text:
    Willard R. SIMMONS, Appellant, v. The MIAMI HERALD PUBLISHING COMPANY, Appellee.
    No. 83-1087.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Feb. 13, 1984.
    Kozyak & Tropin and Charles W. Throck-morton, IV, Miami, for appellant.
    Steel, Hector & Davis and Frank P. Scruggs, II, Miami, for appellee.
    Before SCHWARTZ, C.J., and PEARSON and JORGENSON, JJ.
   PER CURIAM.

The order denying Simmons’s motion to dismiss for lack of personal jurisdiction is reversed upon the authority of Investors Associates, Inc. v. Moss, 441 So.2d 1144 (Fla. 3d DCA 1983), Hyco Manufacturing Co. v. Rotex International Corp., 355 So.2d 471 (Fla. 3d DCA 1978), and Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974).

Reversed.


source: Caselaw Access Project

author: MIZE, Associate Judge.

license: Public Domain

text:
    Barbara Hester BOCKOVEN, Appellant, v. Albert Marvin BOCKOVEN, Appellee.
    No. 83-97.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Rehearing Denied Jan. 25, 1984.

      Flem K. Whited, III, Daytona Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   MIZE, Associate Judge.

The appellant appeals from an order modifying a final judgment of dissolution of marriage which incorporated a separation and property settlement agreement between the parties. In its modification order, the trial court granted substantial relief to appellee husband relative to property and financial matters which were set forth in detail in the agreement.

In order to determine the issue on appeal, it is necessary to address the question as to whether the agreement is actually a pure property settlement agreement or whether parts of it can be considered payment made in lieu of alimony and thus modifiable. Jurisdiction, and therefore, modification, are dependent upon a determination of the nature of the agreement. Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). It is well settled that an agreement entered into to provide for alimony payments is subject to modification by the trial court. The court, however, does not have jurisdiction to modify an agreement which constitutes a settlement of property rights.

An examination of the record reveals a detailed property settlement agreement which, among other things, provides for periodic payments of money by the husband to the wife. Appellant contends that periodic payments are not necessarily alimony. In Fagan v. Lewis, 374 So.2d 18 (Fla. 3d DCA 1979), the former husband appealed from a final judgment denying his petition for modification of a property settlement agreement entered into with his former wife in connection with a divorce judgment. The agreement required the husband to pay the wife $170.00 per week “for her support and maintenance and discharge of the legal obligation” of the husband. The appellate court in sustaining the trial court found that the terms of the agreement were clearly in the nature of a property settlement in which the rights of the parties had become vested.

Applying the premise set forth in Fagan, supra, it is clear that appellant as well as appellee relinquished substantial property rights which were set forth in detail in the agreement for valuable consideration. The wife sold her business to her husband for $60,000.00 and the transaction was secured by a promissory note and a financing statement. She accepted employment with the husband with a separate employment contract at a set salary for her services. The parties also agreed to sell the marital residence and divide the purchase price. The wife further agreed to relinquish her interest in the jointly-owned Ford van to the husband and the husband agreed to relinquish his interest in the jointly-owned Corvette and motorcycle to the wife. The wife also agreed to transfer the title to the houseboat over to the husband. The only periodic payments of consequence in the actual agreement, as the wife points out, are those made in maintenance of the marital residence, and, under the terms of the agreement, those payments were to end upon the sale of the marital residence. As a result, they cannot be said to be in the nature of alimony payments. Additionally, the sale of the business to the husband appears to be solely a business transaction with no unusual payments that could in any way be labeled as alimony. Finally, that part of the agreement which allows for the employment of the wife by the husband as manager of the husband’s business, while perhaps unwise, appears to be simply an employment contract and no more. The salary the wife was to receive was not more than would be reasonably expected for one in that position and certainly could not be termed in the nature of support, as she was expected to earn the money by working at the business.

A close analysis of the agreement reveals that the property rights of the parties were resolved in a conclusive manner. As such, its provisions are to be interpreted in the same manner as any other contract.

Therefore, the subject agreement, being a pure property settlement agreement, is not modifiable unless the other party alleges or proves fraud, duress, deceit, coercion or overreaching. The husband maintains that he was not represented by counsel during the negotiations and execution of the agreement and was un-knowledgeable in matters of law. This is not a valid ground for modification of a property settlement agreement. In Bubenik v. Bubenik, 392 So.2d 943 (Fla. 3d DCA 1981), the wife filed for dissolution of marriage and the trial court set aside the agreement which had been voluntarily entered into between the parties. On appeal, the district court held:

The law is quite clear regarding the setting aside of property agreements when entered into by knowing adults. All of the cases we are aware of require an allegation and proof of either fraud, duress, deceit, coercion or overreaching on the part of the party obtaining the agreement. We know of no case where a property settlement agreement can be set aside on the grounds that one of the parties had not retained his or her own counsel at the time of the signing.

Id. at 944.

The husband also moved for modification based upon the ground that at the time of the execution of the separation agreement he was informed and believed that the marital residence would be immediately placed upon the market and sold and the proceeds disbursed between the parties but that, since that time, the realtors have declined to accept the listing and the wife has thwarted any attempt to list the property with another real estate firm or to reduce the price of the residence so that the real estate agency would accept the listing. It is submitted that this ground by itself is not enough to warrant a modification of any agreement let alone a property settlement agreement. Furthermore, it is not sufficient proof of fraud, duress or deceit. Likewise, appellee’s other reasons for a modification of the property settlement agreement do not appear to be based upon fraud, duress, deceit or coercion, i.e., that the wife was at the time of the motion living in open cohabitation with her boyfriend in the marital residence while the husband continued to make the mortgage payments and pay all maintenance bills; that the husband discharged the wife for good cause from her position at the husband’s business for taking leave without permission and for embezzling funds in excess of $1,100.00. Neither does the supplement to the motion allege duress, fraud, deceit, coercion or overreaching by the wife. That she took and removed by breaking and entering all the furniture and fixtures of husband’s business and that she also removed the houseboat titled in both their names and caused the same to be run aground and damaged are not grounds in themselves to warrant a modification of the property agreement on the basis of fraud, et cetera. Rather, the appropriate remedies lie in contract, i.e., damages, specific performance, et cetera. Indeed, even if one were to consider the above-stated grounds to constitute fraud, deceit, duress or overreaching, the recited actions of the wife occurred after the contract was entered into and had no effect on the husband’s execution of the agreement which is where any fraudulent act of the wife would have significance.

The wife contends on another point of her appeal that she is entitled to an award of attorney fees by reason of the fact that she is unemployed, having been discharged from her position of employment by the husband. The agreement which is the subject matter of the appeal is not modifiable and, therefore, this situation is not contemplated by Chapter 61, Florida Statutes. Therefore, the coprt does not have authority to award attorney fees.

As an additional point on appeal, appellee contends that since the appellant only provided the transcript from the April 29,1982, hearing for review, the court does not have enough before it to make a finding. However, as this case revolves around the issue of jurisdiction and whether the agreement is modifiable, the question before the court is primarily a question of law and not a question of fact. Therefore, the record is adequate for appellate purposes. While it is important to consider whether or not there was any fraud, duress, deceit, coercion or overreaching in order to determine if the agreement is modifiable, the findings of the trial court sufficiently indicate that there is no substantial, competent evidence of such facts.

The property settlement agreement completely and effectively divided all marital property in contemplation of the dissolution of the marriage. As a result thereof, without a showing by the husband of fraud, deceit, duress, coercion or overreaching on the part of the wife, the trial court was without jurisdiction to consider the modification of the property settlement agreement.

Therefore, the final judgment of the trial court is hereby reversed and the original agreement between the parties is reinstated in all respects without prejudice of either party’s right to seek remedies in contract.

REVERSED.

DAUKSCH and SHARP, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    In re FORFEITURE OF the Following Described Property: $160,000.00 UNITED STATES CURRENCY, et al. Gregory Cliff EVANS, Robert Kimball Anderson and Randy Lynn Lawson, Petitioners, v. In re the Petition of Gerard COLEMAN, Sheriff of Pinellas County, Florida Department of Law Enforcement and City of St. Petersburg Police Department, Acting Participants In a Task Force Known as Coordinated Law Enforcement Area Narcotics Unit (C.L.E.A.N.), Respondents.
    No. 83-2115.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Rehearing Denied Jan. 26, 1984.

      Raymond 0. Gross of Gross & Kwall, Clearwater, for petitioners Evans and Anderson.
    John M. Edman, St. Petersburg, for petitioner, Randy Lynn Lawson.
    Wilfried H. Florin, Asst. County Atty., for respondents.
   HOBSON, Acting Chief Judge.

Gregory Cliff Evans, Robert Kimball Anderson and Randy Lynn Lawson, claimants below, petition this court for a writ of certiorari to review a trial court order which compels them to submit to discovery through request for admissions and written interrogatories on pain of sanctions being considered by the court. The petitioners argue that to answer all of the propounded interrogatories and request for admissions would violate their Fifth Amendment right against self-incrimination. We agree. Finding that the order departs from the essential requirements of law, we grant the petition and vacate the order.

The salient facts of this case are as follows: Petitioners are claimants to property seized by respondents pursuant to sections 932.701-932.704, Florida Statutes (1981). In addition to being claimants in this civil forfeiture proceeding, petitioners are defendants in a pending collateral criminal case.

As required by statute, respondents filed a petition for rule to show cause and for final order of forfeiture. The answer and affirmative defenses that were filed by the petitioners show that the petitioners are actively contesting the respondents’ right to forfeit the seized property.

