author: WALDEN, Judge.

text:
    Harold THOMPSON and Marion Thompson, his wife, Appellants, v. C.H.B., INC., a Florida corporation, Appellee.
    No. 83-2198.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 10, 1984.
    Patrice A. Talisman of Daniels & Hicks, Miami, for appellants.

      Michael L. Gates of Kaplan, Jaffee & Gates, Hollywood, for appellee.
   WALDEN, Judge.

This appeal involves alleged breaches of a management agreement between Mr. and Mrs. Thompson and C.H.B., Inc. The Thompsons contracted to manage and improve certain corporate owned apartments. Judgment for $48,233.68 was entered against the Thompsons. They appeal. We affirm in part and reverse in part.

The agreement and the accountings under it were somewhat complicated. We have examined the record in light of the appellate treatment and find no reversible error demonstrated except for the matter of travel expenses.

The management agreement provided:

(1) The Thompsons would manage the apartment building and be responsible for renting, collecting the rent, paying the bills and maintaining the building.
(2) The Thompsons would open a checking account and deposit therein all rental receipts and pay all bills out of this account. In addition, if the expenses of the building exceeded its income, the Thomp-sons were to make up such deficiencies and be reimbursed after the sale.
(3) The Thompsons were to fix up the building to prepare it for sale and to obtain the highest rental possible.
(4) The Thompsons were to put the building up for sale and sell it for no less than $150,000.
(5) As compensation the Thompsons were to be reimbursed for any out of pocket expenses they incurred and receive 80% of the first $20,000 of net profits and 50% of the net profits over $20,000 that were obtained in the sale of the building. (Emphasis added)

The apartments were located at Cape Canaveral. The Thompsons lived in Fort Lauderdale. Between October, 1974, through March, 1975, the Thompsons commuted back and forth between the two places. In March, 1975, Mrs. Thompson moved to Cape Canaveral so as to manage. Mr. Thompson continued to commute on weekends and during his vacation.

The apartments were purchased for $94,000.00. The Thompsons successfully managed and made substantial improvements to the property. In February, 1980, the apartments were sold for $234,000.00. There was disagreement as to the amounts of disbursements made by the Thompsons to themselves including the sum of $4,963.00 which, over the course of time, they had disbursed to themselves as travel expenses. This suit reflects that disagreement. The trial court disallowed the disbursements for travel expenses.

The Thompsons computed their travel expenses on the basis of $20.00 per trip. There is no dispute as to the reasonableness of that sum and we would simply note, based on everyday experience, that the sum is minimal, to say the least. Also, there is no dispute as to the number of trips made or their necessity.

Peripherally, one of the predecessor managers was paid $30.00 per week for travel expenses. Whenever any of the shareholders traveled from south Florida up to see the apartments, they were reimbursed from corporate funds for travel expenses. In other words, the Thompsons just continued the pre-existing practice and there was never any objection to such reimbursements during the five years the Thompsons were reimbursing themselves from corporate funds.

The trial court disallowed travel expenses based upon its interpretation of the contract.

Looking back to the contract, there are two salient provisions. First, the Thomp-sons were to be reimbursed for any “out-of-pocket expenses” and such expenses were not otherwise defined or limited. Second, in addition, the Thompsons were to be paid for their efforts, upon sale, 80% of the first $20,000.00 of net profit and 50% of the net profit over $2,000.00.

Perhaps understandably, the Thompsons contend that travel costs were out-of-pocket expenses. The corporation contends otherwise and that the percentage of profits provided for the Thompsons cover such expenses.

We hold that the travel expenses here constituted out-of-pocket expenses so as to entitle the Thompsons to reimbursement. With no help contained in the contract as to what was intended by “out-of-pocket expenses,” we give the term its literal meaning and say that it means money coming out of the Thompsons' pocket in furtherance of the corporate purpose. The purchase of gasoline and payment of turnpike fees so as to travel from home a distance of about 185 miles to the work site certainly entailed reaching into the Thompsons’ pocket for such funds.

A court should arrive at a contract interpretation consistent with reason, probability, and the practical aspect of the transaction between the parties. Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788 (Fla. 2d DCA 1978). Words should be given their natural meaning or the meaning most commonly understood in relation to the subject matter and circumstances, and reasonable construction is preferred to one that is unreasonable. Sheldon v. Tiernan, 147 So.2d 167 (Fla. 2d DCA 1962), affirmed in part, reversed in part, 191 So.2d 87 (Fla. 4th DCA 1966).

We affirm in part; reverse in part; and remand for further proceedings consistent herewith.

LETTS and HURLEY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    George Michael AGRAMONTE, Appellant, v. Irene AVILES, Appellee.
    No. 83-2246.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 10, 1984.
    Howard W. Mazloff of Howard W. Maz-loff, P.A., Coral Gables, for appellant.
    Janet R. Riley of Schecter & Sherr, P.A., Fort Lauderdale, for appellee.
   WALDEN, Judge.

On October 17, 1983, the appealed judgment was entered. It adjudged that the decree and findings of a judgment issued by the Supreme Court of the State of New York on September 19, 1975, between the parties in a divorce action was entitled to be domesticated as a Florida judgment and fully enforceable by Florida law. The New York judgment provided, among other things, for payment by the husband of weekly installments of child support and alimony. The former husband appeals, saying that the domestication here was barred by the Statute of Limitations or by laches.

We hold, with the specific consent of the wife, that such domestication is warranted only as concerns payments of alimony and child support becoming due after October 17, 1983. It was error to adjudge domestication and enforceability as concerns ar-rearages accumulated prior to October 17, 1983. Winland v. Winland, 416 So.2d 520 (Fla. 2d DCA 1982). This holding is, of course, without prejudice to the rights of the former wife to apply to the New York Court as concerns such arrearages.

Affirmed in part; reversed in part; and remanded for further proceedings consistent herewith.

LETTS and HERSEY, JJ., concur.


author: PER CURIAM.

text:
    Larry LEATHERWOOD, Appellant/Cross Appellee, v. Jody LEATHERWOOD, Appellee/Cross Appellant.
    No. 83-2601.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 12, 1984.
    Larry Leatherwood, pro se appellant/cross appellee.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellee/cross appellant.
   PER CURIAM.

When this case was first before us, we affirmed the final judgment of dissolution in all respects except for the provision which failed to fully settle the property rights of the parties as to some remaining furniture and household furnishings referred to in paragraph 5 of the final judgment. Accordingly, we remanded “with instructions to adjudicate the parties’ property rights in the remaining personal property _” Leatherwood v. Leatherwood, 433 So.2d 8, 9 (Fla. 4th DCA 1983).

On remand, however, that mandate was not fulfilled. The trial court merely ordered that specified pieces of personalty would remain jointly owned until the minor child reaches the age of eighteen, and that other items would be sold immediately with the proceeds to be jointly divided. Our original mandate was intended to effect an equitable distribution of the personal property at issue; partition of that property is not permissible because it was not requested or agreed to by the parties. See Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981).

We therefore find it necessary to again reverse and remand, with instructions that the trial court equitably distribute the personal property referred to in paragraph 5 of the final judgment of dissolution. If necessary, the trial court may conduct an evidentiary hearing to determine the specific items covered by paragraph 5, and their present monetary value, in order to effect an equitable distribution of the property.

REVERSED AND REMANDED.

LETTS, HURLEY and WALDEN, JJ., concur.


text:
    Herbert S. CANNON, Holistic Services Corporation, James W. Wolff and Jacqueline Media Funding Ltd., Appellants, v. Terry L. DANZIGER and Strategic Marketing Concepts, Inc., Appellees.
    No. 84-658.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 10, 1984.
    Richard G. Doggett of Richard G. Dog-gett, P.A., Fort Lauderdale, for appellants.
    Kenneth D. Stern, Boca Raton, for appel-lees.
   PER CURIAM.

Reversed. See DiGaeteno v. Perotti, 374 So.2d 1015 (Fla. 3rd DCA 1979).

HURLEY, WALDEN and BARKETT, JJ., concur.


author: WENTWORTH, Judge.

text:
    Ralph BRANSCOMB, Appellant, v. PLOOF TRUCK LINES, INC., a corporation, and Carolina Freight Carriers Corp., a corporation, et al., Appellees.
    No. AV-255.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Beckham & McAliley, Jacksonville, and Joel D. Eaton, of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for appellant.
    Charles Cook Howell, III, and Emerson M. Lotzia of Howell, Liles, Braddock & Milton, Jacksonville, for appellee Ploof Truck Lines, Inc.
    Carle A. Felton, Jr., of Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellee Carolina Freight Carriers Corp.
   WENTWORTH, Judge.

Branscomb seeks review of an order by which his motion for leave to file an amended counterclaim, cross-claim, and to add a party and file a third-party complaint was denied. We find that the court below erred in denying Branscomb’s motion, and we therefore reverse the order before us.

