author: LETTS, Judge.

text:
    FLORIDA MEDICAL CENTER, INC., d/b/a Florida Medical Center and Florida Patient’s Compensation Fund, Appellants, v. Susan Ann VON STETINA, By and Through her parents, legal guardians and next friends, Mary VON STETINA and Leo Von Stetina, Appellee.
    Nos. 82-1332, 82-1341, 82-1597, 82-1686, 82-1992, 82-1993, 82-2070 and 82-2078.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Motions to Stay Mandate Granted Aug. 24, 1983.
    Rehearing Denied Aug. 30, 1983.

      David M. Orshefsky, G. Michael Keenan and William H. Lefkowitz of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Bernard & O’Brien, Fort Lauderdale, and Steven R. Berger of Steven R. Berger, P.A., Miami, for appellant Florida Medical Center.
    Talbot D’Alemberte and Jeffrey B. Crockett of Steel Hector & Davis; Samuel J. Dubbin, Miami, Charles W. Ehrhardt, Richard B. Collins of Perkins <& Collins, Tallahassee, for appellant Florida Patient’s Compensation Fund.
    Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Joel D. Eaton of Podhurst, Orseck, Parks, Jo-sefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellee.
    Bruce Culpepper of Culpepper, Beatty & Turner, P.A., Tallahassee, and Richard A. Sherman of Wicker, Smith, Blomqvist, Tu-tan, O’Hara, McCoy, Graham & Lane, Miami, amicus curiae, for Florida Medical Malpractice Joint Underwriting Ass’n.
    John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, P.A., Tallahassee, ami-cus curiae, for Florida Hosp. Ass’n.
    James E. Tribble and Diane H. Tutt of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, amicus curiae, for Florida Defense Lawyers Ass’n.
   LETTS, Judge.

Before us is the consolidation of eight appeals, all emanating from a 12.47 million dollar compensatory damage award in a medical malpractice case. That sum is appealed as reversibly excessive, as is the trial judge’s ruling that Section 768.54(3)(e)(3) of the Florida statute limiting the payout of the award is unconstitutional. Further, Section 768.54(2)(b) limiting the liability of the health care provider to $100,000 per claim was likewise found to be unconstitutional. In addition the trial court found Section 768.51 of the Florida statutes to be inapplicable, or in the alternative, unconstitutional. We affirm all of the above.

Also appealed is the upholding of the section in the medical malpractice statute awarding attorney’s fees to the prevailing party. Section 768.56. We likewise affirm this ruling. However, we reverse the award of 4.4 million dollars found to be “reasonable attorney’s fees” under that same section of the statute.

The only other issue addressed, is the ruling permitting into evidence an account, written in the first person, purporting to describe the turmoil of emotions which a helpless patient must endure when a respirator malfunctions. We affirm.

FACTS

It is hard to imagine a more tragic scenario. A young, attractive woman, hospitalized after an auto accident, required treatment in the intensive care unit after surgery and was placed on a respirator which malfunctioned. As a consequence, the air supply was interrupted and irreversible brain damage ensued, condemning the plaintiff to a forty year life expectancy as a pathetic, half-blind, hopelessly bedridden, painracked incompetent who nevertheless can recognize people and respond to sounds, love, and touch. In the poetic words of her counsel, “she is a prisoner in her own helpless body and must experience the ultimate nightmare every waking moment of the remainder of her tragically destroyed life.”

REASONABLENESS OF VERDICT

We begin with a discussion on whether the jury award is reversibly excessive and we cannot find it so.

It is large, even enormous, yet, it is not without basis. With testimony projecting a life expectancy of 40 years and evidence that the present day annual cost of ideal care for this patient is $188,400, simple arithmetic multiplies to over 7.5 million dollars. To that we must add past medical and nursing care, past and future loss of earnings, and last but by no means least, pain and suffering. The Patient’s Compensation Fund and the Hospital argue under Loftin v. Wilson, 67 So.2d 185, 190 (Fla.1953), that the over 4 million dollars in future pain and suffering will mean nothing to her because she “is barely sentient.” However, this plaintiff, unfortunately for her perhaps, possesses all the senses in varying degree, is no longer on a respirator, has some understanding, and must endure incessant pain and suffering. As we said in City of Tamarac v. Garchar, 398 So.2d 889, 896 (Fla. 4th DCA 1981),

Much has been written regarding the review of verdict amounts but few definitive rules have been enunciated by the courts. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977) and School Board of Palm Beach County, Inc. v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978).

One rule is definitive, however, and that is “a party who assails the amount of a verdict as excessive has the burden of showing it is unsupported by the evidence or that the jury was influenced by passion or prejudice.” See Talcott v. Holl, 224 So.2d 420 (Fla. 3d DCA 1969). Nevertheless the over 4 million dollar portion of this verdict for 12.47 million dollars that was allocated to future pain and suffering does give cause for concern and we must ask: Is it within the “reasonable range” prescribed in the Bould v. Touchette decision, supra? It is admittedly at the maximum of any reasonable range but we decline to override the jury and label it unreasonable. Forty years imprisonment within a helpless body racked with pain and requiring nearly $200,000 worth of medical care each year can hardly be equalled by all the tortures of the damned.

PAYOUT AND LIMITATION OF LIABILITY

Passing next to the question of whether the trial court erred in declaring Sections 768.54(2)(b) and 768.54(3)(e)(3), Florida Statutes (1981) unconstitutional when applied to the facts of this case, we conclude that it did not.

First of all, we are of the opinion that it is the 1981 version of Section 768.54(3)(e)(3) which governs. The tragedy occurred in December of 1980 and the new statute was not effective until July of 1982. Statutes must not be given retroactive application unless an intent to do so is clearly expressed, Dade County v. Ferro, 384 So.2d 1283 (Fla.1980) or unless the statute is merely procedural, remedial or affects the measure of damages. Heilmann v. State, 310 So.2d 376 (Fla. 2d DCA 1975). In the case at bar, we are firmly of the opinion that this statute affects a substantive matter (indeed the Fund, on p. 15 of its initial brief, agrees) and that no change in the measure of damages is involved here, only the method of payout. We also reject the Fund’s argument that retroactive application is not required because the plaintiff’s rights do not vest until this decision is published.

The content of the trial judge’s order which we deem pertinent reads as follows:

Section 768.54 provides generally that all privately owned hospitals must join the “Florida Patient’s Compensation Fund”, and that if they comply with the statute they “shall not be liable for an amount in excess of $100,000.00 per claim”. The statute shifts the obligation to pay any judgment in excess of this amount to the fund, but limits the fund’s obligation to pay the judgment (after a lump-sum payment has been made for attorney’s fees and costs) to “not more than $100,000.00 per person per year until the claim has been paid in full”. To the extent that the statute creates a trust fund in the nature of liability insurance for the hospital, the Court does not find it constitutionally offensive. To the extent that the statute restricts the plaintiff’s right to recover her judgment from the hospital and that fund, however, it violates several fundamental provisions of both the Florida and United States Constitutions when applied to the facts in this case.
After a careful study of the statute, the Court has concluded that it does not contemplate the entry of judgments against the hospital and fund limited to the amounts set forth in the statute; instead, it clearly contemplates that judgments for the full amount of the jury’s verdict be entered against the hospital and the fund, and then merely controls the manner in which those judgments are to be paid. That conclusion is compelled by the following portions of the statute: subsection (2)(b); subsection (3)(a); subsection (3)(e). Once it is recognized that the statute imposes no substantive limitation upon the plaintiff’s right to judgments in the full amount of her damages, and that the statute merely prevents collection of the judgments except on the terms prescribed by the statute, it is clear that the statute does nothing more than direct this Court how to enforce collection of the judgments. This type of legislative direction is unconstitutional, however, because it impermissibly encroaches upon powers granted exclusively to the judicial branch of our government. It is settled that a trial court with constitutional jurisdiction to render a final judgment has “the inherent power ... to enforce collection of its judgments”. STATE ROAD DEPARTMENT v. BANKERS LIFE & CASUALTY CO., 166 So.2d 234, 235 (Fla. 3rd DCA 1964). It is also settled that “[t]he legislature has no power to prescribe rules regulating the conduct of the Court’s business or other matters within the inherent power of the Court to regulate”. SYDNEY v. AUBURNDALE CONSTRUCTION CORP., 96 Fla. 688, 119 So. 128, 129 (1928). Since both of these propositions are settled, it is clear that § 768.54 is unconstitutional — because it attempts to limit this Court’s inherent power to enforce the judgments entered in this case.
The statute also violates both the equal protection and due process clauses of the Florida and United States Constitutions. The “tests” to be applied to the statute in measuring its constitutionality against both of these clauses are essentially the same:
The test to be used in determining whether an act is violative of the due process clause is whether the statute bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary or oppressive.
In order to comply with the requirements of the equal protection clause, statutory classifications must be reasonable and non-arbitrary, and all persons in the same class must be treated alike. [Citation omitted]. When the difference between those included in a class and those excluded from it bears a substantial relationship to the legislative purpose, the classification does not deny equal protection. [Citation omitted].
LASKY v. STATE FARM INSURANCE CO., 296 So.2d 9, 15, 18 (Fla.1974). The statute arguably satisfies one minor aspect of these tests: it “bears a reasonable relation to a permissible legislative objective”. See CARTER v. SPARKMAN, 335 So.2d 802 (Fla.1976); PINILLOS v. CEDARS OF LEBANON HOSPITAL CORP., 403 So.2d 365 (Fla.1981). The statute does not satisfy the remaining criteria of the tests, however.
The plaintiff’s judgments render the defendants liable to her in the amount of $12,473,250.00. Included within that amount is a sum of $7,536,000.00 for necessary future medical expenses (reduced to present money value). The jury also found that the plaintiff’s life expectancy is 40 years. In other words, the jury has determined that the plaintiff will require a sum of approximately $188,400.00 per year (in present money value) to meet her necessary future medical expenses. The statute, of course, prohibits the plaintiff from recovering her judgments now. Notwithstanding its apparent intent, however, the statute also prohibits the plaintiff from ever recovering her judgment. After deduction of the plaintiff’s attorneys' fees (which, assuming a reasonable contingent fee of 40%, will be approximately $4,900,000.00), the principal balance of the judgments remaining will be approximately $7,500,000.00. That $7,500,000.00 will earn interest at the statutory rate of 12%, or approximately $900,000.00 per year. Since the statute limits the defendants’ liability on the judgments to $100,000.00 per year, it is clear on the facts in this case that the plaintiff will not even recover enough to defray 85% of the annual interest accruing on the principal balance of the judgments, much less recover any portion of the principal. Simply put, the plaintiff can never recover her judgments under the terms of the statute, notwithstanding that subsection (3)(e)(3) provides that the plaintiff is to be paid “until the claim has been in full”. In short, the statute — as applied to the facts in this case — is arbitrary, oppressive, intrinsically unfair, and internally contradictory (since it contemplates the ultimate satisfaction of a judgment which is made impossible by the terms of the statute itself). The statute is therefore irrational in the extreme, when applied to the facts in this case.
In addition, notwithstanding that the jury has determined that the plaintiff will require approximately $188,400.00 per year (in present money value) over her 40-year life expectancy simply to meet her necessary expenses for medical care, the statute arbitrarily limits her recovery to $100,000.00 per year — a sum which is slightly over one-half of the sum necessary to keep her alive presently, and which will diminish to considerably less than half that amount as the years pass and the value of the dollar decreases. A statute which contemplates that the plaintiff be paid in full, and which then caps her annual recovery at an amount which is insufficient to keep her alive is irrational in the extreme, and it violates the plaintiff’s fundamental right to life on the facts in this case.
Further, the statute actually subverts its own announced purpose of alleviating the “medical malpractice insurance crisis”, because it prevents good faith settlements and requires all medical malpractice actions in which a claim greater than $100,000.00 is made to be tried to judgment. That conclusion is compelled because, although subsection (3)(e)(1) “authorize[s the fund] to negotiate with any claimants having a judgment exceeding $100,000.00 cost to the fund to reach an agreement as to the manner in which that portion of the judgment exceeding that $100,000.00 cost is to be paid”, the statute does not authorize the fund to settle claims before judgment on any terms other than those set forth in the statute. Depriving the defendants of any ability to compromise good faith claims, and requiring them instead to litigate all serious claims to judgment, clearly increases the cost of defending the medical malpractice actions which are filed against participants in the fund every year — which is not a reasonable solution to the high cost of defending medical malpractice actions which the statute is supposed to provide.
... And the statute creates two classifications of medical malpractice tort victims — those with insignificant injuries who are compensated in full, and those with substantial and life-threatening injuries, such as the plaintiff, who are not even provided a sufficient amount of money to pay the interest accruing on the amounts owing them, much less an amount of money to pay their necessary medical expenses. It is the latter classification which is particularly offensive to the equal protection clauses of the two constitutions, since it is impossible that singling out the most seriously injured medical malpractice victims (rather than imposing the same burden equally upon all medical malpractice victims) bears any reasonable relationship to the announced purpose of alleviating the “medical malpractice insurance crisis”.

