author: DELL, Judge.

text:
    SUN CRETE OF FLORIDA, INC., Sun Crete of Carolina, Inc., John Meincke, Kenneth Alston and Does 1 through 20, Appellants, v. SUNDECK PRODUCTS, INC., Sun Surfaces, Inc., a Florida corporation, Pool Builders, Inc., and Ted Libernini, Appellees.
    No. 83-939.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Rehearing Denied July 25, 1984.

      Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellants.
    Richard Birnbaum, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for appellees Sundeck Products, Inc., and Sun Surfaces, Inc.
   DELL, Judge.

Appellees sued for damages and for preliminary and permanent injunctions restraining appellants from using trade secrets which appellees had revealed pursuant to a nondisclosure agreement. Appellants take this non-final appeal from the trial court’s order granting a preliminary injunction. Fla.R.App.P. 9.130(a)(3)(B).

Leslie Stambaugh, principle stockholder and chief executive of appellee Sundeck Products, Inc., developed Sundek, a coating used to surface or resurface pool decks, patios, driveways and other areas subject to foot and vehicular traffic. Appellee presented evidence that Sundek has great strength, the life expectancy of concrete, a non-skid surface, easy maintenance, and that its most unique feature is its capacity to bond to existing cement, while other decking products require new cement for proper bonding. The Sundek process consists of specially formulated raw materials, applied with special tools and techniques in a three-step process.

Appellant Meincke approached Stam-baugh in California about becoming a Sun-dek dealer in South Carolina. After Meincke signed a nondisclosure agreement, Stambaugh demonstrated the Sundek process, sold Meincke the raw materials, and arranged for training of Meincke’s South Carolina employees. Stambaugh and Meincke failed to reach agreement on a dealership contract.

Stambaugh subsequently learned that Meincke was doing business as appellant Sun Crete, opening Sun Crete dealerships on the east coast, including one in Florida, and selling a product which utilized the Sundek process. However, Meincke had substituted a cheaper, less durable sealer than that developed by Stambaugh, in the third step of the process.

In order to secure injunctive relief, an aggrieved plaintiff must show irreparable harm, a clear legal right, an inadequate remedy at law, and considerations of the public interest, Contemporary Interiors v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980). Appellants contend that the trial court had before it no evidence tending to prove that the Sundek product and process are trade secrets, and thus appel-lees failed to prove the first two elements of their claim for injunctive relief.

Appellants assert several challenges to appellees’ proof. First, they contend that appellees revealed one of their formulas to an independent cement supplier without a nondisclosure agreement. Stambaugh testified that he did not reveal any formula. He brought his chemical additive to the cement supplier and instructed him to mix the additive with specified amounts of sand and cement to produce the raw material for one step of the Sundek process.

Second, appellants claim appellees published its process in their own promotional materials. Stambaugh testified that these promotional materials contain only a general description of the techniques involved, insufficient for a reader to duplicate the techniques. Further, John McCoy, a Texas Sundek dealer, testified that a person experienced in the decking business could not duplicate the technique merely by watching the application process. Meincke had the promotional materials in his possession, had watched Sundek being applied, and ap-pellee’s employee had trained his crew in the technique for eight days, yet those crews required two retraining sessions before they could produce an acceptable deck. The promotional materials thus were not so detailed or extensive as to remove the Sun-dek process from the trade secret category.

Third, appellants point out that the tools used in the application process are standard catalogue items. However, they are not standard concrete tools. Stambaugh adapted and modified tools from other trades for the purpose of applying Sundek.

These challenges involve conflicts in the evidence. We will not disturb the trial court’s resolution of those conflicts.

Additionally, appellants argue that the Sundek process cannot be a trade secret because the raw materials are commercially obtainable in the open market. Finally, appellants contend that since appellees did not give one of their formulas to Meincke, appellees did not demonstrate that appellants have used their secrets. The record reflects that Stambaugh sold Meincke the raw materials, and that Stambaugh examined a sample of the Sun Crete product and found it identical to Sundek (except for the cheaper, nondurable sealer). However, ap-pellees concede that there is no evidence to show how Meincke acquired this formula.

Neither of these arguments requires reversal. In addition to the disputed evidence discussed above, the record demonstrates that appellees presented evidence that their three-step process is unique in the industry, unpublished, and not susceptible of general knowledge. The law of trade secrets protects more than chemical formulas. A trade secret is a plan or process, tool, mechanism or compound. It includes a unique combination of otherwise known components, if the combination differs materially from other methods known in the trade. 2 Callman, Unfair Competition, Trademarks & Monopolies § 14.07 (4th Ed.1982).

In Lee v. Cercoa, 433 So.2d 1 (Fla. 4th DCA 1983), petition for review denied, 444 So.2d 417 (Fla.1984), the trial court granted injunctive relief upon a finding that certain chemical formulations and certain techniques in the manufacturing process constituted trade secrets.

Appellant argues that appellee failed to sustain its burden to establish that the foregoing were trade secrets, since, so he argues, all the information was published in literature or patented and the techniques and processes were known to others in this field. While the evidence to which appellant points would support an inference that many of the major elements of the appellee’s process are the same as those known to others in this field, it is also sufficient to support the court’s factual findings that the combination of elements into a complicated production process amounted to a trade secret and not merely a variation of a general process, see Ferroline Corp. v. General Aniline & Film Corp., [207 F.2d 912, 917 (7th Cir.1953) ] and that the appellant made a reasonable attempt to safeguard its process.

Id. at 2 [original emphasis].

Notwithstanding the availability of some raw materials, and the lack of proof of improper acquisition of one chemical formula, appellees adequately demonstrated that their complicated production process amounts to a trade secret.

AFFIRMED.

ANSTEAD, C.J., and LETTS, J., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Gerald BALSAM, Howard M. Israel, Lawrence Levinson, Herbert Schwartz, and Arnold Zager, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AV-436.
    District Court of Appeal of Florida, First District.
    June 13, 1984.
    Kenneth G. Oertel of Oertel & Hoffman, Tallahassee, for appellants.
    Steven W. Huss, Asst. General Counsel, Department of Health and Rehabilitative Services, Tallahassee, for appellee.
   JOANOS, Judge.

In this appeal from final administrative action, appellants seek reversal of a hearing officer’s determination that a moratorium on the receipt of certificate of need applications imposed by the State of Florida Department of Health and Rehabilitative Services (HRS) was not a rule subject to rule-making procedures of Chapter 120, Florida Statutes. We reverse.

Appellants timely filed a letter of intent to file an application for a certificate of need to construct a 100-bed psychiatric hospital in Broward County. HRS replied that an administrative moratorium had been imposed on certificate of need applications to be reviewed in June, 1983, but that upon proper application, appellants’ certificate of need would be reviewed in the next batching cycle in September, 1983. Appellants timely filed their second letter of intent, specifically reserving any rights they had under the initial application. Appellants, then, challenged the moratorium as an invalid rule, claiming they had lost a statutory right of review of their initial application. At the hearing before the Division of Administrative Hearings hearing officer, HRS explained that the moratorium was imposed to allow time for it to promulgate rules on statewide bed-need methodologies as mandated by the 1982 Florida Legislature. No such rules were promulgated during the moratorium, the moratorium expired, and the normal review process resumed.

HRS argues, initially, that the issue is moot since the moratorium has expired. We cannot agree, as imposition of a moratorium by HRS without notice affected substantial, interests of appellants and would be agency action subject to review under the Administrative Procedures Act. Commercial Consultants Corporation v. Department of Business Regulation, 363 So.2d 1162 (Fla. 1st DCA 1978).

HRS next argues that appellants have no standing since there’s been no showing that the moratorium deprived them of a competitive advantage. Again, we cannot agree. The hearing officer correctly found that appellants had standing by showing they were substantially affected by the moratorium. Section 120.56(1), Florida Statutes (1981).

HRS contends the moratorium was neither rule nor order, but rather was a deviation from Florida Administrative Code Rule 10-5.08. HRS argues that the moratorium is justified as it allowed time to attempt to satisfy the legislative mandate to promulgate bed need methodologies.

Section 381.494(5), Florida Statutes provides:

[t]he department [HRS], by rule, shall provide for applications to be submitted on a timetable or cycle basis; provide for review on a timely basis; and provide for all completed applications pertaining to similar types of services, facilities, or equipment affecting the same service district to be considered in relation to each other no less often than four times a year, (e.s.)

Pursuant to Section 381.494(5), HRS promulgated Florida Administrative Code Rule 10-5.08 which provides for four batching cycles per year. There are no provisions which allow suspension of a current rule or deviation from the promulgated rule which would be in direct contravention of the statutory requirement of review no less than four times per year.

A rule is any agency statement of general applicability that prescribes laws or policy or describes the organization, procedure, or practice requirements of an agency. Section 120.52(15), Florida Statutes.