Branscomb was the driver of an automobile in a multi-vehicle collision which also involved Ploof Truck Lines, Inc., and Carolina Freight Carriers Corp. Ploof filed a property damage action in Duval County, against both Branscomb and Carolina; Branscomb cross-claimed against Carolina, and counterclaimed against Ploof, for contribution and property damage. Bran-scomb thereafter filed a personal injury action, predicated on the same multi-vehicle collision, against Ploof and Carolina in Orange County. Pursuant to motions to dismiss and transfer filed in the Orange County action, the court transferred the cause to Duval County where it was docketed as an independent proceeding.

Approximately one year later, but before Ploof’s property damage action was set for trial, Branscomb moved to join his transferred personal injury action as an amended counterclaim, cross-claim, and third party complaint in Ploof’s original Duval County proceeding. Branscomb argued that his personal injury action is a compulsory counterclaim which would be barred should the property damage action proceed to judgment first, and that this circumstance compels an undesirable “race to judgment” between the parties in the two actions. The trial court acknowledged this argument, but nevertheless denied Branscomb’s motion.

Inasmuch as Branscomb’s personal injury claim “arises out of the transaction or occurrence that is the subject matter” of Ploof’s property damage action, it is a compulsory counterclaim required under Fla.R.Civ.P. 1.170. When a compulsory counterclaim is brought as a separate action independent from the initial proceeding, the first judgment entered may bar the remaining action. See Cheezem Development Corp. v. Maddox Root Service Inc., 362 So.2d 99 (Fla. 2d DCA 1978), cert. denied 368 So.2d 1370 (Fla.1979); Travelers Express Inc. v. Acosta, 397 So.2d 733 (Fla. 3d DCA 1981), fn. 3. As Acosta indicates, this circumstance has the undesirable effect of committing the litigants to a “race to judgment.”

In the present case Branscomb attempted to avoid a “race to judgment” by seeking to amend his pleading in Ploof’s property damage action. The Florida Rules of Civil Procedure contain several provisions authorizing amendment of a pleading, with leave of court, “when justice so requires.” See Rule 1.190(a); Rule 1.170(f); also see Rule 1.190(e). It is generally indicated that such leave to amend should be liberally granted, and that absent excessive delay the standard to be applied is whether the opposing party will be otherwise demonstrably prejudiced. See e.g., Walker v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976); see also C.A. Davis Inc. v. City of Miami, 400 So.2d 536 (Fla. 3d DCA 1981), review dismissed 411 So.2d 380 (Fla.1981). And it has been suggested that special liberality should be accorded leave to amend so as to add a compulsory counterclaim. See Bratcher v. Wronkowski, 417 So.2d 1132 (Fla. 5th DCA 1982), review denied 424 So.2d 760 (Fla.1982).

Branscomb’s motion to amend his pleadings was filed prior to Ploof’s property damage action being set for trial, and neither Ploof nor Carolina argued that any prejudice would result were Branscomb’s motion granted. While amendment of the pleadings is a matter within the trial court’s discretion, we conclude that in the circumstances of the present case the denial of Branscomb’s motion for leave to amend was an abuse of discretion.

Accordingly, the order is reversed and the cause remanded.

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

      . The order is, in the circumstances presented, a nonfinal order for which immediate appellate review, pursuant to Fla.R.App.P. 9.130, is not authorized. However, since review after a determination below on the merits may not provide Branscomb a complete and adequate remedy, we hereby treat the cause as one invoking this court's certiorari jurisdiction under Fla.R. App.P. 9.030(b)(2)(A). See Batavia Ltd. v. United States, 393 So.2d 1207 (Fla. 1st DCA 1981); Fla.R.App.P. 9.040(c).

      . In denying Branscomb’s motion the trial court noted that “this case has gotten complicated to a horrible extent,” and that Branscomb has "a viable suit pending ... for the same relief_”


text:
    Wade Lee PLUMMER, Appellant, v. STATE of Florida, Appellee.
    No. AW-35.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.

      Michael E. Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence for the offense of attempting to throw a missile into an occupied vehicle. We find that the evidence was sufficient to establish the necessary elements of the offense, but that the trial court erred by excluding the testimony of a defense witness as a discovery sanction without conducting an adequate inquiry into the surrounding circumstances; we therefore reverse the order appealed.

Appellant was charged with throwing a missile into an occupied vehicle in violation of § 790.19, Florida Statutes. At trial a witness testified that while he was travelling in his vehicle on the highway at 25 to 30 miles per hour, appellant pulled alongside in a vehicle travelling at a similar speed and hurled a can at the witness’ car. We find that such testimony is sufficient to permit a jury finding that the object thrown “would produce death or great bodily harm” within the intendment of the statutory language, and that the evidence is otherwise sufficient to establish that appellant did attempt to throw such object at an occupied vehicle.

During trial appellant sought to present the testimony of a witness who was not included on a pre-trial witness list. Appellant’s counsel indicated that the testimony would be “favorable, beneficial and exculpatory,” and that the witness had been made available to be interviewed by the state attorney on the morning of trial. Counsel further explained that he had himself not spoken to the witness prior to the morning of trial. The trial court ascertained that appellant had been free on bail and had known the witness’ identity. Stating that “the Court doesn’t want to take testimony,” and without conducting any further inquiry, the court declined to permit the witness to testify.

While a trial court has the discretionary authority to exclude a witness’ testimony as a sanction for the failure of a party to comply with an applicable discovery rule, see Fla.R.Crim.P. 3.220(j)(l), in exercising such discretion it is essential that the court inquire as to the circumstances surrounding the discovery violation. See Zeigler v. State, 402 So.2d 365 (Fla.1971); Cooper v. State, 377 So.2d 1153 (Fla.1979); Richardson v. State, 246 So.2d 771 (Fla.1971). As Richardson established, the court should ascertain whether the discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and what prejudicial effect the violation would have on the opposing party’s case. Although Richardson pertained to prosecutorial violations of discovery rules, the Richardson standard has likewise been extended to defense violations. See Bradford v. State, 278 So.2d 624 (Fla.1973).

In the present case the limited inquiry which the trial court conducted is clearly deficient under Richardson. The court made no attempt to ascertain the extent to which the state would be prejudiced, and the court further “made no search for a manner in which to rectify any possible prejudice short of the exclusion.” Compare Adams v. State, 366 So.2d 1236 (Fla. 2d DCA 1979). While appellant made no proffer of the contested testimony, in the circumstances here presented we do not deem such proffer to be essential. We therefore find that the trial court abused its discretion by excluding the witness’ testimony without conducting an adequate inquiry into the circumstances of, and considering less severe sanctions for, appellant’s discovery violation.

A post-trial inquiry being insufficient to cure the error, we accordingly reverse the judgment and sentence appealed and remand the cause for a new trial.

SMITH and WIGGINTON, JJ., concur.

      . Section 790.19, Florida Statutes, provides that: Whoever, wantonly or maliciously, ... throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any ... vehicle of any kind which is being used or occupied by any person ... shall be guilty of a felony of the second degree ....

      . See Smith v. State, 372 So.2d 86 (Fla.1979).


author: WIGGINTON, Judge.

text:
    James C. WHITELY, Jr., Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Lamar Advertising Company, (Pensacola), Inc., Jimmie Lee Lindt, and Auto-Owners Insurance Company, Appellees.
    No. AW-379.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Joseph L. Hammons, of Hammons, Roark & Whittaker, P.A., Pensacola, for appellant.

      L. Kathleen Horton-Brown, of Parting-ton, Hart, Hart & Johnson, Pensacola, for appellee Auto-Owners Ins. Co.
   WIGGINTON, Judge.

Appellant appeals the trial court’s order granting Auto-Owners Insurance Company’s motion to assess, pursuant to section 440.39(3)(a), Florida Statutes (1979), a workers’ compensation lien on the net proceeds to appellant from settlement of a third party tort-feasor action filed by appellant and his wife. We affirm.

In the course of his employment, on March 27, 1981, appellant was injured in an automobile accident and thereafter was provided workers’ compensation benefits by Auto-Owners, appellant’s employer’s workers’ compensation insurer. Appellant sued a third party tort-feasor and settled the case for substantially less than the full amount of his damages due to the questionable liability of the third party. Pursuant to section 440.39(3)(a), Florida Statutes (1979), the trial judge entered an order requiring payment, after deductions for attorney’s fees and costs, to Auto-Owners of 100 percent of the workers’ compensation benefits, past and future, paid by Auto-Owners to appellant up to a maximum of appellant’s net recovery from the third party tort-feasor.

The applicable statute in this case, section 440.39(3)(a), Florida Statutes (1979) prdvides, in pertinent part:

Upon [third party tort-feasor] 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% 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. (Emphasis supplied.)

Appellant contends that the trial court’s assessment of a 100 percent lien in favor of Auto-Owners was an improper application of section 440.39(3)(a) since appellant recovered substantially less than the full value of his damages because of questionable liability on the part of the alleged tort-feasor. Appellant urges that Auto-Owners should be entitled to only a pro rata share of the settlement proceeds in this instance. However, the wording of the statute clearly indicates that the carrier is entitled to 100 percent of the benefits it has paid and future benefits it will pay “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 questions of comparative negligence and limits of insurance coverage and collectibility are not at issue in this case. We decline to read into the statute an additional exception when damages are limited due to “questionable liability” of the tort-feasor. Compare United Parcel Services v. Carmadella, 432 So.2d 702 (Fla. 3d DCA 1983). Thus, the trial court was correct in assessing a 100 percent lien under the statute.

