author: BERANEK, Judge.

text:
    Reynaldo Andres DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-827.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 24, 1983.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged in a three count information with burglary, sexual battery, and robbery. At the close of trial, the jury began its deliberations, and after approximately three hours reported a deadlock. Defense counsel was absent from the courthouse and the trial court conferred with him by telephone. Pursuant to counsel’s consent and a waiver of his presence, the trial court gave the jury an Allen charge in defendant’s presence but with his lawyer absent. The court added to the standard charge by telling the jurors that they should think and reflect about the case overnight in their own home surroundings. On discharging the jury for the evening, the court did not admonish the jurors concerning avoiding outside influences. That evening a Fort Lauderdale newspaper published an article prejudicial to appellant where he was described as a known rapist involved in other crimes. The following morning, the jury reconvened and in less than an hour found appellant guilty of all three charges. Defense counsel filed a motion to interview jurors as to whether they had been exposed to the article and to determine whether a legal ground existed to challenge the verdicts. The trial court denied this motion. Appellant was sentenced to life imprisonment plus thirty years for the three crimes.

Appellant raises four points on appeal, three of which merit discussion. In one point, appellant contends that fundamental error occurred during the trial when proceedings were conducted in front of the jury in the absence of defense counsel when there was no waiver or ratification by appellant of the absence of his counsel during a critical stage of the trial court proceedings. Appellant is referring to his counsel’s absence when the trial court gave the jury the Allen charge. Appellant argues the trial court breached its duty to protect appellant’s right to counsel by allowing counsel to waive his presence. Although we find defense counsel’s conduct to be outrageous, we refuse to lay the blame at the foot of the trial court. Counsel represented appellant; it was his duty to protect appellant’s right to counsel. Although we choose not to reverse on this point, we note that appellant has yet to assert a 3.850 claim for ineffective assistance of counsel.

We now address two interrelated points raised by appellant. Initially, appellant contends that the trial court erred in permitting the jury to separate for an overnight recess of sixteen hours after deliberations had begun without admonishing the jury to avoid any outside influences. Next, appellant urges error in the denial of his motion to interview the jurors to determine whether the verdict was subject to legal challenge because of the prejudicial newspaper article that appeared on the evening of the recess. Appellant relies on Raines v. State, 65 So.2d 558 (Fla.1953). In that case, the trial court sent the jury home for fifteen hours in the midst of their deliberations without the consent of counsel, without any instructions, and without the protection of a bailiff. The Supreme Court found this to be error even though no objection was made and no prejudice was shown because “It imposes too great a burden on defendant to produce evidence of prejudice to his rights under such circumstances.” At 560. The state attempts to distinguish this case, pointing out that there was no mention of the jury being admonished at any time during the trial. In the present case, the jury was admonished on outside influences earlier during the two-day trial. It appears that one of the major reasons the Supreme Court ordered a new trial in Raines was because defendant had no means of proving prejudice. Here, prejudice, or lack thereof, could easily have been shown if the trial court had allowed appellant to interview the jurors. The absence of an admonition following an Allen charge on the verge of an evening recess cannot be minimized. The trial court denied the motion to interview jurors re the newspaper article which appeared the evening before because he characterized it as mere speculation. We disagree. This was not a “fishing expedition” as the state argues. Appellant had a valid reason for his motion in that the jury was deadlocked either three-three or four-two on all three counts the evening before. The next morning after an Allen charge and no admonition the jury found appellant guilty of all three counts in less than one hour. Under these circumstances we hold the motion to interview should have been granted. We have considered all other appellate arguments and find them to be without merit. Rather than reverse for a new trial on the juror interview issue, we remand the matter to the trial court to reconvene the jury to ascertain whether any juror had read the newspaper article or had conducted himself or herself improperly in any other respect regarding outside influences. If a juror admits to improper conduct, appellant must be awarded a new trial. However, if the conduct of the jury was satisfactory during the time of recess, appellant’s conviction should stand; If the required inquiry cannot be accomplished the defendant should be granted a new trial.

REMANDED FOR FURTHER PROCEEDINGS.

DOWNEY and HERSEY, JJ., concur.

      . The trial court made a specific inquiry in this regard at the time of the Allen charge.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Donna deClaire YOHANAN, Petitioner, v. George F. deCLAIRE, Respondent.
    No. 83-886.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 31, 1983.

      James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for petitioner.
    Montgomery, Lytal, Reiter, Denney & Se- ■ arcy, P.A., West Palm Beach, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for respondent.
   HERSEY, Judge.

Petitioner seeks certiorari to block discovery procedures. Because we have frequently held that forced disclosure through discovery is irremediable in that once information has been disclosed it may never be “taken back,” we have consistently granted certiorari to prevent disclosure, but never to compel disclosure. The former being involved here, we have jurisdiction.

In an earlier appearance of these parties before this court we separately ordered an award of attorney’s fees to the successful former wife, providing that

[U]pon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Rule 9.400(c), Fla.R.App.P.

Yohanan v. deClaire, 421 So.2d 551 (Fla. 4th DCA 1982).

In preparing for the trial court’s hearing to assess fees, respondent, former husband, attempted to discover the extent to which petitioner had the ability to participate in the payment of attorney’s fees. This raises the question of whether, in the context of a marriage dissolution, an appellate court determination regarding an entitlement to attorney’s fees, — the issues of one party’s need and the other party’s ability to pay— are to be taken into account and, in effect, retried for the purpose of setting the fee and allocating responsibility for its payment.

The appellate court obviously has the plenary power to set the amount of the fee and require a particular party to pay it. On the other hand, the appellate court could determine on the record before it that one party clearly has the ability to pay and that the other has just as clear a need, and remand for the sole purpose of an eviden-tiary hearing to determine the amount of a reasonable fee. A third alternative is presented where the passage of time renders prior findings of need and ability obsolete or untrustworthy or where, in response to an application for an allowance of attorney’s fees, the other party alleges that there has been a substantial change in circumstances, in which case the appellate court may remand for a complete evidentia-ry hearing on need, ability to pay and the amount of a reasonable fee.

The district courts of appeal have not acted uniformly in their approach to this question. That is not to say, however, that a conflict exists since there is no rule, statute or other stricture establishing a procedure for treatment of this issue.

The First District Court of Appeal in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977), decided not to indulge in “problematic assumptions” recognizing that:

[I]t is impractical and inappropriate for an appellate court to entertain and resolve issues concerning the relative financial abilities of the parties at the time an appellate motion for allowance of fees is filed, or when a response may be seasonably filed, or when the case is submitted by argument or otherwise, or when the appellate decision is rendered.

350 So.2d at 1154. The court stated that, in regard to motions for attorney’s fees,

[H]enceforth we shall undertake to dispose of such motions without either indulging problematic assumptions or undertaking a trial of new issues on appeal. When we consider a fee money award inappropriate regardless of the parties’ financial circumstances, we shall exercise our prerogative to deny such motions. But when the trial court has awarded fee money to the moving party and it appears that a further award on account of appellate services is appropriate, assuming the relative financial needs and abilities of the parties are essentially the same as at final judgment, we shall provisionally grant the motion for allowance of fee money and remand to the trial court both the question of the amount of a reasonable fee for the appellate services of the movant’s lawyer and the question of what part of that amount, if any, should be paid by the other party because of a present disparity in ability to pay. Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967, 970 (Fla. 1st DCA 1977).

350 So.2d at 1154.

The Fifth District Court of Appeal has apparently taken a somewhat similar approach, although the necessity for consideration by the trial court of the issues of need and ability to pay were expressly set out in the order granting fees in the first instance. In Eagan v. Eagan, 392 So.2d 988, 990 (Fla. 5th DCA 1981), the court specifically stated:

Appellee’s motion for attorney’s fees and costs is granted and, as permitted by Florida Rule Appellate Procedure 9.400(b), the motion is remanded to the trial court to determine the reasonable value of appellee’s necessary appellate legal services and the assessment of the appropriate amount of appellant’s contribution thereto after considering the financial resources of both parties. § 61.-16, Fla.Stat. (1979).

In similar circumstances, the fifth district reversed an award of attorney’s fees where the testimony at trial related only to the nature of the services rendered and the reasonableness of the fee therefore. Hyatt v. Hyatt, 426 So.2d 1181, 1182 (Fla. 5th DCA 1983). The court held the order appealed failed to consider those factors ordinarily taken into account in ruling on requests for attorney’s fees, i.e., the needs of the requesting spouse and the financial ability of the other spouse. Id.

Our procedure in the fourth district was very clearly established and fully explained by Judge Owen in Ludemann v. Ludemann, 317 So.2d 860 (Fla. 4th DCA 1975). We said:

If the appellate court determines, in the exercise of its sound discretion, to allow an attorney’s fee for services in the appellate court, it may assess the amount of such fee, or it may, as we did in this case, elect to utilize the provisions of Rule 3.16(e) F.A.R. to authorize the trial court to assess the amount of such attorney’s fee upon remand. The latter alternative is usually the more preferable, and the reason is quite simple. An appellate court is not equipped to conduct eviden-tiary hearings and thus for it to assess the amount of the fee it would either have to do so solely on the basis of affidavits and counteraffidavits (which is an undesirable practice in the absence of the agreement of the parties to such) or would have to appoint a commissioner to take testimony and report the same back to the court (which is a cumbersome process).
Turning more specifically to this case, we determined from the record that the wife was entitled to an award of attorney’s fees on appeal, and entered an order to that effect. The issue of her entitlement vel non to the award of attorney’s fees was thus settled by our order, which left to the trial court upon remand only the assessment of the amount thereof.
The proceedings before the trial court at the hearing on the motion to assess attorney’s fees were not reported, but the trial court’s order adequately sets forth the substance of the matters before the court at that time. We think it clear from the court’s order that the amount awarded to the wife as attorney’s fees for services in the appellate court was not the result of the court’s determination that such amount was the reasonable value of the services rendered on appeal, but instead was due to the court having reevaluated the question of the wife’s need for, and the husband’s ability to pay, a reasonable attorney’s fee. As we have stated above, that question was not before the trial court for determination.

