text:
    The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, State of Florida, and Dr. Elton J. Gissendanner, Executive Director of the Department of Natural Resources, State of Florida, Petitioners, v. Lee A. RAY and Nancy J. Ray, and the Honorable Charles E. Smith, as Judge of the Circuit Court, 19th Judicial Circuit, in and for Martin County, Florida, Respondents.
    No. 83-950.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.

      Kevin X. Crowley, Tallahassee, for petitioners.
    Fred Goldstein, Hollywood, for respondents — Lee A. Ray and Nancy J. Ray.
   HERSEY, Judge.

The Board of Trustees of the Internal Improvement Trust Fund (TIIF) filed a petition for writ of common law certiorari or prohibition to prevent Lee A. Ray and Nancy J. Ray from going forward in the trial court or to prohibit the trial court from continuing to entertain jurisdiction in this matter. The procedural history of the conflict involved here is somewhat complicated while the factual background is relatively simple. The primary legal issue involved is whether the administrative process culminating in prior appeals to this court effectively bars the Rays from subsequently litigating in the circuit court (1) the propriety of the administrative procedure followed by the agencies; (2) the Rays’ claim to a possessory interest; and (3) the issue of ownership of the submerged land involved here.

We take judicial notice of our own records concerning this matter in our cases numbered 82-546, 82-911 and 82-1777.

The Rays acquired a parcel of land, riparian to Manatee Pocket, which had been improved as a mobile home park and marina. During the course of seeking permits for reconstructing the marina and its piers the Rays were required to obtain a lease of submerged land. They negotiated for and obtained from TIIF a five year Submerged Sovereignty Land Lease in 1977. That lease contained a vaguely worded option to renew which the Rays sought to exercise in 1981. Ultimately a renewal lease subject to certain conditions precedent was offered. Those conditions were not met and the offer expired.

Against that factual background various procedural aspects took shape. At the outset the Rays and the TIIF proceeded administratively to the point where TIIF declined to renew the lease. The Rays appealed directly to this court in Case No. 82-546 by a petition for review of agency action. Advised that notice of appeal was required to be filed with the agency they did so and that originated our Case No. 82-911, which was consolidated with the first appeal. TIIF next filed suit in circuit court to “shut down” the marina. That litigation was voluntarily dismissed. The Rays next filed a complaint seeking injunc-tive and other relief. A temporary injunction was granted and TIIF appealed in our Case No. 82-1777.

The appeals numbered 82-546 and 82-911 were subjected to involuntary dismissals by this court. In Case No. 82-1777 we entered an order reversing the “trial court’s order of August 11, 1982, which enjoined various state agencies from removing private property from state-owned submerged lands.”

TIIF then moved to dismiss a subsequent complaint filed by the Rays in the circuit court, case number 82-859. The motion was based on lack of subject matter jurisdiction and failure to state a cause of action. Denial of that motion (which was a partial denial) is the basis for the present petition for certiorari/prohibition. We have additionally been advised that the Rays have instituted a further suit in the circuit court which we are asked to dispose of instanter. We have not been furnished a copy of the newest complaint.

A threshold question is whether the process of seeking a renewal of the lease of submerged lands comes within the purview of Florida Statutes Chapter 120, the Administrative Procedures Act. We are satisfied that renewal could only be accomplished pursuant to statute and by a rule of the Governor and Cabinet sitting as the TIIF, thus coming within the penumbra of the Act. In addition neither party has strenuously argued to the contrary.

The thrust of the Rays’ contentions is that the issues of riparian rights and ownership could not properly be and therefore were not adjudicated in the administrative proceeding. This issue will be addressed later in this opinion. The position of TIIF is that the Rays, having exhausted the administrative process, are precluded from relitigating the same issues in circuit court. Given that oversimplification of the question there can be little disagreement as to its answer. The difficulty comes in defining “same issues” and simultaneously sifting out issues which may appropriately be made the subject of litigation notwithstanding the administrative determination.

In their response to the petition the Rays suggest several alternative bases for denial of the petition. First it is argued that because they were not parties to the administrative proceedings involving renewal of the lease, and because there was no “final agency action,” those proceedings were fatally defective and thus constitute no bar to the present action. We deem this peculiar in view of several matters of record indicating participation in the administrative process including a listing on the agenda of the TIIF meeting of July 21; 1981. The suggestion, at this late date, that there was no “final agency action” is, at the very least, an inconsistent position in view of the previous appeal filed here by the Rays for “Review of Final Agency Action.” The administrative process was exhausted by the Rays including the ultimate step of review by the district court of appeal. Absent constitutional issues as defined in Key Haven Associated Enter., Inc. v. Bd. of Trustees of Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982), the agency action is no longer open to scrutiny. No such issues are involved in this proceeding.

The second basis urged by the Rays for denial of the petition is that they seek a declaration of rights and that the circuit court is the appropriate forum. With this proposition there can be no quarrel, provided that no such declaration may be sought regarding those issues already finally determined in the agency action, except under certain extreme circumstances such as those described in School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA. 1977), cert. denied, 358 So.2d 132 (Fla.1978). As to those there can no longer be any legitimate “doubt.”

Finally we come to the Rays’ assertion that neither the existence and extent of riparian rights nor the issue of ownership of the submerged lands have been or could be determined by agency action. While we are quick to agree that, in the context of this case, the issues of riparian rights and ownership are not foreclosed from consideration by virtue of the administrative proceedings, it is not so clear that these issues are properly raised by the complaint or that they may be sustained ultimately. The Rays applied for the lease and for renewal of the lease. This fact, coupled with tlie act of pursuing the administrative route to termination, is clearly, and perhaps conclusively, inconsistent with any claim of ownership or claim to riparian rights. (On the other hand we recognize that the Rays acted under a certain amount of compulsion since they were required by the Department of Natural Resources to obtain a lease of the submerged lands as a prerequisite to the issuance of a permit to renovate the marina.) Additionally, however, the lease itself, signed on June 20, 1977, by Nancy J. Ray and Lee A. Ray provides:

2. The Lessee, in accepting this lease, does hereby agree that no claim of title or interest to said lands hereinbefore described shall be made by reason of the occupancy or use thereof; that all title and interest to said land hereinbefore described is vested in said Board.

Having pointed out these preliminary difficulties we turn to an examination of the complaint filed in case number 82-859. Count I consists of a statement of facts, including a summary of the entire administrative proceeding, followed by suggestions that (1) the Rays own certain riparian rights; (2) it is uncertain whether the state owns the submerged lands; (3) the TIIF has no authority to lease lands for purposes not set out in specified statutes; and (4) certain contract principles applicable to the facts should afford relief. Count II requests injunctive relief on the basis of the Rays’ claim to certain riparian rights. Counts III and IV represent attempts to invoke constitutional principles as a basis for an award of damages. Count V alleges slander of title.

In its present posture this complaint (and the complaint in the new circuit court case if, as we surmise, it similarly mixes oranges and apples) is fatally defective for attempting to relitigate issues foreclosed by the administrative proceeding. This is clearly true of any attempt to revive the lost lease or to attack the propriety of the administrative process. Those issues were put to rest upon our earlier dismissal of the Rays’ appeal. That being so, may relief be afforded petitioners here by way of certiorari or prohibition or are respondents procedurally entitled to even more bites at the apple? We conclude that neither certiorari nor prohibition nor any other remedy at this level is presently available. Petitioners’ remedy to prevent relitigation of the agency action is by way of raising the affirmative defense of res judicata. Its availability, however, is not jurisdictional and prohibition consequently does not lie. Petitioners’ remedy for defending on issues totally without merit or substance is a motion for attorney’s fees under Section 57.-105, Florida Statutes (1981). In addition, a counterclaim for rent or the fair rental value of the submerged lands for the period the taxpayers of Florida have been ousted of possession by virtue of the existence of the piers would appear to be a potential remedy.

Concluding as we have that neither cer-tiorari nor prohibition are available under the circumstances of this case we deny the petition.

DELL and WALDEN, JJ., concur.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    Michael D. COPPOL, Administrator, Anclote Manor Hospital, Appellant, v. Elias MUHTAR, Appellee.
    No. 82-1486.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1984.
    J. Brent Walker, Gwynne A. Young, and Suzanne R. Armstrong of Carlton, Fields, Ward, Emmanual, Smith & Cutler, P.A., Tampa, for appellant.
    No appearance for appellee.
   LEHAN, Judge.

Appellant, the Administrator of Anclote Manor Hospital, appeals a hearing officer’s order dismissing appellant’s request for continued involuntary placement of appel-lee, a patient at the hospital.

Appellee was involuntarily committed by order of the Circuit Court of the Eleventh Judicial Circuit in 1978. Since that time appellee has remained a patient at the hospital. Pursuant to section 394.467(4)(d), Florida Statutes (1981), appellant has periodically obtained continuances of appellee’s involuntary placement. The last of those continuances prior to the foregoing order was in February 1982 when a hearing officer entered an order finding that appellee met the criteria for continued involuntary placement.

The order which is the subject of this appeal was entered following appellant’s April 1982 request for continued involuntary placement of appellee. At the June 1982 hearing on that request, after testimony concerning appellee’s condition supportive of an order for appellee's continued involuntary placement, the hearing officer dismissed the request on grounds that (1) the initial commitment order apparently was not in the hearing officer’s file and two of the prior orders for continued involuntary placement refer to different purported initial commitment orders, and (2) in June 1979 a request for continued involuntary placement had been filed one day after the expiration of the time period required under section 394.457(9). We reverse.

