author: MADDOX, Justice. TORBERT, Chief Justice

text:
    GENERAL INVESTMENT CORPORATION v. TEXAS REFINERY CORPORATION.
    83-263.
    Supreme Court of Alabama.
    May 25, 1984.

      W. Bartlett Taylor of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellant.
    John B. Givhan of Albrittons & Givhan, Andalusia, for appellee.
   MADDOX, Justice.

This case involves the propriety of a summary judgment for the defendant in a suit for breach of warranty and fraud. We reverse.

Charles Little, the president and sole stockholder of General Investment Corporation (hereinafter G.I.C.), acting in his capacity as president, ordered over $20,000 worth of roofing material from Texas Refinery Corporation in the early part of 1980, in four separate orders. G.I.C. paid for the first three orders by check at the time of purchase. The fourth order was to be paid for on a 120-day basis. G.I.C.’s account remained unpaid in August of 1980. Texas Refinery placed the account with a collection agency, which was authorized to hire an attorney for collection. In March of 1982, the unpaid balance on the account was $1,629.72. It was placed with a local attorney, who sued Little and G.I.C. in the district court on open account on March 17, 1982. On March 25, 1982, the attorney representing Little and G.I.C. wrote the attorney for Texas Refinery. This letter in pertinent part reads:

“Please find enclosed my Motion to Dismiss filed on behalf of the Defendant in the above styled cause. In that regard, I would like to advise that I represent General Investment Corporation here in Andalusia. I have recently spoken with Mr. Charles Little, President of the corporation with reference to the Complaint which was previously filed. Mr. Little has advised that the work provided by your client was most unsatisfactory with the result being that the roof which was installed with materials provided by your client still leaks and is in total disrepair. However, in order to overcome the necessity of trial, and the filing of a Counterclaim against you[r] client we would offer to pay one-half of the claim in satisfaction of the same. If the arrangement is acceptable, please advise at the earliest possible time.” (Emphasis added.)

On April 19, 1982, the attorney for G.I.C. again wrote the attorney for Texas Refinery. This letter in pertinent part reads:

“Please be advised that I have not heard from you with reference to my letter of March 25, 1982, dealing with the above styled cause. In that regard, you will find enclosed herein an Answer which we prepared on behalf of Mr. Charles Little. Also, I am now on hold as to whether to file a lawsuit against Texas Refinery Corporation here in Circuit Court for breach of warranty, and for defective installation of materials. Again, my client would be most happy to settle this matter by paying one-half of the claim in satisfaction of the same, or will proceed with a defense of your lawsuit and the filing of a breach of warranty claim in the Circuit Court of Covington County, Alabama. I will await your reply to this letter prior to filing our Counterclaim, and would hope that the matter can be settled without the need for undue litigation.”

No counterclaim was ever filed by Little or G.I.C. Thereafter, the attorneys orally agreed to settle the case. The compromise and settlement was for one-half the account balance and costs against Little and G.I.C. The attorney for G.I.C. prepared the stipulation for dismissal, with prejudice, as well as an order for dismissal, with prejudice. The dismissal and stipulation contained no language regarding a counterclaim. The attorney for Little then wrote a letter to the attorney for Texas Refinery. That letter reads in pertinent part:

“Please find enclosed my firm check in the amount of $847.86. This amount was the sum agreed upon between you and myself for settlement of the above styled cause. I further enclose a copy of the Stipulation for Dismissal as well as an Order for the same.”

On May 24, 1982, Texas Refinery’s attorney wrote the collection agency:

“I am pleased to advise that we have effected a settlement of the above claim upon your instructions to accept one-half of the amount demanded in the complaint, in consideration of the Defendant’s not bringing a countersuit. I have received payment from Defendant’s lawyer for $847.86 representing a reimbursement of court costs ($33.00) plus $814.86 for settlement of the claim....”

On April 6, 1983, which was subsequent to the dismissal of the lawsuit on account, Little, as president of G.I.C., wrote Texas Refinery complaining of problems with the roofing on “the Piggly Wiggly and Ses-soms Warehouse” buildings. The letter stated:

“[T]he roof material as applied was to last for a period of seven years, and I was assured by your employees that we would have no problem with the roof once the cement was applied as per your instructions.... [Y]our employees were available and assisted and directed the installation of the roofing material on the Piggly Wiggly Building and Sessoms warehouses here in Andalusia.
“We began to have problems with roof leakage during the later part of 1982, and your company was notified through my office with reference to these problems, and you were requested to assist me in correcting them because the material failed to meet those standards which you represented at the time of sale. However, even though these contacts were repeatedly made I received no reply or offer of assistance even though the roofs on all of the buildings where the cement was applied began to leak damaging everything contained inside. I believe that I have afforded you over these past several months an opportunity to be of assistance to me in overcoming these problems, but you have totally failed to assist me in any way with the result being that I must now replace the roof at a tremendous cost.
“As far as I am concerned you have breached your warranty and I will advise you that I intend to take legal action....”

On June 27, 1983, Little and G.I.C. filed suit against Texas Refinery on theories of breach of warranty and fraud and asked damages of $1,000,000. Texas Refinery answered and pleaded res judicata, collateral estoppel, estoppel by judgment, accord, and accord and satisfaction as defenses. G.I.C.’s original attorney, who had defended the suit on account, was deposed, and his deposition, together with the above-mentioned letters, was submitted by Texas Refinery in support of its motion for summary judgment. G.I.C. opposed the granting of summary judgment and filed an affidavit by Little in support of its opposition. This affidavit in pertinent part reads:

“The transactions involved between General Investment Corporation, a Corporation, and Texas Refinery Corporation, a Corporation, occurred between the period of January 14, 1980 and January 21, 1981, and during that period of time I was the President of General Investment Corporation, a Corporation....
“Between the period of January 14, 1980 and January 21, 1981, I personally purchased certain roofing material from Texas Refinery Corporation, a Corporation, for use in repairing the roofing on the Sessoms Warehouse buildings, located in Andalusia, Alabama, which I personally own, and I remitted to Texas Refinery Corporation, a Corporation, in excess of Eight Thousand Dollars ($8,000.00) for these materials.
“Between the period of January 14, 1980, and January 21, 1981, General Investment Corporation, a Corporation, purchased from Texas Refinery Corporation, a Corporation, certain roofing materials which were guaranteed to provide roof protection for seven years from invoice date, for use in the repair of the Piggly Wiggly building in Andalusia, Alabama, which was owned and is owned by General Investment Corporation, a Corporation, and General Investment Corporation, a Corporation, remitted to Texas Refinery Corporation, a Corporation, in excess of Eleven Thousand Dollars ($11,000.00) for the materials which were subsequently used in repair of the Piggly Wiggly building.
“On or about January, 1982, [sic] and approximately one year after installation of the building materials on the Sessoms warehouse, which I personally own, it became very obvious that the roof was still in disrepair, and that the materials did not provide the protection as warranted. I began to have complaints from my tenants with reference to leaking roofs on the Sessoms warehouses during the early part of 1982, and Texas Refinery Corporation, a Corporation, was informed that I would not pay the balance remaining on their statement until such time as the problems with the Sessoms warehouses were rectified.
“Thereafter, on the 22nd day of March, 1982, Texas Refinery Corporation, a Corporation, sued me individually and doing business as General Investments on a verified statement of account. In an effort to avoid litigation, I individually agreed to settle the account for ¾⅞ of the amount claimed and the case against me individually, and d/b/a General Investments, was dismissed on the 18th day of May, 1982.
“During the winter months of November and December of 1982, I began to receive complaints from the tenant which occupied the Piggly Wiggly building which is owned by General Investment Corporation, a Corporation, located here in Andalusia, Alabama. The roof on the building where the Texas Refinery products were installed had begun to leak, and was damaging the interior of the building as well as the tenant’s products contained inside the building.
“General Investment Corporation, a Corporation, attempted repair by placing another coating of the Texas Refinery Corporation products on the areas of the building which were leaking. However, the problem continued to persist, and during the early part of 1983, it became apparent that more drastic measures would have to be taken by General Investment Corporation, a Corporation, or the corporation would lose a valued tenant due to the leakage and problems caused by the roof.
“On April 6, 1983, I as President of General Investment Corporation, forwarded a letter to Texas Refinery Corporation, a Corporation, with reference to the sale of Mighty Plate Plastic Cement to General Investment Corporation....
“I informed Texas Refinery Corporation that General Investment Corporation began to have roof leakage problems during the latter part of 1982, and that although requested to assist in correcting these problems, that I had received no reply or offer of assistance from Texas Refinery Corporation. I further informed Texas Refinery Corporation, that it had breached its warranty to General Investment Corporation, and that having afforded Texas Refinery Corporation an opportunity for several months to be of assistance in overcoming these problems, that General Investment Corporation intended to take legal action due to Texas Refinery Corporation ignoring its obligation to assist General Investment Corporation in case of problems with the products which were purchased.
“Subsequent to the letter of April 6, 1983, General Investment Corporation during the spring of 1983, was required to replace completely the roof on the Piggly Wiggly building at a substantial cost, and in excess of Thirty Thousand Dollars ($30,000.00).
“On June 21, 1983, the attorney representing General Investment Corporation, a Corporation, forwarded a letter ... to Texas Refinery Corporation, again informing Texas Refinery Corporation of the numerous problems which arose with reference to the sale of their product, and placed Texas Refinery Corporation on notice of pending litigation.”

