the language “together with an easement for roadway purposes, to, over, and upon the northerly 25 feet of Lot 2 in said Block B.” However, on the date of its deed Casselberry Gardens, Inc., was a stranger to the record title to Lot 2 which at that time was in Lake Concord Company, Inc., another of appellants’ remote grantors. As to such easement interest the deed from Casselberry Gardens, Inc., constitutes a “wild deed” entirely outside of, and disconnected from, the chain of title to Lot 2. See Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969); City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla.1978). Therefore, if appel-lees have an easement in Lot 2 it must have some basis other than having been created by virtue of the mere execution of the deeds in entry 12 and 13-24. Before considering each of the three bases for the judgment below in favor of appellees we emphasize that this case does not involve the concept of prescription or the acquisition of title to an easement or other incorporeal hereditament by immemorial or long-continued enjoyment and use.

The first of the three legs under the final judgment is the proposition that appellant’s action for quiet title suit was barred by the “statute of limitations,” section 95.231(2), Florida Statutes (1981), which reads in part as follows:

After 20 years from the recording of a deed ... purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed ... or their successors in title.

The argument is that because appellees’ claim of an easement over Lot 2 is derived through the deeds at 13-24 from Casselber-ry Gardens, Inc., to Besecker and the deed at 26 from Besecker to Fox and the deed at 28 from Fox to Hoover and the deed at 30 from Hoover to Rissman, and those four deeds purport to convey the easement interest now claimed by appellees, and those four deeds have been of record over 20 years, the statute prohibits appellants from asserting any claim to the property against claimants under those deeds (which includes the original grantees and their successors in title including the appellees). Section 95.-231(2) must be read with section 95.231(1), of which it is a part, and when this is done it is more clear that this statute is not a traditional statute of limitation but is a curative act with a limitation provision. The purpose of such a statute is to “cure” or clear an existing title to real estate or an interest in it, of formal irregularities, that is, of clouds, doubts and suspicions against the title resulting from technical defects in the form or execution of deeds and wills executed by “the person owning the property’ by limiting the time within which such defects can be asserted to a stated time as measured from some event, such as their recording. The phrase quoted from the statute correctly indicates that the defects cured are those in conveyances and devises (muniments) in the chain of title emanating from “the person owning the property” (the true owner) and not merely a chain of conveyances emanating from a person not owning the property, i.e., the grantor in a wild deed. This alone eliminates the application of the statute to a spurious chain of title when in competition with a chain of title derived from “the person owning the property.” Here appellants and appellants’ predecessors in title have each been “the person owning the property” and the statute may remove defects in that chain of title but not in appellees’ spurious chain. However, even applying the statute to ap-pellees’ chain of “title” the result would not be different here. Under a curative statute of this type, where there is competition between two chains of title and the first title is inherently superior to the second (because the first emanates from a superior source) but the first is subject to defects covered by the statute which defects inure to the second title giving it provisional superiority over the first and the owner of the second has a cause of action to have the effect of the defects in the first made permanent by adjudication in an action to quiet title or to obtain a declaratory judgment but fails to assert such cause of action within the time limit set by the statute, then the provisional superiority of the second over the first may be destroyed by the curative effect of the statute eliminating the effect of the defects in the first. In this situation, except for defects in the form or execution of deeds and wills therein, the title with the defective muniments must be superior to the first from the beginning because the statute only cures and eliminates the detrimental effect that the defects cause but it does not otherwise strengthen one title or weaken the other. Such curative statutes may thus perfect an imperfect title but they were not intended to, and do not, create a right, title or interest in real property where it did not theretofore exist. The removal of defects enhances the quality of an existing title claimed through the defective deed or will but the mere elimination of the defect by the statute does not serve to create a title in the grantor of a defective deed where it did otherwise exist nor does it cause the deed to pass to the grantee a better title than the grantor had. This blurry aspect of such a curative act is sometimes expressed and argued in terms of whether the deed sought to be cured by the statute was, or was not, a “void” deed, it being assumed that the act does not benefit a “void” deed. Accordingly, cases have held that this statute, and its predecessor, did not benefit a title based on a forged deed because it was void, Wright v. Blocker, 144 Fla. 428, 198 So. 88 (Fla.1940), or a deed attempting to alienate homestead property contrary to constitutional and statutory limitations because such a deed was ineffectual, futile and void, Reed v. Fain, 145 So.2d 858 (Fla.1962), or a deed from a county void for failure of the county to vacate a public road in the manner required by statute, Boys Work Inc. v. Gale, 321 So.2d 435 (Fla. 1st DCA 1975). For this reason the parties to this appeal argue as to whether or not a “wild deed” is a “void deed.” Classifying a wild deed into the classic legal contract distinctions between “valid,” “void” and “voidable” is not an indispensable or necessary step in considering the effect of this curative statute as applied to a “wild deed.” We hold that if a wild deed has defects in its form or execution, section 95.231(2), Florida Statutes (1981), would, after the applicable time limitation, bar one from asserting such defects as against the grantees of the wild deed or their successors in title but that, except insofar as the quality of the title of such grantees or their successors is improved by the removal of such defects, the statute does not improve their title and, if they had no title, the statute does not serve to create a title in them.

The trial court also ruled that appellees’ title to their claimed easement was made marketable by the Marketable Record Title Act (MRTA).

Although MRTA has some attributes of other statutes that affect property interests (i.e., statutes of limitations, curative acts, and recording acts) it differs in material respects. Statutes of limitations generally bar causes of action after a stated time commencing when the particular cause of action accrued. Usual curative acts purport to immediately validate specific title defects. Curative acts with limitations provisions (such as section 95.231, previously considered) rectify specified title defects by barring attacks on the title based on such specified defects after a stated time running from some described event. MRTA proceeds by describing certain titles in land of record for a stated time, declares them to be of marketable quality and, with certain exceptions, undertakes to completely extinguish all other estates, interest, claims or charges as against such titles. The operative provisions of MRTA (sections 712.02 and 712.04, Florida Statutes (1981)) provide that when a person or his predecessors in title has been vested with any estate in land of record for 30 years or more, he shall have a marketable record title to such estate free and clear of all claims with the exceptions set forth in section 712.03. Therefore MRTA can even confer marketability to a chain of title arising out of a forged or wild deed. Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970).

