author: DELL, Judge. HERSEY, Judge,

text:
    Armand CUOZZO, Appellant/Cross Appellee, v. RONAN & KUNZL, INC., Appellee/Cross Appellant, and Piggly Wiggly Delray Beach, Inc., Travelers Insurance Company, and Pittsburgh Plate Glass Company, Appellees.
    No. 83-1058.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      Barbara J. Compiani of Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Den-ney & Searcy, P.A., West Palm Beach, for appellant/cross appellee.
    David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for ap-pellee/cross appellant, Ronan & Kunzl, Inc.
    Jane Kreusler-Walsh and Larry Klein and Peterson & Fogarty, West Palm Beach, for appellees, Piggly Wiggly and Travelers Ins. Co.
    Frank G. Cibula, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellee, Pittsburgh Plate Glass Co.
   DELL, Judge.

Armand Cuozzo appeals from an order denying his motion for new trial or additur.

Appellant suffered personal injuries when an electronically controlled entry door in Piggly Wiggly’s store struck him. Appellant brought suit against appellees Piggly Wiggly Delray Beach, Inc., Travelers Insurance Company, Ronan & Kunzl, Inc., and Pittsburgh Plate Glass Company. Each appellee alleged comparative negligence as an affirmative defense. Appellant presented the only evidence relating to the manner in which he approached and entered the door. The jury found Piggly Wiggly guilty of negligence and found appellant had contributed to his injuries to the extent of 35%. The jury found no negligence on the part of Ronan & Kunzl, Inc., or Pittsburgh Plate Glass Company.

Appellant raises four points on appeal. He contends the trial court erred when it denied his motion for directed verdict on comparative negligence, denied his motion for new trial of additur, in prohibiting appellant from commenting on the defendant’s failure to call an independent medical expert and in entering cost judgments against appellant for Ronan & Kunzl and Pittsburgh Plate Glass Company. Appel-lees Ronan & Kunzl filed a notice of cross appeal but have not presented any argument.

We agree with appellant’s contention that the trial court erred when it denied a directed verdict on the issue of comparative negligence. Having alleged comparative negligence, an affirmative defense, appellees bore the burden of proof. Hough v. Menses, 95 So.2d 410 (Fla.1957). Where no evidence exists tending to prove comparative negligence, the issue should not be submitted to the jury. Borenstein v. Raskin, 401 So.2d 884 (Fla.. 3d DCA 1981). Appellant’s testimony showed that he approached and entered the door in a manner consistent with its proper use. Ap-pellees failed to introduce any evidence to rebut appellant’s testimony or to establish that he failed to exercise reasonable care when he entered the door. Therefore we hold that the trial court erred when it instructed the jury on comparative negligence and when it reduced the amount of the plaintiff’s judgment from $80,000 to $52,000.

Appellant also argues that he should receive either a new trial or additur, because the jury’s award failed to cover his out-of-pocket expenses and was, therefore, shockingly low. We disagree. Appellant proved that he incurred $32,275 in medical bills, lost $13,500 salary, and estimated future medical bills at $24,000 and future salary loss at $13,500, for a total of $84,000 damages. The jury awarded $80,000. However, the jury had before it not only appellant’s proof of damages, but also evidence tending to prove that much of these damages, particularly those for psychiatric care, was attributable to pre-existing conditions. Appellees also adduced testimony that appellant, in the past, had exaggerated his symptoms. We cannot say that the jury, whose function is to weigh conflicting evidence, returned a verdict unsupported by the evidence.

We find no error in the trial court’s refusal to permit appellant’s counsel to comment on appellees’ failure to call an independent medical expert. The record demonstrates that appellant failed to testify that he had been examined at appellees insistance, or otherwise introduce evidence necessary as a predicate to such an argument.

We find no merit in appellant’s remaining point on appeal. We dismiss Ronan & Kunzl, Inc.’s cross appeal for its failure to submit argument in support thereof.

Accordingly, we reverse that part of the final judgment awarding damages in the amount of $52,000, remand this cause to the trial court with instructions to enter judgment in favor of appellant in the amount of $80,000 and affirm the final judgment in all other respects, including the costs awarded to appellees Ronan & Kunzl, Inc., and Pittsburgh Plate Glass Company.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

GLICKSTEIN, J., concurs.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

I would affirm. The jury did not inappropriately attribute negligence to Cuozzo which was at least a substantially contributing cause of his alleged injury. Cuozzo’s credibility was very much an issue. To avoid cluttering up the law books with recitals of testimony ad nauseum, particularly in dissent, the following summary shall suffice with apologies to offended parties.

Cuozzo testified that Harrison, assistant manager of the Piggly Wiggly store, upon being apprised by Cuozzo of his encounter with the swinging door, stated he was surprised more people had not been hurt by the doors which were supposed to be fixed but hadn’t been. Harrison’s deposition, read to the jury and purporting to consist of the entire conversation between Cuozzo and Harrison on the night in question contained no such reference to a malfunction. In fact, Harrison said the door had been working before the incident, he personally then checked it out for 30 minutes and it worked fine; he continued to watch the door for the remainder of the evening and it never failed to operate properly. The jury was entitled to consider that Harrison, a mere employee, had nothing to gain by fabricating testimony; Cuozzo, on the other hand, was obviously financially interested in the outcome.

Additionally, Cuozzo’s testimony was inconsistent and contradictory. He walked up to and through the door at an average pace; he was a quick moving person and approached the door at a fast pace. The door swung completely open; the door moved to a partly open position. Cuozzo was pinned by the door for about a minute; he was pinned against something, perhaps the railing, for three minutes and only broke free by superhuman exertions. Expert testimony (and, one supposes, the experience and common sense that a juror having been exposed to automatic doors for 20 or 30 years brings to the jury room with him) was to the effect that if one were to proceed too slowly through the door, stepping on the threshold, the door might close on him. If this is true, does it not follow that a reasonably prudent man does not linger in automatic doors?

It is not within the province of the trial judge to weigh evidence or determine questions of credibility, and where there is the possibility of different conclusions or inferences from the evidence, the judge should submit the issue to the jury. Ranger v. Avis Rent-a-Car System, 336 So.2d 467 (Fla. 3d DCA 1976).

While it is true in the instant case that there were no witnesses to Cuozzo’s passage through the doorway and thus no direct evidence contradicting his testimony, the fact that his own negligence contributed to his injury “may be proved, like any fact, by circumstantial evidence.” Montgomery v. Florida Jitney Jungle Stores, 281 So.2d 302 (Fla.1973) (citing Jenkins v. Brackin, 171 So.2d 589 (Fla. 2d DCA 1965)).


source: Caselaw Access Project

author: HURLEY, Judge. DELL, Judge,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Robert A. GAROFALO, Appellee.
    No. 83-1146.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   HURLEY, Judge.

The State appeals from an order dismissing an information. We reverse on the authority of Rubin v. State, 390 So.2d 322 (Fla.1980).

In 1978 the state filed an information charging the defendant with grand theft by fraud. This information was labeled “78-3887 CF.” American Totalizer Company was listed as the victim of the fraud. In 1983 the state filed a second information against the defendant. The second information contained identical allegations as those set forth in the first except that the second information named Gulfstream Park Racing Association as the victim of the fraud. The state labeled the new information with the notation “refile case number 78-3887 CF.” Shortly after filing the second information the state dismissed case number 78-3887 CF. Appellee pled not guilty to the second information and filed a motion to dismiss, asserting that the statute of limitations, Section 775.15(2)(b), Florida Statutes (1983), barred prosecution for the crime charged. The trial court found that the second information named an entirely different victim from that asserted in the original information and granted the defendant’s motion to dismiss.

In Rubin, supra, the defendant was first charged with grand larceny by information assigned Case No. 77-4257. The State later filed another information containing the notation “Refile of Case No. 77-4257,” charging in almost identical language the same crimes as were charged in the original information. The only change in the second information was the modification of the corporate victim’s name from Riverside Memorial Chapel, Inc., a subsidiary of Service Corporation International to Riverside Memorial Chapel, Alton Road, Inc., a Subsidiary of Service Corporation International. The Supreme Court in Rubin held that the second information was not barred by the statute of limitations because the language “Refile of Case No. 77-4257” contained on the second information was sufficient to link it to the first information so as to evidence a continuation of the same prosecution. In so holding, it observed that the second information did not change the crime, but only corrected a minor inaccuracy in the victim corporation’s title.

We reach a like result in the instant case because the second information was based on the same incident giving rise to the original information and did not change the crime charged. We recognize that this case differs from Rubin in that the second information names a different victim, as opposed to merely correcting an inaccuracy in the title of the originally named victim, but we do not believe this is a significant distinction.

The sole purpose of a statute of limitations in the criminal context is to prevent the State from hampering defense preparation by delaying prosecution until a point in time when its evidence is stale and defense witnesses have died, disappeared or otherwise become unavailable. See State v. Hickman, 189 So.2d 254 (Fla. 2d DCA 1966). Since one who has been squarely put on notice of criminal activities with which he is charged is in a position to begin preparation of a defense on those charges, courts have traditionally held that a valid indictment tolls the statute of limitations, and that return of a superceding indictment prior to the dismissal of the original indictment does not violate the statute of limitations if the superceding indictment does not substantially alter the charge. See United States v. Friedman, 649 F.2d 199 (3d Cir.1981); United States v. Grady, 544 F.2d 598 (2d Cir.1976); United States v. Wilsey, 458 F.2d 11 (9th Cir. 1972) (changing alleged date of offense); see also Rubin, supra; DiStefano v. Langston, 274 So.2d 533 (Fla.1973); Domberg v. State, 443 So.2d 119 (Fla. 1st DCA 1983); Harris v. State, 229 So.2d 670 (Fla. 3d DCA 1969), cert. denied 237 So.2d 752 (Fla. 1970); State v. Adjmi, 170 So.2d 340 (Fla. 3d DCA 1964).