After filing their answers, the petitioners were served with first interrogatories to claimants and first request for admissions. The petitioners filed responses to the request for admissions and interrogatories basically refusing to answer because the facts and circumstances sought in the discovery requests dealt with the issues involved in the pending criminal charge. The petitioners asserted that to require them to answer the documents would violate their constitutional right against self-incrimination. Subsequently, the respondents filed a motion to test the sufficiency of petitioners’ response and objections to request for admissions and interrogatories and moved for an order compelling discovery. A hearing was held on the respondents’ motion and the order complained of in this petition was entered.

This court has previously addressed the issue of whether the trial court may order a petitioner to submit to discovery on pain of severe sanctions when to answer the discovery request might violate the petitioner’s Fifth Amendment right against self-incrimination.

In Roberts v. Jardine, 358 So.2d 588, 589 (Fla. 2d DCA 1978), this court stated:

We think that the trial court erred in entering its order compelling petitioner to answer interrogatories on pain of the entry of a default judgment. As petitioner correctly points out, the interception of telephone conversations by electronic or mechanical means carries a criminal as well as a civil penalty. Section 934.03, Florida Statutes (1977). Accordingly, the court cannot compel petitioner to answer respondent’s interrogatories as the answers relating to her alleged interception of the telephone conversation might incriminate her. U.S. Const. Amend. V; Article I, Section 9, Florida Constitution.

.To require the petitioners to submit to discovery by answering all of the questions propounded through the request for admissions and interrogatories might incriminate them. Accordingly, we grant the writ of certiorari and vacate the lower court’s order with instructions to the trial judge to limit discovery by requiring the petitioners to answer only those questions which do not impinge on the petitioners’ Fifth Amendment protection.

CERTIORARI GRANTED.

RYDER and DANAHY, JJ., concur.


author: FERGUSON, Judge.

text:
    Carlos HERNANDEZ, Appellant, v. Vivian R. HERNANDEZ, Appellee.
    No. 83-1216.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Rehearing Denied Feb. 13, 1984.
    Max A. Goldfarb, Miami, for appellant.

      Horton, Perse & Ginsberg, and Arnold Ginsberg, Miami, Roger Bridges, Coral Gables, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

This is an appeal from a final judgment of dissolution. The parties were married in 1974 and have one minor child. During the marriage, the husband attended a foreign medical school aided by the financial support of the wife, his parents, and tuition loans. The husband filed his petition for dissolution of marriage in 1982, shortly after his graduation. Since that time, he has been unsuccessful in four attempts to pass the medical examination required for .a license to practice in the United States. At the time of entry of the judgment dissolving the marriage he was employed as an assistant in a medical clinic earning a net $160 per week — less than that earned by the wife in her position as a legal secretary.

Recognizing the husband’s present inability to pay permanent or rehabilitative alimony, yet seeking to compensate the wife for her financial contributions to the husband’s education, the trial court assessed the present value of the husband’s medical training at “in excess of One Million Dollars,” and ordered him to pay the wife twenty-five percent of his net income as a special equity or an equitable distribution. The payments were to be made monthly, to commence only when the husband began to practice medicine until $250,-000 was paid. That provision of the final judgment presents the main issue in this appeal.

In Hughes v. Hughes, 438 So.2d 146 (Fla. 3d DCA 1983), we held that an educational degree is not property subject to distribution as lump sum alimony in a dissolution of marriage proceeding because its value, which must be measured by future earning capacity, is too speculative to calculate. This reasoning applies equally to a special equity, which is a vested interest in property brought into or acquired during the marriage because of contribution of services or funds over and above normal marital duties. Canakaris v. Canakaris, 382 So.2d 1197, 1200 (Fla.1980). Therefore, we reverse the award granting the wife $250,000 as a special equity or an equitable distribution in “the fruits of the husband’s medical career.”

We also reverse the judgment insofar as it makes awards which were not sought by the pleadings. See Leonard v. Leonard, 414 So.2d 554 (Fla. 2d DCA 1982), rev. denied, 424 So.2d 762 (Fla.1983). The final judgment makes the following awards which find no support in the allegations of the wife’s counter-petition and which were not prayed for: (1) life insurance on the life of husband naming the minor child as beneficiary; and (2) private school and college education for the minor child. The general prayer in the wife’s answer/counter-petition for “any other benefits ... which [the court] deems meet and proper” is insufficient to support the award.

Reversed and remanded for further proceedings.

      . This does not preclude the trial judge, on remand, from fashioning some other equitable remedy which does justice between the parties, see Canakaris at 1202, and which does not leave one spouse "short-changed", see id. at 1204. Such an award may include, but is not limited to, reimbursement to the wife for sums advanced by her for the husband’s tuition and other expenses of medical school, reimbursement for her interest in the joint assets sold by the parties in order that the husband could attend school, and relief from liability for tuition loans by the bank to the husband which were co-signed by her.


author: NESBITT, Judge.

text:
    ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW/ACORN, a non-profit corporation; Verna Lee Dukes; Alberta Gidden, individually and on behalf of all those similarly situated, Appellants, v. CITY OF FLORIDA CITY, a municipal corporation; John Calualtti, in his capacity as Mayor of Florida City; Otis Wallace; Juanita Smith; Arturo De Leon; Jennie Notaro, in their official capacity as city commissioners of the City of Florida City, Appellees.
    No. 83-1272.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Rehearing Denied Feb. 18, 1984.
    Joseph P. Hoffman, Leon Sharpe, Miami, for appellants.

      Joseph F. Tomassi, Homestead, for ap-pellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The Association of Community Organizations for Reform Now (the Class) brought this class action seeking an order invalidating certain special assessments levied by the City of Florida City (the City) for a sewer system. The Class also sought to enjoin the City’s foreclosure actions against the properties of those who have not paid the assessment. This is an appeal from a final judgment in favor of the City.

The trial court held that the special assessments for the sewer system improvement, the assessment liens and the foreclosure actions were valid against the members of the Class. The court below made specific findings of special benefit to the Class. The Class contends that the trial court’s holding was unsupported in fact and law.

Factually, the Class asserts that the distances between the properties of the Class members and the system made the system inaccessible. The Class incorrectly asserts that property must abut the improvement to be assessed for it. All property abutting or within the protective proximity of a sewer system improvement may be assessed. City of Hallandale v. Meekins, 237 So.2d 318 (Fla. 4th DCA 1970). Whether the properties of the Class were within the “protective proximity” was a factual determination concerning which both parties had the opportunity to present evidence and expert testimony to the trial court. We will not disturb the factual conclusions of the lower court when, as here, the judgment is supported by sufficient evidence in the record. See Airborne Freight Corp. v. Fleming International Airways, Inc., 423 So.2d 921, 922 (Fla. 3d DCA 1982).

In addition, the Class asserts that there can be no special benefit from the sewer system before the system is completed. In this regard, the Class contends that the trial court’s finding of benefit is unsupported in both fact and law. Legally, the Class asserts that there can be no assessment for a future benefit. This is not correct. The City may calculate the benefit to be derived and levy a special assessment for the improvement before actually completing the improvement. In Atlantic Coastline Ry. v. City of Winter Haven, 112 Fla. 807, 114 Fla. xxv [corrected opinion], 151 So. 321 (1933), the Florida Supreme Court stated that “if specially assessed property is, or may be, enhanced in value by the improvement when made, it is subject to an assessment in proportion to the benefits it will likely receive from the execution of the work.” See also Atlantic Coastline Ry. v. City of Gainesville, 83 Fla. 275, 91 So. 118, 121 (1922) (“it is presumed or assumed that all property abutting on a street to be improved will or may be benefitted_”).

The Class states it is a self-evident fact that there can be no benefit from a sewer one cannot use. The City made the assessments according to “the McCabe plan,” developed by a city engineer, which divided the sewer project into four phases. Under the McCabe plan, each property owner would be deemed to receive a further benefit as each phase of the sewer construction was completed. Those who were actually using the system were assessed at a higher rate than those who were not. The City determined that under the plan all taxpayers would be specially assessed in direct proportion to the benefit received.

The burden was on the Class to overcome the dual presumptions that a sewer system improvement is of special benefit to those in proximity to it, see City of Hallandale v. Meekins (not necessary for city to make specific finding of special benefit to each parcel abutting or within protective proximity of sanitary sewer improvement because such an improvement is by its nature designed to afford special or peculiar benefit to those properties) and that the legislative determination of special benefit is correct. See Meyer v. City of Oakland Park, 219 So.2d 417 (Fla.1969); City of Winter Haven; Atlantic Coastline Ry. v. City of Gainesville. If reasonable men could differ over whether there was a special benefit, the court must defer to the determination of the city officials. City of Gainesville v. Seaboard Coastline Ry., 385 So.2d 1069 (Fla. 1st DCA 1980); City of Hallandale v. Meekins. The Class has clearly failed to sustain its burden of overcoming these presumptions. Whether the assessment is for the future benefit of a completed system or for the present benefit derived from a partially completed system, it is clear that the Class was indeed properly assessed for the sewer system improvement.

The judgment below is affirmed.

      . It is also clear that the assessments are contributions for a completed system, regardless of whether the Class is deemed to have been bene-fitted by partial completion. We have no reason to doubt that the City will complete the system and provide sewer service to the Class. Having levied assessments against the Class, the City has entitled the Class to a completed system and the Class is not without legal recourse to enforce this right should the City fail to complete the sewer.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    TRAVELERS INSURANCE COMPANY and Hurricane of Milton, Inc., Appellants, v. Daniel W. TAYLOR, Appellee.
    No. AR-314.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Rehearing Dismissed Jan. 25, 1984.

      Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    John L. Myrick of Kinsey, Myrick & Troxel, Pensacola, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order awarding claimant an advance lump sum payment of compensation benefits, in an amount equal to the attorney’s fee awarded claimant’s attorney, so that he could immediately pay his attorney the fee. The E/C argue, inter alia, that the award of the advance lump sum payment of compensation benefits was error. We agree and reverse.

The claim for permanent total disability (PTD) was not controverted by the E/C and PTD benefits have been timely paid. Since there was no basis for the assessment of the attorney’s fee against the E/C pursuant to § 440.34(3), Fla.Stat., the claimant is responsible for the payment of his own attorney’s fees. The claimant requested an advance, pursuant to § 440.-20(13)(d), Fla.Stat., from the E/C of a sum sufficient to pay his attorney’s fees. Claimant suggested that the E/C should be repaid in 180 equal monthly payments, without interest, by deducting this sum from his monthly compensation payments. The deputy awarded claimant’s attorney a $12,000 fee to be paid by the claimant, although we question what benefits the attorney obtained for the claimant. The deputy also granted claimant’s request for the advance of benefits in the amount of the fee.

Under the provisions of § 440.-20(13)(d) such an advance payment must be approved by the deputy who must find that the advance payment “is for the best interests of the person entitled to compensation, will not materially prejudice the rights of the employer and carrier, and is reasonable under the circumstances of the case.” The deputy found that this suggested 180-month repayment plan would result in a deduction of $66.67 per month from the claimant’s monthly compensation benefits, whereas if claimant's attorney held 25 percent of each monthly payment and applied it toward the fee, it would cost the claimant $40.83 more per month. The deputy therefore concluded the proposed repayment plan would be a financial advantage to claimant and in the best interest of the claimant since he would receive an additional $40.83 per month. This reasoning overlooks the fact that the 25 percent payment of claimant’s monthly benefits to his attorney would result in his attorney’s fees being paid in less than two-thirds of the 180 months, so that for more than the final third of the payback period the claimant would receive $66.67 more than he would under the advance payment proposal. The increased payments during the latter third of the 180-month period could be in the claimant’s best interest because of inflation and a greater need for the money at a later date than at the present. To say the least, the advantage to the claimant and whether it is in his best interest is questionable. The proposal is obviously in the best interest of the claimant’s attorney.

The deputy also found that such an advance would not materially prejudice the E/C and that the advance was reasonable under the circumstances. The requirement that the carrier advance the amount of the fee and be repaid over a 15-year period, without interest, is prejudicial to the carrier as a matter of law. The carrier is being immediately deprived of the use of its money for up to 15 years. Under current market conditions the carrier could invest this money at an annual interest rate of from 8 to 12 percent. If the carrier loaned or advanced someone $12,000 to be paid back in 180 equal monthly installments at 8 percent annual interest on the unpaid balance it would earn in excess of $8,000 interest. Consequently, the carrier would lose an equal amount of money by lending or advancing it without interest. At an annual interest rate of 12 percent the carrier would lose almost $14,000, more than the sum advanced. Such a proposal and loss by the carrier must of necessity materially prejudice the carrier’s rights and is not reasonable under the circumstances, particularly considering the questionable benefit to the claimant. The deputy is without authority to order an advance payment under the provisions of § 440.20(13)(d) over the objection of the employer or carrier unless he makes the required findings which must be supported by competent substantial evidence. There is nothing in the record that would support a finding that the carrier was not materially prejudiced and that the settlement was reasonable under the circumstances. On the contrary, the requirement of an interest free advance for 15 years affirmatively shows the carrier will be materially prejudiced.

Claimant contends that § 440.-20(12)(b), Fla.Stat., authorizes the deputy to consider the 4 percent discount factor provided for in that section when making a partial advance payment of future compensation benefits awarded under subsection 13. Although he claims the workers’ compensation bar has tended to incorrectly ignore that the 4 percent discount provided for in subsection 12 is applicable to subsections 13 and 14, the workers’ compensation bar has correctly recognized that the 4 percent discount factor is inapplicable to a partial advance payment of compensation under subsection 13. The 4 percent discount factor applies only to the irrevocable lump sum washout settlements of all future compensation benefits that are now authorized, subject to far more restrictions than under § 440.20(10), Fla.Stat. (1977). Although it might be in the claimant’s best interest to obtain a partial advance of future compensation, reduced to its present value, for rehabilitation or other worthwhile purposes, it would not be in the claimant’s best interest to obtain an advance, reduced to present value, in order to pay attorney’s fees. This is because the discounting of the advance payment would have the effect of requiring him to pay interest on the advance obtained to pay his attorney’s fee, when he has the right under § 440.34(4), Fla.Stat., to pay the attorney’s fee over a period of time without interest.

Because the deputy’s findings as to lack of prejudice and reasonableness are unsupported by competent substantial evidence, the order awarding an advance payment of an amount equal to the unpaid attorney’s fee awarded claimant’s attorney, to be repaid to the carrier over 15 years without interest, is REVERSED.

NIMMONS, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

In reaching his decision approving an advance payment of $12,000, as attorney’s fees, to be deducted from claimant’s monthly compensation payments, the deputy expressly relied upon this court’s opinion in ' Sanford v. Alachua County School Board, 425 So.2d 112 (Fla. 1st DCA 1982), which involved an interpretation of Section 440.20(11)(d), Florida Statutes (1977). This statute is identical to Section 440.20(13)(d), Florida Statutes (1979), in requiring that an advance payment be found to be “for the best interests of the person entitled to compensation, will not materially prejudice the rights of the employer and carrier, and is reasonable under the circumstances of the case .... ” Sanford rejected the carrier’s argument that the payment of the four-percent discounted lump sum amount to a permanently totally disabled claimant would materially prejudice its rights simply because such payment would cost it more than the installment payments it was obligated to pay, due to the variance between the statutory discount rate and the interest rates then available in the investment market. The court specifically stated: “The fact that the statutory discount rate is less than investment market interest rates is not a sufficient basis upon which to deny a lump sum payment to a claimant who is otherwise entitled to such an award.” 425 So.2d at 114.

Notwithstanding our decision in Sanford, the majority today holds that an advance payment, and the corresponding deduction of $66.67 per month from claimant’s compensation payments over a fifteen-year period, for the purpose of reimbursing the carrier, materially prejudices it because the .payments are directed to be made without any allowance for interest. Yet in Sanford, the denial of interest to the carrier on the lump sum amount of $89,-678.84, as opposed to the market rate it would have been entitled during the 21.5 years of claimant’s remaining life expectancy, if the amount had been paid in installments, was nevertheless determined not to be prejudicial. In my judgment, the two decisions cannot be rationally distinguished. Perhaps they are best understood in terms of the philosophical preferences shared by the individual members of the panel assigned to consider the particular case.

In the case at bar, the deputy was confronted with the difficult task of reconciling the competing interests of the respective parties in striking a just balance. The deputy found, and the record does not refute, that without the intervention of an attorney, the claimant would in all probability have not secured permanent total disability benefits. The order no doubt reflects the thoughtful awareness that if injured workers are to receive the assistance of able counsel, a means must be afforded the employee to meet his financial legal obligations in those instances in which the employer/carrier is not required by the Act to so compensate. One avenue of payment might be, as the majority has suggested, a reimbursement schedule of $107.50 per month directly to the attorney for a period of time slightly less than ten years. Such a protracted delay in receipt of fees would in all probability make the retention of competent counsel difficult, if not impossible, to obtain. The deputy was cognizant, as the order attests, that the nationwide insurer had the greater financial reserves than the attorney to bear the loss of the use of the money for the length of time involved. The order also reflects the implicit understanding that a totally impaired worker often has no other source of funds with which to' pay for the services of counsel.

It is conceivable that some other method of advance payment might have been preferable to that chosen. This, however, is not the question before us. We are asked only to decide whether the method approved by the deputy is at variance with the provisions of section 440.20(13)(d). Sanford is persuasive authority for the position that it was not. In my judgment, the order on review represents an appropriate exercise of discretion that should not be disturbed on appeal. Cf. Zarahn v. City of Milton, 433 So.2d 41 (Fla. 1st DCA 1983). I would therefore affirm.


text:
    BOARD OF COUNTY COMMISSIONERS OF SANTA ROSA COUNTY and Travelers Insurance Company, Appellants, v. Billy SHEPARD, Appellee.
    No. AR-144.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.
    Rehearing Dismissed Jan. 24, 1984.

      Thomas F. Condon and Bruce A. McDonald of Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    John L. Myrick of Kinsey, Myrick & Troxel, Pensacola, for appellee.
   THOMPSON, Judge.

The facts and the question of law presented in this appeal are virtually indistinguishable from those presented in Travelers Insurance Co. v. Taylor, 444 So.2d 39 (Fla. 1st DCÁ 1983). Accordingly, the workers’ compensation order in this case is reversed on the authority of Taylor.

NIMMONS, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

I dissent for the same reasons expressed in Travelers Insurance Company v. Taylor, 444 So.2d 39 (Fla. 1st DCA 1983).


author: BOOTH, Judge.

text:
    Dorothy AMOS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DISTRICT IV, Appellee.
    No. AB-99.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearing Denied Feb. 1, 1984.