The issue presented to the hearing officer by appellant’s request for continued involuntary placement was whether or not “the patient continues to meet the criteria for involuntary placement_” § 394.-467(4)(f), Fla.Stat. (1981). See Hill v. State, 358 So.2d 190, 203 (Fla. 1st DCA 1978).

As to the first ground of the hearing officer’s dismissal, the lack of an initial commitment order in the hearing officer’s file, appellee’s detention appears to have been thereby considered to be unlawful. There was no explanation for the apparent absence in the hearing officer’s file of the initial commitment order or for the conflicting references in prior orders of continued involuntary placement to initial orders of commitment. However, the initial order appears to be in the record before us, the correct procedure for continued involuntary placement was followed by appellant, and any questions as to the initial legality of appellant’s detention may be brought by habeas corpus in the circuit court. See § 394.459(10)(b), Fla.Stat. (1981). It is appropriate, however, that the Administrator undertake to resolve the apparent administrative conflicts in the record referred to in the order now on appeal and that the resolution of the conflicts be reflected in appel-lee’s file.

As to the second of the hearing officer’s grounds, the late filing of a 1979 request for continued involuntary placement of appellee, that circumstance did not deprive the hearing officer in June 1982 of jurisdiction. Whether or not such a prior late filing could deprive a hearing officer of jurisdiction, it appears to have been waived by appellee’s subsequent various appearances at continuation of involuntary placement hearings, with counsel, without raising the issue.

We therefore remand for a determination by the hearing officer of the foregoing issue as to continued involuntary placement.

REVERSED AND REMANDED.

BOARDMAN, A.C.J., and GRIMES, J., concur.


author: NIMMONS, Judge.

text:
    Gary P. SIMS, Appellant, v. The BOARD OF TRUSTEES OF NORTH FLORIDA JUNIOR COLLEGE, Appellee.
    No. AT-112.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.
    Rehearing Denied March 1, 1984.

      Joseph C. Jacobs and John C. Pelham of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Ernest M. Page, Jr., Madison, for appel-lee.
   NIMMONS, Judge.

Sims appeals from the appellee’s denial of a Section 120.57(1) formal hearing following the appellee’s vote against renewing his contract as President of the North Florida Junior College. We reverse and remand.

In August, 1978, Dr. Sims was employed as president of the college by the appellee, Board of Trustees of the North Florida Junior College (Board) and continued in that position for the next five years.

At a meeting on February 8, 1983, the Board adopted a motion that Sim’s contract not be extended at the end of the current term. However, at the next meeting on March 8, 1983, the Board adopted a motion that “if the Chairman had not received a letter of resignation from the President by March 23, 1983, the Chairman would write the President a letter stating that the President’s contract would not be renewed.”

Sims did not submit a resignation. Instead, on March 21, 1983, he filed a petition requesting a Section 120.57 formal hearing. The petition, among other things, alleged that the termination of his employment by the Board affected his substantial interests, that his employment as president of the College was “subject to written and oral agreements which have been entered into or amended within the past year and which provide for notice of non-renewal and specifications of good and sufficient cause for non-renewal; the Board has neither provided notice nor specified good and sufficient cause.”

At a meeting on April 4, 1983, the Board voted to deny the petition for hearing. On April 11, 1983, the Board, pursuant to a letter from the Chairman to Sims, gave written notice to Sims of the Board’s action in denying his petition for hearing. The letter purported to state the Board’s reasons for denying the petition for hearing. The articulated reasons were that “the petition appeared untimely” and that “the official records of the College negated the material assertions of your petition.”

Fla.Admin.Code Rule 28-5.111 provides that, unless otherwise provided by law or agency rule, “persons requesting a hearing on an agency decision which does or may determine their substantial interest shall file a petition with the agency within 21 days of receipt of written notice of the decision....,” and that any person who receives such notice and who fails to request a hearing within 21 days shall have waived his right to a hearing. Fla.Admin. Code Rule 28-5.201(3) provides that the petition for hearing may be denied “if the petitioner does not state adequately a material factual allegation, such as a substantial interest in the agency determination, or, if the petition is untimely.” The rule further provides:

(b) The agency shall promptly give written notice to all parties of the action taken on the petition, and shall state with particularity its reasons therefor. (Emphasis supplied)

First we address the question of whether Sims’ petition for hearing was timely filed. We find that it was. If final agency action is deemed to be the action which was taken by the Board on March 8, 1983, obviously Sims’ petition for hearing filed March 21 was timely under Rule 28-5.111. But the Board contends that the action taken at the February 8, 1983, meeting when the Board first adopted a motion not to renew Sims’ contract was final agency action for purposes of commencement of the 21-day period within which Sims was required to file his petition for hearing. Even were we to agree with that position, it would be unavailing to the Board for the reason that the Board failed to furnish Sims with the requisite written notice of the February 8 action. Under Rule 28-5.-111, the 21-day period does not commence until receipt of such notice.

The Board, however, argues that Sims was present at the meeting and had actual notice of the action. This, too, is unavailing since it has been consistently held that actual notice of agency action, which fails to inform the affected party of his right to request a hearing and the time limits for making the request, is inadequate to trigger the commencement of the administrative process. Wahlquist v. School Board of Liberty County, 423 So.2d 471 (Fla. 1st DCA 1983); Sterman v. Florida State University, 414 So.2d 1102 (Fla. 1st DCA 1982). We, therefore, hold that Sims’ petition for hearing was timely.

As noted, the only other reason given by the Board in its April 11 letter for denying the requested hearing was that “the official records of the College negated the material assertions” of the petition. This is patently insufficient to comply with the mandate of Rule 28-5.201(3)(b) that the agency’s written notice denying the hearing request “shall state with particularity its reasons therefor.” We decline to speculate on the records to which the Board was referring in its letter or, for that matter, on what assertions of the petition the Board regarded as “material.”

Accordingly, the Board’s denial of the appellant’s petition for hearing is reversed and the cause is remanded to the Board for reconsideration of the petition and, should the petition be again denied, for compliance with Rule 28-5.201(3)(b) requiring a statement with particularity of the reasons for denial of the requested hearing.

REVERSED and REMANDED.

SMITH and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    INDUSTRIAL STEEL and CNA Insurance Group, Appellants, v. Wayne ROBINSON, Appellee.
    No. AT-286.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.
    Rehearing Denied March 1, 1984.
    William G. Berzak, of Akerman, Senter-fitt & Eidson, Orlando, and Bernard J. Zimmerman, Orlando, for appellants.
    Beth A. Ferguson, of Meyers & Mooney, P.A., Orlando, for appellee.
   PER CURIAM.

In this workers’ compensation case the employer/carrier seeks review of an order of the deputy commissioner which does not dispose of all matured issues in controversy between the parties. In the decretal portion of the order, the deputy commissioner ordered the employer/carrier to, inter alia, “reimburse the claimant’s wife for attendant care service retroactive from the date it was requested, as recommended by Dr. Rosenberg, the amount of which is to be determined by subsequent testimony at a later hearing.” This order, in essence, establishes entitlement to benefits but reserves jurisdiction to determine the amount of benefits due. Because this order disposes of less than all matters which are ripe for determination it is interlocutory and not reviewable by appeal. Southern Wine & Spirits, Inc. v. Hernandez, 442 So.2d 1061 (Fla. 1st DCA 1983); Sheffield Steel Products v. Tripp, 433 So.2d 46 (Fla. 1st DCA 1983); Davis v. Hunt, 432 So.2d 650 (Fla. 1st DCA 1983); La Croix Construction Co. v. Bush, 431 So.2d 712 (Fla. 1st DCA 1983); Town of Palm Beach v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1982); Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982); Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982); rev. denied, 429 So.2d 6 (Fla.1983); State Department of Health and Rehabilitative Services v. Waters, 416 So.2d 903 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982); Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982).

Accordingly, this appeal is dismissed sua sponte. Such dismissal shall not preclude subsequent review upon appeal from a final order.

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: HUBBART, Judge.

text:
    Celisseule NICOLAS, Appellant, v. Robert NICOLAS, Appellee.
    No. 82-1859.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.

      George T. Ramani and Michael A. Van-detty, Miami, for appellant.
    No appearance for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   HUBBART, Judge.

The central question presented for review is whether an alien who (1) has resided in Florida for over six months prior to filing a petition for marriage dissolution, and (2) intends to remain indefinitely in Florida but has not been granted a permanent residency status by the United States Immigration and Naturalization Service, satisfies the six-month residency requirement established by Section 61.021, Florida Statutes (1981), for bringing a marriage dissolution action in the Florida courts. We hold that such an alien satisfies the above statutory residency requirement for bringing a marriage dissolution action in Florida and reverse the order under review.

The facts of this case are as follows. On February 3, 1982, the petitioner/wife Celis-seule Nicolas filed a sworn petition for marriage dissolution against the respondent/husband Robert Nicolas in the Circuit Court for the Eleventh Judicial Circuit of Florida. The petition alleged that the wife was a resident of the state of Florida for more than six months prior to the filing of this petition, that the parties had been married to each other on July 10, 1971, at Port Au Prince, Haiti, that two minor children had been born of the marriage, and that the parties’ marriage was irretrievably broken. The petition prayed only that the court dissolve the marriage between the parties. The husband was properly served by publication at his last known address: Rue St. Lot No. 22, Port Au Prince, Haiti. He filed no answer and has made no appearance in the case.

