author: SMITH, CHARLES E., Associate Judge. HURLEY, Judge,

text:
    SYMONS CORPORATION, Appellant/Cross Appellee, v. TARTAN-LAVERS DELRAY BEACH, INC., d/b/a Lavers Racquet Club, Appellee/Cross Appellant.
    No. 83-536.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.

      Robert T. Clelland, Jr., Fort Lauderdale, for appellant/cross appellee.
    Jeffrey Allan Hirsch and Ronald F. Shapiro of Holland & Knight, Fort Lauderdale, for appellee/cross appellant.
   SMITH, CHARLES E., Associate Judge.

The outcome of this appeal for an award of attorney’s fees and appellee’s cross appeal of the appellant’s successful suit on a mechanic’s lien hinges on the answer to one question; namely, was there proper service of the statutorily required Notice to Owner? We hold that there was. This is not to say that the corporate veil was pierced. The corporate veil may not be pierced unless it is shown not only that one business entity dominated or was the alter ego of the other, but that the relationship was created or used in order to mislead or defraud creditors. See, e.g., Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984). In the instant case, piercing the corporate veil is beside the point, and does not determine the question whether appellant adequately noticed the owner of the construction project. Boux v. East Hillsborough Apartments, Inc., 218 So.2d 202 (Fla. 2d DCA 1969).

In its final judgment, the trial court found that by virtue of various subsidiaries, fictitious names, and interlocking management, the defendant is the owner/developer and general contractor of the Lavers Racquet Club project. The trial court also found that “[pjlaintiff properly served its Notice to Owner pursuant to Florida Statute Section 713.06, upon the defendant on May 29, 1981.” While the testimony and evidence contained in the record on appeal is deplorably scanty, we find the trial court was not “clearly erroneous” nor “totally without any substantial evidence” to support its findings of fact.

Symons sent a Notice to Owner by certified mail to “Lavers Delray Racquet Club” at 755 Dotterel Road, Delray Beach, Florida and also to “Tartan Dev.” at 2350 Jaeger Drive, Delray Beach, Florida. The second Notice to Owner was sent to “Tartan Dev.” in an attempt to satisfy the requirement set out in Section 713.06(2)(a), Florida Statutes, that “a sub-subcontractor or materialman to a subcontractor shall serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien.” However, since the owner and general contractor were subsidiaries of the same parent corporation, with a common corporate officer, it is not necessary that the Notice to Owner be sent to both of them. Bro-ward Atlantic Plumbing v. R.L.P., Inc., 402 So.2d 464 (Fla. 4th DCA 1981).

James Venable, an officer of the owner corporation, testified that all of the companies involved in the Lavers Racquet Club project do occasionally receive mail at 755 Dotterel Road. James Venable testified that the project presently called Laver’s International Tennis Resort was also known as Lavers Racquet Club. He further stated that a number of names similar to Lavers Racquet Club and Laver’s International Tennis Resort are reserved in Tallahassee. James Venable admitted being an officer in a number of Tartan companies registered in Florida, and that all these companies are tied together “in one way or another.” He testified that Amy C. Stern was an employee of Clubhouse Restaurant, Inc., which is a subsidiary of Tartan-Laver Delray, Inc., owner-developer of the Lavers Racquet Club project. He conceded that Tartan-Laver Delray, Inc., was owner-developer of the “Lavers project.”

After admitting all of the above facts, Mr. Venable stated from his own personal knowledge that Tartan-Laver Delray, Inc., did not receive a Notice to Owner from Symons which was sent to 755 Dotterel Road and signed on certified receipt by Amy C. Stern. Mr. Venable testified that Amy Stern did not have any supervisory or managerial responsibilities with Tartan-Laver Delray, Inc., nor any connection with the general contractor, Tartan Construction Company. Yet, Amy Stern apparently had the authority to receive and sign for certified mail addressed to “Lavers Delray Racquet Club” at 755 Dotterel Road, even though she was an employee of Clubhouse Restaurant, Inc., not Lavers Racquet Club. Curiously, Amy Stern also happened to receive and sign for mail addressed to “Tartan Dev.” at 2350 Jaeger Drive, Delray Beach, Florida, on the same day she received the certified mail for “Lavers Delray Racquet Club” at 755 Dot-teral Road, a different address. Unfortunately, Symons did not have Amy Stern present at trial to inquire why she felt she had the authority to sign for certified mail addressed to two different entities, at two different addresses, by neither of which she was employed. Perhaps Amy Stern could have clarified what her job responsibilities were, and what her connection was with the Tartan companies who are all tied together “in one way or the other.” However, even without Amy Stern’s testimony, the trial court could have made an inference of fact that the owner, Tartan-Laver Delray, Inc., had implied actual notice of the Notice to Owner, based on Mr. Vena-ble’s testimony above and on the evidence before the trial court.

Notice is of two kinds, actual and constructive. Sapp v. Warner, 105 Fla. 245, 141 So. 124, affd, 143 So. 648 (1932). Actual notice is itself comprised of two types: (1) express, based on direct information; and (2) implied, which includes notice inferred from the fact that a person had the means of knowledge, which it was his duty to use. Id. Implied actual notice is an inference of fact. Id.; see also, Reinhart v. Phelps, 150 Fla. 382, 7 So.2d 783 (1942). Implied actual notice, being an inference of fact, may be drawn by the court as a matter of law when warranted by the circumstances of the particular case calling for its application in order to grant equitable relief. Sapp v. Warner, supra. United Contractors, Inc. v. United Constr. Corp., 187 So.2d 695 (Fla. 2d DCA 1966).

A review of the evidence shows that both the Notice to Owner and the Claim of Lien were addressed to “Lavers Delray Racquet Club” at 755 Dotterel Road, Del-ray Beach, Florida. Apparently Tartan-Laver Delray, Inc., received the Claim of Lien even though it was also addressed to “Lavers Delray Racquet Club” at 755 Dot-terel Road (just as the Notice to Owner had been). The Claim of Lien was apparently received because ten days after receiving the Claim of Lien by certified mail the attorneys for “Lavers Racquet Club” bonded off the lien against the property described as “Lavers Racquet Club.” A copy of the Clerk’s Certificate of Bonding was sent to Symons Corporation at its address on Bryan Road, as set out in the Claim of Lien. We do not see how the attorneys for “Lavers Racquet Club” could have bonded off a lien claimed by lienor Symons Corporation unless the owner, Tartan-Laver Del-ray, Inc., had received the Claim of Lien sent to “Lavers Delray Racquet Club” at 755 Dotterel Road. Additionally, the Claim of Lien referred to the Notice to Owner previously mailed to the Lavers Delray Racquet Club, thus putting Tartan-Laver Delray, Inc. on notice that such document had been sent to the owner by certified mail. From the evidence above and the testimony of James Venable admitting that the various companies did receive mail at the 755 Dotterel Road address, the trial court could have made an inference of fact that the Notice to Owner was received by the Owner, Tartan-Laver Delray, Inc., at the 755 Dotterel Road address. Therefore, the trial court’s finding is not “clearly erroneous” or “totally unsupported” by the record.

It is not necessary that one be an employee of a corporation to be its agent. Babson.Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976) (citing Economic Research Analysts, Inc. v. Brennan, 232 So.2d 219 (Fla. 4th DCA 1970)). When, in the usual course of business of a corporation, an officer or other agent is held out by the corporation or has been permitted to act for it or manage its affairs in such a way as to justify third persons who deal with him in inferring or assuming that he is doing an act within the scope of his authority, the corporation is bound thereby. Edward J. Gerrits, Inc. v. McKinney, 410 So.2d 542 (Fla. 1st DCA 1982). See also, S & S Air Conditioning Co. v. Cantor, 343 So.2d 923 (Fla. 3d DCA 1977). See also cases on apparent authority: American Ladder and Scaffold Co. v. Miami Ventilated Awning Mfg. Co., 161 So.2d 699 (Fla. 3d DCA 1964) (An agent’s authority need not be conferred in express terms, but may be apparent or implied under justifying circumstances); Aetna Ins. Co. v. Holmes, 59 Fla. 116, 52 So. 801 (1910); Parsley Bros. Constr. Co. v. Humphrey, 136 So.2d 257 (Fla. 2d DCA 1962); One Hour Valet, Inc. v. Keck, 157 So.2d 83 (Fla. 2d DCA 1963) (stating that whether acts are within scope of an agent’s apparent authority or whether acts were ratified by the principal are questions of fact, and will not be set aside unless clearly erroneous). Thé trial court could have inferred from the testimony and evidence that Amy Stern had apparent authority to receive and sign for certified mail addressed to Lavers Delray Racquet Club at 755 Dotterel Road, and that, having received the signed certificates, Symons relied on this evidence of delivery that Notice to Owner had properly been served.

For serving its Notice to Owner, Symons utilized one of the methods prescribed in Section 713.18, as follows:

By mailing the same, postage prepaid, by registered or certified mail to the person to be served at his last known address and evidence of delivery.

Section 713.18(l)(c), Florida Statutes (1983).

Analogous to this method of service of Notice to Owner is Substituted Service of Process:

The statute which provides a method of substituted service on a non-resident and which requires that notice of service be sent by registered or certified mail by the plaintiff or his attorney to the defendant does not require, in the case of corporate defendant, that the notice and process be sent to some officer of the corporation; presumably, the statutory requirement that the documents be mailed “to the defendant” can be satisfied by a mailing to any place in the world where the postal service can provide a return receipt which, in the case of a corporation, can be signed by any clerical employee or agent authorized to do so. George Fischer Ltd., v. Plastiline, Inc., 379 So.2d 697 (Fla. 2d DCA 1980).

In S & S Air Conditioning Co. v. Cantor, 343 So.2d 923 (Fla. 3d DCA 1977), the plaintiff-subcontractor received a receipt for registered mail by which the notice to owner had been sent and made a substantial change of position in reliance on the effectiveness thereof. Under those circumstances the Court found that whether the attorney acting for the owners had forwarded the notice to owner after receiving and receipting the registered mail was not a matter of concern for the plaintiff-subcontractor. On the facts disclosed, the defendant-owners were estopped to deny the effectiveness of the plaintiff’s preliminary notice. Id. A similar situation exists here with Symons Corporation.

