author: HENDRY, Judge.

text:
    Joyce S. VEINER, Appellant, v. Martin I. VEINER, Appellee.
    No. 84-1426.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 17, 1984.
    Elizabeth S. Baker, Coconut Grove, for appellant.
    Jonathan B. Alper, Miami Beach, Edward Shack, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   HENDRY, Judge.

Ms. Veiner appeals from a post-dissolution order of a successor trial court, pursuant to a remand from this court, which found that she was not entitled to a special equity award because there was no res to which it could be attached, all marital assets other than the marital home having been dissipated. We reverse.

It would serve no purpose to relate any but the most essential elements of the tortured history of this bitterly fought contest. The parties were married for 19 years. There were four children, the last of which has now reached his majority. Appellee obtained his masters and Ph.D. degrees in finance after the parties were married. Appellant holds a teaching certificate but did not work full-time during the marriage. She has continuing physical problems as a result of an automobile accident. The amended final judgment of dissolution found that appellant was entitled to a $32,232 special equity in appellee’s assets for her “contribution of substantial monies and efforts which enabled [appel-lee] to accumulate his fortune.” Other relevant portions of the order awarded appellant child support, divided the marital home and certain of the couple’s jointly held securities, and gave her no alimony. Appellee received his ship-chartering business and certain other securities outright.

The former husband appealed the special equity award to this court and appellant herein cross-appealed the denial of alimony, the amount of child support, and the award of certain jointly held property to the husband. This court’s opinion, Veiner v. Veiner, 364 So.2d 834 (Fla. 3d DCA 1978) (Veiner I), cert. denied, 376 So.2d 77 (Fla.1979), remanded that part of the judgment which awarded the special equity to the wife, stating that it was error to award a special equity without specifying the res or showing her contributions to the res, affirmed the award of certain jointly held property to the husband and the amount of the child support award, finding that the record supported the trial court’s resolution of the disputed questions of fact, and reversed a final order entered by the trial court after the case was on remand. The remand was general; no instructions were given as to what precisely this court wanted the trial court to do with the special equity issue. A motion for clarification was denied.

The original appeal in this case predates Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the landmark case which, along with Ball v. Ball, 335 So.2d 5 (Fla.1976), and Duncan v. Duncan, 379 So.2d 949 (Fla.1980), clarifies for the legal profession the various alimony and property settlement awards available in a dissolution proceeding and when these awards should be utilized. Obviously, lump sum alimony and special equity in marital property were available before Canakaris. Cf. Yandell v. Yandell, 39 So.2d 554, 556 (Fla.1949) (lump sum alimony advisable in those instances where wife may have brought to the marriage, or assisted husband in accumulating property and where husband has the ability to pay the gross award), and Eakin v. Eakin, 99 So.2d 854, 855 (Fla.1958) (special equity in property warranted when facts show a contribution of funds or services above and beyond the performance of ordinary marital duties, citing Heath v. Heath, 103 Fla. 1071, 138 So. 796 [1932]). Just as obviously, the fact that there were three Florida Supreme Court opinions in four years on the issue of special equity vs. lump sum alimony reflects the confusion surrounding these awards at the trial and district court levels.

It is clear that such uncertainty affected the initial disposition of this case. At a time when it was not at all uncommon to see courts award lump sum alimony because of the “special equities” involved in the case, cf. Yandell, 39 So.2d at 556 (“a lump [sum] award should be made only in those instances where some special equities might require it .... ”), the original trial court in this case, using the language of Yandell, found a “special equity” when its reasoning and supporting authority indicated that what it really found was justification for lump sum alimony. In short, the trial court used the wrong term of art. Appellant argues strenuously, as she has throughout all of the proceedings below, that she should not be penalized for the trial court’s use of mistaken nomenclature; that even though the trial court was wrong to say that she had a special equity in the former husband’s assets, it would have been correct if it had awarded the marital home as lump sum alimony. She is asking for the marital home now as either lump sum alimony or an equitable distribution. Appellee argues just as strongly that the issue of the marital home is res judicata as having been finally disposed of in the amended final judgment.

It is clear that if this case were coming before us for the first time, we could acknowledge that the special equity award was an error but still uphold the trial court by finding that it was really an equitable distribution, Granda v. Granda, 457 So.2d 589 (Fla. 3d DCA 1984), or lump sum alimony, Fell v. Fell, 421 So.2d 790 (Fla. 1st DCA 1982). We would not burden the trial court with a remand merely for a change in nomenclature. Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981). This court had that power at the time of Venier I also, Firestone v. Firestone, 263 So.2d 223 (Fla. 1972), but instead remanded with no instructions.

It is settled that upon remand with general directions for further proceedings, a trial judge is vested with broad discretion in handling or directing the course of the cause thereafter. City of Pensacola v. Capital Realty Holding Co., Inc., 417 So.2d 687, 688 (Fla. 1st DCA 1982); St. Joe Paper Co. v. Adkinson, 413 So.2d 107 (Fla. 1st DCA 1982). The trial court reacquired jurisdiction over the cause upon the issuance of our mandate. Murphy v. Murphy, 378 So.2d 27 (FLa. 3d DCA 1979). Obviously it had to do so or otherwise our mandate would have been an exercise in futility. The trial court clearly had jurisdiction on remand to correct its error. It had a number of options for doing so. The most logical option would have been for the trial court to award lump sum alimony in either cash or the marital home if it determined that the special equity award was an error. Or, it could have found a special equity by identifying a specific contribution and res. Both of these options, available to the trial court on remand, follow from the determination already made by that trial court after a full trial; that is to say, that appellant was entitled to a specific, equitable interest in the assets, in the amount of $32,232 (and, as a corollary, that appellee had the ability to pay).

Appellee argues that because the marital home was reduced to a tenancy in common by the amended final judgment, any subsequent action to assign to appellant his one-half interest in the marital home as lump sum alimony or an equitable distribution is barred by the doctrine of res judicata. He cites Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Haas v. Haas, 421 So.2d 664 (Fla. 3d DCA 1982); and Diejuste v. Davis, 400 So.2d 981 (Fla. 4th DCA 1981) for the proposition that a final decree in equity settles all property rights and bars any action thereafter brought by either party to determine the question of property rights. What appellee fails to understand is that there is no “thereafter” here. This cause was on remand. This was not a new proceeding which raised the status or disposition of the marital home for the first time. Appellant raised the issue of lump sum alimony in Veiner I and the opinion, while taking a position on everything else raised on appeal and cross-appeal, was significantly silent as to the issue of alimony. She has argued the issue of the marital home as lump sum alimony or as an equitable distribution throughout the extensive proceedings below. And she raises it again in this appeal. This is hardly a “thereafter.”

At the time of the final hearing in this case, there were extensive assets from which to make an equitable distribution or award lump sum alimony. Not surprisingly, those assets are now gone and all that remains is the marital home, now subject to partition since the last child has reached his majority. We believe that we uphold the intent of the original trial court’s final judgment and the internal logic of the Veiner I opinion by restating that the original trial court was trying to do equity between the parties, that the original trial court made determinations of disputed issues of fact, and that the original trial court found that appellant was entitled to $32,232 for the contributions she made which enabled appellee to accumulate his fortune. We note that our review in dissolution cases is limited. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). But we also believe that no reasonable person would agree with the result of this case as it is before us now: appellant was entitled to receive something for her contributions to the family wealth, but because that wealth, except for the marital home, is now gone, she must receive nothing. See Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984). Therefore, we find that the record supports the original trial court’s determinations and that the appellant should receive appellee’s one-half interest in the marital home as an equitable distribution.

Reversed and remanded with directions to award the marital home to appellant.

      . The husband argued that the fortune was accumulated through loans from his father, and not from her inheritance and personal injury settlement. His loans went into a successful side business, her money went into "bad" investments. Obviously, in reaching its conclusion that appellant was entitled to a $32,232 special equity, the trial court had to discount this testimony.

      . The extent of uncertainty over our mandate can be seen from the fact that six successor judges have now been involved in this case since remand, and notions of the jurisdiction of the trial court on remand have run the gamut from one judge who was going to order a trial de novo to another judge who believed that he was obligated to vacate the special equity award in its entirety and not to give the former wife anything at all.

      . Additionally, the opinion relied upon three cases, specifically Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971) and progeny, as authority for why the special equity award was error. Steinhauer created two presumptions so that in the future it would be more difficult for a trial court to find a special equity in favor of the wife. Ball v. Ball, supra, 335 So.2d 5 at 8, citing to Steinhauer, stated that those judicial presumptions were no longer necessary. Thus, at the time of Veiner I, Steinhauer was irrelevant as a legal authority on special equity.

      . In Haas, the marital home was awarded to the wife as lump sum alimony. An appeal was taken and then dismissed. Thereafter, there was litigation over whether some tools were a part of the original award. In Diejuste, the pleadings did not raise and the final judgment did not treat any issues involving property. No appeal was taken. Thereafter, the former wife brought suit to determine certain property rights. Clearly, the doctrine of res judicata is appropriate in these cases.