On August 16, 1982, the cause came on for a final hearing before the trial court, at which time the court received evidence. On August 23, 1982, the trial court entered an order denying the petition for marriage dissolution. The order reads:

“THIS CAUSE came before me upon the Petition of CELISSEULE NICOLAS for Dissolution of Marriage and the Court, at a hearing on August 16, 1982 made the following findings:
1. That present were the Petitioner, petitioner’s counsel and the residency witness and an interpreter.
2. That Petitioner was not at the present time accorded permanent resident status by the United States Immigration and Naturalization Service.
3. That Petitioner has resided in the State of Florida over six months prior to the filing of the Petition and intends to remain in the State of Florida.
4. That based upon the fact that Petitioner was not at this time a permanent resident of the United States, her Petition for Dissolution of Marriage is hereby Denied.”

The wife has filed a timely appeal from this final order.

Implicit in the order denying the wife’s petition for marriage dissolution is the trial court’s ruling that the wife failed to satisfy the six-month residency requirement established by Section 61.021, Florida Statutes (1981), for filing a marriage dissolution action in the Florida courts. This statute provides:

“To obtain a dissolution of marriage the party filing the proceeding must reside six months in the state before filing the petition, but this does not affect any suit filed before October 1, 1957.” § 61.021, Fla.Stat. (1981).

The law is well-settled that the term “reside” as used in this statute and its predecessors refers to “legal residence” which “is synonymous with ‘domicile’ Wade v. Wade, 93 Fla. 1004, 1007, 113 So. 374, 375 (1927); accord Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694 (1929). “Domicile” has long been defined in this state to mean “ ‘a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited period of time.’ ” Smith v. Croom, 7 Fla. 81, 151, reh. denied, 7 Fla. 180 (1857), quoting J. Phillimore, Law of Domicil 18 (1847). A legal resident or domiciliary, then, for purposes of bringing a marriage dissolution action in Florida under the above statute, is “one who lives at a place (in Florida) with no present intention of removing therefrom.” Fowler v. Fowler, 156 Fla. 316, 319, 22 So.2d 817, 818 (1945); see also Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870 (1941); accord Gillman v. Gillman, 413 So.2d 412, 413 (Fla. 4th DCA 1982); Curran v. Curran, 362 So.2d 1042, 1043 (Fla. 4th DCA 1978); Bowers v. Bowers, 287 So.2d 722, 724 (Fla. 1st DCA 1974), cert. discharged, 326 So.2d 172 (Fla.1976).

A person may, however, be a legal resident of Florida within the meaning of the above statute without being an American citizen, as it is legal residence, not citizenship, which is made a statutory prerequisite for bringing a marriage dissolution action in this state. The Florida Supreme Court has so held in Pawley v. Pawley, 46 So.2d 464, 470-71 (Fla.), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950), wherein certain contrary pronouncements in Ogden v. Ogden, 159 Fla. 604, 33 So.2d 870 (1948), were disapproved. The Court in Pawley stated:

“It is obvious that the word resided could not properly be construed to encompass citizenship in a legal sense because one may come to this State, establish a bona fide residence of ninety days, thereafter institute a divorce action and have it heard and conclusively adjudicated on its merits before he could under the law become a citizen and enjoy all the privileges of. citizenship. On the other hand, a person might reside in Florida many years and never become a citizen of this State or renounce his citizenship in a foreign jurisdiction. Indeed, failure to renounce pre-existing citizenship is nothing more than a circumstance to be considered in connection with the question of the bona fides of the plaintiff’s residence which is the real test under our statutory law.... Citizenship is hot a statutory jurisdictional prerequisite for divorce and neither of the words ‘citizen’ or ‘citizenship’ can be read into our statute.” Pawley v. Pawley, supra, at 471

In accord with this established law, we have held that an alien, a Cuban political refugee who had been granted temporary residence status under our immigration laws, could bring a marriage dissolution action in the Florida courts, as he had lived in Florida for six months and otherwise intended to remain here on an indefinite basis. Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964). Also a Canadian citizen, who otherwise satisfied our statutory residency requirements, was permitted by this court to maintain a marriage dissolution action in the Florida courts. Markofsky v. Markofsky, 384 So.2d 38 (Fla. 3d DCA 1980). Plainly, then, an alien’s foreign citizenship or non-permanent immigration status in this country does not constitute in itself an absolute residency bar to the maintenance of a marriage dissolution action by the alien in the Florida courts, although these factors are certainly eviden-tiary on the issue of domiciliary intent under Section 61.021, Florida Statutes (1981). This conclusion is in accord with the overwhelming weight of authority on this subject throughout the country. Williams v. Williams, 328 F.Supp. 1380 (D.V.I.1971); Torlonia v. Torlonia, 108 Conn. 292, 142 A. 843 (1928); Rzeszotarski v. Rzeszotarski, 296 A.2d 431 (D.C.1972); Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972); Gosschalk v. Gosschalk, 48 N.J.Super. 566, 138 A.2d 774 (Super.Ct.App.Div.), aff'd, 28 N.J. 73, 145 A.2d 327 (1958); Ja-coubovitch v. Jacoubovitch, 279 A.D. 1027, 112 N.Y.S.2d 1 (App.Div.), appeal denied, 279 A.D. 1078, 113 N.Y.S.2d 446 (N.Y. 1952); Cocron v. Cocron, 84 Misc.2d 335, 375 N.Y.S.2d 797 (Sup.Ct.1975); Marriage of Pirouzkar, 51 Or.App. 519, 626 P.2d 380 (Ct.App.1981); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982); E. Scoles and P. Hay, Conflicts of Law § 4.30 (1982).

In the instant case, the trial court specifically found in the order under review that the wife herein “has resided in the state of Florida over six months prior to the filing of the [p]etition and intends to remain in the state of Florida.” Given this finding, it is plain that the wife satisfied the six-month residency requirement under Section 61.021, Florida Statutes (1981), for bringing a marriage dissolution action in Florida. The fact that the wife is also an alien and a foreign national, who has not been accorded a permanent residence status under our immigration laws, cannot change this result. The trial court was therefore in error when it denied the marriage dissolution petition herein for failure to establish the requisite statutory residence requirement.

The order under review is reversed and the cause is remanded to the trial court with directions to reinstate the marriage dissolution petition herein and entertain the cause on its merits.

Reversed and remanded.


text:
    Ramiro GARCIA, Appellant, v. The STATE of Florida, Appellee:
    No. 83-439.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Aaron v. State, 400 So.2d 1033 (Fla. 3d DCA), rev. denied, 408 So.2d 1095 (Fla.1981); Cioeta v. State, 367 So.2d 718 (Fla. 3d DCA 1979).


text:
    Patricia J. PRUETT, Appellant, v. Gloria BROWNING and Richard Browning, her husband, Appellees.
    No. 83-733.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Shutts & Bowen and Phillip G. New-comm and Karen H. Curtis, Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
   PER CURIAM.

The final judgment under review setting aside a fraudulent conveyance is affirmed as there was substantial, competent evidence adduced at trial to establish that the said conveyance was entirely fraudulent as to the plaintiff tort creditor. No consideration or agreement for consideration was given at the time of the conveyance and the subsequent bizarre financial transactions between the parties make no reference to the prior, already accomplished conveyance. Abundant evidence was also adduced to show that the latter transactions were a sham and that crucial portions of the defendants’ testimony to the contrary were not worthy of belief. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st DCA 1974); Gyorok v. Davis, 183 So.2d 701 (Fla. 3d DCA 1966).

Affirmed.


text:
    Charles C. CHIDIAC, Appellant, v. Mahmoud Mohammed FUSTOK, Appellee.
    No. 83-1075.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Warren Hamann and Roy D. Wasson, Miami, Hansell & Post, Atlanta, Ga., for appellant.
    Frates, Bienstock & Sheehe, Terry Bien-stock and Lauri Waldman, Miami, Curtis, Mallett-Prevost, Colt & Mosle, Herbert Stoller and Eliot Lauer, New York City, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Because the defendant and the subject matter of this litigation are in Florida, section 48.193, Florida Statutes (1981), is not implicated and the order appealed is, therefore, reversed and remanded for further proceedings.

Reversed and remanded for further proceedings.


text:
    Paul SATTERFIELD, Appellant, v. Linda Gay Pettit SATTERFIELD, Appellee.
    Nos. 83-1138, 83-2487.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Ferdie & Gouz and Jeffrey Solomon, Hollywood, for appellant.
    Witlin & Witlin, Ronald Klein and Ira Witlin, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

In these consolidated appeals we find no abuse of discretion by the trial court and, therefore, affirm. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). The appeal in case number 83-2487 is from a temporary post-dissolution modification entered during the pendency of the plenary appeal in case number 83-1138, as authorized by Florida Rule of Appellate Procedure 9.600(c), see Campbell v. Campbell, 436 So.2d 374 (Fla. 5th DCA 1983).

Affirmed.


text:
    EMPIRE FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Jeffrey J. SOLOMON, Appellee.
    No. 83-1176.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Lanza, Sevier, Womack & O’Connor, Coral Gables, and Judith A. Bass, Miami, for appellant.
    High, Stack, Lazenby, Palahach & Laea-sa, Coral Gables, and Philip J. Cole, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant, an excess carrier, was correctly held liable for uninsured motorist coverage in the amount of the automobile liability limits because, in direct contravention of Section 627.727(1), Florida Statutes (1981), it did not offer UM protection to the insured. Cohen v. American Home Assurance Co., 367 So.2d 677 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979).