As to the error in the name of the owner as listed in the Notice to Owner, the title Lavers Delray Racquet Club is so similar to the name of the owner, who was doing business as Lavers Racquet Club, that the name used in the notice should be sufficient under the doctrine of idem so-nans. In cases upholding the sufficiency of the designation of an owner in the Notice of Owner under a Mechanics’ Lien statute, the courts note that if the owner, or others, were not misled, prejudiced or injured by the claimed defect in the Notice, especially in the case of an honest mistake, the lien is not vitiated by such defect. Hopper-McAllister Corp. v. Pelham, 241 Mich. 235, 217 N.W. 9 (1928). See also Installment Building & Loan Co. v. Wentworth, 1 Wash. 467, 25 P. 298 (1890) (holding that a slight error in name by which the owner could not have been misled does not defeat a lien, especially where the owner itself was making the improvement). Similarly, see Lowell Hardware Co. v. May, 59 Colo. 475, 149 P. 831 (1915). Since Tartan-Laver Delray, Inc., responded to the Claim of Lien addressed to “Lavers Delray Racquet Club” by bonding off the lien, Tartan-Laver, as owner, cannot have been misled by the error in the owner’s name on the claim of lien. (Additionally, the record does not indicate whether the owner, to its detriment, had already paid another for Symons’ services.) Though Florida does not have any cases directly on point, in a closely analogous Florida case a claim of lien designated the lienor’s name as “George J. Motz,” rather than “George J. Motz Construction Corp.” This court held that the error in the lienor’s name was not fatally defective, in that the names were sufficiently similar to apprise the defendant against whom the claimant had asserted the lien and therefore the defendant was not adversely affected by the error. George J. Motz Construction Corp. v. Coral Pines, Inc., 232 So.2d 441 (Fla. 4th DCA 1970).

Section 713.08, Florida Statutes, in subsection (4)(a) specifically states that:

The omission of any foregoing details or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error.

Though Section 713.06, Florida Statutes, pertaining to Notice of Owner does not contain a comparable provision, reading the statutes in pari materia would allow a similar construction on the Notice to Owner. Of interest is subsection (3)(a) under Section 713.06, which states that if the description of the property in the notice of commencement prescribed by Section 713.13, mandating that owners must record a notice of commencement before beginning improvement of any real property, is incorrect and this error adversely affects any lienor, then payments made on the direct contract shall be held improperly paid to that lienor. Here we would add our concurrence with footnote 4 of the dissenting opinion, that if a lienor detrimentally relied on the information contained in the Notice of Commencement in sending his Notice to Owner, then the owner would be estopped from denying receipt of a Notice to Owner. Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the Mechanic’s Lien law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(l)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner. If no Notice of Commencement was ever posted or recorded by the owner as mandated by the statute, a lienor may have difficulty in obtaining the names and addresses of the owners and contractor. Therefore, a good faith effort to mail the Notice to Owner to the correct owner at his last known address is all that is required. However, in the instant case, the record does not reveal whether a Notice of Commencement ever existed, or whether such notice did exist and was relied on by the lienor to his detriment. If a Notice of Commencement did exist, was duly posted at the site and recorded at the Clerk’s office, and the lien- or did not utilize the information contained therein, then we would find the lienor did not give an adequate Notice to Owner and reverse the trial court. However, again, the record does not indicate the existence of a Notice of Commencement, or whether it was utilized by the lienor.

We do not find the trial court’s findings of fact that the Notice to Owner was properly served so clearly erroneous or totally without support as to warrant a reversal of its findings. Symons’ proof was sufficient to show a good faith substantial compliance of the mailing of the Notice to Owner. The burden of proof then shifted to the owner to show prejudice, which it failed to do. We affirm.

The trial court struck Symons Corporation’s demand for attorney’s fees and failed to award attorney’s fees to Symons Corporation as the prevailing party. Tartan Lavers Delray, Inc., as the owner of the property, posted a cash deposit and transferred Symons’ lien from its real property to a cash deposit, pursuant to section 713.24, Florida Statutes. This statute limits the total amount of costs that can be recovered from the cash deposit, including attorney’s fees, to $100.00. However, this statute does not prevent the award of an unsecured judgment for attorney’s fees against the owner of the real estate. Tuttle/White Constructors, Inc. v. Hughes, 371 So.2d 559 (Fla. 4th DCA 1979) and Gesco, Inc. v. Nezelek, 414 So.2d 535 (Fla. 4th DCA 1982).

The owner relies on the case of Gesco, Inc. v. Nezelek, to support its position that it is not liable for attorney’s fees. Gesco held only that the liability for costs of the surety on the bond and the principal, a lending institution, including attorney’s fees, was limited to $100.00, as provided in section 713.24.

Symons Corporation, as the prevailing party against the owner, Tartan Lavers Delray, Inc., under section 713.29, is entitled to recover reasonable attorney’s fees for the services of its attorney for trial and this appeal. This recovery would be limited to $100.00 maximum against the cash deposit and would be an unsecured judgment for the balance of the attorney’s fees and costs.

This case is remanded to the trial court for determination of reasonable attorney’s fees for trial and this appeal.

GLICKSTEIN, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I respectfully disagree with the majority’s approach for two reasons: (1) it ignores the rationale employed by the trial court, and (2) it substitutes a finding of agency which is not supported by the record.

Admittedly, the trial court did not use the phrase “piercing the corporate veil.” It did, however, hold one corporation responsible for information received by another corporation on the theory that both were part of the same corporate family. The trial court expressly found that Tartan-Laver Delray, Inc., “by virtue of various subsidiaries and fictitious names, interlocking management, is the owner-developer and general contractor of the Laver Racquet Club .... ” Based on this finding, the court held that Tartan-Laver Delray, Inc. had constructive knowledge of information given to an employee of a sister corporation. The majority, however, discounts this finding and states, “[tjhis is not to say that the corporate veil was pierced.” Ante, at 1256. Indeed, in the next breath, the majority opines, “In the instant case, piercing the corporate veil is beside the point_” Ante, at 1256.

Next, the majority posits a finding of agency. It suggests that either Amy Stern, the person who received the notice to owner, or Clubhouse Restaurant, Inc., the corporation employing Ms. Stern, was the agent for Tartan-Laver Delray, Inc. The difficulty with this proposition is that it was never pled nor proved below. The majority’s confusion on this point is most apparent in its expression of concern that “Symons did not have Amy Stern present at trial to inquire why she felt she had the authority to sign for certified mail addressed to two different entities .... ” Ante, at 1257. The reason for her absence is obvious. From the beginning Symons took the position that service of the notice to owner on an employee of any entity within the corporate family was adequate to perfect service. Symons never attempted to prove an agency relationship and, consequently, it did not subpoena Ms. Stern.

In my view, the dispositive question on appeal is whether the statutorily required “notice to owner” was served properly. I would answer in the negative and reverse.

Symons Corp. rents modular forms and related equipment to contractors for poured-in-place concrete construction. In the context of this case, Symons’ status is that of a sub-sub-contractor/materialman. It signed a rental agreement with Lemi Enterprises, a subcontractor engaged in building Laver’s International Tennis Resort, also known as Laver’s Racquet Club, in Delray Beach. Thereafter, Symons sent a “notice to owner” by certified mail to “Laver’s Delray Racquet Club, 755 Dotter-el Road, Delray Beach, Fla.,” and to “Tartan Dev., 2350 Jaeger Drive, Delray Beach, Fla.” (The Dotterel Road address is a condominium residence building at the tennis resort.) The return receipt shows that both notices were signed and received by one Amy C. Stern. When Symons failed to receive full payment, it filed a claim of lien against the property. Pursuant to section 713.24, Florida Statutes (1983), the property owner transferred the lien claim to a cash deposit. Symons then filed a mechanics’ lien foreclosure action against the owner, Tartan-Laver Delray, Inc.

Tartan-Laver responded with a motion to dismiss in which it questioned the adequacy of the allegations regarding the notice to owner. The trial court denied the motion and Tartan-Laver filed an answer containing a denial plus an affirmative defense aimed at the adequacy of the notice to owner. Symons replied with a denial of all of the allegations in the affirmative defense.

Testimony at trial confirmed that Laver’s International Tennis Resort is owned by Tartan-Laver Delray, Inc. This company is a member of a large corporate family. The parent is Tartan Development Corp., a Canadian corporation not licensed to do business in Florida. The chief U.S. subsidiary is Tartan Management U.S., Inc. Tartan-Laver Delray, Inc., the owner of the tennis resort, is a subsidiary of Tartan Management U.S., Inc. The general contractor for the tennis resort is Tartan Construction Co., Inc., also a subsidiary of Tartan Management U.S., Inc. Finally, there is Clubhouse Restaurant, Inc., which apparently operates a restaurant at the tennis resort and is a subsidiary of Tartan-Laver Delray, Inc.

Trial testimony also established that the five corporations, viz., the Canadian parent, the chief U.S. subsidiary, the owner, the general contractor, and the restaurant operator, share a common corporate officer. Two of the corporations, the owner and the general contractor, maintain corporate offices at 801 S.E. Sixth Avenue in Delray Beach. James Venable, testifying on behalf of the owner and general contractor, denied that either had received a copy of Symons’ notice to owner. He stated that Amy C. Stern, the person who signed the return receipts, is an employee of Clubhouse Restaurant, Inc., and that she does not have any connection with either the owner or general contractor.

Based on the foregoing evidence, the trial court pierced Clubhouse Restaurant’s corporate veil and held that service on the subsidiary was sufficient to constitute service on the owner and general contractor. The court reasoned that Tartan-Laver Del-ray, Inc., “by virtue of various subsidiaries and fictitious names, interlocking management, is the owner-developer and general contractor of the Laver Racquet Club .... ” Thus, the court entered judgment in favor of Symons and this appeal ensued.