      . The record reflects that the assets were sold to repay the loans to appellee’s father and to pay some of Ms. Veiner's attorney’s fees.


source: Caselaw Access Project

author: SCHWARTZ, Chief Judge.

license: Public Domain

text:
    James John MARSHALL, Petitioner, v. Marilyn A. ANDERSON, Franciscus Huijing, Barry V. McCleary, Douglas W. Ribbons, Richard Richardson, Eric E. Smith, Rudolph Werner, William J. Whelan and Keith Brew, Respondents.
    No. 84-1806.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 17, 1984.

      Stern & Kneski and Peter Kneski, Miami, for petitioner.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt, Miami, for respondents.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The petitioner Marshall, a teacher at the University of Miami who was denied tenure, brought a defamation action against several then-colleagues for allegedly slanderous statements uttered during a meeting of the tenured faculty concerning his academic status. The trial court precluded discovery as to the identity of the speakers and the content of their remarks based upon the “academic testimonial privilege” recognized in EEOC v. University of Notre Dame Du Lac, 715 F.2d 331 (7th Cir. 1983), and Marshall now seeks review by petition for writ of certiorari.

The order adversely pervades the entire subsequent conduct of the cause in that it renders it virtually impossible for the plaintiff even to determine the basic elements of his cause of action — that is, who said what to whom about him. For that reason, unlike the ordinary situation in which discovery is denied rather than required, see Industrial Tractor Co. v. Bartlett, 454 So.2d 1067 (Fla. 5th DCA 1984), but as in Young, Stern & Tannenbaum, P.A. v. Smith, 416 So.2d 4 (Fla. 3d DCA 1982), which also concerned a claim of testimonial privilege, the order below satisfies the first prong of the test for the availability of review by certiorari: that the injury caused by the particular interlocutory ruling is such that eventual review by appeal would be inadequate to undo the harm. E.g., Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981); United, States Fidelity & Guaranty Co. v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981), pet. for rev. dismissed, 419 So.2d 1201 (Fla.1982). Since we conclude that the result is a departure from the essential requirements of the law, thus meeting the second prong, we quash the order under review.

The parties have extensively and ably argued the issues of whether the EEOC view that an academic testimonial privilege should be recognized in some circumstances is the correct one, and, assuming it is, whether it is nevertheless inappropriate in this case either because it is inapplicable to any defamation action or because it should not be applied to this particular one to foreclose discovery into the very heart of the asserted claim. We must resolve this case, however, without responding to any of these provocative questions because, even were we arguendo convinced of its general rectitude and particular applicability, we are simply not empowered judicially to adopt any such privilege. Directly unlike the federal courts, which under Rule 501 of the Federal Rules of Evidence are granted “the flexibility to develop rules of privilege on a case-by-case basis ... and to leave the door open to change,” Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980), the courts of Florida are statutorily forbidden to do so. The Florida Evidence Code, Section 90.501, Florida Statutes (1981), didactically states:

90.501 Privileges recognized only as provided

Except as otherwise provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to:
(1) Refuse to be a witness.
(2) Refuse to disclose any matter.
(3) Refuse to produce any object or writing.
(4) Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.

The Law Revision Council Note to this provision points out what is anyway obvious:

This section abolishes all common-law privileges existing in Florida and makes the creation of privileges dependent upon legislative action or pursuant to the Supreme Court’s rule-making power.

No statute creates an “academic privilege.” See Coralluzzo v. Fass, 450 So.2d 858 (Fla.1984) (no physician-patient privilege in absence of statute); compare Holly v. Auld, 450 So.2d 217 (Fla.1984) (applying statutory medical peer review committee privilege). Moreover, neither the rationale of EEOC — which, like all common law decisions, is based under Rule 501 upon considerations of the wisdom of the result as a matter of sound public or legal policy as perceived by the judges who must reach it — nor any reason urged or which we can discover for its creation is founded upon a provision of the United States or Florida Constitution. See Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So.2d 633 (Fla.1980). Since neither of the grounds exclusively permitted under section 90.501 thus exists, the testimonial privilege enforced below may not, as a matter of law and under any circumstances, be recognized in our state.

Certiorari granted.

      . “[W]e recognize in this case a qualified academic freedom privilege protecting academic institutions against disclosure of the names and identities of person participating in the peer review process thereby reaffirming long-standing policies of academic institutions.” [footnote omitted] 715 F.2d at 337. Contra In re Dinnan, 661 F.2d 426 (5th Cir.1981), cert. denied, 457 U.S. 1106, 102 S.Ct. 2904, 73 L.Ed.2d 1314 (1982).

      . The supposed testimonial privilege presents an entirely separate issue from the substantive conditional privilege which attaches to the defendants’ statements as ones made by persons with an interest or duty in the subject matter — that is, whether Marshall should be granted tenure— to others having a corresponding interest or duty. E.g., Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981); Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (Fla.1978).

      . Accord McKillop v. Regents of the University of California, 386 F.Supp. 1270 (N.D.Cal.1975); Zaustinsky v. University of California, 96 F.R.D. 622 (N.D.Cal.1983); contra In re Dinnan, supra; but cf. generally, In re Grand Jury Proceedings Bank of Nova Scotia, 740 F.2d 816, 817 (11th Cir.1984) (no parent-child testimonial privilege; " ‘[privileges against forced disclosure' are 'exceptions to the demand for every man’s evidence’ and are ‘not lightly created nor expansively construed, for they are in derogation of the search for truth.’ United States v. Nixon, 418 U.S. 683, 709-10, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974).”).

      . In EEOC, which involved a claim by the Equal Employment Opportunity Commission against a university that the school had denied tenure for invalidly discriminatory reasons, the court stated its holding as one which recognized the privilege "in the context of challenges to college or university tenure decisions.” 715 F.2d at 337. The present proceeding does not challenge the University of Miami’s decision to deny tenure but rather seeks damages against named individuals for defaming him in the course of that process.

      . EEOC recognizes that the privilege it established gives way to a showing of a " 'particularized need’ for relevant information,” 715 F.2d at 338; see Gray v. Board of Higher Education, City of New York, 692 F.2d 901 (2d Cir.1982) (recognizing academic privilege but holding plaintiff’s need for information outweighed college’s interest in confidentiality); see generally, Herbert v. Lando, 441 U.S. 153, 169, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115 (1979); Dade County Medical Association v. Hlis, 372 So.2d 117, 121 (Fla. 3d DCA 1979) ("Many, probably most, discovery questions may be decided by a proper balancing of the competing interests to be served by granting discovery or by denying it.”).

      . Rule 501, from which EEOC specifically draws the authority for its holding, 715 F.2d at 335, provides:
      Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

      . It should be noted that, consistent with the complete divergence between the federal rule and § 90.501, virtually the entire federal law of privilege is based upon the common law rather than either rule or statute. Thus, while the familiar attorney-client and husband-wife privileges, as well as others, were adopted by the legislature in §§ 90.502-.506, their equivalents, which were contained in Proposed Federal Rules of Evidence 503 et seq., were not approved by Congress. See discussion at 2 J. Weinstein & M. Berger, Weinstein’s Evidence: Commentary on Rules of Evidence for the United States Courts and for State Courts, § 501 [01] (1982).


author: HURLEY, Judge. ANSTEAD, Chief Judge,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant/Cross Appellee, and National Linen Service and Matthew Nelson Drummet, Appellants/Cross Appellants, v. Sheryl BAYLES and Marvin Bayles, her husband, et al., Appellees/Cross Appellants/Cross Appellees. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Sheryl BAYLES and Marvin Bayles, her husband, et al., Appellees. NATIONAL LINEN SERVICE and Matthew Nelson Drummet, Appellants, v. Sheryl BAYLES, et vir, et al., Appellees.
    Nos. 81-2039, 82-199, 82-894 and 82-883.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 18, 1984.

      D. Patrick Winburn of Gunther, Grim-mett & Whitaker, and Nancy Little Hoff-mann, Fort Lauderdale, for State Farm Mut. Ins. Co.
    James F. Dougherty, II, Miami, for Nat. Linen Service and Matthew Nelson Drum-met.
    Jay Halpern of Keyfetz, Poses & Hal-pern, P.A., Miami, for Sheryl Bayles and Marvin Bayles.
    Richard A. Purdy of Shailer, Purdy & Jolly, Fort Lauderdale, for Robert A. But-terworth and Ideal Mut. Ins. Co.
   HURLEY, Judge.

This appeal involves a question of coverage under an uninsured motorist provision of an automobile liability insurance policy. The result in this case is dictated by our recent decision in Progressive American Insurance Co. v. McKinnie, 460 So.2d 389 (Fla. 4th DCA 1984), where we held that:

Where two tortfeasors are jointly and severally liable for damages caused to a third person in an automobile accident, although one tortfeasor is uninsured, if the other tortfeasor has liability insurance with policy limits equal to, or greater than, those contained in uninsured motorist coverage possessed by the injured third person, the injured third person cannot recover under his own uninsured motorist policy.