We adopt in both result and principle all of the above and additionally would point out that the award, less attorney’s fees, would, under the statute, take over one hundred years to pay out even if the statutory interest never accrued.

We would not be particularly concerned about our conclusion, so certain are we of it, were it not for a late development from our Supreme Court. A recent decision from the First District found another portion of this medical malpractice statute unconstitutional. See Southeast Volusia Hospital District v. State, Department of Insurance, 432 So.2d 592 (Fla. 1st DCA, 1983). It is true that the section examined by the First District [Section 768.54(3)(c)] is not applicable here, but the Supreme Court, on expedited appeal and recognizing a great public importance, stated in a preliminary order that the “statute is constitutional on its face.” See Department of Insurance, State of Florida v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983). We do not really believe the court intended this blanket order to cover all of the sections of the medical malpractice statute, but its action, scheduled to be followed by a full opinion, taken in pari materia with some of the language in the Pinillos decision, supra, does raise the definite possibility that the court might disagree with us in the near future. This is the paramount reason we hasten to publish this opinion.

Section 768.54(2)(b) provides that: “A health care provider shall not be liable for an amount in excess of $100,000 per claim.... ” The Hospital argues that the reasons advanced by the trial court as the basis for the entry of a judgment in the full amount of the verdict is tantamount to glossing over the express language of the statute, thus directly conflicting with Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980), wherein the court stated:

The provision in the statute [768.54(2)(b) ] is one of limitation of judgment upon the performance of conditions specified.

Id. at 371 So.2d 1079. The Hospital also contends that the trial court erred when it concluded that this section of the statute is unconstitutional because it constitutes an infringement upon the inherent authority of the court to enforce its judgment.

In Mercy Hospital, Inc., supra, the principal question before the Third District Court was whether a defendant health care provider is required to plead the Medical Malpractice Reform Act in order to receive the benefits of the limitation or whether it is sufficient to show compliance with the statute in limitation of judgment after the entry of a jury verdict. The court held that the plaintiffs had the burden of making the Fund a party to the suit where recovery is sought in excess of $100,000, and that upon the plaintiff’s failure to make the Fund a party, the trial court may within the time allowed, upon proper motion pursuant to Florida Rule of Civil Procedure 1.530, enter an order for the limitation of the judgment in accordance with Section 768.54(2)(b), Florida Statutes (1977). We must respectfully disagree with our sister court. We believe the trial court, in the case now before us, properly decided that, “The statute imposes no substantive limitation upon plaintiff’s right to judgment in the full amount of her damages,” and that the statute merely prevents collection of the judgments except on the terms prescribed therein.

While both our sister court and the Hospital conclude that the intent of the statute is to limit judgments, such a conclusion is not supported by the statute. Section 768.54(3)(e)(3) provides:

A person who has recovered a final judgment ... against a health care provider who is covered by the Fund may file a claim with the Fund to recover that portion of such judgment ... which is in excess of $100,000 .... (emphasis added).

It is clear from this section of the statute that the legislature did contemplate judgments in excess of $100,000 against health care providers and that the trial judge was eminently correct when he determined that the purpose of the statute was not to limit the amount of the judgment against the health care provider, but rather to prescribe the manner of collection of the judgment. We also agree with the trial court’s additional conclusion that the statute is unconstitutional “because it impermissibly encroaches upon the powers granted exclusively to the judicial branch of our government.”

In a related point, both the Fund and the Hospital seek the benefit of another section of the Florida Statutes in the event we chose to declare the two sections already discussed unconstitutional which indeed we have. This other section referred to is Section 768.51, Florida Statutes (1981) which states in part:

(1) In any action by a patient against a health care provider, as defined in s. 768.-50(2)(b), in a tort or contract claim for malpractice in which the trier of fact determines that the amount necessary to compensate the claimant for future losses exceeds $200,000, payment of amounts intended to compensate the claimant for losses to be incurred in the future shall be made by one of the following means:
(b) The court may, at the request of either party, enter a judgment ordering the damages for future losses to be paid in whole or in part by periodic payments rather than by a lump-sum payment.

The trial court refused to apply this section finding it inapplicable because the Fund is not a “health care provider,” and in any event the future components of damage were not computed before reduction to present value in this case making the statute impossible to apply.

Subsection (1) begins, “In any action by a patient against a health care provider, as defined in Section 768.50(2)(b), in a tort or contract claim for malpractice .... ” In turn, Section 768.50(2) provides:

(b) “Health care provider” means hospitals licensed under chapter 395; physicians licensed under chapter 458; osteopaths licensed under chapter 459; podiatrists licensed under chapter 461; dentists licensed under chapter 466; chiropractors licensed under chapter 460; naturopaths licensed under chapter 462; nurses licensed under chapter 464; clinical laboratories registered under chapter 483; physicians’ assistants certified under chapter 458; physical therapists and physical therapist assistants licensed under chapter 486; health maintenance organizations certificated under part II of chapter 641; ambulatory surgical centers as defined in paragraph (c); blood banks, plasma centers, industrial clinics, and renal dialysis facilities; or professional associations, partnerships, corporations, joint ventures, or other associations for professional activity by health care providers.

This rather clearly eliminates the Fund from the benefit of the statute. The Fund’s argument on this point is not convincing, especially when one refers to the nine words of subsection (b) quoted above and now repeated: “The court may, at the request of either party .... ” The only two parties referred to before this sentence is the defendant health care provider and the “claimant.” Further, the use of the word “may” renders it discretionary.

This section goes on to require future periodic payments to be structured upon future damages computed “before any reduction to present value.” Section 768.-51(1)(b)(1). The Hospital and the Fund agreed to a verdict form which required the jury to reduce all future economic losses to present money value and it eliminated any finding for future damages not so reduced. Thus the trial court had no numbers corresponding to such unreduced future damages upon which to structure such a judgment. The Fund asserts that they are unnecessary and that the trial court could use the procedure specified in the new version of the payout limitation section and order payment of future special damages as they are incurred, or, that the final award could be invested and the proceeds given to the plaintiff as provided in the statute, thus offsetting the present value reduction. However, this would involve a rewriting of the statute and there is simply no authority for either of these two “solutions.”

While it is true there is no need to pass on the constitutionality of this latter section if we find, as we have done, that it is inapplicable, it does appear we should do so in the event that the Supreme Court disagrees with the foregoing. This will enable the Court to rule at its earliest opportunity, it having declared the entire medical malpractice act a matter of great public importance requiring immediate resolution.