Appellant also urges that the trial court erred in requiring him to bear the cost of all attorney’s fees in the portion of the settlement proceeds retained by him rather than requiring the carrier to bear a proportionate share of those fees based on its lien recovery. However, 440.39(3)(a), Florida Statutes (1979), specifically provides that the 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 the workers’ compensation payments it has made. In contrast to prior and subsequent statutes, the 1979 statute makes no provision for apportionment of attorney’s fees. Under that statute, to diminish the carrier’s reimbursement by any share of the attorney’s fees would be error. Risk Management Services, Inc. v. Scott, 414 So.2d 220 (Fla. 1st DCA 1982); Lee v. Risk Management, Inc., 409 So.2d 1163 (Fla. 3d DCA 1982).

Appellant further contends that application in the instant case of section 440.-39(3)(a), Florida Statutes (1979), is unconstitutional in that it violates the equal protection and due process clauses of the United States and Florida Constitutions and article I, section 2 of the Florida Constitution providing for equal access to the courts. We find no merit in appellant’s position and are not persuaded of the statute’s unconstitutionality by the arguments presented. The constitutionality of the 1977 statute, which in pertinent part is identical to the 1979 statute, has been considered on similar grounds in State, Department of Health v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981), where that court also refused to declare the statute unconstitutional.

AFFIRMED.

SMITH, L. and WENTWORTH, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Jaime SOSA, Appellant/Cross-Appellee, v. JERNIGAN TRUCKING COMPANY and Fidelity & Casualty of New York, Appellees/Cross-Appellants.
    No. AX-14.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    John A. Williamson of Barrs, Williamson & Levens, Tampa, for appellant/cross-ap-pellee.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellees/cross-appellants.
   ERVIN, Chief Judge.

Claimant appeals an order of the deputy commissioner permitting the employer/carrier (e/c) to recover in the future past overpayments of compensation based on an incorrect average weekly wage. The e/c in turn cross-appeals the deputy’s calculation of the average weekly wage caused by his alleged failure to grant its request for an offset by reason of the claimant’s receipt of social security disability payments. As to both appeals we affirm, finding competent, substantial evidence supporting the deputy’s determinations.

In addressing the point raised by claimant, we observe that he relies upon our opinion in Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981), holding that any overpayment of compensation to a claimant is presumed a gratuity in the absence of a finding that a reasonable basis exists for such overpayment. Although the deputy’s order did not specifically explicate a reasonable basis for the overpayment, such basis clearly appears in the record due to the rather unusual method of calculating claimant’s average weekly wage.

Claimant was the owner/operator of a tractor trailer which had been purchased pursuant to a retail installment contract and security agreement. At the time claimant sustained his injury on March 22, 1979, he had asserted up to the time of the hearing that his average weekly wage for the thirteen weeks preceding the injury was $792.83. Based upon this assertion the claimant was paid compensation benefits at the maximum compensation rate of $130 per week until May 4, 1983. At the hearing, the deputy determined that claimant’s average weekly wage was in fact $124.07, resulting in a corrected compensation rate of $74.44. This finding has not been appealed by the claimant. The average weekly wage in turn was calculated by determining claimant’s gross receipts, less deductions for thirteen weeks prior to the injury; to which sum was added an increase in equity in the tractor (payments toward the principal amount of a loan on the tractor/trailer), less expenses for the operation of the tractor for the thirteen weeks prior to the injury, upon which sum the average weekly wage was determined.

The e/c had no available means in its possession for calculating claimant’s average weekly wage without resort to claimant's records, which were not furnished to it until shortly before the hearing. Its difficulty in ascertaining claimant’s correct wages accordingly affords a reasonable basis for the deputy’s determination that the carrier should be permitted to reduce future payments to $37.22, or one-half the proper compensation rate until the past overpayments were recovered.

Affirmed.

JOANOS and NIMMONS, JJ., concur.


text:
    Eloy BRITO, Jorge Castellon & Norberto Gonzalez, Appellants, v. The STATE of Florida, Appellee.
    Nos. 82-2332, 82-2337.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Bennett Brummer, Public Defender and James D. Keegan and Stuart H. Gitlitz and Julio E. Jiminez, Sp. Asst. Public Defenders, John H. Lipinski, Miami, for appellants.

      Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The trial court denied the defendants the opportunity to be present in the courtroom when it examined a court witness, notwithstanding the fact that counsel for the defendants had requested their presence and the state had indicated no objection.

We find this error. Francis v. State, 413 So.2d 1175 (Fla.1982); State v. Basiliere, 353 So.2d 820 (Fla.1978); Chapman v. State, 302 So.2d 136 (Fla. 2d DCA 1974); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1005, 39 L.Ed.2d 347 (1974); Fla.R.Crim.P. 3.180(a). Therefore the adjudications and sentences thereon be añd the same are hereby reversed and this cause is remanded for a new trial as to all appellants.

Reversed and remanded.

      . Defense counsel may have initially waived their right to cross-examination and the presence of the defendants at the time the trial court viewed the witness, but any such waiver was emphatically withdrawn when the court commenced an extensive examination of the witness, which went beyond merely viewing the witness, which was the initial reason for having her present.


text:
    George J. SHAMAS, Michael J. Shamas and Rebecca Kreed Shamas, Appellants, v. Dorothea E. RITTER, Personal Representative of the Estate of Helen V. Curry, Deceased, Appellee.
    No. 84-188.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 11, 1984.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellants.
    McDonald & McDonald and David McDonald, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. In Re Estate of Whitehead, 287 So.2d 9 (Fla.1973); In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971); In Re Gleason’s Estate, 74 So.2d 360 (Fla.1954); In Re Estate of Freedman, 340 So.2d 1275 (Fla. 3d DCA 1977).


text:
    INVERSIONES BRINDISI, S.A., Appellant, v. John E. O’CONNOR, Jr., Philip J. Chastain, Marion F. Sellick, T.J. Morrison, Elizabeth Morrison, Esten A. Ulmer, Benedict Harrow, and W.J. McLeod, Jr., Appellees.
    No. 84-503.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 12, 1984.

      Paul, Landy, Beiley & Harper and Barry D. Hunter, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Jeffrey R. Surlas and Richard M. Bezold, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed on the authority of the

universal [rule] that where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered. Blumenthal v. United States, D.C.S.D.Cal. 1925, 4 F.2d 808; Deppe v. Lufkin, 1 Cir., 1940, 116 F.2d 483; 40 Am.Jur., Payment, § 155, citing many cases.

City of Miami v. Keton, 115 So.2d 547, 551 (Fla.1959); see 39 Fla.Jur.2d Payment and Tender § 42 (1982), and cases and authorities cited.


text:
    Carlos RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1053.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Carlos Ruiz, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from a summary denial of a motion to vacate pursuant to Rule 3.850 Fla.R.Crim.P.

The defendant’s first claim is of ineffective assistance of counsel. This is refuted by the plea colloquy and therefore is without merit. See Knight v. State, 394 So.2d 997 (Fla.1981). The defendant’s second claim is of failure to establish a factual basis for the plea. There is no showing in the record that the state submitted any facts whatsoever to support the plea. The state contends, and we agree, that there was no allegation of prejudice or manifest injustice in this regard, (as shown by the indictment and the defendant’s admissions in a subsequently filed motion to mitigate) thus the trial court will be affirmed. See State v. Kendrick 336 So.2d 353 (Fla.1976); Williams v. State, 316 So.2d 267 (Fla.1975); Fitzpatrick v. State, 414 So.2d 1121 (Fla. 1st DCA 1982). The final point alleged that the defendant pleaded guilty through an interpreter who he did not fully understand and who pleaded him guilty to second degree murder when the interpreter knew the defendant did not intend to plead guilty to second degree murder but intended to plead guilty to manslaughter. While the record of the plea colloquy indicates an interpreter was present there is no indication that he was used and there is nothing to refute this allegation. The state admits this deficiency. This cause is hereby returned to the trial court to attach to its summary denial the records refuting the allegation or to conduct an evidentiary hearing thereon.

Therefore the order under review is reversed and the matter is returned to the trial court to attach to any summary denial the record refuting allegations as they may relate to the understanding of the interpreter or to conduct an evidentiary hearing. Any order entered thereon or thereafter is to be reviewable by a new appeal. Lambert v. State, 446 So.2d 243 (Fla. 1st DCA 1984).

Reversed and remanded with directions.


author: MILLS, Judge.

text:
    Joe W. LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. AT-211.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Joe W. Livingston, pro se, Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the record and considered the parties’ briefs, we find no reversible error.

AFFIRMED.

BOOTH and BARFIELD, JJ., concur.


text:
    James A. HANDY, Sr., Appellant/Cross-appellee, v. GOLDEN GEM GROWERS, INC. and Professional Administrators, Inc., Appellees/Cross-appellants.
    No. AT-353.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.