Id. at 389, quoting from Scharfschwerdt v. Allstate Insurance Co., 430 So.2d 578, 579 (Fla. 5th DCA 1983); see also Craft v. Government Employees Insurance Company, 432 So.2d 1343 (Fla. 2d DCA 1983); Fenner v. McLowhorn, 424 So.2d 50 (Fla. 2d DCA 1982); United States Fidelity and Guaranty Co. v. Timon, 379 So.2d 113 (Fla. 1st DCA 1979); Travelers Insurance Co. v. Wilson, 371 So.2d 145 (Fla. 3d DCA 1979). Since the final judgment in the case at bar does not comport with the foregoing principle of law, we reverse.

Rather than dwell on the details of the collision, we focus our attention on the lawsuit which generated this appeal. Sheryl Bayles, the injured party, and her husband, Marvin, filed a multi-count complaint. Count one sought a declaratory judgment against State Farm, their uninsured motorist carrier. It alleged that Mrs. Bayles had been injured as a result of the negligence of an uninsured motorist, that State Farm had declined to participate in arbitration pursuant to the policy’s UM provision and, therefore, that the parties were entitled to a decree declaring coverage under the uninsured motorist provision. The Bayleses further requested the court to determine all issues of liability. Counts two and three were aimed at two additional alleged tort-feasors, both of whom had liability coverage equal to, or greater than Mrs. Bayles’ uninsured motorist coverage.

As the case progressed, the trial court granted the Bayleses’ motion for summary judgment against State Farm, finding applicable UM coverage. State Farm did not appeal this order and the case was set for trial. Thereafter, in a special verdict, the jury found that Mrs. Bayles’ injuries were proximately caused by the concurrent negligence of two joint tort-feasors, one of whom was insured and one of whom was not. As between the joint tort-feasors, the jury apportioned negligence by finding that the uninsured tort-feasor was 80% responsible and that the insured motorist was 20% responsible. Further, the jury set Mrs. Bayles’ total damages at $50,000. Based on the jury’s verdict, the trial court entered a final judgment against State Farm “standing in place of ... the uninsured motorist” and also against the insured joint tort-feasor. State Farm responded by filing: (1) a motion to set aside the verdict and judgment, (2) a motion in arrest of judgment and (3) a motion for new trial, all of which cited case authority for the proposition that if one joint tort-feasor has liability insurance coverage in the same amount as the claimant’s uninsured motorist coverage, the claimant is not entitled to collect uninsured motorist benefits even though the other tort-feasor is uninsured. The trial court denied these motions and State Farm appealed.

As a threshold point, the Bayleses contend that State Farm is estopped from contesting the verdict because of State Farm’s failure to appeal the trial court’s order finding coverage. We disagree. Here the Bayleses requested the trial court to retain jurisdiction and determine State Farm’s liability. Thus, within the context of this lawsuit, the trial court’s order finding coverage was an interlocutory and non-appealable order. See Travelers Insurance Co. v. Bruns, 429 So.2d 317 (Fla. 4th DCA 1982).

As indicated at the outset, the result in this case is mandated by our recent decision in Progressive American Insurance Co. v. McKinnie, supra. As in that case, we certify the underlying issue as one of great public importance and adopt by reference to the opinion in that case the question as framed therein. Obviously, the trial court did not have the benefit of our decision and cannot be faulted for the judgment which was entered. Accordingly, we reverse the final judgment as it pertains to State Farm. Moreover, since attorney’s fees and costs were awarded against State Farm on the mistaken premise of applicable coverage, we reverse those awards as well.

REVERSED.

HERSEY, J., concurs in the majority opinion and concurs in the special concurring opinion.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge,

concurring specially:

Although I disagree with the holding in the majority opinion and have expressed my reasons in my dissent in the Progressive American Insurance Co. v. McKinnie case, I agree that our decision herein is controlled by the decision in McKinnie.


author: HURLEY, Judge.

text:
    SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Frank A. CALUWE, Jr., and Unemployment Appeals Commission, Appellees. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Frank A. CALUWE, Jr., Appellee. Frank A. CALUWE, Jr., Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    Nos. 83-705, 83-780 and 83-1910.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 19, 1984.

      Robert L. Norton and Michael Mattimore of Hogg, Allen, Ryce, Norton & Blue, P.A., Coral Gables, and Stanley J. Niego, West Palm Beach, for South Florida Water Management District.
    Raymond A. Rea, Boynton Beach, for Frank A. Caluwe, Jr.
    John P. Booth, Tallahassee, for Unemployment Appeals Commission.
   HURLEY, Judge.

The termination of Frank A. Caluwe, Jr.’s employment with the South Florida Water Management District (District) engendered three appeals which have been consolidated on the court’s own motion. The first appeal, brought by Mr. Caluwe, challenges the District’s order that he is not entitled to reinstatement or back pay. The second and third appeals, initiated by the District, contest two orders. The first, issued by the Unemployment Appeals Commission, holds that Mr. Caluwe is entitled to unemployment benefits. The second order, entered by the Division of Administrative Hearings, holds that the District’s Corrective Action Policy (Policy) is an invalid rule because it was not promulgated in compliance with section 120.54, Florida Statutes (1983). Upon reviewing these consolidated appeals, we conclude that Mr. Ca-luwe is entitled to be made whole, i.e., he is entitled to reinstatement, unemployment compensation benefits and back pay as discussed hereafter.

I

The District initiated a corrective action policy in 1981. Basically, it lists measures (corrective actions) which the District can take to resolve employee performance problems. It divides disciplinary offenses into four categories with specific penalties for each offense. For example, “failure to follow authorized instructions” is listed as a category # 2 offense and carries a penalty of 25 points for six months. Another provision indicates that “[a] total of 100 points in effect may be cause for termination.” The District implemented this policy without following the formal rulemaking procedures of section 120.54, Florida Statutes (1983).

Frank A. Caluwe, Jr., worked for the District from 1974 until 1982. From ’74 to ’81, his work was marked by accomplishment and promotion. Job performance reports characterized his work as “excellent” and “well organized” and indicated that he had “a very good handle on all phases of the work.” With this background, Mr. Ca-luwe was promoted to a supervisory position. In 1981, however, the picture began to change; controversy and antagonism became dominant themes. Caluwe was demoted to a staff position and, more and more, found himself in an adversarial position with his supervisors. For example, Caluwe asked to see certain documents regarding the District’s insurance program. When refused, he invoked the state’s public records law and stated that “[i]f ... unable to inspect these documents ... I will have no alternative then [sic] force compliance with the public records law through other means.” His supervisor responded that Caluwe was guilty of “poor and inappropriate employee performance ...Without addressing the critical issue of whether the documents were in fact public records and, therefore, available to any member of the public, the supervisor chastised Caluwe, stating that his request was “inappropriate and represented a misuse of (Caluwe’s) position ... and misuse of the District’s paid for equipment (typing, paper, etc.) and secretary.” The record does not disclose how this dispute was resolved. Nonetheless, it exemplifies the polarization that developed between Caluwe and his employers.

A memorandum dated July 30, 1982, informed Caluwe that he had accumulated 125 disciplinary points and therefore was being discharged. The memorandum expressly referred to the District’s corrective action policy which provides that a total of 100 points may be cause for termination. Caluwe’s 125 points were broken down as follows: (1) 25 points for “uncooperativeness shown a co-worker,” and “failure to respond to a request for information from a member of the public” arising out of an incident occurring on March 17, 1982, and (2) 100 points for writing a letter dated July 21, 1982, to members of the District’s Governing Board. The latter 100 points were subdivided as follows: (a) 25 points for using abusive language towards coworkers (referring to his immediate supervisor, Charles Allen Hall, and the department head, Richard A. Rogers); (b) 50 points for using abusive or threatening language to the public or co-workers (referring to members of the District’s Governing Board who were the recipients of the letter), and (c) 25 points for failing to follow promulgated grievance and complaint procedures. The memorandum, authored by department director Richard Rogers, generally concluded:

[I] am terminating you because you have accumulated 125 disciplinary points since March 19, 1982; you have made untrue allegations of misconduct which have substantially interfered with my ability to work with you; and your actions have made it impossible to transfer you to another department.

Mr. Caluwe contends that he was in fact fired for “whistle-blowing.” More specifically, he maintains that his discharge was primarily a retaliatory gesture for two earlier letters which he sent to the Board notifying them of graft and corruption committed by District employees. Caluwe asserts that his final letter of July 21st is nothing more than a display of frustration due to the Board’s failure to respond to his earlier communications.