      Mark Greenberg, Jacksonville, for appellant.
    Judith Curtin Fendrich, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Health and Rehabilitative Services affirming the Department’s decision to deny appellant benefits in the Aid to Families with Dependent Children (AFDC) Program, based upon the Department’s finding that Appellant Amos refused to cooperate in establishing the paternity of her daughter. We reverse the agency’s action, since it was based upon “CSE Policy Clearance 79-6,” a rule which has not been promulgated pursuant to the Florida Administrative Procedure Act. Further, the Department has not met its burden of affirmatively showing in the record that the “policy” is a reasonable one.

In the AFDC Program, a mother receiving assistance is required to cooperate with the Department in establishing the paternity of any child born out of wedlock for whom AFDC assistance is requested. If the Department determines that the mother has refused without good cause to cooperate with the agency in establishing paternity, the mother’s needs will be removed from the AFDC grant and a different adult, called a “protective payee,” is then appointed by the agency to receive a reduced grant for the benefit of the children in the household; the mother is not entitled to the use of the grant and is ineligible for Medicaid coverage for herself. One aspect of the AFDC cooperation requirement is that the mother must agree to pursue a paternity action against the alleged father through the Department’s Child Support Enforcement (CSE) Unit.

It is uncontroverted that appellant filled out the Department’s forms entitled “Request to Add a Child to an AFDC Grant” and “Confidential Verification of Birth,” in each of which she named the putative father of her child, and that she later complied with the Department’s request to provide information for its “Absent Parent Basic Information Form,” including the putative father’s address, telephone number, place of employment, and a description of his automobile. According to the AFDC case record, appellant was expressly asked whether any person other than the named putative father could have been the father of her child, to which she replied in the negative. Appellant signed a verified complaint for paternity against the putative father and repeatedly contacted the CSE Unit to determine the status of the paternity action and to offer her assistance.

Subsequent to the filing of the paternity complaint, the putative father requested an HLA (Human Leucocyte Antigen) blood test, to which appellant voluntarily agreed, even though the Department’s cooperation rule does not require an AFDC recipient to participate in a blood test. Appellant appeared with her child at the designated location and submitted to blood sampling for both herself and the child; the samples were sent by the Department to a laboratory in Atlanta which reported the results to the CSE Unit by letter, which stated, in part: “Because the father ... does not share the required haplotype A3-BW35 with [appellant’s child] the alleged father cannot be the biological father of the child.”

Upon receipt of the HLA test results, the CSE Unit determined that appellant should be removed from her household AFDC grant because she had “refused to cooperate” in establishing paternity, based upon a document entitled “CSE Policy Clearance 79-6.” This Policy Clearance essentially provides that when a woman names the putative father of her child, and subsequent HLA testing “excludes” the named putative father, the CSE Unit shall recommend to the AFDC Unit that the mother be removed from the household grant. The CSE Unit voluntarily dismissed appellant’s paternity suit and sent an internal memorandum directing the AFDC Unit to apply CSE Policy Clearance 79-6 to appellant. The CSE Unit did not contact or otherwise advise appellant prior to sending a recommendation to remove her from the AFDC grant. The AFDC Unit sent appellant a notice stating that the Unit had received “information” from the CSE Unit that she had not cooperated in establishing paternity and that she would therefore be removed from the grant and a protective payee designated. No formal notice of adverse action or statement of the right to request a hearing was sent; appellant was merely informed that she should come into the AFDC office on a specified date and bring with her a person who could be designated the protective payee.

Appellant requested a hearing, which was held before an HRS hearing officer and resulted in facts being established as outlined above. At the hearing, Department representatives acknowledged that Amos had consistently named the putative father, that she had provided information sufficient to identify and locate him, that she had voluntarily initiated the paternity action against him, and that she had voluntarily participated in the HLA blood test in the context of the paternity action. Nevertheless, the Department took the position that removal of appellant from the grant for “refusal to cooperate” was required by CSETolicy Clearance 79-6.

The hearing officer entered an order holding that appellant had refused to cooperate in establishing the paternity of her child. In his order, the hearing officer acknowledged that appellant had been consistent in her assertion of the identity of the putative father and that the only contrary evidence was the result of the HLA test, but noted that this court had recently held that the results of HLA blood testing were admissible and concluded that termination of appellant’s grant for refusal to cooperate was therefore appropriate. In so doing, the hearing officer departed from his earlier holding in Counts v. Department of Health and Rehabilitative Services (District 4, Duval County, Unit 99, August 27, 1980), a nearly identical case.

As a condition of receiving federal financial participation, a state must operate its AFDC program in accordance with federal law, which requires, as a condition of eligibility for AFDC, that an applicant cooperate with the State in establishing the paternity of a child born out of wedlock, and further provides that if the applicant refuses to cooperate without good cause, assistance for the child must be provided by means of a “protective payment” to a third party rather than a grant to the applicant. The United States Department of Health and Human Services has promulgated regulations implementing this section at 45 Code of Federal Regulations, Section 232.-12, in which “cooperation” is defined to include specified actions, all of which are relevant to or necessary for establishing paternity and support. In order to implement the provisions of 45 Code of Federal Regulations, Section 232.12, the Florida Department of Health and Rehabilitative Services promulgated Rule 10C-1.62, Florida Administrative Code.

We do not accept the Department’s characterization of CSE Policy Clearance 79-6 as merely a clarification of the definition of “cooperation” in Rule IOC-1.62 and the federal statutes. The Department’s policy directing exclusion of a grant recipient based upon the result of a single HLA test does not derive directly or indirectly from the language of Rule IOC-1.62, Florida Administrative Code, or the federal law which it implements, and is not an unavoidable inference from the test result. Further, the agency requires that CSE Policy Clearance 79-6 be- followed without discretion by every AFDC office in Florida. CSE Policy Clearance 79-6 has every characteristic of a rule as defined by Section 120.52(14), Florida Statutes, except that of promulgation pursuant to the Administrative Procedure Act, Section 120.54, Florida Statutes.

Whether an agency’s statement is a rule which must be adopted in accordance with statutory procedure turns on the effect of the statement and not on the agency’s characterization by some appellation other than “rule.” State Department of Administration v. Harvey, 356 So.2d 323 (Fla, 1st DCA 1977). The facts in this case, considered in light of the relevant case law, indicate that CSE Policy Clearance 79-6 is indeed an agency statement of general applicability that “implements, interprets, or prescribes law or policy” and that it does not fall under the exception of Section 120.52(14)(a) for internal management memoranda, since it affects the private interests of AFDC recipients as well as procedures important to the public. Since CSE Policy Clearance 79-6 has not been promulgated as a rule under the procedures of Chapter 120, Florida Statutes, it is invalid. This is true even under the rule of McDonald v. Department of Banking and Finance Company, 346 So.2d 569, 582-584 (Fla. 1st DCA 1977), since the agency has failed to affirmatively show the reasonableness and factual accuracy of the policy.

Central to the fairness of administrative proceedings is the right of affected persons to be given the opportunity for adequate and full notice of agency activities. These persons have the right to locate precedent and have it apply, and the right to know the factual basis and policy reasons for agency action. State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). Inconsistent results based upon similar facts, without a reasonable explanation, violate Section 120.68(12)(b), Florida Statutes, as well as the equal protection guarantees of both the Florida and United States Constitutions. North Miami General Hospital, Inc. v. Department of Health and Rehabilitative Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978).

The Department’s policy of treating the results of a single HLA blood test as irrefutable proof that a recipient has “refused to cooperate” in establishing paternity has not been justified by the Department. The only apparent reason for the hearing officer’s departure from his earlier finding in Counts v. Department of Health and Rehabilitative Services, supra, that the Department had failed to establish the reasonableness of CSE Policy Clearance 79-6, seems to be his reliance upon an incorrect interpretation of this court’s holding in Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980).

In Carlyon, supra, this court held that the HLA blood test was admissible in an action to establish paternity, where a sufficient predicate had been laid concerning its validity and degree of reliability. The case does not hold that the result of an HLA blood test should be given a preclu-sive effect, nor is it a basis for departure from the traditional requirement of establishing the competency of the evidence and allowing the trier of fact to determine the weight of the evidence. Although the level of accuracy of the HLA blood test, at least when used in conjunction with red blood cell testing, is over 90 percent, the test is not absolutely infallible. The party seeking to introduce the test results as evidence must first establish a sufficient predicate by showing that proper sampling and testing procedures were followed and that precautions established to eliminate human error were observed. This the Department has failed to do.

The Department’s decision to terminate appellant is therefore reversed, appellant is entitled to retroactive benefits to and including November, 1980, and the cause is remanded for further proceedings consistent herewith.

WENTWORTH and THOMPSON, JJ., concur.

      . The Human Leucocyte Antigen (HLA) test is a tissue-typing test which identifies the antigen markers of a child, eliminates those antigens which are identical to antigens carried by the mother, and compares the child’s remaining antigens with those carried by the putative father. Because of the high number of different antigens and the fact that a child’s antigens can only come from his mother and father, it is possible to "exclude” the possibility that a man is the biological father of a child when the testing is properly performed and shows that the putative father lacks an antigen found in the child that could not have been obtained from the mother. The HLA test can also be used, as are other blood tests, to assess the degree of probability that the putative father is the biological father of the child, although it cannot be used to unequivocally prove paternity.