Affirmed.


text:
    Nicolaas MESSEMAKER, Appellant, v. Robert E. LONG, Appellee.
    No. 83-1230.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Thomas J. McLaughlin, Miami, for appellant.
    Robert J. Van Der Wall, Coconut Grove, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Southeast Aluminum Supply Corp. v. Plastics North American, Inc., 413 So.2d 440 (Fla. 3d DCA 1982).


text:
    AETNA INSURANCE COMPANY, Appellant, v. James NORMAN and Natalie Norman, his wife, Appellees.
    No. 83-1356.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Underwood, Gillis, Karcher & Valle and William Edwards, Miami, for appellant.
    Joe N. Unger, Miami, Jay Dermer, Miami Beach, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from a final judgment which determined the amount of a workers’ compensation lien under Section 440.-39(3)(a), Florida Statutes (1981). For the reasons which follow, we reverse.

The plaintiff James Norman was injured in a work-related accident, as a result of which he has been paid $26,795.17 in workers’ compensation by the defendant Aetna Insurance Company. The plaintiffs James Norman and his wife Natalie Norman brought suit against a third party tort-feasor based on this work-related accident, as a result of which the claim was settled for $75,000. The plaintiffs then filed a motion below to determine the amount of the defendant Aetna Insurance Company’s workers’ compensation lien under Section 440.39(3)(a), Florida Statutes (1981). The court below took testimony on the motion and entered a final judgment from which this appeal is taken.

The trial court found in the final judgment that the total attorney’s fees and costs expended by the plaintiffs to secure the $75,000 settlement stated above amounted to $36,267.47, thereby making the plaintiffs’ net recovery $38,732.53 from the third-party lawsuit. In addition, the trial court found that the plaintiff James Norman was 50% comparatively negligent in the case, that the total value of the plaintiffs’ aggregated claims was $150,000, that the total value of the plaintiff Natalie Norman’s derivative claim was $15,000, and that the total value of the plaintiff James Norman’s pain and suffering in the case was $45,000.

The trial court then utilized an equitable distribution formula approved in Orange County v. Sealy, 412 So.2d 25 (Fla. 5th DCA 1982), and concluded that: (1) the amount of the workers’ compensation lien presently due and owing was $2,947.47 (representing 11% of the amount of workers’ compensation paid by the defendant Aetna Insurance Company to date), (2) all future workers’ compensation benefits to the plaintiff James Norman were to be reduced by 11%, and (3) the entire lien would be satisfied when the defendant Aetna Insurance Company had been reimbursed $31,232.53. The above result was reached by the following mathematical formula, approved in Orange County v. Sealy, supra:

[Net recovery in third-party lawsuit]
[% of claim attribute-ble to pain & suffering and to derivative claim]
[Total amount of workers’ compensation paid]
$38,732.53 X .40 X $26,795.17
_ = $2,947.47
$150,000 - $15,000 X 1
[Total value of entire case]
[Total value of plaintiff Natalie Norman’s derivative claim]

The applicable statute, under which this action was brought, lays out in no uncertain terms the exact method by which a workers’ compensation lien shall be calculated in cases of this nature:

“In all claims or actions at law against a third-party tortfeasor, the employee, or his dependents or those entitled by law to sue in the event he is deceased, shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee, or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff or, at the option of such plaintiff, may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed shall be served upon the employer and compensation carrier and upon all parties to the suit or their attorneys of record by the employee. Notice of payment of compensation benefits shall be served upon the employee and upon all parties to the suit or their attorneys of record by the employer and compensation carrier.”
§ 440.39(3)(a), Fla.Stat. (1981) (emphasis added)

Applying the above emphasized statutory formula to the instant case, it is plain that the defendant Aetna Insurance Company is entitled to recover from the judgment obtained by the plaintiff James Norman from the third-party tortfeasor [after attorney’s fees and costs incurred by the plaintiffs in said lawsuit have been deducted], to wit: $38,732.53, 100% of what it has paid ($26,-795.17) and future benefits to be paid, reduced by the plaintiff James Norman's 50% comparative negligence, to wit: $26,795.17 X 50% = $13,397.59, plus 50% of any future workers’ compensation benefits, until the full lien of $19,366.26 (50% of the net tort recovery) has been satisfied.

We reject the contrary authority of Orange County v. Sealy, supra, upon which the trial court relied, as it announces an equitable distribution formula which is in no way authorized by Section 440.39(3)(a), Florida Statutes (1981). There is no provision in the statute allowing a proration or offset for the value of the plaintiffs pain and suffering or for the value of a derivative claim -in the third-party tort recovery. This result, we think, is fully consistent with our prior interpretations of the subject statute. United Parcel Services v. Carmadella, 432 So.2d 702 (Fla. 3d DCA 1983); Sentry Insurance Co. v. Keefe, 427 So.2d 236 (Fla. 3d DCA 1983); Lee v. Risk Management, 409 So.2d 1163 (Fla. 3d DCA 1982).

The final judgment under review is reversed and the cause is remanded to the trial court with directions (a) to enter judgment for the defendant Aetna Insurance Company in the amount of $13,397.59 and (b) to order that any future workers’ compensation benefits paid to the plaintiff James Norman be reduced by 50% until such time as the defendant Aetna Insurance Company has been paid a total of $19,366.26 from the tort judgment herein (counting in this amount the $13,397.59 previously ordered paid to Aetna).

Reversed and remanded.


text:
    Francisca LEDESMA, f/k/a Francisca Pickoff, Appellant, v. Arthur PICKOFF, Appellee.
    No. 83-1900.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Peter A. Cohen, Miami, for appellant.
    Pardo & Pardo and Jeffrey Pardo, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Abella-Femandez v. Abolla, 393 So.2d 40 (Fla. 3d DCA 1981); Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968).


text:
    Clayton WAY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-2194, 84-113.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Clayton Way, in pro. per.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Smith v. State, 445 So.2d 323 (Fla.1983); Washington v. State, 432 So.2d 44 (Fla.1983); Palmes v. State, 425 So.2d 4 (Fla.1982); Knight v. State, 394 So.2d 997 (Fla.1981); Compare

Peri v. State, 426 So.2d 1021, 1024 (Fla. 3d DCA 1983).


author: DANIEL S. PEARSON, Judge.

text:
    Josie Mae UPSON, Appellant, v. James L. HAZELRIG, Appellee.
    No. 83-2360.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Jeanne Heyward, Goodhart, Rosner & Greene, Miami, for appellant.
    Ellis Rubin, Naples, and Alan S. Mar-shall, St. Petersburg, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The final judgment denying the defendant-appellant’s motion to tax costs is affirmed. Where, as here, the jury finds that the automobile accident was caused solely by the defendant’s negligence, but awards the plaintiff no damages for the claimed injuries to his person and property, the plaintiff is nevertheless the sole party entitled to recover judgment and thus costs under Section 57.041, Florida Statutes (1983), Raffel v. Magarian, 165 So.2d 249 (Fla. 3d DCA 1964). A fortiori, where, as here, the trial court entered an unappealed judgment notwithstanding the verdict for the plaintiff in the undisputed amount of the property damage to the plaintiffs automobile, the plaintiff is the “party recovering judgment” entitled to costs under the statute. See Hendry Tractor Company v. Fernandez, 432 So.2d 1315 (Fla.1983) (plaintiff sole party entitled to recover legal costs under statute where he recovers judgment on theory of negligence, but not on theory of strict liability/breach of warranty); Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980) (plaintiff sole party entitled to recover legal costs under statute, notwithstanding that plaintiffs net judgment reduced by amount of lesser judgment for defendant on counterclaim). If, as the record below reflects, the defendant’s negligence and the plaintiffs property damage were not issues of serious dispute, and the defendant’s primary defense was that the plaintiff had not suffered a permanent injury within reasonable medical probability so as to entitle the plaintiff to recover for personal injuries, see § 627.737, Fla.Stat. (1981), then, given the results of this case, the defendant could have preserved his claim for costs had he made an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442 in the undisputed amount of the property damage. That not having been done and the defendant not being a “party recovering judgment,” the defendant’s motion to tax costs was correctly denied.

Affirmed.


author: ANSTEAD, Chief Judge.

text:
    FLORIDA FARM BUREAU CASUALTY COMPANY, Appellant, v. Lacy R. BATTON, Sr., A.O. Glenn, d/b/a Glenn Electric Services, Inc., and the Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, et al., Appellees.
    No. 82-1299.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.

      Ronald S. Fanaro of Bernard F. Grail, Jr., P.A., Vero Beach, for appellant.
    Michael Jeffries of Neill Griffin Jeffries & Lloyd Chartered, Fort Pierce, for appel-lees.
   ANSTEAD, Chief Judge.

Florida Farm Bureau Casualty Company appeals the granting of summary judgment to the State of Florida in Florida Farm Bureau’s action for contribution.

Lacy R. Batton, a general contractor, bid on a contract to construct a radar equipment and standby generator shelter for the State of Florida, Department of Highway Safety (State). Batton’s bid was accepted and as part of the contract Batton executed an indemnity agreement which provides:

The contractor agrees to indemnify and save harmless, the purchaser, their agents or employees, from and against all loss or expense (including costs and attorneys’ fees) by reason of liability imposed by law upon the purchaser for damages because of bodily injury, including death, at the time therefrom, sustained by any person or persons, or damage to property, including loss or use thereof, arising out of or in consequence of the performance of the work, whether such injuries to persons or damage to property is due or claimed to be done to the negligence of the contractor, his subcontractors, the purchaser, their agents or employees, except only such injury or damage as shall have been occasioned by the sole negligence of the purchaser.