II

After a formal review hearing held at Mr. Caluwe’s request pursuant to section 120.57(1), Florida Statutes (1983), a hearing officer decided that only 25 disciplinary points were validly assessed against Ca-luwe, and therefore recommended that he be reinstated with back pay. Findings of fact made by the hearing officer in support of his determination are set forth in pertinent part as follows:

7. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board “urging” all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe’s department when the talk was to be held, but made no mention regarding attendance. Ca-luwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis [sic] required attendance, and because other employees had missed the meeting in prior years. He conceded, however that it was “implied” from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that “everybody (was) expected to attend.” Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed.
During the annual agency meeting Ca-luwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, “I don’t know. That’s not my job. Pat Gleason’s group handles that.” Out of “curiosity”, the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered “abuse” as a result of this as the agency claims was not confirmed.
Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the “incident” with the receptionist. On March 22 Ca-luwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency’s written code of conduct for employees. A 2e offense is defined therein as a “(f)ailure to follow authorized instructions.” In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the “incident” with the receptionist, the missed meeting, and Caluwe’s apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting.
8. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other “incidents” that had occurred during the preceding eighteen months. Attached to the letter were 28 exhibits. Among other things, Caluwe accused Hall and Rogers of “improper conduct and abuse of authority” in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency’s governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March 19. Caluwe was not disciplined for this action.

In his conclusions of law, the hearing officer stated that the 25 point assessment for the incident on March 17th could not be upheld. In addition to pleading and other technical deficiencies, the hearing officer centered his attention on the lack of proof. Specifically, he noted that the co-worker and member of the public involved in the incident were never identified and did not testify/ Moreover, the District failed to present evidence that Caluwe possessed the requested information or was in a position to obtain it. Finally, the hearing officer found that Caluwe’s uncontradicted testimony adequately explained his conduct and refuted the allegations.

Turning to the “100 point letter” of July 21, 1982, the hearing officer concluded that only 25 disciplinary points could validly be assessed against Caluwe. The hearing officer conceded that the letter contained “inflammatory, threatening and abusive language,” but nevertheless set aside the 25 points assessed for abusive language toward Caluwe’s co-workers, Messrs. Hall and Rogers, because the letter was not addressed to them, nor did it make any reference to them. Insofar as using abusive or threatening language toward the members of the Governing Board, the hearing officer concluded that 50 disciplinary points were improperly assessed because the term “public” as contained in the corrective action policy does not encompass the members of the District’s Governing Board. Since the 50 points were set aside, it is reasonable to conclude that the hearing officer did not believe that the members of the Governing Board could be deemed “co-workers” for purposes of the alleged policy infraction. The hearing officer did, however, uphold 25 points based on the fact that Caluwe sent a complaint directly to the Governing Board instead of filing it with the Employees Relation Committee as required by promulgated grievance and complaint procedures. The hearing officer found that this omission amounted to a failure to “follow any authorized instruction.”

Based on the foregoing, the hearing officer recommended that Caluwe be reinstated with full back pay because only 25 points could validly be assessed against him. In his analysis, the hearing officer correctly observed that the agency bore the burden of proving a legitimate basis for terminating Mr. Caluwe, see Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974), and that the agency was limited to offering evidence only of those offenses charged in the termination memorandum of July 30, 1982. See Department of Natural Resources v. Sheffield, 420 So.2d 892 (Fla. 1st DCA 1982).

Upon review, the Governing Board of the District modified, rejected and adopted various fact findings of the hearing officer and concluded that all 125 disciplinary points had been properly assessed against Caluwe. In accordance with the modified, fact findings, the District’s Governing Board rejected the hearing officer’s recommendations and held that Mr. Caluwe is not entitled to reinstatement or back pay.

Ill

We begin by noting that the District was without power to reject or modify the hearing officer’s findings of fact unless it first determined that the findings were not based on competent, substantial evidence, or that the proceedings in which the findings were based did not comply with the essential requirements of law. § 120.-57(1)(b)9, Fla.Stat. (1983). Furthermore, the District was not free to reweigh the evidence presented at the hearing, but rather was limited to determining whether some competent substantial evidence was presented which would support the hearing officer’s conclusions. See Feldman v. Department of Transportation, 389 So.2d 692 (Fla. 4th DCA 1980). The District’s responsibility in this regard cannot be avoided by merely labeling contrary findings “conclusions of law.” Leapley v. Board of Regents, Florida State University System, 423 So.2d 431 (Fla. 1st DCA 1982). Yet this is precisely what the District did in order to arrive at its conclusion that 125 points were validly assessed against Mr. Caluwe.

First, dealing with the 100-point letter of July 21st, the District re-imposed the 25 point assessment for using abusive language towards co-workers Hall and Rogers, presumably on ground that the reference to “poor management” in the letter amounted to an implicit reference to them when read with the knowledge that Hall and Rogers were Caluwe’s supervisors. This substituted fact finding, thinly disguised as a conclusion of law, was wholly improper. See Leapley, supra. The hearing officer found that the July 21st letter was not abusive toward Rogers and Hall because they were not identified therein, and the letter was not sent to them. Since the record discloses no legitimate basis for the District’s rejection of this finding of fact, we reverse its assessment of 25 points on this charge.

We further hold that the District erred by re-imposing 25 points for the March 17th incident. The District’s action in this regard flies in the face of other findings of fact made by the hearing officer which were inexplicably omitted from the District’s order. The hearing officer specifically found that 25 points were erroneously assessed here on two grounds: (1) the charges in the termination notice were untimely, and (2) in any case, Mr. Caluwe adequately explained his behavior and this testimony was not refuted by the District. Although the hearing officer included these points in his conclusions of law, we believe that the essentially factual nature of his analysis is controlling. The hearing officer’s finding on this issue reflects his assessment of the weight and credibility of the testimony and thus lies in the realm of factual matters on which the agency may not rightfully claim special insight. See Leapley, supra at 432, citing McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

In disregarding the hearing officer’s finding about the March 17th incident, the District abandoned its duty to state with particularity the reasons for modification or rejection of findings of fact. See § 120.57(1)(b)9; Moore v. Florida Construction Industry Licensing Board, 356 So.2d 19 (Fla. 4th DCA 1978). Moreover, the record does not show that the hearing officer’s finding was in fact unsupported by competent, substantial evidence. The District cites to no evidence showing that attendance at the meeting was mandatory and that Caluwe was aware of it, nor does it cite to any evidence tending to show that Caluwe possessed the information requested by the unidentified member of the public. Thus, even setting aside the timeliness issue, we hold that the District improperly rejected the hearing officer’s findings of fact concerning the March 17th incident and, therefore, we reinstate the hearing officer’s conclusion that 25 points were erroneously assessed.

However, we affirm the District’s assessment of 75 points. The hearing officer found that the July 21st letter included “inflammatory, abusive and threatening language” toward members of the board, yet concluded that no points could be assessed for that conduct on the theory that Board members do not fall in the category of either “co-workers” or “the public.” The District, ' however, concluded that Board members are necessarily either coworkers or members of the public vis-a-vis Mr. Caluwe, and therefore reaffirmed the 50-point assessment. We believe the District acted within its authority by so concluding, because the hearing officer’s resolution of this definitional issue essentially involved a legal determination which is not entitled to great deference. Furthermore, we cannot say that the District’s construction of its policy is wholly unreasonable and, therefore, we are not free to disturb its interpretation. Cf. Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983). We also affirm the assessment of 25 points based on Caluwe’s failure to use promulgated grievance and complaint procedures.

To summarize then, we find that only 75 points were properly assessed. Accordingly, we reverse the District’s order insofar as it upholds the termination of Mr. Caluwe based on his accumulation of 125 disciplinary points. Further, we hold that Mr. Caluwe is entitled to reinstatement and back pay.

IV

The District argues in the alternative that the discharge can be justified on non-policy grounds. In support of this position, it cites Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3d DCA 1983), which held that the right of a public employer to discipline an employee for “proper cause” under section 447.209, Florida Statutes (1979), includes the right to discipline for failure to show proper respect to the employer, even in the absence of a specific rule of conduct requiring employees to show respect. The court in Jacker explained that a requirement of respect is inherent in the employment relationship “as a matter of common sense if not [of] common law,” and on that basis upheld the dismissal of an employee who made disparaging racial remarks about his supervisor.

In this case, the District argues that Caluwe’s termination may be upheld under the authority of Jacker because Caluwe was given notice of both Policy and non-Policy grounds for his discharge. In this regard, it points to the general conclusory paragraph in the termination memorandum of July 30,1982, wherein Mr. Rogers stated that Mr. Caluwe was being terminated because of his accumulation of 125 disciplinary points, because his untrue allegations of misconduct substantially interfere with his ability to work with him, and because his “actions” have made transfer to another department impossible.

We recognize that the inflammatory language in the July 21st letter is grossly disrespectful, such that it might justify discharge in the absence of a specific rule infraction under the authority of Jacker. However, we do not believe Jacker is applicable here because the District itself determined that Caluwe’s action did not warrant discharge.

The District adopted a disciplinary code that categorized certain offenses as worthy of discharge (category #4 offenses) and other offenses as warranting less severe treatment. The District assessed Caluwe’s behavior as qualifying for the category # 3, non-discharge correction. Under the District’s own assessment of Caluwe’s behavior, discharge is unwarranted.

In effect, the District asks this court to uphold its code in assessing points against Caluwe, yet ignore the code’s classification of Caluwe’s behavior as undeserving of discharge. It would be incongruous to allow the District to invoke Jack-er in contradiction of the District’s own assessment of the appropriate sanction for Caluwe’s behavior. Therefore, we hold that Mr. Caluwe’s discharge cannot be justified on grounds of gross disrespect under Jacker.