In this case, we do not believe that the substitution of the name of the true victim in the second information amounts to such a substantial alteration, and, therefore, conclude that the limitation period was tolled by the filing of the original information. The defendant was put on notice within the statutory time period as to the criminal activity with which he was charged, and the superceding information did not make any substantive changes which would unreasonably prejudice the preparation of his defense. Cf. United States v. Drucker, 453 F.Supp. 741 (S.D.N.Y.1978), aff'd, 591 F.2d 1332 (2d Cir.1978), cert. denied, 440 U.S. 963, 99 S.Ct. 1510, 59 L.Ed.2d 778 (1979); United States v. Kelley, 478 F.Supp. 514 (E.D.Mo.1979) (statute tolled by original indictment where su-perceding indictment added facts to cure jurisdictional deficiency and slightly changed description of buildings affected by extortion scheme); Palmer v. State, 4 Tenn.Crim.App. 629, 475 S.W.2d 189 (1971) (superceding indictment corrected misspelling of victim’s name); Ex parte Davis, 13 Cal.App.2d 109, 56 P.2d 302 (1936) (changing dates of alleged offenses).

Accordingly, we reverse the order of dismissal and remand this cause for trial.

REVERSED AND REMANDED.

DOWNEY, J. concurs.

DELL, J., dissents with opinion.

DELL, Judge,

dissenting.

I respectfully dissent.

The Rubin court deemed the notation “Refile of Case No. 77-4257” on the second information a sufficient link with the first information to construe it as a continuation of the same prosecution. However, in Rubin the second information did not name a different victim but rather only made a technical correction of the corporate name of the same victim identified in the original information.

In my opinion, where a second information names an entirely different victim, it charges a different crime. If the state had tried this case on the first information and the jury had exonerated the defendant within the applicable statute of limitations, double jeopardy would not have prevented the state from prosecuting the crime charged in the second information. Le Rea v. Cochran, 115 So.2d 545 (Fla.1959), cert. den. 362 U.S. 946, 80 S.Ct. 867, 4 L.Ed.2d 865; T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978). Therefore, I do not believe that the supreme court intended the mere notation “refile” to constitute a continuation of the prior case if the new information names an entirely different victim. I would affirm the order of dismissal.


author: PER CURIAM.

text:
    William MARKHAM, as Broward County Property Appraiser, Appellant, v. Edward S. CORLETT, III, Trustee and Ken Powell, Appellees.
    No. 83-1592.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.
    R. Hugh Lumpkin of Keith, Mack, Lewis & Allison, Miami, for appellees.
   PER CURIAM.

This action contesting a tax assessment is barred by the provisions of Section 194.-171(3), (5) and (6), Florida Statutes (1983). The taxes in question were not paid before they became delinquent. The judgment on appeal is reversed upon authority of Reid v. Lucom, 349 So.2d 661 (Fla. 4th DCA 1977), cert. den. 358 So.2d 132 (Fla.1978), cert. den. 439 U.S. 860, 99 S.Ct. 180, 58 L.Ed.2d 169 (1978). See, also, Cowart v. Perkins, 445 So.2d 654 (Fla. 2d DCA 1984); Millstream Corporation v. Dade County, 340 So.2d 1276 (Fla. 3d DCA 1977).

Reversed and Remanded.

LETTS, HERSEY and WALDEN, JJ., concur.


author: GLICKSTEIN, Judge. WALDEN, Judge,

text:
    Lucille KOHLER and Robert Kohler, Appellants, v. MEDLINE INDUSTRIES, INC., et al., Appellees.
    No. 83-2348.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Val L. Osinski of Law Offices of Val L. Osinski, Coral Springs, for appellants.
    Kathleen M. Williams and Michael J. Murphy of Fowler White Burnett Hurley Banick & Strickroot, Miami, for appellees.
   GLICKSTEIN, Judge.

Briefly stated, this is a case in which a trained nurse’s aide knew that she should close a urine bag and simply neglected to do so with the inevitable result that its contents spilled onto the floor. Another nurse slipped in the resulting puddle and fell. Her ensuing suit named the manufacturer of the bag, claiming negligence and strict liability in its design.

The trial judge took the bull by the horns and granted summary final judgment in favor of the manufacturer of the urine bag. We see no reason for attempting to make the judgments for which the trial judge is paid. Accordingly, we affirm. As we view our role, we are not to act as a second tier of trial judges and reverse because we may have done things differently.

It is, in the eyes of the majority, easy to see how a trial judge could reasonably conclude that the design of the urine bag was not the cause of the accident and that the forgetfulness of the nurse’s aide was the sole cause. Were we to eliminate from trial judges their right to control their cases by making reasonable decisions in the granting of summary judgments and direction of verdicts, we should lower their salaries and raise our own while relabeling our functions here.

We perceive no difference in this case and that of the forgetful pilot owner who neglected to check a control before take-off in Kroon v. Beech Aircraft Corporation, 628 F.2d 891 (5th Cir.1980), in which the appellate court affirmed the trial court’s entry of summary judgment against the pilot owner in favor of the manufacturer. There, too, one judge disagreed with the majority’s collective value judgments. The language of the majority opinion could easily apply to the present case because of the expert evidence in the present case that there could have been a different design. We can even assume that a multilingual warning could have been printed on the bag to remind the negligent party here to close the bag. The court discarded similar speculation in Kroon, saying:

Specifically, Kroon suggests that the failure to design the gust lock system in a fashion that rendered the plane entirely inoperable when the controls were locked was negligence, a breach of implied and express warranties of fitness and merchantability, or a design defect making Beech answerable in strict liability. The Florida Supreme Court has indicated that to recover on any of these theories, a plaintiff must show that the defendant’s conduct was a proximate cause of the plaintiff’s injury. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). Based on the undisputed facts, we agree with the district court in this case that, as a matter of law, Kroon’s conduct was the sole proximate cause of the accident. Kroon argues that the question of proximate cause should have been left to the jury. Although in Florida the determination of proximate cause is normally left to the jury, a summary judgment on the ground that plaintiff’s conduct was the sole proximate cause of an injury is appropriate when reasonable jurors could only so conclude. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187, 1189, 1190 (Fla.1977). The Florida Supreme Court cited Kwoka v. Campbell, 296 So.2d 629, 631 (Fla. 3d Dist.Ct.App.1974), in support of that proposition, where the court held that “[t]he question of proximate cause is one for the court where there is an active and efficient intervening cause.” The Kwoka court noted that a rule reserving to the jury all such determinations would mean that “every allegation of a breach of duty no matter how remote from an injury would result in a jury trial.” Id.
To be sure, the gust lock system could have been designed differently, and had it been designed so that the aircraft could not be moved with the lock engaged, this accident could not have happened. In this sense, the design of the lock system was a cause of the accident. On the facts of this case, however, the design was not a proximate cause of the accident. The district court aptly analogized the circumstances of this accident to a situation in which a pilot takes off with only a gallon of fuel in his tanks. Such accidents can and do happen; and no doubt an airplane could be designed to make such an accident impossible. It would, however, strain reason to suggest that the failure to make the aircraft foolproof in that detail proximately causes the resulting disaster if an experienced pilot familiar with the particular aircraft were to take off without checking to see if he had sufficient fuel. In Matthews v. Williford, 318 So.2d 480, 481 (Fla. 2d Dist.Ct.App.1975), the Florida Second District Court of Appeals said:
The law is well-settled in this state that a remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.
On this • occasion, Kroon was careless, and his carelessness was the only legal cause of the accident. If there was any fault in the design of the gust lock system, it was clearly no more than a remote condition that furnished Kroon with the opportunity to be careless. See, e.g., Alves v. Adler Built Indus. Inc., 366 So.2d 802 (Fla. 3d Dist.Ct.App.1979) (without deciding question of defendants’ negligence, court affirmed summary judgment in favor of defendants based on holding that decedent’s conduct, not defendants’, was proximate cause of injury); Watson v. Lucerne Machinery & Equip., Inc., 347 So.2d 459, 461 & n. 2 (Fla. 2d Dist.Ct.App.1977), cited with approval in Auburn Mach. Works Co. v. Jones, 366 So.2d 1167, 1172 n. 3 (Fla. 1979) (without deciding whether defendant’s machine was defective, court affirmed summary judgment in favor of defendant on ground that plaintiff's conduct was sole cause of plaintiffs injury).

Id. at 893-94. This case is but a demonstration of human failing, and attempting to compensate therefor would be as futile as an attempt to reverse the seasons. McClellan’s tardiness and Burnside’s clumsiness at Antietam enabled Lee to hold. Redesign of the urine bag would have been no more relevant to the mental lapse of the nurse’s aide here than improving those leaders’ curriculum at West Point would have been to the outcome of that battle.

HERSEY, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

In my opinion a summary judgment disposition of this case in favor of the defendant manufacturer was inappropriate. It should be reversed.

Regardless of the negligence of the nurse’s aide in forgetting to close the opening clip in the urine drainage bag after she had emptied it, there still remained issues for jury determination.

Was the intervening act of the nurse’s aide in forgetting to close the bag foreseeable by the manufacturer in light of its failure to furnish labels and instructions as to the bag’s operation (it furnished labels and instructions for other urinary bags it marketed) and in light of the bag’s peculiar design? If it was foreseeable, then the manufacturer will not be relieved of liability by the intervening act. In sum, the issue is proximate cause. Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA 1981); Moyer v. Martin Marietta Corp., 481 F.2d 585 (5th Cir.1973); and Auburn Machine Works, Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979).

In light of the law and inferences to be gleaned from the record, I suggest that the issue as to manufacturer’s liability is a jury question.

I would reverse and remand.


author: GLICKSTEIN, Judge.

text:
    The BOARD OF TRUSTEES, TOWN OF PALM BEACH EMPLOYEES RETIREMENT SYSTEM, Appellant, v. James F. CONNOR, Appellee.
    No. 83-2390.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      Maureen A. Hackett and John C. Randolph of Johnson, Sasser, Randolph & Weaver, West Palm Beach, and John A. DeVault, III, and Timothy J. Corrigan of Bedell, Dittmar, DeVault, Pillans & Gentry, Jacksonville, for appellant.
    James R. Merola, of Levy, Shapiro, Kneen & Kingcade, P.A., Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment in favor of the plaintiff pursuant to a jury verdict which found that the plaintiff became totally disabled for duty as a municipal police officer by reason of a personal injury or disease occurring as a natural and proximate result of causes arising out of and in the course of his employment by the town. We affirm.