The concept of piercing a corporate veil has been the subject of much recent discussion by this court. See, e.g., Church of Scientology of California v. Blackman, 446 So.2d 190 (Fla. 4th DCA 1984); Sisk v. General Builders Corp., 438 So.2d 65 (Fla. 4th DCA 1983); Dania Jai-Alai Palace, Inc. v. Sykes, 425 So.2d 594, 598 (Fla. 4th DCA 1982), rev’d, 450 So.2d 1114 (Fla. 1984); Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982). These cases, however, are passé in light of the Supreme Court’s reversal of Dania Jai-Alai, supra. There, the court reaffirmed the rule “that the corporate veil will not be pierced, either at law or in equity, unless it be shown that the corporation was organized or used to mislead creditors or to perpetuate a fraud upon them.” Dania Jai-Alai Palace, Inc. v. Sykes, supra, at 1119-1120 (quoting Riley v. Fatt, 47 So.2d 769, 773 (Fla.1950)). Thus, to pierce a corporate veil on the theory that one corporation is an “alter ego” or “mere instrumentality” of another, it is necessary to prove domination plus improper conduct.

Normally, the question of whether a corporation is an instrumentality or an alter ego of another corporation is an issue to be determined by the trier of fact. Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941). However, “it is elemental that at the trial the burden of proof rests on the plaintiff to establish by competent evidence each material fact essential to recovery and that upon failure to do so it is the duty of the trial court upon appropriate motion to take the case from the jury and direct a verdict for the defendant.” Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519, 521 (Fla. 1st DCA 1961). In order to prevail on an “alter ego”' or “mere instrumentality” theory, Symons had the burden of demonstrating that Tartan-Laver dominated Clubhouse Restaurant for an improper purpose. Sym-ons, however, failed to shoulder this burden. Counsel for Tartan-Laver established that all of the corporations share a common corporate officer. But Symons’ counsel chose not to probe beyond this fact. Obviously, the existence of a common corporate officer may serve as a legitimate starting point for an inquiry, but it does not, by itself, prove that one corporation dominated another to the extent that the subservient corporation could be termed the “mere instrumentality” of the dominant corporation. The record is silent on the policies, day-to-day operations, and interaction among the various corporations. Even more glaring is the complete absence of proof of improper purpose or conduct. Thus, Symons totally failed in its effort to pierce Clubhouse Restaurant, Inc.’s corporate veil.

Symons’ fallback position is that the requirements of the mechanics’ lien statute can be satisfied by showing that Tartan-Laver had constructive knowledge of the notice to owner. Symons relies upon two cases for this position: Boux v. East Hills-borough Apartments, Inc., 218 So.2d 202 (Fla. 2d DCA 1969) and Broward Atlantic Plumbing Co. v. R.L.P., Inc., 402 So.2d 464 (Fla. 4th DCA 1981). Both cases, however, are inapposite. They involve subcontractors who were deemed to be in privity with the owners and, therefore, not subject to the notice to owner requirement. See § 713.05, Fla.Stat. (1983). Furthermore, Symons’ position runs afoul of the cardinal rule that the mechanics’ lien statute must be construed strictly. See Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co., 63 So.2d 924 (Fla.1953).

The requirements for the notice to owner are found in section 713.06(2)(a), Florida Statutes (1983), which provides in pertinent part:

All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. A sub-subcontractor or a materialman to a subcontractor shall serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien.

“The purpose of the notice is to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid.” Boux v. East Hillsborough Apartments, Inc., supra. Since mechanics’ liens are purely creatures of statute, the law must be strictly construed and complied with in every detail. Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co., supra. This principle is exemplified by the host of cases which have held that untimely service of the notice to owner is a fatal defect. See, e.g., Falovitch v. Gunn & Gunn Construction Co., 348 So.2d 560 (Fla. 3d DCA 1977); Babe’s Plumbing, Inc. v. Maier, 194 So.2d 666 (Fla. 2d DCA 1966); Standi v. Gardner, 192 So.2d 340 (Fla. 2d DCA 1966). Thus, I would hold that constructive knowledge is not an acceptable substitute for full statutory compliance.

Of course, a trial court’s finding comes to this court clothed with a presumption of correctness. Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980). Yet, it is also true that to be sustained on appeal, a final judgment must be grounded in competent, substantial evidence. Walker v. Harris, 398 So.2d 955 (Fla. 4th DCA 1981). Here, the record is devoid of competent, substantial evidence to support the trial court’s finding of adequate service. Since proper service of the notice to owner is an indispensable prerequisite to perfecting a mechanic’s lien, I would reverse and remand with instructions to enter a judgment in favor of Tartan-Laver Delray, Inc.

      . On certified mail receipts, there are two boxes of which one is supposed to be checked to identify the signatory as either the addressee or the Authorized Agent. In this case, neither box was checked. However, since Amy Stern was not the addressee, the presumption arises that she was an authorized agent. Though Mr. Venable testified that Amy Stern did not have any managerial or supervisory responsibilities with the owner, Tartan Laver Delray, Inc., Mr. Vena-ble did admit that Amy Stern was an employee of a subsidiary owned by Tartan-Laver Delray, Inc. and that the Tartan companies did receive mail at 755 Dotterel Road. Mr. Venable never testified that Amy Stern was not an agent of the owner or was not authorized to receive mail for the Tartan companies at the Dotterel Road address. Mr. Venable testified only that Amy Stern was not an employee or agent, or otherwise affiliated with Tartan Construction Company.

      . See 1963 Amendment to 1935 Mechanic’s Lien law.

      . See § 713.06(2)(a), Fla.Stat. (1983).

      . It is significant that Symons never pled nor attempted to prove that it had been misled by information contained in the owner's notice of commencement. Section 713.13, Florida Statutes (1983), requires the owner to list his name, address, etc. on a notice of commencement. One copy of the notice must be recorded with the clerk of the circuit court while a second must be posted at the job site. Obviously, a key function of the notice of commencement is to provide a materialman with information to complete the required lien law notices. 1 S. Rakusin, Florida Mechanics’ Lien Manual, ch. 10 at 8 (1974). Although case law has held that an owner’s non-compliance with the statute does not excuse a materialman’s non-compliance, see Babe's Plumbing, Inc. v. Maier, supra, I have no hesitancy in suggesting that a material misrepresentation in the notice of commencement, which is reasonably relied upon by a materialman acting in good faith, could serve as a basis for estoppel. Estoppel, however, "is an affirmative defense which must be pleaded and proved before relief can be granted.” Goodman v. Habij, 424 So.2d 171, 172 (Fla. 3d DCA 1983). And as indicated, Symons did not attempt to travel upon this route.

      . Under the present statutory scheme, the only time at which a lienor can be paid, without first timely serving a notice to owner, is when the materialman is listed in the contractor’s final affidavit and the materialman’s time for service notice has not expired. See § 713.06(3)(d)(2), Fla.Stat. (1983); 1 S. Rakusin, Florida Mechanics’ Lien Manual, ch. 8, at 9 (1974).


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Rogelio HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-2404.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.

      Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. Public Defender, West Palm Beach, and Alvin E. Entin of Entin, Schwartz, Dion & Sclafani, North Miami Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

DOWNEY, Judge.

We previously affirmed this case without opinion. 455 So.2d 1042. On rehearing appellant cites several cases including one of our own, which held that a defendant sentenced after October 1, 1983, is entitled to be sentenced under the new sentencing guidelines. We have no quarrel with those cases but hold them inapposite.

Appellant and others were charged with 1) solicitation to traffic in marijuana and 2) trafficking in marijuana. At a plea conference, held April 20, 1983, all agreed to plead guilty to the solicitation charge in return for a sentence not to exceed five years and a nolle prosequi of the trafficking count, which carried a mandatory minimum sentence of three years. The trial court specifically warned the defendants they could assume they would each receive a sentence of five years unless some circumstance dictated a lesser sentence. Appellant was unable to appear at sentencing in September 1983 when the others were sentenced. At his sentencing October 26, 1983, appellant contended that, despite this plea bargain, he was entitled to be sentenced under the guidelines effective October 1, 1983.

Appellant cites Knight v. State, 455 So.2d 457, First District Court of Appeal, 1984, 9 F.L.W. 1707, as authority for sentencing under the guidelines. There the defendant failed to appear for sentencing prior to October 1, 1983, and a capias was issued. Defendant turned himself in and was sentenced after October 1, 1983, and the appellate court held the trial court was required to sentence defendant under the guidelines.

We would distinguish that case without approving its holding. Knight was convicted; no deals were made, and his sentencing occurred after the effective date of the guidelines. Here, appellant made a deal; he agreed to plead guilty to solicitation with a maximum sentence of five years. The court advised appellant he would probably receive five years. Having bargained for a maximum sentence appellant agreed he could be sentenced to any period within the five year maximum. In return for the guilty plea appellant received the benefit of a nol pros of the trafficking count. At sentencing the trial judge and the State offered to allow appellant to withdraw his plea and face prosecution under both counts of the information. However, appellant declined to withdraw his plea expressly stating through counsel, “Your Honor, we are prepared to be sentenced and to keep the issues as limited as they are right now.” Put another way, appellant chose to accept the benefits of the plea but reject the detriments, if any there be. We trust the state of the law has not degenerated to permit a defendant to reject the detriments of a plea bargain and retain only the benefits.

We adhere to our former decision affirming the sentence imposed by the trial judge who was a prominent member of the Flori-da Supreme Court Sentencing Study Committee, which helped formulate the sentencing guidelines.

ANSTEAD, C.J., and WALDEN, J., concur.


author: WENTWORTH, Judge.

text:
    Thomas Wayne HOUSER, Appellant, v. STATE of Florida, Appellee.
    No. AT-128.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.

      Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for the offenses of DWI manslaughter and vehicular homicide. We find that appellant has failed to present any point of reversible error, and we therefore affirm the judgments and sentences appealed.

Appellant was the driver of a motor vehicle which struck a concrete wall, killing a passenger in the vehicle. Chemical analysis of appellant’s blood indicated a blood alcohol level of 0.18%, and appellant was charged with both DWI manslaughter and vehicular homicide.