      James A. Handy, Sr., pro se.
    Robert A. Donahue of Cooper, Rissman, Weisberg & Jeffery, P.A., Orlando, for ap-pellees/cross-appellants.
   MILLS, Judge.

Handy, the claimant in this workers’ compensation action, appealed the deputy commissioner’s order granting in part and denying in part Handy’s claim for medical benefits. The employer/carrier (E/C) cross-appealed. The appeal was dismissed after Handy failed to file a brief. We consider only the cross-appeal and reverse in part.

Handy was the victim of an industrial accident when he fell from a ladder on 29 May 1980. On four occasions during November and December 1982, he went to a hospital emergency room and was treated for problems related to hypertension. Despite the fact that she specifically found no evidence of causal connection between the industrial accident and the hypertension, the deputy required the E/C to pay for these emergency room visits based on her finding that Handy reasonably believed there was a causal connection.

For conditions not readily observable or discoverable without medical examination, proof of causation requires medical testimony based on reasonable medical probability that the injury, or in this case the hypertensive condition, is causally connected to the employment. Osceola County Commissioners v. Hand (Fla. 1st DCA 1984) [9 FLW 1505]; Turner v. Harmon, 438 So.2d 1030 (Fla. 1st DCA 1983); Metric Constructors, Inc. v. Chiles, 429 So.2d 1292 (Fla. 1st DCA 1983). There is no good faith exception to this requirement. A claimant’s reasonable belief that his condition is causally connected to the industrial accident is irrelevant.

That part of the order requiring the E/C to pay for the claimant’s emergency room visits is reversed.

BOOTH and BARFIELD, JJ., concur.


author: JOANOS, Judge.

text:
    VIC POTAMKIN CHEVROLET & Lynn Underwriting, Appellants, v. Israel HERNANDEZ and Division of Workers’ Compensation, Appellees.
    No. AT-389.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    David P. Karcher of Underwood, Gillis, Karcher & Valle, P.A., Miami, for appellants.
    Jerold Feuer, Miami; Sam Bloom of Bloom & Feola, Miami, for appellees.
   ON MOTION FOR REHEARING REGARDING ATTORNEY’S FEES ON APPEAL

JOANOS, Judge.

This court affirmed without written opinion the deputy commissioner’s order awarding an attorney’s fee in the workers’ compensation proceedings held before her. We have also previously denied a motion by claimant for an attorney’s fee for appellate representation. Claimant has moved for rehearing of our denial of the motion for an appellate attorney’s fee. We grant the rehearing, quash our previous order denying an appellate attorney’s fee and hereby award a fee.

The law has been rather uncertain regarding the appropriateness of the award of attorney’s fees for appeal in workers’ compensation cases where the sole issue on appeal pertains to an award of attorney’s fees by a deputy commissioner. This uncertainty has been based in part on the language of § 440.34(2), Florida Statutes (1983), pertaining to attorney’s fees in workers’ compensation cases, which provides:

In awarding a reasonable attorney’s fee, the deputy commissioner shall consider only those benefits to the claimant that the attorney is responsible for securing.

This language has prompted a view that if appellate work does not directly benefit a claimant no fee should be awarded in a case where the attorney’s efforts on appeal were totally directed toward the one issue of whether or not the attorney’s fee awarded by the deputy commissioner should be affirmed. However, we disagree. The language of the provision specifically refers to the “deputy commissioner”. We feel it unreasonable to extend it beyond that level to include an appellate setting like the one at hand. Here, appellant brought this appeal and lost. If appellee’s counsel is not paid through an award by this court, either counsel will go unpaid for appellate efforts or the benefits attained below will be eroded. The problem is further compounded because the appellate representation was performed by a different attorney than the one who successfully represented the claimant before the deputy commissioner. We, therefore, can see no reasonable basis to ignore the following language of § 440.-34(3), Florida Statutes (1977), which was in effect at the date of injury:

(3) If any proceedings are had for review of any claim, award, or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant and shall be paid as the court may direct.

We hold that this provision, although discretionary with the court, permits the award of an attorney’s fee to the prevailing party for appellate representation in workers’ compensation cases even though the sole issue on appeal is the validity of an attorney’s fee award by the deputy commissioner.

We are further guided to this position by this court’s interpretation of § 440.34(5), in Accoa Corp. v. Bird, 418 So.2d 314, 315-316 (Fla. 1st DCA 1982):

It thus appears that section 440.34(5) stands independently of section 440.34(3), which governs the deputies and limits their assessment of carrier-paid fees to certain situations, including instances of bad faith claim handling by carriers. Though the deputies accordingly are limited in their assessment of fees “not to be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing,” section 440.34(3), this Court is not so limited. We are authorized in the exercise of sound discretion to direct that an additional fee for appellate services “be paid as the court may direct.”

In Bird, the deputy, with reference to the statutory schedule, set the attorney’s fee at $77,400, based on evidence of past and discounted future benefits achieved by counsel’s representation. In the instant case, the deputy commissioner examined experts for both parties, reviewed the record, and considered the evidence of benefits achieved by counsel’s representation to be approximately $250,000. The deputy then applied the statutory guidelines in arriving at the $38,250 attorney’s fee. The fee award here, as the court found in Bird, “appears on the evidence to be properly assessed.”

Additional authority for award of attorney’s fees to the prevailing party in a workers’ compensation appeal may be found in Alro Metals v. Pullins, 451 So.2d 1001 (Fla. 1st DCA 1984).

An attorney’s fee in the amount of $2,000 is hereby awarded to claimant’s counsel to be paid by appellants’ for the appellate representation in this case.

SHIVERS and THOMPSON, JJ., concur.


author: PER CURIAM

text:
    Willis P. MILLER and Irene H. Miller, Co-Personal Representatives of the Estate of Linda Miller Goolsby, Deceased, Appellants, v. Richard Wayne JENKINS, Crowbar, Inc., Truck Insurance Exchange, JMH Leasing Company, a partnership consisting of David Hartman, Harry Bruce, Daniel Smith, and Leon DePlessis; and Dalbar, Inc., Appellees.
    No. AW-241.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Ferrin C. Campbell, Sr., Crestview, for appellants.
    G. Miles Davis of Beggs & Lane, Pensacola, for appellees.
   PER CURIAM

AFFIRMED. Brackin v. Boles, 452 So.2d 540 (Fla.1984).

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.


text:
    C.D.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. AW-465.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us on C.D.H.’s brief filed pursuant to Anders v. California, 386 U.S. 788, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the record and the parties’ briefs, we find no reversible error.

AFFIRMED.

BOOTH and BARFIELD, JJ., concur.


author: COBB, Chief Judge.

text:
    Warren J. DOBBS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1537.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

The defendant was convicted and sentenced on three counts of lewd and lascivious assault. We find the trial court’s justification for retention of jurisdiction was stated with individual particularity as required by section 947.16(3)(a), Florida Statutes (1983).

The defendant is correct, however, in his contention that those portions of the sentencing orders retaining jurisdiction of the first one-third of each consecutive sentence are invalid. Section 947.16(3), Florida Statutes (1983) provides that where consecutive sentences are concerned, the court’s retention is limited to one-third of the total of the consecutive sentences imposed, rather than one-third of each consecutive sentence. See Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR RESEN-TENCING.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Michael Keith McINTOSH, Appellant, v. STATE of Florida, Appellee.
    No. 84-52.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

AFFIRMED. See Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: COBB, Chief Judge. COWART, Judge,

text:
    P.R. OF BREVARD COUNTY, INC., d/b/a Shark Lounge, Petitioner, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO and Howard M. Rasmussen, Director, Respondents.
    No. 84-907.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 1984.

      James S. Theriac, III, of Holcomb, Theri-ac, Amari & Roberts, Merritt Island, for petitioner.
    William A. Hatch, of the Dept, of Business Regulation, Tallahassee, for respondents.
   COBB, Chief Judge.

Petitioner, owner of the Shark Lounge, filed a Petition for Writ of Certiorari seeking review of an emergency order by the Division of Alcoholic Beverages and Tobacco suspending the operation of the bar’s liquor license. We treat the petition as an appeal from a non-final administrative order.

The order fails to set forth sufficient facts and reasons for the Division’s finding of an immediate danger to the public welfare necessitating emergency suspension. By this ruling, we do not pass on the merits of the final revocation proceedings. Accordingly, the emergency order of suspension is reversed.

REVERSED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The eight sales of controlled substances made by the bartender and bouncer of the licensee over a period of two and a half months constitutes an adequate factual basis for the emergency administrative order suspending the beverage license in this case and that order should be affirmed as was the order in the case of Gervais, d/b/a Stardust Bar v. Division of Alcoholic Beverages and Tobacco, 438 So.2d 90 (Fla. 2d DCA 1983).