As shown in State, Department of Administration v. Harvey,

[a]ny agency statement is a rule if it ‘purports in and of itself to create certain rights and adversely affect others,’ [cite omitted], or serves ‘by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.’ [cite omitted]

356 So.2d 323 (Fla. 1st DCA 1978). We agree with the hearing officer’s conclusion that it is unquestioned that by imposing the moratorium HRS departed from Rule 10-5.08(1), denying appellants’ timely review. The hearing officer’s next step in applying State, Department of Commerce v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978), however, led to the erroneous conclusion that the temporal limitation of the moratorium made it not have the consistent effect of law and, therefore, not a rule. The moratorium was consistently applied to all applications during the time that the moratorium was in force, unlike in Matthews where wage rate determinations were found to apply to one party, in one geographic location, for one construction project. The pervasive and consistent effect of the moratorium upon those seeking certificates of need is in no way lessened by the moratorium’s finite duration. We find imposition of the moratorium to be analogous to the situation in Harvey, supra, where minimum training and experience requirements imposed upon all career service employment were found to be invalid rules.

Our determination that the moratorium was an invalid rule does not require HRS automatically to issue a certificate of need to appellants. We note that the remedy for certificate of need applicants aggrieved by a delay in determination of their applications is established in Section 381.494(8)(c), Florida Statutes. If appellants’ application has yet to be processed, HRS shall make its determination as soon as possible.

Accordingly, the hearing officer’s final order is REVERSED.

' BOOTH and SHIVERS, JJ., concur.

       Florida Administrative Code Rule 10-5.08 provides for four review cycles as follows:
      Types of Projects Applications Filed By Application Complete By Month for Final Dept Action
      ALL HOSPITAL PROJECTS
      Jun 15 Aug 15 Sep
      Aug 15 Oct 15 Nov
      Nov 15 Jan 15 Feb
      Mar 15 May 15 Jun


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    ZURICH INSURANCE COMPANY, Appellant/Cross Appellee, v. Hugh Stephens MARTIN, Appellee/Cross Appellant.
    No. 83-674.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.
    Rehearing Denied July 6, 1984.

      Robert C. Cooper of Cooper & Rissman, P.A., Orlando, for appellant/cross appellee.
    Leon M. Boyajan, II, of Law Offices of J. Russell Hornsby, P.A., Orlando, for ap-pellee/cross appellant.
   FRANK D. UPCHURCH, Jr., Judge.

Zurich Insurance Company appeals from a final order of equitable distribution. Hugh Martin has cross appealed also challenging the order.

Martin was injured in January, 1979, in an automobile accident which occurred in connection with his employment. His employer had secured workers compensation insurance through Zurich which paid Martin a total of $5,053 in past compensation and medical benefits. The workers’ compensation file remains open and according to one of Zurich’s representatives, the carrier has reserved funds in excess of $10,000 for future benefits and claims.

In October, 1980, Martin filed a negligence action against Russell Fitch, the driver of the car that collided with his vehicle, and Allstate Insurance Company, Fitch’s insurer. The policy limits applicable to this case were $20,000. Prior to trial, the parties settled for $10,000. According to Fitch’s attorney, this represented the full value of Martin’s case though Martin denied this.

After receiving notice of Martin’s suit against Fitch, Zurich filed its Notice of Lien for Payment of Compensation and Medical Benefits, claiming a lien upon Martin’s recovery for benefits paid or to be paid to him under the Workers’ Compensation Act. At the hearing on Zurich’s motion for equitable distribution, Zurich argued that it was entitled to one hundred percent of what it had paid and future benefits to be paid up to the net recovery received by Martin.

The trial court found that Martin had settled his tort claim for the full value of his case and that he netted $5,672.17 from the settlement after payment of attorney’s fees and costs. The court also found that the testimony of Zurich’s representative as to the over $10,000 in future reserves was not competent because there was no evidence justifying the need for such reserves and the representative was not qualified to render an opinion regarding what future benefits may be paid by Zurich. The court then applied the formula found in National Ben Franklin Ins. Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976), and awarded Zurich $2,866 or fifty-seven percent of the $5,053 in past benefits paid.

The first point on appeal is whether the trial court erred in awarding Zurich fifty-seven percent instead of one hundred percent of the compensation and medical benefits paid when it concluded that Martin had received full value in his tort settlement.

The trial court found and the parties agree that section 440.39(3)(a) and (b), Florida Statutes (1978), govern this case. These subsections provide in relevant part as follows:

(a) ... The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such pro-ration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed and notice of payment of compensation benefits shall be served upon the compensation carrier and upon all parties to the suit or their attorneys of record.
(b) If the employer or insurance carrier has given written notice of his rights of subrogation to the third party tort-feasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the County in which the cause of action arose shall determine the amount to be paid to each by such third party tortfeasor in accordance with the provisions of paragraph (a) above.

Under subsection (a), Zurich was entitled to recover from the settlement (after attorney’s fees and costs are deducted) one hundred percent of what it paid Martin and future benefits to be paid, unless Martin could demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or insurance limits.

The trial court specifically found that Martin’s settlement with the third party tortfeasor for $10,000 was for the full value of his case. Martin does not challenge this finding. Indeed, the testimony of Martin’s own attorney indicates that no comparative negligence was involved in this case and the settlement was well below the applicable $20,000 insurance limits. Under subsection (a), therefore, Zurich was entitled to one hundred percent of what it paid Martin. See State, Dept. of Health v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981). In Culmer, the Third District, finding that the employee failed to demonstrate that she did not receive the full value of her damages in a settlement, concluded that under section 440.39(3)(a), it was error not to provide full recovery to the employer for workers’ compensation benefits paid or payable.

The trial court’s reliance on National Ben Franklin Ins. Co. v. Hall, was misplaced since the formula there which allows an employer or carrier to recover a pro rata share of compensation paid applies only where the employee demonstrates that he has received less than full value of his damages in a judgment or settlement against the tortfeasor. It is not to be utilized where the statutory provision for one hundred percent recovery is controlling. Culmer, 402 So.2d at 1275, n. 3.

We also hold that the trial court erred in refusing to award Zurich future benefits. Zurich argues that a provision should be included allowing it to recover up to $619 (the difference between Martin’s net recovery in the settlement, $5,672 and what Zurich has already paid, $5,053) for future compensation or medical benefits that may be paid.

The trial court found that there was no competent, substantial evidence to justify Zurich’s reserve of over $10,000 for future benefits. The court also found that the evidence established that Zurich has paid no compensation benefits to Martin since November 7, 1981, and no medical benefits since August 12,1982. However, the court did not find that there would be no further payments made by Zurich to Martin.

Section 440.39(3)(a) clearly contemplates a lien on future benefits by providing: “The employer or carrier shall recover ... what it has paid and future benefits to be paid_” (emphasis supplied). Therefore, Zurich was entitled to one hundred percent of what it paid Martin as well as future benefits to be paid, up to $5,672.17.

Martin argues on cross appeal that the trial court erred in refusing to deduct an amount for his pain and suffering damages from his gross recovery against the tortfeasor. In this regard, Martin relies on Orange County v. Sealy, 412 So.2d 25 (Fla. 5th DCA 1982), in which this court indicated that a portion of a settlement constituted an amount for pain and suffering which is not covered by workers’ compensation. However, in Sealy this conclusion was. based on a finding made by the trial court. In the case before us, the trial court noted in the final order that “there is no evidence before this court as to the value of any claim that the plaintiff [Martin] may have had for any pain and suffering.” Review of the transcript supports this conclusion and hence the court did not err in this regard.

REVERSED and REMANDED for entry of judgment consistent with this opinion.

DAUKSCH and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    Patricia H. GARDNER, Appellant, v. Winston W. GARDNER, Appellee.
    No. 83-865.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      Andrew A. Graham and Jacinta M. Voor of Reinman, Harrell, Silberhorn, Moule & Graham, P.A., Melbourne, for appellant.
    Robert T. Westman of Stromire, West-man, Lintz, Baugh, McKinley & Antoon, P.A., and Lealand L. Lovering of Lovering, Pound & Clifton, P.A., Cocoa, for appellee.
   SHARP, Judge.

Patricia Gardner argues the trial court erred in its judgment of dissolution by awarding a townhouse titled in her name to Winston Gardner, her former husband, and by awarding her their jointly owned home subject to a $20,000.00 lien. She also argues the trial court abused its discretion in awarding her only $300.00 per month permanent periodic alimony. The amount awarded was low, but not so inadequate as to be reversible. However, we agree that the trial court erred in determining that the townhouse was a marital asset subject to equitable distribution.

The Gardners were married for twenty-one years. At the time of the dissolution, their twenty year old son was in college, and their sixteen year old daughter was living with the wife. Winston was paying $300.00 per month for the son’s board and education on a voluntary basis. Under the decree he was required to pay $200.00 per month child support for his daughter, and $300.00 per month for alimony.

Throughout the marriage Winston was the principal wage earner. His income was approximately $27,800.00 in the last year of the marriage. He served in the Florida Legislature as a member of the House, worked as a consultant for Pan American, and earned an income from a novelty business.

Patricia was a homemaker. She had no earned income. She received $2,600.00 per year in interest from $35,000.00 worth of certificates of deposit. Although the certificates were gifts from her parents and titled in Patricia’s name, they were intended to be used for her parents’ benefit in the event they became ill or disabled.