Prior to trial appellant sought to compel production of the blood sample for defense analysis, and the discovery was then made that the blood had not been continuously refrigerated after the initial analysis. Expert testimony established that a prolonged lack of refrigeration could diminish the blood alcohol content and thus impact the validity of any subsequent analysis. Appellant moved to suppress evidence relating to his blood alcohol content, asserting that the introduction of such evidence would violate his rights of confrontation and due process. The trial court denied the motion to suppress, and permitted evidence as to appellant’s blood alcohol content.

The state’s failure to preserve a blood sample for defense analysis does not of itself necessitate suppression of the state’s evidence; rather, the egregiousness of the state conduct and the resulting prejudice to appellant must be considered. Demps v. State, 395 So.2d 501 (Fla.1981); State v. Sobel, 363 So.2d 324 (Fla.1978); Salvatore v. State, 366 So.2d 745 (Fla.1978). And the exculpatory value of the evidence must be viewed in the context of the entire record. See California v. Trombetta, — U.S. —, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

With regard to substances identifiable only by chemical analysis, it is the analysis itself, rather than the physical substance, which is of primary importance to a defendant. See G.E.G. v. State, 389 So.2d 325 (Fla. 5th DCA 1980); cfi, Trom-betta, supra. In the present case the state’s blood analysis expert was available for cross-examination, and appellant presented no evidence which would undermine the accuracy of the expert’s methods and procedures or otherwise make independent analysis indispensable to a fair defense. We therefore find, in the context of the entire record, that the state’s failure to preserve a blood sample susceptible of defense analysis did not result in such prejudice as would warrant suppression of evidence derived from the chemical analysis of appellant’s blood.

Appellant also contends that he should not have been sentenced for both DWI manslaughter and vehicular homicide because only a single death occurred. However, DWI manslaughter, § 316.-1931(2), Florida Statutes, and vehicular homicide, § 782.071, Florida Statutes, are separate and distinct offenses, each requiring proof of an element which the other does not; the imposition of sentences for both offenses therefore does not violate protections against double jeopardy. See e.g., Scott v. State, 453 So.2d 798 (Fla.1984); State v. Baker, 452 So.2d 927 (Fla.1984); Borges v. State, 415 So.2d 1265 (Fla.1982). The legislature has authorized multiple punishments for separate offenses occurring in one criminal episode, see § 775.-021(4), Florida Statutes, and we find no error in the imposition of multiple sentences in the present case. Contra, Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984).

Appellant further contends that the state should have been precluded from introducing any evidence derived from chemical analysis for blood alcohol content since the Department of Health and Rehabilitative Services did not promulgate rules and regulations governing the administration of such chemical analysis until after appellant’s blood was examined. This issue was addressed in Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983), pending on certified question, Supreme Court Case No. 64,724, holding that such rules are procedural and may be applied to chemical tests administered prior to their adoption. Accord, State v. Fardelman, 453 So.2d 1183 (Fla. 5th DCA 1984).

We hereby certify that the decision in the present case is in direct conflict with Vela v. State, supra, and pursuant to Fla.R.App. P. 9.125, we further certify the following questions as issues which are of great public importance and which have great effect on the proper administration of justice throughout the state:

WHETHER EVIDENCE DERIVED FROM CHEMICAL ANALYSIS FOR BLOOD ALCOHOL CONTENT MAY BE ADMISSIBLE IF THE STATE DOES NOT PRESERVE A BLOOD SAMPLE SUSCEPTIBLE OF FURTHER ANALYSIS BY THE DEFENSE;
WHETHER A DEFENDANT MAY BE SENTENCED FOR BOTH DWI MANSLAUGHTER AND VEHICULAR HOMICIDE FOR EFFECTING A SINGLE DEATH;
WHETHER EVIDENCE OF BLOOD ALCOHOL CONTENT ESTABLISHED BY CHEMICAL ANALYSIS PRIOR TO THE ADOPTION OF HRS RULES RELATING THERETO MAY BE ALLOWED INTO EVIDENCE AT A TRIAL SUBSEQUENT TO THE ADOPTION OF SUCH RULES.

The judgments and sentences appealed are affirmed.

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

      . See generally, State v. Plawchan, 453 So.2d 496 (Fla. 1st DCA 1984), applying California v. Trombetta, — U.S. —, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), with regard to the state’s failure to obtain a preservable breath sample for defense analysis.

        . But see Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984); compare Johnson v. State, 419 So.2d 1144 (Fla. 2d DCA 1982); Miller v. State, 339 So.2d 1129 (Fla. 2d DCA 1976); Stewart v. State, 184 So.2d 489 (Fla. 4th DCA 1966). While Vela suggests that § 316.1931(2) and § 782.071 merely provide differing methods of proving the single offense of homicide, upon examining the statutes we must disagree. Section 782.071 is a homicide statute which circumscribes the fatal operation of a motor vehicle "in a reckless manner likely to cause ... death ... or great bodily harm...." Section 316.1931, however, merely establishes the applicable penalties for driving while intoxicated, and provides that:
      (2) ... if the death of any human being is caused by the operation of a motor vehicle by any person while so intoxicated, such person shall be deemed guilty of manslaughter and on conviction shall be punished as provided by existing law relating to manslaughter.
      This language, which immediately follows an enhancement of the penalty when less severe damage results, does not alter the primary focus of the statute — driving while intoxicated.


author: ERVIN, Chief Judge.

text:
    Samuel TOOLE, Appellant, v. STATE of Florida, Appellee.
    No. AT-238.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Michael Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., for appellee.
   ERVIN, Chief Judge.

Appellant, Toole, was charged with burglary of a structure “with the intent to commit the offense of theft therein” and with possession of a burglary tool. At trial, defense moved for judgment of acquittal at the close of the state’s evidence and renewed the motion at the close of all the evidence, asserting that there was no evidence of intent to commit theft. The motion was denied and a jury found Toole guilty as charged. Toole appeals the denial of his motion for judgment of acquittal.

On the date of the crime charged, the Tallahassee Moose Lodge building contained vending machines and appliances, having over $4,000 worth of inventory, liquor and food. Toole was not a member of the lodge and did not have permission to enter the building. At approximately 2:30 a.m. two lodge members saw a white male tinkering with the building’s south doors. He pried open the doors with a tool, went inside for about a minute, returned outside, picked up a ladder and used it to climb onto the building’s roof. When a sheriff’s deputy arrived at the scene, he told the man to halt, a shot was fired, and the man ran into a nearby wooded area. The deputy quickly captured him, returned him to the building and one of the above-mentioned eyewitnesses positively identified Toole as the white male who broke into the building. A police investigator found a screw driver in the woods where Toole was apprehended and it matched pry marks found on the lodge’s doors. Toole testified that he walked through the woods near the building as a shortcut to his house. When he heard shouts and a shot, he ran into the woods. He denied having anything to do with the burglary.

Under the rule iterated in State v. Waters, 436 So.2d 66 (Fla.1983), the state is required to charge only that Toole burglarized the building with the intent to commit an offense. Id. at 69. The pre- Waters information filed below charged that Toole did so with the intent to commit theft therein. Because the state has the burden of proving every essential element of the crime charged, Purifoy v. State, 359 So.2d 446, 449 (Fla.1978), we agree with Bennett v. State, 438 So.2d 1034 (Fla.2d DCA 1983), insofar as it interprets Waters as meaning that “if the state charges that a defendant did intend to commit a specific offense after the breaking and entering occurs, then the state must prove that the defendant did in fact intend to commit this offense.” Id. at 1035. Our disagreement with Bennett is the sufficiency of the proof necessary to sustain the charge.

Here, proof of Toole’s intent to commit theft was circumstantial. The Waters opinion discusses the sufficiency of such evidence and the standard for review of a denial of motion for judgment of acquittal as follows: “The element of intent, being a state of mind, often can only be proved by circumstantial evidence.” 436 So.2d at 71. The information in Waters, like the instant information, charged the defendant with burglary with the intent to commit theft. 436 So.2d at 68. The evidence at the Waters trial revealed that the occupant of the dwelling found the defendant trying to break into his locked room with a pair of pliers. The police later observed evidence of the attempted breaking. The room’s occupant testified that he had a television, a stereo phonograph and clothes in the room and that defendant did not have permission to enter the room or tamper with the lock. Id. at 68, 70-71. The supreme court observed that there are “numerous other cases in which the accused burglar did not succeed in actually stealing anything, but where the specific intent to steal was held to have been proved by the circumstances, including the presence of property or goods available to be stolen.” Id. at 72. Moreover, the question of defendant’s intent to commit theft is “a question of fact to be resolved based upon all the circumstances shown by the evidence.” Id. See also Rumph v. State, 248 So.2d 526, 529 (Fla. 1st DCA 1971), recognizing that when a person is charged with breaking and entering with intent to commit grand larceny, an essential element of the offense is his intent to commit grand larceny. The best evidence would be what he did in fact steal, but that intent can also be proved by other evidence or circumstances. Id. The supreme court held in Waters that the circumstantial evidence there presented was sufficient to enable the trier of fact to properly conclude that defendant had the intent to commit theft. 436 So.2d at 72-73.

Therefore, under Waters, proof of an alleged intent to commit theft can be circumstantial and evidence of the contents of the burglarized structure, along with other circumstances, is sufficient. Here the state offered eyewitnesses to show that Toole broke into the lodge building without permission and presented evidence of the presence of money and equipment inside the building. A reasonable jury was properly able to conclude that at the time Toole attempted to enter the building, he intended to commit the crime of theft therein.

Our holding conflicts with the Bennett decision’s analysis of the sufficiency of proof required to prove intent. The defendant in Bennett was caught inside a school and later admitted to breaking into the school but claimed that he wanted only to use the telephone. The state charged defendant with burglary, alleging an intent to commit theft. 438 So.2d at 1034. The appellate court reversed defendant’s conviction because the state failed to exclude the possibility that defendant intended to commit other offenses, including arson or vandalism, or that he in fact wanted to use the telephone. Id. at 1035-36. In our judgment, the Bennett analysis misinterprets Waters and imposes a burden on the state not required by Waters. Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), we certify the instant decision to be in direct conflict with Bennett v. State, 438 So.2d 1034 (Fla. 2d DCA 1983).