      . § 120.68(1), Fla. Stat. (1983) and Fla.R.App.P. 9.100.


text:
    Irvin Z. MANN and Stanley M. Robbins, Appellants, v. Fritz K. GROLOCK, Frederick H. Wilsen, and State of Florida Department of Professional and Governmental Regulation, Appellees.
    Nos. AO-319 & AT-260.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Thomas C. Valentine of Trawick & Grif-fis, Sarasota, for appellants.
    Jim Smith, Atty. Gen., and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, for appellees Frederick H. Wilsen and State of Fla. Dept, of Professional and Occupational Regulation.
   PER CURIAM.

This cause is before us on appeals, consolidated in this court, from orders of the trial court dismissing various counts of a complaint in tort filed against the Department of Professional Regulation (DPR) and Frederick Wilsen, Attorney for DPR, based on sovereign immunity, and granting summary judgment for Wilsen based on prose-cutorial immunity. After the decision below in Case No. AO-319, this court rendered its opinion in Arney v. Department of Natural Resources, 448 So.2d 1041, (Fla. 1st DCA, 1983), which held that Section 768.28(9)(a), Florida Statutes, would not be applied retroactively to causes of action accruing before the effective date of that provision. In view of the Arney decision, the trial court should not have dismissed the counts of the complaint based on a retroactive application of Section 768.-28(9)(a), Florida Statutes (Supp.1980). However, the trial court correctly determined that prosecutorial immunity applied, relying on the rationale of Mueller v. The Florida Bar, 390 So.2d 449 (Fla. 4th DCA 1980). The trial court correctly held, in pertinent part, as follows:

This Court is of the view that the defendant WILSEN was acting within the scope and course of his employment as a staff attorney for the Florida Real Estate Commission and that his actions in filing and prosecuting the complaint against the plaintiffs were in accordance with the responsibilities imposed upon him by his employment. A review of the deposition of Mr. Wilsen does not indicate that he was acting out of any improper motive. This Court is of the view that the actions of Mr. Wilsen are privileged and that he enjoys prosecutorial immunity based on the rationale set forth in the case of Mueller v. The Florida Bar, 390 So.2d 449, and that therefore the motion for summary judgment should be granted.

Review of the complaint below in the light of Mueller, supra, and the summary-judgment in favor of Wilsen based on pros-ecutorial immunity, mandates affirmance of both the order of dismissal and the summary final judgment.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


text:
    Thomas F. KLOTZ, Appellant, v. SOUTHERN BAKERIES COMPANY, INC. and the Travelers Insurance Company, Appellees.
    No. AV-405.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.

      Sylvan A. Wells, Daytona Beach, for appellant.
    Robert G. Brightman, Orlando, for appel-lee Travelers Ins. Co.
   JOANOS, Judge.

Claimant appeals an order of the deputy commissioner in a workers’ compensation proceeding denying claim for attorney’s fee pursuant to the provisions of Section 440.-34, Florida Statutes (1977). We reverse.

Claimant’s original injury to the low back area, was the result of an industrial accident on February 2, 1970. The original claim for benefits was filed February 11, 1975, and the claimant was accepted by the carrier as totally permanently disabled on April 11, 1977.

The attorney’s fee sought was occasioned by a second injury which was found to be directly related to the prior compensa-ble injury. On February 17,1983, as claimant walked down the street near his home, his legs gave way and he fell hard on his left ankle. As a result of this fall, claimant required hospitalization and surgery on his left ankle.

On March 9, 1983, the treating orthopedic surgeon prepared and mailed a written narrative report of the injury and treatment to the carrier. The hospital and surgical bills were submitted to the carrier also. Initially, each of the bills submitted to the carrier for claimant’s medical care and treatment was stamped “Received” with the date, and stamped “Returned” with a date. A bill submitted to the carrier by the orthopedic surgeon was stamped “Received — March 17, 1983;” “Returned— April 4, 1983;” “Paid — April 12, 1983.” A bill submitted to the carrier by the anesthetist was stamped “Received — March 21, 1983;” “Returned — March 25, 1983;” “Paid — April 12, 1983.” The eight other medical bills were not paid until May 18, 1983, twenty-one days after claimant’s attorney made application for a hearing on the claim.

On April 28, 1983, claimant’s attorney filed an application for a hearing, seeking payment of unpaid medical bills, attorney’s fees and costs. The hearing was scheduled for June 18, 1983. On May 17, 1983, the carrier took claimant’s deposition, and on May 18, 1983, the carrier paid the outstanding medical bills.

On September 19, 1983, a hearing was held on the issue' of claimant’s entitlement to attorney’s fees. The deputy commissioner found that the carrier had actual notice of the medical bills for more than the twenty-one days provided by statute, but denied the claim for attorney’s fees on the ground that the bills were paid within twenty-one days of the filing of the formal claim.

The question here for determination is whether the notice contemplated by the statute was effected when the carrier received the medical reports and bills or whether notice was effected when the application for hearing was filed. The deputy commissioner found that statutory notice was effected on April 28, 1983, with the filing of application for hearing.

This court was called upon to make a similar determination in Latt Maxcy Corp. v. Mann, 393 So.2d 1128 (Fla. 1st DCA 1981). In Latt Maxcy the court held—

that during the 21 day period provided by the statute, the employer has both the right and the duty to make a reasonable investigation regarding the validity of the claim. Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970); Thompson v. W.T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964); Smith v. Dixie Packers, Inc., 384 So.2d 709 (Fla. 1st DCA 1980). Under a reasonable interpretation of Section 440.34(1), the right to investigate must be read in conjunction with the statutory requirement that the employer receive “notice” of a claim. Certainly the legislature intended to give employers a 21 day decision-making period which could be used constructively to arrive at an informed decision. In order for the employer’s right to investigate to have any substance, the employer must know enough about the claim to be able to independently evaluate its validity. Thus, “notice" of a claim for statutory purposes occurs when the employer first receives sufficient information on which it may begin an investigation. (e.s.)

Accord: National Airlines, Inc. v. Wikle, 451 So.2d 908 (Fla. 1st DCA 1984); DiMuro v. Dave's Tile Services, Inc., 409 So.2d 107, 109 (Fla. 1st DCA 1982); Massey v. North American Biologicals, 397 So.2d 341, 343 (Fla. 1st DCA 1981); Roberts v. Georgia Pacific Corp., 394 So.2d 1093, 1095 (Fla. 1st DCA 1981).

In the case before us the carrier received sufficient information to begin an investigation when the carrier received the narrative medical report prepared by the treating orthopedic surgeon on March 9, 1983. Claimant’s disability was accepted by employer/carrier in 1977, and compensation has been paid continuously since that time. The instant problem concerns the timely payment of medical bills which arose from an injury which was found to be directly related to the original compensable injury. When the carrier received the March 9, 1983, narrative medical report, it had the responsibility to investigate to determine if this injury was causally related to the industrial injury which had rendered claimant permanently totally disabled. The carrier chose to return the medical bills rather than investigate. The carrier continued to vacillate until claimant retained an attorney and the attorney filed an application for a hearing seeking payment of medical bills, attorney’s fees and costs. At that point, the carrier scheduled claimant for deposition. Claimant’s deposition was taken on May 17, 1983. The carrier paid the outstanding medical bills on May 18, 1983— twenty-one days after date of application for a hearing.

We hold that receipt of the narrative medical report was sufficient notice to commence the running of the twenty-one day period. Therefore, the May 18, 1983, payment of medical bills was not timely and the carrier is liable for an attorney’s fee under the provision of Section 440.34(1), Florida Statutes (1977).

REVERSED and REMANDED for determination of the amount of the attorney’s fee.

SMITH and ZEHMER, JJ., concur.

      . Section 440.34(1), Florida Statutes (1977), provides in relevant part:
      440.34 Attorney’s fees; costs; penalty for violations.—
      (1) If the employer or carrier shall file notice of controversy as provided in s. 440.20, shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the claimant shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded a reasonable attorney’s fee of 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the benefits secured, and 15 percent of the remaining amount of the benefits secured, to be approved by the judge of industrial claims, which fee may be paid direct to the attorney for the claimant in a lump sum.


text:
    Shabd Singh KHALSA, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. AS-89.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.

      Shabd Singh Khalsa, appellant, in pro. per.
    Jim Smith, Atty. Gen., and Lorene C. Powell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See DeAngelo v. Strickland, 426 So.2d 1264 (Fla. 1st DCA 1983).

SHIVERS, THOMPSON and ZEHMER, JJ., concur.


text:
    Joyce A. EXON, Appellant, v. STOCKTON, WHATLEY, DAVIN & COMPANY, a corporation, Appellee.
    No. AU-466.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Lacy Mahon, Jr., of Mahon, Mahon & Farley, P.A., Jacksonville, for appellant.
    Patrick D. Coleman and Eric J. Holshouser, of Coffman, Coleman, Henley & Andrews, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. See First Guaranty Corp. v. Palmer Bank & Trust, 405 So.2d 186 (Fla. 2d DCA 1981), First Realty Inv. Corp. v. Gallaher, 345 So.2d 1088 (Fla. 3d DCA 1977), and Caster v. Hennessey, 727 F.2d 1075 (11th Cir.1984).