This is the second occasion for our review of the proceedings; and we feel that the matter has been handled by the trial court in a manner consistent with everything we said in Connor v. Town of Palm Beach, 398 So.2d 952 (Fla. 4th DCA 1981). All of the defects in appellant’s proceedings which were recited in our earlier opinion entitled appellee to a de novo consideration of the issue ultimately determined by the jury pursuant to section 86.071, Florida Statutes (1983). That meant a full exploration of the facts alleged in the complaint, not just a narrow review to determine the existence of arbitrariness on the part of the Board. See Bloomfield v. Mayo, 119 So.2d 417, 423 (Fla. 1st DCA 1960).

There is no question in our minds about the right of appellee, a municipal police officer, to the statutory presumption contained in section 185.34, Florida Statutes (1983).

Any condition or impairment of health of any and all police officers employed in the state caused by tuberculosis, hypertension, heart disease, or hardening of the arteries, resulting in total or partial disability or death, shall be presumed to be accidental and suffered in line of duty unless the contrary be shown by competent evidence.

See City of Coral Gables v. Brasher, 120 So.2d 5 (Fla.1960).

We are equally confident that the trial court properly instructed the jury upon the foregoing presumption, which was non-vanishing and affected the burden of proof. See Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438 (Fla.1979).

DOWNEY, J„ and GUNTHER, BOBBY, Associate Judge, concur.


author: JOANOS, Judge.

text:
    C.A. MEYER PAVING & CONSTRUCTION and Travelers Insurance Company, Appellants, v. Billy Lee McFALLS (Deceased) by Surviving Widow, Delores McFALLS, Appellee.
    No. AT-215.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1984.
    Robert G. Brightman, Orlando, for appellants.
    Dennis J. Hightower of Whitaker & Koepke, Orlando, for appellee.
   JOANOS, Judge.

C.A. Meyer Paving and Construction (Meyer) and The Travelers Insurance Company (Travelers) appeal the deputy commissioner’s determination that the results of a blood alcohol test were privileged under section 316.066(4), Florida Statutes, therefore, there was no lawful evidence that Billy Lee McFalls, the deceased employee, had a blood alcohol level of .10% or greater, and that had there been evidence of blood alcohol level in excess of .10%, there was sufficient competent evidence to rebut the presumption of section 440.09(3), Florida Statutes. We reverse.

Billy Lee McFalls died in a single vehicle, single occupant accident in the course and scope of his employment with Meyer on February 2, 1981. McFalls was returning to Orlando from Dade City, where he picked up equipment parts, when the crash occurred. Officer Heath, Winter Garden Police Officer, conducted a criminal investigation, looking for the cause of the occurrence. Officer Nash, also a Winter Garden police officer, investigated the accident and prepared a Florida Traffic Accident Report dated the same date of the accident. Officer Heath testified that he requested an autopsy, the results to be used in the preparation of his report. An autopsy was performed the following day, with blood alcohol test results showing McFalls having a .196% blood alcohol level at the time of death. Dr. Gore, medical examiner, performed the autopsy. He testified that autopsies are routinely performed by the medical examiner’s office to determine the cause of death in all cases of unnatural death. Dr. Gore stated that standard medical practice required the victim’s blood, bile and urine be saved for blood alcohol estimation and detection of certain drugs. He also stated that the autopsy report is routinely provided to the investigating agency and that, although police officers could not recommend that certain tests be performed, the medical examiner’s office tried to accommodate them as much as possible. Testimonies reflected that McFalls showed no signs of alcohol consumption prior to his leaving for Dade City. Lester DuPont, equipment supervisor for Meyer, testified that he contacted the business where McFalls picked up the parts and talked to an unidentified man who related that McFalls seemed to be all right when the parts were loaded. No beer cans, liquor bottles or receipts were present in the vehicle.

Following the accident, death benefits were timely paid to McFalls’s widow, until May 10, 1982 when Meyer and Travelers controverted the claim based upon excessive blood alcohol content under section 440.09(3), Florida Statutes (1979). The deputy commissioner accepted McFalls’s widow’s argument that the accident report privilege of section 316.066(4), Florida Statutes, applied. The deputy commissioner, therefore, found there was no lawful evidence of intoxication. The deputy commissioner further found that even if there were evidence of blood alcohol in excess of .10%, sufficient competent evidence rebutted the presumption of section 440.09(3), Florida Statutes. The deputy commissioner cited evidence of McFalls’s proximity to his employer prior to this departure, showing no signs of intoxication or alcohol consumption; McFalls’s sobriety at the time he picked up the parts; the travel and delivery time showing no deviance from his employer’s instructions; the absence of alcoholic beverage containers or receipts in the vehicle; and the insufficient amount of time McFalls would have had to have consumed sufficient alcohol to achieve .196% blood alcohol content.

Section 316.066, Florida Statutes (1979), requires that the driver of a vehicle involved in an accident resulting in bodily harm forward a written report of the accident to the Department of Highway Safety and Motor Vehicles. The requirement is excused when an investigating officer makes a written report of the accident. Section 316.066(4) provides that “[a]ll accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting_ No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident ....” As recently held in Brackin v. Boles, 452 So.2d 540 (Fla.1984), the purpose of section 316.066(4) is to clothe with statutory immunity only such statements as the driver is compelled to make under section 316.066(1) and (2). The results of a blood alcohol test are not privileged, regardless of whether the taking of the test was directed by an investigating officer who prepared an accident report. Brackin, at 542.

Having found the blood alcohol test results admissible, the presumption of section 440.09 would preclude the award of benefits absent substantial evidence to the contrary. We cannot agree that there was substantial evidence to rebut the presumption of section 440.09(3). Co-workers’ testimonies that McFalls was not drinking on the morning of the accident and that no one smelled alcohol on his breath before he departed for Dade City do not account for the time of over two and one-half hours before the accident occurred. The evidence of McFalls’s condition at the time of the pick-up was no more than hearsay from an unidentified source. The absence of alcoholic beverage containers or receipts for such could just as easily be interpreted to mean that McFalls was conscious of the fact that he was driving his employer’s truck, not a place to leave evidence of one’s indiscretions on the job. Finally, there was no evidence of the amount of alcohol or the attendant time that would be required to reach a .196% blood alcohol content.

Accordingly, the deputy commissioner’s order is REVERSED.

SHIVERS and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    In the Interest of M.J.W. a child.
    No. AW-208.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1984.

      Jack M. Schemer, of Coxe, Schemer & Smith, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., James W. Sloan, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order entered in the circuit court for Duval County by which appellant’s minor child was permanently committed to the Department of Health and Rehabilitative Services (HRS) for subsequent adoption. We affirm.

Appellant is the natural mother of a 12-year old male child whose natural father is deceased. Between 1978 and 1982 the child at times resided with his mother in her custody, and at other times was placed in foster care/HRS custody as an adjudicated dependent upon a finding that he was “deprived of necessary food, clothing, shelter....” In 1982 HRS filed a Petition for Change of Custody alleging that appellant had knowingly allowed the child to associate, stay overnight, and spend weekends with a known child molester. A hearing was held at which the child’s dependency was reaffirmed and he was again placed in foster care. Appellant thereafter signed a performance agreement, at the request of HRS, by which she agreed to initiate counseling and participate in a parenting skills class, maintain suitable housing, and make application for participation in a remedial literacy program.

In May 1983 HRS filed a Petition for Permanent Commitment, alleging that appellant had failed to comply with the conditions of the performance agreement. Legal counsel was appointed, and appellant then filed a motion to dismiss asserting that she is indigent and was neither represented by counsel nor afforded an opportunity to obtain appointed counsel prior to executing the performance agreement; the motion argued that such lack of counsel offends due process of law. The trial court denied appellant’s motion, indicating that there is no absolute constitutional right to counsel prior to initiation of the permanent commitment proceeding, and noting that appellant had failed to identify any circumstances in the present case which require the appointment of counsel at an earlier time. The trial court did suggest that if appellant were coerced into signing the performance agreement, or did not understand the terms thereof, such matters might be presented as a defense in the permanent commitment proceeding.

A permanent commitment hearing was held, at which testimony was received from appellant, various HRS counselors, a psychologist and a therapist, and the minor child’s present foster parent. An HRS worker testified that immediately prior to the 1982 hearing she indicated to appellant that she would recommend that the child be placed in foster care, and she further advised appellant of a “right to legal counsel.” The HRS worker testified that appellant stated that she did not want the services of an attorney.

Another HRS counselor who prepared the performance agreement testified that since appellant was unable to read the document she suggested the possibility of having a relative assist appellant. Appellant declined such assistance, and the counselor testified that she personally explained the various conditions and requirements which the agreement imposed, and the consequences of failing to comply therewith. Appellant testified in her own behalf and neither denied that she failed to perform in accordance with the agreement nor asserted that she did not understand the requirements of the document. Rather, appellant promised to comply in the future and explained that she has been hampered by emotional problems, illnesses, and lack of transportation. Several witnesses expressed their opinions that the minor child’s best interests would be served by permanent severance of appellant’s parental rights.

The court entered an order finding that appellant understood the contents of the performance agreement yet failed to comply therewith, and would in the future likewise fail to so comply. The court found that appellant is unable to meet the child’s needs for love and emotional support, and that the child’s emotional well-being is dependent upon permanent placement and severance of appellant’s parental rights. The court determined that the execution of a performance agreement does not involve an absolute right to counsel, and that appellant had shown no circumstances requiring the appointment of counsel at that time in the present case. Finding permanent commitment and adoption to be in the best interests of the minor child, the court affirmed his dependency and ordered that he be permanently committed to HRS for subsequent adoption.

