author: McDonald, justice. EHRLICH, Justice, ALDERMAN, Chief Justice,

text:
    EMPLOYERS INSURANCE OF WAUSAU, et al., Petitioners, v. Stacey R. ABERNATHY, Respondent.
    No. 63035.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, and Jana V. Jay of Napier & Donovan, Naples, for petitioners.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   McDonald, justice.

In Abernathy v. Employers Insurance of Wausau, 428 So.2d 272, 276 (Fla. 2d DCA 1982), the second district asked the question:

CAN THE EMPLOYEE OF A “CONTRACTOR”, HAYING RECEIVED WORKMAN’S COMPENSATION BENEFITS FROM HIS EMPLOYER, SUE HIS EMPLOYER’S SUBCONTRACTOR FOR DAMAGES ARISING OUT OF THE NEGLIGENCE OF THE LATTER’S EMPLOYEE?

We have jurisdiction pursuant to article V, section 3(b)(4) of the state constitution. We answer this question in the affirmative and approve the decision of the district court on this issue.

The opinion of the district court correctly recites our past holdings relative to immunity in this area of the law and we need not repeat them. Suffice it to say that the 1974 amendment to section 440.10, Florida Statutes, which authorizes suit by an employee of a subcontractor against another subcontractor for injuries occurring on a common job, modifies the common employment premise of our earlier holdings such as Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940), and Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967).

The justification for limiting liability or granting immunity is the substitution of something else in its place, a quid pro quo. The duty to provide workers’ compensation benefits supplants tort liability to those injured on the job. Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954). If the duty to provide such coverage does not exist, then one has no reason to expect immunity from wrongdoings committed against a third party. The dissent of Chief Justice Sundberg in Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981), is now correct, and we recede from Younger and Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950), thus allowing a third-party action against one who has no duty to afford compensation benefits.

Because we are adopting the opinion and analysis of the Second District Court of Appeal on this issue, a further recitation of our reasons for modifying prior existing law is both duplicitous and unnecessary. The decision of the district court allowing Abernathy to maintain an action against Metropolitan Drywall Systems, Inc., and Allied Crane Service, Inc., is approved.

It is so ordered.

ADKINS, BOYD, OVERTON and SHAW, JJ., concur.

EHRLICH, J., concurs specially with an opinion.

ALDERMAN, C.J., dissents with an opinion.

EHRLICH, Justice,

specially concurring.

While the 1974 amendment specifically addressed itself to a subcontractor and the employees of another subcontractor, I am of the opinion that it expressed the general legislative intent that where there is no responsibility for the payment of compensation, there is no immunity from suit.

I therefore concur.

ALDERMAN, Chief Justice,

dissenting.

I would answer the question certified by the Second District in the negative and hold that an employee of a statutory general contractor, having received workers compensation benefits from his employer, cannot sue his employer’s subcontractor for damages arising out of the negligence of the subcontractor’s employees. Chapter 74-197 expressly abrogates the statutory immunity in suits by a subcontractor’s employee against another subcontractor, but did not abrogate the statutory immunity in suits by employees of general contractors against subcontractors of the general contractor. The 1974 amendment added the following language to section 440.10:

A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

This change amounted to a minor, specifically limited addition to the statute. The amendment did not alter in any way the language of section 440.10 upon which this Court premised its decision in Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940). This provision continues to provide:

In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment ....

§ 440.10, Fla.Stat. (1981).

If the legislature intends to change longstanding legal precedents and to change completely the construction placed on a statute, it must do so in unmistakable language. State ex rel. Housing Authority of Plant City v. Kirk, 231 So.2d 522 (Fla.1970). Had the legislature intended that the statute be amended as interpreted by the Second District in the present case, it would have been a simple matter to incorporate language reflecting such intent. We should not imply such an amendment to this statute.


source: Caselaw Access Project

author: SHAW, Judge. ALDERMAN, Chief Judge,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. John HEATHCOAT, Respondent.
    No. 63582.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Jim Smith, Atty. Gen. and Michael J. Kotler, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender and L.S. Al-perstein, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for respondent.
   SHAW, Judge.

This cause is before the Court on petition to review Heathcoat v. State, 430 So.2d 945 (Fla. 2d DCA 1983), in which the district court certified a question to be one of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

The respondent, John Heathcoat, was charged with burglary, robbery, aggravated battery, and aggravated assault by information filed in the Circuit Court of Pas-co County, Florida. He entered a plea of not guilty to all charges and demanded a trial by jury.

During a conference on instructions the following exchange occurred:

THE COURT: What do you want on the record as your objections to instructions as given?
MR. SCOTT: At this time, I would request for Heathcoat, the instruction on intoxication on the following grounds: That all four counts of the information are specific intent crimes.
The evidence from the victim, Vera Batton, testified or it was read from the deposition in impeachment, that my client was highly intoxicated, that she had never seen him this intoxicated before.
She also testified that she had known John -for some period of time and had specifically socialized with he and his girl friend, and I will quote from Page 7, beginning at Line 11, of her deposition, which I had to use for impeachment:
“Had you ever seen John before intoxicated?
“Answer: I have seen — I have saw him drinking, but I have never seem him that intoxicated well to that degree. I saw him drink a beer.”
Therefore, with the introduction of intoxication, I would request that instruction.
THE COURT: Let’s take care of that, Bob.
MR. CUDONE: Basically, the same argument we interposed before, that being that he is trying to introduce deposition testimony on direct testimony, then on cross, then again on redirect....

Defense counsel failed to object to the judge’s denial of the requested instruction. The jury found respondent guilty as charged on all counts. The Second District Court of Appeal reversed the conviction and certified the following question to be one of great public importance within the meaning of Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHETHER THE DENIAL OF A SPECIFIC REQUEST FOR A JURY INSTRUCTION ON THE DEFENSE OF INTOXICATION IS PRESERVED FOR APPELLATE REVIEW WITHOUT ANY FURTHER OBJECTION TO THE DENIAL.

Heathcoat, 430 So.2d at 948.

In order to answer the certified question we are called upon to review Florida Rule of Criminal Procedure 3.390(d) which reads:

(d) No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

The state argues that the rule is clear upon its face and that in order for a defendant to preserve a jury instruction issue, he must object to the court’s refusal to give the requested instruction by indicating dissatisfaction with the denial of his request. Our recent decisions in Spurlock v. State, 420 So.2d 875 (Fla.1982) and Thomas v. State, 419 So.2d 634 (Fla.1982), reflected our concern with such a clinical analysis of the rule. In those two cases we pointed out that the objectives of the contemporaneous objection rule are to “apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” 419 So.2d at 636 (quoting Castor v. State, 365 So.2d 701, 703 (Fla.1978)). These objectives are accomplished when the record shows clearly and unambiguously that a request was made for a specific instruction and that the trial court clearly understood the request and just as clearly denied the request.

In Hubbard v. State, 411 So.2d 1312 (Fla. 1st DCA 1981), appeal dismissed, 424 So.2d 761 (Fla.1982), the First District Court of Appeal correctly observed that

[t]he primary thrust of the rule is to insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated. We do not believe that the rule was intended to approve or disapprove a special word formula; we will not exalt form over substance by requiring that counsel use the magic words, “I object,” so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.

Id. at 1314.

The record before us reflects that it was made clear to the judge that the respondent intended to rely upon the defense of voluntary intoxication to a crime requiring specific intent and that the evidence warranted an instruction on the defense of intoxication. The record also reflects that there was a timely request for such an instruction, that the judge fully understood the reasons for and the nature of the request, and that with full understanding, he denied the request. Further objection would have been pointless. The certified question is answered in the affirmative and the opinion of the district court is approved.

It is so ordered.

ADKINS, BOYD, OVERTON, MCDONALD and EHRLICH, JJ., concur.

ALDERMAN, C.J., concurs specially with an opinion, with which BOYD, J., concurs.

ALDERMAN, Chief Judge,

concurring specially.

I concur that, under the particular facts of this case, Heathcoat did preserve for appeal the issue of the alleged error committed by the trial court in failing to give the requested instruction. Here the trial court expressly asked what counsel wanted recorded as objections to the instructions and counsel responded that he wanted the instruction on intoxication given and stated with specificity the basis for the requested instruction.

In Thomas v. State, 419 So.2d 634 (Fla.1982), we stated that to satisfy the objection requirements of Florida Rule of Criminal Procedure 3.390(d), in order to preserve the failure of the trial court to give an instruction as grounds for appeal, it is not necessary to use the magic words “I object.” It is not sufficient, however, to simply request that an instruction be given and then remain silent when the request is denied. As the majority points out, the record must clearly show that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule on the objection.

BOYD, J., concurs.

       Not at issue and not disturbed is the district court’s reversal based on the erroneous curtailment of defense counsel’s cross-examination of Detective Phillips.


author: WALDEN, Judge. PER CURIAM.

text:
    POLYGLYCOAT CORPORATION, Appellant/Cross Appellee, v. HIRSCH DISTRIBUTORS, INC., d/b/a Polyglycoat Southeast, Appellee/Cross Appellant.
    No. 82-44.
    District Court of Appeal of Florida, Fourth District.
    Apr. 27, 1983.
    Rehearing Denied Jan. 18, 1984.

      Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., and Howard M. Weiss of Weiss & Feldman, P.A. (counsel withdrew after filing brief), Fort Lauderdale, for appellant/cross appellee.
    Jesse S. Faerber of Fenster & Faerber, Plantation, for appellee/cross appellant.
   WALDEN, Judge.

This was a suit on a contract. Trial produced a judgment in favor of plaintiff, Hirsch Distributors, Inc. Defendant, Po-lyglyeoat Corporation, appeals.