G.I.C. frames the issues before the Court thusly: Whether an accord and satisfaction can be maintained as a defense in the absence of a bona fide pre-existing dispute, whether a summary judgment finding an accord and satisfaction as a matter of law is appropriate, when the facts establish a dispute between the parties as to the issue of accord and satisfaction, and finally whether the trial court committed error in granting summary judgment in ruling there was no genuine issue of material fact and the defendant was entitled to a judgment as a matter of law.

Texas Refinery frames the issue as whether the doctrines of res judicata, es-toppel by judgment, and collateral estoppel are available to uphold the trial court’s judgment in light of the fact that the trial court did not state upon what grounds it based the summary judgment order.

We believe the issue is best stated as whether there was a compromise and settlement between the parties on the district court case which was intended to encompass the later claim filed by G.I.C. in circuit court for fraud and breach of warranty. The general rule is succinctly set out in 15A C.J.S. Compromise and Settlement § 25 (1967):

“Ordinarily a valid compromise agreement concludes defenses and counterclaims with respect to the original claim or cause of action. A party to a compromise is afterward estopped to set up matter constituting a setoff or counterclaim in existence when the compromise was made, unless such matter was not intended to be settled.” (Emphasis added.)

We have recognized this rule in the past.

“ ‘The law favors the amicable settlement of controversies, and it is the duty of courts rather to encourage than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims. The nature or extent of the rights of each should not be too nicely scrutinized. Courts should and do, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights by parties.... Because they promote peace, voluntary settlements of differences between parties having legal capacity to contract in respect of their rights, where all have the same knowledge or means of obtaining knowledge concerning the circumstances involving their rights and where there are no fraud, misrepresentations, concealments, or other misleading incidents, must stand and be enforced if intended by the parties to be final, notwithstanding the settlement made might not be that which the court would have decreed if the controversy had been brought before it for decision. Such agreements are binding without regard to which party gets the best of the bargain or whether all the gain is in fact on one side and all the sacrifice on the other.’ 11 Am.Jur., Compromise and Settlement, § 4.”

Tatum v. Carter, 270 Ala. 445, 448, 119 So.2d 223 (1960).

G.I.C. contends that there was no “meeting of the minds” of the parties on just what the compromise and settlement included. G.I.C. states that roofing materials were purchased from Texas Refinery to reroof two buildings located in Andalusia, and that the compromise and settlement agreement only involved one of those buildings. G.I.C. argues that on March 22, 1982, when Texas Refinery sued Charles Little, individually, and d/b/a General Investment, on a verified statement of account, and on March 25, 1982, when counsel for Charles Little forwarded a letter to Mark Vaughn, Attorney for Texas Refinery, accompanied by a motion to dismiss the complaint on the verified account, that “there were no existing problems with the roofing on the Piggly Wiggly building owned by General Investment, but the Sessions [sic] Warehouses owned by Mr. Little remained in a state of total disrepair.” In short, G.I.C. contends that the letter of March 25, 1982, refers only to the case of Texas Refinery Corporation v. Charles Little, case # DV-82-49, and did not deal with the problems with the Piggly Wiggly roof because those problems had not yet surfaced. G.I.C. notes in its brief the March 25, 1982, letter from Charles Little’s counsel, which reads, in part, as follows:

“Mr. Little has advised that the work provided by your client was most unsatisfactory with the result being that the roof which was installed with material provided by your client still leaks and is in total disrepair.”

G.I.C. essentially says, by this argument, that the intent was to settle the suit on account as to one building only, and that the compromise settlement was not intended to preclude a suit for breach of warranty and fraud concerning a roof on a second building.

Intent is a question of fact that is ordinarily to be determined by a jury. In this case there is a factual dispute, as demonstrated by the affidavits, letters, and deposition offered by the parties, as to what the parties intended the compromise and settlement agreement to encompass. In summary judgment cases, the standard of review is clear. In order to render a summary judgment, the moving party must show “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ala.R.Civ.P. 56(c), Houston v. McClure, 425 So.2d 1114 (Ala.1983). Here, there was a dispute of material fact, whether the parties intended the compromise and settlement to bar a later suit by G.I.C., and there was some evidence in support of G.I. C.’s theory that it did not intend to preclude this particular suit when it entered into the settlement agreement.

For the foregoing reasons, we must reverse the judgment of the trial court.

REVERSED AND REMANDED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I want to clarify why summary judgment was inappropriate in this case. The major issue is whether the settlement entered into in May 1982 encompassed any claims General Investment Corporation (G.I.C.) had against Texas Refinery Corporation for breach of warranty and fraud with respect to materials supplied by Texas Refinery for the repair of the Piggly Wiggly building. Charles Little, President of G.I.C., in an affidavit opposing the motion for summary judgment, stated that there were no complaints from the tenants of the Piggly Wiggly building until November or December 1982. There is a dispute as to whether G.I.C. intended in May 1982 to settle claims that did not arise until November or December 1982. Because there is a genuine issue as to a material fact, summary judgment was inappropriate. Savage v. Wright, 439 So.2d 120 (Ala.1983).


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Charles Allen DORSEY v. STATE.
    7 Div. 174.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.

      R.D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue presented on appeal is whether or not the trial court committed error in denying a motion by defendant for a mistrial. The case was in the process of being tried before a jury on an indictment charging the defendant with attempted theft in the first degree, as to which the jury found defendant guilty, and the court, after due notice and proof of seven previous felony convictions, sentenced defendant to imprisonment for fifty years.

The evidence in the case was undisputed to the effect that defendant came in a motor vehicle to the Winterboro Grocery Company, owned by Marcus Ledbetter, on Highway 21 on September 17, 1982, that defendant was seated behind the wheel of the vehicle and asked the store attendant in the front of the store at the gasoline pump to give him six dollars worth of gas. During the time the motor vehicle was being serviced, defendant entered the store and was seen near the safe of the store. This fact caused Mrs. Ledbetter, who was then in the store, to call Mr. Ledbetter into the store, who asked defendant what he was doing, and defendant “said he was just picking up his change he dropped.” There was approximately $2,000 in the safe at the time, consisting of all denominations of currency up to one hundred dollars. When Mr. Ledbetter went into the store, he, with a pistol in his hand, ordered the defendant to be seated in a chair until the officers arrived. Mr. Ledbetter had set the dial on the safe at 90 when he went out of the store before the defendant had entered it. When he returned to the store on call from inside of the store, the dial on the safe had been changed to another number, but the safe was still locked as it had been left by Mr. Ledbetter. No witness testified on call of the defendant.

The motion for a mistrial was presented during the direct examination of Mrs. Led-better as a witness for the State.

The proceedings that brought forth defendant’s motion for a mistrial were during the direct examination of Mrs. Ledbetter as a witness for the State. We regret that such proceedings are not as clear and coherent as they should be, which is largely attributable perhaps to the lack of precision on the part of some of the persons speaking as to dates and persons that were in the store on the first and second of two previous occasions within several months prior to the date of the crime for which defendant was being tried. The part of the interrogation of the witness that caused strong protest by defendant’s attorney commenced as follows:

“Q. Okay. Now at that time did you recognize this man [apparently referring to defendant] at that time? I’m talking about on September 17, 1982?
“A. I had seen him before.
“Q. And do you recall now when you had seen him before?
“MR. PURVIS [Defendant’s attorney]: I object.
“THE COURT: Overrule.
“MR. PURVIS: Could I ask for voir dire. I have no idea what it’s going to be.
“Q. Outside the presence?
“MR. PURVIS: Yes, sir.
“THE COURT: I am going to ask you [the jury] to go back in the jury room for just a minute. We need to take up a legal matter. We’ll call you back in a few minutes.
“(Jury goes out of the courtroom).”

Thereupon, a two-page hearing was conducted with the witness still on the stand and she was asked by defendant’s attorney where she had “seen this man before.” The following then occurred:

“A. We had been robbed before, and he was in on at least one of the other robberies.
“Q. I think that is very highly prejudicial.
“THE COURT: What was the answer?
“COURT REPORTER: We had been robbed before.
“MR. RUMSEY [District Attorney]: Judge, I would make a showing to the Court that, I believe, on July 3, 1982, that this man, along with two other men came down to the store, and one man asked for some cheese to be cut, and that this man went back over to the same area, and that ultimately some $1,200 was missing from the safe, not being a robbery, but being a theft with the same mode of operation; and we think it’s admissible on the basis of showing plan, intent, motive and design. And further that it was only — some sixty to ninety days before this happened. We are talking about the same safe, and further there will be further testimony tied up that the safe on this occasion — that he left the safe on a certain number, and when Marcus [Mr. Ledbetter] got into the store, it was not on that number.
“THE COURT: And this witness was there when this alleged theft took place?
“MR. RUMSEY: She cut the cheese before, and that’s the reason when asked to cut the cheese the third time, she took off back to the safe.
“THE COURT: I think it’s going to come in on the plan, motive, and intent.
“MR. PURVIS: Well, I think it’s highly prejudicial, Your Honor. It’s testimony of another offense he was never charged with. There is no connection with it whatsoever. It’s highly prejudicial if it please the Court.
“THE COURT: If the D.A. wants to go forward with it, I’m going to let it in.
“MR. PURVIS: You’re overruling my objection?
“THE COURT: Yes, sir. If that question is asked, I’m going to let it in. All right. Let the jury back in please.”