Batton then hired A.O. Glenn to do the electrical work, which included the wiring of an overhead exhaust fan in the shelter.

Batton subsequently injured his hand while he was inspecting the exhaust fan and sued Glenn and his insurer. A jury found Glenn negligent and assessed damages. Glenn and Florida Farm Bureau then filed a third-party action for contribution against the state as a joint tort-feasor for negligent failure to provide a warning or to require a screen guard on the exhaust fan. Thereafter, the state sought and received a summary judgment on the contribution claim on the grounds that the state, by reason of the indemnification agreement with Batton, had no common liability for Batton’s injury.

The common law doctrine precluding contribution among joint tort-feasors was abrogated by the legislature’s enactment of section 768.31, Florida Statutes (1975), the Uniform Contribution Among Tortfeasors Act. See Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). So long as the parties have a common liability to the injured person it is no bar to contribution that liability of the parties rests on different grounds. Farmers Insurance Exchange v. Village of Hewitt, 274 Minn. 246, 143 N.W.2d 230 (1966); Armor Elevator Co. v. Elevator Sales & Service, Inc., 360 So.2d 1129 (Fla. 3d DCA 1978). But where one tort-feasor is immune from suit by the victim, the others cannot compel contribution because the alleged tort-feasors are not then jointly and severally liable. Armor Elevator Co., 360 So.2d at 1129.

In Seaboard Coast Line Railroad v. Smith, 359 So.2d 427 (Fla.1978), the dismissal of Seaboard’s claim for contribution from the West Robinson Fruit Company was affirmed. Employees of the fruit company were injured when the company bus collided with a Seacoast train. The employees’ injuries were paid for by the employer under the provisions of the Workmen’s Compensation Act without regard to fault. See § 440.11, Fla.Stat. (1975). The railroad could not compel contribution by the employer who, because of the special nature of workmen’s compensation, was immune from suit by his employees and, therefore, not judged to be a tort-feasor. See also Armor Elevator Co., 360 So.2d at 1129. The state compares its situation to that of the railroad in the Seaboard case. Specifically, the state asserts that since the indemnity agreement with Batton would prevent Batton from recovering against the state directly, the agreement should also bar a contribution recovery.

Florida Farm Bureau contends that this case is closer to that of Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977), aff'd, 353 So.2d 825 (Fla.1977). Mrs. Shor was driving an automobile that was involved in an accident with Paoli. Mr. Shor, a passenger, was injured; he sued Paoli and won, but he was precluded from suing his wife because of interspousal tort immunity. Paoli sought contribution from Mrs. Shor. The trial court rendered judgment on the pleadings against Paoli. In reversing, this court found that the right of Paoli to sue for contribution was not affected by the fact that Mrs. Shor was the spouse of the injured party and, therefore, immune from a direct action. The majority opinion reasoned that no harm was done to family harmony and that denying Paoli the right to seek contribution would be unfair to him and a windfall to Mrs. Shor. Similarly, in Salley v. Charles R. Perry Construction, Inc., 403 So.2d 556 (Fla. 1st DCA 1981), the court validated a crossclaim for contribution by an architect against a general contractor on the theory that they were involved in a common enterprise.

For purposes of analysis, we assume, as the court did below, that the state and the subcontractor were joint tortfeasors who negligently injured the general contractor. Under the indemnity agreement the general contractor agreed to indemnify the state for all negligence liability except that caused solely by the state. Cf. Mitchell Maintenance Systems v. State of Florida, Dept. of Transportation, 442 So.2d 276 (Fla. 4th DCA 1983). If a third party had been injured by the state and the subcontractor, the subcontractor would clearly have been able to seek contribution from the state. The state in turn could have sought indemnity from the general contractor for the state’s share of the liability.

In the present case, utilizing the same reasoning, the subcontractor should also be able to seek contribution from the state. The subcontractor was not a party to the indemnity agreement and ordinarily would only be liable for his share of the liability. On the other hand, the general contractor, by entering into the indemnity agreement may ultimately be forced to repay the state a portion of the damages he recovered from the subcontractor. While at first blush this may seem unusual, it is simply the natural consequence of the contractor’s agreement to indemnify the state for injuries to any person on the job except those injuries caused solely by the state’s negligence. The agreement does not limit the description of “injured party” and would appear to provide for indemnity even though the contractor himself is the injured party.

In our view, this situation is unlike those in which a tort-feasor is prevented from recovering from a joint tort-feasor due to a legal immunity, such as worker’s compensation. The indemnity agreement here does not provide immunity from suit by a joint tort-feasor. Rather, the agreement forces the contractor to assume liability where the state, as a joint tort-feasor, is held partially responsible for an injury. The subcontractor’s rights to contribution should not be impaired by such a private agreement. In summary we conclude that the state is open for suit for contribution and the enforcement of the indemnity agreement is a separate issue to be litigated between the state and the injured contractor.

Accordingly, the final summary judgment is hereby reversed and this cause is remanded for further proceedings in accord herewith.

BERANEK and DELL, JJ., concur.


text:
    Ronald Lehman BAIR, Appellant, v. PALM BEACH NEWSPAPERS, INC., Appellee.
    No. 82-1362.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Eugene M. Underberg, Lake Worth, for appellant.
    Donald M. Middlebrooks and Thomas R. Julin of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See MacGregor v. Miami Herald Publishing Co., 119 So.2d 85 (Fla. 2d DCA 1960); Layne v. Tribune Co., 146 So. 234, 108 Fla. 177 (1933).

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


text:
    Jonathan CHUA, Appellant, v. Aurora CHUA, Appellee.
    No. 83-278.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Charles W. Littell of Charles W. Littell, P.A., and Larry Klein of Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Ronald Sales of Sales & Weissman, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


text:
    In re The ESTATE OF Pearl M. DeMAR, Deceased.
    No. 83-771.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    John D. Kruse of Kruse & Livoti, Fort Lauderdale, appellant, pro se.
    Michael D. Stewart, Fort Lauderdale, for appellees Elizabeth A. Jennings and Glenda Loew.
   PER CURIAM.

Bearing in mind “that the reasonableness of attorney’s fees is ... an issue of fact, to be determined by the trial court,” Conner v. Conner, 439 So.2d 887 (Fla.1983), we have carefully reviewed the record and find that the trial court’s award is supported by competent, substantial evidence. Accordingly, the judgment is

AFFIRMED.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


text:
    Refugio GONZALEZ, Appellant, v. ADDI CO., et al., Appellee.
    No. 83-929.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Diego C. Asencio of Law Offices of Jose G. Rodriguez, West Palm Beach, for appellant.
    Patrick J. Malone of Brennan, McAliley, Hayskar, McAliley & Jefferson, West Palm Beach, for appellee Addi Co.
    Kathryn M. Beamer of Schuler & Wilkerson, West Palm Beach for appellee Barber Greene Co.
   PER CURIAM.

We disagree that Workers’ Compensation immunity appears on the face of plaintiff’s complaint. We reverse the order dismissing plaintiff’s third amended complaint without prejudice to Workmens’ Compensation being raised as an affirmative defense. See Sullivan v. Liberty Mut. Ins. Co., 367 So.2d 658 (Fla. 4th DCA 1979), cert. denied 378 So.2d 350 (Fla.1979).

Reversed and Remanded.

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


text:
    The HILLS OF INVERRARY CONDOMINIUMS, INC., a non-profit Florida corporation, Appellant, v. David SLACHTER, Trustee, Leonard Sloane & Merriam Sloane, his wife, Appellees.
    No. 88-1299.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Rehearing Denied March 1, 1984.
    Joel Miller of Miller & Squire, Fort Laud-erdale, for appellant.
    Richard M. Gale, Miami, for appellees.
   PER CURIAM.

We reverse and remand with instructions to award attorney’s fees to appellant, The Hills of Inverrary Condominiums, Inc., upon authority of Dolphin Towers Condominium Association, Inc. v. Del Bene, 388 So.2d 1268 (Fla.2d DCA 1980); Reineke v. McKinstry, 445 So.2d 361 (Fla. 4th DCA 1984); In re Lewis, 442 So.2d 290 (Fla. 4th DCA 1984).

REVERSED and REMANDED.

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


author: DOWNEY, Judge.

text:
    ST. LUCIE COUNTY, Florida, Appellant, v. NORTH PALM DEVELOPMENT CORPORATION, Islantic Corporation, Anna Gates, John L. Wehle, Roger L. Toffolon, Milhess, Inc., and William Schulman, as Trustee, Appellees.
    Nos. 83-1863, 83-2233.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Daniel B. Harrell, County Atty., and Sarah Woods, Asst. County Atty., F. Craig Richardson of Siemon, Larsen & Purdy, Sarasota, and Charles L. Siemon and Susan G. Connelly of Siemon, Larsen & Purdy, Chicago, Ill., Sp. Counsel, for appellant.

      Harold G. Melville of Neill, Griffin, Jef-fries & Lloyd, Fort Pierce, William B. Morrison of Nixon, Hargrave, Devans & Doyle, Jupiter, Stanford R. Solomon of Rudnick & Wolfe, Tampa, Daniel H. James of Hamilton, James, Merkle & Young, West Palm Beach, Devitt J. Adams, Fort Pierce, S. Lee Crouch of Crouch & Miner, Hallandale, Steven R. McCain of McCain & Lynch, Fort Pierce, for appellees.
   ON MOTION TO REVIEW

DOWNEY, Judge.