We affirm the judgment insofar as it determines liability. We reverse and remand for a new trial on the issue of damages.

During a substantial portion of the testimony concerning damages, the trial court excluded the parties. This act is an appellate grievance asserted by Polygly-coat. Gloria Fiveson was present at the trial as the designated corporate representative of Polyglycoat. She was excluded, leaving no one present in the courtroom on behalf of Polyglycoat except, of course, its attorney. This was error.

For as much as the record discloses, the basis for the court’s exclusion was the protection of witnesses’ trade secrets. Since such ban, assuming it was appropriate, would necessarily apply to any corporate representative whomever, we thereby distinguish the case of City of Miami Beach v. Washburn, 88 So.2d 555 (Fla.1956). In the Washburn case, one Mooney was the City’s trial representative. He was also an eye witness to the accident. The Wash-bum court held that Mooney was primarily a witness, and he was not an indispensable representative of the City. The court judicially noticed that a City the size of Miami Beach is well provided with possible representatives. In other words, in the Wash-bum case there were easy alternative City representatives who were not primarily witnesses; while in the instant case, there were no alternative representatives because the trial court determined to protect the secrets from disclosure to any representative of either party.

We reverse upon authority of Seaboard Air Line Railroad v. Scarborough, 52 Fla. 425, 42 So. 706 (Fla.1906) and Purvis v. Inter-County Telephone & Telegraph Co., 203 So.2d 508 (Fla. 2d DCA 1967).

Since the exclusion was limited to testimony on the damages issues only, we bifurcate and require retrial only on the damage issues.

Additionally, parties are each variously aggrieved concerning the damage award. Upon retrial, more and different evidence may be presented. So we decline to academically exercise ourselves with specificity as to what was earlier done. We are, though, concerned with the trial court’s approach to damages by way of lost profits. Without dictating the result which will depend upon future events, we do record generally our understanding of the principles applicable to this problem.

The general rule is that anticipated profits of a commercial business are too speculative and dependent upon change in circumstances to warrant a judgment for their loss; but the rule is not an inflexible one, and if profits can be established with reasonable certainty, they are allowed. Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 415 So.2d 865 (Fla. 1st DCA 1982). Loss of profits may be recovered where the plaintiff makes it reasonably certain by competent proof what the amount of his actual loss was. Proof of income and of the expenses of the business for a reasonable time anterior to the interruption charged, or of facts of equivalent import is usually required. However, recovery for lost profits is not generally allowed for injuries to a new business with no history of profits. The prospective profits of a new business are generally regarded as being too remote, contingent, and speculative to meet the legal standards of reasonable certainty. 17 Fla.Jur.2d Damages § 80; Tochette v. Bould, 324 So.2d 707 (Fla. 4th DCA 1975), quashed and remanded, 349 So.2d 1181 (Fla.1977).

However, if the business is completely destroyed, the proper total measure of damages is market value on date of loss. Aetna Life & Casualty Co. v. Little, 384 So.2d 213 (Fla. 4th DCA 1980). Aetna relied upon Allied Van Lines, Inc. v. McKnab, 331 So.2d 319 (Fla. 2d DCA 1976), wherein the court stated that the proper measure of damages for loss of personal property is its market value on the date of the loss, as compared to partially destroyed property whose damages is the difference between the value before and after the damage or the reasonable cost of repair with due allowance for the difference between the original value and the value after repair, and compensation for the loss of use. Hillside Van Lines v. Matalon, 297 So.2d 848 (Fla. 3d DCA 1974); 22 Am. Jur.2d Damages § 177.

Affirmed in part, reversed in part, and remanded for a new trial on the damage issues.

BERANEK and DELL, JJ., concur.

UPON MOTION FOR REHEARING

PER CURIAM.

In our earlier filed opinion, we reversed and remanded for a new trial on the issue of damages because, “During a substantial portion of the testimony concerning damages, the trial court excluded the parties.”

Hirsch Distributors, Inc., d/b/a Polygly-coat Southeast has filed a lengthy Motion for Rehearing. A good part of it consists of inappropriate re-argument, which portions we choose to disregard without comment.

There are two aspects of Hirsch’s Motion which we do address.

First, Hirsch says that Polyglycoat Corporation did not object to the exclusion of the parties. An examination of the transcript now, with that point in mind, reveals that Hirsch is correct — there was no objection.

However, fatal to Hirsch’s position is the fact that Hirsch brings this matter to our attention now, for the first time, in its Motion for Rehearing. The failure of Po-lyglycoat to object was in nowise mentioned or alluded to in Hirsch’s brief or at oral argument. How easy and how favorably dispositive it might have been for Hirsch to have included in its brief the fact that Polyglycoat did not object to the exclusion of the parties and there furnished the Court with its argument and authorities that hold that such exclusion would be non-actionable in the absence of an objection. Hirsch did not do so.

This Court will not depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention. It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties. See Re: Estate of Barret, 137 So.2d 587 (Fla. 1st DCA 1962) and Clonts v. Spurway, 104 Fla. 340, 139 So. 896 (1932). When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy. Again, it is not the function of the Court to rebrief an appeal. We basically work within the framework of the briefs although, admittedly, there are instances where errors are so glaring or fundamental that a court will adjudicate them on its own initiative in its original opinion.

We hold that matters not previously urged to this Court may not be raised for the first time on a Motion for Rehearing. O’Steen v. State, 92 Fla. 1062, 111 So. 725 (1926); Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). See generally 3 Fla.Jur.2d, Appellate Review, § 264.

Second, Hirsch asserts that the Court was incorrect in saying that the parties were absent during a “substantial portion” of the testimony. We have reread the testimony concerning damages and agree with the analysis of it found in Polyglycoat’s Supplemental Response to Motion For Rehearing. We will not burden this with a minute breakdown. We are altogether satisfied upon reconsideration that the absence was during a substantial portion and that such absence constituted harmful fundamental error.

The Petition For Rehearing is

DENIED.

BERANEK, DELL and WALDEN, JJ., concur.


author: PER CURIAM. SHIVERS, Judge.

text:
    Mary Ellen O’NEIL, Appellant, v. DEPARTMENT OF TRANSPORTATION and Crawford & Company, Appellees.
    No. AI-270.
    District Court of Appeal of Florida, First District.
    June 7, 1983.
    Rehearing Denied Dec. 29, 1983.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Douglas J. Glaid of Kay & Silber, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983).

ROBERT P. SMITH, Jr., C.J., and SHIVERS and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING

SHIVERS, Judge.

Appellant contends that the instant case raises a question left unanswered by Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983). That question is whether section 440.15(3)(b)3.d., Florida Statutes (1979), which terminates workers’ compensation wage-loss benefits at age 65 (age/wage-loss provision), is unconstitutional under the supremacy clause because it violates the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. (1976). Specifically, appellant contends that the Florida age wage loss provision violates 29 U.S.C. § 623. Subsection (a) of section 623 is entitled “Employer practices” and states:

(a) It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

The prohibition of section 623 applies to individuals who are at least 40 years of age but less than 70 years of age. 29 U.S.C.A. § 631(a) (West Supp.1983).

Appellant argues that the Workers’ Compensation Law constitutes part of the terms, conditions, or privileges of employment pursuant to 29 U.S.C. § 623. Appellant contends that the Workers’ Compensation Law becomes a part of the employment contract between employer and employee under Florida law. Chamberlain v. Florida Power Corp., 144 Fla. 719, 198 So. 486 (1940). The mere fact that the Workers’ Compensation Law becomes part of the employment contract, however, does not necessarily mean that Congress intended the provisions of various state workers’ compensation laws to fall within the prohibitions of the ADEA. The title of section 623(a), “Employer practices,” implies that Congress intended the prohibitions of that part to reach only those matters over which employers have control. Employers have no direct control over the provisions of the Workers’ Compensation Law. Although it is true that a state can be considered an “employer” for purposes of the ADEA, EEOC v. Wyoming, — U.S. -, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), the workers’ compensation law was not created by the State in its role as an employer, but rather was enacted by the Legislature pursuant to the police power of the State to protect the health, safety and welfare of all employees.

We find it significant that the Department of Labor’s interpretation of this federal statute, contained in 29 CFR § 860.1, et seq. (1983), implicitly supports appellee’s argument that the prohibitions of 29 U.S.C. § 623(a) are limited to employment practices within the control of employers and do not encompass governmental action such as workers’ compensation laws. 29 CFR § 860.120(e) addresses the relationship of employer-provided benefits and government-provided benefits. This subsection explicitly recognizes that the availability of government benefits, e.g., Medicare, may be based on age. We see little distinction, for purposes of the ADEA, between governmental enactments which provide for benefits to be paid by the government, and governmental enactments which provide for benefits to be paid by others. Further, 29 CFR § 860.50(c) interprets the phrase “terms, conditions or privileges of employment” and gives examples. All of the examples encompass things which can be directly controlled by the employer, e.g., promotion, leave policy, seniority, merit systems, etc. None of the examples involve government-provided benefits or benefits prescribed by statutory law.

In light of the above, we hold that the provisions of Florida’s Workers’ Compensation Law do not constitute compensation, terms, conditions, or privileges of employment within the meaning of 29 U.S.C. § 623. Thus, we find it unnecessary to address the question of whether the Florida law constitutes one of the statutory exceptions to the prohibitions of section 623, and since no conflict exists between the Florida law and the federal ADEA, no violation of the supremacy clause of the United States Constitution is involved. Accordingly, the motion for rehearing is DENIED. We certify, however, the following question to be of great public importance:

DOES SECTION 440.15(3)(b)3.d., FLORIDA STATUTES (1979), VIOLATE THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION BECAUSE IT CONFLICTS WITH THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, 29 U.S.C. § 621, ET SEQ. (1976)?