      . Appellant testified that in the eleven and one-half months before her child was born, she had had sexual relations with no man other than the putative father, that when she had discovered that she was pregnant he had offered to pay for an abortion, that she voluntarily participated in a paternity action against him and voluntarily agreed to take the HLA blood test, that she received no notice from the CSE Unit prior to the filing of a voluntary dismissal of her paternity action, and that when she received notice of the voluntary dismissal, she called and objected. The HRS representatives put forward no testimony which contradicted appellant’s statements regarding her contacts with the putative father, nor did the Department present evidence indicating that any other person had engaged in sexual intercourse with appellant during the relevant time period.

      . Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980).

      . The final order in Counts v. Department of Health and Rehabilitative Services was filed August 27, 1980, five months before appellant’s hearing. In Counts, the hearing officer found that CSE Policy Clearance 79-6 was a rule which had not been promulgated pursuant to the Florida Administrative Procedure Act and that the Department had not met its burden of showing that the policy was a reasonable one by presenting competent, substantial evidence of the accuracy of the HLA blood test in general and of the particular test involved in that case. Since the Department failed to show that Counts failed to cooperate in establishing the paternity of her child and that CSE Policy Clearance 79-6, upon which the Department relied in terminating her benefits, was a reasonable policy, the hearing officer reversed the action of the Department and held Counts entitled to retroactive benefits.

      . 42 United States Code, Section 602(a)(26)(B).

      . Rule IOC-1.62 F.A.C., in effect at the time of the proceedings in the case at issue, was repealed in 1981 and replaced by Rule IOC-1.96. The changes in the rule, defining and establishing the requirement of “cooperation” by the AFDC recipient, are of no consequence to the outcome of this cause.

        .McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Department of Health and Rehabilitative Services v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981).

      . Florida Cities Water Co. v. Public Service Commission, 384 So.2d 1280, 1281 (Fla.1980); An-heuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1181-1182 (Fla. 1st DCA 1981).

      . Carlyon v. Weeks, 387 So.2d 465, 466 (Fla. 1st DCA 1980).


author: ZEHMER, Judge.

text:
    Chris SMART, Appellant, v. MARATHON SEAFOOD and American Casualty Company, Appellees.
    No. AN-358.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    David R. Howland, of Ress, Gomez, Rosenberg & Howland, North Miami, for appellant.
    Donna S. Catoe, of Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for appellees.
   ZEHMER, Judge.

The claimant, Chris Smart, appeals an order denying his claim for worker’s compensation benefits on the ground that his exclusive remedy is under the federal Longshoremen’s and Harbor Workers’ Compensation Act. We reverse.

On June 20, 1978, three weeks after being employed by Marathon Seafood to work as a helper in Marathon’s shrimp processing and packing house, claimant was engaged in packing shrimp when he experienced sharp pains described as being like electric shocks running down both legs. He sought medical attention for this injury and filed a worker’s compensation claim under chapter 440, Florida Statutes. Marathon had worker’s compensation coverage with American Casualty Company as part of its employer’s liability insurance policy, in which Marathon’s business classification for premium purposes was listed as “wholesale fish dealer.”

The carrier denied the claim on the ground, among others, that the deputy commissioner lacked jurisdiction under section 440.09(2), Florida Statutes (1977) because the claimant’s injury was covered by the federal Longshoremen’s and Harbor Workers’ Compensation Act, 38 U.S.C., §§ 901, et seq. Both the employer, Marathon, and the claimant contended the deputy had jurisdiction under chapter 440 because claimant was essentially engaged in a manufacturing or processing business that took place on land and that he was not a “maritime employee” covered by the federal act. After hearing substantial evidence on this jurisdictional issue, the deputy commissioner held that the claimant’s injury was covered by the federal act and dismissed the claim.

At the time of claimant’s injury, Marathon Seafood was in the business of purchasing and processing shrimp, lobster, and other kinds of seafood at its processing facility and selling the processed seafood at wholesale. Marathon owned and maintained a dock adjacent to its plant and purchased shrimp directly from independently owned and operated boats (eighteen tons and over) at its dock. The shrimp boats were unloaded by an employee of Marathon (other than claimant) by use of a winch which would lower a bucket to the hold of the boat, where it would be filled by the boat crew. The bucket would then be hoisted and the shrimp transferred directly to a holding tank attached to the processing building. Once deposited in the bank, Marathon became owner of the shrimp, which it would then process and sell at wholesale.

The processing would begin when the shrimp were placed in the holding tank containing a washing solution and preservative. Upon transfer from that tank, the heads would be removed by a crew of workmen (not the claimant) and the shrimp would be placed in a second tank to again be washed and treated with a preservative. The shrimp would next be placed in a grading machine which separated them according to size. The sorted shrimp would then be weighed and packed with ice in large boxes. The boxes would be removed to a refrigerated cooling room and stored until resold to Marathon’s customers and loaded on trucks for delivery. Two or three times a week, Marathon’s customers typically would take delivery at Marathon’s plant, using their own trucks or trucks operated by another shrimp wholesaler.

Claimant’s employment primarily involved processing the shrimp after grading by weighing the sorted shrimp, packing them in ice, and moving the boxes to the cooler. Claimant was required to lift plastic bags of sorted shrimp weighing forty to seventy pounds approximately thirty inches onto a scale, add enough shrimp to total 105 pounds, pack these shrimp in ice, and move the boxes by dragging or lifting them to the cooler. Claimant also assisted in loading the customers’ trucks on occasion. Other miscellaneous jobs occasionally performed by claimant when he was not packing shrimp included lubricating machinery in the plant and the winch at the dock, pulling weeds, mowing, painting, and cleanup. Claimant, however, was not hired for, and in fact never engaged in, the unloading of shrimp from the shrimp boats to the holding tank.

The deputy commissioner personally observed the premises and described them in her order:

As evidenced by the photographs in evidence, the entire premises are moderately sized. From the dock where the boats are unloaded to the inside of the processing house itself where the heading, grading, weighing and packing is done, there is a distance of at most 20 to 25 feet approximately. Thus, the entire shrimp processing operation from unloading to ice storing, to finally re-loading on the trucks, takes place in a fairly self-contained and moderately sized area. Once the shrimp are unloaded directly from the boats, the balance of the MARATHON SEAFOOD operation (including the heading, grading, weighing, packing, and finally storing in ice) takes place inside the processing house where the machines are located approximately 25 feet off the dock.

The deputy commissioner concluded from these facts that claimant met both prongs of the situs and status test for determining coverage under the longshoremen’s act, as delineated by the Supreme Court in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73-74, 100 S.Ct. 328, 332, 62 L.Ed.2d 225 (1979):

The ... situs test provides compensation for an “employee” whose disability or death “results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” § 3(a), 33 U.S.C. § 903(a). The status test defines an employee as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker....” § 2(3), 33 U.S.C. § 902(3). To be eligible for compensation, a person must be an employee as defined by § 2(3) who sustains injury on the situs defined by § 3(a).

We agree with the deputy commissioner that the situs prong of the test is met in this case. The processing and storage facility and dock were joined as an integral facility. Both were adjacent to navigable waters. The dock handled the unloading of shrimp boats weighing over eighteen tons. Claimant’s alleged injury occurred on a “contiguous dock area related to longshore ... work.” P.C. Pfeiffer Co., supra, 444 U.S. at p. 79, n. 9, 100 S.Ct. at p. 335, n. 9.

We disagree, however, with the deputy commissioner’s conclusion that claimant also met the status prong of the coverage test. Under the statutory definition of employee in 33 U.S.C. § 902(3), only persons employed to perform longshoring operations or harbor work relating to shipbuilding or repair fall within the act’s coverage. As this case involves no question of harbor work, coverage exists only if it can be found that the claimant’s usual work activity was an integral part of some longshore activity, i.e., the unloading of shrimp boats.

In P.C. Pfeiffer Co. v. Ford, supra, ap-pellee Ford was injured while working on a public dock in the Port of Beaumont, Texas, securing vehicles on railroad flat ears after removal from the ship for further shipment to their ultimate destination. Ap-pellee Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse to await further movement from the warehouse to the ship. Regarding the purpose of the 1972 amendment to the longshoremen’s act expanding coverage to certain land-based injuries, the Supreme Court observed:

The discussion of coverage in the legislative history also shows that Congress intended the term ‘maritime employment’ to refer to status rather than situs. Committees in both Houses of Congress recognized:
‘[T]o take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo.’ 444 U.S. at pp. 79-80, 100 S.Ct. at pp. 335-336.

The Supreme Court affirmed coverage of both appellees’ injuries under the act, holding:

We believe that § 2(3)’s explicit use of the terms “longshoreman” and “other person engaged in longshoring operations” to describe persons engaged in maritime employment demonstrates that workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act_the crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment. [Northeast Marine Terminal Co. v. Caputo ], Id., [432 U.S. 249] at 267, n. 28, 97 S.Ct. 2348 [at 2359, n. 28, 53 L.Ed.2d 320]. A worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. We therefore hold that Ford and Bryant were engaged in maritime employment because they were engaged in intermediate steps of moving cargo between ship and land transportation. 444 U.S. at 82-83, 100 S.Ct. at 337.

In conclusion, the Supreme Court declared that its decision “does not extend coverage to all workers in the situs area” and that “a definition of maritime employment that reaches any worker who moves cargo between ship and inland transportation will enable both workers and employers to predict with reasonable assurance who on the situs is protected by the 1972 Act.” Id., at 83-84, 100 S.Ct. at 337-338.