V

In view of our conclusion that Mr. Caluwe was not fired for proper cause and is thus entitled to reinstatement and back pay, we necessarily find that he did not engage in “misconduct connected with his work” which would disqualify him for unemployment benefits under section 443.101, Florida Statutes (1983). We therefore affirm the Order of the Unemployment Appeals Commission holding that Caluwe is entitled to benefits. We note, however, that our mandate today is not intended to effect a double recovery: The amount of back-pay which the District owes to Mr. Caluwe shall be offset by the amount of the unemployment benefits already received by him. See Columbia County Board of Public Instruction v. Public Employees Relations Commission, 353 So.2d 127, 131 (Fla. 1st DCA 1977).

VI

Finally, we turn to what might be characterized as Mr. Caluwe’s peremptory attack on the termination proceedings. He argues that the District’s corrective action policy is a “rule” within the meaning of section 120.-52(15), Florida Statutes (1983). Further, he asserts that the rule/policy is invalid because it was not promulgated in accordance with section 120.54. Consequently, he contends that the termination order must be reversed because one who is discharged pursuant to the operation of an invalid rule is not terminated for proper cause within the meaning of section 447.209, Florida Statutes (1983). Cf. State v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

The District concedes that its Policy was not adopted in compliance with the procedural requirements of section 120.54, but nevertheless argues that the Policy is valid because it falls within the internal memo-randa exception of section 120.52(15)(a), or alternatively, because the District has elected to defend the policy on an ad hoc basis in disciplinary proceedings held pursuant to section 120.57, citing Florida Cities Water Co. v. Florida Public Service Commission, 384 So.2d 1280 (Fla.1980); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). We find it unnecessary to decide whether the Policy is a “rule” for purposes of section 120.52(15) because even if the District is correct in its assertion that its policy is valid, we would reach the same result on ground that the District’s Governing Board erred by upholding the assessment of 125 points against Mr. Caluwe based on its modified fact findings. As we have noted, only 75 points were properly assessed. Thus, even assuming the validity of the Policy, the discharge of Mr. Ca-luwe cannot be sustained pursuant thereto because disciplinary action is not appropriate under the terms of the policy itself until 100 points are accumulated.

Accordingly, the orders on appeal are

REVERSED IN PART and AFFIRMED IN PART.

LETTS, J., and VOCELLE, L.B., Associate Judge, concur.

      .The full text of that letter provides:
      To members of the Governing Board of the South Florida Water Management District: You are to be congratulated for your unity in not addressing controversial topics. It’s an unfortunate situation when special interests are put ahead of the public trust that has been vested in you.
      The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that’s why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It’s also interesting to note that you may be found culpably negligent in permitting acts like these to occur. Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity, to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn’t know”.
      Yours truly,
      Frank A. Caluwe, Jr.
      cc: R. Jones, Records Management

      . The propriety of imposing multiple point assessments for a single act was not challenged on appeal. Thus, we do not express an opinion on this practice.

      . Mr. Caluwe states, and the District does not dispute, that two of the individuals named have since been found guilty of the charges he levied against them by the Commission on Ethics.

      . We note, however, that the hearing officer erroneously relied on Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) as authority for applying an elevated standard of proof. As we have previously held, the preponderance of the evidence is the standard to apply in review of the sufficiency of evidence proffered to support a state agency’s discharge of an employee. Fla. Dept. of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

      . The precise text of the Board’s finding here is difficult to follow:
      [W]e conclude that the letter’s reference to "poor management,” read with the knowledge that Hall and Rogers represented the Petitioner’s managers and that Petitioner's August, 1981 (Res. Ex. 7, attached Exhibit 21) and March (Res. Ex. 7) letters to Rogers specifically complained of "poor management," were abusive to Rogers and to Hall. Therefore, the assessment of 25 disciplinary points ... is affirmed.

      . To clarify his status on reinstatement, we direct that Mr. Caluwe be reinstated without disciplinary points. The District's policy provides that assessed disciplinary points shall remain in effect for varying periods of time. In our view, it would be impermissible to allow the District's unjustified termination action to toll the applicable time periods. Thus, they have expired in Mr. Caluwe’s case and, consequently, he is entitled to reinstatement without blemish.

      . Section 120.52(15)(a) provides:
      (15) "Rule” means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term does not include:
      (a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.

      . Even if the Policy is a "rule” for purposes of section 120.52, we would not strike it down as invalid under section 120.54 because we believe that the District is entitled to defend the Policy on an ad hoc basis in section 120.57 hearings. See Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Also, we need not decide whether the Policy qualifies as an internal management memoranda exception under section 120.52(15)(a), Florida Statutes (1983), so as to be excluded from the definition of a rule. Thus, we decline the District’s suggestion to reconsider our prior holding in Webster v. South Florida Management District, 367 So.2d 734 (Fla. 4th DCA 1979).


author: MILLS, Judge.

text:
    Pacharee K. HASPER, Appellant, v. DEPARTMENT OF ADMINISTRATION and Department of Labor and Employment Security, Appellee.
    No. AW-182.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for appellant.
    Daniel C. Brown, Tallahassee, for appel-lee.
   MILLS, Judge.

Pacharee K. Hasper appeals from a final order of the Division of Administrative Hearings dismissing her petition challenging the validity of Rule 22SM-1.1-2(2), Florida Administrative Code. We affirm.

In December of 1982, Hasper, who was employed by the Department of Labor and Employment Security (DLES), requested and was granted maternity leave for the period 14 March 1983 through 15 July 1983. She was granted the requested leave by her then Division Director, Katie Tucker. By letter dated 28 February 1983, Ronald Villella, the new Division Director, confirmed to Hasper that her request for maternity leave was granted and advised her that:

We will search for a suitable position to which you can be appointed upon completion of the leave period. If successful, you can be returned from leave of absence to the new assignment. If a suitable position cannot be located, you will be returned from leave of absence for one workday and then separated from the Senior Management. Rule 22SM-1.-12.

When Hasper returned to work from her maternity leave on Monday, 18 July 1983, she was terminated. She had previously been told by Villella that her position was needed for a person who had helped with the Governor’s re-election campaign. Has-per had achieved an “outstanding” performance evaluation while serving in her Senior Management Service position.

Hasper filed a petition with the Division of Administrative Hearings (DOAH) to challenge the validity of Rule 22SM-1.12(2), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The issue before the Hearing Officer was whether that rule constituted an invalid exercise of delegated legislative authority.

By Final Order dated 21 October 1983, DOAH dismissed her petition stating that Hasper had failed to prove that the rule constituted an invalid exercise of delegated legislative authority.

The foregoing is excerpted from the Hearing Officer’s findings of fact, which we hereby adopt. Further, we adopt the Hearing Officer’s conclusions of law, which state:

CONCLUSIONS OF LAW

In pertinent part, the Department of Administration’s Rule 22SM-1.12, Florida Administrative Code, provides as follows:

“(1) An appointee may be separated from the Senior Management Service by any appropriate means, including resignation or retirement initiated by the appointee, or by separation initiated by the employing agency, or if the appointee held permanent status in the Career Service prior to appointment and if authorized by the Career Service rules, by transfer to the Career Service by reinstatement appointment.
“(2) An employing agency is authorized to terminate a Senior Management appointee at any time.”
Inasmuch as this Rule was cited both in the letter dated February 28,1983, and in the letter dated July 18, 1983, as the authority for separating [appellant] from the Senior Management Service, [appellant] is substantially affected by Rule 22SM-1.12, and has standing to challenge its validity pursuant to Section 120.56, Florida Statutes. Contrary to the contention of the [appellee], the fact that the determination reached in this proceeding alone will not result in [appellant’s] reinstatement to her former position within the Senior Management Service does not negate her substantial interest in challenging the Rule in question. The Division of Employment Security terminated [appellant], relying upon Rule 22SM-1.12 as its authority. Whether or not that termination was proper is an issue for determination in the proceeding requested pursuant to Section 120.-57(1), Florida Statutes. Still, [appellant] has been substantially affected by Rule 22SM-1.12 and is entitled to a declaration of its validity or invalidity.
[Appellant] contends that Rule 22SM-1.12, particularly subsection (2), is contrary to and conflictive with statutory authority inasmuch as it provides for no restriction on the authority of an agency to summarily terminate a senior management appointee.
In creating the Senior Management Service, the Legislature intended to create a system for attracting, retaining and developing highly competent senior-level managers. Section 110.401, Florida Statutes. The Department of Administration was given the authority to adopt and amend rules providing for “A system which shall provide for an effective method of removing from the service those managers whose performance is inadequate while, at the same time, providing protection from political abuse of employment power.” Section 110.403(1)(c), Florida Statutes.
Thus, under the statutory framework, an employee within the Senior Management Service may be removed for inadequate performance or performance which is not reflective of a highly competent senior-level manager, and may not be removed for political reasons.
Rule 22SM-1.12 does not extend, modify or conflict with the statutory language of Chapter 110, Part IV, Florida Statutes. When read in conjunction with the statute which provides its authority, the challenged Rule is susceptible of the construction that an employing agency is authorized to terminate a Senior Management appointee only for reasons of inadequacy of performance or other reasons which do not constitute a political abuse of employment power. The Rule in question does not authorize termination “for any reason.” It authorizes termination “at any time.” Presumably, that portion of the Rule is simply reflective of the fact that members of the Senior Management Service are exempt from the Career Service System and its procedural protections and time frames upon termination. That portion of the Rule does not authorize termination or separation of a Senior Management Service employee for reasons other than those permitted in Chapter 110, Part IV, Florida Statutes.
The fact that an agency may wrongfully or erroneously apply Rule 22SM-1.12 in any given situation does not invalidate the Rule. The challenged Rule certainly does not mandate an application contrary to or conflictive with the enabling legislation. The remedy for an erroneous application of Rule 22SM-1.12 is a proceeding pursuant to Section 120.57, Florida Statutes, on the issue of whether the agency properly terminated the employee for reasons of inadequate performance and not for political reasons. Just as the outcome of this proceeding could not result in the automatic reinstatement of an employee, the outcome of a Section 120.-57 proceeding does not result in an automatic invalidation of the Rule relied upon as authority for termination.
We agree and affirm.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    Pacharee K. HASPER, Appellant, v. DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, DIVISION of EMPLOYMENT SECURITY, Appellee.
    No. AW-183.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Rehearing Granted in Part and Denied in Part Dec. 18, 1984.

      Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for appellant.
    Sonja P. Mathews, Tallahassee, for ap-pellee.
   MILLS, Judge.

Pacharee K. Hasper appeals a final order of the Department of Labor and Employment Security denying her a formal hearing pursuant to Section 120.57(1), Florida Statutes. We reverse.

In December of 1982, Hasper, who was employed by the Department of Labor and Employment Security (DLES), requested and was granted maternity leave for the period 14 March 1983 through 15 July 1983. She was granted the requested leave by her then Division Director, Katie Tucker. By letter dated 28 February 1983, Ronald Villella, the new Division Director, confirmed to Hasper that her request for maternity leave was granted and advised her that:

We will search for a suitable position to which you can be appointed upon completion of the leave period. If successful, you can be returned from leave of absence to the new assignment. If a suitable position cannot be located, you will be returned from leave of absence for one workday and then separated from the Senior Management. Rule 22SM-1.-12.

When Hasper returned to work from her maternity leave on Monday, 18 July 1983, she was terminated. Hasper had achieved an “outstanding” performance evaluation while serving in her Senior Management Service Position.

The issue before the court is whether one who is a Senior Management Service appointee is entitled to a formal hearing under Section 120.57(1) upon termination without cause.

Section 120.57(1) provides that a formal hearing be afforded whenever the “substantial interests of a party are determined by an agency.” DLES contends that Has-per’s substantial interests, within the meaning of the statute, were not affected by her termination.

DLES equates substantial interests under the statute with the due process rights of life, liberty, and property which arise under the Fifth and Fourteenth Amendments to the United States Constitution. DLES argues that when one asserts a substantial interest under 120.57(1), one must also assert a loss of life, liberty, or property. We disagree.

There is no definition of substantial interest in the statute. Nor has this Court or any Florida District Court of Appeal attempted a comprehensive definition. We decline to do so now.

However, we do believe that the legislature intended by the passage of Section 120.57(1) to create a broad avenue of redress for many persons variously situated, and specifically that “substantial interests” contemplates rights not more restrictive but more expansive than those afforded by the predecessor statute which provided redress for “legal rights, duties, privileges or immunities,” Section 120.22, Florida Statutes (1973).

We have no doubt that Hasper’s substantial interests were affected by her termination from the Senior Management Service.

DLES argues that Hasper has no substantial interest to protect because under Rule 22SM-1.12, Florida Administrative Code, and Section 110.403(l)(c), Florida Statutes, she has no property interest in her Senior Management Service position. See Hasper v. Department of Administration, et at., 459 So.2d 398 (1984).

Because the class of rights encompassed by substantial interests affected is more expansive than the class of rights encompassed by the due process clause, we need not reach the issue in order to decide the case. We expressly do not determine whether Rule 22SM-1.12 and Section 110.-403(l)(c) establish for Hasper property rights in her Senior Management Service position.

Notwithstanding that, Hasper is entitled to a fair and impartial hearing conducted by a hearing officer provided by the Division of Administrative Hearings of the Department of Administration pursuant to Section 120.57(1).

We reverse and remand.

ERVIN, C.J., and ZEHMER, J., concur.


author: BARKETT, Judge.

text:
    Margaret Weber LANG, Appellant/Cross Appellee, v. John Edward LANG, Sr., Appellee/Cross Appellant.
    No. 84-147.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 21, 1984.

      James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellant/ cross appellee.
    Martin L. Haines, III, of Haines & D’Angio, North Palm Beach, for ap-pellee/cross appellant.
   BARKETT, Judge.

The wife appeals from a final judgment of dissolution of marriage contending primarily that the trial court erred in failing to award her permanent periodic alimony. We agree and reverse.

The parties were married for 23 years and had five children. Neither party brought any assets into the marriage. At the time of the dissolution, however, the parties jointly owned the marital home, the wife owned a house in North Carolina titled in her name solely, and the husband owned two businesses titled in his name solely. During the marriage, the husband had worked primarily in the liquor business and had owned a liquor store for seven years before it was sold two years prior to the dissolution. He then started the two businesses he presently owns. The wife, in addition to raising five children, also worked outside the home to assist the family. The parties, in fact, agreed that during the past two years the wife worked seven days a week for 70 hours a week at four jobs, to allow the husband to start and continue the two businesses he now owns. She worked as a nurse in a doctor’s office, as an adjunct professor at Palm Beach Junior College, and as a pilot for Rockwell International. There is no dispute in the record that the wife was, in addition to her business activities, active as a homemaker and mother as well.

In spite of the apparently diverse talents of the wife, the record reflects that she only made approximately $19,000 per year for the two years that she worked four jobs and a 70-hour week. However, prior to and subsequent to these two years, her earnings, when working a regular schedule, ranged only between $10,000 to $12,-000 per year. The husband, on the other hand, according to his accountant’s testimony derives a minimum of $54,500 per year from his businesses. Additionally, he receives around $17,000 in personal benefits. He also admits that these sums were augmented by cash withdrawn from the business, by bartered items, and by additional cash or merchandise from suppliers for what he called “promoting” their products. The wife’s ' accountant testified that the husband’s income was approximately $92,-000 per year. The record reflects that the parties expended some $82,000 in living expenses during the year prior to the dissolution.

The final judgment awarded the wife child support in the amount of $200 per child per month for the parties’ two minor children who were then 15 and 17 and required the husband to repay to the wife $6,000 to reimburse her for her interest in an airplane which had been a gift to the wife and which the husband had sold without her consent.

The trial court then indicated that it was awarding to the wife as lump sum alimony what it deemed to be the husband’s “special equity interest” in the North Carolina property. This property had always been titled in the wife’s sole name. Record title demonstrates presumptive ownership. The only way this presumption can be overcome by a claiming spouse is by demonstrating an extraordinary contribution to the acquisition of the property. This extraordinary contribution can consist of personal industry and service or financial contributions from a source unconnected with the marriage. Hoecker v. Hoecker, 426 So.2d 1191 (Fla. 4th DCA 1983). See also Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980), pet. for rev. dism., 399 So.2d 1142 (Fla.1981). The husband failed to show any contribution to this property either by personal industry or service or funds from a source unconnected with his earnings during the marriage. Therefore, he failed to rebut the presumption of ownership by the wife, and the trial court erred in determining that the husband had a special equity in the North Carolina property. By allowing the wife to retain ownership to this property, the court below was not giving her any alimony from this asset as it already belonged to her and the husband did not have any interest therein.

In essence, the total award to the wife after this 23-year marriage was lump sum alimony consisting of the husband’s one-half interest in the marital home and the payment of the loan on the wife’s 1981 automobile. The trial court denied the wife’s prayer for periodic permanent and/or rehabilitative alimony.

We recognize that the trial court has the discretion to determine whether or not permanent alimony is appropriate under the circumstances of each case. It is our responsibility, however, to determine whether the trial court abused its discretion in making this determination. Weeks v. Weeks, 416 So.2d 811 (Fla. 4th DCA 1982). Our supreme court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), has called this review the application of the “reasonableness” test:

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

This principle was reiterated recently by the Florida Supreme Court in Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984):

First, as Canakaris makes clear, the standard of review is whether the trial judge abused his discretion and the test is whether any reasonable person would take the view adopted by the trial judge.

In our judgment no reasonable man would take the view adopted by the trial judge under the circumstances of this case in failing to award permanent periodic alimony in accordance with the necessities of life as they had been established by the marriage of the parties and the ability of the husband to pay. The trial court clearly abused its discretion. This was a 23-year marriage. The wife had borne and raised five children. She made monumental contributions to the acquisition of the husband’s businesses which the record reflects were worth from $302,000 to $340,000. She deferred her career opportunities, which in light of her abilities could have been great, in order to have children and a home, and to assist in her husband’s businesses. The parties’ earning abilities and income-producing assets are totally disparate.

