author: ZEHMER, Judge.

text:
    NATIONAL AIRLINES, INC., employer, and Travelers Insurance Company, carrier, Appellants, v. James H. WIKLE, employee, and Division of Workers’ Compensation, Appellees.
    No. AO-470.
    District Court of Appeal of Florida, First District.
    June 1, 1984.
    Rehearing Denied July 17, 1984.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Joseph C. Segor, Miami, for appellee.
   ZEHMER, Judge.

The employer and carrier appeal the deputy commissioner’s order separately assessing two fees for the services of claimant’s attorney under section 440.34, Florida Statutes (1977). The first fee, $2,154, was awarded on the ground that the employer and carrier did not timely pay, within twenty-one days after notice, claimant’s claim for permanent partial disability benefits. The second fee, $5,642, was awarded on the ground that the carrier unsuccessfully resisted the payment of compensation by pursuing, in claimant’s circuit court damages suit against a third party involving the same accidental injury, its claim of lien for benefits paid and to be paid. We affirm the first fee and reverse the second.

Two bones in claimant’s leg were badly fractured in December 1977 when a fellow employee of National Airlines ran into him while operating a small motor vehicle called a “tug.” The carrier accepted the injury as compensable and provided appropriate benefits, in a timely fashion, down to the point of this controversy. Sometime in 1980, claimant reached maximum medical improvement and was entitled to permanent partial disability benefits under chapter 440. The benefits paid included medical and hospitalization costs for an open reduction and internal fixation of the tibia, with bone grafting, and for surgical removal of the plate in January 1980. The carrier also paid temporary total disability benefits intermittently when National Airlines was not paying claimant his regular salary either for actual work or pursuant to National’s policy of continuing the salaries of injured workers. Temporary total disability benefits were last paid in April 1979. After the fixation plate was removed, claimant returned to work on January 30, 1980, and the carrier was so advised. As far as this record shows, claimant has worked since then without interruption on account of his injury.

The deputy predicated the first fee awarded, $2,154, on a finding that the carrier did not timely begin payment of permanent disability benefits “within twenty-one (21) days after the Claimant reached maximum medical improvement.” The deputy was undoubtedly relying upon section 440.-34(1), Florida Statutes (1977), which states:

If the employer or carrier ... shall decline to pay a claim on or before the 21st day after they have notice of same ... 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....

The only claim form actually filed in this case is of little consequence in our review of the award. The claim form itself is not a part of this record, but it is characterized in the record without objection as being of the “shotgun” variety, which we interpret as meaning that it claimed, in general terms, permanent disability benefits along with various other benefits. Moreover, that claim form was filed sometime in 1978, two years before claimant conceivably became entitled to the permanent disability benefits which the carrier began paying July 28, 1980, retroactively to June 7, 1980.

Nor is there an issue here of whether, in the language of section 440.34(1), “claimant ... employed an attorney at law in the successful prosecution of the claim.” Appellants do not here argue that, as a predicate for a fee award under the 1977 statute, claimant must show that his claim for permanent disability benefits unpaid for twenty-one days after “notice” was thereafter “successfully prosecuted” or paid in consequence of claimant’s employment of an attorney. See, City of Miami Beach v. Schiffman, 144 So.2d 799, 803-804 (Fla. 1962); Paul Smith Construction Co. v. Florida Industrial Commission, 93 So.2d 735 (Fla.1957); Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 637 (Fla. 1980). We intimate no view on that question.

The question here is simply whether the carrier’s commencement of 40% permanent partial disability benefits on July 28, 1980, was more than twenty-one days late. That is to be determined not by reference to the 1978 filing of a form which no one argues claimed permanent disability benefits contemporaneously thought to be due, but by reference to some subsequent notice or event of which the carrier had or should have had knowledge, indicating that the claim was then considered mature. See, Massey v. North American Biologicals, 397 So.2d 341, 343 (Fla. 1st DCA 1981); Latt Maxcy Corp. v. Mann, 393 So.2d 1128, 1131 (Fla. 1st DCA 1981); Roberts v. Georgia-Pacific Corp., 394 So.2d 1093 (Fla. 1st DCA 1981). In Latt Maxcy Corp. v. Mann, supra, the purpose of the twenty-one day period was described in the following language:

The mere filing of a claim will not operate as notice, however, if the claim itself does not contain sufficient information to enable the employer to initiate an investigation. Gulfstar, Inc. v. Gordon, IRC Order 2-3267 (1977); Central Heating & Air Conditioning v. Harrison, IRC Order 2-3242 (1977). This result follows logically from the recognition 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, 1980 FLW 1067 (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.

393 Só.2d at 1131. The critical consideration is, therefore, to be centered on evidence showing when the employer had sufficient knowledge to begin its investigation.

The twenty-one day period cannot, under the deputy’s findings, have commenced running adversely to the carrier upon the carrier’s actual receipt of Dr. Nadler’s written report that claimant had recovered to a condition of “approximately 35-40% of this extremity.” That report, dated June 6, 1980, and based upon the doctor’s examination of claimant on that date, was not received by the carrier until July 24, and the carrier’s payments began four days later.

The deputy appears to have considered that the twenty-one day period began running no later than June 6, 1980, the date on which Dr. Nadler examined claimant, determined that he had reached maximum medical improvement, estimated his permanent disability rating, and, we assume, prepared his report bearing that date. Dr. Nadler’s examination of claimant that day resulted from the carrier’s May 21 letter to the doctor, which, after briefly reciting the claimant’s surgical history and the fact that claimant “returned to work for National Airlines, Inc. on January 30, 1980 in the same capacity as a servicer in the aircraft service department,” made the following request:

I would appreciate it if you would drop me a note regarding in your medical opinion whether Mr. Wikle has reached so called maximum medical improvement, and if so, if you could estimate the amount of permanent partial disability Mr. Wikle will suffer from his injury of 12/22/77, to his right leg. (Emphasis added.)

In respect to these circumstances, the deputy found:

Travelers’ failure to timely pay the permanent partial disability compensation was, at best, the result of a communication problem between it and Dr. Nadler and does not excuse Travelers’ responsibility to institute payment of the permanent partial disability compensation within twenty-one (21) days after the Claimant reached maximum medical improvement.

Since there is competent evidence to support this finding, and since the deputy did not erroneously apply the wrong rule of law, we affirm the award of this fee. Without visiting on the carrier or the claimant any obligation toward clairvoyance, the statute limits the carrier’s right to delay payment of permanent benefits under a pending claim, premature but never dismissed, to precisely twenty-one days after it is perfected by actual or imputed notice of facts (overtly determined in some discoverable fashion) which could, by due diligence, have been discovered. On May 21, the carrier had knowledge of sufficient information to conclude that claimant’s “shotgun” claim for permanent partial disability benefits had matured to the point that further investigation thereof was necessary. This is shown by its letter requesting Dr. Nadler to “estimate the amount of permanent disability” which now exists, not whether any permanent disability exists. As a consequence of this investigative effort, Dr. Nadler determined on June 6, 1980, that claimant had reached maximum medical improvement, suffering a 35% to 40% permanent disability of his extremity, and he prepared his report based on this determination. Although the carrier’s date stamp undisputedly shows receipt of that report on July 24, 1980, the carrier must nevertheless bear the responsibility for this delay in receipt of information prepared well within the twenty-one day period in response to its appropriate inquiry, at least insofar as the determination of the right to attorney’s fees. This physician had been approved by the carrier to treat the claimant and requested by it to estimate the extent of claimant’s permanent disability. The consequent breakdown in communication resulted in part from the carrier’s failure to follow through on its request, and responsibility for such breakdown is, therefore, fairly and properly placed on the carrier rather than the claimant.

The Supreme Court decision in Lehigh Portland Cement Co. v. Branch, .319 So.2d 13 (Fla.1975), appears to be closely on point, but it is not. In that case, the Court expressly found that there was no proof that the physician determined the extent of disability on the date of examination rather than six weeks later when the report was prepared and transmitted to the carrier (Id., at 14, n. 1). That absence of proof is a materially distinguishing fact from this case, where the proof supported a finding that the disability was determined at the time of examination.

We hold, therefore, that the carrier had sufficient knowledge of the maturity of claimant’s claim for permanent injury at least by May 21 to commence the running of the twenty-one day period and, thus, affirm the award of the first fee.

The deputy’s stated basis for awarding the second fee, assessed at $5,642, is that claimant’s attorney “obtained a benefit” to claimant by negotiations leading to Travelers’ waiver of its claim of lien on account of workers’ compensation benefits paid and to be paid, which the carrier had previously filed in claimant’s circuit court damage suit against the third party. National, which appeared or was joined as the individual defendant’s employer and indem-nitor, eventually paid claimant $165,000 in settlement of that suit.

The deputy’s order recites that “Travelers had not intended as of the time that the trial started to voluntarily give up its right of recovery and had not given up this right until it was requested by Claimant’s counsel as part of the third party settlement.” When claimant and National, in order to settle the damage suit, induced Travelers to waive its lien on the settlement proceeds, claimant of course received more net recovery after payment of his lawyer’s $66,000 contingent fee. Had Travelers not waived its subrogation rights, the deputy estimated, a recovery or jury verdict of some $22,-000 more than the settlement amount would have been necessary to produce, net to claimant, the same recovery. For this additional benefit to claimant, the deputy reasoned, an additional fee of $5,462 was payable by Travelers to claimant’s attorney.