The trial court ruled that everything except the certificates of deposit were subject to division as marital assets. This included the parties’ jointly owned marital home which was valued at $78,000.00 and was subject to a $10,000.00 mortgage. Also included was Winston’s novelty business, originally begun in the parties’ home, where Patricia and the children all worked from time to time. It was valued at $15,-000.00 to $30,000.00, depending upon whether Winston remained active in the business. The final asset was a townhouse purchased in 1980, titled in Patricia’s name only. It was worth approximately $40,-000.00, but was subject to a $30,000.00 mortgage.

The evidence and testimony at trial established that the full amount of the $9,000.00 downpayment for the townhouse came from Patricia’s parents. Patricia’s mother testified they gave Patricia $6,000.00 and their grandchildren $3,000.00 to purchase the townhouse. Patricia put her $6,000.00 in a specially opened joint account to handle the purchase and withdrew it at the closing. She said title to the townhouse was put in her name because her funds were being used to buy it. There was no evidence that Patricia or her parents intended to make a gift of the funds or the townhouse to Winston.

Winston testified that the townhouse was intended to be jointly owned, but was put in Patricia’s sole name for business reasons. He jointly signed the contract to purchase, the loan application, and the mortgage note. He also made the mortgage and insurance payments on the townhouse, although Patricia insisted on paying the real estate taxes herself. He did not testify that Patricia or her parents made a gift to him of the townhouse or any funds.

Patricia argues that the trial court abdicated its judicial duties by requiring both parties to submit two lists dividing the assets, from which the other spouse would have the right to elect his or her preference. The wife refused to submit any list, and only conditionally accepted one of the husband’s lists. We do not think this Solomon-like procedure employed by the trial judge to get the parties to divide their marital assets is objectionable. The trial court maintained supervision and control over the proceedings and could have rejected any proposal it felt was inequitable. However, in this case we think the trial court erred by including the townhouse in the marital asset pot to be divided by the principle of equitable distribution.

Equitable distribution is a court evolved concept in Florida. It is used to achieve a fair division of marital assets, which are those assets acquired by the parties during their marriage from their work efforts, services, and earnings. In determining whether certain property is a marital asset, the question is not which party holds title to the asset. This approach is justified as a means to compensate the homemaker or non-earning partner for his or her contributions to the family unit. Through the mechanism of equitable distribution, assets are generally transferred from the earning spouse to the homemaker spouse since most of the marital assets commonly are in the earning spouse’s name. This case is the reverse of the normal situation, but that should not prevent the application of the doctrine if the townhouse was a marital asset.

We think property should not be transferred from one spouse to another except pursuant to equitable distribution of marital assets, a finding of special equity or as a lump sum alimony award based on the traditional finding of need, ability to pay, and special justification. If the marital assets are insufficient after equitable distribution to provide a needy spouse with adequate resources and income., non-marital assets may be drawn upon to provide alimony in the classic support sense. McBride v. McBride, 434 So.2d 977 (Fla. 4th DCA 1983). In this case the award of the townhouse cannot be justified on the basis of lump sum alimony in the traditional support sense.

Nor is there any basis in the record to conclude that the townhouse was a marital asset. The source of the funds used to purchase the townhouse came solely from Patricia’s parents and they were intended as gifts to Patricia and her children. At least the downpayment on the townhouse should have been considered Patricia’s and the children’s separate property. Separate property of a spouse includes assets of one spouse acquired from a source outside or unconnected with the marriage, such as by inheritance, property owned prior to marriage, or gifts from third parties. Even if the title to the townhouse had been jointly held by the parties in this case, it would have been error for the trial court to have ignored Patricia’s $6,000.00 special equity in the townhouse.

Ball v. Ball, 335 So.2d 5 (Fla.1976), held that absent a showing that a gift was intended from one spouse to the other, a special equity (a form of separate property), is created by a showing that all of the consideration for property held as tenants by the entirety was supplied by one spouse from a source totally unconnected with the marital relationship. There was no evidence any gift was intended in this case. Patricia should not be in a worse position because the title to the townhouse was in her sole name than she would have been if it were held jointly.

Winston argues he established a special equity in his own right in the townhouse which could justify the trial court’s award. He used his salary or earnings to make the mortgage and insurance payments on the townhouse, and he resided in the townhouse when he was in Tallahassee on state business. However, ordinarily a special equity does not arise in favor of an earning spouse based on the investment of his earnings while the other spouse performs normal household and child-rearing responsibilities. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ball; Hessinger v. Hessinger, 378 So.2d 322 (Fla. 2d DCA 1980); but see Lyons v. Lyons, 436 So.2d 156 (Fla. 2d DCA 1983). We do not think in this case Winston established a special equity in the townhouse. He obtained the benefit of residing in the townhouse while he was in Tallahassee rather than having to rent lodging elsewhere and the equity in the townhouse does not exceed the value of the non-marital downpayment by any considerable amount.

The equitable division of marital assets was flawed by the inclusion of the townhouse. We reverse the judgment as it pertains to the townhouse and affirm it in all other regards.

AFFIRMED IN PART; REVERSED IN PART.

DAUKSCH and COWART, JJ., concur.

      . Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

      . See Bayliss v. Bayliss, 434 So.2d 63 (Fla. 5th DCA 1983); Rion v. Rion, 421 So.2d 541 (Fla. 5th DCA 1982).

      . See Canakaris; Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975).

      . See DiPrima v. DiPrima, 435 So.2d 876 (Fla. 5th DCA 1983).

      . Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981) (dictum); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), petition for review denied, 392 So.2d 1378 (Fla.1980); Hessinger v. Hessinger, 378 So.2d 322 (Fla. 2d DCA 1980);
        Easterling v. Easterling, 358 So.2d 1114 (Fla. 4th DCA), cert. denied, 364 So.2d 884 (Fla.1978).

      . See Neumann v. Neumann, 413 So.2d 1203 (Fla. 3d DCA 1982); Schwartz v. Schwartz, 396 So.2d 806 (Fla. 3d DCA 1981); Rosen; Hessinger.


author: DAUKSCH, Judge.

text:
    James A. MATHIS, et ux., Appellant, v. FOOTE STEEL CORP., etc., et al., Appellee.
    No. 83-1252.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.
    Rehearing Denied July 9, 1984.

      Irvin A. Meyers and Sherry L. Davis of Meyers & Mooney, P.A., Orlando, for appellant.
    W. Gregory Loekeby of Walker, Buck-master, Miller & Ketcham, P.A., Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from a summary judgment in a personal injury case. We reverse.

The plaintiff alleges the defendant, a manufacturer of a boom crane, negligently designed and manufactured the crane. The appellee counters with a denial of the allegations and asserts the crane was substantially altered after delivery. Whether the crane was substantially altered thus relieving this defendant of blame for plaintiffs injuries is not to be decided by summary judgment. It is a factual question, not a question of law for the trial judge, whether the crane was improperly designed, or manufactured; or whether it was substantially altered.

The summary judgment is reversed and this cause remanded for further proceedings.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.


text:
    Angel Garcia BARBON, Appellant, v. STATE of Florida, Appellee.
    No. AU-493.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    Rehearing Denied July 20, 1984.
    Clyde M. Taylor, Jr., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Barbón appeals the trial court’s denial of his Florida Rules of Criminal Procedure Rule 3.850 motion to vacate and set aside his sentence, following his conviction for conspiracy to traffic in excess of 100 pounds of cannabis. We affirm.

Barbón argues his sentence should be vacated due to his inability to depose a critical witness, Putnal, who Barbón contends was made unavailable by the prosecution. Barbon’s motion is based upon a post-trial affidavit of co-conspirator, Carl, who testified for the prosecution at trial. According to the affidavit, Putnal was in the prosecutor’s office on the day of trial. Carl states that the prosecutor said he would not use Putnal as a witness since Putnal was a liar. On the day of trial, Barbón moved for a continuance based upon an alleged denial of the right of access to and ability to compel witnesses, namely Putnal. Barbón argued that Put-nal was critical to his case, but had been unavailable since the prosecution decided not to use him as a witness. The prosecution argued that defense counsel had released Putnal from a subpoena, that Putnal had been available for deposition from the start, and that Putnal had stated that no one had tried to serve him. The motion was denied. On appeal, Barbón raised the issue of Putnal’s unavailability. Barbon’s conviction was affirmed in Barbon v. State, 429 So.2d 7 (Fla. 1st DCA 1983).

Barbón has failed to raise any factual allegations to support the claimed misconduct by the prosecution. There are no facts set forth as to how the prosecution made the witness unavailable. There are no factual allegations as to what Putnal’s testimony would have been. There appear to be no differences in what was known before conviction and what later became known which would require relief. The issue of Putnal’s unavailability was raised on direct appeal and is not now a proper basis for post-conviction relief. Christopher v. State, 416 So.2d 450, 452 (Fla.1982).

Accordingly, the trial court’s denial of the motion for post conviction relief is AFFIRMED.