We, therefore, find Section 768.-51(1)(b) unconstitutional when applied to the facts of this case and in so doing once again adopt the language of the trial judge. Our use of his language on these constitutional findings should not be interpreted to suppose that we embrace each and every word thereof. However, time appears to be of the essence and to craft our own versions of the unconstitutionality would incur considerable delay. The trial judge’s order in part states as follows:

In addition, although the statute [768.-51] does not suffer all of the deficiencies inherent in § 768.54 (since it at least gives this Court some discretion to ensure that the plaintiff will recover sufficient sums to pay her future medical expenses and ultimately recover her judgment during her life expectancy), the statute nevertheless contains a number of the same deficiencies which render § 768.54 unconstitutional. Like § 768.54, the statute impermissibly encroaches upon the inherent power of this Court to enter and enforce its own judgments. In addition, the statute arbitrarily and invidiously discriminates against medical malpractice victims who have suffered damages in excess of $200,000.00 by placing all of the burden for alleviating the perceived “medical malpractice insurance crisis” upon them, and no burden whatsoever upon any medical malpractice victim who suffers damages in an amount less than $200,000.00.

ATTORNEY’S FEES

Turning our attention next to the fourth constitutional question presented, we now examine Section 768.56, Florida Statutes (1981) which provides for the prevailing party to be awarded attorney’s fees in medical malpractice actions. We find nothing unconstitutional in this section.

We had assumed the answer to this particular question would easily boil down to whether we should employ a rational basis test or a strict scrutiny test. We have no trouble opting for the former and indeed our Supreme Court has already decided it applies in malpractice cases. See Pinillos v. Cedars of Lebanon Hospital, supra. However, to our chagrin, we have discovered that while the strict scrutiny test, which we reject, stands largely unsullied, the rational basis counterpart has been divided, by judicial fiat, into sub-tests and standards such as “minimum scrutiny,” “minimum standard of review,” “some reasonable basis,” “without any rational basis,” “means scrutiny,” “means oriented scrutiny,” “substantial relationship,” “just and reasonable relationship” and “no legitimate state purpose.” To be sure, some of these have legitimate distinctions: several refer to equal protection, others to due process and still others to both. See Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983). Had we the time, we would attempt to resolve and catalogue these fine distinctions, apparently sometimes erroneously used interchangeably on anything but a rational basis by the courts. Instead, we harken back to the good old days when constitutional law was, like everything else, relatively straight-forward and seize upon the case of Hunter v. Flowers, 43 So.2d 435, 436 (Fla.1949) wherein the court said:

The validity of statutes awarding attorneys’ fees to successful litigants has been upheld in various types of cases in recent years. The rule gleaned from the decided cases seems to be that, so long as the classification is based upon some difference bearing a reasonable and just relation to the act in respect to which the classification is attempted, there is no violation of the “due process” and “equal protection” clauses of the Fourteenth Amendment of the Constitution of the United States.

So far as we can determine, this Flowers holding is still valid and taken together with Pinillos, supra, is controlling.

To be sure, the section before us singles out medical malpractice plaintiffs and defendants for special treatment not afforded all tort victims and tort feasors, but that in and of itself is not fatal. See Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974) and Chapman v. Dillon, 415 So.2d 12 (Fla.1982). As we see it, the only question before this court is whether Section 768.56 creates a reasonable classification which bears a reasonable relationship to a permissible legislative objective. All of the sections so far construed by the courts have the same preamble and it is unquestioned that all of them were enacted for precisely the same reasons as the sections already upheld in Pinnillos v. Cedars of Lebanon Hospital, supra; Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir.1979) and Carter v. Sparkman, 335 So.2d 802 (Fla.1976). We acknowledge that the section applicable to the final case cited in the preceding sentence was struck down in Aldana v. Holub, 381 So.2d 231 (Fla.1980) but not for reasons germane to the issue before us now. There are over seventy Florida Statutes awarding attorney’s fees upon the outcome of litigation, see Volume 4 Florida Statutes p. 402 (1981), and while two, or for that matter seventy, wrongs do not make a right, we perceive no such wrong in the section now before us.

Having determined that the statute, directing the award of a “reasonable” attorney’s fee to a prevailing party, is constitutional, we now address the question of whether the trial judge erred in granting a fee of 4.4 million dollars on a verdict of 12.47 million dollars. We believe he did and we reverse.

Let us preface this holding by dispelling all doubt as to trial counsel’s entitlement to a 30%_contingent fefe from his client under the terms of his fee contract. Contingent fee contracts invariably result in proportionately large fees unless the result is adverse. However, the lawyer’s share can never be large unless the normally delighted client’s portion is even larger. Contingent fee contracts have recently been specifically blessed by our Supreme Court, In the Matter of the Florida Bar, 349 So.2d 630 (Fla.1977). Moreover, they constitute one of the reasons why the courts are truly open to all of us. In many countries, such as England, where such fee arrangements are champertous, the ability of the poor man or woman to take his or her just cause to court is restricted because they have to pay their lawyers win or lose. Indeed, our Supreme Court has remarked that the contingent fee is the poor person’s key to the courthouse as proved to be the case for the plaintiff before us now. Nonetheless, there remains the question of whether this plaintiff, having had that contractual key unlock the door to one of the largest verdicts ever recorded in Florida for compensatory damages, can now transfer her contract obligation to others by reason of an enacted statute contemplating “reasonable” attorney’s fees. We think not.

In a well reasoned order, the trial judge reviewed the criteria for fees set forth in Canon 2 of the Code of Professional Responsibility, specifically Rule 2-106 promulgated thereunder. Those criteria are as follows:

(1) The time and labor required; the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the partieu-lar employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

We agree with much of what the trial judge said. The plaintiff’s attorney is one of the outstanding practitioners in this field. He spent “the better part of an entire year on this cause.” The questions involved were novel and difficult and the result and amount obtained were spectacular, in no small measure due to counsel’s experience in the field.

The trial judge’s order stressed that the award was arrived at reasonably rather than by reference to a contingent fee. Yet on five occasions he also alluded to contingent fees in a manner which leaves us in no doubt that such weighed heavily on his mind. For example, he stated that the use of the contingency method is how the fee is customarily arrived at in the area of medical malpractice. Moreover, he announced that “the court has therefore relied heavily upon the expert testimony ... particularly upon the testimony of the preeminent and highly respected experts in this field who testified on behalf of the plaintiff.” Their testimony as to a reasonable fee in this case, bore an exact parallel to the 40% contingency called for in the contract. Thus, one expert said 5 million dollars was reasonable and the other chose the identical sum. Needless to say, 40% of 12.47 million dollars is 4.988 million dollars. Finally, the judge noted that contingent fees in such cases ran anywhere from 33⅛% to 50% of the award whereupon, having so stated, he awarded a sum within that range. All in all, we are convinced the contingent fee factor was uppermost in the judge’s mind and was of paramount importance in arriving at the sum awarded. In this he was in error.

A “reasonable” fee, whether under a statute or otherwise, has seldom been likened to a contingent one. In truth, the reverse has been the norm. See Ronlee, Inc. v. P.M. Walker Co., 129 So.2d 175 (Fla. 3d DCA 1961); Kaufman and Broad Home Systems, Inc. v. Sebring Airport Authority, 366 So.2d 1230 (Fla. 2d DCA 1979); United States Steel Corp. v. Green, 353 So.2d 86 (Fla.1977); Insurance Company of North America v. Welch, 266 So.2d 164 (Fla. 4th DCA 1972); and Baker v. Varela, 416 So.2d 1190 (Fla. 1st DCA 1982).

Most of the cases cited in the previous paragraph at least mention time and effort expended. Yet in the case now before us, trial counsel kept no time sheets and the judge below conceded that he only considered time expended as “a minor factor.” We disagree, and while we refuse to place any dollar per hour figure on the services of trial counsel in a case such as this, we deem it an abuse of discretion, under the facts, to award a so-called “reasonable” statutory fee of 4.4 million dollars. Our refusal to be governed solely by an hourly rate deserves explanation. Extremely competent counsel, within the area of his or her particular expertise, may find the right answer to a specific problem in a matter of minutes, or indeed already know it. By contrast inexperienced counsel may be required to search for that same answer for hours at a time, even assuming he or she finally arrives at it correctly. As we see it, it would be unfair to permit the pupil to out-bill the master simply because, in his or her ignorance, the former puts in longer hours.

We have perused this record in agonizing detail, reviewed the transcript and admired the astute trial tactics of counsel. We have also considered the brilliant result, the time that must have been expended, each of the criteria prescribed by the canons of ethics and the transcript of the hearing on attorney’s fees. From all of this, we conclude a reasonable fee to be 1.5 million dollars and we so hold.

We are not impressed by plaintiff’s argument that we are in effect taking approximately 3 million dollars away from his client when we reduce the fee from 4.4 to 1.5 million dollars. She agreed contractually to pay him 40% of the recovery, yet others, who must now pay this legal piper by reason of state statute, were not privy to that contract and could never have been reasonably expected to pay such a vast sum. Under the legislative intent, as reported by the state senate staff analysis, a reasonable fee was specifically noted as intending no impact on contingent fee arrangements. We would keep it thus.

EVIDENTIARY MATTER

Turning at last to the question of admission into evidence of an imaginary account written in the first person about a helpless patient’s state of mind when a respirator malfunctions, we find it was error to admit it, but not reversible error.

Apparently this emotional account had been a standard handout to all ICU nurse-trainees at this hospital for several years. None will question that its laudable purpose was to help to indelibly impress upon the students the appalling effect of a respirator malfunction so that maximum vigilance over helpless patients would never be relaxed for so much as an instant. While both sides mount various well-worn arguments as to the hearsay rule and its exceptions, it was almost conceded at oral argument that this account is not really hearsay at all and but a work of fiction. The plaintiff’s counsel insists it is relevant because it depicts a supposed level of demanded nursing care which all nurses are made aware of as standard procedure. This argument might have merit except that this particular work of fiction was not presented by its author and there was no predicate whatever that the plaintiff, or any other patient for that matter, had actually endured such thoughts and emotions under this or similar circumstances. Courts are supposed to deal in facts not fiction and we, therefore, believe error occurred.