AFFIRMED.

BOOTH and WENTWORTH, JJ„ concur.


author: MILLS, Judge.

text:
    EDGEWOOD BOYS’ RANCH FOUNDATION and New Hampshire Insurance Company, Appellants, v. Kevin ROBINSON, Appellee.
    No. AU-330.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    See also Fla.App., 451 So.2d 532.
    Valeria A. Marshall, of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P.A., and Bill McCabe of Shepherd, McCabe &, Cooley, Orlando, for appellee.
   MILLS, Judge.

In this workers’ compensation action, Edgewood Boys’ Ranch Foundation and New Hampshire Insurance Company (E/C) appeal a lump sum award of permanent total disability (PTD) benefits. We affirm.

Robinson became a quadraplegic as a result of an industrial accident on 7 August 1975. He is currently 32 years old, married and has an 8-year-old daughter. The parties agree he is permanently and totally disabled. On 22 March 1983, Robinson petitioned for a lump sum advance of PTD benefits. The hearing on the petition was held on 5 May 1983.

Robinson's financial consultant, Turner, testified he had analyzed Robinson’s financial situation and prepared a plan for restructuring income and a financial program for the Robinsons. Turner also testified Robinson’s future PTD benefits reduced to present value equaled $111,000. This figure was based on Robinson’s life expectancy, the 4% statutory discount rate, and his compensation rate of $105 per week.

The financial plan was admitted into evidence. It was structured around the purchase of a $50,000, 30-year annuity and a new house specially constructed to accommodate Robinson’s physical condition. The plan provides for a net increase in spendable income of $569 per month.

Both Robinson and his wife testified they felt the lump sum advance would be in their best interests. Robinson testified the specially designed home would allow him greater independence.

Dr. O’Conner, Robinson’s original attending physician, prepared a report stating Robinson should have a normal life expectancy. This report was admitted into evidence at the hearing. The E/C presented no evidence concerning Robinson’s life expectancy.

By order dated 14 July 1983, the deputy granted the petition. He found Robinson has “a total diminution of wage earning capacity with little chance of returning to gainful employment in a competitive labor market setting.” The deputy also found the lump sum award would not materially prejudice the rights of the E/C, would be in the best interests of the claimant, and reasonable under the circumstances. The deputy ordered the E/C to pay Robinson $111,-000 as a lump sum advance of PTD benefits, “said money to be utilized for those purposes set forth in the investment plan and testimony at this hearing.”

The E/C argue: (1) Section 440.20(10), Florida Statutes (1975), is unconstitutional as applied; (2) the lump sum award is not in the best interests of the claimant, materially prejudicial to the carrier, and unreasonable under the circumstances; and (3) the 1983 amendments to Section 440.20(12) and (13), Florida Statutes (1979), Chapter 83-305, Laws of Florida, operate retroactively. We affirm on authority of Cone Brothers Contracting v. Gordon, 453 So.2d 420 (Fla. 1st DCA 1984) .

In Gordon, the same arguments advanced in this case for the unconstitutionality of Section 440.20(10), Florida Statutes (1975), and the retroactivity of the 1983 amendments were rejected. The deputy’s findings that the award is in the best interests of the claimant, not materially prejudicial to the E/C, and reasonable under the circumstances are supported by competent substantial evidence.

AFFIRMED.

SHIVERS and WIGGINTON, JJ„ concur.

      . We note a petition for review of our decision in Gordon by the Florida Supreme Court was filed on 24 August 1984.


author: THOMPSON, Judge.

text:
    John F. DAUGHARTY, Appellant, v. Faye Eubanks DAUGHARTY, Appellee.
    No. AV-467.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Rehearing Denied Oct. 29, 1984.

      Barry L. Zisser of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellant.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellee.
   THOMPSON, Judge.

In this appeal from a partial summary judgment rendered in an independent action to vacate the prior final judgment which dissolved the marriage of the parties and adopted and approved their property settlement agreement, the appellant (husband) asserts that the appellee (wife) failed to plead or prove the perpetration by the husband of the sort of extrinsic fraud which can be denominated fraud upon the court and which will warrant the vacation of a final judgment more than one year old. We agree with the husband’s contentions, and reverse.

In her complaint initiating the instant independent action, the wife asserted that the husband’s filing of a false financial affidavit in conjunction with the dissolution action amounted to fraud upon the court, and further alleged:

4. Prior to filing the Petition for Dissolution of Marriage, pursuant to which said Final Judgment was entered as aforesaid, the wife agreed to a request by Defendant that she discharge her attorney, JOHN SULIK, ESQUIRE, and use his attorney, THOMAS H. GREENE, ESQUIRE, who would select an attorney to represent her at the final hearing. Pursuant to that agreement, the wife was sent by Mr. Greene to one PAUL M. HARDEN, Esquire, who did in fact represent her at the final hearing [in the dissolution action].

The complaint includes no allegation of misconduct on the part of attorney Harden, whether by malfeasance, misfeasance, or nonfeasance, and no allegation beyond that quoted above which could even conceivably be construed as a suggestion that the husband improperly influenced the wife in her selection of an attorney or that he in some other manner prevented her from adequately presenting her case in the divorce action. After the husband answered the complaint in this case and moved for summary judgment, the wife filed her own motion for summary judgment, and submitted in support thereof an affidavit in which she asserted, inter alia, that she “was misled by Defendant, aided and abetted by Tommy Greene and Paul Hardin [sic] who purported to represent her interest in the dissolution of marriage proceeding.” The trial judge, expressly relying on Yohanan v. DeClaire, 421 So.2d 551 (Fla. 4th DCA 1982) and Brown v. Brown, 432 So.2d 704 (Fla. 3d DCA 1983), concluded that the property settlement portions of the divorce decree should be vacated and set aside.

In Yohanan, the Fourth District Court of Appeal essentially held that the filing of a false financial affidavit in a divorce action would amount to fraud upon the court as a matter of law. Yohanan did not discuss the distinction between intrinsic and extrinsic fraud. In Brown, the Third District Court of Appeal discussed at some length the distinctions between intrinsic and extrinsic fraud, and considered the application of these concepts to the final sentence of the first paragraph of Rule 1.540(b), Fla.R.Civ.P., which provides:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.

The Brown court concluded that the sentence should be read disjunctively and should be construed as authorizing:

an independent action to be relieved from a judgment upon allegations of extrinsic fraud or an independent action to set aside the judgment upon allegations of fraud upon the court, (emphasis in original)

432 So.2d 704, 714. We find that Yohanan and Brown did support the trial court’s decision to grant the relief appellee sought below, i.e., the vacation of the property settlement aspects of the final judgment of divorce. However, in a recent opinion filed after the rendition of the order herein appealed, the Florida Supreme Court quashed the decision of the District Court in Yohan-an, and disapproved of the holding in Brown insofar as it purported to authorize independent actions to set aside judgments more than one year old on grounds of fraud other than the type of extrinsic fraud which prevents a party from having an opportunity to present his case in court. See DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984). Because the principles of law enunciated in Yohanan and Brown have been disapproved by our Supreme Court, we would be without authority to affirm the judgment in this case even if we believed that appellee’s complaint properly alleged the perpetration by the husband of an extrinsic fraud. Here, as in DeClaire v. Yohanan, the allegedly false financial affidavit submitted by the husband was before the court which dissolved the marriage of the parties, and the husband’s financial condition was or could have been made an issue in that case. Accordingly, the accuracy of the financial affidavit could have been questioned in those proceedings. The appellee had an opportunity to question the accuracy of the affidavit, and, as noted by the Supreme Court in DeClaire:

Public policy has always favored termination of litigation after a party has had an opportunity for a trial and an appeal of the trial court’s judgment.

Here, as in DeClaire, the fraud perpetrated by appellant in connection with the filing of his financial affidavit, if indeed the affidavit was false, was intrinsic fraud and did not constitute fraud upon the court.

Although our Supreme Court’s action in quashing the Fourth District’s opinion in Yohanan, and in disapproving in part the principles enunciated in Brown, require reversal of the case sub judice, we conclude that this case must be remanded to the trial court with instructions to dismiss the wife’s complaint with leave to file an amended complaint should the wife feel that she can properly and in good faith allege misconduct by attorney Harden or collusion between Harden and her husband or her husband’s attorney which prevented her from presenting her case in the divorce action. Conduct by an attorney which amounts to connivance at the defeat of his own client, or conduct by a party which prevents an opposing party from fairly presenting his or her claim or defenses does constitute fraud on the court. De-Clairé v. Yohanan; Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514 (1946); Wescott v. Wescott, 444 So.2d 495 (Fla. 2d DCA 1984). The wife’s complaint does not allege corruption, collusion, or connivance in her defeat on the part of her attorney but merely alleges that the wife “agreed to a request” that she discharge her former attorney and use some other attorney who would be selected for her by the husband’s attorney. Although this allegation would appear to lay the groundwork for some further allegation of corruption or collusion, no such additional allegations appear. While the wife’s affidavit in support of her motion for summary judgment does include an averment that she “was misled by Defendant, aided and abetted by Tommy Greene and Paul Hardin [sic] ...,” this averment cannot take the place of specific allegations of facts tending to demonstrate misconduct on the part of attorney Harden or specific allegations of facts showing that Harden “connived in her defeat” or “corruptly sold out” her interest. See U.S. v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); DeClaire v. Yohanan. It is axiomatic that the facts and circumstances constituting an alleged fraud must be pled with specificity and particularity, even in ordinary civil actions to recover damages. In re Ruch’s Estate, 48 So.2d 289 (Fla.1950); Florida Life Insurance Co. v. Dillon, 63 Fla. 140, 58 So. 643 (Fla.1912); 27 Fla. Jur.2d Fraud and Deceit § 90, and authorities cited therein. We believe that in a case such as this, where a party seeks to vacate a final judgment which is regular on its face, has been affirmed on appeal, and is more than one year old, the requirement that fraud be pleaded with particularity is even more important than in ordinary civil actions. Because the wife failed to plead or prove that the conduct of the husband, the husband’s attorney or the attorney selected for her by the husband’s attorney amounted to fraud upon the court, this ease must be, and hereby is, reversed and remanded for further proceedings not inconsistent herewith.