Appellant urges reversal on the grounds that: (1) the court erred in denying appellant’s motion to dismiss, which was predicated upon the absence of legal representation when appellant entered into the performance agreement; and that (2) the court erred in denying appellant’s request to call the child as a witness.

In Florida appointed legal counsel for indigents must be offered “in proceedings involving the permanent termination of parental rights.... ” In the Interest of D.B. and D.S., 385 So.2d 83 (Fla.1980). While non-compliance with a performance agreement might lead to the initiation of such a proceeding, execution of the performance agreement itself does not involve the permanent termination of parental rights, and should not in our opinion be considered such a proceeding as necessarily requires the appointment of legal counsel.

We note, however, that D.B. and D.S. also requires counsel when proceedings “may lead to criminal child abuse charges,” and the opinion further provides that in other instances there should be a case-by-case consideration as to whether the circumstances require legal representation. This approach is derived from Cleaver v. Wilcox, 499 F.2d 940 (9th Cir.1974), referenced in D.B. and D.S. and expressly adopted in Potvin v. Keller, 313 So.2d 703 (Fla.1975), which indicates that the criteria to be considered are:

(i) the potential length of parent-child separation, (ii) the degree of parental restrictions on visitation, (iii) the presence or absence of parental consent, (iv) the presence or absence of disputed facts, and (v) the complexity of the proceeding in terms of witnesses and documents....

In the present case the potential length of parent-child separation and the degree of parental restriction imposed by the performance agreement are substantial; however, there appear to be no disputed facts, appellant consented to the terms and execution of the performance agreement, and execution thereof was a straightforward matter with neither procedural nor substantive complexity. While appellant is essentially illiterate, we note that the terms of the agreement and the potential effect of non-compliance were clearly explained, and appellant does not assert any misunderstanding in this regard. In discussion with the HRS counselor appellant also communicated her decision that she did not need an attorney. Considering appellant’s consent to the performance agreement, the lack of complexity in relation thereto, and the absence of any disputed facts, we conclude that execution of the performance agreement in the present case does not require the provision of legal counsel, and the trial court therefore did not err by so ruling.

Although counsel requested at the hearing that the court inquire of the child “as to his desires,” upon the court’s refusal to do so counsel neither interposed any objection nor otherwise asserted that the court was required to hear such testimony. Any error in this regard has accordingly not been preserved for appellate review, since an appellate court ordinarily considers only such grounds or objections to the admission or exclusion of evidence as were specifically made in the trial court. See Tabasky v. Dreyfuss, 350 So.2d 520 (Fla. 3d DCA 1977).

Even were the issue preserved for review, appellant has failed to demonstrate error. While the child’s wishes may be a relevant consideration in cases involving termination of parental rights, they are not the controlling factor. See Bruggisser v. Bruggisser, 244 So.2d 518 (Fla. 3d DCA 1970). And the determination of whether to call the child as a witness in this regard is a matter within the trial court’s discretion. Cf., Dings v. Dings, 161 So.2d 227 (Fla. 2d DCA 1964). In the present case the trial court indicated that it had heard information from other witnesses, and that it would not be “fair to put [the child] on the spot.” It would appear that even had the child testified the court’s ultimate decision would have been unchanged, and we conclude that the court did not abuse its discretion by declining to question the child.

Affirmed.

ERVIN, C.J., and BOOTH, J., concur.


author: MILLS, Judge.

text:
    Gary PLAIR, Appellant, v. STATE of Florida, Appellee.
    No. AW-236.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1984.
    Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Plair was tried by a jury and convicted of armed trespass and aggravated assault. The sole contention on appeal is that the trial court erred in denying defense counsel’s challenge to a juror for cause. We reverse.

Plair was accused of trespassing in the Jennings apartment of Wanda Cox and Judy Warner. He was also accused of assaulting Warner. Plair pleaded not guilty and requested a jury trial.

After all but one juror had been selected, and defense counsel had exercised all his peremptory challenges, prospective juror Grantham was questioned on voir dire. The following exchange took place between Grantham and the prosecutor:

By Mr. Page:
Is there anything that I haven’t asked you, that would make it difficult for you or uneasy for you to sit as a juror in this case, maybe something that you have heard here today, that I just not have gone through?
By the Juror:.
I know Wanda and Judy.
By Mr. Page:
Again, this is a small community, and people know each other, and the fact that you know Judy Warner and Wanda Cox, do you think, that you can base your verdict on the evidence what you hear from the witness stand, even though Wanda and Judy may testify here?
By the Juror:
It probably would be hard.
By Mr. Page:
Well, like you heard a minute ago, a lot of times, it’s hard to sit on a jury, the question is, would you find it impossible for you to be a fair and impartial to the State or to Mr. Plair?
By the Juror:
It would be impossible.

The following exchange took place between Grantham and defense counsel:

Have you heard or read anything about this case?
By the Juror:
Yes sir.
By Mr. Hedrick:
Was that in the Jasper Newspaper? By the Juror:
Yes, sir.
By Mr. Hedrick:
How long ago since you read those articles?
By the Juror:
I don’t know.
By Mr. Hedrick:
Do you remember what you read, without telling me, do you remember what you read?
By the Juror:
Yes, sir.
By Mr. Hedrick:
Have you formed any opinions about this case, based on what you read?
By the Juror:
Yes.
By Mr. Hedrick:
Now, without telling me what that opinion is, can you set that opinion aside and presume Gary Plair innocent and wait until you have heard all the evidence before you reach a final decision? By the Juror:
I don’t know, I can try.

Defense counsel challenged Grantham for cause. The trial court denied the challenge and Grantham sat as a member of the jury.

We recognize appellant has the burden of showing manifest error in the denial of a challenge for cause. Hawthorne v. State, 399 So.2d 1088 (Fla. 1st DCA 1981). That burden, however, may be overcome in a proper case. See Singer v. State, 109 So.2d 7 (Fla.1959); Leon v. State, 396 So.2d 203 (Fla. 3d DCA 1981).

Despite other statements made by Grant-ham on voir dire to the effect that she could be impartial, we think her statements quoted in this opinion raised a substantial doubt as to her ability to render an impartial verdict according to the evidence. The trial court erred in denying the challenge for cause.

Reversed and remanded for a new trial consistent with this opinion.

SHIVERS and WIGGINTON, JJ., concur.


text:
    James L. SAMPSON, Appellant, v. STATE of Florida, Appellee.
    No. AY-328.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1984.
    Michael E. Allen, Public Defender, and Andrew Thomas, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from an order revoking probation on the grounds of failure to pay costs of supervision and court costs. The trial court’s finding as to appellant’s ability to pay was ambiguous, and the record does not reveal evidence that appellant had ability to pay. On the contrary, the record shows that appellant was adjudicated insolvent prior to the probation revocation hearing and again for the purpose of appeal. This case is factually similar to that of Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978), in that regard, and pursuant to that case, we must reverse the order of revocation of probation and remand for a hearing as in Jones, supra:

At such hearing, the testimony should establish specifically the financial condition of appellant at the time the probation order was entered. Further, the financial condition of appellant at the present time should be examined. The court should make findings of fact concerning the aforementioned and should specifically determine whether appellant had ability to pay costs during the probationary period.

We also find merit in appellant’s contention that the trial court erred in failing to award credit for time previously served in the Nassau County jail as a condition of probation, Section 921.161(1), Florida Statutes; Calhoun v. State, 403 So.2d 1082 (Fla. 1st DCA 1981), and on remand the court shall determine the amount of time served in the county jail and allow that as credit against appellant’s sentence.

MILLS, BOOTH and BARFIELD, JJ., concur.


author: SHARP, Judge.

text:
    FORTUNE INSURANCE COMPANY, Appellant, v. Gunter P. OEHME, Appellee.
    No. 83-983.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Mark S. Walker of Robert E. Austin, Jr., P.A., Leesburg, for appellant.
    H. Terrell Griffin of Lawrence, Griffin & Landis, Orlando, for appellee.
   SHARP, Judge.

Fortune Insurance Company appeals from a final judgment, rendered after a non-jury trial, holding it liable to Gunther Oehme for $10,000.00 personal injury protection benefits and other costs pursuant to an automobile insurance policy issued to its insured, Mark Daigle. The sole issue at trial and on appeal is whether Oehme should be disqualified from coverage under the Florida Automobile Reparations Reform Act because at the time of the accident he owned an uninsured pickup truck. We affirm.

Oehme was injured on February 10, 1982, when he was walking along the side of a road and was hit by Daigle’s automobile. At that time Oehme owned a 1973 Chevrolet pickup truck which was not then covered by any insurance policy. His insurance policy on the truck was cancelled by the insurance company on September 25, 1981, due to Oehme’s failure to pay the premiums. Oehme was unaware of the exact date it was cancelled, or even that it was cancelled, at the time of the accident.

Oehme testified he stopped driving his truck in September or October of 1981. The clutch was broken and he had no money to pay for repairs. He also lost his drivers license approximately a month later because of a DWI charge. No one else in his household could drive. Because of these factors, Oehme parked the truck in his backyard and jacked-up the front wheels. There the truck remained for one year.

At the time of the accident, Oehme’s truck was licensed and registered. However, Oehme allowed both to lapse on his birthday in April of 1982, because the truck was not being driven. In June 1982, Oehme paid his insurance company $90.00 to reinstate his insurance policy. After Oehme had his license restored in October 1982, he repaired his truck for $130.00, and obtained a current license and registration for the truck. He testified that he had no intent to drive his truck until he got his license restored and could borrow enough money to fix the clutch.

The question in this case is whether Oehme’s truck, at the time of the accident, was a “motor vehicle with respect to which security is required under ss. 627.730— 627.741_” If so, Oehme would be barred from claiming personal injury protection coverage under Daigle’s insurance policy. Williams v. Leatherby Insurance Company, 338 So.2d 70 (Fla. 3d DCA 1976); Tapscott v. State Farm Mutual Automobile Insurance Company, 330 So.2d 475 (Fla. 1st DCA 1976).