During the next two pages of this transcript the direct examination of the witness proceeded in the presence of the jury until the following occurred:

“Q. The Defendant now back on July 19, 1982 — was he with the man you cut the cheese for the four times?
“A. Now on this occasion I didn’t see him, but that was the second time that week they had been in.
“MR. PURVIS: I object may it please the Court and ask that this be all ruled out and ask for a mistrial at this time.
“Q. Your Honor, could we have the jury go out for a few minutes?
“THE COURT: I’ll have to ask that you back out for a few minutes. Do not discuss the case among yourselves nor allow anyone to discuss it in your hearing and presence.”

There promptly followed another hearing out of the presence and hearing of the jury, in which the following occurred:

“Q. Now, Mrs. Ledbetter—
“MR. PURVIS: Judge, we have asked for a mistrial.
“Q. Judge, I think you can take it under advisement. I think I’ll have a right to try to clear this up outside the presence of the jury.
“THE COURT: I’ll rule on it when the time’s proper.
“DIRECT OF MRS. LEDBETTER CONTINUES:
“Q. Mrs. Ledbetter, did y’all have a theft down there on July 3, 1982?
“A. Yes, sir.
“Q. Did you see the Defendant seated over there on July 3, 1982?
“A. No, sir.
“MR. PURVIS: That’s what was all gone into, and I object and ask for a mistrial. It’s all in before the jury.
“Q. Judge, I think it would be harmless error because I know Marcus Ledbetter saw him on July 3rd. Mrs. Ledbetter, what I’m asking — I know the man that got the cheese — you testified July 3 and September 17 — that they were different people.
“A. Yes, sir.
“Q. And I know that the same people that came in July 3 — at least all of them were not the same people that came in September 17th?
“A. That’s right.
“Q. But did this man come in on July 3rd, talking about the $1200 roughly or whatever, was taken out of the safe?
“A. There was two came in, but I never talked to but the one I cut the cheese for.”

As the hearing out of the presence of the jury continued, State’s counsel continued to press the position that defendant was present on the occasion of the theft of the money from the safe in the store on July 3, 1982, which he said he could show by Mr. Ledbetter, and to urge that testimony thereof would be admissible to show “a plan and type of design of how the case or how the crime was committed,” and defendant’s attorney continued to press his motion for a mistrial.

Upon a return of the jury to the courtroom, the following occurred:

“THE COURT: Okay, ladies and gentlemen, I want to inform you of a situation that has arisen. There was some testimony that was presented earlier before you went out. In substance there was testimony from this witness stand by this witness saying that the Defendant was at her place of business at Winterboro about a week before July 4, 1982, on Saturday. There was some other testimony following that. Now I’ve got a question that I want to ask you at this time. The Court feels like that this evidence should be excluded and should not be allowed to be considered by you. I have to ask you a question. I’ll call on you at that point in time, and I want you to say ‘yes’ you can put it out of your mind, or ‘no’ you can’t put it out of your mind. The question is this — can you put this statement which I just referred to out of your mind and exclude it from your consideration in this case and render a verdict which is impartial based on the law and evidence in this case. I will start with the gentleman in the back. Can you do that? (ALL JURORS ANSWERED IN THE AFFIRMATIVE).
“THE COURT: Let the record show that there were twelve affirmative ‘yes’s.” We will proceed with the evidence.”

No further reference was made to the question of the presence of defendant on the occasion of the theft from the safe in the store on or about July 3, 1982.

We conclude from our study of the court reporter’s transcript of the proceeding that the trial judge was disposed to allow evidence to the effect that defendant had participated in a theft or an attempted theft from the same safe in the same store on one or more occasions prior to the time of the alleged crime in the instant case, but that the questions, or the answers of the witness, had become so confusing that he decided it would be better and more in the interest of justice to exclude all of such evidence. We are of the opinion also that, had the matter not been so muddled, the State would have been entitled to show that defendant had been in the store previously on one or more occasions in the then recent past under circumstances that strongly indicated that he was a participant in the theft or the attempted theft of money from the safe. Faced with the dilemma produced by the confusion, we can appreciate the choice made by the trial court of excluding from the consideration of the jury all testimony on the subject, but in its doing so the defendant, we think, was given the benefit of more than that to which he was entitled. By the exclusion of the evidence from the consideration of the jury, defendant was relieved of strong testimony against him that constituted an exception to the general exclusionary rule as to evidence of the commission of a crime not charged in the indictment, as discussed in Gamble, McElroy’s Alabama Evidence, § 69.01(6) (1977), as follows:

“Evidence of the accused’s commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme, or system. This rule is applicable whether such plan, design, scheme or system is narrow and specific in scope or is measurably broad and general in scope.”

In our opinion, the court did not commit prejudicial error, and defendant suffered no injustice, by the denial of defendant’s motion for a mistrial. Comparable circumstances are to be found in Chillous v: State, Ala.Cr.App. 405 So.2d 58 (1981), in which it is stated at 405 So.2d 61, per Judge Harris, then Presiding Judge:

“... Substantial error is not presumed. It is the burden of the appellant to show error, and, before a reversal of the judgment is to be had, it must appear to the Court that the error complained of has probably injuriously affected the substantial rights of the appellant. Kabase v. State, 244 Ala. 182, 12 So.2d 766 (1943).
“The granting of a mistrial is addressed to the broad discretion of the trial judge and his ruling will not be revised on appeal unless it clearly appears that such discretion has been abused. Woods v. State, 367 So.2d 982 (Ala.1978). Where error is eradicable a mistrial is too drastic and is properly denied. Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, 358 So.2d 791 (Ala.1978).”

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Floyd Jay PONDER, alias v. STATE of Alabama.
    6 Div. 375.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Robert A. Sapp, Sr. of Sapp, Sapp & Sapp, Cullman, for appellant.

      Charles A. Graddick, Atty. Gen. and Louis C. Colley, Asst. Atty. Gen., of record, for appellee.
   TYSON, Judge.

Floyd Ray Ponder was charged in a one count indictment with the intentional murder of Billy Rae Ramey by stabbing him with a knife, in violation of Section 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of murder” and the trial judge set sentence at life imprisonment in the penitentiary.

We pretermit a statement of the facts in this case and a discussion of the other issues raised in this case because reversible error occurred during the oral charge which requires a retrial of this cause.

I

The appellant in this case was charged with intentional murder. During the court’s oral charge to the jury, the trial judge charged on “reckless murder.” The Alabama Supreme Court in Ex Parte Washington, 448 So.2d 404 (Ala.1984) held this to be reversible error. Therefore, on authority of Ex Parte Washington, supra, this case is reversed and remanded for a new trial. See also Dawson v. State, 449 So.2d 800 (Ala.Crim.App.1984); and Hughley v. State, 451 So.2d 439 (Ala.Crim.App. 1984).

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    FLORIDA BOARD OF BAR EXAMINERS: Re: AMENDMENT TO RULES RELATING TO ADMISSION TO THE BAR, ARTICLE III, SECTION 4 (CHARACTER AND FITNESS).
    No. 64705.
    Supreme Court of Florida.
    June 7, 1984.
    John H. Moore, Executive Director and C. Graham Carothers, Tallahassee, for Florida Board of Bar Examiners, petitioner.
    Robert H. Kennedy, Professor of Law, Florida State University, Tallahassee, Emily Moore, Cape Coral, and Steven M. Gold-stein, Florida State University, College of Law, Tallahassee, submitted comments.
   PER CURIAM.

This matter is before us on petition of the Florida Board of Bar Examiners for amendment of the Florida Supreme Court Bar Admission Rule, article III, section 4. We have jurisdiction. Art. V, § 15, Fla. Const. Notice of the Board’s petition and of oral argument was published in the Florida Bar News, inviting responses thereto.

We adopt the amendments appended to this order effective upon filing. We decline to adopt the Board’s proposal that the record of any applicant who appeals the Board’s failure to recommend admission to the Bar be made public. Little, if anything, would be gained from such a rule, and much could be lost.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

Section 4.a. Any applicant who is dissatisfied with the Board’s recommendation concerning his or her character, fitness or general qualifications, may, within sixty (60) days after notice of the Board’s recommendation, file with the Board a petition for reconsideration with a fee of $60.00 as specified under the provisions of Article V, Section 10. The petition must contain new and additional matter which the Board has not previously considered. Only one such petition for reconsideration may be filed.

b. Any applicant or student registrant who is dissatisfied with the Board’s recommendation concerning such applicant’s or registrant’s character and fitness may file an appropriate petition with the Clerk of the Supreme Court of Florida, within a period of sixty (60) days after receipt of the Board’s recommendation. A copy of such petition shall be served upon the Executive Director of the Board. Upon receipt of such petition, the Executive Director shall place the record of the formal hearing with the Supreme Court, and such Justice or Justices thereof as shall be designated by the ■Chief Justice- may intervie'w-and-hear such applicant or student-registrant and make-such inquiry of the Board and-o-thers as shall be necessary to a decision-as-te and the Court shall decide whether such applicant or student registrant meets the character and fitness requirements. The Justice or-Justices so-designated shall-make a recommendation to the Court and the final action of the Court shall be duly entered in the minutes thereof.

c. An applicant who has been refused a favorable recommendation by the Board through the filing of Findings of Fact and Conclusions of Law which has not been reversed by the Supreme Court of Florida shall not be eligible for admission to any subsequent administration of any part of the Florida Bar Examination until such applicant receives a favorable recommendation by the Board or a favorable decision by the Supreme Court of Florida as to character and fitness; provided, however, that any such applicant who received a passing score on any part of the Florida Bar Examination administered .prior to the filing of the Board’s Findings of Fact and Conclusions of Law shall be entitled to retain that passing status for the applicable part for the time period provided under Article VI, Section 9.