Though the deputy’s order is devoid of citations to authority for this award, claimant defends the award as having been made under section 440.34(1), Florida Statutes (1977), for the carrier’s having “unsuccessfully resisted] the payment of compensation.” This view of the statute, however, is inconsistent with pertinent appellate decisions.

Whatever may be a claimant’s chapter 440 entitlement to attorney’s fees for defeating a carrier’s motion to modify a circuit court’s equitable distribution order and successfully defending against the carrier’s subsequent appeal, Ohio Casualty Group v. Parrish, 350 So.2d 466, 469-70 (Fla. 1977), nothing in section 440.34(1) can be read as deterring a carrier from filing a legitimate statutory claim of lien in a pending third-party damage suit pursuant to section 440.39, Florida Statutes (1977), let alone as penalizing the carrier for waiving part or all of that lien as part of a settlement by which the employer avoids further potential liability as an indemnitor. Claimant correctly points out, in response to Travelers’ arguments, that decisions doubting the circuit court’s power to award a fee in ordinary equitable distribution proceedings are beside the point. Compare, Orange County v. Sealy, 412 So.2d 25 (Fla. 5th DCA 1982); State, Dept. of Health and Rehabilitative Services v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981), and Edmondson v. Swope, 395 So.2d 553 (Fla. 5th DCA 1981), with Eight v. Capeletti Bros., 384 So.2d 1302,1303 (Fla. 4th DCA 1980) (a fee conceded). For the reasons discussed below, we decline to extend Parrish further than it requires, certainly not to the circumstances here; and claimant has offered no other pertinent authority.

Section 440.34, Florida Statutes (1977), the statutory authority for awarding attorney’s fees, provides in relevant part:

(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% of the first $5,000 of the amount of the benefits secured, 20% of the next $5,000 of the amount of the benefits secured, and 15% 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.
(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.

In Ohio Casualty Group v. Parrish, supra, the carrier moved the circuit court to modify an equitable distribution order based upon a subsequent change in the workers’ compensation statute. That court ruled it lacked jurisdiction over the subject matter because the previous equitable distribution order had been affirmed on appeal. The district court of appeal affirmed the ruling on this jurisdictional point and ordered the carrier to pay the claimant an attorney’s fee for the services of his attorney in the appellate court. The Supreme Court granted certiorari and quashed the district court’s opinion on the jurisdictional issue, but affirmed the appellate court’s attorney’s fee award. Construing the language of section 440.34, Florida Statutes (1975), which is substantially similar to that quoted above from the 1977 version of that section, the opinion states:

The statute specifically authorizes an award of attorney’s fees if the employer or carrier “shall otherwise resist unsuccessfully the payment of compensation.” By filing a motion to modify the equitable distribution order, petitioner was essentially resisting payment of compensation by attempting to both deprive respondent of prospective payments and recover half of all benefits paid after October 1, 1974. The language of Section 440.34, Florida Statutes (1975), articulates the policy that the claimant should not be required to pay his own legal fees in attempting to retain past benefits paid or future benefits already determined to be forthcoming. Furthermore, the proceedings in the district court involved review of the equitable distribution award.

350 So.2d at 470.

Parrish did not reach the question of authorizing a deputy commissioner to award a fee to claimant’s attorney for successfully negotiating the carrier’s waiver of its lien for equitable distribution in the circuit court proceeding. Parrish must be read as approving the award of attorney’s fees to a successful claimant for appellate review of the trial court’s order declining to modify the equitable distribution previously ordered and, in light of the Supreme Court’s later decision in Caravasios v. M.W. Spates Construction Co., 441 So.2d 1070 (Fla.1984), nothing more.

In Caravasios, the insured claimant suffered a compensable injury in 1975 and recovered a substantial verdict against the third-party tort feasor in an action in circuit court. The workers’ compensation carrier moved for its statutory share pursuant to a notice of lien filed under section 440.-39(3)(a), Florida Statutes (1975), and was awarded 50% of all monies it had paid, including penalties and interest, and 50% of future benefits to be paid. The claimant’s request for attorney’s fees for successfully resisting part of the lien in circuit court was denied. The district court of appeal affirmed the denial of attorney’s fees for services in the circuit court, but reversed that portion awarding the carrier reimbursement for penalties and interest and granted claimant’s counsel an appellate fee under the authority of Ohio Casualty Group v. Parrish, supra. The Supreme Court, reviewing the district court’s decision, again construed the language of section 440.34, Florida Statutes (1975), stating:

The plain language of the statute provides for an award of attorney’s fees in two, and only two, situations: (1) In an original proceeding to compel carrier to render benefits due on a valid claim, the judge of industrial claims has power to award attorney’s fees. (2) If any appeal is taken from a claim, award or compensation order, the appellate court may grant attorney’s fees in connection with that appeal. The rule of statutory construction inclusio unius est exclusio al-terius clearly demonstrates that the award of attorney's fees is not authorized for trial proceedings such as the one now before us.
The case law on this point is consistent with the plain language of the statute. In State ex rel. Hartford Accident & Indemnity Co. v. Johnson, 118 So.2d 223 (Fla.1959), this Court construed a virtually identical predecessor to this statute as allowing awards of attorney’s fees only for proceedings before the Industrial Commission or for appellate proceedings seeking review of a claim, award or compensation order. Johnson had brought an original proceeding in circuit court seeking a rule nisi directing the carrier to show cause why the award made by the Industrial Commission should not be paid. Because the proceeding was original in the circuit court, not appellate, Johnson was not entitled to recover attorney’s fees.
Nor is Ohio Casualty Group v. Parrish in any way contradictory of this construction of the statute. There the carrier sought to review an existing equitable distribution order to modify it to conform with a new version of the workers’ compensation law. Such review is expressly contemplated as triggering the potential award of attorney’s fees.
[2] In Universal Engineering Corp. v. Cartier [380 So.2d 1160 (Fla. 3d DCA 1980) ] the Third District Court of Appeal correctly summarized the statute and case law: “Thus, only a judge of industrial claims may award attorney’s fees in an original proceeding. A court may award a fee only where it reviews a claim.” (Emphasis in original.)
[3] There is no question that Caravasios is entitled to recover attorney’s fees for the appeal of the equitable distribution order. It is equally clear that, under the statute, she is not entitled to attorney’s fees for the original proceedings in the trial court.

441 So.2d at 1071-72.

The Supreme Court’s decisions make it abundantly clear that the statutory language of section 440.34 authorizes an award of attorney’s fees only in the two situations described. We do not view the services of claimant’s attorney in negotiating the carrier’s waiver of lien filed in the circuit court action as services involved “in an original proceeding to compel carrier to render benefits due on a valid claim.” Ca-ravasios, 441 So.2d at 1071. That claim of lien was not before the deputy commissioner “in an original proceeding to compel carrier to render benefits due on a valid claim,” Id.., but was pending in an original proceeding filed in circuit court against the third party tort feasor and National as indemnitor to recover damages, a portion of which the carrier had a statutory right to receive. The deputy commissioner did not have jurisdiction to apportion those damages between the claimant and the carrier; that matter was solely within the province of the court. The claimant’s attorney received a contingent fee of $66,000 for his services in obtaining claimant’s recovery as a result of that circuit court action. His services in obtaining the waiver of lien were necessarily incident to complete settlement of the circuit court action and were not incurred in a proceeding for benefits pending before the deputy commissioner. Since Caravasios unequivocally holds that, “under the statute,” claimant “is not entitled to attorney’s fees for the original proceedings in the trial court,” 441 So.2d at 1072, we do not believe the statute can reasonably be construed as authorizing claimant to nevertheless perfect such a right by circuitously filing a claim therefor with the deputy commissioner.

Accordingly, that portion of the deputy’s order awarding a second, attorney’s fee for the services of claimant’s attorney in negotiating a waiver of the carrier’s lien is reversed.

AFFIRMED in part and REVERSED in part.

SMITH and WENTWORTH, JJ., concur.

      . § 440.39, Fla.Stat. (1977).


source: Caselaw Access Project

license: Public Domain

text:
    Loretta CARPENTER, Appellant, v. Marshall O. CARPENTER, Appellee.
    No. AU-310.
    District Court of Appeal of Florida, First District.
    June 1, 1984.

      G. James Roark, III, Pensacola, for appellant.
    Richard E. Scherling of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee.
   ZEHMER, Judge.

Appellant, Loretta Carpenter, raises four issues on this appeal from a final judgment dissolving her marriage to appellee, Marshall 0. Carpenter. We reverse on the first issue and do not reach the remaining three issues.

This action was commenced on November 9, 1982, with appellee husband’s filing of a petition for dissolution of marriage. In January 1983, the ease was set for trial on April 18. During their twenty-six year marriage, the parties had accumulated extensive and varied property interests claimed to exceed $2,000,000 in value, and discovery concerning these property interests was conducted with varying degrees of success. On March 30, 1983, the wife filed a motion for continuance, asserting insufficient time to complete discovery of assets in the husband’s name. This motion was denied. On April 6, the husband was granted leave to file an amended petition, in which he included a request for a special equity in certain marital properties. The wife was directed to answer by April 15. On the evening of April 14, the Thursday before the final hearing scheduled for the 18th, the husband notified appellant of an expert witness who would testify on his behalf and the husband’s counsel told the wife’s counsel the subject of this new expert’s testimony. On the following day, the wife filed a motion for continuance, reciting, inter alia, that she had just been made aware of appellee’s new expert witness and that she needed additional time to complete discovery and properly prepare her case for trial. The trial court again denied her motion, and the final hearing was held, as scheduled, on April 18 and 19. On appeal, appellant contends that the trial court abused its discretion in denying her last motion for continuance.