MRTA is applied by first establishing a claimant’s chain of title and determining its root of title. Section 712.01(2) defines “root of title” as the last or most recent “title transaction” purporting to create or transfer the estate claimed and recorded at least 30 years. Marketability is being determined in this case as of the filing of this quiet title action on August 12, 1981, so appellees’ root of title is the deed at entry 26 from Besecker to Fox, which was recorded January 24, 1951, and which purports to transfer the estate claimed by appellees, which is an easement for roadway purposes over the northerly 25 feet of Lot 2. Initially MRTA appears to apply to this root of title so as to create a marketable title to such easement in appellees and to extinguish all claims of appellants and others that do not qualify as exceptions undei section 712.03. However, section 712.03(4) specifically provides as an exception:

(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.

The words “arising out of” in the above exception are undefined in the statute, are not words of ordinary legal meaning in the context used, and cause a substantial construction problem. The definition of “root of title” in section 712.01(2), recognizes that “title transactions” all purport to either “create or transfer” an estate or interest in land. Therefore, conversely, estates, interests or claims in land are either created or transferred by a title transaction; yet section 712.03(4) uses neither of the terms “create or transfer” but, ambiguously, refers to estates, interests or claims “arising out of” a title transaction. This hedging by the draftsman of this statute leaves the question: do the words “arising out of” relate only to title transactions creating estates, only to title transactions transferring an estate or does it apply to both types of title transactions? The consequences of the answer are great and, in all fairness, this ambiguity should not be in this statute. If the draftsman meant to refer only to title transactions creating estates, interests, claims, or charges he should have said “created by” rather than “arising out of.”

Existing interests in land are in law most commonly considered to be merely transferred by a subsequently executed deed, will or other title transaction and usually are not, in law, thought of as “arising out of” an instrument of conveyance such as a deed or will. A land title, under English common law, has often been likened to a bundle of sticks. The complete bundle is called an unencumbered fee simple absolute title and originally emerges from sovereignty by a grant. With exceptions based on the effect of statutes of limitations (adverse possession or prescription), tax titles, recording statutes, and MRTA, after title once issues from sovereignty, in strict real property legal contemplation, title is only transferred from grantor to grantee or devisor to devi-see. New and different estates, rights, titles and interests in land are not created by each and every deed, will or other instrument of conveyance but are created only when one with a greater title interest breaks out and conveys a lesser estate or interest, as when a fee simple absolute titleholder creates by conveyance a lesser estate such as a life estate, a qualified or determinable fee, a remainder, an easement or creates a mortgage or other lien or equitable interest against his title by appropriate instrument. A titleholder can convey all of his interest and yet create lesser interests, such as when he, in one instrument, conveys a life estate to one grantee with the remainder interest to a second named grantee. Perhaps in this sense the legislature contemplated that the effect of every title transaction is to create or raise up a “new” interest in the land in the particular grantee or devisee of that particular title transaction because they did not have an interest in the land before the title transaction “created” an interest in them but experienced land title examiners do not think in these terms. When the legal problem is one of applying MRTA in the context of two competing chains of title, the effect of construing the words “arising out of” to include only title transactions that create a new lesser estate or interest or to construe those words to also include title transactions that transfer the whole of an existing interest or estate in land could be dramatic and controlling although the substance of the difference between such title transactions is of no perceivable significance to claimants under the competing chain .of title. We are here considering the effect of MRTA as possibly establishing the marketability, and, therefore, the superiority of ap-pellees’ claim of an easement under a chain of conveyances tracing back to appellees’ root of title; however, during the 30 plus years from the recording of the Besecker deed to Fox on January 24, 1951, and the filing of this quiet title suit on August 12, 1981, there are two deeds in appellants’ chain of title that constitute title transactions which were recorded subsequent to the effective date (January 24, 1951) of appellees’ root of title. Those two deeds are the deed at entry 9 from Casselberry Utilities to M. Nasser and the deed in entry 11 from Nasser to appellants on October 7, 1980. If, within the meaning of this exception, appellants’ estate or interest in Lot 2 can be said to “arise out of” either of those two title transactions, then the exception applies and MRTA does not destroy appellants’ basically superior title as against the easement interest claimed by appellees through their spurious chain of title commencing with a wild deed.

We have thus far considered only the possible effect of MRTA on appellees’ title as improving it against appellants’ title to an easement. However, in this case MRTA also applies to appellants’ fee title and we therefore have what has been called a “classic theoretical issue in marketable title legislation:” The Problem of the Two Chains. Applying the definition in section 712.01(2), appellants’ root of title would be the deed at entry 8 from Lake Concord to Casselber-ry Utilities which was recorded August 8, 1944, and which purports to transfer the interest claimed by appellants, which is the fee simple absolute title to Lot 2, unencumbered by the easement claimed by the ap-pellees. Again it appears MRTA applies to this root of title so as to create a marketable title to Lot 2 in appellants and to extinguish all claims of appellees or others that do not qualify as exceptions under section 712.03. Here again though, as in the analysis of the affect of MRTA on appellees’ root of title we must determine the meaning and effect of section 712.03(4). Here again we find that during the 30-plus years from the recording of the Lake Concord deed to Cas-selberry Utilities on August 8, 1944 (entry 8), and the filing of this quiet title suit (suit to try title) on August 12, 1981, there are deeds in appellees’ chain of title that constitute title transactions which were recorded subsequent to the effective date (August 8, 1944) of appellants’ root of title and those deeds consist of all eight deeds in appellees’ chain of title commencing with the original wild deed in entry 13-24 from Casselberry Gardens, Inc., dated May 7, 1949, and including the final deed in entry 14-49 from Evergreen Enterprises, Inc., to appellees dated April 10,1981. However, since appel-lees’ claimed easement has its origin of record title in the deed in entry 13-24 from Casselberry Gardens, Inc. to Besecker dated May 7,1949, a date subsequent to August 8, 1944, the effective date of appellants’ root of title, it is easy to state that appel-lees’ claimed easement was created by that deed and, therefore, “arises out of” a title transaction which has been recorded subsequent to the effective date of appellants’ root of title and, therefore, the exception in section 712.03(4) prevents MRTA from applying to statutorily render appellants’ title marketable and prevents MRTA from destroying appellees’ claim of an easement in Lot 2. Of course, this does not mean that appellants’ title is not otherwise superior to appellees’ claimed easement.