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Perry Lamar JENKINS, Appellee.
    No. AV-420.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Michael J. Obringer, Asst. State Atty., Live Oak, for appellant.
    Murray M. Wadsworth and William H. Davis, Tallahassee, William R. Slaughter, II, Live Oak, for appellee.
   ERVIN, Chief Judge.

The state appeals from the trial court’s dismissal of four counts of a criminal indictment charging Jenkins, Property Appraiser for Suwannee County, with official misconduct pursuant to Section 839.-25(l)(a), Florida Statutes, for failing to assess back taxes on various parcels of property in contravention of the duty imposed by Section 193.092, Florida Statutes, and Rule 12D-8.06, Florida Administrative Code. The trial court’s action was compelled by finding that section 839.25(l)(a) is facially unconstitutional. We agree and affirm.

Section 839.25 has been subjected to constitutional scrutiny on two prior occasions. The statute as originally enacted in 1977 provided:

839.25 Official Misconduct.—
(1) “Official misconduct” means the commission of one of the following acts by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:
(a) Knowingly refraining, or causing another to refrain, from performing a duty imposed upon him by law; or
(b) Knowingly falsifying, or causing another to falsify, any official record or official document; or
(c) Knowingly violating, or causing another to violate, any statute or lawfully adopted regulation or rule relating to his office.
(2) “Corrupt” means done with knowledge that act is wrongful and with improper motives.
(3) Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

Subsequently, the Florida Supreme Court declared subsection (l)(c) to be facially unconstitutional in that it was susceptible to arbitrary application, stating:

“Official Misconduct” under subsection (c) is keyed into the violation of any statute, rule or regulation, pertaining to the office of the accused, whether they contain criminal penalties themselves or not, and no matter how minor or trivial. And any public servant may commit such misconduct. Public servant is not defined in Chapter 839, but in Chapter 838, a related Chapter, it is defined for purposes of that Chapter as any public officer, agent or governmental employee, whether elected or appointed. Theoretically, then, using this definition an appointed employee could be charged with official misconduct, a felony in the third degree and punishable by up to five years in prison or a fine up to $5,000, for violating a minor agency rule applicable to him, which might carry no penalty of its own.

State v. DeLeo, 356 So.2d 306, 308 (Fla.1978) (footnotes omitted). The constitutionality of subsection (l)(b) was upheld in State v. Riley, 381 So.2d 1359 (Fla.1980). The court found that the language of (b) specifically defined the prohibited conduct such that “those with common intelligence and understanding have sufficient warning of what actions would constitute a violation” and that the danger of arbitrary application was limited to a constitutionally acceptable degree. Id. at 1361.

Comparison of the language of subsection (c), struck down in DeLeo, with (a) at issue here, reveals that (a) is as vague and open to arbitrary and capricious application as (c), if not more so. Subsection (a) goes beyond the limits of (c) to provide for imposition of criminal sanctions for failure to perform duties which need not be related to the office of the accused. Furthermore, the duties addressed in (a) may be those imposed by any source of law, not merely the statutes and rules of (e), found to be overly broad in DeLeo. The vulnerability of such a statute to arbitrary application was noted as follows by the DeLeo court in reference to subsection (c):

The crime defined by the statute, ..., is simply too open-ended to limit prosecuto-rial discretion in any reasonable way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process for political purposes. We find it susceptible to arbitrary application because of its “catchall” nature.

Id. at 308 (footnotes omitted).

Accordingly, we affirm the trial court’s ruling dismissing the counts charging violation of section 839.25(l)(a), having found that statute to be unconstitutional under the due process guarantees of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution.

BOOTH and WENTWORTH, JJ., concur.


text:
    Gideon HINDS, Appellant, v. ORLANDO CONCRETE CONTRACTORS and Reliance Insurance Company, Appellees.
    No. AW-384.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.

      David M. Hammond, Orlando, for appellant.
    Joseph E. Smith, of Ferrara & Smith, Altamonte Springs, for appellees.
   JOANOS, Judge.

Appellant appeals the deputy commissioner’s denial of his claim for temporary total or temporary partial disability or wage loss benefits from January 13, 1983, through October 10, 1983. We reverse in part.

The deputy commissioner denied wage loss benefits for the period January 13, 1983 through October 10, 1983, giving as ground therefor that claimant’s work search was totally inadequate. The record reflects that evidence regarding appellant's work search during September 1983 forward was not considered at the hearing in that the time period for acceptance or rejection of such claim had not run at the date of hearing, i.e., October 10, 1983. Since claim for wage loss benefits for September 1983 through October 10, 1983, was not ripe for adjudication at the October 10, 1983 hearing, that portion of the deputy’s order denying wage loss benefits from September 1983 through October 10, 1983 was improper. Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983); Flesche v. Interstate Warehouse, 411 So.2d 919, 923 n. 7 (Fla. 1st DCA 1982); Ardmore Farms, Inc. v. Squires, 395 So.2d 268, 270 (Fla. 1st DCA 1981).

With regard to the adequacy of appellant’s work search, we do not disturb the deputy commissioner’s findings on this point for absent a clear abuse of discretion a deputy commissioner’s findings of fact will be affirmed. We do note that the deputy commissioner’s written findings should have been more detailed. However, there was competent and substantial evidence in the record to support his conclusions. We do direct that in the future the written findings be set out in more detailed and specific form. If we cannot readily ascertain the evidence supporting the conclusions in an order, we shall not and have not hesitated to disapprove an order. Evans v. Orlando Work Force, 449 So.2d 992 (Fla. 1st DCA 1984), Opinion filed May 15, 1984, citing Mobley v. Fulford Van & Storage, 390 So.2d 426 (Fla. 1st DCA 1980), and Rule 8(b), Florida Workers’ Compensation Rules of Procedure. The record in this case indicates that from January 13, 1983 until July 1983, appellant kept no written record of the employment contacts he made. Further although appellant testified and provided some evidence that during the January to July period he searched for work every month save one, when he was in such a depressed state he could not cope with seeking employment, there was reason for the deputy commissioner to determine from the evidence that appellant’s efforts were not sufficient.

In addition to finding appellant’s work search inadequate, the deputy commissioner also based denial of wage loss benefits on a finding that appellant failed to perform work provided that was within the limitations and restrictions prescribed by the treating physician. There is conflicting evidence in the record with regard to the ability of appellant to perform this work provided by the employer, Orlando Concrete Contractors. Appellant testified that the work provided was beyond his ability to perform, because it caused pain and swelling in his right hand and arm. The treating physician testified that in his opinion, appellant could perform “light work” but he declined to say that the work provided by the employer was within appellant’s capabilities, declaring that he was not qualified to make that judgment. Sharon Paine, Rehabilitation Nurse, testified that she visited the job site and was able to perform herself with one hand the job duties that had been assigned to appellant. Jack McLean, the foreman who assigned duties to appellant, denied that the Rehabilitation Nurse actually performed the tasks. However, the deputy commissioner clearly relied upon the testimony of Paine, in arriving at his conclusion that the work provided was within the limitations and restrictions prescribed for appellant. It was within the discretion of the finder of the facts to make that determination despite evidence to the contrary. Swanigan v. Dobbs House, 442 So.2d 1026, 1027 (Fla. 1st DCA 1983).

We reverse that portion of the order which denied wage loss benefits from September through October 10, 1983, and affirm the denial of wage loss benefits from January 13, 1983 through August 1983.

ERVIN, C.J., and NIMMONS, J., concur.


author: ZEHMER, Judge.

text:
    David Michael SWISHER, Appellant, v. Gareth M. SWISHER, Appellee.
    No. AX-90.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Jerome M. Novey, Tallahassee, for appellant.
    Nachman, Oberdorfer & Barry, P.A., Jacksonville, for appellee.
   ZEHMER, Judge.

David Michael Swisher, on this appeal from the final judgment of dissolution of marriage, contends that the trial court erred in finding that he had no special equity in the marital home and ordering that the proceeds from the sale of the home be divided equally with the appellee, his former wife. The undisputed evidence establishes that appellant paid the down payment on the marital home out of money he had inherited from his grandfather’s estate. The appellee testified that her husband paid $40,000, while appellant contends he paid the full $55,000 down payment. Both contributed equally to the mortgage payments on the home after the purchase.

The trial court’s failure to recognize the husband’s special equity in the marital home under these circumstances is reversible error. Landay v. Landay, 429 So.2d 1197 (Fla.1983). We reverse and remand for a determination of the amount of the down payment paid by appellant from the proceeds of his grandfather’s estate and the entry of judgment awarding appellant a special equity in the marital home in accordance with the formula set forth in Lan-day v. Landay, supra.

REVERSED and REMANDED.

SHIVERS and THOMPSON, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Allie I. ROXY, Appellant, v. Heather Lynn ROXY, a Minor, and Gretchen E. Roxy Bradway, her Mother and Guardian, Appellees.
    No. 83-2242.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1984.
    Edward David Friedman, P.A., Fort Myers, for appellant.
    J. Jeffrey Rice of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellees.
   GRIMES, Acting Chief Judge.