SHIVERS and ZEHMER, JJ., concur.


text:
    CITY OF JACKSONVILLE, Appellant, v. David G. BAKER, etc., et al., Appellees.
    No. AX-116.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Rehearing Denied Oct. 17, 1984.

      Dawson A. McQuaig, Gen. Counsel and William Lee Allen, Asst. Counsel, Jacksonville, for appellant.
    David Wiesenfeld of Dawson, Galant, Su-lik, Ellis & Wiesenfeld, Jacksonville, for appellees.
   THOMPSON, Judge.

The City of Jacksonville (City) appeals a jury verdict in favor of the plaintiff Baker in a negligence action and from the trial court’s order granting new trial as to damages only. The City asserts: 1) that the City’s motion for directed verdict should have been granted, 2) that the City’s motion for a new trial should have been granted, and 3) that the trial court erred in granting new trial as to damages only. We affirm.

Baker was severely and permanently injured in an intersectional collision between an automobile and the motorcycle upon which he was riding as a passenger. Baker alleged in his complaint that his injuries were the result of the City’s negligence in failing to replace a stop sign which it had previously erected at the intersection, but which was not in place on the date of the accident. There was evidence that the stop sign had been missing from the intersection for a month or more, that the City knew or should have known that the sign was missing, and that it’s absence created a dangerous condition at the intersection.

The City’s defense was that the intervening negligence of the operator of the motorcycle was the sole proximate cause of the accident. Under the circumstances of this case the issue of proximate cause was properly left for the jury to resolve and the court did not err in refusing to direct a verdict for the City. Nor did the court err in refusing to grant the City’s motion for new trial.

Baker, who was only 20 years old at the time of trial, will be confined to a wheelchair for the rest of his life and the severe brain damage he sustained in the accident has left him incapable of performing even the most basic tasks for himself. His expert economist testified that his damages for lost wages alone will exceed $500,000. Baker obviously experienced great pain and suffering during the 11 months he spent in various hospitals and it is clear that he sustained an almost total loss of capacity for enjoyment of life.

The jurors deliberated for over five hours, during which time they requested and received a re-reading of the jury instructions. They then returned a verdict for appellee in the amount of $400,000. Baker moved for an additur or, alternatively, new trial on damages, and the motion was granted. The City’s rejection of the additur resulted in the issuance of the order granting new trial on the issue of damages only.

In the order granting a new trial as to damages, the trial judge expressly considered each of the criteria set out in § 768.043, Fla.Stat., for determining exces-siveness or inadequacy of a verdict. Her determination that the damage award in this case was inadequate was well supported by the facts and circumstances referred to in her order and her determination that the jury’s award was inadequate cannot be said to have been an abuse of discretion. Section 768.043, Fla.Stat. authorizes trial courts to order a remittitur or additur in automobile accident cases and provides, in pertinent part:

(1) In any action for the recovery of damages based on personal injury ... arising out of the operation of a motor vehicle ..., wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur.... If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

There are many cases in which the interest of justice requires that an order granting a new trial because of inadequate damages provide for retrial of the issue of liability as well as the issue of damages. See Gross v. Lee, 453 So.2d 495 (Fla. 1st DCA 1984); 1661 Corporation v. Snyder, 267 So.2d 362 (Fla. 1st DCA 1972); Duquette v. Hindman, 152 So.2d 789 (Fla. 1st DCA 1963). However, in this case this question is controlled by § 768.043, Fla. Stat. The language in the statute is mandatory and requires “[i]f the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.” (emphasis supplied).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


author: ZEHMER, Judge.

text:
    Aaron WOODWARD, Appellant, v. STATE of Florida, Appellee.
    No. AY-69.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.

      Aaron Woodward, pro se, for appellant.
    No appearance for appellee.
   ZEHMER, Judge.

This is an appeal from the denial of appellant’s motion filed under rule 3.850, Florida Rules of Criminal Procedure.

In 1976, appellant filed a 3.850 motion to vacate his sentence, which was denied and affirmed without opinion on appeal, 345 So.2d 432 (Fla. 1st DCA 1977). The instant motion, being the second motion filed by appellant, was summarily denied on the grounds that a trial court is not required to hear a second motion filed pursuant to rule 3.850 and “Petitioner, having already had an opportunity to file a Rule 3.850 Motion and to have the denial of said Motion reviewed on appeal, is now entitled to no relief.”

Pursuant to our order issued June 13, 1984, the trial court has supplemented the record on appeal with the previous motion and order of denial. These documents reveal that the 1976 motion attacked the propriety of the sentence imposed under section 813.011, Florida Statutes. The present motion seeks relief on grounds that appellant was deprived of the effective assistance of counsel. Since the instant motion asserts a completely different ground, the appealed order must be reversed and the case remanded to the trial court for consideration on the merits. McCrae v. State, 437 So.2d 1388 (Fla.1983).

We remand with directions that the trial court pass on the sufficiency of the grounds alleged in the motion and, if deemed necessary, attach portions of the record showing no right to relief, or hold an evidentiary hearing.

REVERSED and REMANDED.

SMITH and JOANOS, JJ„ concur.


author: GRIMES, Judge.

text:
    Larry Dean WINCHEL, Appellant, v. STATE of Florida, Appellee.
    No. 84-222.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.

      Jerry Hill, Public Defender, Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This case concerns the waiver of appellant’s right to a jury trial.

Appellant was charged with attempted robbery with a weapon and possession of a controlled substance. At the opening of trial, appellant was not present in the courtroom. The following colloquy occurred:

MR. FOGLEMAN [State Attorney]: I ASK THAT THE DEFENDANT BE SEATED AT DEFENSE TABLE.
MR. BRANNING [Defense Attorney]: I AM SORRY. I WILL GET HIM. I APOLOGIZE FOR THE DELAY.
THE COURT: MR. BRANNING, YOU HAVE WAIVED A JURY IN THIS CASE, IS THAT CORRECT?
MR. BRANNING: YES.
THE COURT: MR. FOGLEMAN, HAVE YOU AGREED TO THAT?
MR. FOGLEMAN: YES, YOUR HONOR, I HAVE.

Upon his return, the court did not directly question appellant as to whether he understood his right to a jury trial and whether he voluntarily waived that right. Appellant did not execute a written waiver of his right to jury trial. Shortly thereafter, he entered a plea of nolo contendere to the possession charge. He was then found guilty of attempted robbery at the nonjury trial.

A defendant’s knowing, voluntary, and intelligent waiver of jury trial must affirmatively appear in the record. Johnson v. State, 411 So.2d 1023 (Fla. 2d DCA 1982). Absent a written waiver, where the court does not inquire of the defendant personally concerning whether he understands his right to jury trial and whether he has voluntarily agreed to waive that right, the defendant is entitled to reversal of his nonjury trial conviction. Cirio v. State, 440 So.2d 650 (Fla. 2d DCA 1983); see also Otis v. State, 444 So.2d 1177 (Fla. 2d DCA 1984); Fla.R.Crim.P. 3.260. Here, appellant was not present at the time of the oral waiver, he did not state his concurrence with the action of his trial counsel, and he did not sign a written waiver. Thus, appellant did not voluntarily waive his right to trial by jury.

We hereby reverse appellant’s conviction of attempted robbery and remand for further proceedings.

RYDER, C.J., and CAMPBELL, J„ concur.


author: PER CURIAM.

text:
    MONARCH CRUISE LINE, INC., Appellant, v. LEISURE TIME TOURS, INC., and Leisure Time Travel, Inc., Appellees.
    No. 83-2074.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      Shutts & Bowen and Glenn G. Kolk, Miami, for appellant.
    Hugh F. Quinn, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal by Monarch Cruise Lines, Inc. from an order granting a rehearing to the plaintiffs/appellees, Leisure

Time Tours, Inc. and Leisure Time Travel, Inc., following a non-jury trial.

The grounds stated in the order under appeal were as follows:

“(a) It is apparent to the Court that counsel for the plaintiffs may have been misled into a premature trial based upon the pre-trial stipulation entered into between the parties.
(b) That justice requires that there be a full and complete trial of all of the issues at one time, and not in a bifurcated manner as was done heretofore.”

The parties went to trial expecting that the hearing would be bifurcated, as had been stipulated to and approved by the court. However, after hearing the evidence presented by both parties the court announced that it would enter a final judgment on the basis of the evidence presented.

The appellees contend that they were misled by the court, resulting in their failure to be fully prepared for the hearing in that a material witness was not then available to testify.

Appellant’s point on appeal is that the trial court erred in granting a rehearing without any proof of the alleged new evidence or showing as to why it was not presented at the hearing. We find appellant’s contention to be without merit, and affirm.

In reviewing this type of discretionary act of the trial judge, the appellate court should apply the reasonableness test to determine whether the trial court abused its discretion. 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. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980). The ruling should stand, unless it appears that there was a clear showing that the trial court abused its discretion. Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975); Cloud v. Fallís, 110 So.2d 669 (Fla.1959).

The record in this case does not establish that the trial court abused its discretion in granting appellees’ motion for a rehearing on the grounds set forth in the order. Accordingly, the order appealed is affirmed.

Affirmed.

      . We have jurisdiction, pursuant to Rule 9.110(a)(3), Fla.R.App.P., since the order in effect grants a new trial.


text:
    METROPOLITAN DADE COUNTY, Appellant, v. Edward T. MOLLOY, Appellee.
    No. 83-2448.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Robert A. Ginsburg, Dade County Atty., and Lee Kraftchick, Asst. County Atty., for appellant.
    Lionel Barnet and James H. Greason, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   PER CURIAM.

Metropolitan Dade County (County) appeals from an order granting Edward Mol-loy’s motion to vacate a decision of the Dade County Career Service Grievance Appeal Panel. For the reasons which follow, we affirm in part and reverse in part.

Molloy complained that he had been placed at the wrong pay step three years earlier when he was transferred from the County’s “exempt” service to its “classified” service; the County’s Personnel Director reclassified Molloy to a higher pay step and directed that Molloy’s salary be adjusted prospectively. Molloy, following County procedure, filed a grievance alleging he was entitled to back pay.