It has been said that the chief purpose of MRTA is to extinguish stale claims and ancient defects against the title to real property and accordingly, limit the period of title searches. In view of this objective it would indeed be an anomaly to construe section 712.03(4), so that exception applies to exclude a title transaction recorded during an operative 30 year period which merely transfers an older genuine, main, fee simple absolute title (thereby allowing section 712.02 to make a newer inferior competing title marketable and superior to an older genuine title) but to construe that exception to include a title transaction recorded during an operative 30 year period which merely commences or “gives rise to” a wild or spurious chain of title of an easement that clouds the fee simple absolute title (thereby preventing section 712.02 from applying to improve the older genuine title by invalidating the newer spurious or wild title to a lesser interest). However, from the adoption of the 30-plus year operative period in the exception in section 712.-03(4) as well as the limitation as to that period in section 712.02, it is clear that MRTA was not intended to and does not make marketable a title as against adverse record claims that first appear, or that are created, or “arise” during, or subsequent to the commencement of, the operative 30 year period. In other words as to claims (such as that of appellees) “arising” before the 30-plus year period applicable to a genuine title MRTA was not intended to benefit the genuine title (such as that owned by appellants) but that conclusion leaves open the converse question, which is: does MRTA apply to aid appellees’ inferior title which, while it arises prior to appellants’ root of title, also arises subsequent to appellants’ origin of title and is yet itself over 30 years old of record? This question occurs only because section 712.03(4) excepts not just claims arising during the 30 year period immediately prior to the time when marketability is being determined (here August 12, 1951 — August 12, 1981) but also excepts claims arising during a period going back to the effective date of the root of the title being considered.

Here, merely because there was no title transactions in appellants’ chain of title during the 7 year period between entry 8 in 1944 and August 12,1951 (30 years immediately prior to this quiet title action), appellants’ root of title (entry 8) goes back not just 30 years but 37 years to July, 1944. On the other hand, while appellees’ root of title (entry 26 — January 24, 1951) is old enough (30 plus years old) for section 712.02 to apply to make it marketable as against appellants (if some exception in 712.03 does not apply) appellees’ origin of title (entry 13-24 — May 7, 1949) is still young enough to have occurred after appellants’ effective root of title (entry 8 — August 8, 1944) thus causing the exception in 712.03(4) to apply to appellees’ claim and preventing 712.02 from applying to appellants’ title to extinguish appellees’ claim. Peculiarly this is true even though appellees’ origin of title (entry 13-24 — May 7, 1949) is, of course, older than appellees’'root of title (entry 26 — January 24, 1951) and both are far younger than, and inferior to, appellants’ origin of title which was from sovereignty.

Under usual English-American title concepts with exceptions not here material a title claimed by mense conveyances from sovereignty is superior to one that is not. Must MRTA be construed to not only fail to support that basic premise but to defeat it because the origin of the superior title is older than the root of a spurious title (causing section 712.02, when applied to both, to potentially cut off the superior in favor of the spurious) and the origin of the spurious title is younger than the root of the superior title (which under the exception in 712.03(4) prevents 712.02 from cutting off the spurious title in favor of the superior title)?

In contemplating the answer to this question one should consider two matters, viz: (1) the origin of a true superior title, being sovereignty, will always be before the origin of any spurious title relating to the same land and (2) section 712.01(2) defines root of title as the last title transaction recorded at least 30 years, and section 712.-03(4) uses that last title transaction at least 30 years of record (and not the origin of title) as pivotal in determining whether a second competing title arises subsequent to the root of a first or true title (and, hence, is preserved as an exception under section 712.03(4)) or arises prior to the root of a first or true title (and, hence, is extinguished because it is not an exception under section 712.03(4)). This means that when each of two competing titles goes back at least 30 years of record, to initially apply 712.02 and 712.04 to make both titles marketable and to then apply 712.03(4) to exclude MRTA’s beneficial effect as to one title but to give it to the other will almost always cause the contest to turn not on which is the superior title traced from sovereignty but on the fortuitous circumstance of which chain of title had a title transaction closest to, but before, the start of the operative 30 year period. This is because the title with the title transaction last next before the 30 year period will always be protected from extinguishment under 712.-03(4) as it will always be subsequent to the root of the second title while the second title may, as here, arise prior to the root of title with the last next pre-30 year root and therefore may be within the exception in 712.03(4) and may be subject to extinguishment under 712.02 and 712.04. This situation is illustrated in this case by considering the consequences if there had been any title transaction in appellants’ chain of title recorded after May 7, 1949 (the date of the title transaction at entry 13-24 from which appellees’ claim “arose” as per 712.03(4)) and August 12,1951 (the commencement of the 30 year period immediately before the filing of this quiet title suit which is “the time when marketability is being determined” (712.01(2)). Any title transaction in appellants’ title during this two-plus year period would then have been appellants’ root of title and appellees’ claim (arising in entry 13-24 — May 7, 1949) would then not have been subsequent to appellants’ root of title and would not fall in the exception in 712.03(4) and would have been extinguished by the effect of MRTA on appellants’ title. Considering that the legislative purpose of MRTA is to simplify and facilitate land title transactions and to permit persons to rely on the record title (section 712.10), it is difficult to believe the legislature intended MRTA to apply to two active competing titles and to cause one of two titles to gain superiority over the other depending solely on the random chance as to which title contains the latest title transaction over 30 years old rather than on the basis that one title traces true and sure from sovereignty while the other title was conceived only in a scrivener’s imagination and reached 30 years of age by hiding outside of the record chain of true title and by not being sooner asserted against the true title.

In overview MRTA seems to contemplate but one title and one root of title and the effect of the Act on that title. It is not readily apparent that MRTA was intended to resolve a contest between competing titles, where, as here, each of the two titles have an origin in a title transaction recorded over 30 years thus each title has a root of title and MRTA would appear to apply and make each title marketable as against the other unless one title involves some exception under section 712.03 which latter event cannot be depended upon to occur in every such case and when it does occur it may not dependably except the better or superior of the two titles.