We have deliberated long and hard on whether this error was reversible. The record redounds with other heartrending evidence of what this plaintiff has suffered and will suffer. Plenty of other evidence was given about the horror of respirator malfunction, certainly enough to make the nerve ends tingle. The plaintiff was brought to the courtroom obviously so that the jurors could see her pitiful condition. A video tape of the ghastly happenings every time she has to undergo physical therapy was played both to the jury and to this court. Moreover, all reasonable persons live in great trepidation and awareness of asphyxiation whether it be by drowning or whatever.

All in all, while we find the fictional account most moving, we also believe it was cumulative. There was so much other deeply moving evidence that we believe the account’s admission was harmless error because we conclude that it did not materially affect the outcome. Accordingly, we will not disturb it.

We either find no merit in, or see no necessity to address, any remaining points on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR ENTRY OF AN ATTORNEY’S FEE JUDGMENT IN THE SUM OF 1.5 MILLION DOLLARS.

DOWNEY and DELL, JJ., concur.

      . This statement is too broad. We approve of this holding only as it pertains to Sections 768.54(2)(b) and 768.54(3)(e)(3).

      . The Fund cites cases urging “may” to be construed as mandatory — this is done only where a statute says a thing “may be done by a public official which is for the public benefit.” Perry v. City of Fort Lauderdale, 352 So.2d 1194 (Fla. 4th DCA 1977).

      . This presumes that the contingent fee contract calls for forty percent as it did in this instance.

      . 32 Henry VIII; Glegg v. Bromley [1912] 3 KB 474; Winfield, The History of Maintenance & Champerty, 35 LQR 50; and 4 B1 Comm. 135, 136.

      . Exhibit 24 is an article entitled “Just Breathing” by Carol B. Allen, RN, which appeared in the November, 1974 issue of Nursing magazine.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lantis H. STRICKLAND, Appellant, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. AP-343.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellant.
    Stanley M. Danek, Asst. Div. Atty., Tallahassee, for appellee.
   PER CURIAM.

Although there was not competent substantial evidence to support the Florida Retirement Commission’s finding that appellant’s accident which resulted in injury on January 22, 1980, occurred “on his own personal time and not during the course and scope of his ... employment” with the State, the evidence did support the Commission’s further finding that the January 22, 1980, on-the-job injury was not a substantial producing cause, or aggravating cause, of Strickland’s total and permanent disability. We, therefore, affirm the Commission’s order denying Strickland “in line of duty” disability benefits under Section 121.-091(4)(d)1.a., Florida Statutes.

AFFIRMED.

LARRY G. SMITH, JOANOS and NIM-MONS, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    Johnnie COLLINS, as Superintendent of Schools, Holmes County, Florida, Appellant, v. Gerald COMMANDER, Appellee.
    No. AQ-118.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Philip J. Padovano, Tallahassee, for appellant.
    Russell A. Cole, Bonifay, for appellee.
   PER CURIAM.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.

WENTWORTH, J., concurs with opinion.

WENTWORTH, Judge,

concurring.

I concur in the decision to affirm the writ of mandamus directing the appellant school superintendent to pay appellee pursuant to a contract between appellee and the school board. In spite of the superintendent’s managerial capacity within the school system, the record does not reflect that either he or a predecessor was a party to the contract, and we are referred to no authority for imputing contractual party-status to one in his position. Cf., School Board of Leon County v. Goodson, 335 So.2d 308 (Fla. 1st DCA 1976); Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977). Because the school board did not join in the appeal, or actively contest the petition for the writ, I view the case not as one involving enforcement of a disputed contract, but instead as one seeking to compel a government official to perform a nondiscretionary duty under a contract not disputed by the parties thereto. Mandamus is therefore proper.


author: SCHWARTZ, Chief Judge.

text:
    CADUCEUS SELF INSURANCE FUND, INC., Appellant, v. SOUTH FLORIDA EMERGENCY PHYSICIANS and Ralph Madio and Madio & Company, Appellees.
    No. 82-2263.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 1983.
    Rehearing Denied Sept. 21, 1983.

      Blackwell, Walker, Gray, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward Perse, Brumer, Cohen, Logan & Kandell, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

Caduceus Self Insurance Fund, Inc. appeals from what we view as a final declaratory judgment holding, inter alia, that it was required to provide a defense to South Florida Emergency Physicians, P.A. under the allegations of an amended malpractice complaint brought against South Florida and several other defendants below. We reverse.

It is established that an insurer’s duty to defend is determined by whether the allegations of the complaint in question fall within the coverage provided by the policy. Peters v. Trousclair, 431 So.2d 296 (Fla. 1st DCA 1983); Federal Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So.2d 1107 (Fla.1980). The sole liability coverage provided by the instant policy to South Florida, which was contained in an endorsement to an already existing policy, stated:

It is agreed that such insurance as is afforded by this Coverage Agreement shall apply to:
SOUTH FLORIDA EMERGENCY PHYSICIANS, P.A.
as an additional named insured (including any Executive officer, Director, Stockholder or Shareholder thereof while acting within the scope of his duties as such) but only as respects professional services rendered or which should have been rendered by any physician or surgeon named in Item 1 of the Declarations of this Coverage Agreement, [emphasis added]

This restriction of coverage to services allegedly performed by the physicians thus specified — Drs. Leitman and Rae — is neither ambiguous, unclear, nor otherwise non-enforceable. K-C Manufacturing Co., Inc. v. Shelby Mutual Ins. Co., 434 So.2d 1004 (Fla. 1st DCA 1983); Coleman v. Valley Forge Ins. Co., 432 So.2d 1368 (Fla. 2d DCA 1983); Denman Rubber Manufacturing Co. v. World Tire Corp., 396 So.2d 728 (Fla. 5th DCA 1981); Cochrane v. American Surety Co. of New York, 108 So.2d 315 (Fla. 2d DCA 1959). A careful examination of the amended complaint reveals no claim whatever that South Florida is or may be liable for the actions or inactions of either of the named doctors. It therefore follows that Caduceus had no duty to defend South Florida against the amended complaint.

Reversed.

      . Our holding is confined to the determination of this question; it does not concern the duty to defend or provide coverage arising from later or amended pleadings against South Florida. See Mackin v. Applestein, 404 So.2d 789 (Fla. 3d DCA 1981).

      . It contends at most that South Florida is vicariously liable for the malpractice of a Dr. Joseph or is independently liable for its own negligence in failing properly to staff a hospital emergency room.

      . From this flows the “inevitable conclusion” that there is no obligation to indemnify for any judgment against South Florida which is based upon the allegations of that pleading. Federal Ins. Co. v. Applestein, supra, 377 So.2d at 233.


author: HURLEY, Judge. DOWNEY, Judge,

text:
    Billy L. WATSON, Appellant, v. Edward DOMECKI, Appellee.
    No. 81-1320.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Rehearing Denied Sept. 23, 1983.
    Paul H. Stevens of Sheldon Yavitz, Miami, for appellant.
    Kurt Klaus and Martin S. Saxon of Engel & Saxon, Miami, for appellee.
   HURLEY, Judge.

The question in this appeal is whether a party may maintain an action for damages based on fraudulent misrepresentation in the inducement to execute a satisfaction without first setting aside the satisfaction. We answer in the negative and reverse.

Edward Domecki obtained a money judgment in federal court against Billy Watson. As a result, the parties entered into an agreement which called for Watson to transfer title to two automobiles (a 1955 Bentley and a 1926 Fiat) to Domecki. Also, Watson agreed to pay Domecki $3,000 in cash. At this juncture — apparently before Domecki had an opportunity to inspect the cars which were garaged in Atlanta, Georgia — the parties executed and filed a satisfaction of judgment.

Approximately two years later, Domecki filed a fraud action in state court against Annette Watson (Billy Watson’s wife) and a corporation which did business under the name Prestige Auto Car. Two years after the commencement of the state litigation (and four years from the date of the execution of the satisfaction), Domecki amended his complaint and added Billy Watson as a defendant. The gist of the complaint was that prior to the execution of the satisfaction, Watson represented that both vehicles were in mint condition, that the Fiat was valued between ten and twelve thousand dollars and that the Bentley was valued between five and seven thousand dollars. Domecki further alleged that upon inspection, he discovered that the vehicles were worth far less than the stated sums.

As the state litigation proceeded, Mrs. Watson and the corporate defendant obtained summary judgments in their favor and were removed from the suit. Billy Watson obtained a partial summary judgment in his favor because the court found that Domecki had not suffered any damages with respect to the 1955 Bentley. The issue of the misrepresentation of the Fiat, however, was submitted to the jury which returned a verdict for Domecki in the sum of $10,000.

Throughout the litigation, Watson asserted that the satisfaction in the federal case barred the state action. Domecki responded that the satisfaction was not at issue. Instead, he argued that this case only involved a cause of action arising from the intentional tort of fraudulent misrepresentation. At first blush, the time differential between the event giving rise to the federal case and the subsequent fraudulent misrepresentations seems to support Domecki’s position. On the other hand, it is certain that to prevail in the state action, Domecki had to impeach the validity of the federal satisfaction by demonstrating that it was induced by fraud. As indicated above, this was the entire theory of the case. It is particularly evident from the manner in which the damages were assessed. Since Domecki claimed that he received less than he bargained for, the jury was instructed to compute compensatory damages by measuring the difference between the market value of the goods as represented by Watson and their actual market value. In effect, the jury’s verdict represents a finding that the original controversy between the parties had not been terminated by the satisfaction and that an award of $10,000 was required to effectuate its original purpose. The question that we must answer is whether the state action was permitted in light of Domecki’s failure to have the satisfaction set aside by the federal court.