SMITH and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    Al WEINER, Sally Weiner, Renard and Nancy Conli, Appellants/cross-appellees, v. Benny TENENBAUM and Rose Tenenbaum, Appellees/cross-appellants.
    No. 82-2521.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    Krongold & Bass, Goethel & Garcia-Vidal, Coral Gables, Smith & Mandler and Steven L. Schwarzberg, Miami Beach, for appellants/cross-appellees.
    Greene & Cooper and Sharon L. Wolfe, Miami, Grover, Ciment, Weinstein, Stauber & Friedman, Miami Beach, for appel-lees/ cross-appellants.
    Before HUBBART and FERGUSON, JJ„ and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This appeal is brought from a final judgment after a non-jury trial where the trial court found that the sellers had not communicated notice of their acceptance of buyers’ offer within the time specified in the contract and ordered a return of the buyers’ deposit. We affirm.

The communication required in order to effect acceptance of an offer to buy is not satisfied where the document which constitutes the sole means of acceptance is still in the hands of the sellers’ agent after the time for acceptance has expired. See Kendel v. Pontious, 261 So.2d 167 (Fla.1972) (an acceptance which only remains in the breast of the acceptor without being communicated to the offeror is not a binding acceptance).

By separate motion appellees claim an entitlement to attorney’s fees on the basis that the contract out of which this dispute arises provides that:

In connection with any litigation ... arising out of this contract, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.

Where an entitlement to attorney’s fees rests solely on a “contract” which is found to have never existed, an award of fees is precluded. Leitman v. Boone, 439 So.2d 318 (Fla. 3d DCA 1983).

The judgment appealed is AFFIRMED; the motion for attorney’s fees is DENIED.

      . Our decision in Leitman v. Boone is contrary to the holding of Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983).


text:
    James C. SURFACE, Appellant, v. HORTON, PERSE & GINSBERG, Appellee.
    No. 83-1149.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and James B. Tilgh-man, Jr., and Thomas Meeks, Michael I. Rose and Janice Revitz, Miami, for appellant.
    Magill, Reid & Lewis and R. Fred Lewis, Miami, for appellee.
    Before NESBITT and JORGENSON, JJ„ and JOHN G. FERRIS, Associate Judge.
   PER CURIAM.

Affirmed. See Town of Medley v. Kimball, 358 So.2d 1145 (Fla. 3d DCA 1978).


author: SCHWARTZ, Chief Judge.

text:
    Deborah Wesley EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1699.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied Aug. 3, 1984.

      Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty.' Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

We affirm the appellant’s conviction and thirty year sentence for second-degree murder in the shooting death of her husband which occurred during a domestic altercation. It is first clear, her contention to the contrary notwithstanding, that the evidence, viewed in the light most favorable to the state, supports a determination that Evans acted with a “depraved mind” in unjustifiably killing the victim out of a sense of anger and vengeance, rather than in self-defense as she claimed, and that she was thus guilty of the crime charged. Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934); see Walden v. State, 191 So.2d 68 (Fla. 1st DCA 1966); compare, e.g., McKnight v. State, 341 So.2d 261 (Fla. 3d DCA 1977), cert. denied, 348 So.2d 953 (Fla.1977); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979).

Because it was not preserved below, we also reject Evans’ claim to a new trial because the trial court erroneously charged the jury that three years, rather than the thirty years he actually imposed on the defendant, was the minimum sentence for second-degree murder with a firearm. While this statement was acknowl-edgedly incorrect, counsel made no objection to it at trial and the issue may therefore not be raised on appeal. Fla.R. Crim.P. 3.390(d). Nor does the exception to this rule, which arises when fundamental error is involved, State v. Smith, 240 So.2d 807 (Fla.1970), apply here. It is true that the substantial difference in the minimum sentence was, particularly in the domestic situation involved in this case, significant to the jury’s possible exercise of its pardon power — which is the very reason for the Tascano — Fla.R.Crim.P. 3.390(a) requirement that the maximum and minimum penalties be given in the first place. See Williams v. State, 399 So.2d 999, 1002-1003 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 471 (Fla.1982). It surely cannot be said, however, as the fundamental error doctrine requires, that a mistake, even a serious one, in this area amounts to a “denial of due process,” Castor v. State, 365 So.2d 701, 704, n. 7 (Fla.1978), or “goes to the foundation of the case [itself] or ... the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134 (Fla.1970), quoted in Ray v. State, 403 So.2d 956, 960 (Fla.1981). See Thomas v. State, 419 So.2d 634 (Fla.1982). The remaining points raised with respect to the primary judgment have been considered and likewise found to be without merit.

It appears that the separate order fixing a $2,500 lien under Sec. 27.56, Fla. Stat. (1983) for the services of the public defender was entered without following the procedure required by Jenkins v. State, 444 So.2d 947, 950 (Fla.1984). It is therefore vacated for further proceedings to be conducted in accordance with Jenkins.

Affirmed, vacated.

      . Tascano v. State, 393 So.2d 540 (Fla.1980).

      . Jenkins was decided after the trial court's ruling.


author: FERGUSON, Judge.

text:
    Sylvia COHEN, Appellant, v. CHAMPLAIN TOWERS NORTH ASSOCIATES, a Florida general partnership, Ryegon Investments, Inc., a Florida Corp.; and Rigo Investments, Inc., a Florida Corp., Appellees.
    Nos. 83-1871, 83-2876.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 31, 1984.

      Richard M. Gale, Miami, Lisa Bennett, Coral Gables, for appellant.
    Buchbinder & Elegant and Steven A. Col-sky, Miami, for appellees.
    Before HUBBART, DANIEL S. PEARSON, and FERGUSON, JJ.
   FERGUSON, Judge.

Sylvia Cohen initiated this action seeking rescission of a Purchase and Sale Agreement and return of a cash deposit made towards the purchase of a one-bedroom condominium unit. The developer, Champlain Towers North Associates, counterclaimed seeking to retain the deposit. Plaintiff appeals from a final adjudication on the counterclaim that the developer is entitled to retain the $26,600 deposit because plaintiff anticipatorily breached the agreement. We reverse.

The selling price of the unit was $133,-000. The Purchase and Sale Agreement provided in part:

3. MORTGAGE. If the purchase price is to be paid partly by mortgage proceeds, then the parties acknowledge and agree that this Agreement is subject to Purchaser’s qualification and approval by the mortgage lender....
In the event that the Purchaser be unable to qualify or in the event that the said mortgage is not made available by the lending institution, despite diligent application and processing by the Purchaser, then the Seller shall either return to the Purchaser all deposits made, with interest, and the Agreement between the parties shall be deemed cancelled and no further force and effect, or the Seller may elect to provide or obtain a loan for 50% of the purchase price, in accordance with the same terms, years, interest rate, loan fees, closing costs, and conditions as charged by institutional lenders, and the Purchaser agrees to increase the cash for the balance to make up the remaining 50% of the purchase price.

The contract provided more specifically that the price was to be paid in part by a mortgage loan in the amount of $93,100.

Cohen applied for a mortgage with the developer’s institutional lender, but was informed on July 1, 1981 that she qualified for only a $40,000 loan for a term of 29 years. The developer orally offered plaintiff a 50%, three-to-five year, “negatively amortized,” balloon mortgage. There is no evidence that the developer offered the plaintiff a 50% mortgage loan on the same terms as the institutional lender.

On or about December 7, 1981, Cohen sent a letter to the developer informing it that:

In view of the fact that I did not qualify for a 70% mortgage, I realize that the Purchase and Sale Agreement gives you two options: (1) to refund my deposits or (2) to provide me with a loan for 50% of the purchase price.
Since my financial situation does not even permit me to consider a 50% loan, for I could neither make an additional 30% deposit nor manage such high monthly payments, I respectfully ask that you review my situation and the good faith with which I entered into this agreement and return my deposits, [e.s.]

When Cohen failed to close within the time specified in a letter mailed to her on or about February 23, 1982, she was sent another letter dated March 25, 1982, informing her that she was in default.

The dispositive question, as phrased by plaintiff, is whether the developer was entitled to retain the plaintiffs deposit as damages where the developer failed to prove that it had the ability to perform the condition precedent of supplying mortgage financing as required under the contract. The developer’s response is that it was relieved of the obligation to provide financing owing to plaintiffs anticipatory breach as evidenced by her letter stating that she would be unable to accept any 50% loan.

The controlling case is Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla.1982), which thoroughly examines the law of anticipatory repudiation by an offeree where there is also a condition precedent obligation of the offeror. There the Florida Supreme Court stated:

The holder of the duty based upon a condition precedent cannot profit from an anticipatory repudiation of a contract that he would have breached himself. It follows that if performance of the conditions precedent is excused the ability to perform them must still be shown. 411 So.2d at 183.

In this case the developer did not plead nor prove that it could have performed the condition precedent, ie., to provide or obtain for plaintiff, “a loan for 50% of the purchase price, in accordance with the same terms, years, interest rate, loan fees, closing costs and conditions as charged by institutional lenders.” The uncontroverted testimony is that the financing offered to plaintiff by the developer was not the same as that offered to buyers by institutional lenders.

The final judgment is reversed in its entirety and remanded with instructions to enter judgment for plaintiff.

