author: SMITH, Judge.

text:
    Carron M. CUTLER, Appellant, v. The BOARD OF REGENTS OF the STATE OF FLORIDA, Appellee.
    No. AN-169.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.

      Frank T. Johnson, Tampa, for appellant.
    Pamela L. Lutton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

This is an appeal by Carrón M. Cutler from an order dismissing her complaint, with prejudice, for failure to state a cause of action against the Board of Regents (BOR). An underlying issue in this case is whether sovereign immunity acts as a bar to recovery for damages sustained by appellant when she was assaulted and raped by three armed assailants in her dormitory room on the campus of Florida Agricultural and Mechanical University (FAMU). Finding that appellant should be given an opportunity to amend her complaint to allege ultimate facts entitling her to relief, we reverse and remand to the trial court.

When considering a motion to dismiss for failure to state a cause of action, factual allegations of the complaint must be taken as true and all reasonable inferences are assumed in favor of the plaintiff. Ralph v. City of Daytona Beach, — So.2d - (Fla.1983), Case No. 62,094, opinion filed February 17,1983 [8 FLW 79] (rehearing pending); and Bryan v. State Department of Business Regulation, 438 So.2d 415 (Fla. 1st DCA 1983). The facts as alleged in the complaint, may be fairly summarized as follows: Appellant entered FAMU as a freshman in 1979. She contracted for living accommodations in the university owned and operated Wheatley Hall. FAMU represented to her that the university dormitory was reasonably safe and secure for the safety of female students and no unusual steps needed to be taken to insure her safety from sexual and other violent assaults within the dormitory. At the same time, university officials were aware or should have been aware of the existence of numerous other assaults, attacks, and rapes on female members of the university community. On or about May 2 or May 3, 1980, three armed assailants used the common areas of the dormitory to gain entrance into appellant’s room where the sexual and physical assaults occurred.

Appellant’s complaint alleges liability in five counts: (1) breach of warranty of habitability; (2) failure to control conduct of third person; (3) breach of duty to anticipate; (4) misrepresentation; and (5) failure to maintain common areas. A number of these counts contain an amalgam of tort and contract principles. In essence, however, counts two, three, four and five primarily attempt to allege a cause of action for negligence, while count one attempts to allege breach of a contractual obligation to plaintiff. Initially we examine counts two, three, and five, which we perceive as an attempt to charge BOR with a breach of its duty to provide reasonable security from foreseeable criminal acts against student tenants by third party intruders.

The landlord’s duty to protect his tenants against the criminal activities of third persons has been the subject of considerable litigation. Annotation, 43 A.L. R.3d 331 (1972). Although Florida recognizes no duty on the landlord’s part to protect his tenants against criminal conduct of third persons merely by reason of the landlord-tenant relationship, recent Florida decisions have held that a landlord, who recognizes and assumes the duty to protect his tenants from foreseeable criminal conduct, may be liable if he fails to take reasonable precautions to prevent injury to his tenants from this conduct. Lambert v. Doe, 453 So.2d 844 (Fla. 1st DCA 1984); Ten Associates v. McCutchen, 398 So.2d 860 (Fla. 3d DCA 1981); Whelan v. Dacoma Enterprises, Inc., 394 So.2d 506 (Fla. 5th DCA 1981); and Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980). However, it does not appear to be settled in Florida whether liability may be predicated on foreseeability alone, i.e., whether a landlord has a duty to provide reasonable security from foreseeable criminal acts against tenants by third party intruders, absent an allegation that the landlord expressly or impliedly assumed such a duty. Ten Associates v. McCutchen, 398 So.2d 860, 862 n. 2.

Although appellant attempts to allege foreseeability, the bare allegations of her complaint are conclusory in nature, without supporting facts. She alleges that university officials were aware, or should have been aware, of the existence of other assaults and rapes on female members of the university community; but she has failed to allege where or when these assaults and rapes occurred, or any other circumstances indicating the basis upon which to presume such knowledge on the part of BOR. Did they occur on or nearby the FAMU campus or in the next town? Did they occur at some remote time in the past, or within reasonably close proximity in time to the attack against appellant? See Highlands Insurance Company v. Gilday, 398 So.2d 834 (Fla. 4th DCA 1981); and Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1981). Moreover, the complaint fails to allege that FAMU either expressly or impliedly assumed a duty to provide adequate security measures at Wheatley Hall. No facts are alleged concerning security measures in force at the time the landlord-tenant relationship between the parties began or whether such security measures, if they existed, were in force when the rape occurred. Although appellant does allege that FAMU represented to her that the university was reasonably safe and secure for the safety of female students, we are unable to infer from this allegation facts sufficient to support a cause of action for breach of an assumed duty to protect student tenants from foreseeable criminal conduct. Nevertheless, since this was appellant’s initial complaint, an opportunity to amend should have been given under the rule favoring liberality of amendments so that the merits of the case may be reached. Sapp v. City of Tallahassee, 348 So.2d 363, 366 (Fla. 1st DCA 1977).

A further comment is necessary concerning appellant’s attempt to allege misrepresentation. Noticeably absent from this count is an allegation concerning her reliance upon the university’s representations that Wheatley Hall was reasonably safe and secure, and that appellant needed to take no unusual steps to insure her safety from sexual and other violent assaults in the dormitory. Restatement of Torts, 2d, §§ 552-552B. Again, we cannot fairly infer this necessary element from the limited factual allegations in this complaint. But as with the other counts based on negligence, we are of the view that appellant should be given an opportunity to amend to include, if she can, the necessary allegations to support her cause of action for negligent misrepresentation. Sapp v. City of Tallahassee, supra.

Next, we address the question of whether the trial court’s dismissal order should nevertheless be sustained on the grounds that sovereign immunity bars any cause of action against BOR based on negligence. Resolution of this question requires that we determine whether the landlord functions performed by BOR are “operational-level” or “judgmental, planning-level” functions of government as discussed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). Bryan v. State Department of Business Regulation, supra.

Unfortunately, any analysis based upon Commercial Carrier is hopelessly impeded by the sparsity of factual allegations in the complaint. Since we have previously determined that appellant should be given an opportunity to amend her complaint to include the ultimate facts which will entitle her to relief, if she can, a determination under Commercial Carrier must await any amended complaint. See Kirkland v. State, Department of Health and Rehabilitative Services, 424 So.2d 925 (Fla.1983).

We have not overlooked the cases cited by BOR, which have held that deployment of police officers and campus security personnel is a planning-level governmental function which deserves immunity from tort liability. Wong v. City of Miami, 237 So.2d 132 (Fla.1970); Relyea v. State, supra; and Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979). See also, Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), pet. for rev. den., 441 So.2d 632 (Fla.1983). Nevertheless, due to the evolving nature of this particular area of the law, we cannot preclude the possibility that appellant may be able to state a cause of action for negligence against BOR. Huhn v. Dixie Insurance Company, 453 So.2d 70 (Fla. 5th DCA 1984) (municipal corporation does not enjoy sovereign immunity for actions of police officers who stop visibly intoxicated driver who is operating motor vehicle in careless and reckless fashion, but do not arrest or detain driver who later causes injury to plaintiff — conflict certified); LeMieux v. Miami Dade Community College, 448 So.2d 560 (Fla. 3d DCA 1984) (error to enter summary judgment where factual issues remain concerning injuries sustained when plaintiff was attacked by an intruder in a restroom at Miami Dade Community College); Palmer v. City of Daytona Beach, 443 So.2d 371 (Fla. 5th DCA 1983) (city may be held liable to property owner for damages caused by negligent acts of city’s firefighters in combating fire — question certified); Smith v. Department of Corrections of State, 432 So.2d 1338 (Fla. 1st DCA 1983) (DOC not entitled to immunity from liability where an inmate, negligently given preferential treatment and placed in inadequately supervised confinement, escapes and commits armed robbery injuring plaintiff); Cottone v. Broward County School Board, 431 So.2d 355 (Fla. 5th DCA 1983) (summary judgment error in action for injuries sustained by female high school student while engaged in flag football game); and Relyea v. State, 385 So.2d at 1382. Contra, Ursin v. Law Enforcement Insurance Company, Ltd., 450 So.2d 1282 (Fla. 2d DCA 1984) (suit by plaintiff, who was kidnapped and sexually molested by prisoner who escaped while serving as trustee in jail house kitchen barred by sovereign immunity — conflict certified); Rodriguez v. City of Cape Coral, 451 So.2d 513 (Fla. 2d DCA 1984) (sovereign immunity bars suit against city and city police officer for failure to take intoxicated pedestrian into protective custody and pedestrian subsequently killed); accord City of Cape Coral v. Duvall, 436 So.2d 136 (Fla. 2d DCA 1983); and Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983). We caution that this recitation of authorities should not be construed as a comment by this court on the merits of any of appellant’s alleged causes of action or for that matter, whether BOR may or may not enjoy sovereign immunity from suit.

However, at a minimum, we conclude that appellant attempted, albeit inadequately, to allege in her complaint a failure of the duty to warn of a known dangerous condition. This duty has been recognized by the Florida Supreme Court to be an operational-level function of government not subject to sovereign immunity. Perez v. Department of Transportation, 435 So.2d 830 (Fla.1983); Ralph v. City of Daytona Beach, supra; City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); see also English v. Florida State Board of Regents, 403 So.2d 439 (Fla. 2d DCA 1981). Under the circumstances, we find that appellant is entitled to an opportunity to file an amended complaint on this ground. Perez v. Department of Transportation, supra; Emig v. State Department of Health and Rehabilitative Services, 456 So.2d 1204 (Fla. 1st DCA 1984).