Recently, describing the legal effect of a satisfaction of judgment, we said that it “ ‘is the last act and end of the proceeding.’ A satisfaction signifies that the litigation is over, the dispute is settled, the account is paid.” Morris North American, Inc. v. King, 430 So.2d 592 (Fla. 4th DCA, 1983). In the same case, we cited with approval the Second District’s opinion in Ford Motor Credit Co. v. Simmons, 421 So.2d 698 (Fla. 2d DCA 1982) which involved a complaint filed in the circuit court to set aside a mistakenly entered satisfaction of judgment of the county court. The Second District held that the circuit court did not have jurisdiction to entertain an action which attacked a satisfaction of judgment from another court. The appellate court reasoned that

[ejvery court of law possesses inherent equitable power sufficient to control its own judgments, and this includes power to set aside a satisfaction of one of its own judgments.... This may be accomplished by motion in the original action ... or by an independent action brought specifically for that purpose in the court which entered the judgment.

Id. at 700 (citations omitted; emphasis added).

In the case at bar, the attempt to utilize a state forum to effectively impeach a satisfaction filed in a federal action, dramatically illustrates the necessity for the rule which we announce today: A party may not maintain a cause of action that inherently impeaches the validity of a prior satisfaction without first setting aside the satisfaction by a direct challenge to its validity. This principle is essential to safeguard the dignity and effectiveness of prior judgments and orders. To hold otherwise would be to sanction covert challenges to the integrity of prior judicial labor. Since the verdict in the case below necessarily impeached the validity of the federal satisfaction, it is violative of this principle and, thus, cannot be allowed to stand. Accordingly, it is

REVERSED.

BERANEK, J., concurs.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting.

Appellee, Domecki, as the holder of a judgment in excess of $17,000 against Watson, obtained the levy of a writ of execution on property owned by Watson and the property was advertised for sale. Prior to sale, Watson contacted Domecki to negotiate a settlement and eventually the parties agreed that Watson would convey to Do-mecki two vintage automobiles, a 1955 Bentley and a 1926 Fiat, plus $3,000 in cash in satisfaction of the judgment. On or about August 18, 1976, the agreed items were transferred to Domecki, who furnished Watson with a satisfaction of judgment and the writ of execution was discharged.

This litigation arose when Domecki sued Watson, his wife and Connections, Inc., d/b/a Prestige Auto Car, for compensatory and punitive damages, charging them with fraudulently misrepresenting the value of the two cars involved in the transfer. According to Domecki, Watson had represented the value of the 1926 Fiat as between $10,000 and $12,000 and the Bentley as between $5,000 and $7,000. Both cars were represented as being “mint cars, rated as ninety point show cars.” Domecki was not able to inspect the cars before the transaction was closed.

The case was tried by a jury, which returned a verdict in favor of Domecki for $10,000 in compensatory damages.

In his first point on appeal, Watson contends that the trial court erred in refusing to grant his motion to dismiss, motion for summary judgment, and motion for directed verdict. In each of said motions, made at different stages of the proceeding, Watson argued that Domecki was improperly attempting to impeach the satisfaction of judgment in a collateral proceeding. I would reject that contention as did the trial judge. If that were the purpose of this suit, Watson’s argument would be effective. However, this is not a suit to set aside, vacate or nullify the satisfaction of judgment. The judgment remains satisfied of record and that litigation is ended. This suit is for an independent tort committed by Watson in actively misrepresenting the value of the cars he agreed to convey to Domecki to pay the debt owed, which was represented by the judgment in question.

No doubt Domecki could have, by motion or independent action, requested that the District Court set aside the satisfaction because of the alleged fraud. However, in engineering the agreement between the parties to settle Domecki’s claim, Watson’s actions constituted intentional tortious conduct for which the law may allow compensatory and punitive damages. I perceive no reason why Domecki could not pursue that course of action.

As indicated above, I am unable to agree with the majority that the judgment obtained herein has the effect of impeaching the legal effect of the satisfaction of the Federal Court judgment. Nor do I see any basis for the majority’s finding solace in the recent ease of Morris North American, Inc. v. King, 430 So.2d 592 (Fla. 4th DCA 1983). In Morris the plaintiff sought to amend the satisfied final judgment via a 1.540 motion without attempting to vacate the satisfaction. I suggest that Morris simply is not on point.

Finally, I see nothing covert in Domecki pursuing directly his cause of action in tort, rather than taking the alternative route of attacking the satisfaction in the Federal Court.

Finding no other reversible error demonstrated by appellant, I would affirm the judgment appealed from.

      . Fla.R.Civ.P. 1.540.


author: MILLS, Judge. ERVIN, Chief Judge,

text:
    LeBRUNO ALUMINUM COMPANY, INC. and Chubb Group, Appellants, v. Bruce V. LANE, Appellee.
    No. AP-125.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.
    Rehearing Denied Sept. 19, 1983.
    Bernard J. Zimmerman and Marshall S. Adler of Akerman> Senterfitt & Eidson, P A > Orando, for appellants.
    J. David Parrish of Hurt & Parrish, Bill McCabe of Shepherd, McCabe & Cooley, 0rlando, toe appellee.
   MILLS, Judge.

The employer and carrier (E/C) in this workers’ compensation case appeal a final order of the deputy commissioner which granted temporary total disability, catastrophic loss, and rehabilitation benefits to Lane, and which found that the E/C had acted in bad faith. We do not reach all of the issues raised because we find that certain inappropriate remarks by the deputy commissioner require reversal of the entire order.

Lane’s claim for workers’ compensation benefits came on for hearing before the deputy commissioner on 8 March 1982. After hearing the testimony of Lane but before hearing any of the E/C’s evidence, the deputy commissioner remarked that he had already made up his mind to award benefits and to award attorney’s fees to Lane based on the E/C’s bad faith handling of the claim. When counsel for the E/C asked the deputy commissioner if he would still be allowed to present his witnesses, the deputy commissioner replied, “You can put them on if you want to take up the Court’s time.” Thereafter, the E/C presented their evidence, and the deputy commissioner subsequently entered an order awarding benefits to Lane and finding that the E/C had acted in bad faith.

The remarks by the deputy commissioner clearly indicate that the E/C did not receive the fair and impartial hearing to which they are entitled under our system of justice. Accordingly, in spite of the hardship that it may cause Lane, who may in fact have been entitled to compensation, we have no choice but to reverse the order appealed and remand with instructions that the case be assigned to another deputy commissioner. Rockledge Country Club v. Becker, IRC Order 2-2540 (February 25, 1974).

Reversed and remanded with instructions.

LARRY G. SMITH, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

Although I would agree with the majority to reverse if the issue had been brought before the deuty in a timely fashion, no such effort was made. The employer/carrier had adequate opportunity, following the comments, to seek recusal of the deputy commissioner and request the assignment of another deputy. None was made. Nor did it attempt during the twenty-day period before the order became final to seek the error’s correction. See § 440.25(4)(a), Fla.Stat. (1979); Acosta Roofing Company v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981); Mezquita v. Florida Steel Corporation, 419 So.2d 675 (Fla. 1st DCA 1982). By going forward and presenting evidence in defense of the claim, the employer/carrier, I think, should be deemed to have elected to take its chances that the deputy might yet change his mind. The issue, which essentially seeks disqualification of the deputy, is now raised for the first time on appeal. We have repeatedly stated that we will not become the tribunal of first resort on questions latent in the record but not substantially raised before the deputy. E.g. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); Bland Construction Co. v. Williams, 419 So.2d 374 (Fla. 1st DCA 1982); Ravenswood-Griffin Volunteer Fire Department v. Newman, 422 So.2d 321 (Fla. 1st DCA 1982).

The majority, however, without expressly stating so, elevates the issue on appeal to one of fundamental error. I cannot agree. Although fundamental error has been defined as that error going to the foundation of the case or the merits of the action, which would result in a miscarriage of justice if not considered, 3 Fla.Jur.2d Appellate Review § 301 at 364 (1978), errors occurring in the trial process and not going to the merits of the case are generally held not to be fundamental. Nelson v. Selden Cypress Door Co., 78 Fla. 203, 83 So. 286 (1919). For example, a point assailing a trial judge’s alleged prejudice was deemed waived when no effort was made at the trial level to disqualify him. Clements v. Banks, 159 So.2d 892 (Fla. 3d DCA 1964).

I am astounded that the majority would now consider such an improvidently raised issue. The result of its opinion is that although the claimant may, as the majority recognizes, be entitled to compensation, his benefits must be delayed for whatever protracted period of time it takes to try the claim before another deputy and the time involved for another appeal, which will no doubt inevitably follow the order entered. Under the circumstances, I fail to see that there was any fundamental miscarriage of justice which goes to the very foundation of the case.


text:
    Sol M. ROSS, as Trustee of the David Scott Ross and Jo Anne Ross Trust, Petitioner, v. Steve M. BARNETT and Lois M. Ramer, f/k/a Lois M. Barnett, f/k/a Lois M. Ross, as Trustees of the Barnett Family Trust, Respondents.
    No. 83-1522.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1983.
    Rehearing Denied Sept. 21, 1983.
    Susan G. Chopin, West Palm Beach, for petitioner.

      Paul R. Lipton, North Miami Beach, for respondents.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We grant the petition for certiorari which seeks review of an order of the Circuit Court transferring Count II of the complaint to the County Court upon the ground that the amount in controversy was less than $5,000, the jurisdictional requisite for the Circuit Court to hear the matter. We quash the order of transfer upon a holding that it cannot be concluded from the record now before us that the amount in controversy is indisputably less than $5,000 or that the allegations of Count II claiming entitlement to an amount in excess of $5,000 were not made in good faith. See Norris v. Southern Bell Telephone & Telegraph Company, 324 So.2d 108 (Fla. 3d DCA 1975); Thibadeau v. Santini Bros., Inc., 315 So.2d 550 (Fla. 4th DCA 1975). If later developments in the case show without dispute that the amount in controversy is less than $5,000, the trial court is free to transfer Count II. Norris v. Southern Bell Telephone & Telegraph Company, 324 So.2d at 109.