      . Negative amortization, says plaintiff, means that during the life of the mortgage period, the principal balance increases rather than decreases.

      . Plaintiff further argues that it was error for the trial judge to invalidate Florida Administrative Code Rule 7D-18.01(3) on the grounds that the Division of Florida Land Sales and Condominiums was without statutory authority to enact the rule. Because the Division was not joined as a party to the action, the trial court should not have passed on the question. See Martinez v. Balbin, 76 So.2d 488 (Fla.1954).


text:
    APPLICATORS, INC., Appellant, v. Steven Robert GAINES, Appellee.
    No. 83-1959.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    Margulies & Rones and Victor Rones, North Miami Beach, for appellant.
    Jeffrey A. Sarrow, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Although the jury awarded $20,500 for this item, the record contains evidence of no more than $16,000 in compensatory damages sustained by the plaintiff-appellee as a result of the defendant-appellant’s improper roof repair. Since the errors claimed in the other points on appeal were non-existent, harmless, or waived, the judgment entered below is reduced by $4,500 and is otherwise affirmed.

Affirmed as modified.


text:
    Rafael DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2201.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    Casuso & McHale and Edward McHale, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before NESBITT and FERGUSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

Affirmed. Downs v. State, 439 So.2d 963 (Fla. 1st DCA 1983); Brown v. State, 431 So.2d 696 (Fla. 3d DCA 1983); State v. Phoenix, 428 So.2d 262 (Fla. 4th DCA 1982); Martin v. State, 411 So.2d 169 (Fla.1982).


author: JORGENSON, Judge.

text:
    Cristian SOCARRAS and Celeste Socarras, Appellants, v. Emma YAQUE and Ernesto Yaque, Appellees.
    No. 83-2308.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.

      Cummins & Wanshel, Coral Gables, and Lawrence Wanshel, Miami, for appellants,
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and Bruce A. Christensen and Scott J. Feder, Miami, for appel-lees.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

The Socarrases appeal that portion of the Yaques’ final judgment of dissolution which imposes upon the Socarrases an equitable trust, the corpus of which is the marital home, in the Yaques’ favor. For the following reasons we reverse.

Emma Yaque petitioned for a divorce and, claiming that the Socarrases held it in trust for the Yaques, sought the marital home as lump sum alimony. The trial court granted the divorce and found that the marital home, a condominium unit

in which the Yaques have continuously lived prior to the date of purchase, was purchased in the name of Cristian Socar-ras and Celeste Socarras. The Socar-rases] always intended that this Unit would be the residence of the Yaques; it was never intended to be the residence of the Socarras[es].
The Socarras[es] lent their name and financial credibility to the Yaques for the purchase of the unit to help the Yaques secure it for their residence. Practically all the payments for the condominium unit have been made by the Yaques including the down payment. The evidence clearly reveals, by virtue of two checks in the sum of $500 each dated August 1, 1977 and September 10, 1977 paid to Riv-Arc Realty Company and drawn upon the joint account of Ernesto and Emma Yaque, that the Yaques paid the deposit of $1,000 for the purchase of the Unit. The testimony further shows that at the closing the Yaques paid the remaining balance owing of $383.19. There was not one iota of testimony to indicate that the Socarras[es] paid one penny of consideration for the purchase of the condominium unit other than lending their name to obtain the mortgage loan because the Yaques were unable to qualify for a mortgage loan.
The condominium unit was purchased in the name of the Socarras[es] to be held in trust in favor of the Yaques.
The clear and convincing evidence shows that the condominium unit ... purchased by the Yaques in the name of Cristian and Celeste Socarras has been held in trust for the Yaques.

The record reveals that the Yaques moved into their marital home, a rental apartment, in September, 1976, and that in July, 1977, they received a notice that their apartment was to be converted into a condominium unit. The Yaques wanted to remain in their apartment but were unable to qualify for a mortgage sufficient to pay the purchase price. They turned to the Socarrases. As characterized in the Ya-ques’ brief, Celeste Socarras, Ernesto Ya-que’s aunt, had raised him “like a son” and “would do anything for him,” her husband, Cristian, “considered himself like Ernesto’s father” and over the course of the Yaques’ seventeen-year marriage the Socarrases had established a “perfect” relationship with Emma.

The Socarrases signed the loan and mortgage application papers that Ernesto brought to them, procured a $21,200 loan which was used to purchase the condominium unit and attended the closing to sign the final documents associated with the sale. The Yaques supplied the balance of $1,383.19. The Yaques, thereafter, made the mortgage payments on the condominium unit, paid the real estate taxes, insurance and maintenance costs, retained the ownership documents (which reflected title in the Socarrases), attended the condominium association meetings (which were restricted to unit owners) and, of course, lived in the condominium unit. The Socar-rases never declared on their income tax returns rental income or depreciation associated with the condominium unit nor did they take a deduction for interest and maintenance.

The trial court has imposed an implied trust, either constructive or resulting, but has not justified nor presented a factual statement capable of justifying such an imposition; nor will facts from the record justify the imposition of such a trust.

A constructive trust will be imposed when one through fraud, abuse of confidence or through other questionable means gains something for himself which in equity and good conscience he should not be permitted to hold. Turturro v. Schmier, 374 So.2d 71 (Fla. 3d DCA 1979). The trial court made no such finding nor does the record support the view that the Socarras-es met any of the criteria requisite for the imposition of a constructive trust.

A resulting trust arises when one party pays the consideration for the purchase of property but title is taken in the name of another. Department of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353 (Fla.1977). It must appear from the entire transaction that there is an obligation on the part of the holder of the legal title to hold it for the benefit of someone else, Frank v. Eeles, 152 Fla. 869, 13 So.2d 216 (1943); the resulting trust must arise, if at all, at the instant legal title vests and the alleged beneficiary must have paid the purchase price or bound himself by an absolute obligation to pay it, Womack v. Madison Drug Co., 155 Fla. 335, 20 So.2d 256 (1944).

In the present case the titleholder, not the alleged beneficiary, supplied a vast majority of the consideration: $21,200. Other than the deposit and closing costs, the Yaques only expended money on the property after the legal title vested, and it should be noted that these expenditures were concurrent with and incident to the Yaques’ habitation and enjoyment of the property. Finally, there is no evidence in the record that the Yaques were at any time obligated to reimburse the Socarrases for the Socarrases’ $21,200 purchase. Because not one of the criteria has been met, the facts in this case simply will not support the imposition of a resulting trust.

Reversed.


author: DANIEL S. PEARSON, Judge.

text:
    Major VANCE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2455.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied Aug. 1, 1984.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant, Major Vance, was charged in an information with two counts of aggravated assault with a deadly weapon, a pistol. Despite ample evidence to sustain these charges, the jury returned a verdict finding the defendant guilty on each count of the lesser-included offense of improper exhibition of a dangerous weapon, a misdemeanor of the first degree. The trial court thereupon placed the defendant on probation for one year on each count, the terms of probation to run consecutively. The order of probation recited as a special condition that the defendant was to serve 364 days in the county jail and specified that the defendant was to receive no credit for an approximate two weeks served in jail awaiting trial on the charges, and that no gain time would be earned by the defendant during the service of the 364 days.

Relying on Solomon v. State, 442 So.2d 1030 (Fla. 1st DCA 1983), the defendant argues that the two separate convictions and sentences for improper exhibition of a dangerous weapon are impermissible because the single act of exhibiting a firearm in the presence of two people constitutes a single offense under Section 790.10, Florida Statutes (1981). While we are not unpersuaded by the holding to that effect in Solomon, we need not now decide whether we will align ourselves with our sister court. We merely hold that the defendant is estopped from challenging on appeal the dual convictions because at trial he requested that the jury be instructed that it could find him guilty of the lesser-included offense of improper exhibition on each of the charged counts of aggravated assault. The defendant, much to his benefit, got precisely what he asked for. See McKee v. State, 450 So.2d 563 (Fla. 3d DCA 1984) (defendant who acquiesced in jury instruction that crimes charged in separate counts were to be considered separately is estopped from advancing claim that verdicts returned by jury inconsistent).

Our holding that the separate convictions may stand renders harmless any error in the trial court’s failure to give the defendant credit for time served and its declaration that the defendant would not be eligible for statutory gain time. These alleged deprivations would make a difference only if the defendant’s maximum exposure to incarceration were one year, compare Wright v. State, 342 So.2d 565 (Fla. 1st DCA 1977), with Noble v. State, 374 So.2d 1116 (Fla. 1st DCA 1979), not, as here, two years. Since it is patent in this record that the trial court’s intent was that the defendant serve 364 days in jail in addition to the two weeks already served and without any gain time, we consider it a waste of judicial labor to remand this case to the trial court for the sole purpose of allocating the jail time to be served between the first and second years of probation.

Affirmed.

      . We recognize that by holding that the defendant is estopped from claiming any error in the dual convictions, we have necessarily determined that the error asserted by the defendant is not fundamental so as to excuse the defendant’s failure to request the appropriate instruction. Insofar as Solomon finds the error of separate convictions under Section 790.10 fundamental, we disagree with that part of the Solomon decision.