Id. at 862.

In the fourth district, then, an order establishing a right to attorney’s fees, where the amount is to be determined upon remand, limits the trial court to a determination of the amount of a reasonable fee and does not reopen the issues of need and ability to pay, those issues having been considered and passed upon by this court. When, however, the circumstances have warranted it, this court has, by specific language in the order, directed the trial court to reconsider the issues of need and ability to pay as the original findings may have been eroded by the passage of time. It therefore seems appropriate here to remind counsel that a change in the financial circumstances of either party should be brought to this court’s attention, either in the application for attorney’s fees, in the response thereto, or in a later supplemental pleading as may be appropriate. Accord Thornton v. Thornton, 433 So.2d 682 (Fla. 5th DCA 1983).

The order of the trial court requiring petitioner to appear for deposition and to answer questions regarding her ability to participate in the payment of attorney’s fees constitutes a departure from the essential requirements of the law since that issue was not open for consideration by the trial court in view of our previous order disposing of all issues with the exception of the amount of a reasonable attorney’s fee. We, therefore, grant the petition for writ of certiorari and quash the order compelling discovery.

CERTIORARI GRANTED.

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


author: GLICKSTEIN, Judge.

text:
    David NUNES, Appellant/Cross Appellee, v. MARGATE GENERAL HOSPITAL, INC., a Florida Corporation, Appellee/Cross Appellant.
    No. 82-1892.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 25, 1983.

      David S. Nunes of Law Offices of David S. Nunes, Ft. Lauderdale, for appellant/cross appellee.
    Jon W. Zeder and Douglas M. Halsey of Paul & Thomson, Miami, for appellee/cross appellant.
   GLICKSTEIN, Judge.

First, this is an appeal by a former part-time hospital employee claiming wrongful termination from a summary final judgment entered against him and in favor of the appellee hospital which is associated with Hospital Affiliates International, Inc. The material aspect of the disparate position between appellant, then a third year law student working a marathon-like schedule by day as an intern in the state attorney’s office and throughout the weekends as an x-ray technician, and the multi-state hospital affiliate, hopefully becomes apparent hereinafter.

We are disadvantaged because of the combination of no reported transcript of the hearing on appellee’s motion for summary judgment and no recitations by the trial court in its judgment. However, it is clear that summary judgment should not have been awarded in light of the accurate recitation of disputed facts contained in the response to appellee’s motion filed by appellant’s trial counsel. Appellant’s deposition reflects that he expressed to the hospital’s personnel director and chief technician, who were involved in his hiring, that his term of employment had to be definite; i.e., for the entire school year, as he could not — with his hectic schedule — look for another similar job during the school year. It is equally clear from his deposition that the personnel director and chief technician who interviewed him led him to believe that he would not be terminated during the school year unless he did “something really disasterous.” In our view, such was competent evidence of a contract for a specific term, not just an “expectation” described by this court in Roy Jorgensen Associates, Inc. v. Deschenes, 409 So.2d 1188 (Fla. 4th DCA 1982), and not employment for an indefinite term and terminable at will described in De Marco v. Publix Super Markets, Inc., 360 So.2d 134 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1123 (Fla.1979), aff’d, 384 So.2d 1253 (Fla.1980).

Notwithstanding evidence of a specified term of employment and a rejection by him of another hospital’s offer of employment in reliance upon appellee’s representation, appellant was apparently terminated shortly after commencing services and subsequent to his request for the additional compensation which he understood to be forthcoming as a benefit available to “permanent part-time employees” described in the hospital literature furnished him. As we view it, appellee was able to persuade the trial court that it was entitled to summary judgment, because appellant was a “permanent employee” terminable at will, whose signed application specifically recited:

“This agreement does not, of course, bind either party to any specific period of employment”.

Because of the matters recited in appellant’s deposition, whether appellant’s employment was for a definite term was a matter for the trier of fact to determine at trial. So, too, was the issue of his discharge. Who the trier of fact is to be must be clarified on remand. This appeal was handled pro se by appellant. His trial counsel originally sought trial by jury, then requested non-jury trial. Appellant should be afforded the opportunity to make that choice anew as well as the right to further amend his pleadings should any new matters, not previously pled, be appropriately raised.

As for the use by employers of the term “permanent employee,” we observe that such language should not be a mare’s nest for prospective employees. In other words, a prospective employee should not be misled by an employer to the belief that he is permanent when the judiciary of this state has on occasion viewed such term to mean terminable at will. It is true that in this case appellant was obviously not so misled, as he attempted to utilize the word “permanent” in connection with his compensation, not his term of employment. However, not all prospective employees are law students, and the employer has not hesitated to make use of judicial precedent. With these cautionary remarks, we reverse and remand the main appeal.

Second, the hospital cross appeals from that part of the final judgment which denied attorney’s fees it sought pursuant to Section 57.105, Florida Statutes (1981). This cross appeal borders on the frivolous, not only because of the bona fide dispute as to the definiteness of the term of employment, but also because of the questions surrounding appellant’s termination. A memorandum to the hospital administrator from Hospital Affiliates International, Inc., states in part:

I have reviewed the various background material and spoken with Mr. Nunes. My understanding of Mr. Nunes [sic] basic complaint is that we did not appraise him of the fact that we were not required to pay overtime to personnel in the Radiology Department who worked double shifts on weekends. Further, Mr. Nunes contends that Summary B, Item II of the Employee Fringe Benefits material states that permanent part-time employee [sic] will receive 50% of their hourly rate for all hours worked over 8 hours per day. With regard to the issue of overtime pay I recommend that we concede the point and pay Mr. Nunes the overtime he al-ledges [sic] we owe. I calculate this to be .5 times $5.80 (his second shift rate) times 8 hours times 7 days or $162.40. A check for this amount (or a corrected amount if my calculation is in error) should be issued as soon as possible with the statement “In full payment of disputed wages.” directly on the check. The check should be sent to Mr. Nunes with the attached letter.

While the trial will flesh out all of the facts, the view could reasonably be taken at this point that appellant was not only employed for a definite term, but was also discharged for asserting what may have been a correct assertion as to the basis for some of his compensation. We affirm the cross appeal.

HURLEY and DELL, JJ., concur.


author: WIGGINTON, Judge. ERVIN, J.,

text:
    Arc KYLE and CNA Insurance Group, Appellants, v. Edward DAVIS, Appellee.
    No. AO-269.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Rehearing Denied Aug. 17, 1988.

      Wendell J. Kiser, P.A. of Akerman, Sen-terfitt & Eidson, Orlando, for appellants.
    David M. Hammond, P.A., Orlando, for appellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s award to appellee of wage-loss benefits from March through June, 1982, rehabilitation benefits, and attorney’s fees. We reverse.

Appellee Davis, a forty-four year old Jamaican, injured his back in a work related accident on September 3, 1981. His first treating physician, Dr. Blumen, an orthopedic surgeon, diagnosed a small herniated disc, felt that Davis “had marked overlay and magnification of his symptoms,” gave Davis a 10 percent permanent impairment rating as of December 15, 1981, and restricted him from doing heavy labor. In February, 1982, Davis saw another orthopedic surgeon, Dr. Stanford, who also assigned him a 10 percent permanent impairment rating and restricted him from heavy lifting and repeated bending and climbing.

On February 25, 1982, Davis returned to work with employer in a light duty position. He worked in that capacity for almost two days before he left complaining of back pain. In early March he sought light work with other employers. On March 15, he returned to work with the employer and was assigned a sheltered job within his medical restrictions counting pipe, which required him to carry a pad of paper and pencil and a measuring tape to measure the diameters of the pipe. No deadlines or time limits were placed on him and a chair was moved around the pipe yard for him so that he could rest as often as he desired. He did not return to work the next day. According to his testimony, he could not perform the work due to pain.

On April 16, Davis was seen by Dr. Gil-mer, an orthopedic surgeon, who observed that “there is a definite element of conscious or unconscious exaggeration of his complaint .... A definite conclusion as to whether or not he has a real problem is therefore difficult to make. I do not believe he has any permanent impairment based upon this examination.” Dr. Gilmer stated that he understood Davis had been offered work counting pipe and would be provided a chair to sit in whenever he felt he needed to rest. He opined: “I see no reason why this man could not perform this type of work. I would recommend that he not do heavy manual labor at this time.”

During the next several months, Davis returned to employer to perform the sheltered job approximately five times and each time, after working several hours, left complaining of back pain. He unsuccessfully sought work elsewhere during that time, but most of the employers he contacted had no jobs available. According to the employer’s testimony presented at the hearing, the light work was still available for Davis at his pre-injury rate of pay.

Specifically noting the job search conducted by Davis, the deputy commissioner awarded wage-loss benefits from March 1 through June 30, 1982. He found that in good faith Davis attempted to perform the sheltered employment offered by the employer but was unable to do so. He further found Davis in need of rehabilitation and due reimbursement for costs incurred in obtaining the awarded benefits.

Wage-loss benefits are not award-able when a claimant has voluntarily limited his income. Section 440.15, Florida Statutes, Harper Plumbing and Heating v. Boyd, 418 So.2d 396 (Fla. 1st DCA 1982), and Paul Lawhon Plumbing Co. v. Cave, 427 So.2d 1093 (Fla. 1st DCA 1983). A claimant’s “bare complaints of continued pain so that the claimant feels unable to work” is not a condition that is “readily observable by lay people.” Such evidence is insufficient to override medical testimony to the contrary and to prove inability to work. See Harper Plumbing and Heating. In this case, as in Harper Plumbing and Heating, the deputy commissioner failed to specify any reason for rejecting the uncon-troverted medical evidence that appellee could perform the job offered and that the sheltered employment met the restrictions imposed by the doctors. Since the evidence in the record shows that Davis voluntarily limited his income, the award of wage-loss benefits was error. See also Paul Lawhon Plumbing Co.