The record reflects a few problems by both sides in obtaining complete discovery, but considering the magnitude of the marital property involved, no critical problems became readily identifiable until after the husband, less than two weeks before trial, filed his amended petition requesting that the court recognize certain special equities in the marital property. On March 30, the husband had responded to interrogatories and named all expert witnesses who would testify for him, and appellant’s counsel obtained discovery of such experts. One working day prior to trial, appellee identified another expert and represented that this expert would testify to certain financial matters in the range of $40,000, but the wife was unable to obtain any meaningful discovery of this witness. At trial, the expert’s testimony was offered in support of the claimed special equities, and it varied materially from the amounts previously represented. Appellant’s counsel objected on grounds of insufficient notice and opportunity to obtain discovery, as well as misrepresentation of the witness’s testimony; but the objections were overruled, and the testimony was received in evidence. Although reciting consideration of the special equities of the parties, the final judgment did not identify the extent or amount thereof with respect to the equitable distribution made of the properties. We cannot assume that evidence on this issue received over objection was nevertheless disregarded by the trial court and had no material bearing on its decision.

We recognize that the granting of a continuance is within the sound discretion of the trial court and that its decision should not be interfered with on appeal absent an abuse of discretion. Diaz v. Diaz, 258 So.2d 37 (Fla. 3d DCA 1972). Special circumstances, however, may require a continuance where there has not been sufficient time to complete discovery and properly prepare for trial and where the continuance causes no substantial prejudice or injustice to the opposing party. See, Stanley v. Bellis, 311 So.2d 393 (Fla. 4th DCA 1975). On the record before us, we find no indication that granting the wife’s motion for continuance would have so prejudiced the husband. On the peculiar facts of this case, including the injection of new issues shortly before trial and running in a new expert witness to testify on such issue at the last minute without adequate opportunity for discovery, we conclude that the court below abused its discretion in denying appellant’s motion for continuance. The judgment is reversed and the case remanded for further proceedings.

REVERSED and REMANDED.

ERVIN, C.J., and THOMPSON, J., concur.


text:
    Ralph WILEY, II, and Homer F. Ratliff, Dependable Insurance Company, Appellants, v. STATE of Florida, Appellee.
    No. AU-333.
    District Court of Appeal of Florida, First District.
    June 1, 1984.
    Rehearing Denied June 28, 1984.

      Barry L. Zisser of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellants.
    Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Dependable Insurance Company and its agent, Homer F. Ratliff (hereinafter referred to as the surety), appeal the circuit court’s refusal to vacate a final judgment of forfeiture of an appearance bond on which they were obligated as surety. The question presented is whether an order vacating forfeiture for failure to give the surety timely notice of when the defendant had to appear, as required by section 903.-26(l)(b), Florida Statutes (1979), operated as a matter of law, by virtue of section 903.31, to cancel the bond and release the surety from further obligation thereon, notwithstanding an express reservation in the order that the surety was not relieved of liability pursuant to the bond. We affirm.

On October 4, 1976, Ralph Wiley was charged with the criminal offense of possession and sale of marijuana. Two days later, Wiley, as principal, and Ratliff and Dependable Insurance Company, as surety, executed an appearance bond in the amount of $25,000, and Wiley was released from custody. On January 5, 1977, Wiley failed to answer a call in open court, a capias was issued, and the bond was revoked. The court did not act on Wiley’s failure to appear until March 31, 1980, over three years later, when it entered an order of forfeiture (hereafter referred to as the first order of forfeiture). Shortly thereafter, the surety moved to vacate and set aside this order on several grounds: that the surety did not receive timely notice that the defendant was to appear January 5, 1977, as required by section 903.26(l)(b); that it did not receive notice of the March 1980 hearing on forfeiture of the bond; and that it did not receive a copy of the order of forfeiture until sixteen days after its entry. More than a year later, on September 11, 1981, the court granted the surety’s motion and vacated the order of forfeiture, specifically providing that “the surety is expressly not relieved of liability pursuant to the provisions of its bond dated on or about the sixth day of October, 1976.” Shortly thereafter, the surety filed a second motion contending that vacation of the order of forfeiture entitled the surety to cancellation and release from liability on the bond as a matter of law. No action was taken on this motion.

In late March 1983, Wiley again failed to appear pursuant to proper notice, and two days later a second order of forfeiture was entered. On April 12, 1983, the surety moved to set aside this second order and to have the surety discharged on the ground that it was entitled to have the bond can-celled by reason of the September 11, 1981, order vacating the first order of forfeiture. On June 15, 1983, that motion was denied and the forfeiture was reduced to final judgment against Wiley and the surety. On June 27, 1983, the surety moved to vacate the final judgment on grounds that it was not in accordance with section 903.-26, et seq., Florida Statutes (1981), and that the surety had been prejudiced by the six and one-half years delay between the date of the original bond and the entry of final judgment. No supporting affidavits or other evidence was filed or submitted in support of this motion, and it was denied. Shortly thereafter, the surety moved for reconsideration of its motion to vacate, this time filing the affidavit of an agent for the surety stating the state’s delay in prosecuting for six and one-half years between the execution of the bond and the entry of final judgment had prejudiced the surety because it made the task of locating defendant Wiley more difficult. This motion for reconsideration was also denied after the surety had perfected this appeal.

The applicable statute in effect in January 1977, when the defendant first failed to appear, was- section 903.26, Florida Statutes (1975), which states:

(1) A bail bond shall not be forfeited unless:
(b) The clerk of court gave the surety at least seventy-two hours notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant....
(2) If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited. The forfeiture shall be paid within thirty days.

Section 903.27, Florida Statutes (1975), states that if the forfeiture is not paid or discharged within thirty days the state attorney shall file a copy of the forfeiture order with the clerk, who shall thereupon enter the judgment against the surety and furnish the surety company a copy of the judgment within ten days. That statute also gives the surety forty-five days within which to file a motion to set aside the forfeiture judgment “for reasonable cause shown.”

In addition to the above provisions, section 903.31, Florida Statutes (1979), which was in effect in 1980 when the first order of forfeiture was entered, states:

When the conditions of a bond have been satisfied or the forfeiture discharged or remitted, the court shall order the bond cancelled. Conviction or acquittal of the defendant will satisfy a bond unless the court otherwise provides in the judgment.

In 1977, section 903.26(2), Florida Statutes (1977), was amended by adding the requirement that, when declaring a bond forfeited, the court also “shall notify the surety agent and surety company in writing within seventy-two hours of said forfeiture.” This statute was in effect in 1980 when the trial court entered the first order of forfeiture based on Wiley’s failure to appear in January 1977. There was no such statutory obligation in 1977.

All of the above provisions were in effect when the surety filed its motion in April 1980 to set aside the first order of forfeiture and in September 1981, when the court granted that motion with the proviso continuing the surety’s liability on the bond.

Appellants argue that the trial court properly vacated the first order of forfeiture because the surety had not been given notice of the hearing, as required by section 903.26(l)(b), but that the trial court erred in ordering that the surety remain liable on the bond rather than cancelling the bond. This argument is based primarily on the language in section 903.31 providing that when a forfeiture has been “discharged or remitted” then “the court shall order the bond cancelled.” The surety contends that since the bond was cancelled by the vacation of the first order of forfeiture the trial court erred in declaring a second forfeiture on the bond in 1983 and in refusing to vacate or set aside the judgment entered thereon. The surety also contends that it was prejudiced by the failure to timely receive notice of the original forfeiture and by the delay between the original undertaking in 1976 and the entry of final judgment in 1983.

Appellants rely primarily on two cases, Resolute Insurance Co. v. State, 269 So.2d 770 (Fla. 3d DCA 1972) [hereinafter referred to as Resolute 7], and Bailey v. State, 282 So.2d 32 (Fla. 1st DCA 1973). In those cases, the appellate court reversed the forfeiture judgments because each was entered without the surety having previously been given notice that defendant should appear, as required by section 903.-26(l)(b), and both opinions directed that the bonds be cancelled. Appellants contend that notice under section 903.26(l)(b) is a condition precedent to the entry of forfeiture, whereas the failure to give notice of estreature, required by section 903.26(2) is not, citing Allied Fidelity Insurance Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982) (hereinafter Allied Fidelity I), and argue that the authorities relied upon by the state are inapplicable for this reason. Appellants also urge that forfeiture statutes must be strictly construed and that use of the word “shall” in section 903.31 is mandatory in meaning and, thus, required the trial court to cancel the bond in this case.

In response, the state concedes that the trial court correctly ordered the original forfeiture vacated and set aside for failure to give the surety the required notice of hearing under section 903.26(l)(b). But, the state argues, the trial court was also correct in specifying that the surety would remain liable on the bond because the order vacating forfeiture simply placed the parties in the same position they were in before the forfeiture was ordered and did not operate as a matter of law to cancel the bond. In addition, the state argues, the surety has failed to show sufficient prejudice to support its discharge or remission on the bond.