      . Had the jury been instructed that if it found the defendant guilty of improper exhibition of a dangerous weapon as a lesser-included offense of each count, its dual verdicts would have to be nullified, it may not have chosen to pardon the defendant of both aggravated assault charges.

      . For example, to carry out its original sentencing goal, see Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982), the trial court could impose as a special condition of the first year's probation that the defendant serve 364 days (which, less gain time and credit for time served, would come to actual incarceration of approximately 290 days) and then impose as a special condition of the second year’s probation a sufficient number of days of jail time to make up the difference in the time actually served. This might produce the anomalous result that the defendant would be released from jail for a short period of time during the first year's probation only to be returned to jail when the second year’s probation began.


text:
    Reginald KNOWLES and Mary Kathryn Knowles, Appellants, v. LUBY CHEVROLET, INC., Appellee.
    No. 83-2484.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 31, 1984.
    Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellants.
    Corlett, Killian, Hardeman, McIntosh & Levi and Leanne J. Frank, Miami, for ap-pellee.
    Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

Affirmed. Stahl v. Metropolitan Dade County, 438 So.2d 14, 17-21 (Fla. 3d DCA 1983); Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983); Wilson v. Florida Processing Co., 368 So.2d 609 (Fla. 3d DCA 1979); Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA), cert. denied, 364 So.2d 894 (Fla.1978).


text:
    Michael MANIN, Appellant, v. Henry MILANDER, Jr., Appellee.
    No. 83-2788.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 31, 1984.
    Henry R. Barksdale, Miami, Klark J. Perez, Coral Gables, for appellant.
    Joseph C. Segor, Miami, for appellee.
    Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

We affirm the final judgment against the plaintiff seeking to quiet title by adverse possession on a holding that he failed to establish the requisite element of making a return of the property to the county appraiser pursuant to section 95.18, Florida Statutes (1955). Salls v. Martin, 156 Fla. 624, 24 So.2d 41 (1945). Cf. Mariani v. Schleman, 94 So.2d 829 (Fla.1957). § 193.052, Fla.Stat. (Supp.1970). Fla.Admin.Code Rule 12D-16.02 (Form DR 452) (illustrating what is required in making such a return).


text:
    Annie R. HENNINGTON, Warren C. Wood, Raymond Lee, Edward Kreske and Victoria Kreske, his wife, Alexander Pollack and Rosalind Pollack, his wife, Appellants, v. Lester CUNNINGHAM, Appellee.
    No. 83-2812.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 31, 1984.
    Horton, Perse & Ginsberg, Miami, for appellants.
    Edward C. Tietig, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court's finding of an implied grant of easement will not be disturbed because it is supported by competent and substantial evidence. See Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982). We remand, however, with instructions to amend the final judgment to include a legal description of the easement. See Roy v. Euro-Holland Vastgoed, B.V., 404 So.2d 410 (Fla. 4th DCA 1981).

Affirmed and remanded with instructions.


text:
    David BRAUN d/b/a Marti International Corporation, Appellant, v. INTERCONTINENTAL BANK, Appellee.
    No. 84-106.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 31, 1984.
    Ferdie & Gouz and Jeffrey Solomon and Ainslee Ferdie, Coral Gables, for appellants.
    Salley, Barns, Pajón, Guttman & Del Valle and Deborah S. Chames, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is from a trial court order assessing damages in the form of attorney’s fees under an injunction bond pursuant to Section 60.07, Florida Statutes (1983). Appellant’s main contention is that since the injunction was entered by order of the appellate court in the form of a stay, only the appellate court could have decided, as a basis for awarding damages, that it issued improperly.

Appellant commenced this action against appellee-Bank and two co-defendants seeking rescission and injunction of an irrevocable letter of credit and contract for the sale of plumbing materials. The trial court entered an order denying a temporary injunction of the letter of credit. That order was appealed. In connection with the appeal, appellant requested a stay which we granted upon the condition that appellant post an injunction bond in the circuit court to cover damages, inclusive of attorney’s fees, in the event an injunction was determined inappropriate. After a full hearing, we affirmed without opinion the trial court’s denial of the temporary injunction.

By affirming the order below, we implicitly approved the trial court’s finding that appellant was not entitled to a temporary injunction. A review of the record of the prior appeal in this case, which is permissible, see Nichols v. Tarsches, 429 So.2d 409, 412 (Fla. 3d DCA), rev. denied, 440 So.2d 353 (Fla.1983) (citing Rogers v. State ex rel. Board of Public Instruction of Alachua County, 156 Fla. 161, 23 So.2d 154 (1945)), confirms that the issue decided adversely to appellant was whether there was irreparable harm and lack of an adequate remedy at law, both prerequisites to a temporary injunction. See Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642 (1976). Therefore, appellee may properly recover against the bond any damages which resulted from the issuance of the stay. See Roger Dean Chevrolet, Inc. v. Painters, Decorators & Paperhangers of America, Local No. 452, 155 So.2d 422 (Fla. 2d DCA 1963).

Appellant correctly maintains, however, that it was error to grant attorney’s fees for services rendered in reviewing and responding to the motion for stay filed in this court. Attorney’s fees awarded as damages for the wrongful issuance of an injunction must be restricted to services rendered in undoing a wrongful injunction. Aviation Investments, Inc. v. Johanson, 177 So.2d 369 (Fla. 3d DCA 1965); United Bonding Insurance Co. v. Presidential Insurance Co., 155 So.2d 635 (Fla. 2d DCA 1963). The award of fees was proper only insofar as it was based on appellee’s efforts to dissolve the stay. On remand, the trial court should divide and allocate the fees assessed against appellee accordingly.

Affirmed in part, reversed in part, and remanded.

      . Damages in an action on an injunction bond include attorney’s fees. United Bonding Insurance Co. v. Presidential Insurance Co., 155 So.2d 635 (Fla. 2d DCA 1963).


text:
    Robert R. WASKIN, Appellant, v. Gloria WASKIN, Appellee.
    No. 84-371.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.

      Schwartz, Klein, Steinhardt, Weiss & Weinstein, and Allen Sackrin, North Miami Beach, for appellant.
    Bercuson, Cahan, Weksler & Lasky, and Bernard Weksler, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

The parties were divorced in 1976. Several years later, petitioner/ex-wife filed a motion for contempt, alleging that respondent/ex-husband had willfully disobeyed a court order for payment of alimony and support. Respondent claimed that he was unable to meet his support obligations because of heavy expenses incurred in defending himself against criminal charges. He was awaiting trial on a charge of conspiring to murder the petitioner.

At the contempt proceedings petitioner called respondent as an adverse witness and asked respondent whether he had in fact conspired to have her killed, thereby seeking to avoid the support obligation imposed by the court. Respondent refused to answer, asserting a fifth amendment privilege. Petitioner thereupon moved to strike all of respondent’s testimony. The court granted the motion, refused to allow a proffer of respondent’s additional testimony, and refused to continue the hearing. The court then adjudged respondent in contempt and sentenced him to thirty days in jail. He appeals.

Petitioner contends here that her inquiry was relevant to show that respondent voluntarily created the condition which hampered his ability to comply with the court’s order. In a contempt proceeding for failure to comply with a support order, the party in default has the burden of proving both (1) that he is unable to comply with the court’s order to pay, and (2) that his inability to pay is not due to his fault or neglect but instead to circumstances beyond his control. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869 (1948); Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939). In order to satisfy his burden in this case, respondent was required to dispel the inference that he was in willful noncompliance with the support order, by showing that he did not conspire to kill the petitioner.

In State v. Buchman, 361 So.2d 692, 695 (Fla.1978), our supreme court opined that the right against self-incrimination “has never been held to be violated by the availability of a defense, the assertion of which requires that the silence be broken.” Accord Williams v. Florida, 399 U.S. 78, 84, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446, 451 (1970) (that defendant faces a dilemma demanding a choice between complete silence and presenting ⅛ defense has never been thought an invasion of the privilege against self-incrimination). It was therefore not error for the trial court to strike the respondent’s testimony inasmuch as the respondent had no right to have his testimony considered in support of his asserted defense herein and yet claim his fifth amendment privilege on a critical question concerning that defense. See Roberts v. Jardine, 358 So.2d 588, 589 (Fla. 2d DCA 1978).

We find no merit in the remaining contentions of the respondent. The contempt judgment and sentence under review are therefore

Affirmed.


text:
    Ann S. ADAMS, Appellant, v. I.C.M.A. RETIREMENT CORPORATION, Appellee.
    No. 84-456.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Dwight Sullivan, Miami, for appellant.
    Steel, Hector & Davis and Ron A. Adams, Miami, Caplin & Drysdale, Washington, D.C., for appellee.
    Before HUBBART and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Where a trial judge is presented with facts which make it appear inequitable to enforce a final default judgment against a garnishee, he may, in the exercise of discretion, set aside the judgment so as to permit a hearing. See United Presidential Life Insurance Co. v. King, 361 So.2d 710 (Fla.1978).

Affirmed.


text:
    Betty Jo EBELING, Petitioner, v. Jackie Larry EBELING, Respondent.
    No. AY-319.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Rehearing Denied July 19, 1984.