Accordingly, the final judgment is reversed and remanded with instructions to determine the amount of permanent periodic alimony to be awarded to the wife in accordance with section 61.08, Florida Statutes (1983).

The cross appeal of the husband is found to be without merit.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    Chester E. BORCK, Jessie L. Borck, James Borck, and Judith L. Borck, individually and d/b/a Borck Associates, Appellants, v. Daniel J. HOLEWINSKI, et al., Appellees.
    No. 84-1301.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 21, 1984.
    Gary, Dytrych & Ryan, North Palm Beach, and Larry Klein, West Palm Beach, for appellants.
    Linda Cargill Smith of Gorman & Hor-vath, P.A., North Palm Beach, for appel-lees.
   HERSEY, Judge.

The trial court entered an order staying arbitration of a dispute arising out of a construction contract, which order is appealed here.

Appellants, owning a residence, entered into a contract with appellee as architect and general contractor, for extensive remodeling of the property. The construction contract contained an arbitration clause which provided:

All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents of [sic] the breach thereof, ... shall be decided by Arbitration ....

Because of allegedly unforeseeable difficulties encountered in construction, there was first a verbal modification of the contract followed by commencement of this action by the contractor for rescission of the contract on the ground of mutual mistake. Appellants moved to dismiss the complaint and to compel arbitration. Ap-pellee moved to enjoin arbitration, the granting of which motion occasioned the present appeal.

The complaint clearly seeks rescission of the contract in its entirety. The effect of rescission is to render the contract abrogated and of no force and effect from the beginning. Restatement (First) of Contracts § 349 comment a (1932). If there is no contract, there can be no arbitration clause “of the contract.” This simplistic approach, a by-product of the continuing search for consistency of result and simplicity of application of the law, is not without its philosophical detractors." Thus we have the school of thought that under appropriate circumstances an arbitration clause may be treated as severable from the remainder of the contract or, indeed, as a separate and distinct agreement ab initio. The authorities are collected in a scholarly opinion by Circuit Judge Aldrich in Lummus Co. v. Commonwealth Oil Refining Co., 280 F.2d 915 (1st Cir.), cert. denied, 364 U.S. 911, 5 L.Ed.2d 225, 81 S.Ct. 274 (1960).

For our part we choose the path of simplicity and endorse the holding and rationale adopted by our sister court in R.B.F. Management Co. v. Sunshine Towers Apartment Residences Ass’n, 352 So.2d 561 (Fla. 2d DCA 1977). The effect of that opinion is to require the trial court to make an initial finding as to whether a prima facie case is made to support a claim for “true” rescission (as opposed to partial rescission in conjunction with a claim for damages and other relief: a misnomer). If a prima facie case is made, then arbitration is abated pending trial of the rescission issue. If rescission is granted, then

this would necessarily leave the parties with no contract at all. Thereupon, the court would, in the exercise of its complete jurisdiction, continue with such further proceedings as might be required to return the parties to their original positions as nearly as possible. If rescission is denied the court will be faced with the problem of whether it may retain jurisdiction upon demand of either of the parties for arbitration.

Id. at 564.

Cf. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA. 1980) (enforcement of arbitration clause proper where plaintiffs did not seek rescission or cancellation of the contract).

We therefore affirm the order enjoining arbitration and remand for further proceedings.

AFFIRMED and REMANDED.

DOWNEY and LETTS, JJ., concur.


author: BARFIELD, Judge.

text:
    Robert B. WILLIAMS, Administrator, Florida State Hospital, Appellant, v. Henry Jasper DAVIS, Margaret Satterfield, Clide Moore, William Wright, and Mattie Arnold, Appellees.
    Nos. AW-47, AW-49, AW-50, AX-140 and AX-141.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.

      Peggy Sanford, Hospital Legal Counsel, Chattahoochee, for appellant.
    Michael E. Allen, Public Defender, and Andrew Thomas, Asst. Public Defender, Tallahassee, for appellees.
   BARFIELD, Judge.

Appellant is administrator of the Florida State Hospital in Chattahoochee. Appel-lees are persons involuntarily placed in that facility. Under Florida Statutes § 394.467 (1983), the administrator is required to request authorization to continue involuntarily placement six months after commitment and each six months thereafter. Unless waived, these hearings are held pursuant to Florida Statutes § 120.57(1). The hearings are conducted by hearing officers assigned by the Division of Administrative Hearings, and their orders are final orders subject to appellate review in this court, id. § 394.457(6). The administrator is required to show by clear and convincing evidence that the patients meet the five statutory criteria for involuntary placement, id. § 394.467(l)(b).

For purposes of this appeal, the facts concerning appellees Davis, Arnold, Satter-field, and Moore are identical: they are all elderly individuals with severe mental disorders; they require medication and constant supervision, and could not survive without them; all are Medicaid ineligible because of their resources; all are suitable for placement in highly skilled nursing home facilities but the hospital has been unable to place them because of lack of cooperation of relatives who control their resources. The families of the patients pay a small monthly fee to Florida State Hospital based on ability to pay.

Appellee Wright’s facts differ slightly. He, too, is elderly and has serious mental disorders. He tested positively for tuberculosis, however, and a social worker testified at hearing that nursing homes would not accept him during his treatment period. Mr. Wright may be Medicaid eligible but his sister is “foot-dragging” in providing the information necessary to complete the application. The hospital may be able to submit an application on his behalf. The testimony was not clear on this issue, but apparently in such situations the hospital first gives the relative an opportunity to submit the application. If she fails to do so, the hospital requests permission to submit the application and/or submits the application without the permission. There is a sequence of letters sent to the relative regarding this which was “in process” at the time of the hearing.

The hearing officer found for each patient that because of uncooperative relatives, the administrator failed to pursue alternatives to continuing involuntary placement at the hospital. The hearing officer held that the administrator failed to demonstrate by clear and convincing proof that appropriate and less restrictive treatment alternatives were not available and the patients therefore did not meet the criterion set forth in Fla.Stat. § 394.-467(l)(b)5 (1983). He denied the requests for continuing involuntary placement, and the administrator appealed.

We note initially that treatment alternatives must be actually available, not “hypothetical possibilities.” Williams v. Wilson, 424 So.2d 159, 160 (Fla. 1st DCA 1982). Therefore, the issue for our consideration is whether there is competent and substantial evidence to support the hearing officer’s conclusion that there was not clear and convincing evidence presented by the administrator that less restrictive treatment alternatives were actually unavailable for these patients. At first impression this would seem an impossible question for this court to answer, since it cannot know what caused the hearing officer to disbelieve the hospital’s witnesses. However, we choose to follow the approach used by this court in personnel actions:

... the [agency] as the party asserting the affirmative of an issue, has the burden of proving that the [criteria have been met] .... Although this burden never shifts, the proof presented may establish a prima facie case so that the burden of moving forward with the presentation of the evidence will shift to the [patient]. Florida Department of Health and Rehabilitative Services v. Career Service Commission [, 289 So.2d 412 (Fla. 4th DCA 1974) ]; 1 Fla.Jur.2d Administrative Law § 81.

Department of Corrections v. Dixon, 436 So.2d 320, 321 (Fla. 1st DCA 1983).

The hospital’s witnesses all testified that nursing home placements were impossible without family cooperation and that they were therefore concentrating their efforts on obtaining such cooperation, albeit unsuccessfully. This testimony was not contradicted either by cross-examination or direct evidence presented on behalf of appellees. Yet the respective orders found that the agency was “making no effort” (Moore), “failed to pursue” (Wright), “has made no effort to arrange” (Satterfield), “has abandoned efforts at arranging” (Arnold), and “has not attempted” (Davis) alternative placements. In short, the hearing officer simply chose not to accept the hospital’s evidence.

Once the hospital makes a prima facie showing that the patients meet the criteria, the hearing officer is bound to grant the petition for continued involuntary placement in the absence of contrary evidence from the patient. There was no such contrary evidence.

The decision of the hearing officer in each instance is therefore REVERSED.

JOANOS and WIGGINTON, JJ., concur.

      . The fifth criterion reads:
      All available less restrictive treatment alternatives which would offer an opportunity for improvement of [the patient’s] condition have been judged to be inappropriate.
      The parties agree that these patients meet the first four criteria,

      . Wilson was decided under the 1981 version of the statute here in issue. That statute did not expressly provide for consideration of the “less restrictive alternative" criteria, but the Florida Supreme Court had previously held that this factor must be considered in ruling on applications for involuntary placement. In re Beverly, 342 So.2d 481 (Fla.1977). We find nothing to suggest that the intent of the 1982 legislature in adding the fifth criterion to the statute differed from the construction given the requirement in Wilson. In fact, the language of § 394.-467(14)(b)5 strongly suggests that the Wilson rationale should be applied here.


author: WIGGINTON, Judge.

text:
    Robert Ryan HAMBLEY d/b/a Sunshine State Clam Co., Appellant, v. The STATE of Florida, The DEPARTMENT OF NATURAL RESOURCES, et al., Appellees.
    No. AW-112.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 18, 1984.