The state relies primarily upon Resolute Insurance Co. v. State, 289 So.2d 454 (Fla. 3d DCA 1974) (hereinafter referred to as Resolute II). In that case, the defendant failed to appear for hearing, his bond was forfeited, and a judgment was entered on the forfeiture. The surety moved to vacate that judgment and discharge the surety on the ground that the defendant did not appear because he was incarcerated in jail elsewhere and the trial court granted the motion and vacated the forfeiture judgment. Thereafter, the defendant again failed to appear for trial, and a second order of forfeiture and judgment were entered. The surety moved to vacate this judgment on the ground that the discharge of the first forfeiture operated to cancel the bond. The Third District disagreed, holding that the surety was merely exonerated on its bond during the period of the defendant’s detention because the order vacating the original forfeiture simply restored the parties to their original status, “as if the bail bond had never been forfeited nor the final judgment entered thereon,” and that upon failure to comply thereafter with the terms of the bond a second order of forfeiture may be entered. 289 So.2d at 456. No lack of notice under section 903.-26(l)(b) was involved, and the court did not discuss the application or effect of section 903.31.

In Weaver v. State, 370 So.2d 1236 (Fla. 2d DCA 1979), the Second District had occasion to examine the effect of section 903.-31 with respect to an order vacating a forfeiture for failure to notify the surety in writing within seventy-two hours after the entry of forfeiture, as required by section 903.26(2). The trial court had set aside estreature of the bond on that ground but had specifically provided in its order that the bond should remain in full force and effect, and set another time for the defendant’s appearance. Thereafter, the defendant failed to appear at the second hearing and the bond was again forfeited and the required statutory notice to the surety under section 903.26(2) was given. On appeal, the surety argued that the first order setting aside forfeiture required that the bond be cancelled under section 903.31, but the Second District disagreed. Since the notice required by section 903.26(l)(b) had been timely given, Ramsey v. State, 225 So.2d 182 (Fla. 2d DCA 1969), Bailey v. State, supra, and Resolute I, supra, were expressly distinguished on the ground that these cases “involved situations in which the bondsman had not been given written notice under section 903.26(1) of when the defendant was required to appear.” Id., at 1238. Choosing to follow Resolute II, the court in Weaver concluded:

Despite the absence of specific statutory authority, we hold that the court could properly set aside the forfeiture for failure to comply with section 903.26(2) without cancelling the bond when the bondsman failed to show prejudice. In setting aside the forfeiture but directing that the bond should continue in force, the court simply preserved the status quo and gave appellant another opportunity to secure [defendant’s] appearance. When [defendant] failed to heed the new order to appear, the court properly caused the bond to be forfeited once again.

370 So.2d at 1238.

The state urges that the rationale of Resolute II controls here even though this case involves failure to give notice under section 903.26(l)(b), rather than section 903.26(2). Relying on Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976), wherein the notice to the surety was held insufficient to comply with section 903.26(l)(b) and the case was remanded to the trial court with directions to set aside the forfeiture, the state emphasizes the directive in the opinion that “said bond shall remain in effect.” 331 So.2d at 334. But again we note that neither the reason for this direction nor the impact of section 903.31 was discussed.

We are thus faced with apparently conflicting results between, on the one hand, this court’s decision in Bailey v. State, supra, and the Third District’s decision in Resolute I, supra, and, on the other hand, the Second District’s decision in Caivano v. State, supra. However, because Resolute I expressly declined to reach the applicability and meaning of section 903.31 and neither Bailey nor Caivano discusses section 903.31 or gives any reason for ordering that the bond be cancelled or remain in effect, we do not consider any of these decisions to have addressed and decided the precise question presented here.

Likewise, we do not believe that the decisions in Resolute II, supra, and the cases following it, Weaver and Allied Fidelity I are necessarily dispositive of the question presented here. In Resolute II, the surety’s motion was addressed to the court’s discretion under section 903.27(2), which provides that the court may vacate a judgment of forfeiture for good cause shown. In that case, the defendant’s incarceration in another jail was found to have prevented his appearance at the scheduled time and excused the entry of forfeiture. That ruling was held not to affect the continued validity of the bond. Weaver and Allied Fidelity I involved failure to give notice to the surety after forfeiture pursuant to section 903.26(2). That notice requirement is “intended to accomplish the orderly and prompt conduct of the court’s business and is directory only.” Therefore, it is substantially different in legal effect from the notice of time for appearance required by section 903.26(l)(b). Allied Fidelity I, supra, at 111. This substantial difference is aptly described in that case:

Under Section 903.26, the surety is provided with two separate and distinct notices: the first is a notice to produce the defendant at a time and place certain, see Section 903.26(l)(b), note 1, supra; the second and later notice is to formally advise the surety that it has failed in its duty to produce the defendant and that the bond is thereby forfeited, see § 903.-26(2), supra. The first of these notices, as Section 903.26(1) expressly states (“... bond shall not be forfeited unless” ), is a condition precedent to forfeiture of the bond. The failure to give the surety adequate notice of its obligation to produce the defendant in court invalidates an order of estreature and forfeiture entered against the surety. Estate of Maltie, 404 So.2d 384 (Fla. 4th DCA 1981); Schaefer v. State, 369 So.2d 443 (Fla. 3d DCA 1979); Bailey v. State, 282 So.2d 32 (Fla. 1st DCA 1973); Ramsey v. State, 225 So.2d 182 (Fla. 2d DCA 1969). The second notice, however, advising the surety of the fait accompli of forfeiture, is, definitively, not a condition precedent to forfeiture. Thus, we agree that:
“[I]t would be illogical to conclude that the bondsman and his surety company are automatically relieved of their obligation under the bond in every case simply because of the failure to give the statutory notice of a forfeiture which has already occurred.” Weaver v. State, 370 So.2d 1236, 1237 (Fla. 2d DCA 1979).
and conclude that a failure to comply with the seventy-two hour provision of Section 903.26(2) does not prevent the trial court from entering judgment on the forfeiture.

415 So.2d at 111.

Although none of the decisions discussed above directly address the question presented, they collectively require that the applicable statutory provisions be given a reasonable and logical construction to accomplish the ends intended by the bail bond process. The purpose of a bail bond is assurance that the defendant will appear or be produced by the surety at all scheduled proceedings before the court. Younghans v. State, 90 So.2d 308 (Fla.1956). The bond is simply a three-party contract made by the state, the accused, and the surety, with the surety guaranteeing to the state that the accused will appear at subsequent proceedings. Accredited Assurance & Casualty Co. v. State, 383 So.2d 308 (Fla. 2d DCA 1980). Ordinarily, a bail bond is cancelled when it no longer appears necessary to look to the surety to guarantee the appearance of the accused at subsequent court proceedings on the particular charges covered by the bond. For example, the surety’s liability on the bond is discharged if the defendant’s obligation to appear is terminated by a nol pross of the pending charges. E.g., Allied Fidelity Insurance Co. v. State, 408 So.2d 756 (Fla. 3d DCA 1982) (hereinafter Allied Fidelity II). On the other hand, if the pending charges are merely recast or supplemented by the subsequent filing of an indictment or information, the defendant is not relieved of the obligation to appear and the surety is not discharged on the bond. E.g., Cotton Belt Insurance Co. v. State, 392 So.2d 34 (Fla. 3d DCA 1981). The theory underlying the appearance bond process is that the release of an accused on bond commits him to the exclusive custody of the surety, and any interference by the state with the surety’s right to control of the accused, such as the accused’s rearrest on the same charges, constitutes a substantial breach of the surety contract which discharges the surety. Accredited Surety & Casualty Co. v. State, supra, at 308-309.

The question becomes, then, whether failure to give the surety notice pursuant to section 903.26(l)(b) constitutes a sufficient reason for relieving the surety of its obligation to guarantee the defendant’s appearance at subsequent court proceedings. We are persuaded that whether it does or does not in a given case should be determined by the trial court in the exercise of sound discretion. The state’s failure to comply with section 903.26(l)(b) need not necessarily invalidate the bonding agreement between the state and the surety. While that section precludes the state from obtaining a forfeiture of the bond if the surety is not given notice of when the defendant is required to appear, the state’s failure to comply with this condition precedent does not interfere with the surety’s custody of the accused and does not necessarily affect the surety’s ability to produce the defendant at subsequent proceedings pursuant to reasonable notice to do so. An order vacating or setting aside a forfeiture entered in violation of section 903.26(l)(b) is usually intended to restore the parties to the same position they were in before the forfeiture was improvidently entered and subjects the surety to no higher duty or undertaking than that contemplated in the original agreement.

The provisions of section 903.31 stating that the bond shall be cancelled when the forfeiture is discharged or remitted becomes applicable only when, by reason of a court order or the conduct of the state, it is clearly intended that the defendant be relieved of further obligation to appear in court or that the surety be relieved of any further responsibility for guaranteeing the defendant’s appearance. We do not construe the phrase “forfeiture discharged or remitted” in section 903.31 to encompass an order vacating and setting aside a forfeiture for noncompliance with section 903.26(l)(b) unless the trial court specifically determines to relieve the surety or the defendant of further liability on the bond. Since the trial court’s order in the instant case expressly stated that the surety was not relieved of further compliance with the terms of the bond, that order did not constitute a discharge or remission requiring cancellation of the bond under section 903.31.

We recognize, however, that a surety may be entitled to discharge on its bond if prejudiced by the state’s conduct in failing to comply with the statutory requirements in section 903.26. See, e.g., Weaver v. State, supra; Allied Fidelity I, supra; Ryan v. State, 380 So.2d 539, 540-541 (Fla. 5th DCA 1980); Summit Fidelity Insurance Co. v. State, 166 So.2d 757, 758 (Fla. 1st DCA 1964). The burden, however, is clearly upon the surety to prove such prejudice by competent evidence. In the instant ease, no evidence was submitted in support of the June 27, 1983, motion to vacate the final judgment here appealed. The affidavit filed with the subsequent motion for reconsideration was not timely. Even if it had been timely, the facts recited in the motion and the belatedly filed affidavit are not sufficient to require a finding that the surety was so prejudiced. Mere passage of time does not establish such prejudice; and no other specific facts showing prejudice were set forth. See, Allied Fidelity I, supra; Summit Fidelity & Insurance Co. v. State, supra. We are, therefore, unwilling to conclude that the trial court abused its discretion in refusing to vacate the forfeiture judgment on the ground of prejudice to the surety.