Certiorari granted; order quashed.


text:
    Willie George SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. AR-156.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1983.
    Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

This cause is before us on appeal from a judgment and sentence for felony petit theft, in which appellant makes several assertions of error. We agree with appellant that the trial court erred in refusing to give a jury instruction on abandonment. A defendant is entitled to a jury instruction on the theory of his defense if there is evidence in the record to support it, regardless of how weak or improbable it may be. Holley v. State, 423 So.2d 562 (Fla. 1st DCA 1982). We find no merit to appellant’s other assertions.

This cause is reversed and remanded for new trial.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


text:
    Paul GULLEY, Appellant, v. STATE of Florida, Appellee.
    No. AT-148.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1983.
    Paul Gulley, pro se, for appellant.
    No Appearance for appellee.
   PER CURIAM.

While the issue of ineffective assistance of trial counsel is properly raised in a motion pursuant to Fla.R.Crim.P. 3.850, the allegations of ineffective assistance of counsel contained in appellant’s motion were legally insufficient, thus the trial court did not err in failing to attach a copy of the portion of the files and records to show appellant is not entitled to relief or to hold a hearing. See Knight v. State, 394 So.2d 997 (Fla.1981). In addition, the allegations with regard to failure to call witnesses and object to the admissibility of certain evidence were matters within the judgment and strategy of trial counsel, and not proper grounds for relief. See Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981).

AFFIRMED.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.

      . While this appeal was being considered by this court, the trial court held a hearing on the issue of ineffective assistance of counsel and entered an amended final order denying relief finding the allegation was completely baseless and without merit. The trial judge apparently did not realize his earlier order had been appealed, however, the trial court was without jurisdiction to proceed with the case and enter the amended final order. Fla.R.App.P. 9.600. Our awareness of the further proceedings does not alter our conclusion that the allegations of ineffective assistance of counsel were legally insufficient.


author: HOBSON, Acting Chief Judge.

text:
    Alton G. JEFFCOAT and Brenda B. Jeffcoat, his wife, Appellants, v. Robert HEINICKA and Heinicka Homes, Inc., Appellees.
    No. 82-1827.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 1983.

      Elizabeth Anne Goodale, Largo, for appellants.
    Rock O’Neal of Pitcher & O’Neal, P.A., Madeira Beach, for appellees.
   ON MOTION FOR REHEARING

HOBSON, Acting Chief Judge.

Upon consideration of appellees’ motion for rehearing and motion to supplement the record and appellants’ responses thereto, we grant the motions, withdraw our previous opinion, and substitute the following opinion in its stead:

Alton and Brenda Jeffcoat, defendants/counterplaintiffs below, appeal a judgment for attorney fees and costs rendered pursuant to section 501.2105, Florida Statutes (1979), in favor of Robert Heinicka and Heinicka Homes, Inc., plaintiffs/counterde-fendants below, following entry of the final judgment. We affirm.

Appellees sued appellants in 1978 because of appellants’ alleged refusal to make a final payment on a house built for them by appellees. Appellants counterclaimed, accusing appellees of deceptive and unfair trade practices in violation of chapter 501, Florida Statutes (1979). Following a jury trial, the court rendered a final judgment in appellees’ favor on both the suit and counterclaim on January 16, 1981. The court did not reserve jurisdiction to enter any further orders.

On March 17, 1981, appellees filed a motion and affidavit for attorney fees and costs pursuant to section 501.2105. This section reads in relevant part:

501.2105 Attorney’s Fees.—
(1) In any civil litigation resulting from a consumer transaction involving a violation of this part, ... the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.
(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
(3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
(4) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.

On May 22, 1981, the trial court filed an order granting without prejudice appellants’ motion to strike on the ground that the affidavit was not specific enough regarding the amount of time spent by appel-lees’ attorney on the chapter 501 counterclaim. Appellees filed a motion again with a revised affidavit on June 8, 1981. The court rendered an order on January 26, 1982, granting without prejudice appellants’ motion to strike because the affidavit was still not specific enough. On February 11, 1982, appellees again filed a motion with another revised affidavit. The court granted the motion and filed a judgment for attorney fees and costs on June 29, 1982.

Appellants initially propose on appeal that the trial court lacked subject matter jurisdiction to enter the judgment for attorney fees and costs since it had not reserved jurisdiction to render any further orders. In support of this argument they cite several cases which hold that a trial court is without jurisdiction to render an award of attorney fees and costs after a final judgment if it has not reserved jurisdiction. See, e.g., Jackson v. Jackson, 390 So.2d 787 (Fla. 1st DCA 1980); Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978); Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). Appellees reply that section 501.2105 does not require that a trial court reserve jurisdiction in order to award attorney fees and costs on a later date. We agree with ap-pellees.

The aforementioned marriage dissolution cases relied upon by appellants are materially distinguishable from the present case because the statute allowing for attorney fees and costs in those cases, section 61.16, does not, like section 501.2105, expressly grant a trial court the power to award a prevailing party attorney fees and costs after entry of the final judgment and exhaustion of all appeals, if any. In our view, this language in section 501.2105 makes it unnecessary for a trial court to reserve jurisdiction in order to be able to subsequently enter a judgment for attorney fees and costs. Of course, this is not to say that a trial court automatically retains jurisdiction under section 501.2105 until the motion and affidavit are finally filed. Instead, it means that a trial court may assume jurisdiction again once the motion and affidavit are filed.

Appellants assert next that a prevailing party must file a motion for attorney fees and costs under section 501.2105 no later than 31 days after rendition of the final judgment where there is neither a motion for a new trial nor an appeal. They submit that because they neither moved for a new trial nor appealed the final judgment, ap-pellees should have filed a motion and affidavit by February 16, 1981, thirty-one days after rendition of the final judgment. Appellees, of course, did not file a motion and affidavit until one month later, March 17, 1981.

We do not view appellees failure to file the motion and affidavit prior to March 17, 1981, as fatal to their cause. Section 501.2105 does not set forth an express time limit for the filing of the motion and affidavit. We believe it consistent with this section to hold that they must be filed within a reasonable time after rendition of the final judgment and exhaustion of all appeals, if any. In our view, appellees’ “delay” in not filing a motion and affidavit until March 17,1981, was not of an unreasonable length. Also, the fact that their first motion and accompanying affidavit were later stricken for lack of specificity does not negate the fact of their attempt to file a motion and affidavit within a reasonable time.

Accordingly, we affirm the judgment awarding attorney fees and costs.

AFFIRMED.

SCHEB and CAMPBELL, JJ., concur.

      . In B & L Motors, Inc. v. Bignotti, 427 So.2d 1070 (Fla. 2d DCA 1983), appellee there raised the same argument as appellees here. However, we stopped short of addressing the argument there because the trial court reserved jurisdiction in an order denying appellant’s motion for a new trial. Here, of course, it is necessary to confront appellees’ contention since the trial court did not reserve jurisdiction at all.


author: MILLS, Judge.

text:
    L. Barry KEYFETZ, Appellant, v. John SMITH, Roadway Express and Liberty Mutual Insurance Company, Appellee.
    No. AO-247.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1983.
    L. Barry Keyfetz, Miami, pro se.
    Jere N. Chait, Miami, for Appellee Employer/Carrier.
   MILLS, Judge.

Keyfetz instituted this appeal following the deputy commissioner’s order denying him the right to collect a $225 attorney’s fee from John Smith, the claimant in this workers’ compensation case. We affirm.

Smith sought advice from attorney Key-fetz in connection with his workers’ compensation claim against Roadway Express and Liberty Mutual Insurance Company, the employer/carrier (E/C). After Keyfetz agreed to represent Smith, Smith signed a retainer agreement which provided in part as follows:

I HEREBY retain Attorney L. BARRY KEYFETZ, to represent me in my workmen’s compensation case occurring on or about 4/13/81 when employed by Roadway. I agree to pay my attorney at the rate of $125 per hour, but my responsibility for attorney’s fees shall not exceed 25% of the benefits provided to me. This contract is on a contingent basis as applied to any and all workmen’s compensation benefits or medical benefits paid on my behalf after the date of my retaining counsel.
I further understand and agree that should any attorney fee be assessed against the employer/carrier that said amount would be credited to me against the overall fee for which I am obligated on an hourly basis; that I am obligated for any balance due, but not to exceed 25% of the compensation benefits I have received after securing counsel; that my attorney may negotiate and reach agreement with the employer/carrier regarding any fees to be paid by the employer/carrier without my involvement in connection therewith.

Keyfetz subsequently undertook representation of Smith and was able to secure $1,368 of benefits plus interest, medical expenses, and costs. The E/C denied compensability so that an attorney’s fee was properly awardable under Section 440.34(3)(c), Florida Statutes (1981).

In connection with the amount of the fee to be assessed, Keyfetz submitted a time affidavit to the deputy commissioner showing that he had spent in excess of 14 hours on the case. The total fee charged by Key-fetz would ordinarily have been $1,750 (14 hours at $125 per hour). In this instance, however, Keyfetz, Smith, and the E/C entered into an agreement which, subject to the approval of the deputy commissioner, provided that the total fee would be only $1,625, with the E/C paying $1,400 and Smith paying $225.

The deputy commissioner refused to assess any fee against Smith. He found that “in a controverted case ... F.S. § 440.34(3)(c) requires that the claimant’s attorney be paid by the employer/carrier and counsel for the claimant is bound by whatever fee may be assessed against the employer/carrier.” He then assessed an attorney’s fee against the E/C in the amount of $1,400.

We agree with the deputy commissioner’s conclusion and hold that when attorneys’ fees are assessed against the E/C under any of the subsections of Section 440.34(3), Florida Statutes (1981), the claimant’s attorney is bound by the amount that the deputy commissioner finds to be reasonable. Based on the facts present in this case, we expressly disapprove of that portion of the retainer agreement set out above which allows fees assessed against the E/C to be merely a credit against the total fee for which a claimant may have obligated himself.