In making such a determination, the Florida courts turn to the definitions of motor vehicle in Chapter 320 of the Florida Statutes (Motor Vehicle Licenses). Ward v. Florida Farm Bureau Casualty Insurance Company, 375 So.2d 898 (Fla. 1st DCA 1979); Sherman v. Reserve Insurance Company, 350 So.2d 349 (Fla. 4th DCA 1977). The Automobile Reparations Reform Act requires insurance in this context for “[ejvery owner or registrant of a motor vehicle required to be registered and licensed in this state_” § 627.733(1), Fla.Stat. (1981). Section 320.02(1), Florida Statutes (1981), in turn requires registration for motor vehicles “which shall be operated or driven upon the highways of the state, or which shall be maintained in this state_” Section 320.01(l)(a), Florida Statutes (1981), defines “motor vehicle” as “vehicles operated over the public streets and highways of this state and used as a means of transporting persons or property over the public streets and highways and propelled by power other than muscular power....”

The determination of whether a truck or car in a dilapidated or inoperable condition is a motor vehicle within the meaning of Chapter 320 is, in most cases, a question of fact where there is conflicting evidence or inferences. Bedgood v. Hartford Accident and Indemnity Company, 384 So.2d 1363 (Fla. 1st DCA 1980); Denmark v. Nationwide Mutual Fire Insurance Company, 384 So.2d 912 (Fla. 2d DCA 1980). Appellate courts cannot devise any bright line rules to apply in all cases. They can, however, outline general factors to be weighed and considered by the trier of fact.

We adopt Judge Ervin’s analysis of this issue in Bedgood. He listed as material considerations: the inoperability of the vehicle; the length of time the vehicle was inoperable before the accident; the extent of the inoperability of the vehicle; whether the vehicle was in storage before it was repaired; and the owner’s subjective intent to maintain the vehicle for use on the public streets. Other cases suggest as relevant considerations: whether the vehicle was currently registered and licensed at the time of the accident, and whether the insurance was allowed to lapse due to factors relating to the inoperability of the vehicle. No one of these factors should be controlling, nor is the list exclusive.

We think the evidence in this case supports the trial judge’s ruling that Oehme’s truck was not a motor vehicle required to be registered in Florida at the time of the accident, in spite of the presence in this case of some adverse factors. At the time of the accident Oehme’s truck was currently registered and licensed. Those were fortuitous circumstances in this case, however, because they were in effect when the truck became inoperable, and they were allowed to lapse at the next possible date on Oehme’s birthday. Although the clutch repair was relatively minor in terms of dollars and labor ($130.00) as automobile repairs go today, the sum was not minor to Oehme. He testified he did not have the cash to pay for the clutch repair until September of 1982. There was no evidence to refute this conclusion. Finally, although the insurance lapsed for reasons other than the inoperable condition of the truck, (i.e., Oehme’s inadvertence), that is consistent with Oehme’s intent to abandon the truck as a motor vehicle.

The strongest factors in this case showing abandonment of the truck as a vehicle were that Oehme withdrew it from operation on the public streets and put it in “storage” in his backyard for a substantial period of time. See Ward; Staley v. Florida Farm Bureau Mutual Insurance Company, 328 So.2d 241 (Fla. 1st DCA 1976). Further, Oehme testified that he had no intention of driving his truck or having it driven until his driver’s license was restored and the clutch was repaired. This evidence supports the trial judge’s conclusion that, at the time of the accident, Oehme had abandoned the use of the truck as a motor vehicle within the meaning of Chapter 320, and accordingly, the judgment appealed is

AFFIRMED.

COBB, C.J., and COWART, J., concur.

      . § 627.730-627.741, Fla.Stat. (1981).

      . § 627.736(4)(d)4.a„ Fla.Stat. (1981).

      . Malen v. American States Ins. Co., 376 So.2d 473 (Fla. 1st DCA 1979).

      . Tapscott v. State Farm Mut. Auto. Ins. Co., 330 So.2d 475 (Fla. 1st DCA 1976).


text:
    HALLMARK BUILDERS, INC., Appellant, v. Leigh LOUDIN, Appellee.
    No. 83-1094.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    T. Kevin Knight of Drage, deBeaubien, Milbrath & Simmons, Orlando, for appellant.
    Howard A. Speigel, Winter Park, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Peninsular Naval Stores Co. v. Cox, 57 Fla. 505, 49 So. 191 (1909).

COBB, C.J., and SHARP, J., concur.

FRANK D. UPCHURCH, Jr., J., dissents without opinion.


text:
    Vernon L. LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 84-3.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marge A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Carter v. State, 452 So.2d 953 (5th DCA 1984).

COBB, C.J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ„ concur.


author: COBB, Chief Judge.

text:
    DON MOWERY, INC., a Florida corporation, Petitioner, v. Dee HILL and Billy Keith, Respondents.
    No. 84-873.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    James W. Shuler and Charles L. Weiss-ing of Kass, Hodges & Massari, Tampa, for petitioner.
    W.T. Green, Crystal River, for respondents.
   COBB, Chief Judge.

The petitioner, Don Mowery, Inc., seeks certiorari review of a circuit court’s refusal to consider, on appeal from county court, an award of attorney fees under section 57.105, Florida Statutes (1983), on the basis that, as a matter of law, such an award by a trial court cannot be appealed. This erroneous determination constitutes a departure from essential requirements of law, and such is conceded by the respondents. See Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla.1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), review denied, 392 So.2d 1373 (Fla.1980).

We have reviewed the record of the county court proceedings, however, and conclude that its fee award should be sustained. Therefore, no prejudice resulted to petitioner from the circuit court’s error. See Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977). Accordingly, in the exercise of our discretion, we deny the petition for writ of certio-rari. See Combs v. State, 436 So.2d 93 (Fla.1983).

PETITION DENIED.

DAUKSCH and SHARP, JJ., concur.


author: RYDER, Chief Judge.

text:
    Marcia Sue BALLAH, Appellant, v. Glen Kurt POOLE, Appellee.
    No. 83-1174.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.
    E. Ronald Bradley of Ellis, Reynolds, Bradley & Lenderman, St. Petersburg, for appellant.
    No appearance for appellee.
   RYDER, Chief Judge.

Marcia Sue Ballah appeals from the trial court’s order modifying the parties’ 1981 Michigan divorce and custody decree. The Michigan decree awarded custody of the parties’ minor child to Ballah. The court below modified the order, awarding each parent custody of the child for alternate six-month periods until the child reaches six years of age. The court specified that it would review custody when the child attained six years of age.

The trial judge expressed his belief that section 61.13(2)(b)2, Florida Statutes (1983), applied to this case mandating equal shared responsibility unless it would be detrimental to the welfare of the child. The court determined that the child’s best interests would be served by equal shared responsibility and equal shared custody. We disagree that section 61.13, Florida Statutes (1983), applies and reverse and remand with instructions.

The relevant statutory provisions are as follows. Section 61.13(2)(b)2, Florida Statutes (1983), provides:

2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. If the ■court determines that shared parental responsibility would be detrimental to the child, the court may order sole parental responsibility.
a. “Shared parental responsibility” means that both parents retain full parental rights and responsibilities with respect to their child and requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interests of the child. When it appears to the court to be in the best interests of the child, the court may order or the parties may agree how any such responsibility will be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family and/or in the best interests of the child.

Section 61.13(3) lists factors which the trial court is to consider and evaluate in determining the best interests of the child for purposes of shared parental responsibility. Section 61.13(5) states the legislative intent that the provisions of section 61.13 are to be liberally construed. Finally, it is noted that the relevant statutory provisions apply to all proceedings under Chapter 61, Florida Statutes, pending on July 1, 1982, the effective date of the enacting law.

The Michigan divorce and custody decree was rendered in September 1981. In November 1982, Glen Kurt Poole, the former husband and the father of the minor child whose custody is at issue, filed in the circuit court the petition for permanent or temporary change of custody of the child from Ballah to himself. The trial court modified the Michigan decree in May 1983.

When the decision below was made, the highly regarded trial judge in this case did not have the benefit of our opinion in Iljazi v. Iljazi, 436 So.2d 326 (Fla. 2d DCA 1983). In Iljazi, the mother had obtained custody of the parties’ two minor children pursuant to a separation agreement; the marriage was dissolved in October 1980. In May 1982, the father petitioned the trial court for primary custody of the children. In September 1982, the trial court entered an order granting the father’s petition. The trial court noted that Chapter 61.13 grants shared parental responsibility if it is in the best interests of the children, and that unfitness of the parent is not the primary criterion.

We reversed the trial court’s decision in Iljazi finding that the “shared parental responsibility law alone is not a sufficient basis for ordering a change in the custody of children where the question has been litigated and determined in a prior proceeding.” 436 So.2d at 328. We further stated that “a material change in circumstances which, in the best interests of the child or children, requires a change of their custody from the parent previously awarded custody” must be found by the trial court before a prior custody order may be modified. Id.

We hold that Iljazi is controlling in the case now before us and reverse the decision below. See also Tallent v. Tallent, 440 So.2d 623 (Fla. 2d DCA 1983); Strickland v. Wedekind, 436 So.2d 250 (Fla. 5th DCA 1983); Frey v. Wagner, 433 So.2d 60 (Fla. 3d DCA 1983); Alonso v. Alonso, 432 So.2d 174 (Fla. 3d DCA 1983); and Malchiodi v. Malchiodi, 431 So.2d 301 (Fla. 3d DCA 1983). On remand, the trial court shall reconsider the evidence and determine whether a material change in circumstances has occurred which requires, in the best interests of the child, a change of custody.

REVERSED and REMANDED with instructions.

GRIMES and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    STATE of Florida, Petitioner, v. Jessie HAYNES, Respondent.
    No. 83-1255.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for petitioner.
    Charles D. Waller of Waller & Hersch, Dade City, for respondent.
   OTT, Judge.