The grievance panel entered its award finding that Molloy was not entitled to back pay and, further, that he should be reclassified to his former lower-paying position. Molloy filed an action in the circuit court seeking to vacate the arbitration award. The trial court granted the relief requested, bottoming its decision on the grounds that the grievance panel was improperly constituted and that the panel exceeded its jurisdiction in reducing Molloy’s classification.

This record is devoid of any proper objection by Molloy regarding the composition of the grievance panel or the procedures it employed, nor did Molloy demonstrate any prejudice which satisfies the requirements of section 682.13(l)(d), Florida Statutes (1981), which would justify the vacation of the panel decision determining no entitlement to back pay. Lumbermens Mutual Casualty Co. v. Martin, 399 So.2d 536 (Fla. 3d DCA 1981); Travelers Indemnity Co. v. Walton, 384 So.2d 939 (Fla. 3d DCA 1980); Jess Parrish Memorial Hospital v. Florida Public Employees Relations Commission, 364 So.2d 777 (Fla. 1st DCA 1978).

The trial court correctly determined that the panel exceeded its jurisdiction by ordering in its award a change in Molloy’s present classification.

The correctness of Molloy’s reclassification was not a necessary sub-issue to Mol-loy’s entitlement to back pay, was not framed by the pleadings, tried by consent, or otherwise put into issue by Dr. Molloy and, therefore, it was error for the grievance panel to decide this issue and reduce Molloy’s classification as a result. See § 682.13(l)(c), Fla.Stat. (1981); G&N Construction Co. v. Kirpatovsky, 181 So.2d 664 (Fla. 3d DCA 1966).

The trial court’s order is affirmed to the extent that it vacates that portion of the grievance panel’s award reducing Molloy’s classification and reversed to the extent it grants Molloy a new hearing to reargue his entitlement to back pay.

Affirmed in part; reversed in part.


text:
    The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellant, v. Herbert Hildo ROMERO, Appellee.
    No. 83-2667.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      Robert A. Ginsburg, County Atty. and Gary A. Siplin, Asst. County Atty., for appellant.
    Mark King Leban; Stephen I. Mechanic, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The order granting the surety’s application for remission of forfeiture is reversed upon a holding that (1) where, as here, the criminal defendant was not surrendered by the surety nor otherwise apprehended, the trial court was without jurisdiction to entertain the application for remission not made “within one year from forfeiture,” as required by Section 903.28, Florida Statutes (1981); (2) even if, arguendo, this statutory limit for applications for remission could be extended by the trial court upon a motion made before expiration of the year, no legally sufficient motion was made within such period of time; and (3) even if, ar-guendo, the application for remission had been timely made, no showing was made that the bond was not breached, that the defendant was surrendered, or that there was some other reasonable cause for remitting the forfeiture.

Reversed.


author: SCHWARTZ, Chief Judge.

text:
    Bonnie L. YOUNG, Appellant, v. Harvey L. YOUNG, Appellee.
    No. 83-3030.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      Krongold & Bass and Paul Bass, Coral Gables, for appellant.
    Buehbinder & Elegant and Harris J. Buchbinder and Carolina A. Echarte, Miami, for appellee.
    Before SCHWARTZ, C.J., HUBBART, J., and WINIFRED J. SHARP, Associate Judge.
   SCHWARTZ, Chief Judge.

Ms. Young appeals from the denial of her 1983 motion to increase the $300.00 per week in support for the parties' now eighteen and eleven-year-old daughters provided in a 1980 stipulation incorporated into the final judgment of dissolution. We affirm.

Early in this proceeding, Young agreed — and thus successfully resisted discovery into his present financial situation, see Powell v. Powell, 386 So.2d 1214, 1215 n. 4 (Fla. 3d DCA 1980) — that he had the ability to pay any required upward modification in his child support obligations. See also, e.g., Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA 1980), pet. for rev. denied, 392 So.2d 1378 (Fla.1980). However, notwithstanding dictum to the contrary in Schottenstein, in which the record showed and the husband conceded the existence of an increase in needs for which he was not providing, a greater ability to pay is not alone sufficient to require modification. As we would express the “true rule,” there must also be an increase in the children’s needs which may be met only by a change in the existing judicial award. Diaco v. Diaco, 363 So.2d 183, 185 (Fla. 2d DCA 1978); see Frantz v. Frantz, 453 So.2d 429 (Fla. 3d DCA 1984). It is the latter, emphasized element of the “needs” requirement which is lacking here. •

This issue, that is, whether a modification of an award to the mother is required to satisfy the increased needs of the children, is squarely presented in the present case because the thrust of the wife’s position is that an objective increase in the children’s needs has in fact taken place and, even more, has been acknowledged by Mr. Young himself in the most persuasive way possible — by paying them. In this regard, it is undisputed that, since the dissolution, Young has made extensive voluntary payments, in excess of the court award, to and for the benefit of the children. For example, as noted in the trial court’s order, he has furnished his older daughter with an automobile, gasoline, automobile maintenance, automobile insurance, as well as $30.00 per week allowance and, on occasion, her lunches. In addition, he provides for his younger daughter by paying her tuition and transportation for private school, and pays for the medical expenses of both children.

On this ground, the appellant argues that reversal is required so that the judgment will reflect what is thus the admitted increase in both needs and ability. We do not agree. The decisions on the point establish that a trial court does not abuse its discretion in refusing to incorporate into a court order what the supporting party, typically but surely not always the father, is voluntarily providing for the children’s benefit. Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980); Diaco v. Diaco, supra; Task v. Oesterle, 380 So.2d 1316 (Fla. 3d DCA 1980).' The common basis of these decisions — which we follow here — is that a mandatory requirement of this kind is not necessary, and often not desirable, for the welfare of the children— whose own interests, rather than those of the custodian-mother, are the only ones at stake in such a proceeding. E.g. Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946). Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 107 (Fla.1970), upon which the appellant heavily relies, is — not to coin a phrase — the exception that proves the rule. There, a modification to incorporate the extent of the previously voluntarily made payments was deemed necessary for the children’s protection because the husband had ceased making them when the action was filed. See the discussion of Jelke in Tash, supra, 380 So.2d at 1318. Nothing of the kind occurred in this case. Compare also, Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981), pet. for rev. denied, 402 So.2d 612 (Fla.1981) (citing Jelke, but reversing denial of modification for reconsideration only in light of ruling upon remand as to termination of alimony).

The mother’s certainly correct assertion that the children are entitled to share in Mr. Young’s increased standard of living and ability to pay, Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983); Brooks v. Brooks, 423 So.2d 995 (Fla. 3d DCA 1982), overlooks the fact that (unlike Schottenstein) they are in fact doing so through his unforced contributions. Similarly, we are not insensitive to her expressed concern that reliance on the voluntary act of the father may and in fact has led to an undermining of the children’s relationship with Ms. Young, and may also affect their preference as to with whom they wish to live. Conflicts of this kind, however, are unfortunately almost invariably inherent in the conscious or unconscious competition for the children which follows even the most amicable dissolution. And we fail to see that these conflicts may be avoided or that any interest of the children, whether to material advantage or emotional stability, is necessarily furthered by substituting their reliance upon the father’s voluntary generosity for dependence instead upon a coerced obligation directed by the court through the collecting conduit of the mother. As was well expressed in Bullard:

It is sometimes better to encourage natural parental devotion and generosity, rather than to stifle it by rigid orders that tend all too often to become “obligations” in a sense that should be alien to the parent-child relationship. Besides, if [the husband] ever should actually shirk his parental duties, the courts are always open.

385 So.2d at 1121-1122.

In sum, in the absence of a “rule of law,” Kuvin v. Kuvin, 442 So.2d 203, 204 (Fla. 1983), that modification must follow voluntary payments — a rule which does not now exist and which we decline to establish— the issue is one for the discretion of the judicial entity which knows the members of the family and their interrelationships best, the trial court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). No abuse of that discretion has been demonstrated.

Affirmed.

      . The order under review states as follows:
      THIS CAUSE came on before this Court on the Respondent/Wife’s Petition for Modification, and the Court having considered the pleadings, including the Husband’s admission that he has the ability to pay any reasonable amount of child support awarded by this Court, and being otherwise fully advised in the premises, the Court finds as follows:
      This Court acknowledges that there has been an increase in the cost-of-living since 1980; and that normally, as children become older, their expenses increase. In this case, however, many of the expenses which the Wife had incurred at the time of the dissolution of marriage have been reduced. The mortgage payments, utility bills and house maintenance are less than they were in 1980. At the present time, the Husband supports the parties’ two other children (over the age of 18 years), and also voluntarily provides on behalf of the children residing with the Wife the following: he furnishes the older daughter with an automobile, gasoline, automobile maintenance and automobile insurance. He gives her a $30.00 per week allowance and, in most instances, provides her with lunches since she is employed at the Husband’s business. As to the younger daughter, he pays for her tuition in private school, pays for her transportation to and from private school (although the Wife is available but refuses to take the child to and from school). In addition, the Husband pays for the medical expenses of both children.
      This Court therefore finds that the Wife in fact does not expend the entire $300.00 per week which she is presently receiving as child support in behalf of the children. The Court believes that any increase in child support payments which this Court may award would not be required for the support of the children residing with the Wife; but in reality, would constitute support for the Wife which she had previously agreed to waive when she received a substantial lump-sum settlement and subsequently remarried.
      In light of the foregoing, and in light of the opinion in Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980), this Court denies the Wife’s Petition for Modification.

      . The child custody and support terms of the stipulation provided:
      4. The four (4) children born of this marriage are: MICHAEL S. YOUNG, born December 31, 1962; ANDREW D. YOUNG, born February 3, 1965; ELIZABETH A. YOUNG, born January 3, 1966; and JENNIFER S. YOUNG, born June 26, 1973. At the present time MICHAEL and ANDREW, by their own choice, are living with their father. ELIZABETH and JENNIFER, by their own choice, are living with their mother. Joint, legal custody of all four (4) children is granted to both parents with the express understanding that when any children are living with a particular parent that that parent will have the right and privilege of making the final decisions concerning their best welfare provided always that with regard to any major decisions each parent shall keep the other informed and seek the others advice. Nothing contained in this Stipulation shall prevent any of the children from seeking to live with either parent nor will anything in this Stipulation operate to prevent either parent from seeking the authority and power of the Court in order to cause the children to reside with one or the other of the parents. However, neither parent will seek to induce or influence any child to quit living where they are and both parents agree not to do or say anything detrimental to the children about the other parent.