In these consolidated appeals from seven cases consolidated below appellant, St. Lu-cie County, seeks review of an order and judgment of the circuit court 1) declaring certain portions of the St. Lucie County Comprehensive Zoning Resolution facially unconstitutional, and 2) declaring that ap-pellees’ site plan applications met the County’s site plan requirements as modified by the trial court. Upon the County’s filing its notice of appeal the trial court granted appellees’ motion to vacate the automatic stay provided by Florida Rule of Appellate Procedure 9.310(b)(2). The matter is before the court at this time upon the County’s motion to review the order vacating the automatic stay. Fla.R.App.P. 9.310(f).

Briefly, the factual background is that appellees are developers of seven parcels of land located on Hutchinson Island in St. Lucie County. Hutchinson Island is actually two narrow barrier islands extending along the eastern boundary of the County, lying between the Atlantic Ocean and the Indian River. The County Comprehensive Zoning Resolution requires site development plan approval in order to build multifamily dwellings, or hotels, on the subject property. When appellees’ site development plans were not approved, they instituted the instant lawsuits.

The County contends that the decision on the motion is controlled by the recent decision of the Supreme Court of Florida in City of Lauderdale Lakes v. Corn, 415 So.2d 1270 (Fla.1982). As presented in its motion and argument in support thereof, the County perceives the holding in Corn to be “that the availability of a stay is an essential element of the right to appellate review and that the courts may vacate a stay involving appeal of a planning-level decision only if no justiciable issue is present and the governmental body is seeking review solely as a delay tactic.” The developers on the other hand, while suggesting they prefer our Corn decision to that of the supreme court in the same case (an apparent exercise in futility), contend that the supreme court’s decision in Corn is a very narrow one, not controlling here and that Corn only deals with the propriety of requiring a governmental agency to post a supersedeas bond as a condition for staying a judgment against the agency. They argue that Corn focused on protecting the financial integrity of governmental agencies vis-a-vis their planning-level decisions.

While we believe Com is relevant, it certainly is not controlling here. As the developers contend, the focus there was on requiring a supersedeas bond to effectuate a stay; in contrast, our attention is directed to that aspect of the rule that authorizes the trial court to simply vacate the automatic stay provisions of the rule without utilizing a bond.

The rule we are concerned with, of course, is Florida Rule of Appellate Procedure 9.310(b)(2), which provides:

(2). Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission or other public body seeks review; provided that on motion the lower tribunal or the court may impose any lawful conditions or vacate the stay.

It is apparent the rule intends that adverse judgments appealed by a governmental agency are automatically stayed. We suggest the reason therefor, in the context of the case sub judice, is reflected in Corn and involves the fact that planning-level decisions are made in the public interest and should be accorded a commensurate degree of deference and that any adverse consequences realized from proceeding under an erroneous judgment harm the public generally. Even so, the court is given the discretion to vacate the stay when circumstances require. Given the rationale for staying such judgments in the first instance, we believe the stay should be vacated only under the most compelling circumstances.

Adverting now to the case at hand, the record indicates that the trial judge felt there was a serious possibility the developers would suffer substantial damage due to the delay resulting from this appeal, but he did not envision any consequential damage to the County should the developers complete their improvements but lose the appeal. As the trial judge put it: “I can see no prejudice to the County, other than a few cement trucks running up and down there building these buildings.” If this assessment of the possibilities was accurate one would have to say the balance of equities would be overwhelmingly tilted in favor of the developers and vacation of the stay was indicated. However, we do not share the trial judge’s view of the possible prejudice to the County should the developers proceed with their construction and the County prevail in this litigation. And since his conclusion is not based upon any evi-dentiary record, the usual presumptions do not abide the conclusion in question. It appears to us that the County could be severely damaged should the developers ultimately lose this case after placing substantial improvements on the various properties and thereafter find it economically unfeasible or impossible to remove them, casting the burden for doing so upon the County.

Accordingly, under these circumstances, we hold it was an abuse of discretion for the trial court to vacate the stay and allow the developers to proceed to complete their developments, albeit without assurance of a certificate of occupancy. The motion to review is therefore granted and the order vacating the stay is reversed.

HERSEY and WALDEN, JJ„ concur.

      . City of Lauderdale Lakes v. Com, 371 So.2d 1111 (Fla. 4th DCA 1979), reversed, 415 So.2d 1270 (Fla.1982).


text:
    John WATERS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1709.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1984.

      Raymond E. Ford, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kay Blanca, Asst. Atty. Gen., for appellee.
   LEHAN, Judge.

The defendant appeals from his convictions and sentencing for trafficking in marijuana and conspiracy to traffic in marijuana. We affirm.

Defendant contends that the trial court erred in denying his motion to suppress a recorded telephone conversation between defendant and George Hogg. Hogg, an alleged participant in the drug trafficking, had agreed to assist in the state’s investigation in return for a reduction of charges against him. Acting at the direction of a law enforcement officer, Hogg telephoned defendant and recorded the conversation. The defendant testified that he was asleep in his room at his cousin’s house when he was called to the telephone to answer the call from Hogg. Defendant testified that Hogg did not tell him that the call was being recorded or that Hogg was working for law enforcement authorities. Defendant made very incriminating statements during the telephone conversation. After defendant’s motion to suppress the taped conversation was denied, the tape was played twice for the jury (the second time being at the jury’s request during its deliberations).

Section 934.03(2)(c), Florida Statutes (1981), allows a law enforcement officer or person working under the direction of a law enforcement officer to intercept a wire or oral communication when the person doing the intercepting is a party to the communication if the purpose of the interception is to obtain evidence of a criminal act. In State v. Sarmiento, 397 So.2d 643 (Fla.1981), this statute was held unconstitutional to the extent that it authorized the warrantless interception of a private conversation conducted in the home.

Defendant argues that Sarmiento applies in this case and renders the taped telephone conversation illegal. The state argues, inter alia, that Sarmiento is inapplicable because defendant was not in his home when he received the call. However, we need not address whether the room which defendant was occupying was his home. Even if the room was his home, Sarmiento is inapplicable. In Sarmiento the taped conversation was an inperson conversation in which both participants were located in the defendant’s home. In this case, while defendant was arguably in his home, the other party, who telephoned defendant, was outside the home.

The Florida Supreme Court has recently held that Sarmiento does not apply to a situation identical to this case. In State v. Williams, 443 So.2d 952 (Fla.1983), the court held that a tape of a telephone call from an informant outside defendant’s home to defendant in her home did not contravene article I, section 12, Florida Constitution (1968), and was lawful under chapter 934, Florida Statutes (1979).

We find no merit in appellant’s remaining two contentions on appeal except that we strike that portion of defendant’s sentence which requires him to pay certain fines and costs as a condition of parole. See Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983). In all other respects, the judgments and sentences are AFFIRMED.

GRIMES, A.C.J., and SCHEB, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Carolyn WALKER, Appellee.
    No. 83-1047.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Robert J. Lancaster, Asst. Public Defender, Clearwater, for appellee.
   GRIMES, Acting Chief Judge.

This appeal involves a constitutional challenge to section 893.13(2)(a)7, Florida Statutes (1981), which requires that a lawfully dispensed controlled substance must be kept in the container in which it was originally delivered. We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.140(c)(1)(A) and section 26.012(1), Florida Statutes (1981).

The facts are not in dispute. On the morning of June 30, 1982, appellee Carolyn A. Walker was preparing to leave for work. She took two tablets of Centrax, a controlled substance, from an original container which she had lawfully obtained from an authorized person. She wrapped the tablets in a paper napkin and placed the napkin in her purse, intending to consume the tablets during the day as specified by her prescription. On her way to work she was involved in a traffic accident. Subsequently she was detained for a driver’s license violation and her purse was searched. The Centrax tablets were then discovered. She was charged with a violation of section 893.13(2)(a)7, a first degree misdemeanor, which provides as follows:

(2)(a) It is unlawful for any person:
7. To possess a controlled substance lawfully dispensed to him by a pharmacist or practitioner, in a container other than that in which the controlled substance was originally delivered.

In county court Ms. Walker filed a motion to dismiss the information, arguing that section 893.13(2)(a)7 was unconstitutionally vague, overbroad, and violated the equal protection clauses of the state and federal constitutions. In a well-reasoned order the court granted her motion, holding that the section was unconstitutional on the grounds of substantive due process and equal protection. The state appeals.

In reaching its decision, the court relied on claims of equal protection and substantive due process. Since the test is essentially the same where no fundamental rights are at stake, United Yacht Brokers v. Gillespie, 377 So.2d 668 (Fla.1979), we prefer to focus on the latter argument. Under a substantive due process analysis, legislation is examined to determine whether it unreasonably and unjustifiably transgresses the fundamental restrictions on the power of government to intrude upon individual rights and liberties. If irrational legislative means have been adopted to realize the given legislative goals, then a constitutional violation exists. Patch Enterprises v. McCall, 447 F.Supp. 1075 (M.D.Fla.1978). As Judge Scott reasoned in Patch:

The basic test of substantive due process is whether the state can justify the infringement of its legislative activity upon personal rights and liberties. So long as the legislative activity does not encroach upon constitutional guarantees, or run afoul of federal statutory law, a state has a broad scope of discretion in which to regulate the conduct of its citizens .... It need only be shown that the challenged legislative activity is not arbitrary or unreasonable.... Courts will not be concerned with whether the particular legislation in question is the most prudent choice, or is a perfect panacea, to cure the ill or achieve the interest intended.... If there is a legitimate state interest which the legislation aims to effect, and if the legislation is a reasonably related means to achieve the intended end, it will be upheld_ Nevertheless, despite a state’s wide discretion, and the cautious restraint of the courts, there remain basic restrictions and limits on a state’s legislative power to intrude upon individual rights, liberties, and conduct. To exceed those bounds without rational justification is to collide with the Due Process Clause.