We agree with claimant’s contention that he was not a maritime employee under the Supreme Court’s definition because he was not engaged in moving cargo “directly from ship to land transportation” or “a worker responsible for some portion of that activity.” P.C. Pfeiffer Co., supra, 444 U.S. at 82-83, 100 S.Ct. at 337. Claimant never unloaded the shrimp boats. His primary duty was to process shrimp which had been purchased by Marathon for resale to its customers. That shrimp had been unloaded by other Marathon employees whose status under the longshoremen’s act is not at issue here. Unlike the cases cited and relied on by the carrier and the deputy commissioner, Marathon’s business was not primarily a traditional longshore operation that involves the movement of cargo from ship to a warehouse or holding point for further transportation by land to the ultimate consigned destination or consignee. On the contrary, the shrimp unloaded at Marathon’s dock was not consigned for ultimate delivery to any person or entity other than Marathon. When the shrimp was unloaded from the boat into Marathon’s holding tank, it had reached its ultimate consigned destination insofar as maritime transportation was concerned. Any activity that might be characterized as longshoremen work ended at that point.

There would be no question that this is so had Marathon received the shrimp at its plant adjacent to the dock for cooking or canning and packaging for sale and shipment to its customers. We can see no valid reason to reach a different result simply because the processing in this case involved only removing the shrimp heads and cleaning, preserving and packing the fresh shrimp in ice for storage and sale to customers. To hold otherwise might well amount to placing all workers in fish packing or canning operations adjoining navigable waters under the longshoremen’s act. We do not believe such a construction of the act is within the congressional intent nor required by the Supreme Court’s decisions in P.C. Pfeiffer Co., supra, and Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

.Nor are we persuaded by the carrier’s arguments that claimant was a maritime employee because he occasionally lubricated the unloading winch and other equipment on the dock and occasionally cleaned the dock area when not busy with his primary duties of weighing and packing shrimp. To permit such occasional incidental duties to govern claimant’s status as a maritime employee would, in our opinion, permit workers to “walk in and walk out of coverage,” a special concern of Congress underlying the 1972 amendments, P.C. Pfeiffer Co., supra, 444 U.S. at p. 83, n. 18, 100 S.Ct. at p. 337, n. 18, or permit coverage to “shift with the employer’s whim.” Id., at 83-84, 100 S.Ct. at 337-338. We conclude that the longshoremen’s act covers an employee only if a significant portion of his regularly assigned duties requires that he perform work related to traditional longshoremen operations or harbor work.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.

      . Section 440.09(2) provides:
      No compensation shall be payable in respect of the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen's and Harbor Worker’s Compensation Act, or the Jones Act.

      . Those decisions involved employees of a typical longshoremen's operation whose function was to prepare goods for shipment, hold or load and unload cargo on and off ships that was consigned to persons or ultimate destinations beyond a plant or processing facility located at dockside, or otherwise involved typical harbor worker’s employment related to the construction or repair of ships; e.g., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) ("checker” working at pier checking and marking cargo unloaded from vessel and terminal laborer at pier rolling dolly loaded with ship’s cargo into consignee’s truck); Prolerized New England Co. v. Benefits Review Board, 637 F.2d 30 (1st Cir.1980) (employee maintained and repaired shear and other equipment used in preparing metal for shipment on vessels — "We are satisfied that the shear was an intermediate and necessary step in the process of moving cargo from the land transportation on which it arrived to the ships on which it left.” 637 F.2d at 37.); Graziano v. General Dynamics Corp., 663 F.2d 340 (1st Cir.1981) (mason repairing shipyard buildings); Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (5th Cir.1981) (foreman supervising unloading of pilings from barge to shore); Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750 (5th Cir.1981) (carpenter engaged in construction of scaffolding beneath pier extending over river); Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir.1980) (carpenter engaged in construction of pier); Odom Construction Co., Inc. v. U.S. Dept. of Labor, 622 F.2d 110 (5th Cir.1980) (construction worker attempting to remove concrete blocks used for mooring barges from navigable canal); Price v. Norfolk & Western Ry. Co., 618 F.2d 1059 (4th Cir.1980) (employee painting grain loading and unloading equipment as part of routine maintenance); Newport News Shipbuilding & Dry Dock Co. v. Graham, 573 F.2d 167 (4th Cir. 1978) (employees of submarine shop and foundry working on machine used in shipbuilding); Hernandez v. Mike Cruz Machine

        Shop, 389 So.2d 1251 (Fla. 1st DCA 1980) (employee disassembling a ship’s engine); Habrew Maritime International v. Williams, IRC Order 2-3673 (January 31, 1979) (forklift operator moving cargo from warehouse to ship).


author: PER CURIAM.

text:
    PREFERRED EQUITIES CORPORATION, Appellant, v. Steven M. ROSEN and Richard A. Katz, d/b/a Katz & Rosen, Attorneys at Law, Appellees.
    No. 82-2157.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.
    Rehearing Denied Feb. 13, 1984.

      Arthur L. Rothenberg, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Richard A. Sherman, Miami, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Rosen represented Preferred in an action to recover a brokerage commission. Preferred moved for a voluntary dismissal which was granted without prejudice. Six months later a new lawyer representing Preferred filed the same action which came before the same judge. The defendants moved for dismissal. After examining “the file herein, the file [from the complaint filed by Rosen],” reading memorandums of law and hearing oral argument, the trial court found the order in the first action to be “in need of some clarification” and found, on the merits of the second action, that the brokerage contract was unenforceable. The trial court amended the order in the first action by changing it to a dismissal with prejudice and dismissed with prejudice the complaint in the second action. Following an appeal on the merits, we affirmed, see Preferred Equities Corp. v. Diaz-Asper, 370 So.2d 472 (Fla. 3d DCA) (mem.), cert. denied mem., 379 So.2d 208 (Fla.1979). Preferred then brought suit against Katz & Rosen for negligence, alleging that Rosen drafted the complaint in the first action inadequately. Katz & Rosen moved for a summary judgment. The trial court granted the motion.

Because the trial court in the second action was without jurisdiction to amend the order dismissing without prejudice the first action, see Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978); Tinsley v. McDonald, 378 So.2d 816 (Fla. 3d DCA 1979); Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, 371 So.2d 492 (Fla. 4th DCA 1979), and because Preferred lost on the merits in the second action, we find a conspicuous absence of any causation or damages attributable to the drafter of the first complaint and affirm.

Affirmed.


text:
    TRANS PACIFIC INDUSTRIES, INC., a Delaware corporation, C.I.C. International Corp., f/k/a Capetronic International Corp., and Leonard Kaye, Appellants, v. TRANS PACIFIC INDUSTRIES, INC., a Florida corporation, David Topp, and Jack Delaster, Appellees.
    No. 83-1578.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.
    Rehearing Denied Feb. 13, 1984.
    Valdes-Fauli, Richardson, Cobb & Petrey and William C. Crenshaw, Miami, for appellants.

      Lanza, Sevier, Womack & O’Connor, Coral Gables, and Kevin P. O’Connor, Miami, for appellees.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See: Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630 (5th Cir.1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1981); Bloom v. A.H. Pond Co., Inc., 519 F.Supp. 1162 (S.D.Fla.1981); Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982); A.B.L. Realty Corp. v. Cohl, 384 So.2d 1351 (Fla. 4th DCA 1980); Radlin v. Aero Systems, Inc., 340 So.2d 1260 (Fla. 3d DCA 1976); Atwood v. Calumet Industries, Inc., 308 So.2d 555 (Fla. 4th DCA 1975); sections 48.181, 48.193(1), Florida Statutes (1981).


author: HENDRY, Judge.

text:
    Ernest REWOLINSKI, the American Federation of State, County, and Municipal Employees, AFL-CIO, and AFSCME Council 79, Appellants, v. Bert FISHER, John Withers, Guillermo Almedia, Elliott Flanders, Edward Mitchell, Elinor Hobbs, George F. Montano, James Stephens, Jimmy Duncan, Lonzell Bell, Myrtle Robinson, Norman Polycarpo, Willie Singletary, Andy Anderson, Clyde Witherspoon, and Maggie Seymour, Appellees.
    No. 83-1836.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.
    Rehearing Denied Feb. 13, 1984.

      Steel, Hector & Davis and Talbot D'Al-emberte and Judith M. Korchin and Denise R. Brody, Miami, Kirschner, Weinberg, Dempsey, Walter & Willig, Washington, D.C., for appellants.
    Cristol, Mishan & Sloto and Steven Mish-an and Julie Feigeles, Miami, for appellees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

Appellant American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter “AFSCME”) appeals from an interlocutory order denying its request for an injunction and for immediate possession of property which it sought against the president of AFSCME and the local union itself, Local Union 1363 (“Local 1363,” or “the local”), appellees herein. AFSCME also appeals from the trial court’s order insofar as it grants judgment in favor of the counterclaimant for damages. We have jurisdiction pursuant to Rule 9.130(a)(3)(B) and (C)(ii), Florida Rules of Appellate Procedure. Because we find that the trial court was clearly in error both in its refusal to grant the injunction to enforce the administratorship imposed on Local 1363, and in its decision to recognize Local 1363’s counterclaim, we reverse the decision of the trial court and direct it to enter the injunction and to order the local to comply forthwith in all respects with the administratorship.