      Dale E. Rice, Crestview, for petitioner.
    Ferrin C. Campbell, Sr., of Ferrin C. Campbell, Sr., P.A., Crestview, for respondent.
   JOANOS, Judge.

This cause is before us on petition for certiorari brought pursuant to Rule 9.030(b)(3), Florida Rules of Appellate Procedure, to review the decision of the circuit court in entering a judgment dissolving a marriage but retaining jurisdiction to later decide all other issues. The circumstances here may or may not rise to the level necessary to make split-proceedings in the best interests of the parties as required by our Florida Supreme Court in Claughton v. Claughton, 393 So.2d 1061 (Fla.1980). We do not need to make that determination for petitioner has failed to demonstrate any prejudice that she has suffered as a result of the action taken by the trial court. This lack of prejudice is especially apparent because of the representation made of respondent’s consent for the entry of any order necessary to maintain the status quo as to the unresolved issues. We therefore, within the discretion vested in us, deny the issuance of the writ requested.

Petition for Writ of Certiorari denied.

SMITH and ZEHMER, JJ., concur.


text:
    BRICKELL PLACE ASSOCIATION, Appellant, v. CHEEZEM DEVELOPMENT CORPORATION, Appellee.
    No. 82-1631.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Hyman & Kaplan and Andrew Kaplan, Miami, for appellant.
    Holland & Knight and Marty Steinberg and Andrea Simonton, Miami, for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   ON REHEARING

PER CURIAM.

Affirmed. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984).


author: SCHEB, Judge.

text:
    Ronald A. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 83-857.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.
    Rehearing Denied July 17, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The state attorney in Pasco County charged Ronald Clark with kidnapping and three counts of sexual battery. After a jury trial held in Dade City in March 1983, Clark was found guilty as charged. He raises several issues on this appeal, but only one has merit. We agree with his contention that he is entitled to a new trial, because the court erred in denying his motion to suppress evidence of statements he had previously made at an unrelated court proceeding.

Three weeks before defendant’s jury trial, he had appeared at a change of plea hearing in New Port Richey on a separate charge also pending in Pasco County. At that time the defendant was sworn in and asked several questions regarding the factual basis not only as to the charge for which he was appearing to enter a plea but also in respect to the charges presently at issue. At the jury trial on the charges we now review, Assistant State Attorney Michael Halkitas was called to testify about an alleged admission made by defendant during that colloquy in New Port Richey. Halkitas’ testimony was first proffered to the trial court outside the presence of the jury. After the trial judge denied defendant’s motion to suppress Halkitas’ testimony, the jury returned and Halkitas testified as follows:

Q At that time, March 2, did you state in Mr. Clark’s presence that on September 9, 1982, he picked up a twelve-year-old girl [the victim in the present case] ... against her will, put her into a pickup truck and had sexual intercourse against ... [her will]?
A Yes, sir, I did.
Q Was Mr. Clark asked in your presence if he disagreed or disputed that statement?
A Yes, he was.
Q Did he disagree with or dispute that statement?
A He did not disagree with or dispute that statement, sir.
Q Was Mr. Clark under oath at that time?
A Yes, sir, he was.
Q Was Mr. Clark under the influence of drugs or alcohol at the time of his statement?
A He said he was not.
Q Was the statement made voluntarily?
A Yes, sir, he said it was.

The state contends that the statements made by defendant in New Port Richey were entirely voluntary, that he was under oath, and that he was represented by counsel at the change of plea hearing. Thus, it argues, the court properly denied defendant’s motion to suppress. We disagree.

We first point out that the Florida Evidence Code, section 90.410, Florida Statutes (1983), specifically makes inadmissible the defendant’s statements at his change of plea hearing:

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837 [the perjury statute].

See also Fla.R.Crim.P. 3.172(h).

Section 90.410 plays a vital role in our system of jurisprudence. As Judge Lehan pointed out in Landrum v. State, 430 So.2d 549, 550 (Fla. 2d DCA 1983): “Guilty pleas are an essential part of our criminal justice system, and candor in plea discussions aids greatly in the reaching of agreements between the defendant and the State” (quoting State v. Trujillo, 93 N.M. 724, 727, 605 P.2d 232, 235 (1980)).

The statute applies directly to the present case, because defendant’s appearance at the hearing in New Port Richey was for the purpose of entering a guilty plea to an unrelated charge. Thus, evidence of any statements made in connection with that plea is inadmissible.

The state emphasizes that defendant made no objection when Halkitas outlined the factual basis of the charges against him. We find no merit to such argument. Given the tenuous position of the defendant and the context of the proceedings before the trial judge in New Port Richey, we think it unrealistic to expect the defendant to have objected to Halkitas’ line of inquiry. Since our system of justice demands there be a wide latitude to permit all relevant facts to be brought out in hearings on pleas, the statute must be strictly enforced. Failure to do so in this case cannot be deemed harmless. Landrum.

Admittedly, there was ample evidence from which the jury could have found the defendant guilty as charged. However, the overzealousness of the prosecution in introducing defendant’s statements in violation of section 90.410 resulted in the deprivation of his right to a fair trial. See Carter v. State, 332 So.2d 120 (Fla. 2d DCA 1976). Admission of the defendant’s statements, we think, left an indelible impression of guilt on the jurors’ minds, making introduction of the statements a harmful error.

Accordingly, we reverse and remand for a new trial.

BOARDMAN, A.C.J., and CAMPBELL, J., concur.


author: MILLS, Judge. SMITH, Judge,

text:
    Dr. and Mrs. Constantino C. del CAMPO, et al., and Florida Wildlife Federation, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, and Ortega Island, Inc., Appellees.
    No. AW-1.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Rehearings Denied July 26, 1984.

      Timothy Keyser, Interlachen; Wm. M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    J. Alan Cox, Asst. General Counsel, Tallahassee, for Dept, of Environmental Regulation.
    Robert M. Rhodes, Terry E. Lewis, and Cari L. Roth of Messer, Rhodes & Vickers, Tallahassee, for Ortega Island, Inc., appel-lee.
   MILLS, Judge.

The controversy in this appeal centers around a proposed bridge which would connect an island in the Ortega River to the mainland in Jacksonville, Duval County, Florida. The Department of Environmental Regulation (DER) issued an order allowing Ortega Island, Inc., to construct the bridge. We reverse the order on appeal and remand for further proceedings.

Pursuant to Chapters 253 and 403, Florida Statutes (Supp.1982), and Rules 17-4.28 and 17-4.29, Florida Administrative Code, Ortega Island, Inc. applied to the DER for a dredge-and-fill permit to construct a bridge across a man-made canal, known as the Stockton Canal. The bridge would provide access to Ortega Island, a 42-acre island located in the Ortega River and would serve a residential development to be constructed on the highest part of the island.

Appellants, a group of local residents joined by an environmental group, objected to the issuance of the permit and requested and received a hearing under Section 120.-57(1), Florida Statutes (1981). At the hearing, the appellants attempted to introduce evidence of the proposed development’s possible environmental impact on the island. They were foreclosed from doing so by the hearing officer, however, who later concluded in his recommended order:

The bridge application must be granted or denied on its own merits and speculation about the utilization of the island for purposes of development need not and properly should not be considered as a part of this present hearing. Consideration of the island development is a matter to be examined on another occasion.

In its final order granting the requested permit, the DER upheld that conclusion. We hold that both the hearing officer and the DER erred in limiting the scope of the hearing in this manner.

As the appellants correctly note, under the view taken by the hearing officer and the DER, the vast sums of time, energy, labor, and capital which would necessarily be expended to complete the bridge would be wasted should the DER or other governmental entities refuse to allow development of the island. We cannot approve risking the possibility of such an unconscionable waste of resources.

We also agree with appellants that the DER abused its discretion in failing to require proof of the financial responsibility of Ortega Island, Inc., pursuant to Rule 17-4.-11, Florida Administrative Code. From the record, it appears that the only information known about the developer, other than its corporate name, is that the permit application was signed by one Jack C. Davis. We consider this information insufficient to justify the DER’s decision not to require proof of the developer’s financial status.

We have considered the other points raised by the appellants and by the DER and have found them to be without merit.

Reversed and remanded for proceedings consistent with this opinion.

NIMMONS, J., concurs.

SMITH, J., specially concurs and dissents in part with an opinion.

SMITH, Judge,

specially concurring, and dissenting in part.

In their petition and request for a hearing directed to the Department of Environmental Regulation, appellants alleged that the proposed development of Ortega Island would have significant damaging impacts upon the environment, particularly the waters of the Stockton Canal and the surrounding Ortega River. These allegations, which unmistakably presented factual issues relating to the feasibility, from an environmental standpoint, of the entire development, were stricken by order of the hearing officer on motion of the Department and respondent Ortega Island, Inc. In his recommended order, the hearing officer alluded to this earlier ruling, and as indicated in the majority opinion, reiterated his conclusion that the bridge application must be “granted or denied on its own merits,” and that the proposed development of the island need not and properly should not be considered as a part of the proceeding concerning the application to build a bridge.