Turning now to appellant’s cause of action for breach of warranty of habitability, we can find no Florida precedent directly supporting this theory of liability. However, other jurisdictions have found a duty on the part of a landlord to protect tenants from foreseeable criminal activity based upon a warranty of habitability. See the cases cited in Ten Associates v. McCutchen, 398 So.2d 860, 862 n. 2 (Fla. 3d DCA 1981), and Annotation, 43 A.L.R.3d 311, § 6(c) (1972). Moreover, in the landmark decision of Kline v. 1500 Massachusetts Avenue, Apartment Corp., 141 U.S.App. D.C. 370, 439 F.2d 477 (D.C.Cir.1970), the court recognized a duty on the part of the landlord to take protective measures to guard the premises and maintain common areas within his exclusive control against foreseeable criminal acts of third persons. The court supported the imposition of such a duty by analogizing the case to similar cases placing the duty to maintain the premises on the landlord based upon an implied warranty of habitability.

Again, our ability to analyze this potential cause of action is foreclosed by the paucity of factual allegations in the complaint. Further, appellant failed to attach to the complaint her rental contract with FAMU or any other document supporting this cause of action. Nevertheless, we find that fairness requires the appellant be permitted an opportunity to amend her complaint to attempt to state a cause of action upon this theory. We note in passing that the Supreme Court of Florida has recently held that sovereign immunity is not a bar to an action on the breach of an express, written contract entered into by a state agency under its statutory authority. Pan-Am Tobacco Corporation v. Department of Corrections, — So.2d-(Fla.1984), Case No. 63,215, opinion filed March 1, 1984 [9 FLW 73] (rehearing pending). We intimate no view whether sovereign immunity may act as a bar to an action for the breach of an express or implied warranty of habitability.

This cause is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.

JOANOS and NIMMONS, JJ., concur.

      . By mentioning these and other possibly overlooked allegations, we do not mean to imply they are determinative or all-inclusive.

      . In view of the present posture of this case, we do not decide whether a cause of action against a landlord may be predicated on foreseeability alone without an allegation that the landlord expressly or impliedly assumed a duty to take security measures to protect tenants against foreseeable criminal conduct.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. In the Interest of A.H., A.H. and R.H., Children, Appellees.
    No. AW-141.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.

      John L. Pearce, Department of Health and Rehabilitative Services, Tallahassee, for appellant.
    No appearance for appellees.
   PER CURIAM.

We hold that the responsibility of reimbursement of appointed guardians ad litem, where the parents are found financially unable to do so, is placed upon the Department of Health and Rehabilitatives Services. See In re the Interest of M.P., 453 So.2d 85 (Fla. 5th DCA 1984); In re the Interest of R.W., 409 So.2d 1069 (Fla. 2nd DCA 1981).

AFFIRMED.

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


author: BARFIELD, Judge.

text:
    TOWN OF ORANGE PARK, Appellant, v. Gerald F. POPE, and Martin K. Oberdeck, Appellees.
    No. AX-167.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 13, 1984.

      C. Edward Rich, Jacksonville, for appellant.
    J. Clark Hamilton, Jr., of Grissett, Hum-phries & Kellogg, Jacksonville, for appel-lees.
   BARFIELD, Judge.

The Town of Orange Park appeals the final judgment of the circuit court enjoining the Town from imposing a zoning classification more restrictive than RG-1 (mul-ti-family residential) on certain property. We reverse.

The property in question is an L-shaped parcel of land containing approximately 2.2 acres in Orange Park, Florida. The property is zoned RS-2, single family residential. The appellees applied for rezoning to RG-1, multi-family residential. The Planning and Zoning Board was of the opinion that the application should be denied. The Orange Park Town Council agreed and denied the application for rezoning. The appellees brought an action in circuit court alleging, inter alia, that the denial of the application was arbitrary and capricious and not fairly debatable and sought an injunction against the Town prohibiting enforcement of a use classification more restrictive than RG-1.

The property in question is located a block from U.S. 17. It fronts on Blake Avenue, which accesses to U.S. 17. The property between U.S. 17 and the subject property is commercial. Between the commercial property and the subject property is a twenty foot buffer zone. The subject property is surrounded on the remaining three sides by property zoned RS-2, single family residential.

As so often happens in court tests of legislative zoning actions, the trial court was not in a position to simply review a record of proceedings before the zoning authority, but had to consider de novo evidence that tended to support or refute the action of the zoning authority. Nevertheless the action of the court is in the nature of review and should not be a substitution of judgment. It is the factual record to which we must turn in order to evaluate the ruling of the trial court.

The owners of the property called as a witness Richard Quigley, a retired zoning administrator, who was accepted by the court as a zoning and land planning expert. He testified that step-down zoning is good practice and that multi-family zones could be used as a buffer between commercial and single family areas. Mr. Quigley acknowledged that fences could be used as buffers, but they permitted some noise and light to reach the adjacent areas. He identified some other areas in Orange Park where step-down zoning was used. He stated that denial of the application “would tend to be arbitrary.” On cross-examination, Mr. Quigley admitted there would be a negative impact on the surrounding properties if the property were rezoned and that the proposal would create a peninsula of multi-family housing in a single family area. He conceded that fencing would provide a buffer, but described step-down zoning as preferable. On questioning by the court, the expert noticed that the zoning pattern at this site was inconsistent with those used elsewhere in Orange Park.

The owners next called Miller Gaskin, a Jacksonville real estate broker. He is not an appraiser, but was accepted by the court as an expert as to developments. He testified that as presently zoned, the parcel could be divided into two lots and that homes built on those lots would not be eligible for VA or FHA financing because of their proximity to the commercial businesses. He described the parcel as ideal for transitional zoning. He also noted that the sale of two lots facing Blake would leave a land-locked portion of the property of indeterminate value. On cross-examination, he conceded that building a road perpendicular to Blake would allow the creation of three lots and allow utilization of the entire property. He admitted he had done no computations on the economics of development and that financing other than VA and FHA was available. On redirect, over objection, Gaskin testified that it would not be economically feasible to develop the property as single family residential.

The Town called its director of general services as its first witness. She testified regarding enforcement of the buffering requirements of a six foot fence and a twenty foot landscaped area between commercial and residential use. The ordinance had been in effect for some time but enforcement was only underway at the time of the trial.

The Town next took the testimony of Frank Osborne. He was accepted as a qualified expert on real estate appraisal. He researched comparable sales in determining a value for the property if sold as single family residential lots and determined the parcel was worth $30,000 to $40,-000. He stated that a zoning change to RG-1 would definitely have an adverse effect on the value of adjacent properties and that multi-family housing would create traffic and dust problems since Blake is unpaved. Mr. Osborne testified on cross-examination that if developed as condominiums, the parcel would have a value of $50,000. On examination by the court, Osborne stated that single family zoning should be continued and that denial of the application was not arbitrary. His valuation of the property considered a change of zoning from the current RS-2 to RS-3 which would permit single family residential construction on smaller lots enabling the owners to use three parcels instead of two. On further examination by the court concerning change from RS-2 to RS-3, Mr. Osborne would not opine that a refusal of such request by the Town might not be arbitrary.

The final witness called by the Town was Marvin Hill, an expert planning consultant. He stated that a change to RG-1 would be in conflict with the Town’s comprehensive plan. He believes that the current zoning is desirable, and that rezoning to RG-1 would have a detrimental effect on surrounding property and could lead to more properties being rezoned to higher density. He identified other places in Orange Park where CN zoning is next to RS-2. He testified that RS-2 is a reasonable and beneficial use of this property.

The trial court found that the denial of a zoning change was arbitrary, capricious, and not fairly debatable and enjoined enforcement of a zoning more restrictive than RG-1.

The legal standards applicable in this and similar zoning cases are clear. The appellant zoning authority must demonstrate to this court that the trial court erred in finding there was no competent substantial evidence to support its decision to deny application for rezoning. The zoning authority need only show that its decision had some relationship to the health, safety, welfare, and morals of the community. Evidence of a diminution of the value of the property owners’ property is irrelevant so long as they are not deprived of all reasonable beneficial uses of their property. We believe the Town has met its burden in this appeal.

The only evidence that supports a finding that appellees were deprived of all beneficial use of their property is the testimony of Mr. Gaskin. Section 90.705(2), Florida Statutes (1983) provides:

Prior to the [expert] witness giving his opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for his opinion. If the party establishes pri-ma facie evidence that the expert does not have a sufficient basis for his opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.

The appellant on cross-examination clearly established that Mr. Gaskin performed no calculations and developed no factual predicate for an opinion that development of the property as single family residential use was economically unfeasible. When, on redirect examination, Mr. Gaskin was asked to give an opinion with respect to economic feasibility, appellant properly objected. It was error for the trial court to overrule that objection and consideration of Mr. Gaskin’s opinion in support of economic feasibility was error. Pallace v. Inter City Land Co., 239 Md. 549, 212 A.2d 262 (1965); cf. Sea Fresh Frozen Products, Inc. v. Abdin, 411 So.2d 218 (Fla. 5th DCA), review denied, 419 So.2d 1195 (Fla.1982). All other evidence on beneficial use of the property supports the action of the Town Council.

There is substantial evidence in the record that denial of the zoning change was at least “fairly debatable” and the trial judge improperly substituted his judgment for that of the zoning authority.

The decision of the trial court is REVERSED.

JOANOS and WIGGINTON, JJ., concur.


text:
    Evelyn MADDOX, Appellant, v. RINALDI’S EXPRESSWAY LANES and Casualty Reciprocal Exchange, Appellees.
    No. AX-475.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 13, 1984.
    Howard L. Silverstein, Miami, for appellant.
    Robert H. Gregory, Miami, for appellees.
   PER CURIAM.

The order in this workers’ compensation case is reversed, and the cause is remanded for a de novo hearing under the authority of Rappoport v. American Hospital, 406 So.2d 1244 (Fla. 1st DCA 1981).

The claimant testified at a hearing on May 12,1983; another hearing was held on September 26, 1983. The deputy commissioner’s order was entered on February 20, 1984, five months after the final hearing and almost nine months after claimant testified. The entire case was determined based on claimant’s credibility. Thus, the deputy had to choose whether to believe claimant’s testimony, knowing it was discredited to some extent by the information claimant gave to the hospital staff on admission to the hospital, a difficult decision at best and not one, on the record before us, that could fairly be undertaken many months after the testimony was heard.