      8. Beginning July 1, 1980 and until JENNIFER reaches age twenty-one (21), HARVEY will pay to BONÑIE, THREE HUNDRED (1300.00) DOLLARS per week as child support. July 1, 1980 is a Tuesday and said sum will be paid to BONNIE on each succeeding Tuesday thereafter until, as aforesaid, the twenty-first birthday of JENNIFER. As afore-described, ELIZABETH and JENNIFER are now living with their mother and said THREE HUNDRED ($300.00) DOLLARS per week is earmarked for the support of both children. However, HARVEY understands and agrees that when ELIZABETH reaches age twenty-one (21) or is otherwise emancipated, he may not seek modification or reduction of the aforedescribed sum. HARVEY recognizes that under the present Constitution of the State of Florida children are emancipated at age eighteen (18) but nevertheless he agrees to pay this child support until age twenty-one (21). It is further Stipulated and agreed that so long as HARVEY continues to support ELIZABETH and JENNIFER as aforede-scribed that he may claim said two (2) children as deductions on his income tax return. It is further stipulated and agreed that in the event either MICHAEL or ANDREW or both of them decide or elect to live with BONNIE that for each such child making such an election the husband will pay to the wife, as and for additional child support, FIFTY ($50.00) DOLLARS per child per week, plus providing clothing, so long as said child continues to reside with BONNIE but in no event beyond the time the particular child reaches age twenty-one (21). In addition to the foregoing, HARVEY will pay all reasonable medical, dental and drug expenses for the children until age twenty-one (21) and speech therapy expenses for JENNIFER, if necessary. In the event the children decide to go to summer camp, BONNIE and HARVEY will divide equally the cost for such summer camp. HARVEY agrees to pay to Temple Beth, Am the $1,000 due for JENNIFER.

      . The trial court found, and the record supports the conclusion, that, at the least, there has been no increase in the out-of-pocket expenditures for the children which must be borne by the appellant. The admitted increase in the cost of living between 1980 and 1983, which Ms. Young stressed below, was therefore not shown to have had any real effect upon her and thus does not itself require modification. Greene v. Greene, 372 So.2d 189 (Fla. 3d DCA 1979); compare, Powell v. Powell, supra.

      . We note, however, both that the parties’ agreement, see n. 2, supra, gives wide range, even beyond that ordinarily accorded to the wishes of older children, see Gall v. Gall, 336 So.2d 10 (Fla. 2d DCA 1976), to the volitional preferences of the parties’, daughters, and that the wife claims no breach of their wise agreement not to detract in any way from the other parent.


text:
    HARRY’S RESTAURANT & LOUNGE, INC., d/b/a Harry’s Restaurant & Lounge, Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO, Appellee.
    No. AV-52.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1984.
    Theodore L. Tripp, Jr. of Moorey, Seals, Garvin & Tripp, Fort Myers, for appellant.

      Louisa E. Hargrett and Janice G. Scott, Dept, of Business Regulation, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant, the holder of a special beverage license issued pursuant to § 561.-20(2)(a)3, is seeking review of a final order of the Division of Alcoholic Beverages and Tobacco which found it guilty of violating § 561.20 and § 561.15(3)(c), Florida Statutes, and Florida Administrative Code Rule 7A-3.15. We affirm in part and reverse in part.

On July 14, 1982, at approximately 10:30 p.m., two beverage agents entered appellant’s place of business, Harry’s Restaurant and Lounge. After being seated near the dance floor, the agents were approached by a waitress who asked them what they would like to drink. They ordered two beers and then asked if they could see a menu. The waitress told the agents that the only thing available was a hamburger platter, and that they did not specialize in food that late at night. The next night, the two agents returned at approximately 11:00 p.m. and sat on the opposite side of the room. A different waitress approached them and again they requested a menu. They were told that the kitchen was locked and that Harry had the key. About half an hour later the waitress returned with a menu and said that the key had been found, but the only things available on the menu were the hamburger and cheeseburger platters. On both nights a band was playing, the establishment was crowded, and no food service was observed.

Several days after the agents’ visit to Harry’s, one of them returned during the day and met with the owner, Harry Pop-ham, Jr., to review the business records and books. Those records showed that for each of the six months during which Harry’s had been operating (it opened in January, 1982), its food sales percentage had been less than 51% of its total sales.

On August 9, 1982, the Division served Harry’s with a notice to show cause why its license should not be disciplined for violation of the Beverage laws. The notice alleged that Harry’s had violated § 561.20 and Florida Administrative Code Rule 7A3.-15 on two occasions by failing to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued. § 561.20(2)(a)3; FACR 7A-3.-15(1). A third charge alleged, after amendment, that the principal business of the licensed premises was not the serving of bona fide meals, and that the licensee did not meet the requirements of § 561.20, i.e., that Harry’s was operating in violation of the beverage laws by failing to derive 51% of its gross revenues from the sale of food and nonalcoholic beverages. The charge also cited § 561.15(3)(c).

A formal hearing was held on March 16, 1983, and the hearing officer entered a recommended order finding that appellant had violated § 561.20(2)(a)3 by continuing to serve alcoholic beverages after the hours of serving food had elapsed, and by failing to derive 51% of its gross revenues from the sale of food and nonalcoholic beverages for the period of January through June 1982, as charged in the Notice to Show Cause. The recommended order, which was entered on May 12, 1983, included a finding that from December 1982 through March 15, 1983, Harry’s had derived at least 51% of its income from the sale of food and nonalcoholic beverages. The hearing officer also found that although Harry’s had failed to derive 51% of its income from the sale of food and nonalcoholic beverages during the time charged in the Notice to Show Cause, the Division had failed to prove that Harry’s principal business was not the serving of bona fide meals.

The Division’s final order dated August 9, 1983, adopted the recommended order with two significant changes. First the Division found, under the section of the final order designated “Conclusions of Law,” that Harry's failed to operate primarily as a restaurant during the charged period. Second, in imposing the penalty for the violations, the Division required appellant to produce records demonstrating that for the period June 1, 1982, through July 31, 1983, Harry’s met the 51% requirement of § 561.20(2)(a)3 and that “[flailing such showing, said license ... shall be revoked unless Respondent voluntarily reduces the series of said license.”

We agree with appellant’s contention that the referenced portion of the penalty is improper. The charges against appellant related to alleged failure to comply with the 51% requirement during a specific period of time different from the period of June 1, 1982, through July 31, 1983. Whatever the reason for the hearing officer’s gratuitous finding that appellant had met the requirement during part of that time period, the Division may not circumvent the procedural requirements of the Florida Administrative Procedure Act by conditioning its penalty on proof of compliance for a period of time different from that charged and heard herein.

We are also unable to affirm the conclusions that appellant failed to meet the 51% requirement and failed to operate primarily as a restaurant. Florida Administrative Code Rule 7A-3.15(2)(a) provides:

(b) The restaurant must derive at least 51% of its gross revenue from the sale of food and non-alcoholic beverages, except those restaurants issued special restaurant licenses prior to April 18, 1972 which shall be required to derive at least 30% of its gross revenue from the sale of food and non-alcoholic beverages. The 51% or 30% shall be determined by taking the average monthly gross revenue of the sale of food and non-alcoholic beverages over a period of any calendar year, [e.s.]

The emphasized language clearly shows that a violation may not be based on a licensee’s income over a period of less than one year. The charge and the proofs in this case were limited to a six-month period and could not, accordingly, support a finding that appellant was not in compliance with the 51% requirement at the time alleged. Appellee’s argument that § 561.-15(3)(c) is not affected by the one-year requirement is erroneous since, in this ease, the Division could not show an inability to qualify for a new license without proving the failure to meet the 51% under the rule.

Although labeled a “Conclusion of Law” the Division’s finding that appellant failed to operate primarily as a bona fide restaurant is, in reality, a finding of fact. As such, it is an improper rejection of the hearing officer’s finding of fact since the officer’s finding is supported by the record. § 120.57(l)(b)9, Florida Statutes. Because the parties agree that appellant met all of the § 561.20 requirements for a special license except the 51% requirement, and because the Division failed to prove non-compliance with that requirement, the finding that appellant was in violation as alleged in Count III is reversed.

We affirm the finding of violation as to the two counts alleging failure to discontinue the sale of alcohol after discontinuing the sale of food (as defined by rule) because the agent’s testimony could be (and was) construed by the hearing officer as showing that service of full course meals had in fact been discontinued at the time of the visits. We do not, however, accept the Division’s apparent contention that a hamburger may not constitute an entree for purposes of meeting the requirements of a “full course meal” as that term is defined in Rule 17a-3.15(a).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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

      . The menu was titled "Harry’s Late Night” and listed several items other than the hamburger and cheeseburger plates.

      . Verbatim, the amended third count alleged:
      The principal business of the licensed premises is not the serving of full course, bona fide meals and the licensee does not meet the requirements of sec. 561.20, Fla.Stat., to hold a special restaurant license. Section 561.-15(3)(c), Fla.Stat.

      . The pertinent part of § 561.15(3)(c) provides: Any license issued to a person, firm or corporation that would not qualify for the issuance of a new license or the transfer of an existing license may be revoked by the division.

      . Agencies are not, of course, permitted to characterize a hearing officer’s factual findings as legal conclusions in order to avoid the statutory restrictions on rejecting findings of fact. § 120.57(l)(b)9; Silver Sand Co. v. Department of Revenue, 365 So.2d 1090 (Fla. 1st DCA 1979).

      . The order found that "on July 14 and 15, 1982, the Respondent was serving alcoholic beverages at a time when it had discontinued offering and serving full course meals.” (e.s.)