In addressing this particular matter, the Department’s final order states, among other things, the following:

The Department has maintained as a matter of law that in reviewing a permit application for a portion of a project it may consider the impacts of associated development, even where no application has been received for that development. As the hearing officer recognized, however, it is not always appropriate to consider such future development. In this particular case there is no evidence in the record to suggest that the applicant could not develop the island in an environmentally sound manner, (emphasis supplied)

Since the Department’s own order concedes the propriety of reviewing the impacts of associated development, even where the application for that development is not directly involved in the proceeding, the question arises whether the Department was correct in approving the hearing officer’s determination that inquiry concerning the proposed development was not a matter to be considered in this case. Such a determination would obviously be a matter within the sound administrative discretion of the Department, and our review is therefore limited to determination of whether there has been an abuse of that discretion. Here, the Department’s order (above quoted, underlined portion) justifies its ruling in part by the observation that there is “no evidence in the record to suggest that the applicant could not develop the island in an environmentally sound manner.” As appellants correctly argue, this finding begs the question. For this reason, I would hold that the appellants were improperly prevented from presenting evidence which might have a material bearing upon the propriety of the granting of a permit for the bridge (which admittedly has at least some potentially adverse environmental consequences, although not to an extent which would justify denial of the bridge permit), and would remand for further proceedings for determination of whether the island can be developed in an environmentally sound manner.

However, I would hold that appellants have not established an abuse of discretion in the Department’s failure to require proof of financial responsibility on the part of the applicant, Ortega Island, Inc., and would affirm on this point and all other points raised by appellants.


author: ERVIN, Chief Judge.

text:
    Betty PERKINS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DISTRICT IV, Appellee.
    No. AX-73.
    District Court of Appeal of Florida, First District.
    June 21, 1984.

      Mark Greenberg and Amy Hirsch, Jacksonville, for appellant.
    Alicia Jacobs, Judith Curtain Fendrich. and Harden King, Gen. Counsel for the Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   ERVIN, Chief Judge.

Appellant Perkins appeals, on behalf of herself and others similarly situated, from a final order of a hearing officer of the Department of Health and Rehabilitative Services (HRS), disqualifying her household from food stamp eligibility for failure to meet an assigned “workfare” obligation. We reverse and remand.

Workfare is a component of the joint federal-state Food Stamp Program requiring food stamp recipients to perform labor at government worksites equivalent to the value of their food stamp allotments. State implementation of workfare is not mandatory but, if elected, must be conducted consistent with federal regulations. Chapter 82-211, Laws of Florida, authorized HRS to implement a workfare pilot project in Duval County. The project, initiated in September 1983, imposed workfare requirements on persons receiving benefits through one Food Stamp Program office. No rules or regulations were promulgated but standards and policy statements regarding imposition of workfare obligations and sanctions were established in a handbook disseminated to the project staff.

Perkins is head of a household with a gross monthly income of $350, and receives a monthly food stamp allotment of $299. She is employed as a school bus driver, a job which requires driving daily routes and being on standby to drive additional routes as needed. Perkins failed to comply with her workfare assignment because of a conflict with her standby schedule. In response to HRS’s request for explanation of her non-compliance, she stated that she feared endangering her job and that, in the absence of duly promulgated rules, imposition of workfare requirements and sanctions violated Chapter 120, Florida Statutes and Ch. 82-211, Laws of Florida. Perkins’s household was subsequently disqualified from food stamp eligibility for a period of two months.

On appeal, Perkins argues that the hearing officer erred in failing to find that HRS was required by Ch. 82-211 and Ch. 120 to promulgate rules for workfare, that imposition of workfare sanctions upon persons expressly exempted by “good cause” provisions of Ch. 82-211 violated the law, and that Perkins was entitled to exemption from workfare for 'individual good cause due to the jeopardy posed to her present employment.

The interpretation of a statute by the agency charged with the responsibility of its enforcement is entitled to great deference and is only to be set aside if clearly erroneous, unreasonable, or in conflict with the state constitution or the plain intent of the statute. See ABC Liquors v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981). HRS’s interpretation of Ch. 82-211 as not necessitating promulgation of rules and regulations ignores the plain statutory language. Section 2 of the statute directs that HRS “shall promulgate rules necessary to implement the workfare pilot project” and § l(2)(h) authorizes imposition of sanctions for non-compliance “according to the rules established by the Secretary [of HRS]” (e.s.). This language clearly mandates rulemaking, not merely directing it permissively, as contended by HRS and accepted by the hearing officer. The interpretation urged by the agency does not find support in cases interpreting statutes using less restrictive language sanctioning rulemak-ing. See, e.g., Florida Institutional Legal Services, Inc. v. Florida Parole and Probation Commission, 391 So.2d 247 (Fla. 1st DCA 1981) (“... commission shall have power to make such rules as it deems best.”) In saying the above, we have not overlooked the many opinions by this court recognizing that the non-rule policy of an agency will not be invalidated if it is clearly explicated in an adjudicative setting and is supported by a record foundation. See, e.g., McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Anheuser-Busch, Inc. v. Department of Business, 393 So.2d 1177 (Fla. 1st DCA 1981); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). None of those cases involved a situation such as this in which the statute creating the workfare project itself mandates rules establishing both the recipient’s obligations and sanctions for noncompliance with the obligations.

Since the legislative directive in Ch. 82-211 explicitly requires promulgation of rules implementing workfare, other forms of valid policymaking are precluded. Neither the policy statements and standards set out in the staff handbook, nor development of policy in hearings such as that afforded Perkins below are viable alternatives to mandated rulemaking. The absence of duly promulgated rules requires that HRS’s actions, imposing workfare requirements and disqualifications as to Perkins and others of the class similarly situated, be declared invalid. Bigelow v. Department of Environmental Regulation, 375 So.2d 12 (Fla. 4th DCA 1979).

Having found rulemaking required by the statute itself, we need not consider whether Ch. 120 would mandate rulemak-ing here. Nor is it necessary for us to decide whether Perkins has sufficiently demonstrated good cause for failing to comply with her workfare assignment in order to qualify for a valid exemption. In remanding to the agency for rulemaking, however, it is appropriate to address the issue of availability«of a good cause exemption based on household income level.

The Ch. 82-211 definition of “good cause” for exemption from workfare includes as a circumstance a household with earned income greater than the value of its food stamp allotment. Ch. 82-211, § l(2)(i)3, Laws of Florida. Although Perkins’s income exceeded her allotment, no exemption was afforded her or those similarly situated in the subclass on whose behalf she sues. HRS ignored the good cause exemption on the rationale, upheld by the hearing officer, that it does not appear in the federally suggested definition of good cause for exemption and had, in fact, been deleted from an earlier version of federal regulations. This reasoning is not persuasive.

The federal regulations allow HRS to seek federal approval for an exemption based upon a variant definition of “good cause.” 7 C.F.R. § 273.22. HRS’s speculation that federal approval would not be forthcoming does not justify its failure to comply with a provision of state law without taking the preliminary steps necessary to determine whether such approval can be obtained. Neither is HRS excused from implementing the state definition of good cause by operation of the Resolution of Conflicts clause in Ch. 82-211, § 1(3), providing for resolution of any conflicts between state and. federal law in favor of federal law. No conflict with federal law can exist to call into force the resolution provision until HRS tries and fails to obtain approval for use of the state definition.

The hearing officer and HRS erroneously interpreted Ch. 82-211, finding no requirement of rulemaking and no exemption available to Perkins and others with earned income in excess of the value of their food stamp allotments. The proper interpretation compels a different result and the order appealed from is, therefore, reversed and the cause remanded for action consistent with our opinion.

THOMPSON and WIGGINTON, JJ., concur.


text:
      Carl MULLINGS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2390.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied July 23, 1984.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Having reviewed the record we conclude that the trial court did not err in declining to suppress the defendant’s incul-patory statements to the investigating officers. At most the record indicates that although the defendant may have requested that the interrogation cease (and his request was certainly not so interpreted by the officers), he thereafter signed a rights-waiver form (his second) and continued with the interrogation.

The imposition of three consecutive minimum mandatory sentences was error. We note, however, that in imposing them the trial court was without the benefit of Palmer v. State, 438 So.2d 1 (Fla.1983). The three consecutive minimum mandatory sentences are reduced to one.

Affirmed as modified.


text:
    Ricardo A. RICOTTI, Appellant, v. KEY LARGO KAMP GROUND and Marina Condominium Association, Inc., Appellees.
    No. 83-1494.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 3, 1984.
    Marcus Ambrose, Coral Gables, for appellant.
    Talburt, Kubicki, Bradley & Draper and Betsy E. Hartley and Gail L. Kniskern, Merritt, Sikes & Craig, Miami, for appel-lees.
    Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

Affirmed. City of South Miami v. Pytel, 412 So.2d 938 (Fla. 3d DCA 1982); Sea board Coast Line Railroad Co. v. Wiesenfeld Warehouse Co., 316 So.2d 567, 569 (Fla. 1st DCA 1975), cert. denied, 328 So.2d 846 (Fla.1976).