The vague, ambiguous, and contradictory order makes it clear that the facts of the case as well as how the claimant presented herself as a witness were not fresh on the deputy’s mind when the order was entered. The order is stale and must, in the interest of justice, be vacated and the case remanded for a new hearing.

BOOTH, SMITH and THOMPSON, JJ., concur.

      . Rappoport v. American Hospital, 406 So.2d 1244, 1245 (Fla. 1st DCA 1981):
      The credibility of a witness is largely dependent üpon her demeanor. It would be difficult for anyone to recall live testimony after seven months and in all probability the decision below was based upon the transcript. In our opinion the interests of justice require a new hearing.


author: THOMPSON, Judge.

text:
    FLORIDA TIMBER PRODUCTS, the employer, and Professional Administrators, Inc., its Servicing Agent, Appellant, v. Felton WILLIAMS, Appellee.
    No. AY-350.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 20, 1984.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellant.
    Patrick 0. Helm of Barton, Davis, Fernandez & Jamieson, Gainesville, for appel-lee.
   THOMPSON, Judge.

The appellant Florida Timber Products contends the deputy commissioner (deputy) erred in calculating the claimant's average weekly wage (AWW). We agree and reverse.

The claimant is an independent contractor who runs a logging crew and sells timber to the appellant. Prior to the accident he elected to secure workers’ compensation coverage for himself pursuant to § 440.04(2), Fla.Stat., and obtained this insurance through appellant. Claimant furnishes all of the equipment, labor, fuel and other costs necessary to get his timber out of the woods and to the mill. He has legal title to all of his equipment although he still owes money on some equipment which he purchased from appellant. The claimant agreed to make payments of $150 per week for the equipment he was purchasing provided he produced enough wood and made enough money to be able to afford that amount. If for some reason claimant had a bad week the appellant would deduct some lesser amount from his check or nothing at all. During the 13 weeks prior to his accident, the claimant paid an average of only $29 per week on the equipment.

In defending the claim before the deputy, appellant urged that for purposes of calculating the AWW, the reasonable value of the use of claimant’s equipment should be considered a business expense and should be deducted from his gross weekly earnings. Appellant attempted to prove the reasonable value of the use of all of claimant’s equipment by proving its weekly rental value. Neither of the “expert” witnesses produced by appellant were in the equipment rental business and their testimony was objected to by the claimant. The deputy admitted all evidence and advised the parties that she would later determine which evidence was properly admissible and which was not. In her order she ruled that only the actual proven business expenses during the 13-week period preceding the accident should be deducted from claimant’s gross income in order to arrive at the AWW. Relying on Coles v. Gainesville Bonded Warehouse, 409 So.2d 1205 (Fla. 1st DCA 1982), and Apholz v. North American Van Lines, 427 So.2d 1094 (Fla. 1st DCA 1983) she placed the value of the use of all of claimant’s equipment at only $29 per week, which was the amount claimant actually paid' out for the equipment during the applicable 13-week period.

The Gainesville Bonded Warehouse and North American Van Lines cases are factually distinguishable and are not controlling in this case. Both of these cases involved a lease purchase of equipment. The lease or rental of business equipment from the employer or any other person is a business expense. The purchase of equipment on a deferred payment basis or the repayment of a loan to purchase equipment is not a business expense but a capital investment which under standard accounting procedures is depreciated over the reasonable life of the equipment. The reasonable rental value of the equipment is not a proper basis for determining the expense to be alloted to the equipment. The reasonable depreciation attributable to all equipment, both owned and being purchased by the claimant for the 13-week period prior to claimant’s accident, is the proper business expense to be attributed to the equipment. In addition, other expenses for the 13-week period including labor, fuel and repair bills, insurance and other various business expenses during the 13-week period prior to the accident should be deducted from claimant’s gross receipts in order to arrive at the proper averagé weekly wage.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BOOTH and SMITH, JJ., concur.


text:
    L.C. CASSIDY & SONS, INC. and American States Insurance Company, Appellants, v. Larry McCONNELL, Appellee.
    No. AY-404.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 13, 1984.
    Bernard J. Zimmerman of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    David M. Hammond, Orlando, for appel-lee.
   PER CURIAM.

In this workers’ compensation case, there is competent, substantial evidence to support the deputy commissioner’s finding that claimant’s condition is causally related to the compensable injury. This finding is affirmed.

The award of wage-loss benefits is reversed because the date of maximum medical improvement (MMI) was not determined. In any compensation case dealing with permanent partial disability, a finding of MMI is essential. Brock v. Sey Construction Corporation, 237 So.2d 160 (Fla. 1970), South Carolina Insurance Company v. Blackman, 380 So.2d 1144 (Fla. 1st DCA 1980). The cause is remanded for a finding of whether MMI has been reached and, if so, at what date it was reached.

There is no competent, substantial evidence in the record to support the finding that the work search by claimant for the period of August, 1983 through February, 1984 was adequate. Only one specific employer was named for this seven-month period. Wilbro Dairies v. Hesch, 438 So.2d 968 (Fla. 1st DCA 1983); D & R Builders, Inc. v. Quetglas, 449 So.2d 988 (Fla. 1st DCA 1984). The award of wage loss for the period of August, 1983 through February, 1984 is reversed regardless of the finding on remand as to MMI.

Accordingly, the order below is affirmed in part, reversed in part, and remanded for finding of the date of MMI.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    Cheryl F. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AZ-481.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Cheryl F. Smith, appellant, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Smith appeals from a summary denial of her 3.850 motion. We affirm.

Smith violated her probation which was therefore revoked and she was sentenced to a term of incarceration. Her motion for post-conviction relief asserted that: (1) the probation revocation resulted from an illegal arrest; and (2) she was illegally searched upon her arrest. Neither ground is cognizable under Fla.R.Crim.P. 3.850.

Affirmed.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


author: NIMMONS, Judge.

text:
    William M. WAITE, Petitioner, v. WELLINGTON BOATS, INC., Respondent.
    No. BA-480.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 18, 1984.

      William M. Waite, in pro. per.
    C. Harris Dittmar and Timothy J. Corri-gan, Jacksonville, for respondent.
   NIMMONS, Judge.

William M. Waite seeks relief, via a petition for certiorari, from the trial court’s protective order precluding Waite, an unrepresented defendant in the court below, from personally deposing by oral examination the plaintiff, Wellington Boats, Inc., and its principal corporate officers because of an extremely antagonistic relationship which has developed between Waite and such officers. We deny the petition.

Fla.R.Civ.Pr. 1.280 provides in relevant part:

“(c) Protective Orders. Upon motion by a party or by the person from who discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following * * * (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery

Trial courts must be accorded broad discretion in the treatment of discovery problems through the employment of the protective provisions contemplated by Rule 1.280. See Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956); Abelson v. Bosem, 329 So.2d 330 (Fla. 3d DCA 1976). Moreover, petitioner has made no showing that he has been, or will be, unable to obtain needed discovery by other means available under the Florida Rules of Civil Procedure. Thus, petitioner has failed to demonstrate that the trial court abused its discretion in finding the requisite good cause to support the Rule 1.280(c) protective order. The petition must therefore be denied as the subject order does not depart from the essential requirements of the law.

Petition Denied.

SHIVERS and WENTWORTH, JJ., concur.


text:
    John T. STEWART, Appellant, v. STATE of Florida, Appellee.
    No. AW-376.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.
    Rehearing Denied Dec. 13, 1984.

      Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Thomas H. Bateman, III, Asst. Atty. Gen., for appel-lee.
   NIMMONS, Judge.

This is an appeal from the circuit court’s denial of the defendant’s 3.850 motion in which the defendant alleged that he was denied effective assistance of his privately-employed attorney by reason of an alleged conflict resulting from the attorney’s representation at trial of both this defendant and a co-defendant. We affirm.

After the defendant’s attorney filed the 3.850 motion, the circuit court granted the defendant an evidentiary hearing. The only evidence presented on behalf of the defendant was his own testimony. The state called as its sole witness the attorney who had represented the defendant at trial. The testimony of both witnesses was quite brief.

Essentially, the defendant testified that he and his co-defendant employed trial counsel to represent them and that counsel neither advised him about a possible conflict of interest nor informed him that it would be best for the defendant to employ separate counsel. The trial attorney testified that he was employed to represent both defendants for trial and that he never encountered a conflict in representing the two defendants. He did say that, just as in any case where he was involved in dual representation, he had a conversation early in the case with his law partners concerning the possibility of a conflict but determined that there was no conflict. He said that he did not recall having any conversation with the defendant about a possible conflict. After the close of the evidence, the judge granted the request of the mov-ant’s attorney to submit a memorandum of law.

In the order denying the motion, the court observed that movant’s counsel relied in his legal memorandum upon testimony and proceedings purportedly presented at the trial of the case. The order properly noted that no portion of the trial proceedings was offered into evidence by the mov-ant without which evidence it was impossible for the court to assess the effectiveness of the movant’s representation at trial. This appeal followed.

The lower court was correct in denying the motion. Indeed, in the absence of a transcript of the trial proceedings, or material portions thereof, it would have been sheer speculation for the lower court to have concluded that the defendant was denied effective assistance of counsel by reason of his attorney’s dual representation. The burden was on the defendant to prove the allegations of his 3.850 motion. The lower court granted him an evidentiary hearing, and he was given every opportunity to present any and all evidence necessary to prove the grounds asserted. Nevertheless, as the transcript of the motion hearing clearly shows, no proffer was made of any portion of the trial proceedings by submitting transcripts into evidence, requesting the court to take judicial notice of them (assuming that such transcripts were even available to the lower court for judicial notice), or otherwise.

Appellant having failed to carry his burden of proving the allegations of his 3.850 motion, the motion was correctly denied and we, therefore, AFFIRM.