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

      . The instant issue was not addressed by Sasso because the claimant in that case was over 70 and thus not protected by the ADEA. 431 So.2d at 208 n. 6. In the instant case, Mrs. O’Neil was 66 at the date of the hearing on October 13, 1981.

      . EEOC v. Wyoming involved that state’s involuntary retirement at age 55 of a Wyoming game and fish warden. The Court held that extension of the ADEA to apply to state and local governments was constitutional.

      . 29 C.F.R. § 860.120(e) states:
      (e) Benefits provided by the Government. An employer does not violate the Act by permitting certain benefits to be provided by the Government, even though the availability of such benefits may be based on age. For example, it is not necessary for an employer to provide health benefits which are otherwise provided to certain employees by Medicare. However, the availability of benefits from the Government will not justify a reduction in employer-provided benefits if the result is that, taking the employer-provided and Government-provided benefits together, an older employee is entitled to a lesser benefit of any type (including coverage for family and/or dependents) than a similarly situated younger employee. For example, the availability of certain benefits to an older employee under Medicare will not justify denying an older employee a benefit which is provided to younger employees and is not provided to the older employee by Medicare.

      .29 C.F.R. § 860.50(c) states:
      (c) The phrase "terms, conditions, or privileges of employment" encompasses a wide and varied range of job-related factors including, but not limited to, job security, advancement, status, and benefits. The following are examples of some of the more common terms, conditions, or privileges of employment: The many and varied employee advantages generally regarded as being within the phrase "fringe benefits,” promotion, demotion or other disciplinary action, hours of work (including overtime), leave policy (including sick leave, vacation, holidays), career development programs, and seniority or merit systems (which govern such conditions as transfer, assignment, job retention, layoff and recall). An employer will be deemed to have violated the Act if he discriminates against any individual within its protection because of age with respect to any terms, conditions, or privileges of employment, such as the above, unless a statutory exception applies.

      . 29 U.S.C. § 623(f) contains exceptions to the prohibitions of § 623(a).
      A question similar to the instant case was addressed in Brown v. Goodyear Tire & Rubber Co., 3 Kan.App.2d 648, 599 P.2d 1031 (1979), aff’d., 227 Kan. 645, 608 P.2d 1356 (1980), appeal dismissed, 449 U.S. 914, 101 S.Ct. 310, 66 L.Ed.2d 142, reh. denied, 449 U.S. 1068, 101 S.Ct. 799, 66 L.Ed.2d 614 (1980). Brown involved a Kansas statute which terminated certain workers' compensation benefits for persons who were receiving federal old age social security benefits. The Brown court held that this statute did not constitute employer discrimination on the basis of age, but it also stated:
      Even if the statute involved age discrimination, it would still be authorized under § 623(f)(1) because “the differentiation is based on reasonable factors other than age,” i.e., prevention of duplication of wage-loss benefits.
      599 P.2d at 1037.
      We note that section 440.15(3)(b)3.d., Fla.Stat. (1979) conditions termination of wage-loss benefits on eligibility for old age social security benefits in addition to the reaching of age 65. Sasso, supra at 217-218. Sasso, however, found that the Florida statutory scheme was not rationally related to the goal of halting "double dipping." Id. at 218-219.


author: HURLEY, Judge.

text:
    Harry R. SCHMIDT and Virginia Schmidt, his wife, Thomas B. Seamans and Jane P. Semans, his wife, Edwin Groll and Delores S. Groll, his wife, Gail G. Grant and Elizabeth Grant, his wife, Appellants/Cross-Appellees, v. Charles H. SHERRILL and Dorothy P. Sherrill, Robert D. Edwards and Dorothy A. Edwards, Appellees/Cross-Appellants. Charles H. SHERRILL and Dorothy P. Sherrill, Robert D. Edwards and Dorothy A. Edwards, Appellants, v. James R. POCKLINGTON and Virginia Pocklington, Appellees.
    Nos. 82-189, 82-888.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Jan. 19, 1984.

      William F. Sullivan of Portley & Sullivan, Pompano Beach, for appellants/cross-ap-pellees in No. 82-189 and for appellees in No. 82-888.
    Robert L. Wunker of Grimditch, Bentz, Wunker & Thistle, P.A., Pompano Beach, for appellees/cross-appellants in No. 82-189 and appellants in No. 82-888.
   HURLEY, Judge.

This consolidated appeal stems from two cases which involved the interpretation and enforcement of a declaration of condominium. We hold that the declaration was violated when various unit owners caused structural alterations to be made to the “outside walls” of the condominium, without first obtaining unanimous consent of all unit owners. Additionally, we hold that the trial court’s finding of selective enforcement is unsupported by the record. Consequently, we affirm in part, reverse in part and remand with instructions.

The parties to these cases are apartment owners at Hillsboro Light Towers, a condominium located in Pompano Beach. The controversy centers on five sets of unit owners who partially enclosed their balconies with sliding glass windows. To achieve this result, each of the defendant unit owners (1) removed the exterior wall and window separating the kitchen area from the balcony, (2) enclosed a portion of the balcony by installing sliding glass windows on top of the existing balcony railing/wall, (3) extended the living room by removing the sliding glass doors and portions of the wall separating the living room from the balcony, and (4) enclosed the balcony by installing a new set of glass doors between the outer balcony railing/wall and the former living room wall.

Two actions were filed seeking mandatory injunctions for removal of the offending structures. The cases were tried before different judges and resulted in different judgments. The first court ruled that some, but not all, of the alterations violated the declaration and had to be removed. The second court found that all of the alterations violated the declaration, but denied the request for a mandatory injunction, finding that the alterations did not affect the symmetry of the building and that their removal would constitute selective enforcement.

We begin our analysis with the declaration of condominium, the condominium’s “constitution.” Article VIII, Section “H”, entitled “Alteration and Improvement” states that “[n]o apartment owner shall make any alterations in the portions of the apartment and apartment building which are to be maintained by the Association or remove any portion thereof or make any additions thereto ... without first obtaining the unanimous approval of all owners of other apartments in the same building .... ” Article VIII, Section “G” is entitled “Maintenance.” Among other things, it states that the condominium association shall maintain “the outside walls of the apartment building.” Reading these provisions together, the declaration provides that a unit owner may not remove any portion of, or make any additions to, the outside walls of the apartment building without the unanimous consent of all other unit owners in the same building.

Whether they appear in a statute or in a declaration of condominium, words of common usage should be construed in their plain and ordinary sense. See, e.g., Pedersen v. Green, 105 So.2d 1 (Fla.1958); Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971). The critical words in this case are “the outside walls of the apartment building.” During oral argument, counsel for the defendant unit owners conceded that the railing-like wall which circles the exterior of the balcony is an “outside wall.” He contended, however, that the L-shaped wall which is exposed to the elements and which, on one side, separates the living room from the balcony and, on the other side, separates the kitchen from the balcony, is an “interior wall” because it is located on or within the balcony area. Although inventive, this definition is unrealistic, contorted and unworkable. Certainly, walls which are exposed to the elements are “outside walls.” Furthermore, counsel’s definition would destroy the visual integrity of the outside of the building for it would place the maintenance responsibility for the walls on each balcony in the hands of the individual unit owner. The term “outside walls” must be defined by its plain and ordinary meaning: all walls which are exposed to the elements and the outer surfaces of all walls which define the in-door living space of the condominium unit. Thus, the outside walls include the balcony railing/wall together with the L-shaped wall which separates the living room and kitchen from the balcony. This definition is consistent with the definition of “exterior building walls” which appears in Article VIII, Section “C” of the declaration under the title “Boundaries” and which states that “Exterior Building Walls ... include the unfinished surface of the exterior of the outside walls of the apartment building ... and when there is attached to the building a balcony ... such boundaries shall be the intersecting vertical planes adjacent to and which shall include all such structures and fixtures thereon.” (Emphasis supplied.)

With the above definition in hand, it is immediately apparent that each of the structural alterations in this case involved the removal of, or an addition to, an “outside wall.” Since these alterations were done without the unanimous consent of all of the unit owners in the building, they violate the declaration of condominium. We reached a similar conclusion in Sterling Village Condominium, Inc. v. Breitenbach, supra. There the unit owners glass-enclosed a screened porch without the consent of the association. The trial court denied a request for a mandatory injunction on the theory that the glass jalousies did not amount to a substantial alteration. We reversed, holding that the term “substantial alteration” had to be understood by its plain meaning. Also, we held that declarations of condominium must be strictly construed. See also Fountains of Palm Beach Condominium, Inc. v. Farkas, 355 So.2d 163 (Fla. 4th DCA 1978). In the case at bar there can be no question but that the alterations are substantial. Consequently, they could be made only after full compliance with the declaration of condominium.

The trial court declined to issue a mandatory injunction against Mr. and Mrs. Pocklington on the theory that to do so would constitute a selective enforcement of the declaration’s restrictions. The defense of selective enforcement received the supreme court’s imprimatur in White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). White Egret involved a condominium association’s attempt to enforce a residency restriction against children under the age of twelve. The court held that the association was estopped from enforcing the restriction against the Franklin family because the association had allowed at least six other children under the age of twelve to reside in the condominium complex. In the case at bar, Mr. and Mrs. Pocklington cannot cite other instances of glass-enclosed balconies because they were the first to undertake such action. Therefore, their defense of selective enforcement is based on two contentions: (1) that several unit owners have installed white hurricane shutters which, when extended, enclose the balcony area, and (2) that some unit owners utilize detachable, cloth sun-screens on their balconies. Neither of these conditions is sufficient to estop the association or any of its members from seeking legal redress to prevent the extensive structural alterations involved here. Hurricane shutters are commonly used throughout south Florida. They do not alter the configuration of the interior of the apartment and simply cannot be compared to the type of structural alterations undertaken by the defendant unit owners. Similarly, detachable cloth sunscreens are not comparable to permanent glass-enclosed balconies.