      Ronald H. Schnell, of Carr & Schnell, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Joseph A. Linne-han, Asst. Atty. Gen., and R. Bruce McKib-ben, Certified Legal Intern, Tallahassee, for appellees.
   WIGGINTON, Judge.

Hambley appeals from the trial court’s dismissing with prejudice counts I, III, IV and V of his third amended complaint. We have jurisdiction and affirm in part and reverse in part.

Hambley was arrested by the Florida Marine Patrol in 1978, on charges of harvesting and marketing clams in violation of rule 16B-28.09, Florida Administrative Code, and in falsifying wholesale seafood records in violation of section 370.07(5), Florida Statutes. A directed verdict of not guilty was later entered by the county court, but, in the meantime, the Department of Natural Resources, through a letter written by then Executive Director Harmon Shields, suspended Hambley’s “Shuck-er-Packer Certificate,” pursuant to rule 16B-28.07, pending the outcome of the charges. The certificate remained suspended for approximately 200 days before it was reinstated by the department.

Following the directed verdict, Hambley, in 1979, filed a lawsuit in Pinellas County against the department, the Florida Marine Patrol, Harmon Shields, and employees of the department and the patrol for false arrest, malicious prosecution, illegal suspension of his certificate, and negligent failure to protect personal property. On the defendants’ motion, the cause was transferred to Leon County. In November, 1980, defendants’ motion to dismiss the complaint was granted without prejudice.

Hambley was permitted to amend his complaint three times, each time the complaint having been dismissed pursuant to defendants’ motions to dismiss. Hamb-ley’s third amended complaint sets forth five counts. Count I apparently alleges malicious prosecution and was dismissed only as to the department and the patrol. We affirm. The potential liability of the department and the patrol is controlled in this action by section 768.28(9), Florida Statutes (1977), which waives the sovereign immunity of the state and its subdivisions, but only to the extent of acts of ordinary negligence. The state’s sovereign immunity remains viable where it is alleged that the officer, employee, or agent of the state acted “ ‘in bad faith or with malicious purpose ... ’” District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla.1980). Since the entire thrust of Hamb-ley’s cause of action under count I is directed toward the defendants’ alleged “malicious purpose,” the trial court properly dismissed the count as to the state agencies.

Because count III also alleges malicious purpose, we similarly affirm the court’s dismissal of that count as it relates to the department and the patrol. However, count III also names Harmon Shields as an individual defendant, alleging that Shields willfully, illegally and maliciously suspended Hambley’s certificate without having afforded him an opportunity to show compliance with “lawful requirements,” thereby causing him to incur damages in excess of $5,000 “from interference with the pursuit of his livelihood, substantial loss of income, and loss of his customer’s confidence.” As far as count III alleges willful and malicious behavior against Harmon Shields, in his individual capacity as a public official, it may stand. Rupp v. Bryant, 417 So.2d 658 (Fla.1982). Consequently, the trial court erred in dismissing count III in toto.

In count IV, Hambley brought a cause of action for damages against the department and Shields under the auspices of Title 42 U.S.C. § 1983. We affirm in part and reverse in part the court’s dismissal of this count. The court did not err in dismissing the count as to the department. As we recently held in Arney v. Department of Natural Resources, 448 So.2d 1041 (Fla. 1st DCA 1984),

Section 1983 only provides for suits against “persons.” Florida is not a person within the meaning of § 1983 and, therefore, is not subject to a § 1983 claim for damages by way of a suit against ... an arm of state government ... [citations omitted].

Id., at 1045.

However, Shields, acting as a state official in his executive capacity to enforce the law, enjoys only a qualified immunity. “Such officials are immune from liability if they reasonably believed they acted lawfully.” Id. Since the order dismissed count IV as to Shields also, it must be reversed.

Finally, as the order relates to count V, we affirm. In count V, Hambley seeks a declaration from the court that the department’s letter was void as “a clear and unmistable [sic], flagrant violation of Plaintiffs constitutionally protected right to due process of law ...,” and that section 120.-68, Florida Statutes, providing for direct appeal from final agency action, was an inadequate remedy. We agree with appel-lees that Hambley did not allege a cause of action for a declaratory judgment sufficient to excuse him from pursuing his administrative remedies under chapter 120. State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982).

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

JOANOS and BARFIELD, JJ., concur.

      . Rule 16B-28.07 states in pertinent part:
      The Division in the interest of general health ... may suspend or revoke for cause any certification issued by the Division for violation of the provisions of Chapter 381 and 386, Florida Statutes, and the rules and regulations as promulgated in this Chapter ...

      . Hambley presently has pending a fourth amended complaint.

      . Although in Rupp v. Bryant, 417 So.2d 658 (Fla.1982), the supreme court held that its decision in Talmadge was "regrettably overbroad” in regard to the individual liability of the public employee, it nevertheless adhered to that portion of its decision regarding the state’s immunity where malice or bad faith is alleged. 417 So.2d at 669, fn. 30; see also Willis v. Dade County School Board, 411 So.2d 245 (Fla. 3d DCA 1982).

      . We disagree with appellees that Hambley could have pursued his remedy for his economic loss in this tort action'through chapter 120, Florida’s Administrative Procedure Act. Compare Winter Springs Development Corporation v. Florida Power Corporation, 402 So.2d 1225 (Fla. 5th DCA 1981).

      . We are not, by this, holding that Hambley has set forth sufficient facts to establish willful and malicious conduct on the part of Shields. That precise issue is not now before us. But cf. Rupp v. Bryant, 417 So.2d at 669-670.


author: THOMPSON, Judge.

text:
    OKEECHOBEE RESTAURANT and Midland Insurance Company, Appellants/Cross-Appellees, v. Julio de la NUEZ, Appellee/Cross-Appellant.
    No. AX-208.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 18, 1984.
    Richard B. Wingate, Jr. of Underwood, Gillis, Karcher & Valle, Miami, for appellants/ cross-appellees.
    R. Cory Schnepper of Ser, De Cardenas, Levine, Busch & Schnepper; and Jay M. Levy of Hershoff & Levy, Miami, for appel-lee/ cross-appellant.
   THOMPSON, Judge.

In this appeal from a workers’ compensation order awarding, inter alia, temporary total disability (TTD) benefits, the employer/carrier (E/C) contend that the Deputy Commissioner (deputy) erred both in finding that the claimant was totally disabled during the period for which TTD benefits were awarded, and in finding that the claimant is permanently and totally disabled (PTD). The claimant cross-appeals, asserting that the deputy erred in failing to award PTD benefits. Because there was competent substantial evidence to support the deputy’s determination to award TTD benefits, the award of TTD benefits, interest, and costs is affirmed. However, the claimant’s contention that the deputy should have ruled on the claim for PTD benefits appears to have merit. Accordingly, we remand for determination of the claim for PTD benefits.

In his order, the deputy made extensive findings of fact as to claimant’s age, education, work experience, physical impairment and restrictions, and ability to obtain employment commensurate with his post-accident abilities. Based on these findings of fact, the deputy concluded that “it would appear that the claimant, at present, is permanently and totally disabled.” (emphasis supplied) After noting that the claimant was receiving wage loss benefits, and thus would not be prejudiced by a delay in adjudication of the PTD claim, the deputy determined that he would “reserve ruling on the issue of permanent total disability benefits ... to allow the carrier a sufficient opportunity to provide the claimant with rehabilitation benefits ...” The ambiguity presented by the deputy’s use of the qualifying phrases “it would appear” and “at present” in connection with his finding that claimant is PTD requires us to hold' that that portion of the order was mere dicta, and was not actually a finding at all. Since the question whether claimant was PTD was ripe and at issue, it should have been ruled upon. Washington Square Associates, Ltd. v. Bourne, 408 So.2d 809 (Fla. 1st DCA 1982).

Section 440.49(l)(c), Fla. Stat., provides as follows:

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

The deputy’s determination to reserve ruling on the PTD issue pending efforts to rehabilitate the claimant would appear to represent an effort by the deputy to comply with the above quoted statute, and would further appear to be-based on an implicit determination that rehabilitation of the claimant would be in the best interest of all parties to this appeal. We agree with this implicit determination. Upon remand, the deputy shall determine whether there is a reasonable probability that claimant can be rehabilitated to the extent that he will be able to achieve suitable gainful employment, and if such reasonable probability is found to exist, he shall deny the claim for PTD benefits. In the event the deputy concludes that there is not a reasonable probability that claimant can be rehabilitated, the deputy shall then determine, on the basis of the existing record, whether claimant has carried his burden of proving that he is not able uninterruptedly to perform even light work due to physical limitations. Section 440.15(l)(b), Fla.Stat.; Frank’s Fine Meats v. Sherman, 443 So.2d 1055 (Fla. 1st DCA 1984).

REVERSED1 and REMANDED.

BOOTH and SMITH, JJ., concur.