Crd. Any applicant who has been refused a favorable recommendation by the Board or any applicant or student registrant who has proceeded through the provisions of subsection b. above and is the recipient of final action by the Supreme Court of Florida either denying an applicant’s admission or finding a student registrant to be unfit for admission may, within a period of not less than after two calendar years from the date the Board delivered its adverse finding, or-from the date the-Cour-t entered such final action, whichever is la-tery file an appropriate petition with the Clerk of the Supreme Court of Florida in an attempt to show sufficient rehabilitation to warrant a review of the Board’s findings or the re-evaluation by the Court of its final action. The Court shall fix all investigative costs to be borne by the petitioner and remitted to the Florida Board of Bar Examiners, which Board shall serve as the Court’s investigative arm in such matters. In issuing a judgment adverse to an applicant or student registrant,Pthe Court shall fix the date after which subsequent petitions may be filed with the Court.

e. Any applicant or student registrant who, in any formal hearing held in response to specifications pursuant to Article III, Section 3a or in any proceeding held before the Board pursuant to Article II, Section 5 or Article III, Section 4e, affirmatively asserts rehabilitation from prior conduct which bears adversely upon such person’s character and fitness for admission to the Bar shall be required to produce clear and convincing evidence of such rehabilitation including, but not limited to the following elements:

(1) Strict compliance with the specific conditions of any disciplinary, judicial, administrative or other order, where applicable.

(2) Unimpeachable character and moral standing in the community.

(3) Good reputation for professional ability, where applicable.

(4) Lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative or other proceeding.

(5) Personal assurances, supported by corroborating evidence, of a desire and intention to conduct one’s self in an exemplary fashion in the future.

(6) Restitution of funds or property, where applicable.

(7) Positive action showing rehabilitation by such things as a person’s occupation, religion, community or civic service. Merely showing that an individual is now living as and doing those things he or she should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. The requirement of positive action is appropriate for applicants for admission to the bar because service to one’s community is an implied obligation of members of the bar.

       Added language is underlined, deleted language is lined out-


author: HURLEY, Judge. GLICKSTEIN, Judge, WALDEN, Judge,

text:
    Dennis Scott KAPLAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-867.
    District Court of Appeal of Florida Fourth District.
    June 13, 1984.
    William Snow Frates and Lauri B. Wald-man of Frates, Beinstock & Sheehe, Miami, and Windsor, Bernstein & Byrne, Plantation, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Dennis Kaplan was convicted of sexual battery. The trial court withheld imposition of sentence and placed the defendant on three years’ probation with the special condition that he serve 120 days in the county jail. On appeal, the defendant complains that the trial court erred in applying Florida’s rape victim shield statute to limit cross-examination of the victim. We disagree.

The victim in this case accompanied her boyfriend to a bar. While there, she became upset with her boyfriend for paying attention to other female patrons and, in response, she struck up a conversation with the defendant. After a short time, she agreed to leave with the defendant to go to another bar. When they found that the second bar was closed, the victim asked to be driven back to the first bar. The defendant, however, drove in the opposite direction and eventually pulled into an open field. There he beat the victim about the head and chest and committed vaginal and anal penetration. The defendant then drove off, leaving the victim in the field. She immediately walked to the nearest house and asked the occupant to call the police.

The examining physician testified that the victim had a bleeding abrasion in her anus. In addition, the doctor observed dried blood on her right temple and left elbow. Her lip was swollen, her breasts had black and blue marks and, on the inner part of her arms, there were three-inch marks. Both of her knees were scraped and reddened.

During a proffer outside the jury’s presence, the defense elicited from the victim that, in addition to her boyfriend with whom she had resided for three years, she had engaged in sexual intercourse with three men. She knew two of the men for substantial periods of time before engaging in sexual intercourse. She met the third man in a bar and had sex on their second date. The trial court ruled the foregoing evidence inadmissible because it did not constitute a pattern of similar conduct.

Section 794.022(2), Florida Statutes (1983), provides in pertinent part:

Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, ... when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

To fulfill the requirements of the statute, it must be established that the victim engaged in a pattern of conduct or behavior extremely similar to the defendant’s version of the encounter. The term “pattern” denotes repetitive or frequent conduct. McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982). One episode is not sufficient. Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980). Moreover, the pattern must be so distinctive and so closely resemble the defendant’s version of the encounter that it tends to prove that the complainant consented to the acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented. Cf. State v. Wilhite, 58 N.C.App. 654, 294 S.E.2d 396 (1982), cert. denied, 307 N.C. 129, 297 S.E.2d 403 (1982), remanded for resentencing, 308 N.C. 798, 303 S.E.2d 788 (1983). Only when these statutory requirements are met does the probative value of the evidence outweigh its prejudicial impact.

An analysis of the proffered evidence in this case shows that one incident remotely resembled the defendant’s account. But, as indicated in Hodges, supra, “one episode of sexual intercourse ... hardly establishes a ‘pattern of conduct or behavior' on the part of the victim .... ” Id. at 889. Thus, we conclude that the trial court properly excluded the evidence because it was devoid of any logical tendency to prove or disprove the defense of consent.

It is important to note that Florida’s rape victim shield statute does not exclude evidence that is otherwise admissible. Section 794.022(2), Florida Statutes (1983), is merely a codification of this jurisdiction’s rule of relevance as it applies to the sexual behavior of a sexually battered victim. We recognize, however, that the defendant’s right to full and fair cross-examination, guaranteed by the Sixth Amendment, may limit the statute’s application when evidence of the victim’s prior sexual conduct is relevant to show bias or motive to lie. See, e.g., Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181 (1981); State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976); see also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In this respect, we have carefully examined the defendant’s contention that the excluded evidence was relevant to establish the victim’s motive. We find, however, that his claim is without merit. Thus, we hold that the trial court properly excluded the evidence under the rape victim shield statute. Accordingly, the defendant’s conviction and sentence are

AFFIRMED.

GLICKSTEIN, J., concurs specially with opinion.

WALDEN, J., dissents with opinion.

GLICKSTEIN, Judge,

concurring specially:

Cynics could call this, as they could any other period of time past, the age of apathy and complacency. Others take the tentative, positive steps of shaking their heads at the evidentiary episodes of insensitivity and sighing: “Gee, that’s a shame.” Still others, having recognized, at the root, a “business as usual” attitude that permeates the fabric of government, the professions, commerce and social structures, keep chipping away at this huge societal slug.

Women of the third category, aware they are fully capable of competing equally with men in the exercise of intellectual and emotional leadership, have appropriately chipped away at the anachronistic apathy of males to the violation of the bodily and mental dignity of females. In the realm of dialogue over rape and sexual battery, results do not come easy. Men control the legislatures and the courts.

I quail at the harm done women by network television’s sensationalized coverage of the gang rape of a woman in a bar in New Bedford, Massachusetts, and ensuing court proceedings. Before the exploitation of the victim in that case for the lascivious entertainment of New Englanders to watch, rape was unquestionably the least likely to be reported of the serious crimes. Now those that engage in rape must be gleeful in the realistic expectation that sexually battered women, heretofore hesitant to come forward and be subjected to the stress of a criminal prosecution, will for certain elect to suffer in silence after being violated.

The reaction of basically male legislators to the legitimate demands of the females who are the potential victims of rape is as varied as the water in each state. In 1974, the Florida Legislature, by 74-121, Laws of Florida, revised Chapter 794, Florida Statutes. It changed the name of the crime from rape and carnal knowledge to sexual battery, and eliminated the death penalty except for crimes against children under twelve by assailants over seventeen. It further expressed the social value judgment of Floridians’ legislative representatives by codifying the admissibility, in a limited fashion, of prior sexual conduct of the victim with persons other than the accused.

The legislation has been the subject of criticism in one law review student note and has been mentioned in one comprehensive law review article. The former, Note, Florida’s Sexual Battery Statute: Significant Reform But Bias Against The Victim Still Prevails, 30 University of Florida Law Review 419 (1978) suggests, with respect to that portion of the statute dealing with prior sexual activity:

While some other states are modernizing their rules of evidence concerning the prior sexual activity of the victim, Florida has failed to follow the trend of reform. Instead the Florida Legislature has produced a careless codification of some of the case law and judicial custom. Furthermore, the new statute is silent with respect to reputation evidence concerning the victim’s chastity, with the result that case law must be followed.[] Not only are there substantive defects in section 794.022(2) of the Florida Statutes, but flaws in form are present as well.

Id. at 435 (footnotes omitted). The latter, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Columbia Law Review 1 (1977), by Vivian Berger, Assistant Professor of Law at Columbia Law School, reviews all of the “rape shield” statutes which had been enacted as of that time, from those of Louisiana and Michigan, which have a strict exclusionary preference, to those of Texas and New Mexico at the other end of the spectrum. She adds:

California, in a pattern followed by some other states, prohibits — with only two exceptions — the introduction of this proof in order to show that the woman consented. The Act however, cautions that nothing within the law “shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness .... ” Florida, by contrast, states a general rule of exclusion for proof of the victim’s sexual conduct with third parties, but provides for admission under certain conditions when the victim’s consent is placed in issue; impeachment is not referred to at all.

Id. at 35-36 (footnotes omitted). Professor Berger’s article concludes with a proposed model statute.