The purpose of the exception in section 712.03(4) appears to be to prevent MRTA from destroying the rights of those who have or claim estates and interests in the land under an instrument or court proceeding recorded during the 30 years or more MRTA requires to make a title marketable, yet to permit MRTA to destroy the same rights if they are dependent on title transactions occurring prior to the last title transaction recorded over 30 years, that is, prior to the root of title. In considering the overall intent of MRTA we note sections 712.05 and 712.06 which provide a method of filing, during the operative 30 year period, a recorded notice of a claim of interest in land which prevents the noticed and claimed interest from being extinguished by the act. No such notice was filed as to claims under either of the two titles involved in this case. We also note the exception in section 712.03(6) as to persons in whose name the land is assessed on the county tax rolls. We further note the exceptions in 712.03(3) in favor of the rights of persons in actual possession. Neither side in this controversy has claimed either of these latter two exceptions. From these provisions and 712.04 we conclude that it is the intent of MRTA to free one title from all competing and adverse claims and interests which depend upon acts or title transactions occurring prior to the effective date of its root of title (those 30 or more years old) but not to defeat a current, valid, superior title notice as to which is being actively given by actual possession by an owner, by assessment of the owner on the county tax rolls or by a notice filed under 712.06 (excepted by 712.03(2)) or under 712.03(4) by title transactions recorded subsequent to the effective date of its root of title and during the 30 year operative period relating to a competing interest. This concept of notice is vital to the constitutional validity of statutes that destroy vested property rights. In the context of two competing chains of title each old enough of record to have a root of title as defined in section 712.01(2), it appears to us entirely illogical and wrong to construe the words “arising out of” to make a controlling distinction between a title transaction recorded during the operative 30 years that transfers all of the estate or interest owned by the grantor without division into lesser estates and one creating one or more lesser estates, interests, claims or charges than the grantor possessed. Both of such conveyances serve equally well to give notice of an actively asserted interest in the land in question and both serve the same purpose as a recorded notice filed under section 712.05 and of assessment on the county tax rolls under 712.-03(6). Therefore, solely in the context of two competing chains of title each over 30 years of age of record we construe the words “arising out of” in section 712.03(4) to contemplate not only the unusual occurrence of the owner of a competing and greater title creating a lesser interest during the operative 30 years but also the more common occurrence of a transfer of the whole of an existing interest during the operative 30 year period by a recorded instrument or court proceeding which constitutes a title transaction. Under this construction of the exception in section 712.-03(4) a title transaction in a competing chain of title which itself has a root of title as defined in section 712.01(2), which title transaction describes the land sufficiently to identify its location and boundaries and is recorded during the operative 30 year period applicable to the competing chain of title, constitutes adequate notice of the existence and active assertion of title of record and has the same effect as either a notice filed under section 712.06 (an exception under 712.03(2)) or notice from a county tax roll assessment (an exception under 712.03(6)) or notice from possession (an exception under 712.03(3)) in preventing an extinguishment of an interest in the land by sections 712.02 and 712.04. We are encouraged in this construction by the fact that an opposite conclusion would place on all bona fide owners of the true title to estates in land in Florida who are not in actual possession and whose name is not on the county tax rolls because of multiple ownership or other legitimate reason, the burden of filing a notice under section 712.05 every 30 years or to risk loss as against competing recorded but entirely unknown and spurious claims, a result that should not, and need not, be made necessary by MRTA.

The last reason given for the judgment in favor of appellees below was that appellants had constructive notice of appellees’ claim because such notice was contained in a deed in appellants’ chain of title. This is a reference to the fact that one deed in appellants’ chain of title, being the deed in entry 9 from Casselberry Utilities to M. Nasser, reserved “unto the grantors” an easement described by metes and bounds over the north 26.74 feet of Lot 2 “for so long as the ferneries operated by Casselberry Gardens, Inc., a Florida corporation, continue in existence at a location Westerly across U S 17 — 92 from the above described property.” While this reserved easement is over approximately the same land as the easement claimed by appellees it is not the same easement claimed by appel-lees. It differs in quantity, quality, time of creation and ownership. The right of way easement claimed by appellees was clearly intended to be in rem and appurtenant to, and for the benefit of, Lot 1 which is one of its termini. The deed at entry 9 reserved an easement only to the grantor, Casselber-ry Utilities, and created an easement in gross the continuing existence of which depended upon a contingency which appellees admit no longer exists. Nevertheless appel-lees insist that the reservation of this easement in a deed in appellants’ chain of title put appellants on “constructive notice” of appellees claim to an easement notwithstanding that appellees’ claimed easement was contained only in deeds not in appellants’ chain of title. This argument is fallacious, immaterial, and irrelevant to any legal issue dispositive of this case. Constructive notice is a concept that applies only when each of two antagonistic title claims are based on two conveyances from the same source. In that situation, under recording statutes, the second or subsequent conveyance is considered superior to the first conveyance unless the first has been recorded in the public records where it gives constructive notice to a subsequent purchaser for value thereby preventing the latter from being a purchaser without notice of the first conveyance. The principle of constructive notice would be relevant to a holding that appellees’ claim of an easement was superior to appellants’ title only if ap-pellees’ claimed easement traced to, and was contained in, the conveyance in entry 12 from Winter Park Ferneries, which it does not, and, further, if the deed in entry 12 had been executed and recorded before the conveyance in entry 6 to appellants’ predecessor in title, which it was not; then, and only then, might appellees’ claim be superior to appellants’ claim because in that event appellees’ claim would be superior and appellants and their predecessors in title would have had constructive notice of it. However, these are not the facts in this case. Florida’s recording statute, section 695.01(1), Florida Statutes (1981), basically provides that, as between two successive purchasers, the first has priority if the second had notice of the first at the time the subsequent interest was acquired. Notice can come from (1) actual possession and occupancy of the property, (2) actual notice of the interest of the first purchaser or notice of sufficient facts to put a reasonable person on such inquiry as would have lead to actual notice or (8) constructive notice of matters recorded in the public records and in the subsequent purchaser’s chain of title. However, recording statutes do not support or validate a wild deed or any conveyance of an interest that the grantor does not have, except only to the extent a subsequent purchaser for value without notice may acquire rights under the recording statute as against a prior purchaser from the same source or such prior purchaser’s successors. In this case appel-lees are not subsequent purchasers for value without notice of the interests of appellants or of appellants’ predecessors in title and, hence, the recording statute and its concept of constructive notice avails appel-lees nothing. Appellants’ title to Lot 2 is superior to appellees’ right to an easement over it not because appellants had no notice, actual or constructive, of appellees claimed easement, but because appellants’ title to Lot 2 is derived from and through a chain of title from sovereignty while appellees’ claim originates with the wild deed at entry 13-24 from Winter Park Gladiolus Gardens, Inc., which company had no title. In fact, the recording statute applies here only in favor of appellants since even if appellees could claim title back through the deed in entry 12 (and, they, to the same source as appellants) that deed was executed March 27, 1930, after the deed in entry 6 was recorded on February 20, 1930, and, therefore, claimants, such as appellees, under the deed in entry 12 would have constructive notice of the recorded deed at entry 6 and would always be inferior to parties, such as appellants, claiming through the deed at entry 6.

The final summary judgment is reversed and the cause remanded with instructions to enter a final summary judgment in favor of appellants in usual form in quiet title actions, finding that appellees’ claimed easement is invalid and constitutes but a cloud against appellants’ title and removing that cloud and adjudicating appellants’ title good as to such claimed easement and enjoining appellees from further assertion of such easement.

REVERSED AND REMANDED.

SHARP, J., concurs specially with opinion.

ORFINGER, C.J., dissents with opinion.

SHARP, Judge,

concurring specially.