This appeal involves conflicting claims to the proceeds of a group insurance policy on the life of Raymond J. Roxy.

Raymond and Gretchen E. Roxy (Brad-way) were husband and wife and the parents of Heather Lynn Roxy. Raymond and Gretchen were divorced on February 9, 1973. The settlement agreement incorporated into the judgment of dissolution contained a provision which read:

5. The husband acknowledges ownership or [sic] a policy of life insurance through his employer, Harper Bros., and agrees to maintain this policy with the minor child above mentioned as beneficiary thereof so long as the wife shall have custody of such minor child.

At the time of the divorce, Harper Bros., Inc., maintained a group life insurance policy with Travelers Insurance Company under which Raymond was insured for $10,-000. As the years passed Harper Bros, changed its insurer several times, ultimately obtaining a group life insurance policy with Aetna Life Insurance Company which insured Raymond for $20,000. Following the judgment of dissolution, Raymond married Allie I. Roxy and designated her as the beneficiary of his group life insurance policy with Aetna.

Raymond died while Heather Lynn was still a minor. Aetna then filed a suit for interpleader requesting a determination of the conflicting claims to the policy proceeds made by Heather Lynn and Allie. The court ruled for Heather and directed that the policy proceeds be paid to her and her mother.

On appeal, Allie contends that paragraph 5 of the settlement agreement referred only to the existing Travelers Insurance Company policy for $10,000 and does not control the ultimate disposition of the $20,-000 proceeds of the new Aetna policy. As an alternative, she argues that, at the most, Heather Lynn should only be paid a sum equivalent to the amount of child support which Raymond ultimately would have had to pay on behalf of Heather had he lived.

Allie relies primarily upon the ease of Cadore v. Cadore, 67 So.2d 635 (Fla.1953), involving a divorce settlement agreement which provided:

“[T]hat the Defendant is now the insured with the Equitable Life Insurance Company, in the sum of Three Thousand ($3,000.00) Dollars, under Policy No. 9092403, in which policy the plaintiff is the beneficiary, and that upon the execution hereof the defendant will have the beneficiary in said policy changed from Martha Cadore, to Robert Cadore, Dorothy Cadore, and Carol Cadore, being the three children of the respective parties, each child to share equally in the proceeds of said insurance policy.”

67 So.2d at 636-637. By the time Mr. Cadore died he had remarried and named his new wife as the beneficiary of the policy. The supreme court ruled that the second wife rather than the children were entitled to the proceeds of the policy. The court reasoned that paragraph 5 of the property settlement agreement did not constitute a valid gift of the policy and that there was nothing in the policy to preclude the husband from changing beneficiaries. The court deemed it significant that the decedent retained possession of the policy and that the premiums had been paid by the second wife.

As legal precedent, Cadore has not been embraced with enthusiasm. The case has been distinguished so often that it may now reasonably be said that its rationale has been limited to its particular facts. Peckham v. Metropolitan Life Insurance Co., 415 F.2d 312 (10th Cir.1969); Yates v. Yates, 272 F.2d 52 (5th Cir.1959); Vath v. Vath, 432 So.2d 806 (Fla. 1st DCA 1983); Pensyl v. Moore, 415 So.2d 771 (Fla. 3d DCA), petition for review denied, 424 So.2d 762 (Fla.1982); Dixon v. Dixon, 184 So.2d 478 (Fla. 2d DCA 1966), cert. denied, 194 So.2d 897 (Fla.1967).

In Dixon a final decree of divorce ordered the husband “to maintain and keep current with his employment any and all policies on his life, which such policies shall be made payable to the minor child herein.” Despite the fact that the husband later named his brother as the beneficiary of his group life insurance, this court ruled that the minor child was equitably entitled to the proceeds of the policy upon his father’s death. In distinguishing Cadore, this court said:

The Cadore decision, however, does not control in the instant case because of the strikingly different provisions of the stipulation and decree. The decedent here was required “to keep current any and all policies in connection with his employment.” Thus he failed to retain those crucial incidents of ownership and control which the Supreme Court found that the deceased in Cadore had retained. The policies here could not be allowed to lapse (except by the insured’s leaving his employment), and were required to be made and kept payable to his son, James, Jr. This was a continuing obligation. It could not be discharged by making one change of beneficiary; it could not be totally disregarded later by revoking the beneficiary or by any other change. Unlike the Cadore situation, the policy here had no cash or loan value which could have been liquidated by the insured; this insurance was, in effect, a term policy which only became operative upon death. In addition, there was no actual policy ever issued by the carrier, and the only apparent evidence of the policy, the company’s certificate of insurance, was in the possession of the beneficiary’s guardian, rather than in the possession of the deceased as in Cadore.

184 So.2d at 480. We deemed it of no significance that the husband’s employer, as in the instant case, had changed insurance underwriters between the time of the divorce and the date of the husband’s death.

Consistent with the cases cited above, we have no difficulty in once again distinguishing Cadore. Here, Raymond was the beneficiary of group insurance rather than a personal policy which would have had both a loan and a cash value and which could have been assigned. The settlement agreement required Raymond to “maintain” the policy with his daughter as beneficiary, whereas the stipulation in Cadore only called for the husband to change the names of the beneficiaries. While Allie had possession of the group insurance certificate, there is no showing she paid the premiums on the policy. In short, the critical facts upon which Cadore turned are not present in the instant case. We hold that upon Raymond’s death, Heather Lynn became equitably entitled to the proceeds of the Aetna policy.

AFFIRMED.

SCHEB and SCHOONOVER, JJ., concur.

      . No consideration has been given to whether a payment of $10,000 from the Aetna policy to Heather and her mother would satisfy paragraph 5 of the settlement agreement because this argument was not made either here or in the trial court.


author: HURLEY, Judge.

text:
    Linda M. BARON, Appellant, v. Richard D. BARON, Appellee.
    No. 83-1051.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1984.
    James P. O’Flarity of Law Offices of James P. O’Flarity, P.A., Palm Beach, for appellant.
    Robert Springer and Barry E. Krischer of Kohl, Springer, Springer, Mighdoll & Salnick, Palm Springs, for appellee.
   HURLEY, Judge.

Linda M. Baron appeals from a final judgment of dissolution. We reverse on the authority of Overly v. Overly, 66 So.2d 706 (Fla.1953).

On August 12, 1982, the husband, Richard D. Baron, filed a petition for dissolution of marriage in Palm Beach County. Appellant filed an answer and asserted as an affirmative defense the pendency of a divorce action in New Hampshire instituted by her on August 9, 1982. The husband maintains that he was not personally served with process in the New Hampshire proceeding; however, it is undisputed that he made a special appearance through counsel to contest the jurisdiction of the New Hampshire court over him.

The Florida court initially entered an order enjoining the wife from prosecuting her action in New Hampshire, but later modified that mandate by holding that the New Hampshire court had jurisdiction over all issues relating to the parties’ minor child, and that those issues were therefore abated in the Florida proceeding.

On March 9,1983, the wife filed a motion to dismiss the Florida suit on ground that the New Hampshire court had entered a final judgment of divorce in her favor and submitted a certified copy of that judgment to the trial court. The court denied her motion, and on April 19, 1983, entered a final judgment of dissolution holding that the New Hampshire dissolution decree was void because the wife was not a resident of New Hampshire at the time she commenced suit there, and the husband was not personally served with process.

In Overly, supra, the Supreme Court concluded under similar circumstances that a foreign divorce decree was entitled to recognition in Florida under the full faith and credit clause of the Federal Constitution. See also Chicago R.I. & P. Ry. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757 (1926) (irrespective of which aetion or proceeding was first brought, it is the final judgment rendered in one of the courts which becomes conclusive in the other as res judicata). The present case differs from Overly in that the husband in this case did challenge the jurisdiction of the New Hampshire court to entertain the suit against him, but we do not believe this distinction compels a different result. Where a defendant makes a special appearance to challenge the jurisdiction of a court, and the court overrules the objection and determines that it does have jurisdiction, that decision is res judicata and precludes collateral attack on the judgment, even though the ruling may have been erroneous on the facts or law. See 5 Am. Jur.2d Appearance § 4 (1962). An aggrieved defendant must seek reversal in an appellate court of the state involved or, if he is unsuccessful there, in the Supreme Court of the United States. However, he cannot later attack the judgment on jurisdictional grounds if he does not avail himself of those remedies, or if the judgment is affirmed, or if the appellate court or the Supreme Court of the United States declines to consider the case. See Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931); see also Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966 (1917). There is no indication in the record that the husband in this case ever attempted to appeal the New Hampshire court’s determination of jurisdiction through the appropriate channels.

Thus, we hold that the trial court erred by entertaining the husband’s challenge to the jurisdiction of the New Hampshire court over his person in the absence of something on the face of the record disclosing the invalidity of the New Hampshire decree. See Gaylord v. Gaylord, 45 So.2d 507 (Fla.1950). Under the full faith and credit clause of the Federal Constitution, the trial court should have accorded res judicata effect to the New Hampshire decree which was entered prior to the final judgment in the Florida proceeding.