Accordingly, we hold that all of the structural alterations in these cases were done in violation of the declaration of condominium. Additionally, we hold that the record is devoid of competent substantial evidence to support the defense of selective enforcement. Consequently, as to the amended final judgment entered in appellate case number 82-189, we affirm in part and reverse in part. Also, we remand with instructions to the trial court to enter a mandatory injunction requiring the removal of all alterations and the restoration of the balcony areas to their original condition. As for appellate case number 82-888, we also affirm in part and reverse in part and remand with instructions to enter a mandatory injunction requiring the removal of all structural alterations and the restoration of the balcony area to its original condition. Neither injunction, however, shall require the removal of hurricane shutters.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

ANSTEAD, C.J., and GLICKSTEIN, J., concur.

      . Some of the defendant unit owners have argued that, if reversed, the case should be remanded for further proceedings to determine whether the Sherrills are estopped from asserting their claim. We decline to follow this course because even if estoppel were established as to the Sherrills, it would not affect the Edwards' claim.


author: MILLS, Judge. NIMMONS, Judge, PER CURIAM. MILLS, Judge,

text:
    David A. DOHENY, Appellant, v. GROVE ISLE, LTD., and State of Florida Department of Environmental Regulation, Appellees.
    No. AM-475.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    On Rehearing Dec. 8, 1983.

      Parker D. Thomson, Richard J. Ovelmen and Douglas M. Halsey of Paul & Thomson, Miami, David A. Doheny, in pro. per., for appellant.
    Kenneth G. Oertel of Oertel & Laramore, P.A., Tallahassee, Larry Stewart of Floyd, Pearson, Stewart, Richman, Greer & Weil, Miami, for appellee Grove Isle.
    Alfred J. Malefatto, Asst. Gen. Counsel, for Fla. Dept, of Environmental Regulation, Tallahassee, for appellee DER.
    Robert M. Rhodes and Patrick K. Wiggins of Messer, Rhodes & Vickers, Tallahassee, for appellees.
   MILLS, Judge.

Doheny appeals from a 29 March 1982 order of the Department of Environmental Regulation (DER) directing that a default permit be issued to Grove Isle for construction of a 90-slip boat marina in Biscayne Bay adjacent to Grove Isle’s condominium project. The default resulted from DER’s alleged failure to approve or deny, within the time prescribed by law, Grove Isle’s second application to construct the marina.

This Court previously considered an appeal by Grove Isle affirming an order of DER denying Grove Isle’s first application for a permit to construct the same marina at the same location, in Grove Isle v. Bayshore Homeowner’s Ass’n., 418 So.2d 1046 (Fla. 1st DCA 1982), petition for review denied in 430 So.2d 451 (Fla.1982).

In our opinion in Grove Isle, supra, we said:

The initial hearing was held in January 1980. The hearing officer issued a recommended order that the permit be issued. Bayshore and the other petitioners, except for Mr. Doheny and Mr. Filer, were found to lack standing. The hearing officer's finding was based on a lack of evidence in the record upon which a legal conclusion regarding the remaining petitioner’s standing could be made.
This hearing was conducted using Rule 17-4.29, Florida Administrative Code, as the applicable water quality standard. In its final order, DER accepted the hearing officer’s findings of fact and conclusions of law regarding the applicable water quality rule and public interest criteria. DER denied the permit because the hearing had been conducted under the wrong water quality standard. DER asserted the appropriate standard was Rule 17-4.242, Florida Administrative Code, Florida Outstanding Water Rule, which applied to permit applications completed after 1 March 1979. Biscayne Bay is among those bodies of water designated as Outstanding Florida Waters. Rule 17-3.041(l)(f), Florida Administrative Code. After denying the permit, DER remanded for a new hearing for the taking of additional evidence of whether the proposed marina complied with Rule 17-4.242.
Upon remand the hearing officer recommended that the permit be denied because although ambient water quality surrounding the marina would not be lowered, Grove Isle failed to carry its burden of showing the marina was clearly in the public interest as required by the rule.
In its final order under the new water quality standard, DER accepted the hearing officer’s conclusion of law that Grove Isle did not show the marina was “clearly in the public interest.” However, DER rejected the conclusion that ambient water quality would not be lowered.
DER held that unless a “restricted mixing zone” was applied for pursuant to Rule 17-4.242(l)(a)2.b, Florida Administrative Code, ambient water quality was to be measured within the project site, not in the small cove in which the marina was located as done by the hearing officer. DER found the hearing officer applied de facto mixing zone criteria erroneously.
DER denied issuance of the permit since the project was not “clearly in the public interest” and it was uncertain whether ambient water quality would be lowered.

418 So.2d at 1048, 1049. This Court further observed in that opinion that under Rule 17-4.242, Florida Administrative Code, Grove Isle was required to show: (1) that the proposed project would not lower ambient water quality; and (2) that the project is clearly in the public interest. While this Court held that DER erred in rejecting the hearing officer’s conclusion that ambient water quality would not be lowered, we affirmed DER’s adoption of the hearing officer’s finding that Grove Isle failed to carry its burden of showing that the project was clearly in the public interest and, therefore, affirmed DER’s denial of the application for the construction permit.

Prior to this Court’s opinion and order in the first appeal, Grove Isle filed another application with DER on 18 May 1981 for a permit for the construction of the marina. The abbreviated “reapplication” took the form of a letter to DER from counsel for Grove Isle enclosing certain documents regarding the original application. Basically, the reapplication differed from the first application in that it requested DER to grant a mixing zone for its project pursuant to Rule 17-4.244, Florida Administrative Code, and submitted, along with its letter, a map of a proposed mixing zone. The reapplication recited that although Grove Isle disagreed that a mixing zone was necessary, it was reapplying for the permit and also applying for a mixing zone “in an attempt to keep this matter from becoming any more complicated.” On 19 June 1981, DER staff responded by sending to Grove Isle a “completeness summary” indicating that the project would be in Outstanding Florida Waters and requesting Grove Isle “to demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30-day construction period _” In response, counsel for Grove Isle sent a letter to DER on 25 June 1981. The letter suggested that DER refer to its file in connection with the prior application for the information sought in the completeness summary letter.

LACK OF JURISDICTION

The Department did not have jurisdiction to consider Grove Isle’s second application.

This Court acquired jurisdiction of this case by virtue of Grove Isle’s appeal of the Department’s adverse ruling on its first application. Grove Isle, supra. The Court did not divest itself of jurisdiction after acquiring jurisdiction. The issues raised by the second application were ruled upon by this Court in Grove Isle, supra.

ESTOPPEL BY JUDGMENT

Grove Isle was estopped from filing its second application by this Court’s decision on its first application. Grove Isle, supra.

The Department ruled against Grove Isle on both issues raised by its first application, water quality and public interest. The Department also denied the permit it sought.

On appeal, this Court affirmed the public interest issue and permit denial but reversed the water quality issue. Although Doheny and DER won the public interest issue and the case, Grove Isle won the water quality issue.

In both applications, Grove Isle sought a permit from DER to build a marina. In both cases, the issues were water quality and public interest. In both cases, Grove Isle sought and Doheny opposed the permit. DER opposed the first permit and opposed the second permit until it concluded it had to issue the permit by default. DER was the permitting authority in both cases.

Grove Isle is estopped from arguing that the water quality would not be lowered because this Court ruled in its favor on this issue. Also, the Court has ruled in favor of Doheny and the Department on the public interest issue and denial of the permit. See Donahue v. Davis, 68 So.2d 163 (Fla.1953).

This appeal is dismissed.

ERYIN, C.J., concurs.

NIMMONS, J., dissents with opinion.

NIMMONS, Judge,

dissenting.

In this appeal, appellant Doheny complains of DER’s final order directing the issuance of the default permit to Grove Isle upon Grove Isle’s second application and seeks reversal of such order. The court’s opinion finds that DER did not have jurisdiction to consider the second application and then proceeds to dismiss Doheny’s appeal from DER’s issuance of the default permit. The majority’s disposition of this appeal, it seems to me, denies appellant Doheny the relief which the majority’s rationale would suggest that to which he is entitled.

The majority opinion appears to hold, at least implicitly, that because of the penden-cy in this court of Grove Isle’s appeal from the denial by DER of its first application, the subsequent administrative proceedings surrounding Grove Isle’s second application constituted a nullity which therefore justifies disposition of the instant appeal by dismissal. The rationale for the majority’s disposition is predicated upon the principle of estoppel by judgment.

Res judicata and estoppel by judgment are indeed available in administrative proceedings the same as in judicial proceedings. E.g. Metropolitan Dade County Board of County Commissioners v. Rockmatt Corporation, 231 So.2d 41 (Fla. 3rd DCA 1970). Both res judicata and estop-pel by judgment are affirmative defenses which are properly pled as such in the lower tribunal. The majority’s suggestion that DER somehow lacked jurisdiction to consider the second application is, I believe, erroneous. In fact, although res judicata and estoppel by judgment were raised in the lower proceedings by Doheny and DER and on appeal by Doheny, no one has raised any question regarding the jurisdiction of the agency to consider the second application, nor has anyone suggested that this appeal is subject to dismissal on the ground of lack of jurisdiction or otherwise.