I concur with Judge Cowart’s conclusions in this case: (1) section 95.231(2), Florida Statutes (1981), is not applicable to make appellees’ title superior to appellants’; (2) the easement created by the deed in entry number 9 of appellants’ chain of title is not the same as appellees’ easement and, therefore, it does not constitute notice of appel-lees’ claim; and (3) section 712.03(4), Florida Statutes (1981), prevents the appellees’ root of title, recorded on January 24, 1951, from ripening into a superior title under the Marketable Record Title Act (MRTA).

Within the necessary 30 year period after 1951, when appellees’ easement was recorded, the fee absolute, free from any reference to an easement, was transferred in appellants’ chain (entry number 9, June 1, 1961). Although appellants’ predecessor in title did not transfer the appellees’ easement, the transfer of the servient tenement without mention of the easement constituted an estate “arising out of a title transaction” which was recorded subsequent to ap-pellees’ root of title, because it was contrary and in derogation of appellees’ easement. Indeed, had the easement been a valid one, the conveyance of the fee without excepting the easement would have breached the grantor’s warranty of title. Therefore, the transfer of the fee under appellants’ chain at entry number 9 operated to prevent ap-pellees’ root of title from becoming superior to appellants’ fee under MRTA. § 712.-03(4), Fla.Stat. (1981).

That, I think, ends the matter. Appellants need not, in turn, prevail under MRTA. If there was a perfected root of title in this chain, they could have prevailed on that basis. But as Judge Cowart concludes, because of the intervening transfers of the easement in appellees’ chain, the appellants also do not have a perfected root of title under MRTA. However, appellants do have a superior chain of title traced back to “the sovereign,” and appellees only have a wild or spurious chain. Under these circumstances, the law prior to MRTA applies. The superior title (appellants’) prevails.

ORFINGER, Chief Judge,

dissenting:

It seems clear that appellees have only a wild deed on which to base their claim of easement, but it has been held that the Marketable Record Title Act (MRTA) confers marketability upon a chain of title based on a wild or forged deed, when such deed has been on record for not less than thirty years. Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970).

Appellants have a good record chain of title to the underlying fee and MRTA is not applicable or required to make their title good. The question, however, is not whether appellants have good record title, but whether this title is burdened (has become servient) by a permanent easement for road purposes over the north 25 feet of Lot 2, Block B, in favor of Lot 1, as the dominant estate, owned by appellees. If we conclude, as apparently we all do, that the wild deed to appellees constitutes a sufficient root of title to support the easement under MRTA, the remaining question is whether the application of MRTA is prevented by section 712.03(4). The deeds in appellant’s chain of title recorded after the root of title create no “estates, interests, claims or charges.” These deeds merely convey the fee which appellants already had. Neither does any greater estate, interest, claim or charge arise out of those deeds, because each such conveyance is subject to the claim of the easement even without specific reference to it. Similarly, this easement, as an incorporeal hereditament, passes with each conveyance of the dominant estate because it runs with the land, even in the absence of specific reference to the easements in conveyances of the dominant estate. Therefore, in the absence of any disclaimer, each deed in appellant’s chain of title subsequent to the deed purporting to create the easement must be deemed to be subject to the already recorded grant of easement and cannot be considered as a “title transaction” as defined in section 712.01(3) as the deeds pertain to the easement, because these instruments do not purport to affect the title to the easement in any way whatever. The conveyance of the fee is not inconsistent with the existence of the easement, but is subject to it.

The purpose of MRTA is to simplify and facilitate land title transactions by allowing persons to rely on a record title described in section 712.02, subject only to the exceptions in section 712.03, and shall be liberally construed to effectuate its purpose. Section 712.10. See also ITT Rayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla.1977); City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla.1978). I would affirm.

      . See Gay Bros. Constr. Co. v. Florida Power & Light Co., 427 So.2d 318 (Fla. 5th DCA 1983); Crigger v. Florida Power Corp., 436 So.2d 937 (Fla. 5th DCA 1983).

      . See generally Day, Curative Acts and Limitations Acts Designed to Remedy Defects in Florida Land Titles, 9 U.Fla.L.Rev. 145 (1956).

      . The effect of a curative act on an inferior title is like cleaning up an inferior animal to compete with a superior one: when cured of its fleas, ticks and mange it certainly is better than it was before but it will still lose in competition with a basically superior animal.

      . If “void” means only that an instrument is ineffectual to accomplish its apparent intended purpose and it is assumed that the grantor in a warranty deed intends to convey good title to the real property interest described therein, then a “wild deed” is a void deed because a “wild deed” by definition is a deed from a grantor who had no apparent record title and therefore cannot convey one. However, if “void” refers only to that which has absolutely no legal effect and which can never have any legal effect, then a wild deed is probably not a void deed because even an apparent “wild deed” may have certain legal consequences, such as, (1) being the basis for a cause of action for contractual breach of warranty; (2) as being sufficient to pass an after-acquired title; (3) as color of title under some statutes of limitation (see § 95.16, Fla.Stat.); (4) as will be discussed below, as being a “title transaction” and a root of title under section 712.01(2), Fla. Stat.; (5) as being a conveyance to a good faith purchaser for value as may defeat a superior but unrecorded title under recording acts, and, perhaps as having other legal effect.

      .As a matter of interest we note that if section 95.231(2) applied to the four deeds in appellees’ title (entries 13-14, 26, 28 and 30) that were recorded for over 20 years prior to this lawsuit, so as to bar appellants from asserting any claim to the exclusive ownership of the northerly 25 feet of Lot 2 against appellees, as sue-cessors in title under those deeds; then the same statute would likewise apply to the four deeds in appellants’ title (entries 6, 7, 8 and 9) that were recorded for over 20 years prior to this lawsuit so as to also bar appellees from asserting any claim to the northerly 25 foot of Lot 2 against appellants, as successors in title under those deeds. For this reason alone, except for removing stated defects in instruments in both of two competing chains of title, this statute is not helpful in resolving basic conflicts in two competing chains of title especially when, as here, the statute would apply to both titles.

      . See generally Cochran, The Root of Title Concept or How to Use the Florida Marketable Record Title Act, 52 Fla.Bar J. 287 (1978); Moorhouse, The Marketable Record Title Act and The Recording Act: Is Harmonic Coexistence Possible?, 29 U.Fla.L.Rev. 916, 932-44 (1977). For a good outline of the title search required in applying MRTA, see Wilson v. Kelley, 226 So.2d 123, 127 (Fla. 2d DCA 1969).