The parties agree that Davis is not a candidate for rehabilitation and that the award of those benefits was error. Since Davis was not entitled to the benefits awarded, he was not entitled to reimbursement of his costs and therefore that award is also reversed.

REVERSED.

THOMPSON, J., concurs.

ERVIN, C.J., concurs in part, and dissents in part, with written opinion.

ERVIN, J.,

concurring in part and dissenting in part.

I would sustain the award of wage-loss benefits, but otherwise concur in the majority’s opinion. It is my understanding that absent medical testimony that claimant is unable to work, he is required to conduct a work search. Sanlando Utility Corporation v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275, 276 (Fla. 1st DCA 1981); Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982).

We have interpreted the requirement of Section 440.15(3)(b)2, Florida Statutes (1979), placing “the burden ... on the employee to establish that any wage loss claimed is the result of the compensable injury ... ”, as meaning the injured employee is first required to prove a good faith attempt to obtain employment commensurate with his ability and to show that he has not voluntarily limited his income. Regency Inn v. Johnson, 422 So.2d 870, 876 (Fla. 1st DCA 1982). Once the employee presents such evidence, the employer shoulders the burden of proving that the employee has refused work or voluntarily limited his income. Id.

As long as the deputy complies with the work search parameters set forth in Regency Inn, I think the adequacy of a work search is best left to him — not to a reviewing court. Here, as in Regency Inn, the claimant presented evidence showing not only that he was unable to carry out the limited physical requirements of his sheltered employment, but also that he made repeated requests for other employment. The employer, in my judgment, was then required to prove that the claimant voluntarily limited his income, not only as to the work offered to him by it, but also as to the search conducted by him. The deputy concluded from the evidence that the employer did not meet its burden, and I would affirm. See also South Florida State Hospital v. Anthon, 423 So.2d 461 (Fla. 1st DCA 1982).


author: JOANOS, Judge.

text:
    STATE of Florida, Appellant, v. Clifford L. SEWELL, Appellee.
    No. AP-69.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Rehearing Denied Aug. 22, 1983.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellant.
    Brandt W. Davis, Asst. Public Defender, Apalachicola, for appellee.
   JOANOS, Judge.

State of Florida (State) appeals the discharge of Sewell from prosecution based upon the lapse of time for a speedy trial. We reverse the order discharging Sewell.

Sewell was arrested on October 29, 1981 and charged with trafficking in more than 10,000 pounds of cannabis. His arrest followed the arrest of five co-defendants in early August, 1981, for the same alleged crime. Initially, trial was set for December 10, 1981, but the State moved successfully for a continuance and unsuccessfully for an extension of the speedy trial period. The trial was rescheduled for February 4, 1982, at which time it was continued to April 22, 1982. At an April 16, 1982 hearing on a motion for discharge of three of Sewell’s co-defendants, it was brought to the court’s attention that Sewell’s attorney, Howard Williams, also representing two other co-defendants, was gravely ill, not expected to recover soon and that Sewell and the other two co-defendants, also represented by Williams, should be notified to appear. The court ordered that Sewell and the two co-defendants appear on April 22, 1982. On April 19, 1982, attorney L. Sanford Selvey, 11, acting for Howard Williams, successfully moved for a continuance on behalf of Se-well and the two co-defendants. On April 22, 1982, Sewell and the two co-defendants appeared without counsel before Judge Co-oksey, stating that they were at that time represented by Howard Williams, and that they had been advised to get another attorney, but had not done so. Judge Cooksey inquired as to the status of the speedy trial period and was informed by an assistant state attorney that Mr. Williams had moved for a continuance, constituting a waiver of speedy trial. The case was tentatively reset for June 23, 1982, with Judge Cooksey telling Sewell and the co-defendants to confer with other counsel. On June 23, 1982, Se-well remained unrepresented, claiming he could not afford an attorney. The Public Defender was appointed and the case was continued until July 26, 1982. On July 23, 1982, Sewell moved for discharge, claiming that the speedy trial period for his October 29, 1981 arrest had expired on April 27, 1982, that the delay was attributable to the State, that he was continuously available for trial and that the delay was not attributable to him or his co-defendants. On September 1, 1982, at a hearing on the motion for discharge, Assistant State Attorney Antonacci argued that Sewell’s arrest on October 29, 1981 made his speedy trial date later than the other defendants, who were arrested in early August, 1981, and considering the motion for continuance filed by Mr. Selvey on Mr. Williams’ behalf was within the speedy trial period and Mr. Williams was not prepared to go to trial at any time, there was a waiver of speedy trial chargeable against Sewell and the State could not be charged with Mr. Williams’ inability to go to trial. Initially, the trial court denied Sewell’s motion, but upon his request to reserve ruling to enable him to prepare a memorandum, ruling was withheld. On October 8, 1982, Sewell was discharged from prosecution.

Upon review of the record, we find it is undisputed that Sewell’s counsel, Mr. Williams, was gravely ill and that he was not ready for trial. There is no indication that Sewell requested new counsel and Mr. Williams had not been relieved. These circumstances cannot be characterized as state action which caused Sewell’s trial to be continued past his speedy trial date. See Bell v. State, 360 So.2d 1324 (Fla. 1st DCA 1978), cert. dismissed 366 So.2d 879 (Fla.1978).

When Sewell or his counsel, Mr. Williams, was not ready for trial on April 22, 1982, Sewell was then unavailable for trial and would not be entitled to discharge. Fla.R. Crim.P. 3.191(e)(2). Additionally, if the trial court had not granted a continuance, given Sewell’s circumstances of being without effective representation because of his counsel’s illness, it would have constituted error. See Meadows v. State, 389 So.2d 694 (Fla. 2nd DCA 1980).

Absent action which could be charged against the State for prolonging Sewell’s speedy trial time beyond the 180-days limit and given Sewell’s obvious unpreparedness for trial, Sewell could not be discharged from prosecution. Accordingly, the order discharging Sewell from prosecution is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.

LARRY G. SMITH and NIMMONS, JJ., concur.


text:
    COPPOLA ENTERPRISES, INC., Appellant, v. ARVIDA REALTY SALES, INC., and Helen Alfone, Appellees.
    Nos. 82-897, 82-1076.
    District Court of Appeal of Florida, Fourth District.
    July 27, 1983.
    Rehearing Denied Aug. 24, 1983.

      Arthur C. Koski of Koski, Mateer, Gillespie & Allison, P.A., Boca Raton, for appellant.
    James M. McCann, Jr., of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellee Arvida Realty Sales, Inc.
    Mark L. Shumaker of Law Office of Donald M. Van Dusen, Boca Raton, for appellee Alfone.
   GLICKSTEIN, Judge.

Subsequent to oral argument this court and the trial court entered a series of orders to give appellant the opportunity by a date certain to deposit into the registry of the trial court the sum of $65,000 together with interest thereon at the rate of 14% per annum from and after April 1, 1981 to the date of deposit, and have the deposited funds subsequently placed in an interest-bearing, fully protected account, fund or certificate, pending further direction of this court, all of which was done. This court’s object was to effect the security contemplated by the parties’ stipulation executed in 1980 and not implemented as intended.

Having effected the placement of security, we feel at liberty now to consider the merits of the appeal, which is a two-pronged attack upon the trial court’s orders respectively interpreting the language of the parties’ stipulation and awarding summary judgment to both the buyer/plaintiff and the broker/cross claimant.

This court will take the claims of the buyer/plaintiff and broker/cross claimant separately. As to the former, the record reflects a stipulation between counsel for the buyer/plaintiff and the seller/defendant. The trial court interpreted the stipulation as eliminating all issues of liability without considering testimony of the signers, notwithstanding the affidavit of one of the signing attorneys, in the record at the time, which attested to the following:

1.He was attorney of Record for Coppola Enterprises, Inc., Defendant in the above-captioned action on December 5, 1980.
2. That he did sign a Stipulation dated December 5,1980 for and on behalf of Coppola Enterprises, Inc.
3. That it was not the intention of the Stipulation as signed to admit any liability whatsoever on the part of the Defendant, Coppola Enterprises, Inc.
4. Paragraph 3 of the Stipulation was worded in that fashion so as to delineate between Count I, which was an action in equity for specific performance and Counts II and III, which are actions at law for damages. The intent of the complete paragraph 3 was to assure to the Plaintiff that Counts II and III would proceed to trial, and not to limit the issue of liability or to, in the alternative, remove or delete any claims which were pending by the Defendant’s Counterclaim. The wording of the third para-' graph of the Stipulation indicates that the trial of the matter would be the issues contained in Count II and III. The words “if any,” stated with reference to the issue of damages, were included within the text of paragraph 4 of the Stipulation to provide for the possible adjudication that Coppola Enterprises, Inc., would be absolve [sic] of liability for breach of the parties’ contract.

It was error to proceed to summary judgment against the defendant in favor of the plaintiff based upon an analysis of the stipulation without taking testimony. This becomes evident when one considers not only the affidavit, but also the right of the plaintiff to nominal damages if the breach was established. In view of such right, why the need for the words “if any” in the stipulation? Moreover, with the security finally produced as a result of court order well over two years after the stipulation’s execution, it seems that if reasonable substantial doubt exists as to the meaning of the stipulation, construction should favor trial upon the merits as to the limited issues of liability for damages and the amount of damages if liability is proven.