Accordingly, the judgment appealed from is reversed.

REVERSED.

WALDEN, J„ and NORRIS, WILLIAM A., Jr., Associate Judge, concur.

      . We also believe that the trial court erred in the first instance as a matter of comity by refusing to decline jurisdiction in deference to the prior and concurrent jurisdiction of the New Hampshire Court. See Gratz v. Gratz, 137 Fla. 709, 188 So. 580 (1939) (applying principle of priority to case involving courts of soverign jurisdictions); Greene v. Greene, 432 So.2d 62 (Fla. 3d DCA 1983); Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982), pet. for review dismissed, 427 So.2d 736 (Fla.1983). See also Four Seasons Solar Products Corp. v. Solarium Products of Fla., Inc., 122 Misc.2d 60, 469 N.Y.S.2d 896 (N.Y. Sup. 1983); Murphy v. Murphy, 404 N.E.2d 69, 380 Mass. 454 (1980).


text:
    Stan Richard BEATTY, Petitioner, v. STATE of Florida, Respondent.
    No. AZ-260.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    Stan Richard Beatty, pro se.
    Jim Smith, Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Mandamus/Prohibition is DENIED.

MILLS, BOOTH and BARFIELD, JJ., concur.


author: RYDER, Chief Judge.

text:
    CANAL INSURANCE COMPANY, Appellant, v. Celia GIESENSCHLAG and Milton Giesenschlag, her husband, Appellees.
    No. 83-2310.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.

      Gary E. Garbis, P.A., North Miami, for appellant.
    C. Robert Murray, Jr. of Mitchell, Harris, Canning, Murray & Usich, P.A., Miami, for appellees.
   RYDER, Chief Judge.

Appellees, Celia and Milton Giesenschlag, sued appellant, Canal Insurance Company (Canal), sole insurer of Yellow Cab of Naples (Yellow Cab), for declaratory relief, alleging that Celia Giesenschlag was injured when struck by a vehicle owned by Yellow Cab. At the time of the accident, Canal insured Yellow Cab in the amount of $25,000.00 per accident and $50,000.00 per occurrence. City of Naples Ordinance No. 1138, in effect at the time, provided in pertinent part:

No taxicab license shall be issued or continued in operation in the City unless there is in full force and effect an indemnity bond for each vehicle authorized in the amount of fifty thousand dollars ($50,000) for bodily injury to any one person: in the amount of one hundred thousand dollars ($100,000) for injuries to more than one person which are sustained in the same accident and in the amount of twenty thousand dollars ($20,-000) for property damage sustained in one accident. Said bond or bonds shall inure to the benefit of any person who shall be injured or who shall sustain damage to the property proximately caused by the negligence of the holder, his servants or agents. A copy of said bond or bonds shall be filed in the office of the City Clerk and shall have as a surety thereon a surety company authorized to do business in the State of Florida.
A taxicab owner may file in lieu of bonds or bond, a liability insurance policy issued by an insurance company authorized to do business in the State of Florida. Said policy shall conform to the provisions of the section relating to bonds.

The ordinance also provided that owners and drivers of taxis were both responsible for violating any part of the ordinance.

The Giesenschlags contended that by law the ordinance was incorporated into Canal’s policy insuring Yellow Cab and Canal failed to comply with its legal duty when it issued the policy providing lesser coverage than the ordinance required. The circuit court entered summary judgment for appellees and reformed the insurance policy to provide coverage in the amounts required by the ordinance. Canal appeals from that order. We reverse.

A basic rule in constructing statutes or ordinances is that words are to be given their plain meaning. Citizens of State v. Public Service Commission, 425 So.2d 534 (Fla.1982); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982); City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980). Ordinance No. 1138 plainly applies only to taxicab owners and drivers and not to insurance companies. The ordinance requires taxicab owners to have certain amounts of insurance as a prerequisite to obtaining or continuing a license to operate within the City of Naples. The ordinance does not require insurance companies to write policies in certain minimum amounts when insuring taxicab owners.

Unless restricted by statute or public policy, insurance companies have the same right as individuals to limit their liability and impose conditions upon their obligations. Reliance Mutual Life Insurance Company of Illinois v. Booher, 166 So.2d 222 (Fla. 2d DCA 1964); Zipperer v. State Farm Mutual Automobile Insurance Co., 254 F.2d 853 (5th Cir.1958). There is no dispute that the policy in question complied with section 324.021, Florida Statutes (1979), which required insurance in the amount of $10,000.00 per person and $20,-000.00 per occurrence. Therefore, the trial judge erred in reforming the policy.

Appellant also argues that Ordinance No. 1138 is an invalid attempt by the City of Naples to regulate the insurance industry. Considering again the plain language of the ordinance, it does not attempt to regulate the insurance industry but only regulates the taxicab industry in Naples. Our holding makes it unnecessary to consider Canal’s other points on appeal.

The summary judgment entered for ap-pellees is reversed and the trial judge is directed to enter a summary judgment in favor of appellant, Canal Insurance Company.

REVERSED and REMANDED with instructions.

HOBSON and GRIMES, JJ., concur.


author: OTT, Judge.

text:
    Derrick Tyrone SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-2588.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

This case involves the review of a sentence imposed outside the recommended guidelines. We hold that the reasons stated by the trial judge provided an adequate basis for sentencing appellant above the recommended range.

Appellant pled guilty to an armed robbery which occurred March 21, 1983. Sentencing took place on November 29, 1983, and pursuant to section 921.001(4)(a), Florida Statutes (1983), appellant affirmatively elected to be sentenced under the guidelines. Appellant’s recommended sentence under the guidelines was five and one-half to seven years. The court decided to depart from the guidelines and sentenced appellant to life in prison. At the sentencing hearing, the court stated the following reasons for departure:

The reason for the departure from the guidelines are that the defendant used force, more than was necessary to commit the particular offense. He actually struck the victim and the victim was not offered any resistance of any kind. The victim had a gun at his head and pointed at him, and this was more force than necessary by the elements of the crime. Secondly, it appears that the defendant is indeed a murderer, a first-degree murderer, and his life still has been such up to this point that I see no reasonable opportunity to rehabilitation. And the indication is that his patterns are set and I look at him as an individual, I think, this is an appropriate sentence in view of the murder previously committed.

The first-degree murder referred to by the court was committed approximately twelve hours prior to the armed robbery. A jury conviction was obtained, and immediately subsequent to sentencing for the armed robbery the court imposed the death penalty for the first-degree murder.

Appellant first argues that the court’s written reasons for departing from the guidelines, required by Florida Rule of Criminal Procedure 3.701(d)(ll), are unintelligible. This argument is of no moment. We believe the oral reasons which appear in the transcript of the sentencing hearing are sufficient for purposes of the rule. See Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984).

Appellant next contends that because the amount of force used is a factor relating to the instant offense rule 3.701(d)(ll) prohibits the court from using it as a reason for departure. In Weems v. State, 451 So.2d 1027 at 1029, n. 5 (Fla. 2d DCA 1984), this court quoted from a memorandum of the Sentencing Guidelines Commission explaining rule 3.701(d)(ll):

The Commission has intended that this language be understood to provide that reasons for deviating from the guidelines shall not include arrests or charges relating to the instant offense for which convictions have not been obtained ....

We conclude that the rule does not prohibit the court from considering aggravating circumstances and actions of the accused in the commission of the offense, including the amount of force used as a basis for departure from the guidelines.

Finally, we hold that appellant’s commission of an earlier capital felony may be considered as an additional reason for departure. Capital felonies are not sentenced according to the guidelines. § 921.-001, Fla.Stat. (1983). Rule 3.988 does not provide a means of scoring a capital felony as an additional offense at conviction. The fact that a capital felony cannot be considered in calculating the applicable sentencing range does not mean it cannot be considered by the court as a reason for departing from the guidelines. See Weems.

The stated reasons provided an adequate basis for sentencing appellant above the recommended guidelines range.

AFFIRMED.

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

      . Rule 3.701(d)(ll) has been amended to further clarify the Commission’s intent. The Florida Bar: Amendment to Rule of Criminal Procedure (3.701, 3988-Sentencing Guidelines), 451 So.2d 824 (Fla.1984).

      . It appears that the first-degree murder conviction was scored as a life felony for purposes of the “additional offense at conviction" portion of the scoresheet. This scoring fails to take into account that a capital felony was committed.


text:
    Orlando MORA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2457.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We reject the defendant’s contention that his claim of self-defense was established as a matter of law. E.g., Darty v. State, 161 So.2d 864 (Fla. 2d DCA 1964), cert. denied, 168 So.2d 147 (Fla.1964). Accordingly, the convictions for second degree-murder and attempted second degree-murder under review are affirmed. The sentences are modified, however, to the extent only of providing that the three-year minimum mandatory provisions imposed pursuant to Sec. 775.087(2), Fla.Stat. (1981) shall be served concurrently rather than consecutively. Palmer v. State, 438 So.2d 1 (Fla.1983); Parson v. State, 450 So.2d 924 (Fla. 4th DCA 1984); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984).

Affirmed as modified.