      . However, actually MRTA would appear to apply to titles to affect and effect marketability continuously from the effective date of the act. See State Dep’t. of Natural Resources v. Contemporary Land Sales, Inc., 400 So.2d 488 (Fla. 5th DCA 1981).

      . In a request for admissions appellants requested appellees to admit that appellees’ “root of title” was the deed at entry 13-24 (Cassel-berry to Besecker). Appellees admitted that deed was “a” root of their title but claimed there may be others. Both parties were apparently treating the term “root of title” as descriptive rather than as defined in section 712.-01(2). Under that section a chain of title has but one “root of title” and it is not necessarily the origin of the chain of title. Both parties were in error in this instance because the deed at entry 26, not the deed in entry 13-24, “is the last title transaction [in appellees’ chain of title] to have been recorded at least 30 years prior to the time when marketability is being determined.” § 712.01(2), Fla.Stat. (1981).

      . We have carefully considered whether an easement for access appurtenant to a parcel of land is an “estate in land” as that term is used in section 712.02 and have reluctantly concluded that it is because the term “estate” includes all interests in land inheritable at common law and an easement appurtenant (perhaps as distinguishable from an easement in gross) was considered an incorporeal hereditament and hence an estate in land and inheritable. Considering the purpose of MRTA and the fact that normally the title to land is now held in one estate and interests such as easements constitute claims and encumbrances against that one title it is unfortunate that section 712.02 is so broad as to include and perfect not only the one fee simple absolute title but also includes and perfects easements and other lesser title interests which as a practical matter constitute but claims and encumbrances that cloud and detract from the one fee simple absolute title the perfection of which is, or should be, the very purpose of a marketable record title act.

      . Boyer & Shapo, Florida’s Marketable Title Act: Prospects and Problems, 18 U.Miami L.Rev. 103, 117 (1963).

      . Section 712.03(6) excepts from MRTA
      (6) rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of three years after the land is last assessed in such person’s name.
      Normally this exception should eliminate the problem of MRTA applying to both of two competing chains of title each recorded at least 30 years because, in the absence of a total omission or a double assessment for 30 years, the county tax roll would assess the land only to persons in the one true chain of title to the fee and their rights would be excepted by section 712.03(6) thereby preventing MRTA from applying to a spurious chain of title. This exception (6) would appear to apply to each person in a genuine chain of title to the fee during the time that person is shown as the owner of the land on the county tax roll and each such person’s rights pass to that person’s grantees so that the effect would be cumulative, the operative 30 years would never accrue, and MRTA would never apply to benefit a spurious chain of title as against persons claiming under the true chain of title to the fee and to whom the land is being continuously assessed on the county tax rolls. However in this particular case when appellees pled section 712.02 of MRTA as perfecting their title to the claimed easement against appellants, appellants did not plead the exception in 712.03(6) by a reply to the affirmative defense and therefore the effect of 712.03(6) in this case has not been properly presented nor preserved. In the normal course of things it would appear to be appellants and appellants’ predecessors in title to whom this land would be assessed on the county tax rolls thereby preventing MRTA from extinguishing or affecting the rights of parties under that chain of title. The only reference to this point before the trial judge is contained in appellees’ memorandum of law on motion for summary judgment filed December 2, 1981, page 12, which memorandum refers to 712.03(6) and states that it is not applicable “since plaintiff and defendant are each assessed on their separate estates for tax purposes.” This assertion is neither confirmed nor disproved nor put in issue but is contrary to what would be expected in that Lot 2 would normally have been assessed to appellants and their predecessors in title while appellees and their predecessors would have been assessed as to Lot 1, and their claimed easement would normally not be assessed separately to appel-lees or their successors in title on the county tax rolls. It is unfortunate that this exception was not properly pleaded and presented below because it would be expected to completely eliminate the problem in this case.

      . Notice that this title transaction predates appellees’ root of title which, because of the definition in section 712.01(2) is entry 26.

      . See Florida Bar Continuing Legal Education, Florida Real Property Practice I § 6.2 (1965).

      . Exceptions include the effect of defects in the execution of instruments in the chain of title, recording statutes, adverse possession and tax deeds.

      . Two commentators have stated that MRTA legislation is generally not meant to apply to competing claims. C. Smith and R. Boyer, Survey of the Law of Property, 262-63 (2d ed. 1971). However, nothing in the present Florida act makes that clear. MRTA was applied in Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969), to extinguish the claim of a competing chain of title.

      . See supra note 11.

      . While this burden is less onerous than requiring a law action to be filed it is still unknown and overlooked by both lawyers and the public at large and would be burdensome and a nuisance and should be unnecessary.

      . See Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982).

      . See, e.g., Ruotal Corp., N.W., Inc. v. Ottati, 391 So.2d 308 (Fla. 4th DCA 1980) (where agent of subsequent purchaser had actual knowledge of unrecorded written lease of first purchaser, subsequent purchaser was not “without notice”). Cf. Florida Power & Light Co. v. Rader, 306 So.2d 565 (Fla. 4th DCA 1975) (where power line easement was visible and subsequent purchaser saw them, subsequent purchaser took “with notice” even though written easement was unrecorded).

      . See, e.g., Cain & Bultman, Inc. v. Miss Sam, Inc., supra note 18; Feemster v. Schurkman, 291 So.2d 622 (Fla. 3d DCA 1974); Atod, Inc. v. Coleman, 214 So.2d 769 (Fla. 3d DCA 1968).

      . See, e.g., Cahill v. Chesley, 189 So.2d 818, 822 (Fla. 2d DCA 1966) (attempted fee simple absolute transfer from one who only owns a life estate cannot be made good by section 695.01).

      . § 712.02, Fla.Stat. (1981).


author: MILLS, Judge. ERVIN, C.J.,

text:
    WINTER GARDEN CITRUS and Liberty Mutual Insurance Company, Appellants, v. Mary PARRISH, Appellee.
    No. AP-118.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Rehearing Denied Oct. 19, 1983.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, P.A., Orlando, for appellants.

      Thomas R. Mooney and Sherry L. Davis of Meyers & Mooney, P.A., Orlando, for appellee.
   MILLS, Judge.

In this workers’ compensation action, the employer/carrier appeal an order awarding claimant attorney’s fees pursuant to Section 440.34(2)(b), Florida Statutes (1979). We reverse.

The claimant, Mary Parrish, hurt her back while working for Winter Garden Citrus. She immediately began receiving temporary total disability benefits. After being notified of claimant’s maximum medical improvement, employer/carrier stopped paying temporary total disability benefits and began paying wage loss benefits. Parrish retained Mooney as her attorney. Mooney assisted in filing wage loss claims and eventually made a permanent total disability claim. Although the claimant received rehabilitation services for a short time after her injury, the employer/carrier did not attempt to investigate or rehabilitate further until more than three months after injury.