With respect to the broker/cross claimant, it was awarded summary judgment only because of the trial court’s earlier determination that no issue existed as to the defendant’s liability. We herewith reverse judgment entered in favor of the buyer/plaintiff; and by our reversal, such determination as well as the cross claimant’s judgment must logically fall. Therefore, we also reverse the latter judgment and remand the matter for further proceedings. On remand we urge the trial court to have the parties thoroughly research all questions, including one that particularly concerned the writer of this opinion at oral argument; namely, whether, if the seller’s liability is hereafter established, the broker can recover from the seller a commission again, having received an earlier commission.

HERSEY, J., and ANDREWS, ROBERT LANCE, Associate Judge, concur.

      . See Motorola Communications & Electronics, Inc. v. National Patient Aids, Inc., 427 So.2d 1042, 1043 n. 6 (Fla. 4th DCA 1983); Muroff v. Dill, 386 So.2d 1281 (Fla. 4th DCA 1980), petition for review denied, 392 So.2d 1377 (Fla. 1981).


author: PER CURIAM.

text:
    Joseph BUJAN, Petitioner, v. T.H. SIMS and Sims Crane Service, Inc., Respondents.
    No. 83-1598.
    District Court of Appeal of Florida, Second District.
    July 27, 1983.
    William D. Slicker of Zewadski & White-lock, P.A., St. Petersburg, for petitioner.
   PER CURIAM.

The Petition for Writ of Certiorari and Motion to Review Denial of Stay are hereby denied.

BOARDMAN, A.C.J., and CAMPBELL and SCHOONOVER, JJ„ concur.


author: MILLS, Judge.

text:
    Anthony STRAPP, Appellant, v. STATE of Florida, Appellee.
    No. AM-346.
    District Court of Appeal of Florida, First District.
    July 29, 1983.

      Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Strapp appeals from a judgment of guilty in a felony case contending the trial court erred in denying his motion for discharge for lack of a speedy trial. We affirm.

On the day before the trial, the State moved for a continuance under Rule 3.191(f), Florida Rules of Criminal Procedure. Strapp waived a hearing on the continuance. The trial court granted a continuance telephonically. On a date after speedy trial time had run, the trial court signed a written order granting the continuance under Rule 3.191 nunc pro tunc to a date before speedy trial time had run.

The trial court in fact must extend the speedy trial time. It may not retroactively find that an earlier continuance was for exceptional circumstances. Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981). A continuance is not an automatic extension. Stuart v. State, 360 So.2d 406 (Fla. 1978).

Under the facts of this case, the State moved for an extension, Strapp agreed, and the trial court orally entered the order. A defendant will not be permitted to build in error by waiving a hearing and then complaining that the order is not of record. The State’s motion was inartfully worded. It did, however, recite exceptional circumstances under Rule 3.191. The only purpose in such a recital was for an extension. We will not, treat “extension” as a magic word whose omission voids the motion.

It is also poor practice for the order granting the motion not to be of record. Rule 3.191(d)(2) requires the order to be of record when on a motion or by the court but not when upon a stipulation announced to the court. We have the last situation here.

There is no dispute that exceptional circumstances did exist under Rule 3.191(f). Subsection (f) requires an order, but does not require it to be in writing or on the record.

AFFIRMED.

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

      . MOTION TO CONTINUE
      The State of Florida, by and through the undersigned Assistant State Attorney, moves this Honorable Court for entry of an Order continuing trial in the above cause, pursuant to Rule 3.191(f), Florida Rules of Criminal Procedure, and as grounds therefor alleges as follows:
      1. Unexpectedly Sgt. M.E. Shaw, a witness for the State, was admitted to the Lake City Veteran’s Administration Hospital on Tuesday, August 18,1981, with chest pains, and as of the time of this Motion, in satisfactory condition, but cannot attend trial on August 19, 1981.
      2. Shaw’s presence is uniquely necessary for a full and adequate trial in that he is the State’s main witness to the Defendant’s threats to kill the victim, and further js in the chain of custody for the knife which the Defendant is charged with possessing.
      3. Defense counsel has no objections to such continuance and has verbally waived notice of hearing on the Motion.


author: ZEHMER, Judge.

text:
    David M. HARRIS, Appellant, v. Dale A. HAUGHT, Appellee.
    No. AN-429.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    Jack F. Milne, of Milne, Hodge & Milne, Jacksonville, for appellant.
    John T. Trekell and Stephen Hould, of Trekell & Smith, P.A., Jacksonville, for ap-pellee.
   ZEHMER, Judge.

This is an appeal from a summary judgment in favor of appellee, Haught, confirming an arbitration award pursuant to Section 682.12, Florida Statutes (1981), and awarding attorney’s fees to Haught under Section 57.105, Florida Statutes (1981). We affirm in part and reverse in part.

On May 18,1978, Dale A. Haught entered into a general partnership agreement with David M. Harris and Frank W. Mumby, III, creating Harris-Mumby-Haught Enterprises (hereafter H-M-H). The agreement specifically provided for arbitration in the event of a dispute between the partners. On March 8, 1979, Haught notified Harris and Mumby that he was withdrawing from the partnership and demanded an accounting.

On July 17, 1979, in connection with a different partnership, known as Harris-Haught Company, Harris and Haught executed an agreement for the purpose of apportioning the assets of that partnership. That agreement, which did not mention the H-M-H partnership, provided in part:

6. The parties heretofore stated that neither knows of any assets or liabilities of the PARTNERSHIP not herein disclosed, and each is relying on such representations. However, in the event any claim should be made against either party for any liability or obligation, whether sustainable or not, incurred by the other party, in his own behalf or that of the PARTNERSHIP, such party so incurring the alleged obligation or liability, agrees to assume all liability therefor, and will indemnify and hold the other harmless for any loss the latter may sustain as a result thereof.
Following the satisfactory completion of all actions called for in paragraphs 1-5 herein, each party releases the other from any furhter [sic] liability or obligation to such party of any nature whatsoever, except for the indemnification provision in the paragraph immediately preceeding [sic] this paragraph (relative to unknown liabilities and obligations) and with the exception of any tax liabilities attributable to the partnership.

On December 10, 1979, Haught made a claim against Harris and Mumby for repayment of loans to the H-M-H partnership in the amount of $5600. Such claim was refused, and on January 11, 1980, in accordance with the arbitration agreement, Haught demanded arbitration. On July 15, 1980, Haught filed an amended arbitration claim seeking an accounting between the parties with respect to the H-M-H partnership. Harris and Mumby formally responded to this amended arbitration claim by alleging that paragraph 6 of the July 17, 1979, agreement between Haught and Harris, regarding the Harris-Haught Company, operated to release Harris and Mumby from any further liability to Haught with respect to the H-M-H partnership. On October 12, 1981, the arbitrator concluded the accounting of H-M-H and awarded Haught $5600, to be recovered from Harris and Mumby.

Harris and Mumby refused to comply with this arbitration award, and shortly thereafter Haught filed a complaint in circuit court seeking damages and attorney’s fees for their refusal to pay. Harris and Mumby answered, setting forth the affirmative defense that paragraph 6 of the July 17, 1979, agreement operated to release both Harris and Mumby from further liability to Haught. They also counterclaimed for damages and fees based upon Haught’s alleged breach of the indemnity agreement contained in paragraph 6 of the July 17, 1979, agreement. Haught moved to strike appellant’s affirmative defense and counterclaim on the ground that the issues raised therein had been resolved by the arbitration award and moved for summary judgment. The trial court granted both the motion to strike and the motion for summary judgment, ruling that Harris and Mum-by were merely attempting to relitigate issues resolved through arbitration. The court also awarded attorney’s fees to Haught under Section 57.105, Florida Statutes (1981), apparently based upon the finding that appellant was merely attempting to relitigate the arbitration issues.

Upon a complete review of the record and consideration of the parties’ arguments, we hold that the trial court properly struck appellant’s affirmative defense and counterclaim and properly granted summary judgment to Haught. The July 17, 1979, agreement refers only to the Harris-Haught Company partnership, not the H-M-H partnership. Whether that agreement was also intended to operate as a blanket release of all claims raised by appellee in his requested accounting of the H-M-H partnership does not appear from the face of the document.

However, Harris voluntarily arbitrated whether the release provision in the July 17, 1979, agreement operated to free him from liability to Haught for the $5600 claimed in the accounting of the H-M-H partnership. Where an issue is voluntarily submitted to arbitration, the award cannot be vacated based upon reargument of the issue decided by the arbitrator. Industrial Fire & Casualty Ins. Co. v. Coquemard, 332 So.2d 636 (Fla. 3d DCA 1976); City of Miami v. Fraternal Order of Police, 368 So.2d 56 (Fla. 3d DCA 1979). Even though appellant now argues that the arbitrator lacked jurisdiction to construe the release provision, his voluntary submission of such issue to the arbitrator without objection as to the arbitrator’s jurisdiction forecloses that argument on appeal. City of Miami v. Fraternal Order of Police, supra. See also, Bankers & Shippers Ins. Co. v. Gonzalez, 234 So.2d 693 (Fla. 3d DCA 1970); Frank J. Rooney, Inc. v. Charles W. Ackerman of Florida, Inc., 219 So.2d 110 (Fla. 3d DCA 1969).

This proceeding is governed by the provisions of the Florida Arbitration Code, Chapter 682, Florida Statutes (1981). Section 682.13 provides five grounds on which a trial court may vacate an arbitration award:

(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.
But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

An arbitration award can be vacated only upon the grounds stated in Section 682.13. Dairyland Ins. Co. v. Hudnall, 279 So.2d 905 (Fla. 3d DCA 1973). Since appellant failed to plead any of the statutory grounds for vacation of the arbitration award in his affirmative defense or counterclaim, confirmation of the award and entry of final judgment for Haught was not error.