AFFIRMED.

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

      . In chapter 82-175, Laws of Florida, the legislature made extensive revisions to sections 903.26, 903.27, 903.28, and other sections of chapter 903, Florida Statutes, which became effective October 1, 1982, and neither party has referred to these amendments. Since these changes do not materially affect our decision in this case, we need not determine if they should be applicable.

      . Under section 903.26, the surety is provided with two separate and distinct notices: The first is a notice to produce the defendant at a time and place certain; the second, where the surety fails to pay the forfeiture within thirty days and a final judgment is entered, provides that the surety will receive notice of that action.


author: THOMPSON, Judge.

text:
    James E. NALL and Mildred Louise Nall, Appellants, v. James M. RAYBON, et al., Appellees.
    No. AW-96.
    District Court of Appeal of Florida, First District.
    June 1, 1984.
    Dale E. Rice, Crestview, for appellants.
    James E. Moore, Niceville, Daniel C. Campbell, Crestview, for appellees.
   THOMPSON, Judge.

James and Mildred Nall appeal from an order denying their request for reformation of a mortgage cancellation and for foreclosure. We reverse.

Joe and Jo Anne Nall owned a parcel of land, composed of the “Quaker” property and the “Flea Market” property, encumbered by a first mortgage held by the Barnhills and by a second mortgage held by appellants. William Moore bought the “Quaker” property on August 27,1974 subject to the first and second mortgages. The Raybons bought the ‘ Quaker” property from Moore on April 7, 1980. Joe and Jo Anne used the proceeds from the July 24, 1980 sale of the “Flea Market” property to satisfy the first mortgage held by the Barnhills. On this same day the Barnhills signed a “Mortgage Cancellation” as to the first mortgage and the appellants signed a “Mortgage Cancellation” as to the second mortgage. Appellants subsequently sought to reform the “Mortgage Cancellation” they had executed to reflect a cancellation regarding only the “Flea Market” property. Appellants also sought to foreclose on the “Quaker” property.

It is clear from the testimony of appellants and of Joe Nall that they intended a cancellation as to only the “Flea Market” property. The execution of the cancellation as to both the “Quaker” and “Flea Market” properties was therefore a mutual mistake, such that appellants are entitled to reformation so long as the rights of any bona fide and innocent purchasers will not be prejudiced. See Burleson v. Brogdon, 364 So.2d 491 (Fla. 1st DCA 1978); Hardaway Timber Co. v. Hansford, 245 So.2d 911 (Fla. 1st DCA 1971). There is no evidence that the requested reformation would in any way prejudice the rights of any bona fide and innocent purchasers or injure the rights of any intervening parties. Accordingly, the trial court erred in denying reformation.

We reverse and remand with instructions for the trial court to reform the July 24, 1980 cancellation executed by appellants to reflect a cancellation as to only the “Flea Market” property, and for further proceedings consistent with this opinion.

NIMMONS and BARFIELD, JJ., concur.


author: PER CURIAM.

text:
    Jessie Mae HARRIS, Petitioner, v. The LEWIS STATE BANK, a Florida Banking Corporation, Respondent.
    No. AW-462.
    District Court of Appeal of Florida, First District.
    June 1, 1984.
    Samuel T. Adams, Panama City, for petitioner.
    Guyte P. McCord, III, MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for respondent.
   PER CURIAM.

The motion to dismiss the petition for writ of certiorari is denied. The petition for writ of certiorari is granted in part. The lower court’s order of December 12, 1983 denying petitioner’s motion for leave to amend is quashed insofar as it denies leave to add counts stating causes of action in negligence and fraud and deceit. With regard to that portion of the motion seeking to re-state a cause of action in malicious prosecution, the petition is denied and the order affirmed. The cause is remanded for entry of an order granting the motion for leave to amend the complaint in a manner consistent with this order.

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

      . This petition was granted by order dated April 19, 1984. This opinion follows.


author: WIGGINTON, Judge.

text:
    William E. WHITLEY, Appellant, v. PHIL-NICK’S, INC., a Florida Corporation, d/b/a Phil-Nick’s A Good Place to Eat, Appellee.
    No. AY-137.
    District Court of Appeal of Florida, First District.
    June 1, 1984.
    Beverly W. Silverman of Silverman & Silverman, P.A., Gainesville, for appellant.
    Charles B. Carter of Jones & Langdon, P.A., Gainesville, for appellee.
   WIGGINTON, Judge.

Whitley petitions for writ of common law certiorari seeking review of a circuit court order dismissing the action for lack of subject matter jurisdiction and directing transfer of the action to the Ala-chua County Court. This Court has jurisdiction to review by certiorari the ruling of the trial court dismissing the cause for lack of jurisdiction. Thibadeau v. Santini Bros., Inc., 315 So.2d 550 (Fla.4th DCA 1975).

Whitley, a practicing attorney in Gainesville, purchased a sandwich from Phil-Nick’s A Good Place to Eat, a local restaurant, and took the sandwich to his office where he immediately consumed it. Within one and one-half hours Whitley began feeling ill and experienced the onset of nausea, vomiting and lower abdominal cramps followed by frequent watery stools. The apparent interitis worsened and Whitley required hospitalization at Alachua General Hospital. He entered on a stretcher and continued to vomit and excrete feces in the emergency room before numerous persons while awaiting admission. The alleged food poisoning episode lasted approximately two days and caused Whitley to encounter pain and suffering, repeated nausea and vomiting, diarrhea, acute abdominal cramps, dehydration, hyperventilation and muscle spasms.

Petitioner’s complaint sought a trial by jury and damages in excess of $5,000 as a result of Phil-Nick’s negligence causing Whitley to suffer “pain and anguish, mental anxiety, embarrassment and humiliation,” to undergo hospital and medical treatment, and to incur the resulting related expenses.

The trial court granted Phil-Nick’s motion to dismiss the complaint for lack of jurisdiction based on the pleadings and discovery establishing only $1,254 of actual damages, leaving $3,746 in damages for the embarrassment and suffering inflicted upon Whitley, which remaining sum Phil-Nick’s argues could not and would not be awarded by a jury. Thus, according to Phil-Nick’s, the $5,000 claim could not possibly have been made in good faith. In response, Whitley, through legal counsel, filed his own “good faith” affidavit reaffirming the allegations and the requested damages set forth in the complaint previously filed by his attorney.

Where jurisdiction is dependent on the amount involved in the case, the question turns not upon the amount claimed or the amount actually recoverable; instead, the test is whether the amount was claimed and put into controversy in good faith. Amira v. Vineberg, 144 So.2d 94 (Fla.3d DCA 1962) and PTS of Gainesville, Inc. v. Olivetti Corporation of America, 334 So.2d 324 (Fla.1st DCA 1976).

In Amira the district court found that:

The circuit judge’s estimate of the recoverable damages may be more accurate than that of the plaintiff; nevertheless the test ... is the amount claimed in good faith by the plaintiff.

Id., at 95. The appellate court reversed by concluding that the record did not support the trial judge’s finding that the plaintiff, who sought damages after fracturing both wrists, could not in good faith claim damages in excess of $5,000.

Whitley’s position is that he suffered pain, embarrassment and humiliation due to Phil-Nick’s negligence and seeks damages to be determined by a jury. There is no question but that such damages are awardable in an action such as this. 17 Fla.Jur.2d, Damages, §§ 85-88. His knowledge of the actual losses coupled with his estimate of speculative damages that may be awarded by a jury, supported by a sworn affidavit based on Whitley’s experience and belief as a lawyer must be accepted as a sufficient showing of good faith to meet the jurisdictional requirement.

This Court affirmed a lower court’s denial of a motion to dismiss for lack of subject matter jurisdiction in PTS of Gainesville, involving two separate breach of contract claims and attorney’s fees, holding that:

Although the trial court only awarded $400 in attorney’s fees, appellant made no showing that appellee did not in good faith claim attorney’s fees that would bring the larger of the two separate breach of contract claims within the jurisdiction of the circuit court.

At 325.

Confronted by Whitley’s good faith estimate of his claim, we find no record evidence of Phil-Nick’s showing bad faith on Whitley’s part, but instead, mere speculation as to the maximum a jury might award. Unless Whitley were to be limited to his actual damages of $1,254, which he is not, then it is the jury’s province and duty to determine, if any, the dollar award that may be due Whitley, unrestricted by the established jurisdictional limitation of the county court.

This record and applicable law does not support the trial court’s finding that Whitley could not in good faith claim damages in excess of $5,000. Accordingly, the writ is granted and the order transferring the cause to the county court in and for Ala-chua County, Florida, is quashed with directions to reinstate the cause in the circuit court.

It is so ordered.

SMITH and JOANOS, JJ., concur.


author: FERGUSON, Judge.

text:
    Mordechai MANGEL, Appellant, v. CITY NATIONAL BANK OF MIAMI, a National Banking Association, Appellee.
    No. 83-2021.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    John H. Lipinski, Miami, Jeffrey M. Ha-gen, Coral Gables, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bruce Charles King, Miami, for appellee.
    Before NESBITT and FERGUSON, JJ., and TILLMAN PEARSON (Ret.), Associate Judge.
   FERGUSON, Judge.