SHIVERS and WENTWORTH, JJ., concur.

      . Although represented at trial by private counsel, the defendant was represented in the 3.850 proceeding by the public defender.

      . Judge Miner, who presided at the 3.850 proceedings, was not the judge who presided at the trial.

      . The appellant filed a motion with this court seeking to supplement the record on appeal with a transcript of the evidentiary hearing on his 3.850 motion. His motion to supplement also sought leave to rely upon the record of the trial proceedings contained in his earlier direct appeal which this court disposed of by per cu-riam affirmance on May 6, 1981, 399 So.2d 1153. The motion to supplement was handled administratively by the clerk of this court and an order issued granting the motion within two days after its filing, thus not having given the appellee time to register objection. Since the entry of the order granting the motion to supplement, the appellee has voiced strong opposition to the appellant’s reliance in this court upon a trial transcript no part of which was ever offered in evidence in the lower court in connection with the subject proceeding. The appellee is, of course, quite correct. It would be patently improper for this court to consider evidence which was not introduced for consideration in the lower court proceeding. Accordingly, the order previously entered herein granting appellant the right to rely upon the record from his previous appeal is vacated and such motion is hereby denied.


text:
    STATE of Florida, Appellant, v. Thomas Mark LANDRY and Stephen G. Lanstein, Appellees.
    No. AW-428.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., for appellant.

      Thomas W. Kurrus and Larry G. Turner, Gainesville, for appellees.
   NIMMONS, Judge.

The state appeals from the trial court’s order granting the defendants’ motion to suppress as evidence marijuana which was seized from the trunk of the defendants’ automobile. We reverse the suppression order.

The defendants negotiated for the purchase of $50,000 worth of marijuana from a Gainesville Narcotics and Organized Crime Unit undercover officer (Investigator Crase) who defendants understood was a drug dealer. During the drug transaction, the defendants met Crase at a motel and gave him the keys to their automobile so that Crase could drive it to his “stash house” and load the trunk with the marijuana. Crase was to return to the motel, turn the marijuana-laden vehicle back over to the defendants and receive $50,000 in cash.

Crase drove the vehicle to the narcotics unit headquarters where the trunk was loaded with four bales of marijuana. Before leaving, an electronic disabling device, actuated by remote control, was attached to the vehicle’s engine, thus enabling sur-veilling officers to stop the vehicle’s engine at such time as was deemed necessary.

Upon Crase’s return to the motel, defendant Landry gave him the money while defendant Lanstein opened the trunk of the vehicle to make sure that the marijuana was inside. The defendants then departed in the vehicle and were followed by surveillance units to Waldo, a few miles north of Gainesville. Waldo was chosen by the officers as the place to stop the defendants’ vehicle because it was well lighted and there were several police units in the area. When the defendants arrived in Waldo, the officers activated the electronic disabling device which caused the automobile’s engine to cut off. The officers’ purpose was to arrest the defendants and seize the marijuana.

After the defendants were placed under arrest, an inventory search of the vehicle was conducted before it was towed to the narcotics unit garage and a small quantity of marijuana was found in the passenger compartment. The trunk was not opened at the arrest scene because the key was not available. However, after the vehicle was transported to the narcotics unit garage, the officers located a trunk control button inside the passenger compartment and the trunk was then opened. The officers recovered the bales of marijuana from the trunk, the same bales which had been placed there earlier by the officers. Before opening the wrapped bales, the officers decided to secure a search warrant authorizing removal of the wrapping.

The trial court granted the defendants’ motion to suppress, finding an absence of exigent circumstances to justify a warrantless search of the vehicle trunk. The trial court erred because exigent circumstances were not required to justify the warrantless trunk search. In Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the Court held that probable cause to believe a vehicle legally stopped on the highway contains contraband permits a search without exigent circumstances even after the vehicle has been impounded. The court stated:

In Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970), we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White, 423 U.S. 67, 46 L.Ed.2d 209, 96 S.Ct. 304 (1975). See also United States v. Ross, 456 U.S. 798, 807, n. 9, [102 S.Ct. 2157, 2163, n. 9] 72 L.Ed.2d 572 (1982). It is thus clear that the justification to conduct such a war-rantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.

458 U.S. at 261, 102 S.Ct. at 3081, 73 L.Ed.2d at 753.

More recently, in Florida v. Meyers, — U.S. -, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984), the Court took the opportunity to reiterate its holding in Michigan v. Thomas, supra. In Meyers, supra, several items were seized from the defendant’s car when it was searched at the time of his arrest. The vehicle was then towed into a locked, secure area where it was impounded. A second warrantless search was conducted approximately eight hours later disclosing additional evidence. The trial court denied the defendant’s motion to suppress the evidence resulting from the second search and a conviction followed. The Fourth District Court of Appeal of Florida reversed, holding that the second search was distinguishable from a Chambers v. Maroney, supra, search because the car was impounded and thus immobile during the second search. In overturning the Fourth District’s ruling, the Supreme Court stated:

In Michigan v. Thomas, * * * we upheld a warrantless search of an automobile even though the automobile was in police custody and even though a prior inventory search had already been made. That ruling controls the disposition of this case. In Thomas, we expressly rejected the argument accepted by the Court of Appeal in the present case, noting that the search upheld in Chambers was conducted “after [the automobile] was impounded and [was] in police custody” and emphasizing that “the justification to conduct such a warrantless search does not vanish once the car has been immobilized.” 458 U.S., [259] at 261, 73 L.Ed.2d 750 [at 753], 102 S.Ct. 3079 [at 3081]. The Court of Appeal's ruling that the subsequent search in this case was invalid because the car had been impounded is clearly inconsistent with Thomas and Chambers.

— U.S. at —, 104 S.Ct. at 1853, 80 L.Ed.2d at 384.

The defendants assert that the above authorities are not controlling because, as they say, the mobility of automobiles which justifies warrantless highway stops and searches did not exist in the present case because of the presence of the electronic disabling device. Thus, defendants say, their vehicle was actually under the control of the officers and the mobility rationale for a warrantless search was not present. We reject this proffered distinction. The legality of the search does not turn upon whether the subject vehicle is “stopped and detained” by the exotic technique employed in this case or by the more conventional method of the police pulling over and stopping the vehicle.

The trial court’s order granting appellants’ motion to suppress evidence is Reversed.

SHIVERS and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    Paul J. CARRIN, Appellant, v. STATE of Florida, Appellee.
    No. AZ-414.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.

      Paul J. Carrin, pro se.
    Jim Smith, Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of the denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. The motion was filed in the lower court during the penden-cy of appellant’s direct appeal; in such circumstances the lower court is without jurisdiction to grant post-conviction relief and such a motion is therefore properly denied. See Hurst v. State, 379 So.2d 434 (Fla. 1st DCA 1980). Should appellant desire to pursue such relief during the pend-ency of a direct appeal a request may be filed in the appellate court to temporarily relinquish jurisdiction for the lower court to consider a Rule 3.850 motion.

The order appealed is affirmed without prejudice to appellant’s ability to present the issues raised in a proper Fla.R.Crim.P. 3.850 motion.

SHIVERS and NIMMONS, JJ., concur.


text:
    Robert S. WAITE, Petitioner, v. WELLINGTON BOATS, INC., Respondent.
    No. BC-142.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.

      Robert S. Waite, for petitioner, in pro. per.
    C. Harris Dittmar and Timothy J. Corri-gan, Jacksonville, for respondent.
   NIMMONS, Judge.

This is a certiorari proceeding in which petitioner, Robert S. Waite (a defendant below), seeks review of an order of the trial court striking his “Amended Counterclaim and Additional Complaint” for failure of the pleading to bear the signature of Waite’s counsel of record.

Earlier in the lower court, proceedings, Waite was unrepresented and was acting pro se. He had filed an answer and counterclaim. In response thereto, counsel for Wellington Boats, Inc., the plaintiff below, filed a motion to dismiss the counterclaim. Prior to the hearing on that motion, Waite employed an attorney who, at Waite’s request, entered into a written stipulation with Wellington’s counsel agreeing to the entry of an order granting Wellington’s motion to dismiss and allowing Waite fifteen days within which to file an amended counterclaim. The stipulation, which was prepared by Waite’s attorney, was signed by his attorney as well as by counsel for Wellington and was filed in the lower court proceedings. Pursuant thereto, the trial court entered an order dismissing the counterclaim with leave to file an amended counterclaim within fifteen days.

Subsequently, the above referred “Amended Counterclaim and Additional Complaint” was filed but it was signed only by Waite and not his attorney of record. In response, Wellington filed a motion to strike pursuant to Fla.R.Jud.Admin. 2.060(d). That rule requires all pleadings to be signed by the party’s attorney. The rule further provides that the court may strike any pleading not signed by the party’s attorney of record. That is what the court did in this case after hearing on Wellington’s motion to strike.

Neither Waite, an Atlanta resident, nor his attorney were present at the hearing. Prior thereto, Waite filed a pro se response to the motion to strike in which he stated inter alia that he had secured the services of “one of his attorneys” only to arrange a disposition of Wellington’s earlier motion to dismiss by consent of the parties. His response further stated that he was “formally represented only by himself”. He further requested that the hearing be rescheduled because his busy medical practice would not permit him to be present on short notice. However, at no time, either prior or subsequent to the hearing on the motion to strike, was there any motion filed by Waite or his counsel of record seeking permission of the trial court for the withdrawal of counsel. There is no indication in the record of this case as to any reason why Waite’s attorney, who was properly furnished notice of the hearing as counsel of record, could not have been present at the hearing.

A party who appears in an action by an attorney may be heard only through the attorney who, so long as he remains the attorney of record, has the exclusive management and control of the action and of all steps and proceedings taken therein to enforce the rights and remedies of his client. 7 Am.Jur.2d Attorneys at Law §§ 6,149. Withdrawal of a party’s counsel of record may be permitted only by approval of the court. Fla.R.Jud.Admin. 2.060(i). And notice of a client’s application to the court for discharge of his attorney should be given to the attorney just as an attorney seeking withdrawal should give notice to his client. Feuer v. Feuer, 156 Fla. 117, 22 So.2d 641 (1945).