FACTS

A brief recitation of the course of events is necessary to explain how an international union and one of its locals reached such a bitter point in their relationship. Local 1363 was formed in 1951 and was affiliated directly with AFSCME. In 1979, Council 79, a statewide organization of all of the Florida local unions, was formed. The purpose of Council 79 was to provide such services to the locals as lobbying, representation and organization. In addition, Council 79 was to assume the financial obligation of all of the locals’ operation expenses and salaries. Funding for Council 79 came from the payment of per capita taxes which was a percentage of the dues paid by each AFSCME member in Florida, Appellees assert that Council 79 stopped providing services and expenses after 60 days of operation and that it never resumed its obligations. In July, 1980, Local 1363, complaining about the lack of services, served notice to AFSCME of its intent to disaffiliate from Council 79. Though it never completed the internal union procedures necessary to disaffiliate, appellees strongly contend now that the current attempt to impose an administratorship is the culmination of years of retaliatory actions by the international stemming from the attempted disaffiliation. Appellants, however, argue that the administratorship was imposed because Local 1363 refused to cooperate with Local 1184, a new local composed of former Local 1363 School Board employees who were dissatisfied with the service they were getting from Local 1363. Local 1363 unsuccessfully fought the chartering of Local 1184 through all levels of internal union procedures, up to and including taking the issue to the floor of the full International Convention. In addition to refusing to turn over all books, records, and dues monies which would help Local 1184 to provide service to the School Board employees, Local 1363 sent a telegram to AFSCME on September 21, 1982 announcing that it would no longer pay per capita taxes to Council 79. On September 25, 1982, the president of AFSCME, finding that an emergency situation existed, imposed an administratorship on Local 1363 pursuant to Article IX, § 30 of the International Constitution. Pursuant to Art. IX, § 33 of the Constitution, a hearing was held before a member of the Judicial Panel on the issue of the administratorship. The hearing officer affirmed the decision of the International President to impose the ad-ministratorship. Local 1363 then took an appeal to the International Executive Board, pursuant to Art. IX, § 35. The Board also ratified the actions of the International President. When Local 1363 continued to refuse to comply with the admin-istratorship, AFSCME brought this action for enforcement. After trial, the lower court denied appellants’ motion for an injunction and ruled for appellees on their counterclaim of bad faith on the part of the International. This appeal ensued.

LEGAL DISCUSSION

I.

Local 1363 argued, and the trial court apparently found, that in imposing the trusteeship the International proceeded in violation of its own constitution, denied the local a fair hearing, and acted maliciously or in bad faith. As we will see, however, Local 1363’s arguments all reduce to a single proposition. In order to impose this trusteeship, the International exercised powers granted it under its constitution (in effect a contract between the International and the local) in various ways evidencing bad faith. The initial question we face, therefore, concerns the general standards a court is to apply in a setting like this, in assessing charges of bad faith.

It is a well established proposition in Florida law that ordinarily courts will not intervene in the internal affairs of labor unions or other voluntary associations, Harper v. Hoecherl, 153 Fla. 29, 14 So.2d 179, 180 (1943) (“The great weight, if not the universal rule, of the authorities is to the effect that ordinarily courts will not interfere to settle differences between a labor union, or other voluntary association, and its members.”); Stanton v. Harris, 152 Fla. 736, 13 So.2d 17, 18 (1943) (“It appears to us that this is nothing more than an internal dispute between members and officers of a trade union, concerning which a court of equity should not interfere.”). See also Truck Drivers, Warehousemen and Helpers of Jacksonville, Local Union 512 v. Baker, 473 F.Supp. 1120 (M.D.Fla.1979); McCune v. Wilson, 237 So.2d 169 (Fla.1970); Grand Lodge, K.P. of Florida v. Taylor, 79 Fla. 441, 84 So. 609 (1920); Bove v. PBW Stock Exchange, Inc., 382 So.2d 450 (Fla. 2d DCA 1980). Judges may properly act to change the results of internal association politics only in a few circumstances. The Florida supreme court, in the leading case of McCune v. Wilson, 237 So.2d 169 (Fla.1970), summarized these circumstances: the results of internal association processes are subject to judicial reversal only if (1) the association’s action adversely affects “substantial property, contract or other economic rights” and the association’s own internal procedures were inadequate or unfair, or if (2) the association acted maliciously or in bad faith. Id. at 173, 171. A showing of malice or bad faith requires “a clear allegation and convincing proof.” State ex rel. Barfield v. Florida Yacht Club, 106 So.2d 207, 211 (Fla. 1st DCA 1958), quoted in McCune v. Wilson, supra, 237 So.2d at 171.

In this case, because it arises out of a dispute between a union local and its governing international organization, the Florida policy of only carefully limited judicial involvement in internal association matters takes on added force. Florida courts have repeatedly stated that in cases involving union matters, analogous federal precedent is highly relevant. School Board of Polk County v. Florida Public Employees Relations Commission, 399 So.2d 520 (Fla. 2d DCA 1981); North Brevard County Hospital District v. Florida Public Employees Relations Commission, 392 So.2d 556 (Fla. 1st DCA 1980); Public Employees Relations Commission v. District School Board of DeSoto County, 374 So.2d 1005 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980). Notably, federal case law under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401, et seq., reinforces and elaborates on the traditional Florida rule of non-intervention. Moreover, it focuses more precisely on the issue posed in this case: the propriety of the imposed trusteeship.

II.

Two provisions of the LMRDA are particularly pertinent to the case sub judice. 29 U.S.C. § 462 states:

Trusteeships shall be established and administered by a labor organization over a subordinate body only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization.

29 U.S.C. § 464 states, in relevant part:

Any member or subordinate body of a labor organization affected by any violation of this subchapter (except section 461 of this title) may bring a civil action in any district court of the United States having jurisdiction of the labor organization for such relief (including injunctions) as may be appropriate ...
(c) In any proceeding pursuant to this section a trusteeship established by a labor organization in conformity with the procedural requirements of its constitution and bylaws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided in accordance with its constitution or bylaws shall be presumed valid for a period of eighteen months from the date of its establishment and shall not be subject to attack during such period except upon clear and convincing proof that the trusteeship was not established or maintained in good faith for a purpose allowable under section 462 of this title.

The LMRDA, recognizing that many trusteeships are imposed for legitimate purposes, creates a presumption of validity which attaches to a trusteeship established by a labor organization in conformity with the procedural requirements of its constitution and bylaws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided. This presumption of validity can only be overcome by clear and convincing proof that the trusteeship was not established or maintained in good faith for a purpose allowed by § 462 of the LMRDA. International Union, Allied Industrial Workers of America v. Local 589, 693 F.2d 666 (7th Cir.1982); Cascade Local Lodge 297 v. International Ass’n of Machinists, 684 F.2d 609 (9th Cir.1982); Hotel and Restaurant Employees and Bartenders International Union v. Rollison, 615 F.2d 788 (9th Cir.1980); Benda v. Grand Lodge of International Ass’n of Machinists & Aerospace Workers, 584 F.2d 308 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979); Graphic Arts International Union v. Local 529, 529 F.Supp. 587 (W.D.Mo.1982); District 11 v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, 506 F.Supp. 1246 (D.Mont.1981). Thus, courts may only review three things: the relevant provisions of the constitution and bylaws detailing when the international may impose a trusteeship, the fairness of the hearing procedure provided by the international, and whether the trusteeship was imposed or maintained for an invalid reason or from bad faith. If the imposition of the trusteeship comports with the requirements of the LMRDA, courts may not intervene. See cases cited, supra. Indeed, the United States Court of Appeals for the Fifth Circuit has gone so far as to hold that when the purpose of the trusteeship is clearly proper, precise compliance with the labor organization’s constitutional procedures is not necessarily required as long as there is substantial compliance consistent with the purpose of the LMRDA. Jolly v. Gorman, 428 F.2d 960 (5th Cir.1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971). In addition, mere ritual invocation of the term “bad faith” is not sufficient to trigger judicial intervention. The standard enunciated by the LMRDA, paralleling that applied by Florida courts in similar situations, is clear and convincing evidence. Since the statute presumes the validity of the trusteeship, the burden is upon those challenging its imposition to prove otherwise. If bad faith is proven, however, the trusteeship is void. International Union, Allied Industrial Workers of America v. Local 589, supra; Higgins v. Harden, 644 F.2d 1348 (9th Cir.1981); Local Union 13410, United Mine Workers of America v. United Mine Workers of America, 475 F.2d 906 (D.C.Cir.1973).

III.

In this case, the local alleges bad faith as justification for judicial intervention. Against the backdrop of the preceding discussion, it is clear that for the local to prevail the record must reflect clear and convincing evidence of the International’s bad faith. In fact, however, the record does not provide a basis for such a finding. Moreover, from the record it is evident that the trial court obviously erred in not applying a clear and convincing standard in making his finding of bad faith on the part of the International. Instead, in drawing inferences of bad faith from alleged procedural irregularities in the course of the International’s efforts to regain control over its local, the trial court placed the burden on the International to prove good faith. This error was clearly material. The trial court portrayed its finding of bad faith as following from the fact of various procedural irregularities in the International’s trusteeship proceedings. It will become clear, however, that these irregularities would hardly support a conclusion of clear and convincing bad faith.

Initially, it is clear from the record that the International, whatever its reasons in fact, could have plausibly defended its trusteeship decision on several grounds. When Local 1363 refused to cooperate with the new Local 1184, the conflict frustrated 2,000 School Board employees in their choice of a certified bargaining representative. Moreover, the insubordination of ap-pellee Fisher was a major issue for the International. Statements by the trial court as well as enclosures in the record reflect that appellee Fisher would not cooperate with the International’s requests, nor would he cooperate with Council 79 to resolve the problems between the Council and Local 1363 unless in return he received control over the 2,000 School Board employees and members of his local, and control (or shared control) over the activities of Council 79. The International could plausibly conclude that appellee Fisher had ceased to appreciate that “[i]n return for the strength the local gets from the international, it accepts a measure of international control.” Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 907 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). Finally, there were allegations of financial wrongdoing, both concerning the refusal of Local 1363 to pay the required per capita tax to Council 79 and the administration of what was once a very large local treasury.