This appeal is from an order of the trial court which granted a “Motion for Judgment in Accordance with the Motion for Directed Verdict” or “in the alternative if for any reason [that judgment] is not affirmed upon an Appellate review,” a Motion for New Trial.

City National Bank of Miami instituted this action against Mangel for default on two promissory notes totalling $77,000, and for fraud based on Mangel’s representations that the diamonds pledged as collateral had a value in excess of $77,000 when in fact the collateral consisted of worthless glass facsimilies. Mangel counterclaimed, alleging that the stones given as collateral for the loan were in fact diamonds, in place of which Bank employees had substituted glass.

A jury returned a verdict for the Bank on its claim against Mangel for $107,790.92 including interest, which verdict is not appealed. On Mangel’s counterclaim against the Bank, the jury returned a verdict for $200,000. The verdict on the counterclaim is the subject of this appeal. We reverse the judgment in accordance with the motion for directed verdict and affirm the order granting a new trial.

It is only in the absence of any evidence or reasonable inferences supportive of the position of the nonmoving party that a trial court is authorized to direct a verdict. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981). Although the evidence was reasonably susceptible to inferences other than those drawn by the jury, there was some evidence to support the verdict on the counterclaim. A directed verdict was therefore improper.

An order granting a new trial may be reviewed to ascertain whether there is a detectable abuse of discretion. Russo v. Clark, 147 So.2d 1 (Fla.1962). However, “[o]ne attacking such an order has a heavy burden to make error to appear in the exercise of the broad discretion allowed the judge who has presided at the trial, and who has had direct, personal contact with the presentation of the case as it unfolded at the trial level.” Hendricks, 208 So.2d at 103. We have examined the court’s findings in support of the order, as well as the relevant facts as they appear in the record, and find no abuse of discretion in the grant of a new trial.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . The order states in pertinent part:
      ... The New Trial is granted for reasons including but not limited to the following: that the jury verdict was contrary to the manifest weight of the evidence presented; that the verdict was based on a misconception of the evidence and a misapplication of the law; that the verdict was arrived at through prejudice, passion, bias, or other improper influence; and that the jury was misled by the force and credibility of the evidence. The Counterdefendant [sic] failed to sustain his burden of proving conversion in that he failed to prove ownership of diamonds valued in an amount related to the jury verdict and failed to prove that the Counterdefendant wrongfully deprived him of said diamonds. The jury was also swayed by conduct of the BANK which did not establish conversion and consequently their verdict did not follow the law of the case.


text:
    Harold J. SHEPPARD, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 83-2042.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Anthony J. Scremin and Richard G. Bart-mon, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and William L. Petros and Kenneth B. Drucker, Asst. County Attys., for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fisher v. Payne, 93 Fla. 1085, 113 So. 378 (1927); O’Brien v. Food Fair Stores, North Dade, Inc., 155 So.2d 836 (Fla. 3d DCA 1963).


text:
    Robert RAGEN and Virginia E. Ragen, Appellants, v. Morton S. BAUM and William D. Kovacs, Appellees.
    No. 83-2081.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    S. Melvin Apotheker, Miami, for appellants.
    Greenfield and Duval and Leo Greenfield, North Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Delray Beach Whitehouse Apts., Inc. v. Hoffmann, 257 So.2d 550, 552 (Fla.1972); Glave v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967).


text:
    SABATES OPTICAL SERVICES, INC., and J. Sabates & Sons, Inc., Appellants, v. INTERCONTINENTAL GROUP, INC., Appellee.
    No. 83-2131.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 11, 1984.
    Hyman & Kaplan and Michael Hyman, Miami, for appellants.
    Papy, Poole, Weissenborn & Papy and Sheridan Weissenborn, Coral Gables, for appellee.
    Before HUBBART and JORGENSON, JJ., and J. TILLMAN PEARSON (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975); Spears v. West Coast Builders’ Supply Co., 101 Fla. 980, 133 So. 97 (1931); Mossi v. Fuenzalida, 422 So.2d 971 (Fla. 3d DCA 1982); Southeast Aluminum Supply Corp. v. Plastics North American, Inc., 413 So.2d 440 (Fla. 3d DCA 1982).


text:
    The STATE of Florida, Appellant, v. Vicki A. ISMER and James Archer Smith Hospital, Appellees.
    No. 83-2764.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Jim Smith, Atty. Gen., and Penny H. Brill and Calianne Lantz, Asst. Attys. Gen., for appellant.
    Blackwell, Walker, Gray, Powers, Flich & Hoehl and James E. Tribble, Tobin, Bayer & Jacobson and Allen Jacobson and James C. Blecke, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So.2d 921 (Fla.1984); In Re Guardianship of Barry, 445 So.2d 365 (Fla. 2d DCA 1984).


text:
    MAR-CHAR ENTERPRISES, INC., etc., et al., Appellants, v. CHARLIE’S THE LAKES RESTAURANT, INC., et al., Appellees.
    No. 83-2862.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 11, 1984.
    Paul J. Kneski, Hialeah, for appellants.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Since the record demonstrates without dispute that the parties to the instant sale of a restaurant labored under a mutual mistake concerning the availability and transferability of a full-scale liquor license for the premises which was material, indeed vital, to the transaction, we hold that the trial court erred in denying the appellant-purchasers’ prayer for rescission of the agreement. Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So.2d 614 (Fla.2d DCA 1965), cert. denied, 180 So.2d 656 (Fla.1965); see, Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (1927); 9 Fla.Jur.2d Cancellation Reformation and Rescission § 29 (1979). The judgment below is therefore reversed and the cause remanded for further proceedings consistent herewith.

      . The appellee-sellers claim that the foreclosure of a first purchase-money mortgage on the property, upon which they were the mortgagors (they took back a second purchase-money mortgage in the transaction involved in this case), precludes rescission on the theory that the status quo cannot be restored. See 9 Fla.Jur.2d Cancellation Reformation and Rescission § 34 (1979). In the light, however, of the fact that the original seller and first purchase-money mortgagee, reacquired possession and title at the foreclosure sale, and of the trial court's ability to order an accounting and fashion other ancillary remedies if necessary, we find no merit in this contention. See O’Donnell v. Novak, 183 So.2d 884 (Fla.3d DCA 1966); Janeczek v. Embry, 330 So.2d 837 (Fla.3d DCA 1976); Pirrello v. Poulter, 354 So.2d 468 (Fla.3d DCA 1978); compare, Smith v. Chopman, 135 So.2d 438 (Fla.2d DCA 1961).


text:
    Michael SIMS and Marijo Marsh, a/k/a Marijo Gordon, Appellant, v. Donald SUTTON, Jr., Appellee.
    No. 84-332.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Jerome R. Schechter, Fort Lauderdale, for appellant.
    Mandina & Ginsberg and Mark Ginsberg, Hollywood, for appellee.
    Before HUBBART and FERGUSON, JJ., and TILLMAN PEARSON (Ret.), Associate Judge.
   PER CURIAM.

A plaintiff seeking to subject a nonresident defendant to the jurisdiction of the court via a long-arm statute does not satisfy the requirement of Section 48.193(l)(g), Florida Statutes (1983) by alleging facts which show only a possibility of jurisdiction. In the face of a meritorious challenge by way of a motion to quash service of process and abate for lack of personal jurisdiction, supported by affidavits, the plaintiff has to prove jurisdiction over the person by opposing affidavits, testimony or documents. Investors Associates, Inc. v. Moss, 441 So.2d 1144 (Fla.3d DCA 1983); Hyco Manufacturing Co. v. Rotex International Corp., 355 So.2d 471 (Fla.3d DCA 1978).

Reversed and remanded with directions to dismiss.


author: SCHWARTZ, Chief Judge. BARKDULL, Judge,

text:
    TRANSPORTES AEREOS MERCANTILES PANAMERICANOS, S.A., Appellant, v. BANCO CAFETERO, Appellee.
    No. 84-1096.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied June 19, 1984.
    Paul, Landy, Beiley & Harper and Richard E. Brodsky, Miami, for appellant.
    Kelley, Drye & Warren and Merrill Stone and Gilbert A. Samberg, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

The trial court denied a motion to dissolve a writ of attachment of a cargo aircraft for the payment of an admittedly due debt owed by the defendant carrier to the plaintiff, a Colombian bank. We reverse on the holding that the sole statutory grounds asserted to justify the attachment, that the debtor “[i]s actually removing” or “[i]s about to remove his property out of the state,” Sec. 76.04(2)(3), Fla.Stat. (1983), do not apply when, as in this case in which the plane is being regularly flown between Miami and Colombia, the property is transported outside the state only in the ordinary course of a business which involves its prospective, regular return to this jurisdiction. Haber v. Nassitts, 12 Fla. 589 (1868), citing with approval Russell v. Wilson, 18 La. 367, holding that under a statute which “authorized an attachment where ‘the debtor is about to remove his property out of the State before the debt becomes due [,] ’... the fact that the defendant was about to remove a steamboat, his property, out of the State, engaged in her regular trips, was not sufficient where there was no fraud or intended fraud. 18 La., 367.” 12 Fla. at 612; see Shelton v. Kindred, 279 So.2d 642 (Miss. 1973); 7 C.J.S. Attachment § 36 (1980)(“The removal contemplated is a permanent taking away and not a mere temporary removal or use of the property by the owner outside of the state.”). In this instance, the very basis for providing the attachment remedy in the first place—to assure the availability of a given asset at the time of final judgment, 7 C.J.S. Attachment § 2a — does not exist since, insofar as the legally pertinent facts show, the plane will be in Florida in due course when that time arrives.