The state appealed a pretrial order excluding hearsay statements of alleged co-conspirators. Such an order is not ap-pealable under rule 9.140(c), Florida Rules of Appellate Procedure. We treat the notice of appeal as a petition for writ of certiorari and grant it.

Respondent was charged with first degree murder; he was not charged with the crime of conspiracy. Respondent’s original trial ended in a mistrial. Thereafter, the state filed a motion in limine, seeking a pretrial ruling on the admissibility of hearsay statements made by alleged co-conspirators Pauline and Leroy Wilson.

In Boyd v. State, 389 So.2d 642, 644 (Fla. 2d DCA 1980), this court stated the general rule applicable to the case before us:

[W]hen a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by every one of them and may be proved against each. Brown v. State, 128 Fla. 762, 175 So. 515 (1937), clarified, 130 Fla. 479, 178 So. 153 (1938). Accordingly, a hearsay (out-of-court) statement of a defendant’s alleged co-conspirator is admissible against the defendant if the statement was made during the pendency of the conspiracy and in furtherance of its objectives, provided that there is evidence of the conspiracy independent of the hearsay testimony. The requirement of independent evidence is a condition of admissibility. Briklod v. State, 365 So.2d 1023 (Fla.1978); Resnick v. State, 287 So.2d 24 (Fla.1973).

We feel that the following testimony sufficiently established the conspiracy independent of the hearsay testimony. An attorney testified that the Wilsons had initiated proceedings to gain custody of their grandchild, the victim’s child. Horsman, an alleged co-conspirator, testified he and Respondent went to the Wilsons’ home, where Horsman suggested they plant drugs on the victim and then report her to law enforcement authorities. Horsman purchased the drugs with money Leroy Wilson gave him. Horsman and respondent then met Wilson, and the three drove to the victim’s house and left marijuana on her porch. The victim was not arrested as a result of this plan. Several days later Horsman and respondent went to the Wil-sons’ home and met again with Pauline and Leroy Wilson. Horsman left this meeting and waited outside for respondent. Respondent eventually came out and instructed Horsman to drive him to the victim’s home. Respondent was armed with a pistol. The victim was not at home. Hors-man asked respondent what he planned to do, and respondent replied, “Pauline wanted her killed.” When Horsman expressed his intent not to participate, respondent said he would take care of it himself.

Our supreme court has not adopted a test for the required quantum of independent proof of conspiracy. Briklod v. State, 365 So.2d 1023, 1026, n. 5 (Fla.1979). Likewise, this court has noted that this point is debatable. Boyd, 389 So.2d at 648.

The fourth district, in Saavedra v. State, 421 So.2d 725, 727 (Fla. 4th DCA 1982), recently adopted the “preponderance of the evidence” test for establishing a defendant’s participation in a conspiracy prior to admission of co-conspirator’s statements. We feel that the evidence outlined above is sufficient to meet even the strict “preponderance of the evidence” test. However, we decline to adopt a particular test and merely hold that in this case there was sufficient evidence of a conspiracy to allow the hearsay testimony of the Wilsons to be admitted in evidence.

Certiorari is the proper remedy here because the trial court’s ruling excluding the evidence is legally erroneous, and no remedy will be available to the state upon appeal from a final disposition of the case. See State v. Busciglio, 426 So.2d 1233 (Fla. 2d DCA 1983).

The order of the trial court is QUASHED. Petition for writ of certiorari GRANTED.

HOBSON, A.C.J., and DANAHY, J„ concur.


author: SANDERLIN, JAMES B., Associate Judge.

text:
    Antonio MARCELO, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and Kaplan Industries, Inc., Appellees.
    No. 83-1835.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.

      Matilda Lacayo of Florida Rural Legal Services, Inc., Bartow, for appellant.
    Geri Atkinson-Hazelton and Donna Er-lich, Tallahassee, for appellee, Unemployment Appeals Com’n.
   SANDERLIN, JAMES B., Associate Judge.

Antonio Marcelo appeals an order of the Unemployment Appeals Commission which affirmed a decision of an appeals referee upholding an adjudicator’s determination that Marcelo voluntarily left his employment without good cause attributable to his employer. We reverse because the decision of the appeals referee is not supported by competent substantial evidence.

The following facts may be gleaned from a review of the transcript of the hearing held before the appeals referee. Marcelo, a Cuban in his late forties who speaks only Spanish, was employed by Kaplan Industries, Inc., a meat packing company, beginning on April 5, 1981. He worked there as a bone trimmer at a rate of $3.55 per hour from 6:00 a.m. until 4:00 p.m. He got along fine with everybody at work, except his foreman, Bob Lindholm.

About 5:45 on the morning of Wednesday, January 5, 1983, Lindholm motioned for Marcelo to come into the boning room which was being cleaned and hosed in order to ready it for an inspection. However, Marcelo, who was described by the employer’s representative, William Lay, as “a fantastic worker,” did not respond to Lin-dholm’s order because he was ill with sinu-situs and a fever. Marcelo decided instead to wait outside the room until the task was completed. Upon seeing that Marcelo was not helping, Lindholm cursed at him and motioned for him to go to Lindholm’s office. Marcelo started shaking but understood Lindholm’s gesture and went to the office.

Several minutes later, Lindholm arrived at the office. Although there were several bilingual individuals at the plant who could interpret and speak for Marcelo, there was no one around at that moment to do so. Thus, in order to indicate to Lindholm that he was ill, Marcelo blew his nose on his handkerchief and showed the bloody phlegm to Lindholm. Lindholm, a man younger than Marcelo, responded by raising his fist and yelling at Marcelo. Marcelo became afraid that Lindholm was going to hit him. Lindholm then grabbed Marcelo and threw him against a wall. Two men had to physically restrain Lindholm from a second attack, and Marcelo turned and ran out of the building. He did not return to the plant that day because, in addition to being scared, he assumed by Lindholm’s actions that he had been fired.

On Thursday, January 6, Marcelo remained at home because he was still sick and was under a doctor’s care. He did not telephone the plant to advise anyone that he was sick because he thought that he had been fired.

Marcello returned to the plant on Friday, January 7, to pick up his paycheck. Upon being asked to do so, he turned in his steel gloves and work clothes. Such a request is normally made of a worker whom Kaplan Industries, Inc. does not with to continue to employ.

We are of the view that the decision of the appeals referee that Marcelo voluntarily left his employment without good cause attributable to his employer is not supported by competent, substantial evidence. The determination of whether an employee voluntarily left his job without good cause attributable to his employer should focus on whether the circumstances behind the employee’s departure would have impelled the average, able-bodied, qualified worker to give up his employment. See Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827 (Fla. 4th DCA 1973). The applicable standard is one of reasonableness as applied to the reaction of the average person, not the supersensitive. Id. The burden is on the claimant to prove that he did not voluntarily leave his job without good cause attributable to his employer. Id.

The evidence adduced below shows without contradiction that Marcelo was ill on the morning of January 5, 1983; that, when Marcelo indicated to Lindholm with his handkerchief that he was sick, Lin-dholm cursed him, threw him against the wall, and had to be physically restrained by two men from assaulting him again; and that, at the time of the altercation, no one was around who could interpret and speak for Marcelo.

Lindholm’s actions toward Marcelo were directly attributable to Kaplan Industries, Inc., because a foreman who performs duties which devolve on the employer is acting in a representative capacity for the employer. See Stearns & Culver Lumber Co. v. Fowler, 58 Fla. 362, 50 So. 680 (1909).

The record before us is devoid of competent substantial evidence to support the conclusion that Marcelo left his job without good cause attributable to the employer. If anything, the record shows unequivocally that Marcelo left the job voluntarily with good cause attributable to the employer. His reaction to Lindholm’s treatment of him in leaving the plant in a frightened state, thinking that he had been fired, was a reasonable one which an average person would have made under like circumstances.

Accordingly, we reverse the decision of the Unemployment Appeals Commission.

REVERSED.

GRIMES, A.C.J., and OTT, J„ concur.

      . See § 443.101(1), Fla.Stat. (1981).


author: PER CURIAM. GRIMES, Acting Chief Judge,

text:
    Thomas S. VAUGHN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2021.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.

      Robert G. Udell, Stuart, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was convicted and sentenced for trafficking in cannabis. On appeal he contends that he was entitled to be discharged for violation of his right to speedy trial under Fla.R.Crim.P. 3.191. Ten days prior to the expiration of the 180-day period after defendant’s arrest, the trial judge, on his own motion and without a hearing, had extended the speedy trial time by five weeks. After the 180-day period expired but before the expiration of the five week extension, defendant left the jurisdiction for approximately two years. Upon his return, prosecution of him resumed. He filed a motion for discharge under Rule 3.191, which was denied on grounds of defendant’s unavailability for trial, pursuant to Rule 3.191(e). We affirm.

Defendant contends that the trial court could not under Rule 3.191 without a hearing enter an order extending the speedy trial time by reason of exceptional circumstances. We disagree under the facts of this case.

Rule 3.191(f) provides, “The court may order an extension ... where exceptional circumstances are shown to exist.” We believe exceptional circumstances can be obvious and be apparent to the trial court from the record in some cases. We cannot say that the trial court’s perception of exceptional circumstances in this case was an abuse of discretion.

Rule 3.191(f) goes on to state that “exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court.” (Emphasis added.) The rule then says, “Such circumstances include: ... (2) a showing by the State that the case is so unusual and so complex ... that it is unreasonable to expect adequate ... preparation _” (Emphasis added.) The provisions of subsection (f)(2), following the word “include,” are by way of example and do not set forth, or purport to set forth, the exclusive means by which exceptional circumstances due to complexity of a case may be shown to exist.