We do not consider the $1,400 fee the deputy ordered the E/C to pay claimant pursuant to a stipulation between them, because this is-not urged as an issue before us.

AFFIRMED.

BOOTH and SHIVERS, JJ., concur.


author: WENTWORTH, Judge.

text:
    BRICE BUILDING CO. and U.S. Fidelity & Guaranty Co., Appellants, v. Gary S. BRACKEN, Appellee.
    No. AP-332.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1983.

      John R. Gierach, of Gierach & Ewald, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish; Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, co-counsel for appellee.
   WENTWORTH, Judge.

Appellants seek review of a workers’ compensation order whereby appellee was awarded payment of attorney’s fees pursuant to § 440.34(2)(b), Florida Statutes. We conclude that the deputy erred in finding “bad faith” as a predicate for the award, and we therefore reverse the order appealed.

As Florida Erection Services Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981), recognizes, a deputy commissioner has broad discretion in determining bad faith, and such finding may be predicated on the “delay or denial of payment, without a showing of active effort and initiative on the part of the carrier to fairly and expeditiously determine its obligation .... ” Nor does this obligation cease when the employer/carrier contemplates an appeal. See Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). However, where a reasonable dispute exists, a bad faith finding is not warranted merely because the deputy disagrees with the employer/carrier’s position. See Harper Plumbing & Heating v. Boyd, 418 So.2d 396 (Fla. 1st DCA 1982). In the present case the carrier did pursue active investigation to determine its obligation, and it does not appear that the carrier acted unreasonably in maintaining the position that, based on the information it had secured, claimant’s average weekly wage was properly determined in accordance with the actual wages indicated in his wage statement. A subsequent delay in payment, while appellants were contemplating appeal, until three days after the order became final was not of such magnitude as to constitute bad faith in the circumstances of the present case. The totality of the circumstances involved does not indicate “fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the claimant,” as § 440.34(2)(b) defines “bad faith.” In the present case the deputy’s finding of bad faith was therefore an abuse of discretion.

The order appealed is reversed.

BOOTH and THOMPSON, JJ., concur.


text:
    Robert William IRBY, Appellant, v. STATE of Florida, Appellee.
    No. AP-399.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1983.
    Rehearing Denied Sept. 23, 1983.

      Charlene Y. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant is an inmate at the Union Correctional Institution and was found guilty, after a jury trial, of battery on a correctional officer at the Union facility. We agree with appellant’s contention that Union correctional officers whom appellant challenged “for cause” should have been excused from jury service; we therefore reverse the judgment and sentence appealed.

The jury venire in this case included several Union correctional officers, each of whom appellant challenged for cause. In response to questioning by counsel and the court, each correctional officer asserted that he would impartially decide the case solely on the facts presented. The court denied appellant’s challenges for cause, and appellant then utilized his peremptory challenges. After the peremptory challenges were exhausted one officer remained on the jury which resolved conflicting testimony, presented by appellant and the alleged victim, and found appellant guilty of the offense charged. The various correctional officers whom appellant challenged serve in related institutional facilities, and in the same general employment capacity, as the alleged victim.

Article I, § 16, Fla. Const., provides that:

In all criminal prosecutions the accused shall ... have a speedy and public trial by impartial jury ....

Section 913.03(10), Florida Statutes, provides that a jury may be challenged “for cause” if possessed of “a state of mind ... that will prevent him from acting with impartiality ... . ” The statute also indicates that, despite a juror’s predisposition, “if he declares and the court determines that he can render an impartial verdict” the juror shall not be excused “for cause.”

The fairness of a proceeding and the impartiality of a jury are not necessarily impaired because a juror is placed in a potentially compromising situation (see Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)), and a trial court has broad discretion regarding determinations of juror bias. See Hawthorne v. State, 399 So.2d 1088 (Fla. 1st DCA 1981). We conclude, however, that the circumstances of the present case raise both an appearance and a substantial probability of inherent juror bias, in a trial for an alleged offense against a person in the course of employment involving unusual personal risks identical to those shared by the challenged jurors. Pursuant to § 913.03(10), therefore, the challenged correctional officers should have been excused upon challenge for cause. The denial of appellant’s challenge was an abuse of discretion resulting in manifest error which requires reversal of appellant’s conviction.

Accordingly, the judgment of conviction and sentence are reversed and the cause remanded for trial anew.

BOOTH and THOMPSON, JJ., concur.

      . One of the challenged correctional officers was the alleged victim’s immediate supervisor.

      . The state relies on Morgan v. State, 415 So.2d 6 (Fla.1982). To the extent that Morgan suggests that correctional officers are not statutorily excluded from juror service in all instances, we note that Morgan was directed to service by such officers on juries for criminal prosecutions generally, and did not involve the limited circumstances which the case now before us presents, i.e., correlation of an unusual specific employment risk for the juror and the victim of the offense charged.
      In situations which bear some degree of similarity to the instant case, various jurisdictions have taken disparate positions. E.g., compare Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972), with Lugo v. State, 136 Tex.Cr.R. 226, 124 S.W.2d 344 (1929).


author: ERVIN, Chief Judge.

text:
    Mildred Lou KISSINGER, f/k/a Mildred Lou Niel Mason, Appellant, v. Philip MASON, Appellee.
    Nos. AP-473, AR-21.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1983.
    Jerome M. Novey of Novey & Mendelson, Tallahassee, for appellant.
    W. Kirk Brown, Tallahassee, and Cynthia S. Tunnicliff of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellee.
   ERVIN, Chief Judge.

The wife appeals from a final order of the trial court terminating her former husband’s obligation to pay rehabilitative alimony by virtue of her remarriage. The trial court also entered an order awarding $625 in fees”to the wife’s attorney from which the former husband takes this cross-appeal on grounds that the award was an abuse of the trial court’s discretion.

A final judgment of dissolution of the parties’ marriage of twenty-three years was entered on October 7, 1981. The judgment, awarded to the wife $625 per month rehabilitative alimony for thirty-six months, commencing on November 1,1981, provided that she remain enrolled as a full-time student in the school of pharmacy at Florida A & M University (FAMU). As a consequence of the wife’s later remarriage, the former husband filed a petition for modification requesting termination of the rehabilitative alimony.

The following facts were stipulated to by the parties:

(1) since the entry of the final judgment, the wife has remained a full-time student at the FAMU school of pharmacy;

(2) the wife married Gary Kissinger on August 20, 1982;

(3) Kissinger’s monthly gross income is $2,555.82, and

(4) Kissinger’s monthly expenses meet or exceed his monthly income. A hearing was held, and the trial court entered an order granting the petition, thereby terminating the rehabilitative alimony to the wife because of her remarriage, based on the law set forth in our decision in Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976).

The wife asserts that rehabilitative alimony should continue until rehabilitation is completed regardless of remarriage, since remarriage is not an event by which one reaches rehabilitation. Although there is authority supporting the wife’s position, see Frye v. Frye, 385 So.2d 1383, 1390 (Fla. 2d DCA 1980), but cf. Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1974), we do not find it necessary at this time to decide whether or not rehabilitative alimony should terminate automatically only upon the remarriage of the recipient, and decline to do so.

In Gann, the sole issue before this court was whether the alimony awarded should be permanent or rehabilitative, not whether an award of rehabilitative alimony was required to end upon the recipient spouse’s remarriage. We there defined rehabilitative alimony as “that amount of money or other things of value reasonably necessary to supplement means already available reasonably required during the post-marriage period to maintain the recipient until he or she is, in the exercise of reasonable efforts and endeavors, in a position of self-support,” and as “alimony paid for the purpose of rehabilitating the spouse to whom it is awarded, such as, ... financially supporting a spouse until he or she can be trained for employment.” Cann at 328-29. We went on to state that although rehabilitative alimony may be awarded for a specific period, it either can be terminated earlier than anticipated, or extended, depending upon a proper showing of the spouse’s rehabilitation before expected, or non-rehabilitation through no fault of his or her own. Id. at 329.

The record before us reflects that the trial court was reluctant to terminate the wife’s rehabilitative alimony, but felt compelled to do so because of our gratuitous statement in Cann that “[rjemarriage of the recipient also, of course, requires termination of rehabilitative alimony.” Id. This statement was not necessary to the holding in Cann, it represents dictum in that case, and consequently has no binding effect on later decisions involving issues different from those actually decided. See Hart v. Stribling, 25 Fla. 433, 6 So. 455 (1889). We therefore reverse the trial court’s termination of rehabilitative alimony, which was based solely upon the event of the wife’s remarriage, as we find that a legal misinterpretation of the law supported the trial court’s decision. As the lower court was not bound by the Cann dicta, we remand this cause to it for further consideration of this question.

As to the husband’s cross-appeal, we do not agree with the contention that the trial court abused its discretion in awarding $625 in fees to the wife’s attorney on the ground that at the time of the marital dissolution the marital assets were evenly divided between the spouses, and the wife was unsuccessful in her defense on the petition for modification.

Section 61.16, Florida Statutes (1981), provides authority to award attorney’s fees “after considering the financial resources of both parties” in proceedings related to dissolution of marriage, including modification proceedings. The financial affidavits before us reveal that the wife’s monthly net income was $675, including rehabilitative alimony, with expenses of $1,072, while the former husband’s monthly net income was $4,106.96 with expenses of $3,439.34. Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980), states that the purpose behind section 61.16 is “to ensure that both parties will have similar ability to secure competent legal counsel,” and that it is “not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay fees.” We accordingly conclude that the trial court did not abuse its discretion in awarding fees to wife’s attorney in view of the disparate financial positions of the parties and the purpose underlying the statute. See, e.g., Desilets v. Desilets, 377 So.2d 761 (Fla. 2d DCA 1979); Fagan v. Lewis, 374 So.2d 18 (Fla. 3d DCA 1979). We note also that an award of attorney’s fees depends not upon who prevails but rather upon the relative financial resources of the parties. Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982).