We do not substitute our judgment for that of the trial court concerning the facts in this case. It is clear from the record, however, that reasons other than malice or bad faith might have plausibly prompted the International to impose its trusteeship. ■ These reasons are plainly proper under Article IX, § 30 of the International Constitution, and are presumed valid under § 464 of the LMRDA. The existence of these reasons, therefore, is inevitably relevant in assessing whether the facts concerning the various procedural irregularities to which the trial court referred are indeed sufficient, as a matter of law, to support a judgment of clear and convincing bad faith.

In any event, the deficiencies to which the trial court points, on their own terms, do not, individually or collectively, leave the International in any position other than that of substantial compliance with its own established procedure. These deficiencies, therefore, are not in themselves clear and convincing evidence of bad faith. The trial court referred to a possible ex ,parte meeting between David Trask, the hearing officer, and the appellants. As the trial court acknowledged, however, there was no evidence that an ex parte meeting actually took place and, even if it did, there was no showing of prejudice to the appel-lees. The trial court also noted the failure' of the hearing officer to grant a continuance before the hearing was held. Granting the continuance, however, would have arguably violated Article IX, § 33 of the International Constitution which requires that a hearing be held within 21 days of the imposition of the administratorship. Ap-pellees’ hearing was held 19 days after the imposition. We cannot find that a failure to grant a continuance is prima facie evidence of bad faith. And, once more, there is no showing of specific prejudice. The trial court’s concern about the dual roles of Ernest Rewolinski as administrator of Council 79 and administrator, under the trusteeship, of Local 1363, is similarly misplaced. There was no evidence presented that Mr. Rewolinski’s joint positions would have created an actual conflict of interest. In any event, this issue is now moot since the administratorship imposed on Council 79 has been lifted and the Council is now operating under its own duly elected officials. Finally, the administratorship and all of the subsequent proceedings were invoked under the provision of the constitution relating to emergency situations which allows for imposition of a trusteeship and subsequent hearings. However, in a deposition taken several months later, the International President stated that he didn’t think that he invoked his emergency powers; that he proceeded under another provision of the Constitution which would have required a prior hearing. This discrepancy was seen by the trial court as further evidence of bad faith. It is, in fact, immaterial. In Local 37 v. Sheet Metal Workers International Ass’n, 655 F.2d 892 (8th Cir.1981), where a merger was later characterized by the International President as a revocation of the local’s charter, the court stated that “the subsequent characterization as a revocation cannot be controlling or negate the earlier acts.” Id. at 896. Here, the letter from the International President to appellee Fisher clearly stated that he had determined that an emergency existed, that an administrator had been appointed, and that he had notified the chairperson of the Judicial Panel of the adminis-tratorship so that a hearing could be scheduled. These actions were approved and ratified, after hearings, by both the hearing officer and the International Executive Board. We will not allow the vagaries of memory to negate the valid actions of the International, taken pursuant to its own constitution.

IY.

It is important to remember that the local’s rights are those provided under the International’s Constitution. United Ass’n of Journeymen and Apprentices, Plumbing and Pipefitting Industry v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69 L.Ed.2d 280 (1981); Local 37 v. Sheet Metal Workers International Ass’n, supra; Grand Lodge, K.P. of Florida v. Taylor, 79 Fla. 441, 84 So. 609 (1920). Under that Constitution, the International is obliged to give the local a “full and fair hearing.” This duty is met when (1) written charges are given which are specific enough to inform an accused member of the offense he has allegedly committed and (2) there is some evidence to support the charges made. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971); Lewis v. American Federation of State, County and Municipal Employees, 407 F.2d 1185 (3rd Cir.), cert. denied, 396 U.S. 866, 90 S.Ct. 145, 24 L.Ed.2d 120 (1969). A fair hearing implies at least the procedural requirements of notice of the charges and the date and nature of the hearing, presentation of evidence and witnesses in support of the reasons for imposing the trusteeship with the opportunity for cross-examination, and the opportunity to present evidence in rebuttal. Jolly v. Gorman, supra; Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963); Loekle v. Hansen, 551 F.Supp. 74 (S.D.N.Y.1982). In an emergency situation, a hearing may be held subsequent to the imposition of the trusteeship. Hotel and Restaurant Employees and Bartenders International Union v. Rollison, 615 F.2d 788 (9th Cir.1980); Local Union 13410 v. United Mine Workers of America, 415 F.2d 906 (D.C.Cir.1973); see generally Higgins v. Harden, 644 F.2d 1348 (9th Cir.1981). The procedural errors (if they were indeed errors) to which the trial court pointed did not prevent the International from meeting its responsibility under its own constitution. The trial court did not, we think, find otherwise. Rather, the trial court seems to have regarded the International’s proceedings as subject as well to the trial court’s own standards of procedure, and when the International did not act in strict accordance with those judicial standards the trial court found that to be evidence of bad faith. However, in Parks v. International Brotherhood of Electrical Workers, supra, 314 F.2d at 913, the court stated:

“It may well be thought desirable for unions to adopt hearing procedures that keep trial functions separate, but the federal courts are not empowered so to restructure the disciplinary procedures of unions. Separation of functions is not an absolute due process prerequisite to fairness in administrative proceedings [citations omitted]; in internal union proceedings it traditionally, and under the LMRDA, has also not been deemed a requirement of fairness. Courts, federal courts especially, are justified in ruling a union tribunal biased only upon a demonstration that it has been substantially actuated by improper motives — in other words, only upon a showing of specific prejudice.”

The national labor policy is a philosophy of judicial restraint in labor affairs. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

“The basic philosophy is very simple — labor matters are best left to those who understand the language and the workings of the shop, those who have a precise knowledge of what has come to be known as the ‘industrial common law’ ... Courts must avoid overzealous intervention in the internal affairs of unions with its concommitant atrophic effect on the ability of the organization to function as a disciplined unit, being careful not to subject the union’s interpretation of its own industrial jurisprudence to the removed, untutored, and possibly, antipathetic judgment of a court.”

Lewis v. American Federation of State, County and Municipal Employees, supra, 407 F.2d at 1191, 1192.

Reversed and remanded with directions to enter the injunction and to order Local 1363 to comply with the administratorship forthwith.

      . The provisions of the International Constitution relevant to our analysis are the following:
      Article IX Section 30. If the International President shall find that (1) a subordinate body has seceded or purported to secede, or (2) that dissolution or secession of a subordinate body is threatened, or (3) that dissipation or loss of the funds or assets of a subordinate body is threatened, or (4) that the subordinate body has deliberately filed false per capita tax or other financial or audit reports with the International Union, or (5) that a subordinate body is acting in violation of this constitution or of any lawful order of the Convention, the International Executive Board, or the International President, so that in the opinion of the International President an emergency situation exists, the International President is empowered to place such subordinate body under administratorship pending notice and hearing. The International President shall immediately refer the matter to the Judicial Panel for hearing in the manner hereinafter provided, shall notify the subordinate body, and shall promptly submit a written report to all members of the International Executive Board notifying them of such action and the reasons therefor.
      Article IX Section 33. A hearing shall be held before the Administratorship Hearing Board as soon as is consistent with due process, but with not less than seven days’ notice, and not later than twenty-one days after the imposition of any administratorship pursuant to Section 30 herein. All interested parties shall be given a fair opportunity to present their views on the matter.
      Article IX Section 35. Should a majority of the Administratorship Hearing Board decide that the subordinate body has not committed any of the acts enumerated in Section 30, the appointment of the Administrator shall be vacated and the International President shall not have power to appoint an administrator over the subordinate body involved or to declare the subordinate body expelled; provided, however, that the International President may appeal such action to the International Executive Board. Should a majority of the Administratorship Hearing Board decide that the subordinate body has committed any of the acts enumerated in Section 30, the International President shall take such action as the President considers appropriate; provided, however, that the subordinate body may appeal such action to the International Executive Board.

      . Our analysis of this case has been somewhat constrained because of the lack, for whatever reasons, of detailed findings of fact and conclusions of law.

      . See A. Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L.R. 819, 835-836, 846-850, for a general discussion of when state courts will intervene in internal union affairs.

      . The process of certifying Local 1184 as the bargaining representative of the School Board employees should have been a simple task since the Public Employees Relations Commission (PERC) has a procedure for merely changing ■ the name of the certified bargaining representative, which was all that would have been required in this case. Instead, Local 1363 filed a petition with PERC challenging the certification of Local 1184. PERC then required that a representation election be held to establish which local the affected employees wished to have , represent them. At the same time, the Dade County School Board refused to recognize Local 1184 until a representation election could be held, thus leaving in doubt for a substantial period of time who was actually representing the interests of the 2,000 School Board employees. Local 1184 easily won the representation election.

      . Cf. Jolly v. Gorman, 428 F.2d 960 (5th Cir.1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971), in which the court found the trusteeship valid where there was no formal hearing for 11 months after the imposition of the trusteeship, (e.s.)

      . What was in fact the most important consideration for the trial court, that appellees Fisher and Withers were re-elected to their offices after the trusteeship was imposed, is an absolutely irrelevant factor under both federal and state law and thus, will not be considered.