The implementation of the new Florida statute depends upon the sensitivity of the trial judge. In McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982), our companion court affirmed the trial court’s exclusion of the following proffered testimony:

The defense’s proffered testimony indicated that the victim was an unchaste woman. Most of this evidence revealed that the victim had a reputation for promiscuity. Such evidence consisted of the victim’s having adulterous affairs, picking up strange men at bars, and making dates with truck drivers over a C.B. radio. One witness saw the victim leave local bars with strangers. There was additional evidence relating to specific instances of sexual conduct in which one local citizen admitted having a sexual relationship with the victim a year before the alleged crime, and another testified she had seen the victim in bed with her ex-husband on two separate occasions. The trial court declined the admission of the proffered evidence, but permitted testimony revealing that co-defendant Watt, also charged with aiding and abetting the sexual battery, participated in a sexual encounter with the victim the night before the alleged crime.

Id. at 747.

Judge Larry G. Smith focused sharply on the intent of the legislature when he wrote in Hodges v. State, 386 So.2d 888, 889 (Fla. 1st DCA 1980):

Here, one episode of sexual intercourse three or four weeks before the assault hardly establishes a “pattern of conduct or behavior” on the part of the victim; and the evidence of having slept with her boyfriend on one occasion bears no relation to the issue of whether the victim consented during this hitchhiking encounter. Evidence merely disclosing pri- or sexual activity or looseness of morals in that regard is not admissible under the statute. In order to be admissible, the evidence must be of such a nature as to give rise to a reasonable assumption that because the victim engaged in a certain disclosed pattern of conduct or behavior, the victim probably consented to the same activity with the accused. In this respect, the test for admissibility is much like that for admission of “other crime” evidence under Williams v. State, 110 So.2d 654 (Fla.1959), and its progeny. The proffered conduct simply fails to meet the test required by the statute.

Professor Berger’s model statute would provide:

(b) The following evidence shall be admissible and may be referred to before the jury if the court finds that it is relevant to a material fact and that its probative value is not outweighed by the danger of unfair prejudice, confusion of the issues, or unwarranted invasion of the complainant’s privacy or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence:
(1) Evidence of the complainant’s sexual conduct with the defendant.
(2) Evidence of specific instances of sexual conduct tending to prove that a person other than the defendant committed the act or acts charged or caused the complainant’s physical condition allegedly arising from these acts. Such evidence shall include proof of the origin of semen, pregnancy or disease.
(3) Evidence of a pattern of sexual conduct so distinctive and so closely resembling the defendant’s version of the alleged encounter with the complainant as to tend to prove that she consented to the act or acts charged or behaved in such a manner as to lead the defendant [reasonably] to believe that she consented.
(4) Evidence of prior sexual conduct, known to the defendant at the time of the act or acts charged, tending to prove that he [reasonably] believed that the complainant was consenting to these acts.
(5) Evidence of sexual conduct tending to prove that the complainant has a motive to fabricate the charge.
(6) Evidence tending to rebut proof by the prosecution regarding the complainant’s sexual conduct.
(7) Evidence of sexual conduct offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.

Note, supra p. 5, at 98, 99 (footnotes omitted). Whether we follow Judge Smith, or Professor Berger’s suggestions, it seems to me that, in the absence of statutory explanation of “pattern,” the admission of this female’s isolated acts of intercourse with other men into a public trial — which would have been a media spectacle elsewhere— would have been an insensitive, unwarranted historical throwback.

WALDEN, Judge,

dissenting:

Kaplan claims that the inebriated victim consented to the sexual activity. The victim claims that the sexual activity was against her will. The issue of consent was close.

The victim testified that she and her boyfriend had previously broken up on two occasions for short periods of time. During the first breakup she met a man in a bar and left with him. Two days later they engaged in sexual intercourse. During the second breakup she had sex with two men — one she had known previously for about six months, and the other for a year. This is the testimony that was excluded, I think erroneously, under the provisions of Section 794.022(2), Florida Statutes (1983).

Which shall take precedence, the mentioned statute obviously intended for the benefit of the victim, or the accused’s Sixth Amendment right to confrontation and full cross-examination? I do not believe the two concerns are of equal dignity. On the one hand, the statute operates to prevent the victim from being embarrassed and, although not charged with a crime, from having her reputation put in issue. On the other hand, the Constitution gives the accused the right of full cross-examination and the right to confront his or her accusers. If the question is close and one has to suffer, I suggest that the former should give way because, if for no other reason, the accused is faced with possible conviction and incarceration. Thus, in my view, the legislative word “tends” should be given liberal application.

The statutory test, of course, is whether the sexual activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.

With respectful reference to the majority opinion, I take academic exception to its proviso which holds that the pattern of conduct or behavior must be “extremely similar” to the defendant’s version of the encounter. I suggest that this is an impermissible engraftment or construction of a clear and unambiguous statute. Moreover, if this stringent standard of “extremely similar” is followed, it would nullify or certainly change the statutory standard thát such evidence may be admitted if the evidence “tends” to establish a pattern which is “so similar” to the behavior in the case that it is “relevant” to the issue of consent. Common sense tells us that in matters of this kind there would rarely, if ever, be instances of “extremely similar” conduct. I do not and cannot construe the statute as does the majority.

Black’s Law Dictionary, Revised Fourth Edition, defines “tend” as follows:

To have a leaning; serve, contribute, or conduce in some degree or way, or have a more or less direct bearing or effect; to be directed as to any end, object, or purpose; to have a tendency, conscious or unconscious, to any end, object or purpose.

In Jenny v. State, 447 So.2d 1351 (Fla. 1984), the Supreme Court of Florida reminds us (referring to F.S. 914.04) of the principles governing statutory construction:

There is no requirement that a person must invoke the privilege against self-incrimination in order to be granted immunity. Had the legislature so desired, it could have included such a provision. We will not rewrite the statute. Where a statute is unambiguous and clear upon its face, courts must accord the statute its plain meaning and are not free to construe it otherwise. Carson v. Miller, 370 So.2d 10 (Fla.1979); Heredia v. Allstate Insurance Co., 358 So.2d 1353 (Fla. 1978).

While the testimony of the victim as to voluntary sex with three other men during the previous two short periods of breakup with her boyfriend is weak and far from conclusive, I am satisfied that it tends to show that the victim was disposed to have consensual sex with others while at odds with her boyfriend. Thus, without denigrating the salutory purpose of the statute properly applied, I feel that the jury here should have been allowed to consider the banned testimony in the interest of providing Kaplan with a constitutionally fair trial.

I would reverse and remand for a new trial.

      . Section 794.011(5), Fla.Stat. (1983).

      . Section 794.022(2), Fla.Stat. (1983).

      . Judge Ervin, who cited the student note in his opinion in McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982), commented on this suggested flaw.

      . A compendium of the different social value judgments one can find simply by crossing state lines is found in Annot., 94 A.L.R.3d 257 (1979). The unsuccessful constitutional attacks on various statutes are described in Annot., 1 A.L.R.4th 283 (1980). The federal version is found at Fed.R.Evid. 412. Remarks of the rule’s legislative sponsors, male and female, can be reviewed in the current supplementary pamphlet to the Fed.R.Evid., 28 U.S.C.A., at 158 (West Supp. 1984).


text:
    DOW CORNING CORPORATION, Petitioner, v. Allibert GARNER, Kenneth L. Winslow, et al., Respondents.
    No. 83-489.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    See also Fla.App., 423 So.2d 1034.
    David F. McIntosh of Corlett, Killian, Hardeman, McIntosh & Levi, Miami, and Marc Cooper and Sharol L. Wolfe of Greene & Cooper, P.A., Miami, for petitioner.
    Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for respondents.
   PER CURIAM.

Dow Corning Corporation has filed a Motion to Enforce Mandate, said mandate having been issued by this court in Dow Corning Corp. v. Garner, 435 So.2d 987 (Fla. 4th DCA 1983). We treat the motion as a petition and accept jurisdiction since the trial court did not comply with the mandate of this court. See Stuart v. Hertz Corp., 381 So.2d 1161, 1163 (Fla. 4th DCA 1980). Accordingly, we grant the petition.

In 1982 the trial court issued two orders compelling discovery. We approved those orders as they contained “sufficient safeguards to protect petitioner from disclosure of work product, trade secrets and other privileged information.” Dow Corning Corp. v. Garner, 423 So.2d 1034, 1035 (Fla. 4th DCA 1982). On February 8, 1983, the trial court changed the 1982 orders by substituting what we previously approved with what it considered an alternative safeguard. We granted Dow Coming’s petition for writ of certiorari and directed the trial court “to enter an order containing the protections previously approved by this court.” Dow Corning Corp., 435 So.2d at 988. Responding to this court’s mandate and respondents’ motion for a corrective order, the trial court entered an order on October 19, 1983. Instead of reinstating the protections provided in the 1982 orders, the trial court merely added another safeguard to the February 8th order. The trial court’s actions apparently were based on petitioner’s refusal to deface the original documents to be produced and court’s view that the respondents were entitled to the original documents rather than photocopies.

“Absent permission to do so, the trial court on remand is without authority to alter or evade the mandate of this court. Stuart, 381 So.2d at 1163.

In passing, we address a concern of the trial court and respondents. Under the rules of evidence, duplicates of documents are equally admissible as originals. § 90.-953, Fla.Stat. (1981). Only where there is a question about authenticity, or where the document is a negotiable instrument, a security or a writing evidencing a right to the payment of money, or if for some other reason it would be unfair to admit the duplicate must the original be produced. Id. We fathom no reason why the original documents in the instant case need be produced, especially in light of the privileged matter contained therein.

Since the trial court departed from the essential requirements of the law in that it did not “enter an order containing the protections previously approved by this court,” Dow Corning Corp., 435 So.2d at 988, we grant the petition. Again, we direct the trial court to enter an order containing the protections previously approved by this court.