A speedy trial extension may be granted on the trial court’s own motion. State v. Carter, 397 So.2d 679 (Fla.1981). The defendant argues that, before a trial court may grant a speedy trial extension, the defendant must be given an opportunity at a hearing to show that he would be prejudiced by the extension, citing Nelson v. State, 414 So.2d 505 (Fla.1982). Although Nelson does require a hearing on such a motion when there is pending in the supreme court a petition for review of a district court of appeal’s reversal of defendant’s conviction, we do not believe Nelson should be extended to the case before us. In Nelson the reason for a hearing was “to demonstrate that defendant would be prejudiced by an extension.” Prejudice to a defendant could well be a major factor when a case, as in Nelson, has been through trial court proceedings and an appeal to the district court of appeal. On the other hand, in the case before us, which was still in the initial trial court stage and speedy trial time was extended by the trial court’s order only five weeks past the initial 180-day period, we believe the major determination to be made by the trial court was not as to prejudice to the defendant but was, as Rule 3.191(f) says, as to “substantial justice ... to the state.” Again, we perceive no valid reason why in this case that determination could not be made by the trial court based upon the record before him. Rule 3.191(f) contemplates that the state in a case like this cannot be required to do the impossible in preparing a complex case. Rule 3.191(f) does not require a hearing in every case to determine “exceptional circumstances.” Although, of course, a hearing is required in circumstances like those in Nelson, and hearings are doubtless normally proper, if not necessary, we do not think it would be sound to require a hearing on every determination of exceptional circumstances.

Defendant also contends that his unavailability for trial after the initial speedy trial time had expired was not a waiver of his right to discharge under the speedy trial rule. We disagree.

Under Rule 3.191(e) unavailability “during the term provided for herein” refers to the term as properly extended. Therefore, unavailability for trial within the meaning of that rule during a proper extension under 3.191(f) means that a defendant is not entitled to a discharge. In this case, defendant’s unavailability commenced during the five-week extension of the speedy trial period and continued for two years. Thus, defendant was not entitled to discharge on speedy trial grounds.

AFFIRMED.

OTT and LEHAN, JJ., concur.

GRIMES, A.C.J., concurs specially with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

From a review of the file, I cannot tell whether the order granting extension of speedy trial was entered after consultation with appellant’s lawyer. There must have been some discussion of speedy trial because the order notes that all defendants had declined the opportunity to go to trial on January 19, 1981, which was five days prior to the expiration of the speedy trial time. In any event, if appellant was aggrieved he could have sought a rehearing. He could have also attacked the propriety of the order by moving for a discharge after the expiration of the original 180 days, though the justification for the extension was well supported by the record. Instead, appellant waived his right to complain by filing a motion to continue the trial which had been reset for March 2, 1981, and then disappearing for approximately two years. See Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). Only after losing his fight against extradition from New York did he file for the first time a motion for discharge. Justice would be poorly served to permit appellant now to assert that he was deprived of a speedy trial.

      . ORDER GRANTING EXTENSION OF SPEEDY TRIAL
      The Court upon its own motion, by authority of FRCrP 3.191(d)(2)(ii), hereby extends speedy trial in the above captioned cause, due to exceptional circumstances as set forth by FRCrP 3.191(f)(ii) to the date certain of March 2, 1981, and makes the following findings of fact:
      1. That this case is extremely unusual and complex in that the Information filed in this cause charges twenty-nine (29) codefendants with a combination of four (4) felonies, including trafficking in cannabis, conspiracy to traffic in cannabis, racketeering and conspiracy to racketeer, with said charges stemming from criminal activity extending over a four (4) year period and encompassing five (5) counties.

        2. That the State of Florida has provided defense counsel with the name and address of all persons known to the State having information relevant to the commission of the offenses which said list includes in excess of two hundred (200) witnesses, over four hundred (400) exhibits, and in excess of fifty (50) tape recordings.
      3. That some of the physical evidence to be utilized in the prosecution of this cause was acquired by search and seizure in Manatee County, in Broward County, in Hardee County, and in Polk County. In addition some of the physical evidence was acquired as a result of court authorized oral and wire intercepts of communications in Indian River County.
      4. That since the arrest of the various defendants, the State, in exercising its duty to continue to investigate new evidence, has discovered numerous witnesses which has made additional information available to the State necessitating the filing of an Amended Information on 5 December, 1980 adding predicate crimes.
      5. That the majority of the defendants were arrested on 28 July, 1980 with one defendant being arrested on 4 September, 1980 and two other defendants being arrested on 18 October, 1980; and that the voluminous discovery required to prepare for trial and the attendant problems of all counsel properly reviewing such material, make it unreasonable to expect adequate investigation or preparation within the time periods established by the Speedy Trial rule in addition to the Thanksgiving Day holidays and the Christmas and New Year’s holidays which resulted in a loss of normal work days for the scheduling of depositions and hearings related thereto.
      6.That all defendants were offered the opportunity to go to trial on 19 January, 1981, and they declined.
      It is, therefore,
      CONSIDERED, ORDERED and ADJUDGED that the Speedy Trial be, and the same is hereby extended to the date certain of March 2, 1981.
      DONE and ORDERED at Bartow, Polk County, Florida, this the 14 day of January, A.D., 1981.
      /s/ Oliver L. Green, Jr. OLIVER L. GREEN, JR. CIRCUIT JUDGE
      copies to
      Office of the State Attorney
      All Defense Counsel of Record


text:
    Samuel HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-556.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.

      Bennett H. Brummer, Public Defender and Sharon B. Jacobs, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The appellant’s convictions of robbery and aggravated assault are affirmed. Rose v. State, 425 So.2d 521 (Fla.1983); Welty v. State, 402 So.2d 1159 (Fla.1981); Spinkellink v. State, 313 So.2d 666 (Fla. 1975); Machado v. State, 363 So.2d 1132 (Fla.3d DCA 1978). However, the minimum-mandatory three-year sentences, pursuant to the provisions of Section 775.-087(2) Florida Statutes (1981), should have been ordered to be served concurrently. Palmer v. State, 438 So.2d 1 (Fla.1983); Parson v. State, 450 So.2d 924 (Fla. 4th DCA 1984); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984).

Therefore the convictions are affirmed and the sentences are affirmed except as modified by this opinion to make the minimum-mandatory three-year sentences run concurrently rather than consecutively.

Affirmed as modified.


text:
    Juan C. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2341.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Stephen L. Raskin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Taylor v. State, 436 So.2d 124 (Fla. 3d DCA 1983) (en banc).


text:
    Rene DAMASO, Appellant, v. Mary DAMASO, a/k/a Maria M. Damaso, Appellee.
    No. 84-337.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Anthony J. Scremin, Miami, and Greg C. McGibney, Miami Springs, for appellant.
    Arthur D. Frishman, Miami Beach, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Fla.R.App.P. 9.200(b)(3) (appellant’s prepared statement of the evidence or proceedings may be substituted for a transcript of the proceedings only after settlement and approval by the lower tribunal).


text:
    TRAVELERS INDEMNITY COMPANY OF AMERICA, Appellant, v. SOUTHEASTERN COMMUNICATIONS, INC., d/b/a S.E.H. Electronic Service, Appellee.
    No. 84-340.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Joseph A. McGowan, Hollywood, for appellant.
    Cohen, Brown, Reed, Ivans & Schwartz and Allen P. Reed, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Travelers Indemnity Company v. Kassner, 322 So.2d 80 (Fla. 3d DCA 1975).


text:
    Anthony Eugene CASH, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1699.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Anthony Eugene Cash, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Sullivan v. State, 441 So.2d 609 (Fla.1983); Knight v. State, 394 So.2d 997 (Fla.1981); Slattery v. State, 433 So.2d 615 (Fla. 3d DCA 1983).


text:
    COMMERCIAL GARDEN MALL, a general partnership, Appellant, v. The SUCCESS ACADEMY, INC., a Florida corporation, and Lawrence D. Greer, individually, Appellees.
    No. 83-1037.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.

      Jon Jay Ferdinand of Law Offices of Kaufman, Houchins & Ferdinand, Fort Lauderdale, for appellant.
    Spencer M. Sax and George Aslanian of Sachs & Weiss, P.A., Boca Raton, for ap-pellees.
   PER CURIAM.

Plaintiff’s original complaint for breach of a lease was dismissed for failure to attach a copy thereof. The lease was attached to the First Amended Complaint, but again defendants moved to dismiss, this time alleging the lack of the accompanying personal guarantee and the lack of a corporate seal. The lower court again dismissed the complaint, allowing plaintiff twenty days to amend. Thirteen days after this order was entered the plaintiff filed a “Motion for Rehearing,” requesting the judge to articulate the grounds upon which the First Amended Complaint had been dismissed and offering case law on the issue of a defendant’s personal liability on the lease. A hearing was held on this motion, resulting in a denial. Twelve days later the plaintiff filed his Second Amended Complaint. This time the defendants moved to dismiss on the basis that the Second Amended Complaint was filed more than twenty days after the trial court’s order granting the motion to dismiss giving plaintiff twenty days to amend. This Second Amended Complaint was dismissed with prejudice and the plaintiff appeals both this and the dismissal of his First Amended Complaint. We reverse.

While a non-final order is not subject to a petition for rehearing, Hubert v. Division of Administration, State Department of Transportation, 425 So.2d 671 (Fla.2d DCA 1983), it is also true that a trial court has jurisdiction to control its own non-final orders prior to entry of final judgment. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). Therefore, the trial court had the discretion to entertain a petition for rehearing if it chose to do so. It did so choose and thereby impliedly tolled the time for filing the Second Amended Complaint which was filed only twelve days after the court denied the petition for rehearing. Since the trial court initially determined that a Second Amended Complaint could be filed within twenty days of the dismissal of the First Amended Complaint, the Second Amended Complaint was timely filed, and the trial court abused its discretion in dismissing it.

The plaintiff also appeals the dismissal of his First Amended Complaint, the grounds for which as we have said were not set forth by the trial court. However, an original pleading is usually superseded by an amendment to it Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966), so the merits of the dismissal of that First Amended Complaint are not before us. Notwithstanding, we perceive that upon remand these issues will again be considered below, so we make the following comments in the interest of judicial economy.