The trial court also awarded attorney’s fees to Haught under Section 57.105, Florida Statutes (1981). The court’s finding that appellant was merely attempting to relitigate issues submitted to arbitration is not sufficient to satisfy the required finding, essential to liability under that statute, that there was a “complete absence of a justiciable issue of either law or fact raised by the losing party.” Since we are unable to agree that the issues raised by appellant were entirely frivolous, we reverse that portion of the final judgment awarding attorney’s fees. Suwannee County v. Garrison, 417 So.2d 1070 (Fla. 1st DCA 1982); Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla.1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

The judgment is affirmed in part and reversed in part, and the case is remanded for entry of an amended final judgment in conformity with this opinion.

      . Section 682.17, Florida Statutes (1981), provides that a party seeking confirmation of an arbitration award shall make application to the circuit court by motion, and such proceeding shall follow the rules of court for the making and hearing of motions. Although appellee filed a complaint in this case seeking damages for appellant’s failure to comply with the arbitration award, the trial court properly treated this proceeding as an application for confirmation of the arbitration award in accordance with Chapter 682. Kest v. Nathanson, 184 So.2d 690 (Fla. 4th DCA 1966).

      . We only hold that the release provision in such agreement does not operate to bar appellant’s $5600 liability to appellee in the accounting regarding the H-M-H partnership and that the counterclaim Harris attempted to file did not allege a permissible ground for vacating or modifying the arbitration award.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    HARTFORD INSURANCE COMPANY, Appellant, v. CANAL INSURANCE COMPANY, Appellee.
    No. AO-396.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    R. Jeremy Solomon of Booth, Conner & Solomon, Tallahassee, for appellant.
    Thomas J. Maida of McConnaughhay, Roland & Maida, Tallahassee, for appellee.
   THOMPSON, Judge.

Hartford Insurance Company (Hartford) appeals a final order awarding Canal Insurance Company (Canal) $25,000 on its cross-claim against Hartford. We reverse.

Both Hartford and Canal afforded insurance coverage on a tractor-trailer which was involved in an accident resulting in the death of two persons. Both the Hartford and the Canal policies afforded bodily injury coverage in the amounts of $100,000 per person and $300,000 per accident. During the ensuing wrongful death actions, the trial court determined that Hartford afforded primary coverage for the damages sustained by the plaintiffs. After this determination a settlement was reached in which Hartford paid $100,000, the limit of its coverage, to the personal representative of one estate, and Canal paid the same estate $25,-000. Hartford paid the second estate $70,-000 and Canal paid the second estate nothing.

The cause proceeded on a cross-claim for coindemnity between Hartford and Canal. The trial court receded from its earlier order and found that Canal was the primary carrier by reforming Canal’s policy. The trial court then found that Canal was responsible for paying $170,000 of the total $195,000 settlement and that Hartford was responsible for the remaining $25,000. This court on appeal found that the trial court erred in reforming Canal’s policy and in finding that it was the primary carrier on the loss. Canal Insurance Co. v. Hartford Insurance Co., 415 So.2d 1295 (Fla. 1st DCA 1982), pet. for rev. den., 424 So.2d 761 (Fla. 1983).

Although the allocation of responsibility between the primary carrier and the excess carrier was correct, unfortunately this court in answer to a question on subrogation stated that Canal was entitled to recover the $25,000 it paid. The statement on subrogation was not necessary to the decision of who was the primary carrier and was erroneous. On remand for the entry of an order consistent with this court’s opinion, the trial court relied on the erroneous statement in this court’s opinion and entered the judgment appealed from.

REVERSED.

WIGGINTON, J., concurs.

ERVIN, C.J., specially concurs.

ERVIN, Chief Judge,

specially concurring.

Canal argues that our former opinion in Canal Insurance Company v. Hartford Insurance Company, 415 So.2d 1295 (Fla. 1st DCA 1982), represents the law of the case, since it held, albeit erroneously, that because “the settlement fell within the policy limits, no excess insurance coverage was needed.” Id. at 1299. No doubt the trial court felt bound by this erroneous statement. Nevertheless, the mistake was one of fact, rather than of law. Our Canal opinion recognized that Hartford, the primary insurer, had policy limits of $100,-000.00 per person and $300,000.00 per accident. The opinion further recited that the accident resulted in the death of two Florida residents, and that Hartford had contributed $170,000.00 and Canal, the excess insurer, $25,000.00 to settle the claims between the parties. Id. at 1297.

It is true, as we said in Alford v. Summerlin, 423 So.2d 482, 485 (Fla. 1st DCA 1982), the doctrine of the law of the case applies to “whatever is once established between the same parties in the same case ..., whether correct on general principles or not, so long as the facts on which such decision .was predicated continue to be the facts in the case.” (e.s.) Thus the doctrine would affect erroneous legal principles, but not erroneous factual assumptions. The error in the prior case was the apparent assumption that Hartford had not paid the limits of its coverage to the personal representative of one estate to whom Canal, the excess insurer, had also paid $25,000.00. If the $25,000.00 contributed by Canal had been applied to the settlement of the claim of the personal representative to whom Hartford had paid $70,000.00, Canal obviously would be entitled to indemnification. Such facts, however, never existed. Thus, the facts on which the earlier decision was predicated did not continue to be the facts in the later case; therefore the doctrine is inapplicable.


text:
    Ted Huland MULLIS, Appellant, v. STATE of Florida, Appellee.
    No. AP-383.
    District Court of Appeal of Florida, First District.
    July 29, 1983.

      Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Borden v. State, 402 So.2d 1176 (Fla.1981).

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    GREAT DANE TRAILERS and Jones, Hill & Mercer, Appellants, v. Langene FLIS, Appellee.
    No. AP-483.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    B.C. Pyle of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appellants.
    Herbert H. Hall, Jr., and Ronald J. Langa of Maher, Overchuck, Langa, Cate, Lobb & Webb, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Judge.

In October 1980, while lifting the heavy fork of his employer’s forklift in the course of his employment, this claimant, then aged 62, injured his back. The employer and carrier recognized that claimant’s back injury arose out of and in the course of his employment, § 440.09(1), Fla. Stat. (1980 Supp.), and began paying benefits appropriate for that injury and claimant’s resulting disability. Several months later, while still to some extent disabled from his back injury, claimant sustained a myocardial infarction or heart attack. He claimed and the carrier denied that this was an additional injury caused by claimant’s industrial accident, and the deputy after hearing found that claimant’s heart attack “was a direct and natural result of the Claimant’s prior compensable low back injury, and therefore, the heart attack is causally related to the back injury, and is therefore compensable.” That finding is based on substantial competent evidence, including medical opinion, that claimant’s heart attack was brought on in part by “disabling” and “unbearable” back and leg pain, unremitting and unresponsive to medication, and concomitant anxiety. Claimant’s heart injury having thus been causally connected to his identifiable accident in October 1980, there is no requirement that the heart injury also be shown to have resulted from a strain or exertion unusual to the duties of claimant’s employment. Popiel v. Broward County School Board, 432 So.2d 1374 (Fla. 1st DCA 1983).

The more significant issue before us is that of the carrier’s liability for attorneys’ fees payable to claimant’s counsel, as awarded by the deputy. Section 440.-34(3)(c) provides: “In a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability,” the claimant “shall be entitled to recover a reasonable attorney’s fee from a carrier or employer

The employer and carrier indisputably denied that claimant’s heart injury was one “for which compensation benefits are payable,” § 440.34(3)(c). The question, therefore, is whether the employer and carrier are excused from paying an attorney’s fee because they recognized that claimant sustained some compensable injury in the industrial accident of October 1980, and did pay benefits appropriate to claimant’s back injury before the associated heart injury occurred. We hold that the employer and carrier, unsuccessfully denying compensa-bility for the heart attack, have indeed “de-nie[d] that an injury,” this injury, “occurred for which compensation benefits are payable,” and that an attorney’s fee was properly awarded.

Dolphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), awarded a fee when the carrier accepted as compensable a certain injury to claimant’s body but unsuccessfully denied that the injury was of the catastrophic sort for which special benefits are payable, § 440.15(2)(b). That decision might arguably be confined by analysis giving importance to the legislature’s special classification of catastrophic injuries and enhanced benefits for such injuries. We decline to read Dolphin so narrowly; when Dolphin held in effect that an attorney’s fee award is not prevented by the carrier’s recognition of a compensable injury-producing event, such as the forklift episode in this case, the court held that the carrier incurs a fee obligation by unsuccessfully denying the compensability of any bodily injury, such as this heart injury, which is found on substantial competent evidence to be compen-sable under chapter 440.

Our decision rests both upon the language of section 440.34(3)(c) and upon its evident purpose.

The words of the statute impose an attorney’s fee obligation on the carrier if it “denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensa-bility.” Nothing in this language compels a construction that would limit the term “injury” to the accident-event itself, or to the discrete bodily part that was immediately and obviously “injured.” The statute does not limit fee awards to “a proceeding where a carrier or employer denies that [any] injury occurred for which compensation benefits are payable .... ” Nor can we discern any justification for construing section 440.-34(3)(c) as though it were cast so narrowly. See Dolphin, 402 So.2d at 37:

[W]e note that the Workers’ Compensation Act (Chapter 440, Florida Statutes) is remedial legislation and is intended to be liberally construed in such a manner as to effectuate the purpose for which it was enacted. Gillespie v. Anderson, 123 So.2d 458 (Fla.1960); Great American Indemnity Co. v. Williams, 85 So.2d 619 (Fla.1956). The general tenor of the Act is that the employee shall receive the benefits to which he is entitled with reasonable promptness, consistent with the employer’s right to make a reasonable investigation. Thompson v. W.T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964) .... Additionally, contrary to the usual construction given to statutory provisions changing the common law, statutory provisions concerning attorney’s fees in workers’ compensation proceedings have received liberal construction. City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962).