PETITION TO ENFORCE MANDATE GRANTED.

DOWNEY, LETTS and HERSEY, JJ., concur.


text:
    HUNT-WILDE CORPORATION and Morrison Assurance Company, Appellants, v. William KITCHEN, Appellee.
    No. AO-402.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.

      James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellants.
    Raymond A. Tavares, Tampa, for appel-lee.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner in a workers’ compensation proceeding awarding temporary partial disability compensation and wage-loss benefits. At issue are the deputy’s award of wage-loss benefits without a finding of permanent anatomic impairment under the AMA Guides, his award of temporary partial disability compensation from June 12, 1980 to March 16, 1982, and his finding that claimant could have earned $110 per week during that period. We affirm in part, reverse in part, and remand for reconsideration of the impairment issue.

William Kitchen, a 29-year-old manual laborer with a tenth-grade education, injured his low back in a compensable accident on February 18, 1980. The employer/carrier terminated temporary total disability benefits on June 12, 1980, due to claimant’s failure to keep an appointment with a neurosurgeon, arranged for him by the employer/carrier. An appointment was subsequently arranged with Dr. Martinez, a neurologist, which claimant also failed to keep. He was thereafter examined by Dr. Martinez, who found that as of September 22, 1980, claimant had reached maximum medical improvement, that he had no evidence of any neurologic impairment, and that he could return to work. Dr. Martinez saw claimant again in November, 1980 and February, 1981, without changing his previous opinions regarding claimant’s condition or ability to work.

After some delay due to his failure to keep scheduled appointments, claimant underwent testing in March, 1982, requiring hospitalization. He was examined by Dr. John C. Baker, an orthopedic surgeon, who determined that claimant had reached maximum medical improvement on June 2, 1982, and that he did not have a rating in accordance with the AMA Guides, but that he did have a disability of approximately five percent of the whole man, based on the Academy of Orthopedic Surgeons Guide. The employer/carrier provided temporary total disability benefits from March 16, 1982 to June 28, 1982, during which time claimant missed numerous therapy appointments.

At the hearing on August 4, 1982, claimant asserted, among other claims, entitlement to temporary total disability compensation from the date of the accident until June 2, 1982, and wage-loss benefits thereafter. The employer/carrier asserted that claimant was not entitled to temporary total disability compensation between June 12, 1980 and March 16, 1982, due to his failure to attend medical examinations or to seek employment, and that claimant did not have a permanent impairment rating in accordance with the AMA Guides, a prerequisite for entitlement to wage-loss benefits.

In his order, the deputy found that claimant had not made a good-faith job search from September 22, 1980, when he was told he could return to gainful employment, until August 5, 1981, when he was first seen by Dr. Baker. The deputy determined that claimant was not entitled to temporary total disability benefits from June 12, 1980 to March 16, 1982, due to his failure to cooperate with his medical care and treatment, but awarded claimant temporary partial disability benefits for that period, based upon a deemed earning capacity of $110 per week. The deputy also found that claimant had a permanent anatomic impairment of five percent of the whole person, based upon Dr. Baker’s testimony, and that he had attempted to seek employment since being told to return to work by Dr. Baker, awarding wage-loss benefits from June 2, 1982.

From June 12, 1980 to September 22, 1980, when Dr. Martinez told claimant he could return to work, claimant was arguably temporarily totally disabled. However, the deputy found that claimant was not entitled to temporary total disability benefits during this period, because he had failed to cooperate with his medical care and treatment. The deputy further found that claimant was not entitled to temporary total disability benefits from September 22, 1980 to August 5, 1981, when he was first seen by Dr. Baker, because he had been told he could return to gainful employment and had not made a good-faith job search, and also because he had failed to cooperate in his medical treatment. The deputy found claimant not entitled to temporary total disability benefits from August 5, 1981 to March 16, 1982, again because claimant failed to cooperate with his medical care and treatment.

These findings are supported by competent, substantial evidence in the record. However, the record does not support, nor does logic explain, the deputy’s inconsistent award of temporary partial disability benefits during this period and his determination that claimant was able to earn $110 per week during that time. Although we acknowledge the deputy’s authority to deny temporary disability benefits based on claimant’s failure to cooperate in his medical treatment, Lobnitz v. Orange Memorial Hospital, 126 So.2d 739 (Fla.1961), once he has denied temporary total disability benefits based on this rationale, it is illogical to subsequently award temporary partial disability benefits for the same time periods. Claimant’s failure to keep scheduled medical appointments, found by the deputy to be unexcused and a basis for denial of total disability benefits, also precludes an award of partial benefits for the same time period.

The deputy’s award of temporary partial disability benefits between September 22,1980 and August 5,1981 was also in error because the deputy found that claimant had been told he could return to gainful employment and had not made a good-faith job search during that period. See Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982), and Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), pet. for rev. denied, 431 So.2d 989 (Fla.1983). Where an injured worker has recovered the ability to work but is not yet at maximum medical improvement, he is entitled to temporary partial disability benefits, but only as established by a conscientious work search. As we stated in Holiday Care Center v. Scriven, 418 So.2d at 324:

To search for work conscientiously and effectively is the chapter 440 obligation of any injured and unemployed worker not physically disabled to work. That is the clear mandate of this Court’s cited decisions refusing to excuse a worker’s failure to search, or his inadequate search, due to subjective but medically unverifiable claims of inability to work or to search.... [T]he work search is the linchpin of any effort to return to gainful work from a condition disabling work, and is therefore the predicate for any claim based on continued disability to work as gainfully as before....

In Jones Mahoney Corporation v. Hutto, 421 So.2d 703 (Fla. 1st DCA 1982), this court held that the deputy erred in awarding claimant temporary total disability benefits where there was no competent, substantial evidence that he was unable to work as of September 12, 1980, when he was told he could return to work, and that claimant was entitled to temporary partial disability benefits from the commencement of his work search on November 3, 1980 until he reached maximum medical improvement. In the instant case, the deputy properly denied temporary total disability benefits from the date claimant had been told he could return to work, based on his finding that claimant had not undertaken an adequate work search. Under the rationale of the cited cases,^temporary partial disability benefits could only be awarded from the time claimant commenced an adequate work search, which he did not do.

Finally, the deputy’s finding that claimant was able to earn $110 per week during the period of his temporary disability is not supported by any evidence in the record and must also be reversed.

The deputy awarded wage-loss benefits after June 2, 1982, the date on which Dr. Baker found claimant had reached maximum medical improvement, finding that claimant had sustained a permanent anatomic impairment of five percent of the whole person, based upon Dr. Baker’s testimony, and that claimant had attempted to seek employment since being told to return to work. Dr. Baker’s deposition, upon which the deputy relied for evidence of an anatomic impairment upon which to base his award of wage-loss benefits, indicates that the AMA Guides applied to claimant’s injury, but that claimant’s impairment rating under the AMA Guides was zero. Although this court has until quite recently required that a finding of permanent impairment, a prerequisite to an award of wage-loss benefits, be based on the AMA Guides, this rule has been modified by our en banc decision in Trindade v. Abbey Road Beef ’n Booze, 443 So.2d 1007 (Fla. 1st DCA 1983). That case held that, for purposes of determining eligibility for wage-loss benefits, the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the AMA Guides, “unless such permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria for determining impairment.” at 1012. Appellate courts must apply the law in existence at the time of the appeal. Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978). We therefore remand the cause to the deputy for reconsideration of this issue in light of Trindade, supra.

We reverse the award of temporary partial disability benefits from June 12, 1980 through March 16, 1982 and the deputy’s finding that claimant was able to earn $110 per week during that period. We remand for reconsideration of the award of wage-loss benefits from June, 1982 in light of our recent decisions and affirm the remainder of the order.

MILLS, BOOTH and SHIVERS, JJ., concur.

      . We note that the Department of Labor and Employment Security, Division of Workers’ Compensation, is in the process of amending its rule regarding the determination of physical impairment. Rule 38F-3.175, due to become final December 17, 1983, provides, in pertinent part:
      When the injury is to the knee, hip, shoulder, or elbow and the resulting permanent condition is not a permanent impairment under the [AMA Guides] ..., the Manual for Evaluation of Permanent Physical Impairment of the American Academy of Orthopedic Surgeons shall be used to determine the existence and degree of permanent impairment.


text:
    STATE of Florida, Appellant, v. Richard McDONALD, Jr., Harlin Cecil Gillespie, Gary Wayne Rogers, John Joseph Beneke, and Michael Kerry Lewis, Appellee.
    Nos. 82-2482 to 82-2484.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    No brief filed by appellees.
   PER CURIAM.

We reverse Case Nos. 82-2482, 82-2483 and 82-2484 upon authority of Section 316.-1932(l)(a), Florida Statutes (1982); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); State v. Pa- gach, 442 So.2d 331 (Fla. 2d DCA 1983); and State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983), and remand for further proceedings.

REVERSED and REMANDED.

DOWNEY, HURLEY and WALDEN, JJ., concur.


author: PER CURIAM. DANIEL S. PEARSON, Judge, PER CURIAM.

text:
    DADE COUNTY POLICE BENEVOLENT ASSOCIATION, INC., a Florida Corporation, D. Marshall Barry, Mallory E. Horne, and William G. Thomas, as Trustees of the Nationwide Public Employees Trust, Mark Seiden, Robert Willis, Joseph McMahon, Jimmie Brown and William Cegelis, individually and on behalf of others similarly situated, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Metropolitan Life Insurance Company, a foreign insurance corporation, American Bankers Life Assurance Company of Florida, a foreign insurance corporation, Blue Cross of Florida, Inc., and Blue Shield of Florida, Inc., Appellees.
    No. 81-2550.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied July 3, 1984.