The Lease Agreement was signed:

The Success Academy, Inc.,
By: Lawrence D. Greer,
President

The Lease contained the following clause on p. 16:

SPECIAL CLAUSES:
1. In the event of default of this lease by The Success Academy, Inc., the terms and conditions herein shall be personally guaranteed by Lawrence D. Greer, President of The Success Academy, Inc.

In his First Amended Complaint plaintiff alleged in paragraph 6:

That the Defendant, LAWRENCE D. GREER, did, pursuant to the provision of the Lease as set forth on page 16 of said Lease agreed and promised in the event of default of this Lease by THE SUCCESS ACADEMY, that he was personally guaranteeing each and every obligation under said Lease and therefore is personally liable for the Default hereinafter set forth in this Complaint.

Defendant Greer initialed every page of the lease, including p. 16. Plaintiff urges that the case Roy v. Davidson Equipment, Inc., 423 So.2d 496 (Fla. 4th DCA 1982), is “on all fours” with his facts. This case had not been located by him at the first hearing but was presented to the court at the rehearing. There the President signed a lease with his corporate officer position next to his signature. The lease contained in the “Remarks” section:

“$204,000 rental to be guaranteed personally by Mr. Robert Roy.”

A distinguishing factor in Roy is that a guaranty agreement was executed at the same time, which was also signed by Roy with his Corporate Officer position. The court observed that, standing alone, this signature (on the guaranty not the lease) would be the classic example of a corporate officer signing in a representative capacity only. But the court found that the guaranty instrument language would be meaningless if the signature was as President—the corporation would be guaranteeing its own debt.

However, even distinguishing the Roy case, we feel that the complaint did state a cause of action and should have withstood a motion to dismiss. The lack of a separate guaranty instrument is not clearly fatal. In Sabin v. Lowe’s of Florida, Inc., 404 So.2d 772 (Fla. 5th DCA 1981), the credit application itself contained statements that the signor would “personally faithfully guarantee payment of all credit extended to said corporation.” The court held that the President was individually liable even though he signed as President. The court rejected his argument that it was necessary for him to sign twice, once as President and once individually.

It should also be noted that the absence of the corporate seal on the lease does not necessarily eradicate the corporate defendant’s liability since Section 689.-01, Florida Statutes (1981), makes it unnecessary.

REVERSED AND REMANDED.

LETTS, HURLEY and DELL, JJ., concur.


text:
    Peggy VAN BOVEN, Appellant, v. Dr. John VAN BOVEN, III, M.D., Appellee.
    No. 83-1740.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Kahn & Gutter, Fort Lauderdale, and Peter S. Broberg of Coe & Broberg, Palm Beach, for appellant.
    Jonathan L. Gaines of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution. We approve all of the awards of the trial court except the trial court’s failure to make any provision for an equitable distribution of the assets accumulated by the parties during the course of the marriage or to make findings justifying the lack of such a provision. Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982). On the record before us it appears that the wife was entitled to some distribution of the marital assets held in the husband’s name since it appears to be undisputed that those assets were accumulated during the marriage and the wife was without assets at the time of dissolution. We decline to make any assessment as to what distribution, if any, should take place, but instead remand this cause with directions that the court make some equitable distribution of the assets accumulated during the marriage. Conner v. Conner, 439 So.2d 887 (Fla.1983). The trial court, in its discretion, may direct the receipt of further evidence or arguments from the parties or may resolve the matter on the existing record.

Accordingly, we affirm in part, reverse in part and remand this cause for further proceedings in accord herewith.

ANSTEAD, C.J., HURLEY, J., and GREEN, OLIVER, L., Jr., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Milton G. FRIEDMAN, Appellant, v. Paul L. BACKMAN, Barry F. Franklin, and K.G.L. Contracting Services, Inc., Appellees.
    No. 83-1996.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Robert L. Gossett of Hodges, Gossett, McDonald, Gossett & Crawford, P.A., Hollywood, for appellant.
    Nicolas A. Manzini of Young, Stern & Tannebaum, P.A., North Miami Beach, for appellee-Barry S. Franklin.
   DOWNEY, Judge.

Appellant Milton G. Friedman sued ap-pellees in replevin to gain possession of certain files held by Blackman and Franklin. Friedman claimed right of possession based upon an accounts receivable factoring agreement with appellee K.G.L. Contracting Services, Inc. Friedman contended that Blackman and Franklin had possession of the files as attorneys for K.G.L.

After some preliminary skirmishing, wherein it appeared the files were not in the possession of 'Blackman and Franklin, appellant filed a voluntary dismissal.

Franklin’s motion for allowance of attorney’s fees pursuant to Section 57.-105, Florida Statutes (1981), was granted and the court awarded Franklin $2500. in fees for services performed by counsel Franklin hired and for legal services performed by Franklin himself. We have no difficulty in holding that, in a frivolous suit against a lawyer, he is entitled to attorney’s fees for his time and effort under Section 57.105, just as he is for services rendered by counsel he employs to represent him. This seems to be the weight of authority in this country, see Quick & Reilly, Inc. v. Perlin, 411 So.2d 978 (Fla. 3d DCA 1982), and it seems logical because, as the saying goes, “a lawyer’s time and advice are his stock in trade.” There is sufficient evidence in the record to support the attorney’s fee awarded.

This appellate review is somewhat hampered by an inadequate record. As to some aspects of the proceedings, the court could not remember sufficiently to reconstruct the record. However, even with the record in that state, it appears there is adequate support in the pleadings and affidavits to affirm the judgment appealed from both as to the frivolous nature of the suit and the amount of attorney’s fees awarded.

Accordingly, the judgment appealed from is affirmed.

GLICKSTEIN and DELL, JJ., concur.


text:
    Otto RUNKEL, Appellant, v. The SOUTHEAST PALM BEACH HOSPITAL DISTRICT, a Florida corporation, d/b/a Bethesda Memorial Hospital, Appellee.
    No. 83-2226.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Bruce W. Parrish, Jr., of O’Connell, Cooper & Parrish, P.A., West Palm Beach, for appellant.
    Curtis J. Grodin of Bacen & Kaplan, P.A., Hollywood, for appellee.
   DOWNEY, Judge.

The Southeast Palm Beach Hospital District sued Otto Runkel to recover a hospital bill incurred by Shirley Runkel, Otto’s wife. Otto filed an answer that admitted that he and Shirley were husband and wife living in a family relationship. By way of affirmative defense, Otto claimed the hospital admitted Shirley based upon her own credit and financial status and not on his.

The hospital moved for summary judgment, supported by an affidavit that simply proved up the bill for the services rendered to Shirley. Otto contends on appeal that the order entering summary judgment is erroneous because 1) he filed an affidavit stating that he and Shirley were separated (she used her maiden name, was self-employed, and was responsible for all of her bills); and 2) a factual issue was presented by his affirmative defense that the hospital extended credit to Shirley and not to him.

Since Otto’s answer ádmitted paragraph 4 of the complaint, there was no genuine issue as regards Otto and Shirley’s being husband and wife and living in a family relationship. Otto’s affidavit was ineffective against the pleading admission. However, in order to prevail against Otto’s affirmative defense that the hospital’s admission of Shirley as a patient was based on her credit and not Otto’s, the hospital was required to furnish proof that such defense was untenable. Since the hospital failed to furnish such proof, there was a genuine issue of material fact precluding the entry of summary judgment.

Implicit in the foregoing is the common law rule, which has not been abrogated by statute in Florida, that services extended to a married woman based solely on her credit do not obligate her husband:

The general rule, both at common law and under statutes enabling a married woman to contract, is that if credit for necessaries, goods, or services furnished the wife is extended exclusively to her, her husband ordinarily is not liable for them. The purchase of necessaries by a wife who has the capacity to contract and make purchases on her own credit casts no liability on her husband where she neither has nor discloses any intent to purchase on his credit, and the seller has no intent to give to anyone other than the wife.

41 Am.Jur.2d, Husband and Wife, § 383, p. 320 (footnotes omitted).

Accordingly, the summary judgment for the hospital is reversed because of the issue of fact presented by Otto’s third affirmative defense.

DAUKSCH, JAMES C., and PURDY, H. MARK, Associate Judges, concur.


text:
    STATE of Florida, Appellant, v. Gregory Grant HAYES, Appellee.
    No. 83-2354.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Appellee was charged with robbery, as an accessory after the fact, and with violation of probation. Appellee filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state responded with a written traverse specifically denying the matters alleged in the motion to dismiss. From the trial court’s order granting appellee’s motion to dismiss the state has perfected this appeal, contending the court erred in granting the motion to dismiss because 1) the motion was improperly sworn to by counsel on information and belief, and 2) the traverse specifically denied the matters alleged in the motion.

Appellee’s motion to dismiss was insufficient because a motion to dismiss sworn to by counsel upon information and belief, rather than upon actual knowledge, is defective. State v. Martin, 422 So.2d 12 (Fla.2d DCA 1982); State v. Upton, 392 So.2d 1013 (Fla.5th DCA 1981). In addition, the traverse filed by the state contains sufficient specificity to controvert the motion to dismiss and demonstrate issues to be tried.

Accordingly, the order granting appel-lee’s motion to dismiss is reversed.

DOWNEY and GLICKSTEIN, JJ., and GUNTHER, BOBBY W., Associate Judge, concur.


text:
    Frances A. GLEASON, Appellant, v. John L. GLEASON, Appellee.
    No. 83-2441.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Ronald E. Jones, West Palm Beach, for appellant.
    James R. Hustad of Hustad & Kurtz, West Palm Beach, for appellee.
   PER CURIAM.

In this dissolution of marriage action, the court awarded to the husband the wife’s interest in a jointly owned money market account. The husband had not sought such relief. Accordingly, we reverse that part of the judgment relating to the award of the wife’s interest in the fund. Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

We affirm the remaining provisions of the judgment. While we would not necessarily have made the same provisions for the wife re alimony and equitable division of the marital home, nevertheless we cannot say that the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Reversed in part and affirmed in part.

GLICKSTEIN and BARKETT, JJ., and SCOTT, ROBERT C., Associate Judge, concur..