Before the scheduled permanent total disability hearing, Parrish moved to Alabama. At the initial hearing, the deputy commissioner found that the issue of permanent total disability was not ripe for adjudication. He allowed the employer/carrier 60 days to achieve Parrish’s rehabilitation. The employer/carrier voluntarily accepted permanent total disability within 60 days.

After a hearing on attorney’s fees, the deputy issued an order finding that the employer/carrier acted in bad faith by not accepting permanent total disability earlier. The deputy awarded $10,000 as a reasonable attorney’s fee.

The employer/carrier contend that the claimant did not suffer an economic loss as required by Section 440.34(2)(b). The fact that the claimant received wage loss benefits limited in duration when she should have been getting permanent disability not so limited does not amount to economic loss when the amount of each payment is the same. Recovery under Section 440.34(2)(b) requires a showing of present economic loss.

The deputy commissioner found economic loss based in part on his finding that claimant would have been entitled to supplemental benefits pursuant to Section 440.-15(l)(e), Florida Statutes (1979). Supplemental benefits however, could not have been payable until 1 January 1982, the first day of the calendar year following the date of injury and maximum medical improvement. Because the employer/carrier voluntarily accepted claimant as permanently and totally disabled on 6 January 1982, any loss of supplemental benefits is de minimis.

The claimant’s obligation to pay for the services of her attorney was not a present economic loss but merely an obligation contingent on the employer/carrier’s liability for claimant’s attorney’s fees under Section 440.34(2)(b).

Although the record reveals that a finding of bad faith was justified, claimant suffered no economic loss and for that reason cannot recover attorney’s fees.

For the above reasons, the order of the deputy commissioner is reversed.

LARRY G. SMITH, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, C.J.,

dissenting.

I respectfully dissent. The record reveals the following:

1.Claimant suffered an industrial accident on June 9,1980, and shortly thereafter temporary total disability (TTD) benefits were voluntarily paid to her.

2. She reached maximum medical improvement (MMI) on January 27, 1981; TTD benefits were then terminated, and the carrier began paying her wage-loss benefits.

3. A claim was filed seeking permanent total disability (PTD) benefits on June 23, 1981.

4. Claimant was accepted as permanently and totally disabled on January 6, 1982, retroactive to January 27, 1981, the date of MMI.

Although sustaining the deputy’s finding of bad faith, the majority reverses the bad faith attorney fee award on the theory that claimant suffered no economic loss as required by Section 440.34(2)(b), Florida Statutes (1979), first, because it considers there was only a de minimus deprivation of the supplemental benefits to which a worker permanently totally disabled is entitled by section 440.15(1), and second, because it determines an employee’s obligation to pay attorney’s fees does not constitute economic loss as contemplated by section 440.34(2)(b). In my judgment the majority’s reasoning is faulty on both counts.

Section 440.15(l)(e) clearly states that “the injured [permanently totally disabled] employee shall receive from the division additional weekly compensation benefits equal to 5% of the injured employee’s weekly compensation rate as established pursuant to the law in effect on the date of his injury, multiplied by the number of calendar years since the date of injury, .... ” (e.s.) Nowhere does the statute provide that the supplemental benefits be delayed until the next succeeding calendar year following a claimant’s achievement of MMI.

The purpose behind section 440.15(l)’s provision allowing increased compensation to a worker permanently and totally disabled was stated as follows in Department of Labor and Employment Security, Division of Workers’ Compensation v. Vaughan, 411 So.2d 294, 295 (Fla. 1st DCA 1982): “To partially offset the effects of inflation since the award of compensation benefits in earlier years, that statute directs the Fund to supplement the compensation still to be paid under such an award by adding five percent times the number of years since the date of injury.” (e.s.) The delay of payment until the next succeeding calendar year following MMI is not called for by the statute; therefore, in my judgment, the claimant has sufficiently demonstrated economic loss due to the carrier’s failure to pay supplemental benefits promptly once it is furnished reasonable notice of claimant’s PTD.

In saying the above, I am not unaware of the interpretation placed upon section 440.-15(l)(e) by the Industrial Relations Commission in Martino v. Nevins Fruit Company, IRC Order 2-3775 (April 20, 1979), holding that the statute delays a claimant’s entitlement to supplemental PTD benefits until the next calendar year following MMI. Although the decisions of an administrative body should be honored as persuasive, they certainly should not be considered by us as having binding, precedential effect. The doctrine of stare decisis primarily applies only to judicial decisions, 13 Fla.Jur.2d Courts and Judges s. 138, p. 263 (1979), and even if it were extended to administrative determinations, the doctrine should not preclude us from re-examining the law applicable to a case for the purpose of deciding whether the prior determination was soundly based. Cf. Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931). The Martino result appears to me contrary to both the plain meaning of the statute and the interpretation given it by this court in Vaughan. I would therefore decline to follow it.

I also disagree with the majority’s statement that the claimant’s obligation to pay for the services of her attorney does not represent economic loss. After a deputy has determined that an employer/carrier acted in bad faith, I am of the view that any economic loss, whether relating to deprivation caused by failure to pay compensation benefits or medical expenses, or legal fees and costs incidental to a claim filed, may constitute economic loss.

Although section 440.34(2)(b) extracts a penalty, this court has consistently placed a liberal interpretation upon the statute favoring the worker. See, e.g., Florida Erection Services, Inc. v. McDonald, 395 So.2d 203, 210 (Fla. 1st DCA 1981); Sam Rogers Enterprises v. Williams, 401 So.2d 1388, 1391 (Fla. 1st DCA 1981); Barosy v. Landscape Crane, 418 So.2d 400 (Fla. 1st DCA 1982). In Barosy, we broadly stated: “[W]here there is any economic loss due to a bad faith handling of a claim, an award of an attorney’s fee is appropriate.” Id. at 401 (e.s.). That the statute contemplates the carrier’s obligation to pay attorney’s fees was implicitly recognized by us in Sam Rogers Enterprises: “Despite the obvious deterrent effect, the attorney’s fee award of [s.] 440.34(2)(b) was clearly intended to compensate the claimant for the monetary losses sustained in trying to force some action on the claim.” 401 So.2d at 1391 (e.s.). And, “[Requiring the claimant to pay for attorney’s fees which were necessitated by the employer’s action would be inconsistent with the purpose of placing the burden of work-related injuries on the industry.” Id. Moreover, for the purpose of the economic loss provision of section 440.34(2)(b), it is not necessary that the employee establish he or she actually incurred “out-of-pocket” expenses. An obligation to pay is sufficient under the statute. See Greynolds Park Manor v. George, 423 So.2d 485, 487 (Fla. 1st DCA 1982).