      Daniels & Hicks and Elizabeth K. Clarke, Anderson & Moss and Louise MeMurray, Miami, for appellants.
    Adkins & Hardy and Brooks C. Miller, Coral Gables, Jorden, Melrose & Schuette and Robert J. Schaffer; Shutts & Bowen and Eric B. Meyers and Sally M. Richardson; Robert A. Ginsburg, County Atty., and Richard J. Weiss, Asst. County Atty., and Deborah B. Mastín, Miami, for appel-lees.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal from two trial court orders which dismiss (a) class action claims arising out of the alleged mismanagement of certain group insurance plans offered by Metropolitan Dade County to its employees, and (b) an individual civil theft claim arising out of the same alleged mismanagement scheme. These same orders also dismiss, but with leave to amend, various other individual claims, thereby not finally disposing of such claims in the trial court.

We have jurisdiction to entertain the appeal from the dismissal of the class action claims, as it constitutes an appeal from a final order which we are empowered to review under Article V, Section 4(b)(1), of the Florida Constitution. Cordell v. World Insurance Co., 352 So.2d 108 (Fla. 1st DCA 1977). For the reasons which follow, we affirm this dismissal for failure to plead a proper class action. We have no jurisdiction, however, to entertain the appeal from the dismissal from the civil theft claim. For the reasons which follow, we dismiss this appeal for lack of jurisdiction.

The third amended complaint filed below contains five counts. The first three counts are individual and class action counts brought by five individual plaintiffs [Mark Seiden, Robert Willis, Joseph McMahon, Jimmie Brown and William Cegelis] against Metropolitan Dade County [Dade County] and the insurance companies which during relevant periods wrote and administered the group life and health insurance plans offered by Dade County to its employees: Blue Cross of Florida, Inc. [Blue Cross], Blue Shield of Florida, Inc. [Blue Shield], American Bankers Life Assurance Company of Florida [American Bankers Life] and Metropolitan Life Insurance Company [Metropolitan Life], Count I alleges breach of fiduciary duty, fraud and misrepresentation against Dade County, Blue Cross, Blue Shield and American Bankers Life; count II alleges misrepresentation against Dade County and Metropolitan Life; count III alleges civil theft against all of the above defendants.

The remaining counts of the complaint, counts IY and Y, are brought by the Dade County Police Benevolent Association [Dade County PBA] and three named trustees of the Nationwide Public Employees Trust. Count IV alleges a breach of contract against Dade County and seeks in-junctive relief against Metropolitan Life as well as damages against Dade County. Count V alleges civil theft against Dade County and Metropolitan Life. All five counts of the complaint arise out of an alleged mismanagement of the group life and health insurance plans offered by Dade County to its employees.

Upon proper motions filed below, the trial court entered two orders which dismiss the class action counts of the complaint and the Dade County PBA’s civil theft claim [count V]; all other individual claims were dismissed by the trial court with leave to amend. Plainly the dismissal of the civil theft claim [count V] did not finally dispose of all claims below between the plaintiff Dade County PBA and the defendants Dade County and Metropolitan Life, because a breach of contract claim [count IV] involving the same parties was not finally disposed of below and still remains pending. The dismissal of the civil theft claim was therefore not a final order appealable to this court under Article V, Section 4(b)(1) of the Florida Constitution. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). The dismissal is also not among the non-final orders made appeala-ble to this court under Article V, Section 4(b)(1), of the Florida Constitution as implemented by Fla.R.App.P. 9.130(a). We, accordingly, dismiss this appeal for lack of jurisdiction.

Turning to the class action claims contained in the first three counts of the complaint, we conclude that these claims do not properly plead a valid class action. It is alleged in the complaint, as class representation allegations, that the individual plaintiffs are members of a class too numerous to be set forth. The class, as alleged, consists of full-time salaried employees of Dade County and their dependents who participated in the life and accidental death insurance plan provided by Dade County to its employees from at least 1965 through the present. It is also alleged that the class consists of all persons who are Dade County employees and who, either alone or with dependent family members, participated in the life and accidental death group insurance program offered by their employer Dade County and who contributed to the premium costs of the insurance through payroll deductions.

The gist of the class action claims is that Dade County and the four insurance companies which underwrote the county’s health insurance and life and accidental death insurance plans from 1965 to date [Blue Cross, Blue Shield, American Bankers Life and Metropolitan Life] engaged in a certain scheme. Under the alleged scheme, county employees who participated in the life and accidental death insurance plan from 1965 to date were overcharged premiums for the plan. The excess premiums were then allegedly diverted on various dates in various sums to Blue Cross, Blue Shield and Dade County.

It is further asserted, as a legal conclusion, that the claims of the individual plaintiffs are typical of the claims of all members of the class and that the individual plaintiffs can adequately protect the interests of all such members. The allegations in the complaint which seek to plead this essential requirement of a class action are in their entirety as follows:

“13. The claims of Plaintiffs SEIDEN, WILLIS, McMAHON, BROWN and CEGELIS are typical of the claims of each member of the class.
14. Each of the individual Plaintiffs can fairly and adequately protect and represent the interests of each member of the class as well as his own interests.”

The third amended complaint, which the plaintiffs did not seek to amend below, fails to allege a proper class action as required by Fla.R.Civ.P. 1.220(c)(2)(C), (D)(iii), which provides in relevant part:

“(c) Pleading Requirements. Any pleading, counterclaim or crossclaim alleging the existence of a class shall contain the following:
(2) Under a separate heading, designated as ‘Class Representation Allegations,’ specific recitation of:
(C) the particular facts and circumstances that show the claim or defense advanced by the representative party is typical of the claim or defense of each member of the class;
(D) ... (iii) the particular facts and circumstances that show the representative party will fairly and adequately protect and represent the interests of each member of the class.”

Paragraphs 13 and 14 of the third amended complaint, as quoted above, fail to comply with the above rule requirements as these paragraphs plead no facts and circumstances showing that the plaintiffs’ individual claims are typical of the claims of each member of the class and that the plaintiffs can fairly and adequately protect and represent the interests of each member of the class. These paragraphs merely plead legal conclusions and plainly that is insufficient to satisfy the rule requirements. See Frankel v. City of Miami Beach, 340 So.2d 463, 469 (Fla.1976). The third amended complaint, therefore, fails to plead a class action under the above-stated rule requirements and was properly dismissed below.

As previously noted, the plaintiffs made no effort to move to amend the third amended complaint so as to add additional factual allegations which might satisfy the above rule requirements. They stood on the complaint as pled and have taken an appeal from the dismissal of that complaint. Contrary to the plaintiffs’ contention on appeal, a trial court does not err in failing to award a plaintiff an opportunity to amend his complaint when, as here, the record does not reveal a request for such an amendment. Nesbitt v. City of Miami, 314 So.2d 806 (Fla. 3d DCA 1975); Pletts v. Pletts, 258 So.2d 297 (Fla.3d DCA 1972).

The failure of the plaintiffs to plead a proper class action as required by Fla.R. Civ.P. 1.220(c)(2)(C), (D)(iii) is particularly fatal in this case. There exists, we think, serious doubt as to whether these individual plaintiffs, as Dade County employees, have claims which are typical of every member of the class as alleged and could adequately protect the interests of each member of this class. According to the complaint, at least some of the alleged overcharged premiums [$350,000 since December 1978] on the group life and accidental death insurance plan “were used to subsidize the group health insurance premiums.” [para. 29(g)]. Some of the members of the class, as alleged, might very well have also participated in the aforesaid health insurance plan and consequently may have been benefited by the transfer of premiums to the group health insurance program. A serious question is therefore raised as to whether there exists a conflict of interests among members of the alleged class. It was therefore imperative that the plaintiffs clearly plead facts and circumstances showing that their claims were typical of each member of the class and that they could adequately represent each member of the class as required by Fla.R.Civ.P. 1.220(c)(2)(C), (D)(iii).

For the above-stated reasons, we affirm the dismissal of the class action claims in this case. We also dismiss the appeal taken from the order dismissing the civil theft claim as to the Dade County PBA.

Affirmed in part; dismissed in part.

DANIEL S. PEARSON, Judge,

concurring in part; dissenting in part.

I concur in that part of the majority opinion which determines that we have no jurisdiction over the appeal from the dismissal of Count V, the civil theft claim. I dissent from the remainder of the opinion which affirms the dismissal of the class action claims contained in the third amended complaint.

According to the majority, the deficiencies of the class action claims lie only in the plaintiffs’ failure to allege “the particular facts and circumstances that show the claim ... advanced by the representative party is typical of the claim ... of each member of the class” and “the particular facts and circumstances that show the representative party will fairly and adequately protect and represent the interests of each member of the class.” To demonstrate these deficiencies, the majority points to paragraphs 13 and 14 of the third amended complaint, which allege in concededly con-clusory fashion that the claims of the plaintiffs are typical of the claims of the class and that the plaintiffs can fairly and adequately protect and represent the class. These conclusions, however, are not plucked out of thin air. Instead, they are based on facts and circumstances alleged elsewhere in the complaint which, in my view, amply support the conclusions and satisfy the requirements of Florida Rule of Civil Procedure 1.220(c)(2)(C) and (D)(iii).