447 F.Supp. at 1081, 1081 (citations omitted).

The Florida Supreme Court has framed the issue as whether a statute bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive. Lasky v. State Farm, Insurance Co., 296 So.2d 9 (Fla.1974). Since the basic principle of substantive due process is to protect the individual from an abusive exercise of governmental powers, this court has held that legislation must not arbitrarily state that actions which are inherently and generally innocent shall constitute criminal offenses. City of St. Petersburg v. Calbeck, 114 So.2d 316 (Fla. 2d DCA 1959).

In Simmons v. Division of Pari-Mutuel Wagering, 407 So.2d 269 (Fla. 3d DCA), aff'd, 412 So.2d 357 (Fla.1982), our sister court struck that portion of section 550.241, Florida Statutes (Supp.1980), which prohibited the racing of an animal injected with a drug or “any substance foreign to the natural horse or dog.” The court acknowledged the proper exercise of the state's police power for the valid legislative objectives of preserving the integrity of the sport of racing and protecting the health of the animals. The issue then became whether an absolute ban on the use of drugs, medication, and any other substance foreign to the animal was a reasonable means to attain those objectives. The court ruled that that section of the statute banning any foreign substance resulted in prohibiting the use of all substances, helpful and harmful, beneficial and detrimental. When weighed against the legislative reasons for the statute, the section lacked a rational basis to the objectives. See also Horsemen’s Benevolent & Protective Association v. Division of Pari-Mutuel Wagering, 397 So.2d 692 (Fla.1981).

Our task is first to examine the legislative goals of chapter 893, Florida’s Drug Abuse Prevention and Control Act, and then to determine whether the means chosen, that is section 893.13(2)(a)7, bears a reasonable relationship to any of those objectives. According to the preamble of chapter 73-331, Laws of Florida, the legislative objectives of chapter 893 are: (1) eliminate the confusion resulting from the existence of two statutory chapters on drug abuse by combining both into one chapter; (2) create uniformity between federal and state drug laws; and (3) expand the exercise of the state’s authority over the manufacture and distribution of dangerous drugs. As found by the court below, these are “reasonable and worthwhile objectives.” We also agree with the trial court’s determination that only the third objective, that of expanded state control over the manufacture and distribution of dangerous drugs, is a legitimate legislative objective to which section 893.13(2)(a)7 could be rationally related. See Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). On this point, the court below stated: “[Outlawing possession of drugs secured in a fashion sanctioned by state law has nothing to do with the prevention of unlawful manufacture, distribution and possession of controlled substances. It is totally irrational.”

As explained by the trial court, the section does not facilitate and may serve to obstruct that objective:

[T]he statute under attack in the case at bar is inconsistent with the objective of the statutory scheme and “cannot be said to bear a fair and substantial relationship to the objective sought.” Indeed, § 893.-13(2)(a)(7) Fla.Stat. (1981) hampers the accomplishment of the legislative objectives. It lends itself to intentional drug abuse in two significant ways. First, one who must consume significant quantities of drugs (i.e. a heart patient) must carry all of them with him during his daily activities, thereby making them easily accessible to many people during the course of the day. Second, compliance requires that those persons who have prescription tranquilizers carry many pills with them in order to take their daily dosage. If the stresses of daily life become to [sic] great it is easy to reduce the stress by consuming excess dosages of the tranquilizers, because they are readily available in the original container which must be carried by the patient.
The law also enhances the opportunity for accidental abuse of prescribed drugs in that it prohibits utilization of pill boxes or any other device to keep track of the proper daily and weekly dosages. It is consistent with common sense and reason to conclude that many elderly citizens and others lose track of the amount of drugs they have consumed in the absence of such a technique.

The arguments in support of the statute are unconvincing. The state suggests that the public welfare is benefited by enabling a person administering emergency medical treatment to easily determine proper drug dosages. This argument arbitrarily assumes that persons will always carry their prescription drugs with them. More importantly, such activity has nothing to do with the objective of controlling the manufacture and distribution of dangerous drugs.

The state also asserts that since possession of a controlled substance is unlawful except as provided by the drug laws, the statute permits a police officer to readily determine the legality of one’s possession by identification of the original prescription container. The legislative concern of chapter 893, however, is to convict persons who illegally possess controlled substances, not those who remove prescription drugs from their original containers. When weighed against the stated legislative objective, we find that the application of section 893.-13(2)(a)7 is an irrational means to achieve that goal. Simply because one does not carry drugs in a proper container does not mean that he unlawfully possesses a controlled substance. The police can properly arrest an individual in possession of a controlled substance without this section. To avoid conviction for a possession charge, the individual ultimately will have to show that he obtained such substance in a legal manner. He can do that even without ever producing the so-called original container.

In the final analysis, section 893.13(2)(a)7 criminalizes activity that is otherwise inherently innocent. We do not believe that taking a lawfully prescribed medication from its original container and placing it in a different container, whether for convenience, dosage, or for some other personal reason, is criminal behavior. In Robinson v. State, 393 So.2d 1076 (Fla.1980), our supreme court considered the constitutionality of a statute prohibiting the wearing of any covering over the face so as to conceal identity. Obviously, a general prohibition against wearing a mask would assist law enforcement officers in determining the identity of persons involved in criminal activity. Yet, because the statute was susceptible of application to entirely innocent activities, the court struck it down as creating prohibitions which completely lacked any rational basis. In the same manner, even if section 893.13(2)(a)7 helps law officers in deciding whom to arrest, the blanket prohibition against carrying prescription drugs which are controlled substances except in original containers causes activities which are otherwise entirely innocent to become criminal violations. Without evidence of criminal behavior, the prohibition of this conduct lacks any rational relation to the legislative purpose of controlling drug distribution. See Schultz v. State, 361 So.2d 416 (Fla.1978); Foster v. State, 286 So.2d 549 (Fla.1978).

Accordingly, we find that section 893.-13(2)(a)7 does not bear a reasonable relationship to the legislative objective of expanding the state’s control over the manufacture and distribution of dangerous drugs. We declare section 893.13(2)(a)7, Florida Statutes (1981), in violation of our state and federal constitutions, and we affirm the dismissal of the information.

SCHEB and LEHAN, JJ., concur.

      . While we agree with the need for effective law enforcement, we respectfully submit that other, less drastic alternatives are available. For example, a cited individual might be permitted to produce evidence of legal possession within a given time limit so as to avoid prosecution. Cf. § 322.15, Fla.Stat. (1981).


text:
    Robert Q. MARSTON, President, University of Florida, and Fletcher Baldwin, Chairman, Dean Search and Screen Committee, College of Law, University of Florida, Appellants, v. Terri WOOD, as Editor of the Verdict, Thomas R. Julin, and Campus Communications, Inc., Appellees.
    Nos. AF-475, AJ-393.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Rehearing Denied Jan. 31, 1983.
    Chesterfield Smith, Julian Clarkson, Michael Fogarty and Gregg Thomas of Holland & Knight, Tampa, for appellants.
    Joseph W. Little, Gainesville, amici curiae, for appellants.
    Thomas R. Julin of Steel, Hector & Davis, Miami, Sandra Bieber of Sherman & Bieber, and Larry G. Turner of Larry G. Turner & Associates, Gainesville, for appel-lees.

      Jim Smith, Atty. Gen., Tallahassee, and Florence Beth Snyder, Gen. Counsel for Palm Beach Newspapers, Inc., West Palm Beach, amici curiae, for appellees.
   OPINION ON REMAND

PER CURIAM.

This Court’s opinion, reported at 425 So.2d 582 (Fla. 1st DCA 1982), was reviewed by the supreme court by certiorari proceedings. Upon issuance of the mandate quashing our opinion and remanding for certain further determination, we accordingly adopt the supreme court’s opinion shown as Wood v. Marston, 442 So.2d 934 (Fla.1983).

That court’s opinion noted our initial declination to determine the issue of appel-lees’ entitlement to attorney’s fees but which by the reversal is now proper for consideration and this Court’s disposition. Upon further review we find and hold that appellees are due attorney’s fees and costs as provided by section 286.011(4) and in further explication adopt as our reasoning Judge Wigginton’s dissent relating to this subject at 425 So.2d 582, 588.

We reinstate the attorney's fees and costs awarded the appellees by the trial judge. We also grant appellees' motion for award of fees in representing appellees before this Court and approve the previously stipulated amount of $17,500 as a reasonable fee.

THOMPSON and WIGGINTON, JJ., and WILLIAM C. OWEN, Jr., Associate Judge, concur.


author: MILLS, Judge.

text:
    Daniel MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. AT-21.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have read the record and Mathis’ pro se brief in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


text:
    McKinley O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. AT-179.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.

      Gwendolyn N. Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for ap-pellee.
   PER CURIAM.

REVERSED. Donald v. State, 442 So.2d 271 (Fla. 1st DCA, 1983); Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983). Pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following question as one of great public importance:

Is a circuit court deprived of subject-matter jurisdiction when the caption of the charging document charges the defendant[s] with felony petit theft and the body thereof cites the proper Florida Statute, § 812.014(2)(c), but the text of the charge alleges the value of the property to be less than $100 and does not specify the substantive elements of two prior petit theft convictions?

ERVIN, C.J., and LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Terry L. GILCHRIST, Appellant, v. STATE of Florida, Appellee.
    No. AU-165.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    No appearance for appellee.
   MILLS, Judge.