Dolphin’s references to the purposes of chapter 440, and to interpretations appropriate to those purposes, serve as well in this case. Though revisions to chapter 440 by the 1979 Legislature are said to have been intended to deter attorney involvement on the part of the claimants, that deterrence is to be accomplished by enhancing the self-executing character of the Act, placing the initiative with the employer and carrier, and so dispensing with the need for claimants’ attorneys in the scheme for securing just compensation to injured workers. Obviously, demonstrating the com-pensability of his heart injury was far beyond the competence of this injured worker, and the employer and carrier were content enough to deny it categorically. But the deputy and we have rejected the categorical denial and have found that in claimant’s heart attack “an injury occurred for which compensation benefits are payable.” Since we may be sure that the fact of compensa-bility would never have been demonstrated without the intervention of an attorney in claimant’s behalf, the purpose of securing claimant deserved benefits under chapter 440 compels our choice of the more liberal, rather than the more restrictive, interpretation of section 440.34(3)(c).

There is no other error in the deputy’s order. AFFIRMED.

SHIVERS and NIMMONS, JJ., concur.


text:
    ORANGE NEWS AND MISSION INSURANCE CO., Appellants, v. Mary PRICE, Appellee.
    No. AP-484.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    Bernard J. Zimmerman and Paul J. Morgan of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Thomas R. Mooney and Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The deputy’s order awarding attorneys’ fees for the carrier’s “bad faith” handling of this claim, § 440.34(2)(b), Fla-Stat. (1979), is flawed by factual misstatements and implications that are not sustainable by any view of the record. The asserted cumulative effect of the several episodes relied upon as showing bad faith handling is therefore not as portrayed by the order appealed, and the award of attorneys’ fees must be reversed. The parties agree that the deputy also erred in awarding wage loss benefits from October 30,1980, to February 28, 1981, those benefits having previously been paid. In all other respects the deputy’s order of November 18, 1982, is to be affirmed.

AFFIRMED in part, REVERSED in part.

SHIVERS and NIMMONS, JJ., concur.


author: NIMMONS, Judge.

text:
    Richard STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. AQ-193.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    Michael Allen, Public Defender, and Paula Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory Smith, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Strickland entered a plea of nolo conten-dere to the offense of escape reserving the right to appeal an order denying his motion for discharge under the Speedy Trial Rule. We reverse the trial court’s denial of the motion for discharge.

Strickland escaped from the Lawtey Correctional Institution on May 4, 1982. According to an arrest report, which was completed and signed by a Putnam County Deputy Sheriff and which was received in evidence at the hearing on the motion for discharge, Strickland was arrested on May 4,1982, by the deputy on a charge of escape under Section 944.40, Florida Statutes. No evidence was offered purporting to question the accuracy of the arrest report.

An information for escape was filed on June 8, 1982, and a capias was served on July 12, 1982. On November 5, 1982, Strickland filed his motion for discharge claiming entitlement to discharge. The trial court denied the motion on the grounds that the 180-day speedy trial period did not commence to run until July 12 when the capias was executed.

Fla.R.Cr.Pr. 3.191(a)(1) provides in pertinent part:

The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4).

Section (a)(4) of the Rule defines “custody”:

For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.

It is clear from the facts in this case that Strickland on May 4,1982, was “arrested as a result of the conduct or criminal episode which gave rise to the crime charged.” There is no special provision or exception contained in the Speedy Trial Rule covering escapees. Strickland was, therefore, required to be tried within 180 days from May 4, 1982. Since he was not, he was entitled under the Rule to discharge from the escape offense. See Travis v. State, 364 So.2d 870 (Fla. 1st DCA 1978).

The State urges as an alternative ground for denial of Strickland’s motion that he was not available when the case was called for trial on October 25, 1982. At the hearing, defense counsel vigorously contested the prosecutor’s representation that the Strickland case was on the court’s October 25 trial calendar and that it had to be continued because of the defendant’s unavailability on that date. The contrary recollections of defense counsel and the trial judge were borne out by the Clerk’s court calendar for October 25 showing that the Strickland case was not in fact on the calendar that day.

Finally, the State asserts that Strickland, in effect, waived his rights under the Speedy Trial Rule by reason of his offering no objection to the court’s granting the State’s motion for continuance of the trial which had been scheduled for September 13, 1982. Although a defendant’s motion for continuance has been held to constitute a waiver of the 180-day provision of the Speedy Trial Rule, e.g. Butterworth In and For Broward County v. Fluellen, 389 So.2d 968 (Fla.1980); State v. McCrery, 429 So.2d 739 (Fla. 1st DCA 1983), no such automatic waiver is recognized where the State moves for continuance. Here, the trial court neither specifically ordered an extension of the speedy trial period nor made any express finding that exceptional circumstances existed which would justify entry of such an order. See State v. Burris, 424 So.2d 128 (Fla. 1st DCA 1982); Brunson v. State, 422 So.2d 956 (Fla. 1st DCA 1982).

Accordingly, we reverse and remand to the trial court for the entry of an order vacating judgment and sentence and discharging appellant.

Reversed and remanded.

ROBERT P. SMITH, Jr. and SHIVERS, JJ., concur.


text:
    NORTH AMERICAN VAN LINES, INC., an Indiana corporation, and Joseph H. Crooks, Appellants, v. Curtis Gene BENNETT, Appellee.
    No. AS-74.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    Harold H. Catlin of Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    William T. Kaler of Sistrunk & Kaler, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Junction Bit and Tool Co. v. Institution Mortgage Co., 240 So.2d 879 (Fla. 4th DCA 1970).

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


text:
    Earlene BROWN, Appellant, v. SUNLAND TRAINING CENTER, DIVISION OF RISK MANAGEMENT, Crawford and Company, and the Bureau of Workmen’s Compensation, Appellees.
    No. YY-478.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    David M. Redstone, Tallahassee, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees.
   ON MOTION FOR REVIEW

PER CURIAM.

REVERSED on the authority of Rhonda Jackson v. Dade County School Board, et al., 433 So.2d 1367 (Fla. 1st DCA 1983).

MILLS, BOOTH and SHIVERS, JJ., concur.


author: JORGENSON, Judge.

text:
    Gerda MEYER, Appellant, v. CARIBBEAN INTERIORS, INC., Appellee.
    No. 82-1990.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.

      Daniels & Hicks and Elizabeth K. Clarke, Miami, Richard E. Hardwick, Coral Gables, for appellant.
    Muroff, Milestone & Milestone and Melvin I. Muroff, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   JORGENSON, Judge.

Gerda Meyer, the lessor of certain warehouse property, appeals the final judgment entered upon a jury verdict in favor of her lessee, Caribbean Interiors, Inc., in a breach of lease action. For the reasons which follow, we reverse the judgment of the trial court and remand with directions to enter judgment in favor of Meyer.

Meyer claims that exculpatory clauses in the lease preclude her liability for water damage to wicker furniture stored in the warehouse by Caribbean. Caribbean claims Meyer breached her covenant to maintain the roof and should thus be precluded from avoiding liability as a matter of law.

The intention of the parties to a lease is to be obtained from the unambiguous terms thereof. Donnelly v. Marriott Corp., 266 So.2d 183 (Fla. 3d DCA), cert. denied mem., 270 So.2d 18 (Fla.1972). The parties to the lease were sophisticated businesspersons and, as such, this is not a case of unequal bargaining power. The parties by entering into this lease deliberately distributed the risks and designated who was to obtain the necessary insurance in the event of property damage.

As we stated in Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 684, 688 (Fla. 3d DCA 1962),

In construing a lease as in other contracts it is necessary for the court to gather the meaning of the parties from the whole instrument and not from a few lines taken here and there. [Citations omitted.] Further, it is the duty of the court wherever possible to construe apparently conflicting provisions of a contract so that the provisions do not conflict.

The lessee in the case sub judice, in contrast to Berwick, makes no claim of constructive eviction and in fact never suffered any interruption of its business. There is no dispute that the roof has been repaired by the lessor and that the lessee has never been permanently deprived of the use or beneficial enjoyment of any part of the warehouse. The dispute between Meyer and Caribbean concerns whether they could (by exculpating the lessor from liability and placing the burden on the lessee to procure adequate insurance to cover any loss including water damage) divide the risk of loss for damage to property in the warehouse and, by so doing, not conflict with a lease provision placing on the lessor the burden of maintaining the roof. We hold that the parties can legally enter into an enforceable contract containing such terms. It is our duty to construe, if possible, the provisions of the lease so that they do not conflict. See Berwick.

“[Gjenerally an exculpatory clause has as its purpose the imposition of the insurable risk of personal injury or property damage loss upon the tenant which in no way attenuates the landlord’s contractual covenant to repair .... [TJhese respective provisions are separate and distinct.” Swisscraft Novelty Co., Inc. v. Alad Realty Corp., 113 N.J.Super. 416, 274 A.2d 59, 63 (Super.Ct. App.Div.1971).

In Smith v. Smith, 375 So.2d 1041 (Miss. 1979), the Supreme Court of Mississippi, when faced with facts similar to those of the instant case, said

[E]xculpatory clauses such as here under consideration are not violative of public policy in this state, and ... the clause is not an unreasonable exercise of lessors’ right to contract a limitation on the extent of their damages.
The exculpatory and indemnity provision of the lease was but a division of the risk involved, fully understandable and advisable when the landlord reserves no control over the type and value of the inventory of the tenant. Not only was this clause the lessors’ contract, but it was also the contract of the lessees.
We also consider that there may have been other direct damages, such as diminution in rental value, but are of the view that the exculpatory clause of the contract was properly held a bar to [the lessee’s] recovery of the damages prayed.