No error has been demonstrated in the separate order denying the motion to dissolve a writ of garnishment. It is therefore affirmed.

Reversed in part, affirmed in part.

BARKDULL, Judge,

dissenting.

I respectfully dissent from so much of the above opinion that reverses the motion to dissolve the writ of attachment.

The plaintiff, Banco, upon filing of the complaint, sought both a writ of attachment and writ of garnishment. The complaint and the affidavit supporting both applications for extraordinary relief allege that there was a debt due Banco of approximately $1,800,000.00. The affidavit further reveals no known real property or other tangible assets belonging to the debt- or in this jurisdiction. The joint affidavit further provided as follows:

“Plaintiff Has Reason to Believe and Does Believe That Defendant Will Not Have In Its Possession, After Execution Is Issued On A Judgment Therein, Visible Property In This State and In This County On Which A Levy Can Be Made Sufficient To Satisfy
The Bank’s Claim,
and
That Defendant Is Actually Removing, and/or Is About To Remove, Its Property Out of The State, and That Defendant Is Actually Removing Itself Beyond The Limits Of This Judicial Circuit In Which It Resides or That Defendant Resides Out of the State of Florida.

The affidavit which was subsequently incorporated into the motions for the respective writs concluded with the following:

WHEREFORE, for the foregoing reasons, plaintiffs motions for a Writ of Attachment and a Writ of Garnishment should be granted forthwith, pursuant to FS §§ 76.01, et seq. and FS §§ 77.01 et seq., respectively, in their entirety, with costs, expenses, and appropriate attorneys’ fees to the plaintiff.

Prior to the issuance of the respective writs, a garnishment/attachment bond in the principal sum of $3,592,881.00 was filed and approved by the clerk. The extraordinary relief sought was pursuant to Chapter 76 and 77 of the Florida Statutes (1983). The first relates to attachment and the second relates to garnishment. Section 76.-04 Florida Statutes (1983) reads as follows:

76.04 Grounds when debt due.— The creditor may have an attachment on a -debt actually due to him by his debtor, when the debtor:
(1) Will fraudulently part with his property before judgment can be obtained against him.
(2) Is actually removing his property out of the state.
(3) Is about to remove his property out of the state.
(4) Resides out of the state.
(5) Is actually moving himself out of the state.
(6) Is about to move himself out of the state.
(7) Is absconding.
(8) Is concealing himself.
(9) Is secreting his property.
(10) Is fraudulently disposing of his property.
(11) Is actually removing himself beyond the limits of the judicial circuit in which he resides.
(12) Is about to remove himself out of the limits of such judicial circuit.

The complaint in this action and the joint affidavit in support of the extraordinary writs assert that the debt of approximately $1,800,000.00 is due and alleges that the debtor is either actually removing its property out of the state or is about to remove its property out of the state. It seems clear to me that not only is the creditor entitled to the writ of garnishment but it is also entitled to the writ of attachment. It has posted a bond for double the amount alleged to be due. The debtor has a right to release the property pursuant to the provisions of Section 76.18 Florida Statutes (1983) upon the posing of a bond, which shall exceed xk of the value of the property. The statutory scheme established by the legislature services both interests. If plaintiff does not actually have a debt due, then there is a bond for double the amount alleged to be due from which the debtor can recover for the wrongful attachment, in this instance, some 372 million dollars. The debtor has a right to secure the release of the attached property upon the posting of a bond, not for the amount of the debt claimed, but only for the value of the property plus 25%, and as aforestated, if the attachment is wrongfully issued it is of no doubt that any costs incident thereto, would be recoverable. The statutory scheme is really very simple. A creditor has a debt due. If he wants to attach an asset of the debtor which is about to be removed from the state, he must post a bond in double the amount claimed. Once the property is attached, the debtor can either leave it to satisfy in whole or part the debt due or seek the return of its property upon the posting of a forthcoming bond which would stand as security in lieu of the attached property. If the creditor is wrong in the first instance he is liable on the attachment bond which is double the amount claimed. If the debtor is wrong and actually owes the money and he posted the forthcoming bond, it will stand to satisfy in whole or in part the debt.

In the instant case the debtor concedes a liability for at least $600,000.00 to the bank and yet offered no proof as to the value of the asset attached. The opinion of the majority, in effect, overlooks the admission of the debt due and the substantial bond posted by the creditor herein and the fact that the plaintiff-creditor has met all the statutory conditions entitling it to the writ of attachment. Fraud is not a necessary factor of the statutory right to an attachment in this state when the debt is due. See Section 76.04(2)(3) Florida Statutes (1983).

The majority has written an exception into the statute for goods which may be returned from the foreign jurisdiction to this state. If such an exception is to be made a part of our statutes, it should be done by the legislature, not by judicial fiat. I would affirm the denial of the motion to dissolve the writ of attachment as well as the denial of the motion to dissolve the writ of garnishment.

      . We review the order by non-final appeal pursuant to Fla.R.App.P. 9.130(a)(3)(C)(ii).


text:
    Charles C. CHILLINGWORTH, Appellant/cross-appellee, v. Vanette A. CHILLINGWORTH, Appellee/cross-appellant.
    No. 82-1423.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Rehearing Denied July 13, 1984.

      Charles C. Chillingworth, pro se.
    Martin L. Haines, III, of Haines and D’Angio, North Palm Beach, for appel-lee/cross-appellant.
   PER CURIAM.

This was a bitter, protracted, emotional dissolution of marriage case that deserves to be finally laid to rest. We shall undertake to do so.

1. There is no error in the trial court’s modification of rehabilitative alimony to lump sum alimony some three years after entry of final judgment when the Wife’s petition therefor was filed seven months after judgment and before the expiration of the rehabilitative payments. Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981). This is particularly true where the three year space was attributable to a torturously delayed child custody dispute, continuances, and the unavailability of the judge originally assigned to the case.

2. There is no error in the trial court’s modification of alimony from rehabilitative to lump sum, particularly in view of the compelling circumstance of this case. Drainville v. Drainville, 427 So.2d 1095 (Fla. 1st DCA 1983); Wolfe v. Wolfe, 424 So.2d 32, 35 (Fla. 4th DCA 1982); Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975); Section 61.08(1), Florida Statutes (1977).

3. The Husband complains that no pleading supports an award of lump sum alimony. This is without merit. Nusbaum v. Nusbaum, 386 So.2d 1294 (Fla. 4th DCA 1980).

4.As to the remaining points, we affirm upon authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Upon consideration of all points, authorities submitted, and arguments, the appealed order is

AFFIRMED.

BERANEK, DELL and WALDEN, JJ., concur.


text:
    LAWNWOOD MEDICAL CENTER, INC., Petitioner, v. Antonio V. HERNANDEZ, M.D., Antonio V. Hernandez, M.D., P.A., Respondent.
    No. 83-513.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Rehearing Denied July 5, 1984.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for petitioner.
    Douglas E. Gonano, Fort Pierce, and R.M. Bernhardt, Atlanta, Ga., for respondent.
   PER CURIAM.

We grant the Petition for The Common Law Writ of Certiorari filed by Lawnwood Medical Center, Inc., upon authority of Holly v. Auld, 450 So.2d 217 (Fla.1984). The subject order dated February 28, 1983, entitled Order on Objection of Defendant, Lawnwood Medical Center, to Plaintiffs First Request for Production of Documents is quashed.

Certiorari Granted.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Barbara JONES, Appellant, v. Julius JONES, Appellee.
    No. 83-739.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Rehearing Denied July 19, 1984.
    James F. Simpson, West Palm Beach, and Amy Shield Levine of Levine & Levine, Boca Raton, for appellant.
    C. Michael Shalloway of Lesser, Daniels & Shalloway, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The wife appeals from a final judgment of dissolution contending that the trial court erred by failing to grant her a special equity interest in the marital home. We agree and reverse.

The parties were married in February, 1978, and separated in March, 1981. Trial testimony showed that the wife bought a house for $26,950 under a contract for deed in 1973. Her parents took title to the home because of her inability to obtain credit, and assisted her in making a down payment of $1,500.

In October, 1978, the wife’s parents transferred their equity interest in the home to their daughter and son-in-law. According to the father, the transfer was made to enable his daughter to obtain a more favorable payment schedule by refinancing the home. He testified that while the husband’s credit was needed to obtain the mortgage, the refinancing was not necessary to save the house.

During the marriage the husband assisted in making the monthly mortgage payments and also contributed both labor and funds toward various home improvements. The wife alone has been making mortgage payments since the parties separated in March, 1981. She has also paid $1,200 from her own funds to satisfy a second mortgage the parties assumed to cover closing costs when the home was refinanced.

The critical fact issue relevant to this appeal is whether the wife paid part of the purchase price for the marital home from her separate funds, thereby entitling her to a special equity interest in the marital home. The trial court apparently concluded that the property was not acquired by funds unconnected to the marriage, as it granted partition of the home on the theory that “[o]nly the husband’s credit allowed the home to be saved.” This finding, however, is not supported by substantial competent evidence.