For the reasons hereinafter expressed, I would reverse DER’s final order awarding the default permit to Grove Isle and remand the case to DER for the purposes which will be explained. The balance of this opinion will consist of a summary of the holdings which I believe are justified in this case, a chronology of the facts additional to that which has been set forth in the opinion of the Court and then a discussion of the rationale for the disposition which I favor in this case.

SUMMARY OF HOLDINGS

I would hold: (1) that DER erred in its May 4, 1982, Final Order adopting the recommendation of the hearing officer that a default permit be issued to Grove Isle in connection with its second application; (2) that DER’s earlier order of September 24, 1981, denying Grove Isle’s second application was violative of Rule 17-4.07(2), Florida Administrative Code, in that DER’s June 19, 1981, letter requesting additional information did not serve to satisfy the requirement of that rule that the applicant be advised that DER deemed the application to be deficient such that DER intended to reject the application in the absence of correction of such deficiencies (DER’s September 24, 1981, denial order was predicated upon the second application being the same as the first application since Grove Isle failed to supply the requested additional information); (3) that in view of DER’s failure to furnish Grove Isle with the requisite notice under Rule 17-4.07(2), it would be premature for this court to hold, as a matter of law, that Grove Isle’s second application was precluded by res judicata or estoppel by judgment — i.e. how can we say that Grove Isle would have failed or refused to furnish information, upon service of a proper Rule 17-4.07(2) notice, sufficient to render the second application different from the first; (4) that Doheny was not precluded from further contesting Grove Isle’s second application upon the grounds that his intervention petition allegedly failed to conform with Rules 28-5.-201(2) and 28-5.207, Florida Administrative Code; (5) that Doheny did not waive his right to be heard on the propriety of the issuance of the permit upon the alleged grounds that Doheny allegedly ignored his point of entry in the administrative proceedings.

ADDITIONAL CHRONOLOGY

As noted in the majority’s opinion, Grove Isle’s second application, which was filed while the appeal from the denial of the first application was pending in this Court, differed from the first application in that it requested DER to grant a mixing zone. DER responded to that application by sending Grove Isle a “completeness summary” on June 19, 1981, requesting Grove Isle to show: (1) that the project was clearly in the public interest, and (2) that the project would not result in the degradation of ambient water quality beyond the 30-day construction period, such requirements being the criteria for projects located within “Outstanding Florida Waters.” Grove Isle’s June 25, 1981, letter in response told DER to refer to its file in connection with the prior application.

Subsequently, appellant Doheny, who owned and resided in a home immediately across from the site of the proposed marina, who had participated in the first application proceedings as a person whose substantial interests would be affected, and who had also been a party to the first appeal in this Court, learned informally of the reapplication by Grove Isle and on July 24, 1981, wrote a letter to DER in opposition to it. On September 24, 1981, DER entered an order denying the reapplication stating:

This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence, upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest.

On October 8, 1981, Grove Isle requested a formal hearing on the denial pursuant to Section 120.57(1), Florida Statutes. Shortly thereafter, DER referred the matter to a Department of Administrative Hearings (DOAH) officer for further proceedings. On November 16,1981, the hearing officer, upon joint motion for continuance by Grove Isle and DER, continued the scheduled January 19, 1982, final hearing until February 23, 1982.

On January 21, 1982, Grove Isle moved for a “summary recommended order” on the grounds that over 90 days had passed between the date DER received Grove Isle’s above-referred June 25, 1981, letter and the date that Grove Isle was informed of DER’s denial of the permit. Grove Isle asserted that it was entitled to a “default permit” pursuant to Section 120.60(2), Florida Statutes, which provides in pertinent part:

Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require .... Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information .... Any application for a license not approved or denied within the 90-day or shorter time period ... shall be deemed approved and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.

Grove Isle took the position: (1) that its letter to DER of June 24, 1981, furnished the “timely requested information” which DER had sought by its completeness summary letter such that the 90 days within which the agency was required to approve or deny the reapplication commenced to run on June 25; and (2) that since DER’s denial was on the 91st day thereafter, Grove Isle was entitled to a default permit under the statute.

Subsequent to the hearing on that motion, the hearing officer entered an order on February 1,1982, directing Grove Isle to show cause why the permit should not be denied on the basis of res judicata and instructing DER to show cause why it should not be deemed to have waived the defense of res judicata. On February 5, Doheny petitioned to intervene, which petition the hearing officer granted on February 8 “because these proceedings concern the same project which was the subject of the [prior proceedings],” the hearing officer finding that “the allegations of Mr. Doheny’s Petition to Intervene are well taken.”

On February 8, 1982, counsel for DER filed his response to the order to show cause in which he opined that res judicata was not applicable to bar the reapplication, a position he later recanted when he filed in March his exceptions to the recommended order subsequently issued.

On February 12, 1982, the hearing officer submitted to DER and the parties a Section 120.57(l)(b)8, Florida Statutes, recommended order in which it was recommended that a default permit be issued to Grove Isle. The recommended order was issued four days after Doheny’s petition to intervene was granted and before Doheny had an opportunity to file a response to the order to show cause. Subsequently, written exceptions were filed with the Secretary of DER by counsel for Doheny and by DER’s counsel requesting that the Secretary reject the recommended order.

On March 29, 1982, the Secretary entered an order in which she found: (1) that although Grove Isle’s letter in response to DER’s completeness summary did not provide the additional information requested by DER, it was then incumbent upon the agency, by virtue of the provisions of Section 403.0876, Florida Statutes, to request from Grove Isle “information needed to clarify such additional information,” and that the agency’s failure to do so prevented it from claiming that the “90 day clock” of Section 120.60(2) was tolled; (2) that although DER was therefore precluded from thereafter actively opposing before the hearing officer Grove Isle’s application, a default permit should nevertheless not be issued because of the intervention of Mr. Doheny as a party to the proceedings and that the agency’s failure to comply with the Chapter 120 time clock should not be visited upon a person whose substantial interests would be affected and who was properly permitted to intervene as a party to the proceedings; (3) that res judicata was not applicable to bar Grove Isle’s reapplication because, by virtue of the reapplication’s request for a mixing zone, there was “no identity between the thing being sued for in the previous proceeding and the present action”; (4) that, however, unless Grove Isle could demonstrate in a hearing before the hearing officer that there had been some change in the project that would affect the previous adjudication that the project was not clearly in the public interest, the doctrine of estoppel by judgment would bar the relitigation of that point; and (5) that the case should, therefore, be remanded to the hearing officer for hearing to determine “whether, because of some change in the project or surrounding circumstances, the applicant can demonstrate that the proposed project is in the public interest” and whether the applicant is entitled to a mixing zone.

On April 16, 1982, the hearing officer entered an “Order Rejecting Remand” in which he declined to accept the Secretary’s remand. The hearing officer concluded that Mr. Doheny’s right to request a hearing was foreclosed by DER’s default since “the Department, as representative of Mr. Doheny and all the other citizens of the State of Florida, let the time in which it could deny Grove Isle’s application expire,” and since the intervenor did not request a hearing on the Department’s letter of intent to deny the permit within fourteen days of receipt of notice.

On May 4, 1982, the Secretary entered the Final Order appealed from in which she acceded to the hearing officer’s rejection of the remand and ordered issuance of the permit to Grove Isle. The Secretary, however, excepted to most of the hearing officer’s legal conclusions. The Secretary rejected the hearing officer’s conclusion that DER is a representative of all the citizens of the State and that its actions bind all other parties. With respect to the hearing officer’s conclusion that the intervenor failed to timely request a hearing, the Secretary observed: (1) that the hearing officer ignored the fact that the action (denial of the permit) was exactly what the inter-venor wanted; (2) that the 14-day time period set forth in Florida Administrative Code Rule 17-1.62(l)(b) was not applicable to the intervenor in this case; and (3) the interve-nor filed his petition within the time limits prescribed by Rule 28-5.207, Florida Administrative Code, which was granted by the hearing officer. Nevertheless, the Secretary accepted the hearing officer’s conclusion that the permit should be issued for the reason that Doheny’s petition for leave to intervene was not in conformance with Florida Administrative Code Rules 28-5.207 and 28-5.201(2) in that it was “devoid of any issue relating to Grove Isle’s right to a water quality control permit.” This appeal followed.

ENTITLEMENT TO DEFAULT PERMIT

Under the circumstances of this case, the default permit should not have issued. Grove Isle’s first application had been denied by DER on the grounds that Grove Isle had failed to show that the project was “clearly - in the public interest.” While Grove Isle’s appeal was still pending in this Court on the denial of the first application, Grove Isle submitted its reapplication to DER. As previously noted above, the principal difference between the reapplication and the first application was that Grove Isle applied for a mixing zone in the latter. Given the fact that DER had ruled, with respect to the first application: (1) that Grove Isle had failed to carry its burden in demonstrating that the project was clearly in the public interest; and (2) that the public interest requirement was a separate criterion from the requirement regarding the project’s effect on ambient water quality which rulings this Court subsequently affirmed on the first appeal, it was imminently reasonable that DER, upon receipt of the abbreviated reapplication, should request additional information from Grove Isle showing that the project was clearly in the public interest as required by Rule 17-4.242, Florida Administrative Code. Indeed, not to have done so would have amounted to a tacit erroneous assumption by DER that the submissions made by Grove Isle with respect to its first application were sufficient to carry its burden of demonstrating that the project was clearly in the public interest. Grove Isle asserts that its letter of June 25, 1981, which articulated no additional information but, instead, simply referred DER to unspecified records on file with DER regarding the first application, was a sufficient response to DER’s request and thus triggered the start of the 90-day clock culminating in its entitlement to the default permit.