Id. at 1042-43.

We agree with the reasoning and conclusion in Smith.

Reversed and remanded with directions.

      . The lease provides:
      SECOND: All personal property placed or moved in the premises above described shall be at the risk of the lessee or owner thereof, and lessor shall not be liable for any damage to said personal property, or to the lessee arising from the bursting or leaking of water pipes, or from any act of negligence of any co-tenant or occupants of the building or of any other person whomsoever.

      TWELFTH: Lessee has inspected the premises and is satisfied as to the condition thereof. The lessor makes no warranty as to the conditions of said premises. The lessee agrees upon the expiration of this lease, to deliver the premises in the same condition as in the beginning of the lease with reasonable wear and tear excluded. The lessor agrees to maintain the roof and the exterior of the building unless damage to the foregoing is as a result of the fault of the lessee, in which case the lessee shall immediately repair said damage. The lessee shall maintain the overhead truck loading doors and the interior of said premises, excepting reasonable wear and tear arising from the use thereof, and to immediately upon demand correct any damage to water apparatus, septic tanks, drain fields, electric lights or any fixtures, appliances or appurtenances of said premises or of the building, caused by the act or neglect of the lessee or any person or persons in the employ of or under control of the lessee. The lessee further agrees, at his own expense, to repair and maintain the septic tank and drain field and in the event that there are additional sanitary facilities required because of the nature of the operation conducted by the lessee, it shall be the lessee’s obligation to' supply such additional facilities; and in the event the septic tank or drain field shall become full and have to be pumped out or replaced, the lessee shall have this service performed at his own expense.
      THIRTEENTH: It is expressly agreed and understood by and between the parties to this agreement, that the landlord shall not be liable for any damage or injury by water, which may be sustained by the said tenant or other person or for any other damage or injury resulting from the carelessness, negligence, or improper conduct on the part of any other tenant or agents, or employees, or by reason of the breakage, leakage, or obstruction of the water, sewer or soil pipes, or other leakage in or about the said building, including its roof.

      TWENTY-EIGHTH: The lessee covenants and agrees to indemnify and save the lessor harmless from and against any and all claims for damages or injuries to goods, wares, merchandise and property, and/or for any bodily injury or loss of life in, upon/or about the demised premises or on the sidewalks immediately adjacent to the premises, arising from any reason whatsoever, during the term of this lease. The lessee further agrees to procure and carry public liability insurance in the sum of not less than One Hundred Thousand and no/100 ($100,000.00) Dollars for injury to any one person, and the sum of not less than Two Hundred Thousand and no/100 ($200,000.00) Dollars for any injury to more than one person in one accident. And said insurance shall also contain a provision for not less than $10,000 property damage. Such insurance shall indemnify both the lessor and the lessee against any loss or claim for damages. The lessee agrees to promptly furnish the lessor with a certificate of said insurance coverage.


author: BASKIN, Judge.

text:
    Robert RIGDON and Betty Rigdon, Appellants, v. BELCHER TOWING COMPANY, Appellee.
    No. 82-2490.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Hayden & Milliken and John D. Kallen, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and William C. Norwood, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

We affirm the trial court’s dismissal of Rigdon’s claim alleging common law negligence occurring during the course of Rigdon’s employment on one of Belcher’s tugs. It is well settled that under general maritime law, a seaman has no common law right of recovery for the negligence of vessel owners or crew members. The Osceola, 189 U.S. 158, 47 L.Ed. 760, 23 S.Ct. 483, 47 L.Ed. 760 (1903). The Jones Act, 46 U.S.C., section 688 (1981), created by Congress to cure this gap in the law, provides the sole remedy available to Rigdon for the alleged negligence of his employer; however, the claim is barred by the statute of limitations.

Affirmed.


text:
    Ovidio FABRE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1243.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.

      Ovidio Fabre, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal from an order denying a motion filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In said order of denial the following is found:

“ORDERED AND ADJUDGED that Defendant’s Motion to Vacate Judgment and Sentence is hereby denied on the grounds that it has no basis in law or in fact. Copy of transcript attached”.

Heretofore we have directed the state to supply us with the transcript referred to in the trial court’s order. The state has failed to comply and therefore we have no alternative but to reverse the order under review and return the matter to the trial court for further proceedings in accordance with Austin v. State, 434 So.2d 350 (Fla. 3rd DCA 1983); Walker v. State, 432 So.2d 727 (Fla. 3d DCA 1983).

Reversed and remanded.


text:
    Curtis Leroy BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2221.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   ON REHEARING

PER CURIAM.

The opinion of this court filed June 7, 1983, is withdrawn and the following opinion substituted therefor.

Brown’s sentence as an habitual offender is reversed and the cause is remanded to the trial court to make the requisite specific finding that such a sentence is necessary for the protection of the public from further criminal activity by the defendant, see § 775.084(4)(a), Fla.Stat. (1981); Ruiz v. State, 407 So.2d 1042 (Fla. 3d DCA 1981), or if such a finding is not supported by the record, to vacate the habitual offender sentence. We recognize this sentencing error despite the defendant’s failure to preserve the issue below. See Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); accord, Spikes v. State, 405 So.2d 430 (Fla. 3d DCA 1981); Warmble v. State, 393 So.2d 1164 (Fla. 3d DCA 1981); but see Hampton v. State, 399 So.2d 441 (Fla. 5th DCA 1981); Thomas v. State, 394 So.2d 548 (Fla. 5th DCA 1981); Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA), approved on other grounds, 394 So.2d 407 (Fla.1980).

Sentence reversed and remanded with directions.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    STATE of Florida, Appellant, v. Santos John MONFRE a/k/a “Fat John,” Appellee.
    No. 83-118.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 1983.
    Rehearing Denied Aug. 31, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Alfonso, 433 So.2d 1357 (Fla. 4th DCA 1983).

REVERSED and REMANDED.

HURLEY and DELL, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I would uphold the trial court’s ruling on the authority of State v. Hilliard, 409 So.2d 211 (Fla. 4th DCA 1982).


text:
    Eric A. SIMON, Appellant, v. Renee M. SIMON, Appellee.
    No. 83-179.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 1983.
    James Miller and Eric A. Simon of Goldberg, Young & Borkson, P.A., Fort Lauder-dale, for appellant.
    Steven J. Gutter and Jeffrey D. Mickel-son of Kahn & Gutter, Fort Lauderdale, for appellee.
   HERSEY, Judge.

This appeal concerns an unsuccessful application by a father to change the custody of a minor child or, in the alternative, to enjoin the mother from moving the residence of the child from the state of Florida.

An earlier dissolution of marriage judgment granted custody to the mother and gave the father extensive visitation privileges. The final judgment contained no prohibition against changing the residence of the minor child. However, upon the mother’s later stated intention to relocate her residence, and thus that of the minor child, to a northern state, the father instituted the present action. After a hearing before a general master, the trial court determined that it was in the best interest of the minor child not to restrict his residence to Florida. The father appeals. We affirm.

In these difficult custody cases requiring detailed analysis of subjective factors there is no perfect solution. The trial court’s function is, therefore, simply to ferret out the best solution and the determinative factor is the best interest of the minor children involved. Under certain circumstances this is synonymous with the best interests of the newly created family unit composed of the children and the custodial parent. D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (1976), aff’d, 144 N.J.Super. 352, 365 A.2d 716 (1976).

Given the delicate balance that must be achieved between the competing interests of children, mother, and father, the appellate courts have consistently held that the trier of fact must be afforded wide latitude in making a final determination and in subsequently modifying that determination. When supported by substantial, competent evidence, those findings should not be disturbed. See Johnson v. Johnson, 422 So.2d 1013 (Fla. 1st DCA 1982) (DCA upheld change in permanent custody where record showed substantial competent evidence that child’s welfare was adversely affected in mother’s custody); Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982) (approving trial court order prohibiting removal of children from state); Barnhill v. Barnhill, 353 So.2d 923 (Fla. 4th DCA 1978) (upheld denial of change of custody where evidence showed neither parent unfit to have custody). See also Costa v. Costa, 429 So.2d 1249 (Fla. 4th DCA 1983) (where custody originally established “reluctantly” in mother and removal from South Florida specifically prohibited, subsequent modification by trial court not supported by substantial competent evidence was reversed limited to those facts).

In the instant case, the lower court’s findings are supported by substantial competent evidence. Thus, we affirm.

DOWNEY and BERANEK, JJ., concur.


author: CAMPBELL, Judge.

text:
    J.G.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-142.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, a juvenile, appeals a delinquency order committing him to the custody of the Department of Health and Rehabilitative Services. We reverse and remand.

The basis for the petition alleging delinquency is that appellant committed burglary. At the arraignment hearing, appellant appeared without counsel. The court informed appellant of the burglary charge, which he admitted. The court then asked appellant if he felt he needed an attorney, to which appellant replied “No.” The court further added, “If you don’t understand all this, I’ll appoint a lawyer to help you. Do you feel that you would like an attorney?” to which appellant responded “Yes sir, I understand.”

At the disposition hearing, appellant again appeared without counsel. The court made no offer of counsel, nor advised appellant of his right to counsel.

The first point raised on appeal is whether the trial court erred in accepting a plea and sentencing appellant who was not represented by counsel.

The United States Supreme Court has held that juveniles are entitled to assistance of counsel in delinquency proceedings. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

The state legislature has provided that where a child appears without an attorney, he shall be advised of his rights to court-appointed counsel. Sec. 39.071(1), Fla.Stat. (1981). The Florida Rules of Juvenile Procedure also impose a duty on the court to advise a child of his right to- counsel and appoint counsel if the child is insolvent. Fla.R.Juv.P. 8.290(c). Furthermore, Florida Rule of Juvenile Procedure 8.290(d)(5) states:

If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the party appears without counsel.