Unrefuted testimony at trial showed that the wife and her family made the down payment on the home, made mortgage payments both before and after the marriage, and paid off the second mortgage without assistance from the husband. The trial court may not ignore such unrebutted testimony. See Ackerly Communications, Inc. v. City of West Palm Beach, 427 So.2d 245 (Fla. 4th DCA 1983). Although the husband testified that he “thought” the family was in danger of losing the property unless they obtained refinancing, the record is devoid of any evidence showing that the husband had personal knowledge of this fact. Consequently, his testimony is nothing more than speculation. Moreover, even if the record contained competent evidence showing that the husband’s credit saved the house, we do not believe that fact would affect the wife’s entitlement to a special equity interest in the home. It is clear that she paid for the home and, therefore, she is entitled to reimbursement for that effort.

Accordingly, we reverse the order granting partition of the home and remand with instructions to enter an order reflecting the wife’s right to an automatic one-half share plus a special equity interest in the home equal to one-half the ratio which her contribution bears to the entire consideration. Landay v. Landay, 429 So.2d 1197 (Fla. 1983); Starcher v. Stancher, 430 So.2d 991 (Fla. 4th DCA 1983).

REVERSED and REMANDED.

LETTS and HURLEY, JJ., and VO-CELLE, L.B., Associate Judge, concur.


text:
    HARTE BILTMORE LIMITED, Appellant/Cross-appellee, v. Henry H. KORN, as Executor of the Estate of George Korn, Deceased, and Martin Stern, et al., Appellees/Cross-appellants.
    No. 83-834.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Rehearing Denied July 10, 1984.
    Kenneth J. Scherer of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appellant/ cross-appellee.
    Shelton Clyatt, Jr., and Kevin F. Richardson of Law Offices of Shelton Clyatt, Jr., P.A., West Palm Beach, for appel-lees/ cross-appellants.
   PER CURIAM.

AFFIRMED. Carlon, Inc. v. Southland Diversified Co., 381 So.2d 291 (Fla. 4th DCA 1980).

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


author: LETTS, Judge.

text:
    Robert MONTY, Appellant, v. Elizabeth B. HAYWARD, Appellee.
    No. 83-1805.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Rehearing Denied July 13, 1984.
    Edward B. Galante of McRoberts, Steger & Galante and Martha C. Warner, Stuart, for appellant.
    Bruce Zeidel of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appellee.
   LETTS, Judge.

Appellant challenges the trial court’s refusal to direct a verdict on the issue of compensatory and punitive damages in a private nuisance case. We affirm the jury verdict finding a private nuisance, but reverse the award of punitive damages.

Punitive damages are given when the wrongful act complained of is characterized by, or partakes of, some circumstance of aggravation, such as willfulness, wantonness, maliciousness, gross negligence or recklessness, oppression, outrageous conduct, deliberate violence, moral turpitude, insult, or fraud. In the absence of some such aggravating circumstances, recovery is limited to the actual damages proved. Brock v. Maine, 293 So.2d 375 (Fla. 4th DCA 1974), cert. denied, 297 So.2d 837 (Fla.1974); Martin v. Young, 443 So.2d 293 (Fla. 3d DCA 1983); McDonough Power Equipment, Inc. v. Brown, 443 So.2d 1050 (Fla. 4th DCA 1984).

Although the record contains competent and substantial evidence that the retaining wall m question constituted a nuisance, the appellee failed to present sufficient evidence that the appellant’s construction of it amounted to the kind of conduct supporting an award of punitive damages. The wall was built in accordance with the South Florida Building Code and was necessitated by the residential construction. Larkin v. Tsavaris, 85 So.2d 731 (Fla.1956) and Barnett First National Bank of Jacksonville v. Buie, 255 So.2d 707 (Fla. 1st DCA 1971). Accordingly, the trial court erred in failing to direct a verdict on the issue of punitive damages.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

HERSEY and WALDEN, JJ., concur.


author: SHIVERS, Judge.

text:
    STATE OF FLORIDA/SUNLAND CENTER and Crawford & Company, Appellants, v. Blanche CAMPBELL, Appellee.
    No. AV-396.
    District Court of Appeal of Florida, First District.
    June 7, 1984.
    Wendell J. Kiser, of Zimmerman, Shuf-field, Kiser & Sutcliffe, Orlando, for appellants.
    George J. Adler, Orlando, for appellee.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeal an order of the deputy commissioner which establishes entitlement to attorney’s fees pursuant to section 440.34(2)(a), Florida Statutes (1979). We affirm.

Appellee injured her low back in a com-pensable industrial accident on September 5, 1979. Subsequently, she was treated for this injury by several physicians. In June 1983, she filed a claim for “additional medical treatment by Dr. Ed Farrar; costs and attorney’s fees.” After a hearing, the deputy commissioner awarded the additional medical treatment in an order dated September 21, 1983. On October 17, 1983, the September order was amended to reflect that the claimant’s attorney was entitled to a fee to be paid by the employer/carrier. The deputy commissioner stated, “I base this conclusion on the fact that claim was made for a change of physicians, and I consider this to be a claim for medical benefits only pursuant to Florida Statute section 440.34(8)(c).” On appeal, the employer/carrier contend that the deputy commissioner erred in finding appellee’s claim for change of treating physician to be a “claim for medical benefits only.”

In Gunn’s Quality Glass & Mirrors v. Strode, 425 So.2d 73 (Fla. 1st DCA 1982), this court discussed the legislative intent underlying section 440.34(2)(a), Florida Statutes (1979):

Although we have been unable to document the specific reasoning employed by the Legislature with respect to section 440.34(2)(a) (now section 440.34(3)(a), Florida Statutes (1981)), we can readily appreciate reasons why recovery of attorney’s fees would be provided for in the case of medical benefits, but not for compensation benefits. One reason is that compensation benefits provide, at least to some extent, a fund from which such fees might be paid, while medical benefits result only in payments to third party medical care providers.

425 So.2d at 76 n. 4. Strode also states that the Legislature intended to make it clear that the employer/carrier are responsible for attorney’s fees when there is no matter in controversy when the claim is filed other than medical benefits. In the instant case, the award of evaluation and treatment by Dr. Farrar, whether denominated a “change of treating physician” or “additional medical treatment,” does not provide a fund from which appellant can pay her attorney but will result only in payments to a medical care provider. We hold that the deputy commissioner correctly found this claim to be one for medical benefits only.

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.

      . The reference to section 440.34(3)(c) appears to lpe a scrivener’s error. Since the date of accident in the instant case is September 5, 1979, the reference should be to section 440.-34(2)(a), Fla.Stat. (1979) (current version at section 440.34(3)(a), Fla.Stat. (1983)).


text:
    NATHAN, KIMBALL, KING & LEVINE, and United States Fidelity & Guaranty Company, Appellants, v. Beatrice MOSS, and the Division of Workers Compensation, Appellees.
    No. AW-229.
    District Court of Appeal of Florida, First District.
    June 7, 1984.

      Jerry V. Wilkey, Coral Gables, for appellants.
    Scott V. Berglund, of Abrams, Suskin & Berglund, North Miami Beach, for appel-lees.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeal two orders of the deputy commissioner. Appellants contend that the deputy commissioner erred in adjudicating the issue of permanent total disability (PTD), in adjudicating the issue of entitlement to attorney’s fees based on bad faith without holding a hearing on that issue, and in finding bad faith. We affirm in part and reverse and remand in part.

Because the employer/carrier began to voluntarily make PTD payments after the first hearing in this case, the employer/carrier contend that the deputy commissioner erred in adjudicating the issue of PTD. We disagree with this contention. PTD was identified as an issue in the pretrial stipulation and the employer/carrier defended against this claim. Nowhere in this record does the employer/carrier stipulate that claimant is PTD. Even if the employer/carrier’s conversion of temporary total disability benefits to PTD benefits after the initial hearing could be interpreted as a stipulation to PTD, the deputy commissioner would still have discretion to include an adjudication of PTD in his order. Fairway Restaurant v. Fair, 425 So.2d 115 (Fla. 1st DCA 1982). Ardmore Farms v. Smith, 423 So.2d 1039 (Fla. 1st DCA 1982), relied upon by appellants, is distinguishable because PTD was never raised as an issue in that case, and the employer/carrier accepted claimant as being PTD prior to the hearing. Therefore, the order of November 14, 1983, awarding, inter alia, PTD benefits, is affirmed.

We agree with appellants, however, that the question of entitlement to attorney’s fees on the basis of bad faith was not specifically litigated as a separate issue as required by section 440.34(3)(b), Florida Statutes (1983). See Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981). The deputy commissioner did comply with that portion of the law, as amended in 1983, which requires a separate order expressly stating the specific findings of fact upon which the determination of bad faith is based, but no separate hearing was conducted litigating the issue of entitlement to attorney’s fees. Although under Embry-Riddle a completely separate hearing is not required, unlike the situation in Embry-Riddle, the employer/ carrier here was not placed on notice at the hearing on the merits that entitlement to attorney’s fees would also be litigated during that hearing. Cf. Closet Maid Cory. v. Wilson, 429 So.2d 419 (Fla. 1st DCA 1983); Jess Parrish Memorial Hospital v. Layer, 420 So.2d 917 (Fla. 1st DCA 1982). Accordingly, the order of November 16, 1983, which awards a reasonable attorney’s fee based on a finding of bad faith, is reversed, and this cause is remanded to the deputy commissioner to conduct a separate fact-finding proceeding on this issue.

Because of our disposition of appellants’ second issue, we find it unnecessary to reach appellants’ third issue.

AFFIRMED in part; REVERSED and REMANDED in part.

MILLS and WIGGINTON, JJ., concur.

      . Chapter 83-305, section 12, Laws of Florida (1983).