We should look to two statutes in order to determine whether Grove Isle was entitled to a default permit in this case. Part I of Chapter 403, Florida Statutes, is known as the “Florida Air and Water Pollution Control Act.” Section 403.0876 thereof, which is set forth in footnote 3, supra, governs the processing of permit applications under that Act. Section 120.60(2) of the Administrative Procedures Act also governs the processing of licensing applications by an agency and further provides for the circumstances under which a “default permit” must be issued. These two statutes should be read in para materia. The question of whether DER violated the 90-day rule provided for in those statutes turns upon the question as to whether Grove Isle, in connection with its reapplication, furnished DER with the timely requested additional information showing that the proposed project was clearly in the public interest. For the reasons previously mentioned, I have no difficulty in rejecting Grove Isle’s contention that its June 25, 1981, letter referring DER to its first application constituted the additional information requested by DER.

Grove Isle contends, alternatively, that DER was obligated to request clarification from Grove Isle of the “additional information” contained in its June 25 letter and that failure to make such request within thirty days from June 25 foreclosed DER from complaining about the incompleteness of the “additional information” contained in the June 25 letter. In support thereof, Grove Isle relies upon that portion of Section 403.0876 which provides:

Within 30 days after receipt of such additional information, the department shall review it and may request only that information needed to clarify such additional information ....

Grove Isle’s reliance upon that provision is misplaced for the reason that its June 25 letter did not serve to supply DER with any additional information. Grove Isle’s rather peremptory response was tantamount to a refusal to articulate the additional information which it would have to rely upon to demonstrate that the project was clearly in the public interest. Under both Sections 403.0876 and 120.60(2), the responsibility of providing timely requested information is on the applicant, not the agency. Under other circumstances, an applicant’s request that the agency refer to specific information already on file in connection with a prior proceeding may well serve as a sufficient response to the agency’s request for additional information. Not so in a case such as this where it had previously been authoritatively determined that the information sought had not been previously submitted. It was, therefore, not incumbent upon DER to request that Grove Isle “clarify” its position.

Section 403.0876 also provides that where the applicant believes the request for additional information is not authorized by law or department rule, the department shall proceed to process the application at the request of the applicant, and that the 90-day period under these circumstances commences upon “the applicant’s written request to begin processing the permit application.” Grove Isle has never contended that the Department was not entitled to the additional information and, presumably, that is why Grove Isle did not attempt to rely upon that triggering provision of Séction 403.0876.

Doheny presents the alternative argument, in which argument DER concurs, that even if DER were deemed to have violated the 90-day rule, DER’s failure to comply with the statutory time limitations should not foreclose the right of a substantially affected person from further administratively contesting the application. I would not propose that we resolve that interesting question in view of my conclusion that the agency was not in violation of the 90-day rule.

DER’S SEPTEMBER 24, 1981, ORDER DENYING APPLICATION

Even though Grove Isle was not entitled to a default permit, it does not follow that DER was justified in entering its earlier September 24,1981, “Final Order Denying Application for Permit” without first informing Grove Isle that it had found its application to be deficient, specifying such deficiencies and allowing time for corrections pursuant to Rule 17-4.07(2), Florida Administrative Code, which provides:

(2) When the application is found deficient in any respect, or required information has not been submitted to the Department, the application shall not be accepted. The Department shall notify the applicant of the deficiencies or lacking information and allow a reasonable time for corrections or submission of the necessary information.

DER’s June 19, 1981, letter requesting additional information did not serve to satisfy the requirement of the above rule that the applicant be advised that the agency deemed the application to be deficient to the extent that DER intended to reject the application in the absence of correction of such deficiencies. Such construction of that rule is also consistent with the following provision of Section 120.60(2):

Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period.

In order to be entitled to deny the application for alleged deficiencies or omissions, I would construe both that section and the above Rule 17-4.07(2) to require not simply a request for additional information but a notification of deficiencies or omissions failure of which to correct would result in denial of the application.

RES JUDICATA OR COLLATERAL ESTOPPEL

Doheny asserts that Grove Isle’s application may not be further considered by reason of the principle of estoppel by judgment. As previously noted, the doctrines of res judicata and estoppel by judgment are applicable in administrative proceedings. Metro Dade County Board of County Commissioners v. Rockmatt Corporation, supra; State of Florida, Department of Health and Rehabilitative Services v. Vernon, 379 So.2d 683 (Fla. 2nd DCA 1980); Clean Water, Inc. v. State Dept. of Env. Reg., 402 So.2d 456 (Fla. 1st DCA 1981); Coral Reef Nurseries, Inc. v. Babcock, 410 So.2d 648 (Fla. 3rd DCA 1982). Inasmuch as this Court affirmed the denial of Grove Isle’s first application on the grounds of the applicant’s failure to show that the proposal was clearly in the public interest and since it was determined that the first application was properly denied even though the applicant satisfied the other criterion regarding ambient water quality, it would appear that the reapplication should be denied unless the applicant could demonstrate some change or modification which would show that the project was clearly in the public interest. However, under the circumstances of this case, I would not determine this appeal on the basis of the applicability of either res judi-cata or estoppel by judgment. Since, for the reasons enunciated above, the order of the Secretary awarding the default permit to Grove Isle should be set aside and DER’s previous order of September 24, 1981, should also be set aside, I am of the view that it would be premature for us to hold that Grove Isle’s second application is barred by either doctrine. Whether Grove Isle, after a Rule 17-4.07(2) notification by DER as contemplated above, would be able to remedy the existing deficiency in its present application remains to be seen. New facts, changed conditions or additional submissions by the applicant may materially affect the ultimate applicability of res judicata or estoppel by judgment. See Coral Reef Nurseries, Inc. v. Babcock Co., supra at 654.

SUFFICIENCY OF INTERVENTION PETITION

I would next address the ruling contained in DER’s final order which ruling precludes Doheny’s right to further contest the issuance of the permit upon the grounds that his intervention petition purportedly failed to conform with the requirements of Rules 28-5.201(2) and 28-5.207, Florida Administrative Code. Those rules set forth the requirements for the content of such petitions. DER was not justified in summarily foreclosing in such a manner Doheny’s right to further contest the permit application. As mentioned earlier in this opinion, the hearing officer had previously granted the petition to intervene noting that “these proceedings concern the same project which was the subject [of the prior proceeding]” in which'Doheny was a party and that “the allegations of Mr. Do-heny’s Petition to Intervene are well taken.” Further, no objection was made by either DER or Grove Isle before or after the order granting the intervention. Indeed, both the hearing officer and DER in its final order appealed from have acknowledged the fact that Doheny was a substantially affected person. Under these circumstances, even if the previously granted intervention petition were somehow later determined to be deficient, Doheny should have been offered the opportunity to correct the deficiency by amendment.

POINT OF ENTRY

Finally, Grove Isle argues that Do-heny waived his right to be heard on the propriety of the issuance of the default permit because he allegedly ignored his “point of entry” in the administrative proceedings. Rule 17-1.62(l)(b), Fla.Admin. Code, provides:

Failure of a substantially affected person to file a petition within fourteen (14) days of receipt of notice of agency action or fourteen (14) days of receipt of notice of proposed agency action, whichever notice first occurs, shall constitute a waiver by that person of any right to request an administrative proceeding under chapter 120, F.S.

The only agency action or proposed agency action of which Doheny received notice was DER’s September 24, 1981, “Final Order Denying Application For Permit.” Surely, Doheny could not be expected to have filed a request for a Chapter 120 hearing in order to contest a decision which was adverse to the applicant. Grove Isle also relies upon Rule 28-5.111(2), Fla.Admin. Code, in asserting that Doheny ignored his point of entry. That section provides:

(2) Any person who receives written notice of an agency decision or who receives written notice of intent to render a decision and who fails to request a hearing within twenty-one (21) days, shall have waived his right to subsequently request a hearing on such matters.

Grove Isle asserts that since “in July of 1981 Doheny knew of DER’s decision to accept and process the reapplication,” the above rule required Doheny to file a request for a Chapter 120 hearing within 21 days thereafter. That is a patently erroneous interpretation of Rule 28-5.111. Moreover, for the same reasons mentioned above with respect to Rule 17-1.62(l)(b), neither would Rule 28-5.111 contemplate a point of entry for Doheny within 21 days of notice of DER’s September 24, 1981, final order adverse to the applicant. Doheny’s entry into the subject proceedings was not untimely. He was properly allowed by the hearing officer, without objection, to intervene pursuant to Rule 28-5.207, Fla.Admin. Code, his petition therefor having been filed “at least five (5) days before the final hearing” as provided by that rule.

For the above reasons, I am of the view that DER’s final order awarding the default permit to Grove Isle should be reversed and this case remanded to DER for further proceedings in accordance with this opinion. I, therefore, respectfully dissent from the Court’s opinion.

ON REHEARING

PER CURIAM.

Appellees’ motions for rehearing are granted in part and the previous opinion of the court filed October 4, 1983, is withdrawn. Judge Nimmons’ dissenting opinion is adopted as the opinion of the Court.

ERVIN, C.J., and NIMMONS, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I would grant the Department’s Motion for Rehearing on the Court’s order awarding Doheny an attorney’s fee of $4,000 and I would vacate the order.

I would deny the Department’s Motion for Rehearing on the merits and I would deny Grove Isle’s Motions for Rehearing and for Rehearing En Banc.

I adopt my opinion of 4 October 1983 as my dissenting opinion.

This case is a classic example of the lack of finality, delay, undue expense and the poor use of Judges’ time. The public constantly complains of these shortcomings and we Judges usually join with them. But, here we are perpetuating the things we are constantly striving to resolve. Ironical.