Until such time as Waite’s attorney, pursuant to an appropriate motion, is relieved by the trial court as counsel of record, the court may properly strike pleadings which are not subscribed by such counsel in conformance with the applicable rule.

The petitioner has failed to demonstrate that the trial court departed from the essential requirements of the law in striking the subject pleading. We do not have before us, and therefore do not address, the question of either: (1) whether the trial court should favorably entertain a motion for leave to file an amended counterclaim in the event Waite’s counsel of record were to file such a motion; or (2) whether, in the event the trial court, pursuant to appropriate motion, discharges Waite’s counsel of record, the court should grant a pro se motion seeking leave to file an amended counterclaim.

The certiorari petition is Denied.

SHIVERS and WENTWORTH, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Frieda SOBEL and Philip Sobel, her husband, Appellants, v. JEFFERSON STORES, INC., Appellee.
    No. 83-2836.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Michael Lechtman, North Miami Beach, for appellants.
    Carroll, Halberg & Meyerson and P.J. Carroll, Daniels & Hicks and Louise H. McMurray, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

After a mistrial was declared because of a hung jury in this slip-and-fall action, the trial judge granted a motion for directed verdict upon which ruling had been reserved on the astonishing ground that the plaintiffs had failed to affirmatively show that the defendant, Jefferson Stores, Inc., was liable for the negligent operation of the 163rd Street Jefferson’s store where the accident occurred. On two bases, we summarily reverse.

1. Although Jefferson Stores, Inc.’s answer contained a general denial of all the allegations of the complaint, including the routine one that it operated the Jefferson’s store in question, its defense of the case, which it conducted throughout discovery and at trial from opening statement to the end of the plaintiffs’ case totally without reference to any claim that it was not the responsible entity — including producing as its corporate representative for deposition and trial the employee who was on the scene in the store when Mrs. Sobel fell — clearly waived and estopped it from asserting any such contention when it leaped from ambush with the claim of a failure of proof only after the plaintiffs had rested. Argenbright v. J.M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 895 (Fla.1967); Holyoke Mutual Ins. Co. In Salem v. Concrete Equipment, Inc., 394 So.2d 193 (Fla. 3d DCA 1981), pet. for rev. denied, 402 So.2d 609 (Fla.1981); Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979). We had hoped that our prior expressions in these and many other cases were sufficient to sound the death-knell of the kind of prehistoric tactics employed and even permitted to succeed in this case. While we may have been wrong, this opinion will serve to remind the bar that we will not stop trying.

2. We also hold that the evidence proffered during the trial and after-wards, which the trial judge either in ef-feet permitted the plaintiffs to reopen the case to present or abused his discretion if he did not, see Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975), established as a matter of fact the otherwise hardly surprising conclusion that Jefferson [Sjtores, Inc. was indeed the owner of the Jefferson’s [s]tore where the plaintiff fell.

For these reasons, the judgment is reversed for a new trial on the issues of liability and damages.

Reversed.

      .We note, with emphasis which should speak for itself, that Fla.R.Civ.P. 1.110(c) provides in part:
      When a pleader intends in good faith to deny only a part of an averment, he shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, he may make his denials as specific denials of designated averments or he may generally deny all of the averments except such designated averments as he expressly admits, but when he does so intend to controvert all of its averments, including aver-ments of the grounds upon which the court’s jurisdiction depends, he may do so by general denial, [e.s.]

      . This included a letter from Jefferson Stores, Inc., offering to pay Mrs. Sobel’s medical bills, which was properly excluded from evidence as a settlement offer when tendered on the damages issue at a time no one knew or asserted that the identity of the corporation which sent it was relevant to any disputed issue.

      . This included the Jefferson Store’s listing in the phone book and its corporate documents as filed in the secretary of state’s office.


text:
    Marshell Joseph HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-3018.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Henry R. Barksdale, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the defendant’s conviction for armed robbery upon a holding that the error in admitting a passing reference to the defendant being identified as the perpetrator of the crime, even if arguably hearsay under Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981), and Postell v. State, 398 So.2d 851 (Fla. 3d DCA), rev. denied, 411 So.2d 384 (Fla.1981), was harmless beyond a reasonable doubt in light of, among other things, the defendant’s complete confession to the crime, the admission of which is not challenged on appeal, and the fact that the reference played no further part in the State’s case.

Affirmed.


text:
    Diane Barker PATIN, f/k/a Diane Barker, Appellant, v. Carl A. POPINO, the Estate of Carl A. Popino, Phyllis T. Popino, Randy Rose, Richard Carmel and Rocco A. Delmonaco, Appellees.
    Nos. 83-3028, 84-20.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.

      Greene & Cooper and Robyn Greene, Miami, for appellant.
    Ramon David Feliu, Miami, for appellees.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order denying the appellant’s motion under Florida Rule of Civil Procedure 1.540 to vacate an order impressing an attorney’s charging lien on the appellant’s home is reversed. Even assuming, arguendo, that the appellees were entitled to recover attorneys’ fees for their labors on the appellant’s behalf in the underlying litigation, that litigation terminated with a final judgment of foreclosure in appellant’s favor in January 1982, in which jurisdiction was reserved to enter “further orders as are proper, including, without limitation, Writs of Assistance and deficiency judgments,” but not to make a post-judgment award of attorneys’ fees, much less to declare a lien for the amount awarded. See Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976); McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963). It is well established that a court loses jurisdiction over a case when it enters a final judgment and the time allotted for altering, modifying or vacating the judgment expires, Town of Palm Beach v. State ex rel. Steinhardt, 321 So.2d 567 (Fla. 4th DCA 1975), and that a judgment awarding attorneys’ fees after entry of a final judgment which does not contain a reservation of jurisdiction to award the fees is void. See Frumkes v. Frumkes, 328 So.2d at 35. Accordingly, we reverse the order under review with directions to grant the relief requested in the appellant’s motion. Our decision is, of course, without prejudice to the appellees’ right to seek to recover in an independent action any fees that may be due them from the appellant.

Reversed, with directions.


author: BASKIN, Judge.

text:
    Juan BARQUIN, Appellant, v. Orestes FLORES and Jose Flores, Appellees.
    No. 84-995.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Joel Lumer, Jugo & Ferradaz, Miami, for appellant.
    Harvey D. Friedman, Miami Beach, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Florida courts have consistently held that gambling obligations, even if valid in the state in which they were undertaken, are unenforceable in Florida as contrary to law and public policy. See Dorado Beach Hotel Gory. v. Jernigan, 202 So.2d 830 (Fla. 1st DCA 1967), appeal dismissed, 209 So.2d 669 (Fla.1968); Young v. Sands, Inc., 122 So.2d 618 (Fla. 3d DCA 1960); § 849.26, Fla.Stat. (1977). Thus, we find no error in the trial court’s dismissal of Barquin’s complaint, even though the gambling proceeds he sought to recover derived from a Puerto Rican lottery ticket lawfully purchased by a Puerto Rican resident in Puer-to Rico.

Affirmed.


text:
    Tamela MOUNCE, a/k/a Tammy Mounce, Appellant, v. James Robert MOUNCE, Appellee.
    No. 84-1796.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Robert M. Brake, Coral Gables, for appellant.
    James Robert Mounce in pro. per.
    Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The lower court erroneously felt itself bound to approve the master’s recommendations concerning the appropriate remedies to be adopted in the enforcement and effectuation of its own prior final judgment in the case. Vogel v. Vogel, 323 So.2d 306 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 605 (Fla.1976) (trial court not required to follow advisory recommendations which were not findings of fact). As was held in Bergh v. Bergh, 127 So.2d 481, 486 (Fla. 1st DCA 1961), cert. denied, 133 So.2d 323 (Fla.1961), a trial judge is free to reach a conclusion of law, contrary to that of a master, which he considers “in the exercise of his judicial discretion produces a more equitable solution to the issues posed for decision.” See generally, Sitomer v. Sitomer, 397 So.2d 373 (Fla. 4th DCA 1981), and cases cited (drawing distinction as to the effect of master’s findings of fact and conclusions of law). Accordingly, obliging the lower court’s specific request to do so, we reverse the order under review which confirmed the master’s report in all respects and remand the cause for further proceedings consistent herewith.

      . The court stated:
      I find that the intent of my final judgment has been totally violated ... I do not agree with the General Master. Had I heard the case myself, I would not have ruled as the General Master ruled, but, under the law, I don’t think I have a right to do anything other than to ratify, so exceptions will be denied ... On the record, I'm announcing I’m bound by the law as I feel it is, as you have so succinctly put it in your memorandum; and I’m ruling in your favor on that issue solely because I have to follow the law.
      Were I to' hear it, I would have ruled to the contrary; and it is my recommendation and request to the Third District that they reverse me and send it back to me for direct hearing so that I can straighten this mess out.

      . Ibid.


text:
    F. Rene de la HUERTA, M.D., F. Rene de la Huerta, M.D., P.A., and Area 11-F Community Mental Health Services, Inc., d/b/a Miami Mental Health Center, Appellants, v. Bernice SAPHIN, as personal representative of the Estate of Sybil Zimmerman, her deceased daughter, Appellee.
    No. 84-1916.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Hill, Neale & Riley and James Sparkman, Fort Lauderdale, for appellants.
    Rosenblatt, Arnowitz & Roth and Domingo Rodriguez, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s order denying the defendants’ motion to vacate default upon a holding that the defendants have satisfied the test established in B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981), in that (1) excusable neglect is demonstrated under the facts herein where a hospital administrator promptly forwarded suit papers to the hospital’s current insurance carrier and, upon learning that a prior carrier should defend, promptly advised the prior carrier which thereupon retained counsel and moved within ten days to vacate the default, supported by an explanatory affidavit; and (2) meritorious defenses are contained in the answer.