The complaint alleges that the class representatives “are full-time salaried county employees who presently participate and/or previously participated in the insurance program provided by [the] COUNTY”; and that the named class representatives are members of a class consisting of “those persons who were and are full-time salaried employees of the COUNTY and their dependents who participated in the life and accidental death insurance plan provided by Defendant COUNTY from at least 1965 through the present” and “contributed to the premium costs of the insurance through payroll deductions.” The complaint goes on to allege that for the reasons set out in the complaint, that is, the allegations specifying the typicality of the plaintiffs’ claims and detailing the common questions of law and fact, for which claims the plaintiffs retained counsel and filed suit on behalf of all members of the class, the plaintiffs will fairly and adequately protect and represent the interests of the class members.

The majority’s speculation that some members of the defined class “might very well have also participated in the ... health insurance plan and consequently may have benefited by the transfer of premiums to the group health insurance program” is hardly a basis for affirming a pre-discovery dismissal of a class action. But even were it to later appear that the class as presently defined includes members who were not damaged by the defendants’ alleged actions, the appropriate remedy would not be dismissal, but instead a narrowing of the class being represented by the plaintiffs so as to exclude the undamaged members. See Aetna Life Insurance Company v. DeAngelis, 317 So.2d 106 (Fla. 3d DCA 1975).

ON REHEARING

PER CURIAM.

The plaintiffs have filed a motion for rehearing in which they correctly point out that they orally requested and were denied an opportunity below to file an amended complaint at the hearing wherein the third amended complaint was dismissed, and that we were in error in stating otherwise in our original opinion. The plaintiffs, however, in no way indicated to the trial court, either orally or in writing, how they wished to amend their class action allegations, having already failed in four separate complaints to plead a proper class action under Florida law. Moreover, it is extremely dubious, for reasons already developed, that such a proper class action could ever have been pled in this cause, given the apparent conflict of interests among members of the alleged class. Under these circumstances, then, we think the trial court did not abuse its discretion in denying the plaintiffs a fifth opportunity to amend their complaint herein. Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983); Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981); Smith v. Barnett Bank of Murray Hill, 350 So.2d 358, 359 (Fla. 1st DCA 1977); United States v. Florida, 179 So.2d 890 (Fla. 3d DCA 1965).

We have reviewed the other grounds urged by the plaintiffs for a rehearing in this cause and find them to be without merit. The plaintiffs’ motion for rehearing is accordingly

Denied.

DANIEL S. PEARSON, J., dissents.


text:
    Paul LOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-566.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, and Thomas F. Ball, III (Member, South Carolina Bar), West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant’s conviction under Section 817.563, Florida Statutes (1981), is reversed on the authority of State v. Bussey, 444 So.2d 63 (Fla. 4th DCA, 1984), where the identical issue was recently decided. Also see Jollie v. State, 405 So.2d 418 (Fla.1981).

REVERSED AND REMANDED WITH DIRECTIONS TO DISCHARGE DEFENDANT.

LETTS, GLICKSTEIN and WALDEN, JJ., concur.


author: MILLS, Judge. WENTWORTH, Judge, MILLS, Judge.

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. Paige SOLDOVERE, Appellee.
    No. AT-429.
    District Court of Appeal of Florida, First District.
    April 3, 1984.
    Rehearing Denied May 22, 1984.
    Jim Smith, Atty. Gen., Joseph A. Linne-han, Asst. Atty. Gen., for appellant.
    William L. Contole of Ingalsbe, McMa-nus, Wiitala & Contole, North Palm Beach, for appellee.
   MILLS, Judge.

Through this interlocutory appeal, the Department of Transportation (DOT) challenges a change of venue. We affirm.

On 18 August 1981, while driving on State Road 811 in. Palm Beach County, Soldovere collided with a truck owned by Southern Paper Company. In May 1982, Soldovere brought suit in Palm Beach County against Southern Paper Company and DOT. The complaint alleged, among other things, that DOT was negligent in failing to maintain the road in a safe condition and in failing to warn the public of the allegedly dangerous condition.

On 24 June 1982, DOT filed a Motion to Dismiss and/or Change Venue asserting DOT’S common law privilege to be sued only in the county where it maintains its principal headquarters. See, Florida Public Service Commission v. Triple “A Enterprises, 387 So.2d 940 (Fla.1980).

In 1981, however, the legislature enacted Section 768.28(1), Florida Statutes (1981), which abrogated this privilege. DOT nevertheless contended Section 768.28(1) was not applicable because Soldovere’s cause of action accrued before the effective date of the statute (1 October 1981). Sold-overe contested the motion, but did not raise the issue subsequently raised and decided in Keith v. Dykes, 430 So.2d 502 (Fla. 1st DCA 1983); namely, that Section 768.-28(1) did apply because a cause of action does not accrue until the Department of Insurance or the affected agency denies or is deemed to have denied the claim in writing pursuant to Section 768.28(6), Florida Statutes (1981).

The trial court in Palm Beach County refused to dismiss the suit, but ruled as to DOT that venue was proper in Leon County where DOT maintains its principal headquarters. The trial court gave Soldovere the option of having the entire case transferred to Leon County or of having only the action against DOT transferred. She elected to have the whole case transferred and did not take an interlocutory appeal from the trial court’s order transferring the case to Leon County.

After the case was moved to Leon County, this Court decided Keith v. Dykes. On authority of Keith, Soldovere moved to change venue back to Palm Beach County. The trial court in Leon County, while questioning the wisdom of but not the obligation to follow Keith, transferred the case back to Palm Beach County. This interlocutory appeal by DOT followed.

DOT first contends Soldovere waived the right to object to venue after the case was in Leon County. Citing Cassidy v. Ice Queen International, Inc., 390 So.2d 465 (Fla. 3d DCA 1980), DOT urges that Sold-overe’s failure to assert the Keith accrual theory when the case was in Palm Beach County resulted in a waiver of the right to assert that theory once Keith was decided and the case was in Leon County. Cassidy held only that a defendant who failed to raise any venue objection in his motion to dismiss waived the right to object to venue thereafter. Here, Soldovere did object to DOT’s motion to change venue. The mere fact that she failed to argue a position before there was authority for the position did not preclude her from making the argument once supporting authority became available.

DOT also contends Soldovere’s failure to take an interlocutory appeal from the order transferring the case to Leon County resulted in that venue decision becoming res judicata. Yet, if that were so, all arguments which could have been raised on interlocutory appeal but were not would be waived. This is not the case. Florida Rule of Appellate Procedure 9.130(g).

Assuming Soldovere did not waive the right to challenge venue after transfer to Leon County, DOT apparently concedes the trial court in Leon County was bound to follow Keith and transfer the case back to Palm Beach County. Consequently, DOT urges this Court to denounce the rationale of Keith and recede from that decision. Even were we so inclined, we would not recede from Keith because Chapter 83-257, Laws of Florida, now codified as Section 768.28(6)(b), Florida Statutes (1983), has negated the holding of Keith as to all accidents occurring after 1 October 1983, the effective date of Chapter 83-257. Departure from the rule of stare decisis would not alleviate continuing injustice and, in fact, would be little more than redundant in view of Chapter 83-257.

Having decided Soldovere had the right to object to venue after the case was transferred to Leon County and having decided the trial court for Leon County was bound to follow Keith, the remaining issue is whether the1 case could properly be transferred back to Palm Beach County. Clearly, Soldovere had the right to bring the action in Palm Beach County because under Keith her cause of action did not accrue until after the effective date of Section 768.28(1), Florida Statutes (1981). Were it not for Section 47.131, Florida Statutes (1981), there would be no question that the second transfer was proper.

Section 47.131 provides:

Change of venue; second change, when permitted.— When it appears to the court to which an action has been transferred by a change of venue that any of the grounds for change of venue exist in the county to which the action has been transferred, the court may order a second change of venue, but it shall not be made to the county from which it was originally transferred.

The parties, however, have chosen not to argue the applicability of Section 47.131. As recently pointed out by our sister court in Polyglycoat Corporation v. Hirsch Distributors, Inc., 442 So.2d 958 (Fla. 4th DCA 1984): “When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed unworthy.” We therefore affirm without considering the applicability of Section 47.131.

AFFIRMED.

McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I would conclude for reversal because of our obligation to judicially notice the Florida statute in question, which arguably may involve interests in addition to those of a party in venue selection. Although appellant has not cited the statute, it has clearly preserved and pursued the position it supports, i.e., that a change of venue back to Palm Beach County should not be granted. I would therefore reverse the order appealed and remand for application of the statute.

ON MOTION FOR REHEARING DENIED

MILLS, Judge.

Department of Transportation (DOT) moves for rehearing asserting, among other things, that Section 768.-28(6)(b), Florida Statutes (1983), applies retroactively. Although DOT did not make this argument in its brief, and it is therefore not properly raised on rehearing, we will explain why Section 768.28(6)(b) is not retroactive.

The Legislature did not expressly provide for retroactivity. Nor do we find any evidence of legislative intent to have Section 768.28(6)(b) operate retroactively. Further, Section 768.28(6)(b) changes the definition of “accrue” as interpreted by Keith v. Dykes, 430 So.2d 502 (Fla. 1st DCA 1983). As a result, the periods of limitation provided in Section 768.28, Florida Statutes (1983), may begin running sooner. In the absence of manifest legislative intent to make changes in periods of limitation retroactive, the change is presumed prospective only. Foley v. Morris, 339 So.2d 215 (Fla.1976).

The other points raised in the Motion for Rehearing are also without merit.

The Motion for Rehearing is denied.

McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concurs.

WENTWORTH, J., dissents without opinion.