Four years ago the initial hearing in this case was commenced. Multiple hearings have been held since then.

This is the fourth time this Court has considered this case. How many more APA hearings will be held? How many more appeals will this Court consider? Only “The Shadow” knows.

It is obvious that this case is just commencing. Not even “The Apple” can predict when it will terminate. In the words of the “Bard of Stratford,” “Lay on, McDuff, and damn’d be him that first cries, hold, enough!”

But in the meantime, to quote “The Bard” again, “We must not make a scarecrow of the law.”

      . A "mixing zone” is defined by Rule 17-3.-021(28), Fla.Admin.Code, as “a volume of surface water containing the point or area of discharge and within which an opportunity for the mixture of water with receiving surface waters has been afforded.”

      . Rule 17-4.242, Fla.Admin.Code, provides, in pertinent part:
      “(1) Outstanding Florida Waters
      (a) No Department permit or water quality certification shall be issued for any stationary installation which significantly degrades, ... or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
      ******
      2. The proposed activity or discharge is clearly in the public interest; and ..., ******
      b. The existing ambient water quality within Outstanding Florida Waters will not be lowered .... ”

      . 403.0876 Permits; processing. — Within 30 days after receipt of an application for a permit under this chapter, the department shall review the application and shall request submittal of all additional information the department is permitted by law to require. If the appellant believes any departmental request for additional information is not authorized by law or departmental rule, the applicant may request a hearing pursuant to s. 120.57. Within 30 days after receipt of such additional information, the department shall review it and may request only that information needed to clarify such additional information or to answer new questions raised by or directly related to such additional information. If the applicant believes the request of the department for such additional information is not authorized by law or departmental rule, the department, at the applicant’s request, shall proceed to process the permit application. Permits shall be approved or denied within 90 days after receipt of the original application, the last item of timely requested additional material, or the applicant’s written request to begin processing the permit application. (emphasis supplied)


author: MILLS, Judge. MILLS, Judge.

text:
    Bennie Lee WALKER, Appellant, v. STATE of Florida, Appellee.
    No. AQ-424.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    Rehearing Denied Dec. 14, 1983.

      Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

After being convicted of trafficking in stolen property, Walker was sentenced as an habitual felony offender. Section 775.-084, Florida Statutes (1981). He appeals that sentence, contending that the trial court erred in failing to state the underlying facts and circumstances upon which it relied in finding that an extended sentence was necessary for the protection of the public from further criminal activity by him.

An examination of the record shows that Walker did not raise this objection below. Therefore, any error in sentencing has not been preserved for review on direct appeal. Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980).

The appeal is dismissed without prejudice to Walker raising this issue by a Rule 3.850 motion. Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981).

Appeal dismissed.

SHIVERS and ZEHMER, JJ., concur.

ON MOTION FOR REHEARING DENIED

MILLS, Judge.

Walker argues that the trial court’s sentencing error was fundamental error and, thus, can be considered on appeal although no objection was made in the trial court. We do not agree that the error is fundamental and deny his motion.

A sentencing error is fundamental when it causes a defendant to be incarcerated for a greater length of time than the law permits. Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1982). That is not the case here. Walker has not questioned that facts and circumstances exist which justify his enhanced sentence. The record shows clearly their existence.

The error here is procedural. Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981); Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983); Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981). Walker contends merely that the underlying facts and circumstances justifying the sentence were not stated by the trial court as required by statute. Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Roberts v. State, 402 So.2d 1364 (Fla. 1st DCA 1981). To preserve this procedural error on appeal, it was necessary that Walker object in the trial court. Sawyer, supra; Alexander, supra; McFadden v. State, 423 So.2d 456 (Fla. 4th DCA 1982); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). He did not.

Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981), does not conflict with nor control the decision in this case. The sentence imposed by the trial court in Gonzalez was clearly unlawful and was fundamental error. The trial court placed the defendant on probation for three years on condition that she be imprisoned for 18 months. This violated the Supreme Court’s decision in Villery v. Fla. Parole and Prob. Comm., 396 So.2d 1107 (Fla.1980). It is noteworthy that the State agreed that the sentence was unlawful.

Likewise, Noble v. State, 353 So.2d 819 (Fla.1978), does not control this case. The sentence imposed by the trial court in Noble was unlawful and fundamental error. The sentence provided that Noble serve five years imprisonment at hard labor, the initial three to be served with no credit for good time or gain time and the following two to be stayed while Noble was on probation.

ON MOTION FOR REHEARING EN BANC DENIED

Walker contends this decision is contrary to Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982), and Pugh v. State, 423 So.2d 398 (Fla. 1st DCA 1983), and moves for en banc consideration. We deny this motion because this case is not contrary to the cited cases as shown hereafter.

' This Court’s decision in Polk v. State, supra, does not conflict with this case. In Polk, the trial court revoked the defendant’s probation and sentenced him to two years imprisonment but failed to allow 87 days of credit time already spent in jail.

This is fundamental error which is governed by Gonzalez.

Judge Wentworth who authored Polk recognizes this distinction because she authored the decision in Gilvin v. State, 429 So.2d 1355 (Fla. 1st DCA 1983), and joined in similar decisions in Lepper v. State, 431 So.2d 295 (Fla. 1st DCA 1983); and Johnson v. State, 403 So.2d 1148 (Fla. 1st DCA 1981), all adhering to the Sawyer decision. The Gilvin, Lepper and Rinehart decisions were written after the Polk decision.

Nor does Pugh v. State, supra, conflict with this case. Judge Wigginton stated in Pugh:

[T]he record is insufficient to establish the historical fact of prior convictions and to resolve questions regarding identity. At a separate hearing following the jury’s verdict, defense counsel objected to the state’s proffer of prior convictions, contending two of the prior convictions were rendered on the same day and were therefore to be treated as one conviction, Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979); the proffer did not indicate for what offense the convictions were entered; and an alleged “third” conviction did not carry with it the proper identification. The court, agreeing, set an evidentiary hearing, but thereafter, the record is silent as to any such hearing except that Pugh was ultimately sentenced to five years for felony petit theft.

This, too, is an unlawful sentence and fundamental error. It should be pointed out that this decision should have been withdrawn and has no validity. On motion for rehearing, it was pointed out that the parties had stipulated to the sufficiency of prior petit theft convictions to support the sentencing in this case; thus, this Court reversed its prior decision and affirmed the trial court.

SHIVERS and ZEHMER, JJ., concur.


author: SHIVERS, Judge. SHIVERS, Judge.

text:
    Jack BEHR, Public Defender, First Judicial Circuit, Petitioner, v. Kenneth W. GARDNER and State of Florida, Respondents.
    No. AR-367.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    On Rehearing Dec. 14, 1983.
    Jack Behr, Public Defender, Escambia County Judicial Center, Pensacola, for petitioner.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for respondent State of Florida.
    Woodburn S. Wesley, Jr., of Cotton, Wesley & Poche, Shalimar, for respondent Kenneth W. Gardner.

      Judge C. Luckey, Jr., President, Fla. Public Defender Ass’n, Inc., Tampa, for amicus curiae.
   SHIVERS, Judge.

Behr, Public Defender of the First Judicial Circuit, petitions for writ of certiorari to review an order of the trial court which appoints the public defender as co-counsel with privately retained counsel to represent Respondent Gardner. Because we find that the trial court has not violated essential requirements of law, we deny the petition.

Gardner was charged with solicitation to commit first degree murder. Attorney Woodburn S. Wesley, Jr. was eventually retained by Gardner’s family to represent him. Wesley moved the trial court to appoint an investigator, alleging that neither the defendant nor members of his family had sufficient funds with which to pay the costs of investigation. The trial court heard argument on this motion, declared Gardner to be partially indigent, and appointed the Public Defender’s Office to assist in Gardner’s representation. The trial court’s order stated that the public defender was appointed for the purpose of providing investigative assistance and that Attorney Wesley would remain as lead counsel.

Section 27.51(1), Florida Statutes (1981), states:

The public defender shall represent, without additional compensation, any person who is determined by the' court to be indigent as provided in s. 27.52 and who is:
(a) Under arrest for, or is charged with, a felony;

Section 27.52(2)(a), Florida Statutes (1981), states:

A person is indigent for purposes of this part if he is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himself or his family.

(Emphasis added).

Fla.R.Crim.P. 3.111(b)(4) states:

“Indigent” as used herein shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himself or his family; “partially indigent” as used herein shall mean a person unable to pay more than a portion of the fee charged by an attorney, including costs of investigation, without substantial hardship to himself or his family.

Petitioner does not contend that Respondent Gardner is not partially indigent as defined by Rule 3.111. Nor does petitioner argue that a finding of partial indigency does not satisfy the requirement of indi-gency contained in section 27.52. Rather, petitioner argues that the trial court has no authority to appoint the public defender for the purpose of providing investigative assistance to privately retained counsel.

Although the practice of appointing the public defender as co-counsel with privately retained counsel for the purpose of providing investigative assistance may not be sound policy, we find nothing in Chapter 27, Florida Statutes, or the Florida Rules of Criminal Procedure which would prevent such a practice. We note that a better solution to the problem presented by this fact situation might be for privately retained counsel to secure discovery costs from the county. See Johnson v. Snyder, 417 So.2d 783 (Fla. 3d DCA 1982); Saintil v. Snyder, 417 So.2d 784 (Fla. 3d DCA 1982); and Price v. Mounts, 421 So.2d 690 (Fla. 4th DCA 1982). Nonetheless, since the action of the trial court falls within the applicable statutes and rules, we cannot say that the court departed from essential requirements of law.