Accordingly, the order under review is reversed and this cause is remanded for further proceedings.


text:
    Robert WHITCHARD, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1192.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Robert Whitchard, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellant was originally charged in 1978 with manslaughter by operation of a motor vehicle. As part of a negotiated plea of guilty, he was sentenced to three years of incarceration to be followed by four years probation. Appellant served the three year term of incarceration and was on probation when he was charged with first-degree murder. Appellant pled guilty to second-degree murder and was sentenced to thirty years imprisonment. His probation was revoked and a fifteen-year sentence was imposed to run concurrently with the thirty-year sentence. In this pro se appeal, appellant contends that the original sentence of three years followed by a probation violated the Florida Supreme Court’s subsequent decision in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

In none of the cases relied on by appellant, where the illegal sentences were vacated, had the defendant challenged the sentence after having violated the terms of probation. Appellant could have challenged his sentence immediately following the Villery decision while still incarcerated for the manslaughter conviction. He waived this right by accepting and enjoying his probation, which he then violated in May of 1982. In similar cases we have held consistently that a guilty defendant may not accept and enjoy a probation, then challenge it as illegal after violating its terms. See, e.g., Preston v. State, 411 So.2d 297 (Fla. 3d DCA), rev. denied, 418 So.2d 1280 (Fla.1982); King v. State, 373 So.2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980).

Appellant further contends that the sentencing court erred in failing to award credit for time served on the original sentence prior to commencement of the probation term. See State v. Jones, 327 So.2d 18 (Fla.1976); Ferguson v. State, 372 So.2d 209 (Fla. 3d DCA 1979). ' This issue may not be raised for the first time on appeal, but instead should be presented to the trial court by a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Spurlock v. State, 449 So.2d 973 (Fla. 5th DCA 1984); Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981).

Affirmed.

      . In Villery, the Florida Supreme Court held that the period of incarceration which may be imposed as a condition of probation must be less than one year.

      . Appellant cites the following cases in support of his contention that the initial sentence should be vacated: Forbert v. State, 437 So.2d 1079 (Fla. 1983); Brod v. State, 437 So.2d 152 (Fla. 1983); Chaney v. State, 452 So.2d 1148 (Fla. 5th DCA 1984); Santana v. State, 442 So.2d 1103 (Fla. 3d DCA 1983).


author: NESBITT, Judge.

text:
    BELLA BOUTIQUE CORPORATION, Appellant, v. VENEZOLANA INTERNACIONAL DE AVIACION, S.A. (VIASA AIRLINES) Appellee.
    No. 83-2999.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.

      Alfred Aronovitz, Miami, for appellant.
    Thornton & Herndon and Edward Hern-don and Gail V. Ferrington, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION FOR REHEARING GRANTED

NESBITT, Judge.

VIASA’s motion for rehearing is granted. Our prior opinion filed August 7, 1984 is withdrawn and the following opinion is substituted.

Bella Boutique appeals from a summary final judgment entered in favor of Venezo-lana Internacional de Aviación, S.A. (VIA-SA), the defendant below. We affirm.

The facts relevant to this appeal are as follows. On November 18, 1981, Bella Boutique engaged VIASA, an international air carrier, to ship cargo from Miami to a consignee in Paraguay. The air waybill was issued by VIASA on that date. The ultimate fate of the cargo is unknown, but apparently it never reached the consignee in Paraguay. Approximately three weeks after the air waybill was issued and the cargo left Miami, Bella Boutique notified, by telephone, VIASA’s Miami office about the nondelivery of the cargo. The first written notice of claim was not served on VIASA until on or about June 25, 1982.

VIASA moved for summary judgment on the ground of untimely written notice of claim. VIASA argued to the trial court that both its tariff and its contract with Bella Boutique required a written notice of claim to be served on VIASA within 120 days from the issuance of the air waybill. The trial court agreed, found that the undisputed facts showed written notice was served beyond the 120-day period, and entered final summary judgment in favor of VIASA. This appeal followed.

As an international carrier, VIA-SA operates subject to the Federal Aviation Program. 49 U.S.C.A. § 1301 et seq. (1976). Pursuant to this program, all air carriers are required to file tariffs with the Civil Aeronautics Board showing all rates, fares and charges for air transportation and all classifications, rules, regulations, practices and services in connection with such air transportation. 49 U.S.C.A. § 1373(a). It is axiomatic that once a tariff is filed by a carrier and accepted by the Board, it has the force and effect of law. Southern Pacific Co. v. Brown, Alcantar & Brown, Inc., 409 F.2d 1331 (5th Cir.1969). A validly filed tariff constitutes the contract of carriage between the parties and conclusively and exclusively governs the rights and liabilities between the parties. United States v. DeBerry, 487 F.2d 448 (2d Cir.1973); Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401 (2d Cir.1969); Blair v. Delta Air Lines, Inc., 344 F.Supp. 360 (S.D.Fla.1972), aff'd, 477 F.2d 564 (5th Cir.1973).

Pursuant to the requirement of section 1373, VIASA had on file with the Board, Cargo Rules Tariff No. CR-3, C.A.B. No. 48, on November 18, 1981, the date VIASA issued the air waybill to Bella Boutique. Rule No. 23 of this tariff in pertinent part states:

RULE NO. 23: TIME LIMITATIONS ON CLAIMS AND ACTIONS
(B) No action shall be maintained in the case of damage to or partial loss of cargo unless a written notice, sufficiently describing the cargo concerned, the approximate date of the damage, and the details of the claim is presented to an office of Carrier within 7 days from the date of receipt thereof, in the case of delay unless presented within 14 days from the date the cargo is placed at the disposal of the person entitled to delivery of the consignment, and in the case of loss (including nondelivery) unless presented within 120 days from the date of issue of the air waybill.

Our examination of the tariff reveals that Rule No. 23(B), relied upon by VIASA, has six exceptions following it. Exception 6, applicable to VIASA, states:

No action shall be maintained in the case of loss (including NON-DELIVERY) unless presented within 30 days from the date of issuance of the air waybill.

It is clear that with regard to claims against VIASA for loss, including non-delivery, as in the present case, Exception 6 is meant to modify Rule No. 23(B) of the tariff.

Apparently neither party bothered to read the exceptions following the alleged dispositive tariff rule. As a result, the trial court was misinformed about the controlling rule. Consequently, the summary judgment was entered on the basis of Bella Boutique’s failure to comply with Rule No. 23(B), without regard to Exception 6. In order to ascertain whether the summary judgment was proper, therefore, we must determine how Exception 6 modifies the rule, and whether the modification results in any disputed issues of material fact.

The construction of a tariff ordinarily presents a question of law. Emery Air Freight Corp. v. United States, 205 Ct.Cl. 49, 499 F.2d 1255, 1259 (1974). Cf. Great Northern Railway v. Merchants Elevator Co., 259 U.S. 285, 290, 42 S.Ct. 477, 66 L.Ed. 943 (1922) (“Every question of the construction of a tariff is deemed a question of law_”); Penn Central Co. v. General Mills, Inc., 439 F.2d 1338, 1340 (8th Cir.1971) (interpretation of tariff normally presents a question of law). Although any ambiguity in a tariff should be construed against the carrier, such ambiguity or doubt must be a reasonable one. There must be a substantial and not mere arguable basis in order to justify resolving the doubt against the carrier. Penn Central. The terms of a tariff should be given their ordinary meaning, and strained or unnatural constructions are not permitted. Emery Air Freight.

In the present case, we find that the most reasonable construction of the exception as it relates to the tariff rule is that it merely modifies the rule by reducing the time period in which to present claims for loss or non-delivery from 120 days to 30 days. It does not, however, eliminate the requirement of a written notice of the claim. If we strictly adhered to a literal construction of Exception 6, it would require that an “action” be presented within 30 days of the issuance of the air waybill. This, however, would be an unusual, unfair and unreasonable construction, and is not permitted. See Emery Air Freight; Penn Central. Therefore, to determine what must be “presented” under Exception 6, we must refer back to Rule No. 23(B) to which the exception relates. The rule contains precisely the same language as the exception (“in the case of loss (including non-delivery) unless presented within [120/30] days .... ”), and it is clear that what must be presented is the written notice referred to earlier in the rule.

The undisputed facts indicate that the first written notice of claim from Bella Boutique to VIASA was sent more than seven months after the date the air waybill was issued. Since this written notice of claim was not received within the 30-day period following the issuance of the air waybill, in accordance with VIASA’s tariff rules, Bella Boutique’s claim against VIA-SA is barred. See Butler’s Shoe Corp. v. Pan American World Airways, Inc., 514 F.2d 1283 (5th Cir.1975). Any oral notice given by Bella Boutique would be insufficient in the face of the writing requirement of the tariff rule. See Denby v. Seaboard World Airlines, Inc., 575 F.Supp. 1134 (E.D.N.Y.1983); Talei v. Pan American World Airways, 132 Cal.App.3d 904, 183 Cal.Rptr. 532 (Ct.App.1982). Accordingly, despite the fact that the trial court was misinformed about the applicable tariff rule, the summary judgment in favor of VIASA was proper.

Upon the foregoing analysis, the summary final judgment is affirmed.

      . All functions, powers and duties of the Civil Aeronautics Board were terminated or transferred by Pub.L. 95-504, § 40(a), Oct. 24, 1978, 92 Stat. 1744, effective on or before January 1, 1985. To the extent section 1373 relates to interstate and overseas air transportation of persons and the authority of the Board with respect thereto, the section ceased to be in effect on January 1, 1983. 49 U.S.C.A. § 1551(a)(2)(B).

      . This tariff applied not only to VIASA but to a great number of other air carriers as well.

      . Exception 6 under Rule No. 23(B) indicates that it is applicable only to "VA". The tables on pages six and eight of the tariff indicate that "VA" is the abbreviation for VIASA.