To establish that a person has knowingly and voluntarily waived his right to counsel, the state must prove “an intentional relinquishment or abandonment of a known right or privilege.” Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439 (1977).

Appellant was not properly advised of his right to counsel and did not waive his right to counsel at the arraignment hearing nor at the disposition hearing. The right-to-counsel colloquies at the arraignment and disposition hearings did not demonstrate that appellant knew what his rights were; therefore, he could not have voluntarily relinquished a known right. The inadequate offer of counsel constituted reversible error. R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981).

The second point raised is without merit.

REVERSED and REMANDED for new arraignment and disposition hearings.

HOBSON, A.C.J., and RYDER, J., concur.


author: SHIVERS, Judge.

text:
    Frank R. ADAMS and Thomas H. Rives, Appellants, v. KNABB TURPENTINE COMPANY, INC., Helen Sakorasas Knabb, Joyce K. Truluck, James W. Knabb, Jr., George W. Knabb and Dianne K. Dorman, et al., Appellees.
    No. AN-344.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.

      Christopher F. Wells and Frederick L. Mouser, of Harris, Barrett & Dew, St. Pe-tersburg, and Tyrie A. Boyer, of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellants.
    Julian Clarkson, M. David Alexander, III, and Steven L. Brannock, of Holland & Knight, Tallahassee, for appellees Knabb Turpentine Co. and Amax, Inc.
    David T. Knight and Jeanne M. Trudeau, of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees W.F. Belote and Minter Naval.
    S. Austin Peele, of Darby, Peele, Page & Bowdoin, Lake City, for appellees Earl E. Knabb, Sr., James W. Knabb, Sr., William M. Knabb, and Bernice K. Yarborough and The LaBuena Farms, Inc.
   SHIVERS, Judge.

Adams and Rives appeal the final order of the trial court dismissing appellant’s first amended complaint without leave to amend. Appellants also contend that the trial court erred in transferring venue from Pinellas to Baker County. Although we find no error in the change of venue, we agree with appellants that the trial court abused its discretion in not allowing further amendment of the complaint. Therefore, we affirm in part, reverse in part, and remand.

Appellants, plaintiffs below, are real estate brokers suing for a commission. Ap-pellees fall into several categories. Knabb Turpentine Co., Inc. and LaBuena Farms are the selling corporations. Earl Knabb, James Knabb, et al., are the shareholders of the selling corporations. Amax, Inc. and its subsidiary, Amax Forest, Inc. are the buying corporations. William Belote was a potential individual buyer who was contacted by appellants and originally entered into negotiations for the property with the selling corporations. Belote is associated with Minter Naval Stores, Inc. It is appellants’ contention that although the selling corporations, Knabb Turpentine Co. and LaBue-na Farms, dealt directly with the ultimate buying corporations, Amax and Amax Forest, that Belote was acting as agent for Amax and that, therefore, a commission is due on the sale of the property.

A fair reading of appellants’ amended complaint reveals the following facts. Appellants’ right to a commission is based upon two documents executed by Earl Knabb as agent for the selling corporations and the individual defendants. The documents are a listing agreement and an option agreement granted to Belote. Earl Knabb had contacted appellants because Knabb Turpentine Co. v. LaBuena Farms were attempting to sell a large amount of timberland, 41,000 acres. Pursuant to the listing agreement, appellants contacted prospective purchasers, including Belote. Be-lote expressed an interest in the property and eventually was granted an option to purchase by the selling corporations on September 30, 1975. In October or November of 1975, Amax, through its agent, Robert Wessels, contacted the selling corporations and individual defendants directly for the purpose of purchasing the property and avoiding appellant brokers. Appellants allege that Belote had, in fact, been operating as an agent for Amax and that the selling corporations and individual defendants became aware of this relationship prior to the sale. In the spring of 1976, Amax caused Amax Forest, Inc. to be incorporated for the purpose of taking title to the property. On June 25,1976, Amax Forest entered into an agreement to purchase land owned by LaBuena Farms and the stock of Knabb Turpentine Co. The only asset of Knabb Turpentine Co. at that time was the subject land. This transaction was accomplished and closed on December 15, 1976. Subsequently, Amax Forest, the new sole stockholder, attempted to dissolve Knabb Turpentine Co.

Appellants filed the original complaint in Pinellas County. Appellants are residents of Pinellas County and allege that the debt owed on the brokerage commission was due in Pinellas County. All the defendants sought a change of venue to Baker County. Baker County is the site of the land sold, the county residence of some of the defendants and, generally, a closer site for all the defendants. The Pinellas County court entered an order on December 8,1980, changing the venue to Baker County. That order is here appealed.

In Baker County the original complaint was dismissed with leave to amend. The amended complaint filed by appellants is a voluminous document consisting of twenty-five counts contained in 242 paragraphs. The various counts of the amended complaint can be grouped into several categories. The first twelve counts and Count XV generally allege breach of contract. Counts XIII and XIV allege breach of implied contract or quantum meruit. Counts XVI through XXI allege fraud, deceit and concealment. Count XXII alleges tortious interference with contract. Count XXIII alleges interference with a prospective contractual or business relationship. Counts XXIV and XXV allege interference with a contractual relationship. Appellees moved to dismiss the amended complaint, and, after hearing, the trial court dismissed the amended complaint with prejudice on July 1, 1982. The trial court did not specify the basis for dismissal of each count. Instead, the court dismissed the complaint in toto on the alternative grounds of statute of limitations, corporation survival statute, and/or failure to state a cause of action.

Turning first to the order of December 8, 1980, which changes venue from Pinellas to Baker County, we find that the trial court did not abuse its discretion in transferring venue under the doctrine of forum non conveniens. Section 47.122, Florida Statutes (1981). Although Pinellas County may also be a proper venue for this case, the decision to grant or deny the application for change of venue is within the sound discretion of the trial court and should not be disturbed upon review absent a demonstration of a palpable abuse or grossly improvident exercise of discretion. McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1937); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975). See also Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983). This case involves Baker County defendants and a Baker County business transaction concerning Baker County real estate. Baker County is also a more convenient forum for the Georgia defendant. The only connection this case has with Pinellas County is that appellants reside there and, as a direct result, the cause of action is deemed to accrue there. These facts do not demonstrate abuse of discretion by the trial court. Accordingly, we affirm the order of December 8, 1980.

On the issue of the trial court’s dismissal of appellant’s first amended complaint, we find that the trial court abused its discretion in not granting leave to amend. Leave to amend should not be denied unless the privilege to amend has been abused or the complaint is clearly not amendable. Wiggins v. Tart, 407 So.2d 1094 (Fla. 1st DCA 1982); Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982). Although granting leave to amend rests within the sound discretion of the trial court, all doubts should be resolved in favor of allowing amendment. It is the public policy of this state to freely allow amendments to pleadings so that cases may be resolved upon their merits. Enstrom v. Dixon, 354 So.2d 1251 (Fla. 4th DCA 1978); Weich v. Cook, 250 So.2d 281 (Fla. 1st DCA 1971). In the instant case, appellants clearly have not abused the amendment privilege, having filed only the original complaint and one amendment. In Weich v. Cook, supra, we held that the trial court erred in dismissing a third amended complaint with prejudice. Further, we find that the amended complaint in the instant case makes sufficient allegations to warrant the allowance of another opportunity to amend. It is not clear from the face of this amended complaint that the defects complained of by the appel-lees and the trial court could not be cured by subsequent amendment.

At oral argument, counsel for appellants made it clear that the main relief sought by this appeal was the opportunity to prepare a new amended complaint at the trial level. Therefore, we find it unnecessary to sift through the various counts and allegations of this document. However, for the benefit of the trial court on remand, we believe some general comments are in order concerning the alternative grounds upon which the trial court dismissed all twenty-five counts of the amended complaint.

The statute of limitations is an affirmative defense which should be raised by answer rather than by motion to dismiss a complaint, unless the facts constituting the defense appear affirmatively on the face of the complaint. Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So.2d 690 (Fla. 4th DCA 1980); Williams v. Covell, 236 So.2d 447 (Fla. 1st DCA 1970). In the case at bar, it may be that some or all of appellants’ causes of action are barred by the statute of limitations, but this fact is not clear from the face of the complaint. The gravamen of most of the counts appears to relate to the ultimate sale of the property to Amax Forest, which is alleged to have occurred on December 15, 1976. Since this action was commenced on June 5, 1980, the causes of action alleged which have limitation periods of four years or longer and in which this sale is an essential element of the cause of action are not barred.

Similarly, a defense based upon the corporation survival statute, section 607.297, Florida Statutes (1981), should be treated like a defense based on the statute of limitations in that the statute should be set out as an affirmative defense unless all the facts constituting the defense appear upon the face of the complaint. The complaint sub judice alleges, in paragraph 78, an attempt to dissolve Knabb Turpentine Co. but does not allege that Knabb Turpentine Co. successfully dissolved on any given date.

Accordingly, the order of December 8, 1980, which changes venue to Baker County, is affirmed. The order of July 1, 1982, is reversed to the extent it denies leave to amend, and this cause is remanded with instructions to allow appellants the opportunity to amend their complaint.

ROBERT P. SMITH, Jr. and WIGGIN-TON, JJ., concur.


text:
    Andrew EDGECOMBE, Appellant, v. STATE of Florida, Appellee.
    No. AN-433.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Review of the record revealing no reversible error, we affirm the judgment and sentence. We cannot consider on this appeal any allegations regarding ineffective assistance of counsel. Valero v. State, 393 So.2d 1197 (Fla. 3d DCA 1981).

AFFIRMED.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.