Pursuant to the wife’s petition for attorney’s fees on appeal, we provisionally grant the petition for a reasonable award for payment of her lawyer’s services on appeal, and remand in accordance with the procedure set out in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

The trial court’s order terminating the wife’s rehabilitative alimony is hereby reversed and remanded with directions as provided in this opinion, and the award of $625 in fees to the wife’s attorney is affirmed,

THOMPSON and WIGGINTON, JJ., concur.


text:
    Joseph Earl DREISCH, Jr., a/k/a Joseph Dreisch, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2082.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1983.

      Mark King Leban, Miami, for appellant.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds and William Thomas, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Rejecting the defendant’s primary contentions on appeal from his convictions of grand theft and the publication of false information, we hold that (a) his proffered instruction on the subject was properly refused because, unlike the situations in Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981), and Dudley v. State, 405 So.2d 304 (Fla. 4th DCA 1981), on which he relies, there was no evidence that he had an honest belief that he had a right to the property in question and (b) the evidence of another transaction was properly admitted under Section 90.404(2)(a), Florida Statutes (1981) to show his “intent ... knowledge ... [and] absence of mistake or accident,” which were all material facts in issue. There is no other reversible error.

Affirmed.

      . Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.


author: ANDREWS, ROBERT LANCE, Associate Judge.

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, as assignee of Sugar Cane Growers Co-Operative of Florida, Appellant, v. FLORIDA FRUIT AND VEGETABLE ASSOCIATION, et al., Appellees.
    No. 82-187.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Sept. 26, 1983.
    Joe N. Unger of the Law Offices of Joe N. Unger, P.A., Miami, for appellant.
    Paxton, Crow, Bragg & Austin, West Palm Beach, and Larry Klein, West Palm Beach, for appellee Florida Fruit and Vegetable Ass’n.
   ANDREWS, ROBERT LANCE, Associate Judge.

Florida Farm Bureau Mutual appeals the final order of the trial court dismissing with prejudice its third party complaint seeking indemnification from appellee for monies paid in settlement of a personal injury action. Florida Farm Bureau Mutual is the assignee of the claim of Sugar Cane Growers Co-Operative.

In our Case No. 81-336, Sugar Cane Growers Cooperative of Florida v. Florida Fruit and Vegetable Association and Ansel Wright, 418 So.2d 1304 (Fla.App.1982), Sugar Cane appealed from a Summary Judgment against it, one in favor of Florida Fruit, and a partial Summary Judgment for the Plaintiff. The result of these lower court orders were that Sugar Cane was held not to be an employer of the Plaintiff at the time of the injury, and not immune from suit. In its initial brief in 81-336, Sugar Cane challenged these orders, and raised the identical issue sub judice. The court, in 81-336, ordered Sugar Cane to file a supplemental brief concerning issues of standing and dual employment. Appellee briefed both the initial and supplemental issues. On July 28, 1982, this court affirmed the lower court without opinion.

Following the appeal of the adverse order in 81-336, but prior to this court’s decision, the lower court dismissed the third party complaint, which is now being appealed.

Upon thorough review of the briefs filed in Case No. 81-336, it is apparent that the issue raised before us in this appeal, is the very same as was raised in 81-336. It is therefore unnecessary and inappropriate to reach the merits presented. By our per curiam affirmance in Case No. 81-336, the issue is now res judicata. Department of Legal Affairs v. Fifth District Court of Appeal, 434 So.2d 310 (Fla.1983); McDaniel v. Musgrove, 427 So.2d 1091 (Fla. 1st DCA 1983). Accordingly, we AFFIRM.

HERSEY and GLICKSTEIN, JJ., concur.


author: DELL, Judge.

text:
    JAY VEE REALTY CORP., Appellant, v. JAYMAR ACRES, INC., a New York corporation authorized to do business in the State of Florida, Appellee.
    No. 82-416.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.

      Larry Klein, West Palm Beach, for appellant.
    Jack F. Weins of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.
   DELL, Judge.

The seller appeals a final judgment of the trial court ordering specific performance of a contract for the sale of real estate.

Appellant as seller and appellee as buyer entered into a contract for the sale of real estate. The contract required appellant to furnish an abstract of title to appellee within fifteen days of execution of the contract. The parties also made appellee’s duty to close conditional upon appellee being able to obtain plat approval for two hundred dwelling units from the appropriate government agency. The contract contained the following remedies provision:

DEFAULT: If Buyer fails to perform any of the covenants of this contract, all money paid pursuant to this contract by the Buyer shall be retained by or for the account of the Seller as consideration for the execution of this contract, and as agreed and liquidated damages and in full settlement of any claims for damages. If the Seller fails to perform any of the covenants of this contract, all money paid pursuant to this contract by the Buyer, at the option of the Buyer, shall be returned to the Buyer on demand, or the Buyer shall have only the right of specific performance.

Appellant never provided the abstract and appellee never obtained plat approval. Some fourteen months after execution of the contract, appellant wrote to appellee, stating that appellant considered the contract terminated and announced its intention to retain appellee’s deposit. Appellee filed suit for specific performance.

The trial court found that the contract contained no date for closing; that the contract required appellant to furnish appellee a complete abstract of title; that appellee was not in default at the time appellant sent its termination letter; that appellant never demanded closing nor tendered any closing documents or deed; and that appel-lee’s failure to obtain plat approval within fourteen months from execution was not unreasonable under the circumstances of this case. The court entered final judgment directing appellant to specifically perform its contract.

Appellant challenges the judgment upon two grounds. Appellant first claims appel-lee could not recover a decree for specific performance by reason of appellee’s failure to secure plat approval in a diligent fashion. Second, appellant contends that during the interval between execution and termination of the contract, it could not have sought any relief or obtained any remedy against appellee for the latter’s failure to obtain plat approval. Thus, appellant reasons, lack of mutuality of remedy precludes specific performance.

Although appellee did not obtain plat approval during the fourteen months after execution of the contract, the record supports the trial court’s findings that the lapse was not unreasonable, particularly since the contract contained no time for performance of this condition. Moreover, appellee filed suit within thirty days of appellant’s attempted termination of the contract. In order for a defendant to raise delay as a defense to specific performance, the defendant himself must have performed or offered to perform all terms of the contract. Tate v. Pensacola, Gulf Land & Development Co., 37 Fla. 439, 20 So. 542 (1896); Wilson v. Odom, 215 So.2d 37 (Fla. 1st DCA 1968); Thoelke v. Morrison, 172 So.2d 604 (Fla. 2d DCA 1965). Appellant has not demonstrated that it ever provided or tendered an abstract of title, as required by the contract of sale.

Appellants did not raise lack of mutuality of remedy by affirmative defense as required by Rule 1.110(d), Florida Rules of Civil Procedure and this Court’s decision in Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203 (Fla. 4th DCA 1973), and the matter does not appear to have been tried by consent below. However, appellee has not argued appellant’s failure to present mutuality of remedy to the trial court and has treated the matter on its merits.

In essence, appellant contends that it could not have forced appellee to purchase the land, relying upon Con-Dev of Vero Beach, supra. Therein, the plaintiff agreed to purchase an apartment in a condominium yet to be built by defendants. Defendants never built this condominium, but instead built a condominium building, “markedly different in layout and scope and more expensive as to unit cost .... ” Id. at 205. Plaintiff then sued for specific performance and defendant pleaded impossibility and lack of mutuality of remedy as affirmative defenses. The trial court granted the plaintiff’s motion to strike these affirmative defenses, and the defendant took an interlocutory appeal directed to this order. This Court reversed.

In suits for specific performance of a contract there must be mutuality of obligation and remedy. [Citation omitted.] The facts stated in defendant’s affirmative defenses show there could be no mutuality of remedy in this instance. Since the building was never constructed, plaintiffs could not have been forced to specifically perform and purchase a non-existent apartment.

Id. at 206. [Emphasis added.]

Here, appellee may not be able to obtain plat approval for two hundred dwelling units on the property, due to changes in zoning ordinances, but the plat approval did not constitute the substance of the contract, as did the apartment in Con-Dev of Vero Beach. Plat approval constituted a condition of the contract, which appellee could waive, and in fact did waive by filing the instant litigation. The subject matter of the contract, the land, exists and is capable of transfer.

Moreover, a seller of land may contractually limit his remedy to liquidated damages and forego the remedy of specific performance without destroying mutuality of remedy. Vance v. Roberts, 96 Fla. 379, 118 So. 205 (1928).

We find no merit in appellant’s assertion that the absence of a provision limiting the time for performance of appel-lee’s duty to obtain plat approval destroyed mutuality of remedy. Where a contract for the sale of real estate fails to specify time for performance, the law implies a reasonable time. See, e.g., Lake Dorr Land Co. v. Parker, 104 Fla. 378, 140 So. 635 (1932); Cohodas v. Russell, 289 So.2d 55 (Fla. 2d DCA 1974); Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972). Here, the trial court resolved this issue in favor of appellee. The record as a whole supports the trial court’s finding that appellee was not in default and that failure to close within fourteen months was not unreasonable under the circumstances of this case.

Accordingly, we affirm the judgment of the trial court in favor of appellee.

AFFIRMED.

LETTS, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    KENNEDY REAL ESTATE FOUNDATION, Appellant, v. Nancy S. GOLDBERG, Appellee.
    No. 83-794.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Frazier Marks, Fort Lauderdale, for appellant.
    Gary R. Gromet, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant seeks review of a non-final order denying its motion to discharge a lis pendens recorded against its property. Such order is not reviewable as a non-final appeal but can be treated via petition for writ of certiorari. Cooper Village, Inc. v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980).

We have considered petitioner’s arguments and find them to be without merit. Accordingly, the petition for writ of certio-rari is denied.

DOWNEY, LETTS and DELL, JJ., concur.