Petition for writ of certiorari DENIED.

MILLS and BOOTH, JJ., concur.

ON MOTION FOR REHEARING

SHIVERS, Judge.

The purpose of Chapter 27, Part II, Florida Statutes (concerning public defenders), is to ensure that indigent defendants are afforded the opportunity for representation by counsel as commanded by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Upon rehearing we conclude that this purpose is •not furthered by appointing the public defender to represent a defendant who, although indigent, is already represented by a privately retained attorney. Chapter 27 does not impose upon the public defender a statutory duty to represent all insolvent defendants in all criminal proceedings. Escambia County v. Behr, 384 So.2d 147 (Fla.1980). Therefore, we hold that section 27.51, Florida Statutes (1981), although it permits the appointment of the public defender to represent certain indigent defendants, does not permit the appointment of the public defender as co-counsel with privately retained counsel. The order sub ju-dice departs from essential requirements of law in appointing the public defender as co-counsel.

Further, we think that the appropriate resolution of the problem presented by the facts of the instant case is to be found in the decisions rendered in Johnson v. Snyder, Saintil v. Snyder, and Price v. Mounts, cited in our original opinion. An indigent defendant who is receiving the services of a private attorney retained by a third party may obtain reasonable costs of discovery from the county pursuant to Fla. R.Crim.P. 3.220(k).

Accordingly, the motion for rehearing is granted, the writ is granted, and the order of the trial court appointing petitioner as co-counsel to privately retained counsel is quashed.

MILLS and BOOTH, JJ., concur.


author: PER CURIAM. JORGENSON, Judge,

text:
    The MIAMI HERALD PUBLISHING COMPANY, Appellant, v. Robert P. FRANK, Appellee.
    No. 82-1190.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Paul & Thomson and Sanford L. Bohrer, and Richard J. Ovelman, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and Larry S. Stewart, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Challenging a jury verdict and the ensuing final judgment entered in a libel action, The Miami Herald appeals an award to Robert Frank of $80,000 in compensatory damages. Frank instituted his lawsuit following the Herald’s publication of an article entitled “The Saga of David and Ethyl” written by Michael Putney. In the article Putney related events culminating in the bankruptcy of David Balter’s company, Pac Craft Corporation, and its subsequent takeover following a failed attempted reorganization to avoid declaring bankruptcy. Put-ney described Balter’s struggle to retain control and reported the million dollar awards Balter obtained in lawsuits against individuals he believed to have defeated the reorganization. The article referred to an unsuccessful malpractice action by Balter against his attorney, Robert Frank, in which the jury returned a verdict in Frank’s favor. Despite the jury verdict exonerating Frank of malpractice, the Herald article attributed Balter’s failure to obtain a necessary loan to Frank’s conduct as Balter’s attorney, stating:

When the creditors’ committee accepted Balter’s plan, he was given until 5 p.m. on Aug. 6, 1969 to submit the $43,-000 which was his part of the plan....
Balter missed the deadline because his attorney, Frank, failed to draw up the necessary loan document before the close of the business day. Frank also failed to get the clerk of the court’s seal on it so that when Balter finally arrived at the [Hialeah bank] on the evening of Aug. 6, a bank officer who had verbally agreed to loan Balter as much as $50,000 refused to go through with the deal. By the time Balter had obtained the clerk’s seal the next day, Wolf had retrieved his $100,000 check and the bank refused again to make the loan, (emphasis added)

When The Herald refused to retráct the statements, Frank instituted a libel action and was awarded damages.

In seeking reversal The Miami Herald first contends that the verdict rests upon insufficient evidence that the statements relating to Frank constituted libel. Two well-settled principles of review govern our disposition of this cause:

First, it is not the function of an appellate court to reevaluate the evidence and substitute its judgment for that of the jury_ Second, if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the District Court’s opinion as to its appropriateness.

Helman v. Seaboard Coast Line Ry., 349 So.2d 1187, 1189 (Fla.1977).

We find no merit in appellant’s contention. Our review of the record reveals the presence of substantial competent evidence from which the jury could have concluded that the statements pertaining to Frank were false and that their publication established the requisite degree of negligence on the part of The Herald. Tribune Co. v. Levin, 426 So.2d 45 (Fla. 2d DCA 1982); Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982). The record contains evidence that the loan was denied for reasons unrelated to Frank’s actions and that Frank was not contacted by Put-ney for confirmation prior to the appearance of the article. Controlling legal principles preclude us from disturbing the jury’s determination. Helman; Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Estate of Cohen v. Holland, 370 So.2d 40 (Fla. 3d DCA 1979).

The Herald also asserts that the statements are substantially true and are therefore not libelous even if partially inaccurate. It maintains that because it announced the verdict in Frank’s favor, it was not subject to liability for the offending statements. We disagree. Ane.

Finally, we find no legal support in appellant’s assertions that the court erred in instructing the jury with regard to the effect of the verdict in the Balter malpractice action against Frank; that the court erred in refusing to allow the jurors from the Balter trial to explain their verdict; or that the trial court erroneously admitted the testimony of Frank’s journalism expert.

Finding ample support for the jury’s verdict, we affirm.

JORGENSON, Judge,

dissenting.

Because I disagree with the majority’s finding of no error by the trial court in allowing into evidence and instructing the jury on the effect of the verdict in the prior malpractice suit brought by Balter against Frank, I respectfully dissent.

The instruction given to the jury immediately following the opening statements of counsel was:

It is undisputed that in a former case a Mr. David Balter sued Robert R. Frank, the Plaintiff in this case, for legal malpractice.
In that case, the jury returned a verdict finding Mr. Frank not guilty of legal malpractice.
You are advised that such a verdict in and of itself does not mean that the statement is [sic] in the article on which this case is based are necessarily false. However, you may consider the verdict, in that case, along with the other evidence in this case in arriving at your verdict in this case.
I will give you further jury instructions after all of the testimony is in by both parties. [Emphasis added.]

The Herald maintained before and throughout the trial, and I agree, that the general verdict in the prior malpractice action is not relevant to or probative of the alleged falsity of the statements published elsewhere in the Herald article. That general malpractice verdict is probative only of the fact that that jury entered a verdict for the defendant, Frank, on the issue charged, to wit, “whether Robert Frank was negligent in the performance of his contractual relationship with David Balter and [whether] such negligence was a legal cause of damage to David Balter,” a fact that was reported in the Herald article and is not here at issue and, therefore, is not relevant.

The prior verdict is not relevant to prove or disprove whether Frank failed to “draw up the necessary loan document” or “failed to get the clerk of court’s seal on it.” Attempting to specify what Balter failed to prove in his malpractice claim is sheer speculation. See State of Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822 (1884); Dixie Farms, Inc. v. Hertz Corp., 343 So.2d 633 (Fla. 3d DCA 1977). The prior verdict does not meet the relevance test of “evidence tending to prove or disprove a material fact,” § 90.401, Fla.Stat. (1981). “The chief object in introducing evidence is to secure a rational ascertainment of facts; therefore, facts should not be submitted to the jury, unless they are logically relevant to the issues.” Atlantic Coast Line Railway v. Campbell, 104 Fla. 274, 282-83, 139 So. 886, 890 (1932).

Further, the doctrines of res judicata and collateral estoppel may not be employed by Frank to bind the Herald to the prior judgment between Balter and Frank. See McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323 (1935). The prior verdict between a third party and one of the parties to the present action should not in any way determine the rights of a party not affected by a judgment rendered on that verdict. The rights of the parties in the present action “are to be determined as though the [prior] judgment had never been rendered. This is true even though the two suits arose out of the same transaction and involve the same issues and evidence,” Pennsylvania Insurance Co. v. Miami National Bank, 241 So.2d 861, 864 (Fla. 3d DCA 1970).

The proper test in determining whether a specific jury instruction is erroneous is whether, considering all other instructions given, the pleadings and the evidence in the case, the charge as a whole adequately presents the law upon the issues. Yacker v. Teitch, 330 So.2d 828 (Fla. 3d DCA 1976). See Llompart v. Lavecchia, 374 So.2d 77 (Fla. 3d DCA 1979), cert. denied mem., 385 So.2d 758 (Fla.1980).

Because the prior verdict in the malpractice action between Balter and Frank is devoid of relevant or probative value to any issues in this libel action, allowing the prior verdict into evidence and instructing the jury that they may consider the prior verdict misled and confused the jury.

I would, therefore, reverse and remand for a new trial.

      . The article was published in the Tropic Magazine section of the May 21, 1978 edition of The Miami Herald.

      . Balter v. Frank, 386 So.2d 1227 (Fla. 3d DCA 1980).

      . There is little support in the record for the position espoused by the dissent: (1) the prior malpractice verdict was admitted into evidence during the trial without objection by either of the parties; (2) the Miami Herald requested the court to instruct the jury that the prior verdict “does not mean that the statements in the article upon which this suit is based are false." The court refused to give this instruction and in its place charged the jury with the more neutral instruction that the Balter verdict did not necessarily mean that the statements were false and that they might consider the verdict along with all the other evidence in the case; (3) although the record reflects that the Miami Herald preserved its objection to the jury charge concerning the verdict in the malpractice case, that instruction, even if somewhat unclear, did not rise to the level of reversible error when considered in the context of "all the other instructions given, and the pleadings and evidence in the case.” Yacker v. Teitch, 330 So.2d 828, 830 (Fla. 3d DCA 1976).

      . However, I also fully agree with the majority that there is no merit to the Herald’s assertion that the trial court erred in refusing to allow jurors from the malpractice trial to testify in explanation of the verdict reached in that case. See State v. Ramirez, 73 So.2d 218 (Fla.1954).