In the case at bar, the deputy’s finding that the carrier acted in bad faith in not promptly paying PTD benefits has been sustained. It was necessary for the worker to employ the services of an attorney before the carrier, on notice of the claimant’s condition, converted the wage-loss benefits to PTD benefits. This was a substantial economic gain to the claimant because, without the intervention of an attorney, she would in all probability have been limited to a maximum of 350 weeks of wage-loss benefits. Section 440.15(3)(b)3b. The majority’s holding that the claimant must be responsible for the payment of her own attorney’s fees is, in my judgment, clearly at variance with the intent behind the bad faith attorney fee statute: To require the employer/carrier “to fairly and expeditiously determine its obligation to place needed benefits in the hands of the injured worker.... ” Florida Erection Services, Inc., 395 So.2d at 211. I would therefore affirm.

      . See Martino v. Nevins Fruit Company, IRC Order 2-3775 (April 20, 1979). The Martino Order is reprinted below in its entirety.
      State of Florida
      INDUSTRIAL RELATIONS COMMISSION
      Ervin Martino Appellant v. Nevins Fruit Company Florida Farm Bureau Insurance Company Florida Division of Labor, Workmen’s Compensation Administration Trust Fund Appellees : CL. No. [ XXX-XX-XXXX ] D/A 2/24/77
      Meyers, Mooney & Adler, P.A., Orlando, for Appellant
      Driscoll, Langston, Layton & Kane, P.A., Orlando, for Nevins Fruit Company and Florida Farm Bureau Insurance Company
      Thomas A. Koval, Tallahassee, for Florida Division of Labor, Workmen’s Compensation Administration Trust Fund
      ORDER
      Per Curiam.
      This cause comes before the Industrial Relations Commission on claimant’s application for review of the order of the Judge of Industrial Claims dated November 14, 1978, denying the claim for additional supplemental benefits under Sec. 440.15(l)(e), Fla.Stat.
      Appellant presents the following points on appeal:
      1. That the Judge of Industrial Claims erred in finding that the payment of supplemental benefits under Florida Statute 400.15(l)(e) [sic] should commence on January 1, 1978, rather than the date of claimant’s maximum medical improvement which was August 12, 1977.

        2. That the Judge of Industrial Claims erred in dismissing the claim for supplemental benefits for the period from August 12, 1977 through December 21, 1977.
      3. That the Judge of Industrial Claims erred in failing to award an attorney’s fee.
      The Commission dispenses with oral argument pursuant to Rule 21, W.C.R.P.
      The order on appeal finds, based upon stipulation of the parties, that the relevant facts are:
      (1) Claimant is permanently and totally disabled.
      (2) He reached maximum medical improvement on August 12, 1977.
      (3) A claim for supplemental benefits and attorney’s fees was filed on April 24, 1978, and
      (4) Supplemental benefits were paid on April 24,1978, retroactive to January 1,1978.
      The judge ruled that the Fund properly interpreted Sec. 440.15(l)(e), Fla.Stat., to mean payments of supplemental benefits should commence the first calendar year after the date of injury and attainment of maximum medical improvement, pursuant to the provision of the cited section that “[i]n case of permanent total disability ... the injured employee shall receive from the division additional weekly compensation benefits equal to 5 percent of the injured employee’s weekly compensation rate ... multiplied by the number of calendar years since the date of injury....”
      In this case, claimant reached maximum medical improvement before the 1977 calendar year elapsed. Therefore, claimant was entitled to supplemental benefits as of January 1, 1978, the next calendar year.
      As to point 3, the consistent position of the Commission has been that attorney’s fees are not awardable against the Fund.
      The decision of the Judge of Industrial Claims is affirmed.
      It is so ordered.
      INDUSTRIAL RELATIONS COMMISSION
      LEANDER J. SHAW, JR„ Commissioner
      ARTHUR C. CANADY, Commissioner
      SEAL WINIFRED L. WENTWORTH, Commissioner
      THIS IS TO CERTIFY that on this April 20,1979, the above Order was filed in the office of the Industrial Relations Commission at Tallahassee and copies were mailed to the below named person(s) at the last known address, as shown.
      INDUSTRIAL RELATIONS COMMISSION
      BY s/V. Martin Clerk


author: PER CURIAM.

text:
    SUNLAND CENTER AT MIAMI and Crawford & Co., Appellants, v. Earlene BROWN, Appellee.
    No. AP-333.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Rehearing Denied Oct. 14, 1983.
    Jerry V. Wilkey, Coral Gables, for appellants.
    No appearance for appellee.
   PER CURIAM.

This workers’ compensation claim arises from a 1977 injury. In a previous order entered October 28,1980, the deputy found that claimant had a permanent partial disability of 27 per cent of the body, based on physical impairment of 15 per cent of the body for orthopedic and neurological complaint to her back, two per cent of the body regarding her left ear, and 10 per cent of the body for psychiatric problems. In finding permanent psychiatric impairment, the deputy essentially accepted the testimony of Dr. Beasley and rejected that of Dr. Stillman, failing, however, to determine the date of maximum medical improvement. Accordingly, this court reversed and remanded for that determination, stating that the deputy might “take further evidence as may be absolutely necessary for the limited purpose of determining the date of total maximum medical improvement.” Brown v. Sunland Training Center, Division of Risk Management, 409 So.2d 1080, 1080-1081 (Fla. 1st DCA 1982).

At the hearing on remand, claimant again presented Dr. Stillman, who testified that claimant’s psychiatric impairment maximally improved by April 15, 1982— nearly two years, it will be noted, after the prior award of permanent disability benefits. Despite having rejected Dr. Stillman’s opinion in 1980, the deputy in 1982 accepted his estimate of maximum medical improvement — there being no other testimony directly answering the question on remand— and so awarded further temporary total disability benefits from July 1, 1980, until April 15, 1982.

This was error, for both the deputy’s 1980 order and this Court’s affirming judgment recognized that claimant had obtained permanency, and hence maximum medical improvement. In making a contrary finding in 1982, and in awarding further temporary benefits, the deputy exceeded the court’s mandate on remand. We therefore conclude that claimant previously reached maximum improvement on October 28, 1980, the date of the deputy’s prior order, and we vacate the 1982 award of further temporary disability benefits. This, however, is without prejudice to claimant’s right, if the facts warrant, to petition for modification of the 1980 order as we have amended it, claiming entitlement to additional temporary disability benefits.

REVERSED.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.