      . The trial court also based its summary judgment on Bella Boutique's failure to comply with the notice requirements reflected in the contract of carriage. The contract was specifically made subject to VIASA’s tariffs in paragraph 2(b)(iii) of the contract. Even without this provision, however, the tariff would have become an integral part of the contract, Hycel, Inc. v. American Airlines, Inc., 328 F.Supp. 190 (S.D.Tex.1971), and the contract would have been subject to the terms of the tariff. Cooper v. Eastern Airlines, Inc., 90 Misc.2d 52, 393 N.Y.S.2d 306 (Civ.Ct. 1977). The Supreme Court has held that "[ujntil changed, tariffs bind both carriers and shippers with the force of law.” Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520, 59 S.Ct. 612, 614, 83 L.Ed. 953 (1939). An air carrier’s tariff is both conclusive and exclusive, and it may not be added to through outside contracts, agreements,' understandings or promises. Slick Airways, Inc. v. United States, 154 Ct.Cl. 417, 292 F.2d 515 (1961). See also Chicago, Burlington & Quincy RR v. Ready Mixed Concrete Co., 487 F.2d 1263 (8th Cir. 1973); United States v. Associated Air Transport, Inc., 275 F.2d 827 (5th Cir.1960). In the event of any inconsistency between a tariff and a contract of carriage, the tariff must control. Northwest Airlines, Inc. v. United States, 195 Ct.Cl. 356, 444 F.2d 1097 (1971); Slick Airways. Accordingly, any attempt by means of contract on the part of VIASA or a shipper to change the notice requirement covered by VIASA’s tariff rules would be ineffectual. In the present case, therefore, Rule No. 23(B), Exception 6 is binding on both VIASA and Bella Boutique, and it conclusively and exclusively governs their rights concerning when and what type of notice must be presented on a claim for loss or non-delivery.


author: BARKETT, Judge.

text:
    CONTINENTAL ASSURANCE COMPANY, a foreign corporation authorized to do business in the State of Florida, Appellant, v. Roger A. CARROLL, Appellee.
    No. 83-2802.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1984.
    Nancy Little Hoffmann of Hoffmann & Burris, P.A., and Clifford B. Selwood of Clifford B. Selwood, P.A., Fort Lauderdale, for appellant.

      James W. Dawson and Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauder-dale, for appellee.
   BARKETT, Judge.

The appellant, Continental Assurance Company, defendant below, appeals the final judgment entered in favor of appellee, Roger A. Carroll, who was the plaintiff below. We affirm.

Carroll sued to recover the proceeds of a life insurance policy issued by appellant upon the life of appellee’s infant son.

Continental raised the affirmative defense that Carroll had misrepresented the state of the infant’s health when applying for the insurance, and therefore Section 627.409, Florida Statutes (1981) barred his recovery on the policy. In reply, Carroll maintained that any incorrect statement contained on the application resulted from a good faith but erroneous expression of opinion or judgment, or an honest misunderstanding of the question.

The case was tried to a jury. Continental unsuccessfully moved for a directed verdict on the authority of Section 627.409, •Florida Statutes, which read at all times pertinent to this case:

(1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

Carroll successfully persuaded the trial court that despite the language of that statute, an incorrect answer on an application for insurance would not invalidate the policy when it was given as a good faith expression of opinion or judgment. The trial court gave Carroll’s requested jury instruction as follows:

You are further instructed that an incorrect answer on an application form for insurance shall not invalidate the policy where (1) the applicant in good faith makes an erroneous expression of an opinion or judgment or (2) the applicant misunderstands an inquiry which is ... couched in language or refers to subjects in /special fields beyond his understanding. You are also instructed that an incorrect statement will not invalidate a policy of insurance unless the incorrect statement is given in response to a question which the insured understood or reasonably should have understood or to one which he reasonably could not have been expected to have sufficient information to answer or state that he lacked knowledge to get [sic] a responsive answer.

Appellant contends that the trial court erred in denying the directed verdict and giving the instruction described above because of the supreme court’s ruling in Life Insurance Company of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967). In Shifflet, our Florida Supreme Court construed Section 627.01081, Florida Statutes, the predecessor to Section 627.409. In construing the statute, the court held that misrepresentations in insurance applications that are material to the acceptance of the risk do not have to be made with knowledge of the incorrectness and untruth to invalidate a policy. Thus, under the Shifflet rule, any misrepresentation, innocent or not, which is material to the acceptance of risk can invalidate a policy.

Appellee argued successfully below and contends before us that the rule stated in Shifflet has been modified by National Standard Life Insurance Company v. Permenter, 204 So.2d 206 (Fla.1967). The problem, however, is that the majority opinion in Permenter is a per curiam decision on the basis of lack of jurisdiction. The “modification” of Shifflet occurs by way of Justice Ervin’s special concurrence in Per-menter wherein he voiced his concern that Shifflet might be too sweeping in scope. He wrote:

Think ... of the numerous situations in which an applicant is asked by the insurer or its agent to respond to questions which require, or call for in one way or another, statements that amount to matters of opinion or judgment. In such cases where an applicant responds to such questions, many times posed in series, his answers made in good faith and without intent to deceive should not automatically in all cases have the effect of voiding the policy should one or more turn out to be an erroneous expression of opinion or judgment.

Id. at 207. To remedy the perceived harshness of Shifflet, Justice Ervin defined two “excusable situations” where incorrect answers on an insurance application would not invalidate the policy, even though material to the acceptance of risk:

(1) where an applicant “in good faith and without intent to deceive” makes an “erroneous expression of opinion or judgment”;
(2) where the applicant gives an incorrect answer to a question couched in language or regarding subjects and fields beyond his understanding.

We note that in Permenter, Justice Er-vin was joined by Justices Thomas, Roberts, and Thornal in his special concurrence. Thus, a majority of the justices at that time recognized the potential injustice a strict following of Shifflet would permit. Although it may be argued this concurrence has no binding effect as precedent, it must surely be viewed as persuasive coming just six months after Shifflet and with four of the seven justices at the time in agreement. It also appears the Florida appellate courts that have considered both cases have agreed that Permenter has in fact modified Shifflet. E.g., Gaskins v. General Insurance Company of Florida, 397 So.2d 729 (Fla. 1st DCA 1981); Minnesota Mutual Life Insurance Co. v. McCombs, 369 So.2d 978 (Fla. 1st DCA 1979); Independent Fire Insurance Company v. Horn, 343 So.2d 862 (Fla. 1st DCA 1976); Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975); Garwood v. Equitable Life Assurance Society of the United States, 299 So.2d 163 (Fla. 3d DCA 1974), cert. denied, 321 So.2d 553 (Fla.1975); Tucker v. Travelers Insurance Company, 233 So.2d 198 (Fla. 4th DCA 1970). In addition, the federal courts, specifically the Fifth and Eleventh Circuit Courts of Appeal, have found the Shifflet decision “circumscribed” by Justice Ervin’s concurrence in Permenter. J. & H. Auto Trim Co. v. Bellefonte Insurance Co., 677 F.2d 1365 (11th Cir.1982); Garcia v. Aetna Casualty & Surety Company, 657 F.2d 652 (5th Cir.1981); Hyman v. Life Insurance Company of North America, 481 F.2d 441, 444 n. 3 (5th Cir. 1973).

Appellant Continental calls our attention to Wisconsin National Life Insurance Company v. Leichter, 452 So.2d 1052 (Fla. 3d DCA 1984); Phillips v. Ostrer, 418 So.2d 1104 (Fla. 3d DCA 1982); Preferred Risk Life Insurance Company v. Sande, 421 So.2d 566 (Fla. 5th DCA 1982), and Minnesota Mutual Life Insurance Company v. Candelore, 416 So.2d 1149 (Fla. 5th DCA 1982), as recent decisions following Shifflet and denying insurance coverage as a matter of law. Upon review however, the facts of these cases do not fall into the “excusable situations” Justice Er-vin described in Permenter. In fact, in Sande, supra, the fifth district specifically recognized the Permenter exceptions, noting however, that the facts did not fall within those exceptions.

After reviewing the foregoing we find that the better view is that Permenter has in fact modified the rule in Shifflet and so we accordingly affirm.

We are troubled, however, by the lack of a direct statement from our supreme court and accordingly certify the following question as one of great public interest:

DOES THE SPECIAL CONCURRENCE IN NATIONAL STANDARD LIFE INSURANCE COMPANY V. PERMEN-TER MODIFY THE STRICT RULE SET FORTH IN LIFE INSURANCE COMPANY OF VIRGINIA V SHIFFLET THAT ALL MISREPRESENTATIONS MATERIAL TO THE ACCEPTANCE OF RISK WILL INVALIDATE AN INSURANCE POLICY, EVEN IF MADE IN GOOD FAITH?

WALDEN, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Thomas SCOTT, Appellant, v. Noel YELL, Appellee.
    No. 84-468.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1984.
    Mark Perlman of Perlman & Perlow, P.A., Hallandale, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Thomas Scott appeals from an order of the trial court which denied his exceptions to the report of a general master and adopted the master’s recommendation which found him in contempt of the court for failure to pay support.

The only evidence before the master consisted of appellee’s affidavit of non-payment and appellant’s testimony. The record is completely devoid of any evidence to support the master’s finding, “that the respondent is gainfully employed or has other source of income or assets and is able to make payments required of him but has failed and refused to do so and is therefore in wilful contempt of court.” Appellant met his burden of proof and demonstrated his inability to pay. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869 (1948). Therefore, we hold that the master’s report is clearly erroneous, that the trial court erred when it denied appellant’s exceptions to the master’s report and affirmed the master’s recommendations to hold appellant in contempt.

Accordingly, the court’s order holding appellant in contempt is reversed.

REVERSED.

DOWNEY, DELL and BARKETT, JJ., concur.


text:
    The OCEAN COVE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Walter KANN and Lore Kann, his wife, Appellees.
    No. 84-1410.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1984.
    Rehearing Denied Dec. 21, 1984.
    David A. Gunter of Edwards & Angelí, Palm Beach, for appellant.
    Stuart M. Gottlieb of Joel D. Koeppel, P.A., West Palm Beach, for appellees.
   PER CURIAM.