We have reviewed the record in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

Affirmed.

WENTWORTH, J., and McCORD, GUYTE, P., Jr., (Ret.), Associate Judge, concur.


author: JOANOS, Judge.

text:
    SOUTHERN SEAFOOD and Nationwide Insurance Company, Appellants, v. Elizabeth FREY, Appellee.
    No. AT-172.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.

      B.C. Pyle of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Frank R. Pound, Jr. of Lovering, Pound & Clifton, P.A., Cocoa, for appellee.
   JOANOS, Judge.

In this worker’s compensation case, the employer and carrier (“E/C”) question the propriety of an award of wage loss benefits, the procedure followed by the deputy commissioner in ruling on the claim and on a recusal motion, the deputy’s decision to seek further medical evidence regarding claimant’s impairment status, and the treatment of E/C’s claim for credit for overpayment of temporary total disability (“TTD”) benefits. We affirm on all issues except the matter of the TTD benefits.

As the basis for finding that claimant was entitled to TTD benefits in March, April, and May, 1982, the deputy found that Dr. Stalnaker stated it would have been medically inadvisable for claimant to return to work during these months. We are unable to locate competent substantial evidence in the record to support this finding. Dr. Stalnaker, claimant’s treating physician, testified that when he first saw claimant in March, 1982, she could not have carried on with her employment, but by March 26, 1982, she had improved enough so that she probably could have worked. He also said there were several days in July, 1982, not within the pertinent time period of this issue, when she was hospitalized for a medication reaction and could not have worked, but other than those times if she avoided exposure to the substance to which she was allergic, she was capable of some form of gainful employment. During the time in question, claimant made no conscientious effort to return to work. Under these circumstances, the deputy’s finding claimant was entitled to TTD benefits in March, April, and May, 1982, is not supported by competent substantial evidence, thus there was an overpayment of compensation benefits.

An overpayment of compensation is presumed to be a gratuity absent a finding that a reasonable basis exists for the overpayment. “If the Deputy finds such a basis the presumption is dissipated and he may allow the overpayment to be applied as a credit against compensation ultimately found to be due even though the compensation may be of another class,” Belam Florida Corp. v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981). In the present order, the deputy commissioner found that E/C reasonably believed that the claimant was TTD during the time in question. Therefore credit should have been given.

Reversed and remanded with directions for credit to be given toward wage loss benefits in the amount overpaid for TTD benefits. In all other respects, the order is affirmed.

AFFIRMED in part, REVERSED in part and REMANDED.

SHIVERS and THOMPSON, JJ„ concur.


text:
    JET COAT EMULTIONS and United States Fidelity & Guaranty Company, Appellants, v. Douglas LITTELL and Division of Workers’ Compensation, Appellees.
    No. AU-95.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   MILLS, Judge.

The employer and carrier (E/C) in this workers’ compensation appeal contest the deputy commissioner’s award of temporary partial disability (TPD) benefits to Littell. We affirm.

Littell was employed as a tractor-trailer driver for Jet Coat Emultions. On 30 June 1982, he was splashed with coal tar as he attempted to open a valve at the bottom of a tanker.

Dr. Potash, who saw and examined Lit-tell that same day, diagnosed his injuries as second degree chemical burns of the hands and face. The doctor advised Littell not. to work in the sun during the time in which he was healing. He was discharged as having reached maximum medical improvement on 29 July 1982.

Littell was fired during a dispute with the employer while cleaning up the tar spill on the day of the accident. He testified at the hearing that had he not been fired he would have returned to work the next day if needed, and within five or six days of the accident in any event.

The deputy commissioner found that as a result of his injury Littell was unable to engage in his regular truck-driving duties and awarded TPD benefits from the date of the accident through the date of maximum medical improvement.

The E/C contend that the award of TPD benefits was erroneous because of Littell’s own testimony that he would have continued working had he not been fired. That contention is without merit. The uncontra-dicted medical testimony was that Littell was not to work in the sun during the period in which his burns were healing. Thus, the deputy’s finding that Littell was unable to engage in his regular truck-driving duties is supported by competent substantial evidence, and the award of TPD benefits was proper.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


text:
    TROPHY WORLD, INC., and United States Fidelity & Guaranty Company, Appellants, v. Margarita GONZALEZ and Division of Workers’ Compensation, Appellees.
    No. AU-96.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Barry A. Pemsler of Richard & Pemsler, Miami, for appellees.
   MILLS, Judge.

The issue in this workers’ compensation appeal is whether the deputy commissioner erred in awarding attorney’s fees to Gonzalez based on Section 440.34(3)(b), Florida Statutes (1981). We find that the award is supported by competent substantial evidence and affirm.

Gonzalez suffered a compensable injury on 1 September 1981 resulting in her hospitalization at the Palmetto General Hospital in Hialeah from 12 September 1982 through 24 September 1982. The bill for her stay there was $6,762.42.

Gonzalez’ attorney notified the carrier, United States Fidelity & Guaranty Company (USF & G), of the hospitalization by letters dated 20 September 1982 and 3 November 1982. USF & G made no attempt to pay the bill at that time, however, and the hospital soon began to attempt to collect the bill directly from Gonzalez.

Gonzalez submitted a claim for benefits and an application for hearing on 19 January 1983, requesting payment of the hospital bill, two doctors’ bills, and attorney’s fees. The evidence adduced at the hearing showed that USF & G received an itemized copy of the hospital bill on 24 November 1982. Paul Figoni, a claims supervisor with the carrier, questioned the amount of some of the medication that Gonzalez had received during her stay in the hospital, and he hired Valerie Gray, a registered nurse, to review the bill.

Gray picked up the bill at USF & G’s office sometime in December but did not submit her report until 1 February 1983. In her report, she noted that Gonzalez had received amounts of the medication Mefox-in which, in Gray’s opinion, exceeded the usual recommended dosages.

After receiving the report, Figoni made several attempts to contact Gonzalez’ treating physician to inquire about the excessive medication, but to no avail. USF & G finally paid the bill voluntarily on 4 March 1983.

The deputy commissioner entered an order finding that Gonzalez was entitled to an award of attorney’s fees based either on USF & G’s bad faith handling of the claim or on the fact that the claim was one for medical benefits only. See Section 440.-34(3)(a), Florida Statutes (1981).

This Court held in Legal Aid Services of Broward County v. Logsdon, 421 So.2d 1 (Fla. 1st DCA 1982), that a six-month delay in the payment of a claimant’s hospital bill provided a sufficient basis to support the deputy commissioner’s finding of bad faith. Compare Exceptional Children’s Home & Nursery, Inc. v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982). As in Logsdon, the facts of the instant case support the deputy’s finding of bad faith, and the employer and carrier have not shown the clear abuse of discretion or departure from the law that is required by Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

USF & G’s concern over whether Gonzalez had received excessive medication did not excuse its delaying payment of the uncontested portion of the bill for a period of over three months. Moreover, even after Gray’s report was received, USF & G delayed payment for over a month.

Because we affirm the deputy commissioner’s finding of bad faith, we do not reach the question of whether the award of attorney’s fees in this case could be supported by Section 440.34(3)(a), Florida Statutes (1981).

The order appealed is affirmed.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, Appellant, v. FIRST NATIONAL INSURANCE COMPANY and Iowa National Insurance Company, Appellees.
    No. AU-216.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Gordon W. Jacobs, Tallahassee, for appellant.

      Bernard J. Zimmerman of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.
   MILLS, Judge.

In this appeal, we are asked to determine whether a claim for reimbursement of temporary total disability (TTD) and medical benefits is barred by Section 440.49(2)(g), Florida Statutes (1981).

Hall, the claimant, suffered a compensa-ble injury on 9 April 1981 that entitled the employer and carrier (E/C) to file for reimbursement from the Special Disability Trust Fund under Section 440.49, Florida Statutes (1981). The E/C provided appropriate medical care and temporary total compensation until 4 January 1982, the date of maximum medical improvement. Commencing on 5 January 1982, the E/C began payment of wage-loss benefits.

On 7 January 1983, the E/C filed a claim against the Special Disability Trust Fund for reimbursement of all benefits paid to the claimant. The deputy commissioner awarded reimbursement of all TTD and medical benefits paid and of all wage-loss benefits paid after 7 November 1982.

Section 440.49(2)(g), Florida Statutes (1981), bars any right to reimbursement from the Special Disability Trust Fund unless the claim is filed prior to sixty days from the date of the first payment of excess compensation if such payment is made by the E/C without an award. Special Disability Trust Fund v. Jimmy Hart Masonry, 424 So.2d 884 (Fla. 1st DCA 1982). In Section 440.49(2)(b)3, Florida Statutes (1981), “excess permanent compensation” is defined as “that compensation for permanent impairment, wage-loss benefits, or permanent total disability or death benefits for which the employer or carrier is otherwise entitled to reimbursement from the Special Disability Trust Fund.”

Thus, the sixty-day period in the instant case began to run on 5 January 1982, the date of the first voluntary payment of wage-loss benefits. No claim having been filed within sixty days of this date, the right to reimbursement for TTD and medical benefits paid in this case is barred. The only benefits properly held reimbursable were the wage-loss benefits paid after 7 November 1982. Special Disability Trust Fund v. Sunshine Jr. Stores, Inc., 417 So.2d 1170 (Fla. 1st DCA 1982).

REVERSED.

WENTWORTH, J., and McCORD, GUYTE, P., Jr., (Ret.), Associate Judge, concur.