The order denying attorney’s fees is reversed and this cause remanded for further proceedings on the authority of Brown v. Gardens By The Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983).

ANSTEAD, C.J., and DOWNEY ánd HERSEY, JJ., concur.


author: PER CURIAM. BOARDMAN, Acting Chief Judge,

text:
    BURNUP & SIMS COM TEC, INC., Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 83-1893.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 1984.

      Paul R. Pizzo and Nathan Goldman of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
    Alex D. Littlefield, Jr., of Fla. Dept, of Labor and Employment Sec., Tallahassee, for appellee.
   PER CURIAM.

We originally entered a per curiam decision without opinion affirming the order entered below. Upon reflection, we grant rehearing, withdraw our original decision, and enter the opinion and decision which hereafter follow.

Burnup & Sims appeals from an order of the Department of Labor and Employment Security, Division of Unemployment Compensation, which adopted the special deputy’s recommendation that certain individuals performing services for it as cable splicers and installers are “employees” under section 443.036(17), Florida Statutes (1983).

Burnup & Sims is in essentially the same business as that of the appellant in D.O. Creasman Electronics, Inc. v. State of Florida Department of Labor & Employment Security, Division of Unemployment Compensation, 458 So.2d 894 (Fla. 2d DCA 1984). In that case we reversed the department’s holding that certain cable splicers performing services under contract to Creasman were actually its employees. While the work done by the cable splicers and installers for Burnup & Sims seems to be the same as that performed by Creas-man’s cable splicers and the relationship between the respective parties is much the same, there are certain factors which make this a closer case.

Unlike Creasman, there are occasions when the cable splicers and installers bid for their contracts with Burnup & Sims on a price per hour basis. In addition, Burnup & Sims sometimes furnishes its own employee-helpers to assist the cable splicers and installers, and there is evidence that the contracts are terminable at will by either party without penalty. Nevertheless, we are convinced that the all important aspect of control over the means by which the work is accomplished is so lacking that the cable splicers and installers in this case must be deemed to be independent contractors. See A Nu Transfer, Inc. v. Department of Labor & Employment Security, 427 So.2d 305 (Fla. 3d DCA 1983); United States Telephone Co. v. State, Department of Labor & Employment Security, 410 So.2d 1002 (Fla. 3d DCA 1982). The special deputy misconstrued the telephone company’s inspection of results of the work as demonstrating control by Burnup & Sims over the means by which the service is performed.

We hold that the cable splicers and installers are not employees of Burnup & Sims for purposes of the Unemployment Compensation Law.

Reversed.

GRIMES and SCHOONOVER, JJ., concur.

BOARDMAN, A.C.J., dissents with opinion.

BOARDMAN, Acting Chief Judge,

dissenting.

I would deny the motion for rehearing and follow our original decision.

Upon further review, I am still of the opinion there is sufficient evidence in the record to uphold the special deputy’s findings; therefore, I cannot conclude that his findings are in error.


author: COBB, Chief Judge.

text:
    Jack A. YODER and Phyllis Yoder, his wife, Appellants/Cross-Appellees, v. Venancio A. ADRIATICO, Jane Adriatico and Juan Adriatico, Appellees/Cross-Appellants.
    No. 83-838.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Aldo Icardi of Icardi Law Offices, P.A., Winter Park, for appellants/cross-appel-lees.
    James M. Magee of Neduchal & Magee, P.A., Orlando, for appellees/cross-appel-lants.
   COBB, Chief Judge.

This appeal evolves from a boundary dispute between two families, the Adriaticos and the Yoders, and a confusion at the trial level of the distinction between an action for malicious prosecution and one for abuse of process. The underlying facts show that Vanancio Adriático, together with his wife, Jane Adriático, and son, Juan Adriáti-co, owned real property in Seminole County which they cultivated as an orange grove. Immediately to the east of their property is an eight-acre tract owned by Jack and Phyllis Yoder, whose west boundary line is the east line of the Adriático property.

A few feet inside the west boundary line of the Yoder property exists a barbed-wire fence extending north and south across the length of the property. Both parties thought that they owned the fence and the property on the west side of it, encompassed in the Yoders’ legal description. On either side of the fence, but within the Yoder boundary and running along the length of the fence, were a number of chinaberry and cherry trees.

In May of 1980, Juan and Jane Adriático began cutting back the trees along the fence line in order to stop the spread of the tree seeds, which they felt were interfering with the production of their orange trees. A dispute erupted between the two families in regard to this action, resulting in the sheriff ultimately being called.

Subsequently, the Adriaticos embedded concrete posts near the front of the Yoder property. The posts were approximately ten feet in length and weighed approximately 200 pounds each. The Adriaticos testified that these posts were to be em-planted to establish a corner post for extension of a fence for their property. The Yoders felt that the posts obstructed their entrance lane. Phyllis Yoder had the posts removed and refused to return them to the Adriaticos upon demand. As a result, Juan Adriático filed an affidavit and complaint with the state attorney against Phyllis Yo-der, resulting in her arrest on a charge of petit theft. This charge was nolle prossed by the state attorney, thus terminating the action in her favor.

The Yoders then filed a civil complaint against the Adriaticos alleging trespass and malicious prosecution. The Adriaticos filed an answer and counterclaimed for trespass, “civil theft,” and abuse of process. Based upon a jury verdict, a final judgment was entered denying all of the Yoders’ claims; awarding Venancio Adriá-tico damages in the amount of $17,500.00 plus attorney fees for abuse of process; awarding the three Adriático plaintiffs damages against the Yoders for the theft of personal property (the posts), plus attorney fees; and awarding the Adriaticos punitive damages in the amounts of $1,500.00 against Jack Yoder and $1,000.00 against Phyllis Yoder.

Numerous points are raised on appeal by both the appellants and the ap-pellees, but we find none to merit discussion other than the issue raised by the Yoders challenging the judgment based on abuse of process in favor of Venancio Adriático. Prom our review of the counterclaim by the Adriaticos, it is readily apparent that the action for “abuse of process” is actually one for malicious prosecution directed against the Yoders for filing the instant complaint. The tort of malicious prosecution is concerned with maliciously causing process to issue, whereas the tort of abuse of process is concerned with the improper use of process after it issues. Nash v. Walker, 78 So.2d 685 (Fla.1955); Cazares v. Church of Scientology of California, Inc., 444 So.2d 442 (Fla. 5th DCA 1983); Peckins v. Kaye, 443 So.2d 1025 (Fla. 2d DCA 1983); McMurray v. U-Haul Co., 425 So.2d 1208 (Fla. 4th DCA 1983). In the instant case, there was no evidence to support the tort of abuse of process.

On appeal, the Adriaticos contend that, in the absence of a motion for directed verdict at the close of the evidence, the Yoders have not preserved the issue of the sufficiency of the evidence to support the award for abuse of process for appellate review. They point out that the Yoders did not object to the instructions to the jury in regard to “abuse of process,” even though the instruction was patently erroneous, and apparently described malicious prosecution. This issue, argue the appellees, has not been preserved for appeal. See Middelveen v. Sibson Realty, Inc., 417 So.2d 275 (Fla. 5th DCA 1982), review denied, 424 So.2d 762 (Fla.1982).

In response the Yoders, while admitting that they filed no motion for directed verdict, contend that the question of the sufficiency of the evidence to support the verdict was preserved by their motion for new trial, relying upon Ruth v. Sorensen, 104 So.2d 10 (Fla.1958). The appellants concede that they did not object to the jury instructions as being improper, and do not rely on that issue in regard to this appeal. Based upon Ruth, we find that the issue of sufficiency of the evidence has been preserved for appeal.

The appellees also argue that whether their action was for abuse of process or for malicious prosecution is immaterial at this point in time if the verdict is supportable on any theory presented to the jury, in the absence of an objection below. This argument fails because, although abuse of process may be brought as a counterclaim in the same action, the tort of malicious prosecution requires, as an element, the prior termination of that claim. Thus, malicious prosecution may not be brought as a counterclaim, as happened here. Neil v. South Florida Auto Painters, Inc., 397 So.2d 1160 (Fla. 3d DCA 1981); Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980).

The question then arises as to whether the Yoders have waived any objection to the Adriático claim for malicious prosecution, misnomered abuse of process, being pursued in the same action as the counterclaim by reason of the failure to timely raise any such objection at the trial level. The Adriaticos assert that this was an error invited by the Yoders, citing Motor Club of America Ins. Co. v. Landa, 388 So.2d 10 (Fla. 4th DCA 1980), and Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572 (Fla. 3d DCA 1979), review denied, 379 So.2d 202 (Fla.1980).

While it is true that the erroneous jury instruction as to the definition of the tort of abuse of process may have been invited, in part, by the failure of the Yoders to object, the primary fault for injecting this inapplicable tort into the trial below must rest with the Adriaticos. They insisted, throughout the lower court proceedings, on characterizing the filing of the Yoder complaint against them as abuse of process, and the case was presented on that basis at all times to the trial judge and to the jury. In other words, the case was tried on the wrong tort from beginning to end. This approaches, if it does not constitute, fundamental error, unlike the factual situations in Motor Club (a question of the applicability of Florida or New Jersey law), or Behar (propriety of a property disposition induced, in part, by stipulation of the parties). In any event, we find that the issue of sufficiency of the evidence of abuse of process has been preserved for our review, and that the invited error doctrine does not preclude our determination that there was no such evidence.

We therefore reverse the judgment awarding Venancio Adriático damages, attorney fees and costs based on abuse of process; the judgment below otherwise is affirmed.

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

DAUKSCH and COWART, JJ., concur.

      . See also Chomont v. Ward, 103 So.2d 635, (Fla.1958), and Southard v. Johnson, 117 Fla. 666, 158 So. 169 (1934).