text:
    KING MOTOR COMPANY and Southeastern Fire Insurance Company, Appellants, v. Lenore PARISI, Appellee.
    No. AU-86.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Rehearing Denied March 23, 1984.
    Albert P. Massey, III, of Pyszka & Kes-sler, P.A., Fort Lauderdale, for appellants.
    Robert B. Scharf, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The employer/carrier' (e/c) appeals a workers’ compensation award requiring them to pay claimant’s attorney’s fees based upon a finding by the deputy commissioner (D/C) that the e/c had disregarded the rights of claimant so as to cause economic loss, pursuant to the requirements of § 440.34(3)(b), Fla.Stat. (1981). We agree with the D/C and affirm.

Claimant suffered a compensable injury in a fall at her workplace. The employer promptly submitted a “notice of injury” form to the carrier, who began paying benefits to claimant based on that notice. Four months later, claimant consulted an attorney and thereafter filed a claim for additional benefits, based on a $200 per month car allowance paid her as part of her compensation, of which the employer had failed to inform the carrier. That amount, therefore, was not included by the carrier in its calculation of claimant’s benefits. After the claim had been filed, claimant’s attorney contacted the carrier by telephone, and informed it of the error and the resulting shortage in claimant’s benefits. After verifying the car allowance with the employer, the carrier immediately increased claimant’s average weekly wage and compensation rate to reflect the additional amount and, within 21 days, sent claimant a check for the benefits erroneously withheld.

A hearing was subsequently held for the purpose of determining the e/c’s responsibility for claimant’s attorney’s fees on the basis of bad faith, pursuant to § 440.-34(3)(b), Fla.Stat. This statute provides that a claimant shall be entitled to recover a reasonable attorney’s fee from the e/c where the deputy finds that the e/e has acted in bad faith with regard to handling the injured workers’ claim and the injured worker has suffered economic loss. The deputy herein found that claimant had been forced to retain expert counsel to obtain the increase in her benefits, and that the e/c had disregarded claimant’s rights such that she suffered an economic loss. The deputy therefore held the e/c responsible for appellant’s attorney’s fees.

The e/c contends that there was no competent substantial evidence of bad faith to support this award. It points out that § 440.34(3)(b) defines “bad faith” as “conduct by the carrier in the handling of a claim which amounts to fraud; malice; oppression; or wilful, wanton, or reckless disregard of the rights of the claimant,” and that claimant had failed to show that the employer’s failure to notify the carrier of the car allowance was anything but simple oversight. The e/c further notes that, as soon as the error was brought to the carrier’s attention, it was promptly rectified, including prompt repayment to claimant of all omitted benefits. Claimant responds that the carrier admitted at the hearing that the error was only brought to his attention by the claimant’s attorney and argues that, therefore, if she had not retained an attorney, the e/c would have continued paying the incorrect amount. Claimant points out that the law states that injured workers shall receive promptly those benefits to which they are entitled, and that, to obviate the need for attorney involvement, the workers’ compensation act places the initiative with the e/c to provide these benefits. Claimant asserts that the award of attorney’s fees was supported by competent substantial evidence and should be affirmed. We agree.

The standard for review of an award of attorney’s fees under § 440.-34(3)(b) was stated in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). The court held that

a broad discretion must necessarily vest in the deputy commissioner to measure the actions of the carrier in light of his judgment, experience and knowledge .... Unless we find a clear abuse of discretion or departure from the law, the decisions of the deputy commissioner will be upheld.

Id. at 213. The deputy’s action in this case does not warrant reversal pursuant to this standard. Florida Erection Services, supra, noted as well that a finding of “bad faith” was not limited to instances of “active concealment, misrepresentation or continued course of dishonest dealing,” Id. at 208; neither does § 440.34(3)(b) limit “bad faith” to such instances. While the statutory definition does include the terms “fraud”, “malice”, “oppression” and “a wilful or wanton disregard of claimant’s rights”, bad faith can also be manifested under the statute by a reckless disregard of those rights. We find that the e/c’s conduct herein falls within this latter category.

As claimant points out, it is clear that injured workers should receive their workers’ compensation benefits promptly. Thompson v. W.T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964); Dolphin Tire Co. v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981). And, as this court recently stated in Great Dane Trailers and Jones, Hill & Mercer v. Flis, 435 So.2d 931 (Fla. 1st DCA 1983):,

Though revisions to chapter 440 by the 1979 Legislature are said to have been intended to deter attorney involvement on the part of the claimants, that deterrence is to accomplished by enhancing the self-executing character of the Act, placing the initiative with the employer and carrier, and so dispensing with the need for claimant’s attorneys in the scheme for securing just compensation to injured workers.

Id. at 933. This is especially true of a factual situation such as the one here, where the information necessary for payment of the proper amount of benefits is in the possession and control of the employer.

This situation is not analogous to that in Walt Disney World v. Molter, 401 So.2d 1170 (Fla. 1st DCA 1981), where a similar award of attorney’s fees was overturned by the court. In WDW, claimant’s initial benefits were erroneous because she did not inform the employer until 7 months after the injury that she had had concurrent employment while working for the employer. The court found that, even though claimant had to hire an attorney to get her benefits corrected, the e/c had not acted in bad faith because claimant had done nothing to put it on notice that additional benefits might be due. Id. at 1171. In WDW, therefore, the missing information was in sole control of claimant. In the instant case, only the employer had the ability to inform the carrier of the full amount of claimant’s compensation, including the car allowance, but did not do so. Under these circumstances, we find that this omission constitutes a “reckless disregard of the rights of the claimant” within § 440.-34(3)(b), Fla.Stat. (1981).

It should be noted that a deputy’s failure to use the words “bad faith” in an order awarding attorney’s fees pursuant to this statute does not necessarily invalidate the order where, as here, the deputy refers to the pertinent statute and makes findings which conform thereto. It is also of no consequence that the carrier was not at fault for the error in benefits and, in fact, acted promptly to provide the correct benefits once the omitted information was brought to its attention. As we have previously held, the actions of the employer amounting to bad faith are imputed to the carrier. Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981); T.J. Chastain Farms v. Kusiak, 414 So.2d 1187 (Fla. 1st DCA 1982).

Based on the foregoing, we affirm the deputy’s award of attorney’s fees to claimant on the basis of § 440.34(3)(b).

MILLS and WENTWORTH, JJ., and McCORD, GUYTE, P., Jr. (Retired), Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. DANIEL S. PEARSON, Judge,

license: Public Domain

text:
    IDY CORPORATION d/b/a Crazy Horse Saloon, Appellant, v. Dirk ENGELS, Appellee.
    No. 83-329.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.

      Kathleen V. McCarthy, Miami, for appellant.
    Greenfield & Duval and Leo Greenfield, North Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal taken by IDY Corporation d/b/a Crazy Horse Saloon, from a final judgment entered pursuant to a jury verdict in favor of appellee, Dirk Engels, and an order denying appellant’s motion for a new trial. This appeal followed.

Appellant contends that the trial court erred in denying the motion for new trial because of the accumulative prejudice of questions posed by plaintiff’s counsel.

We have carefully considered appellant’s contention in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been shown. See Castellanos v. Hialeah-Miami Springs First State Bank, 330 So.2d 100 (Fla. 3d DCA), cert. denied, 341 So.2d 1080 (Fla.1976); Byrd v. Felder, 197 So.2d 554 (Fla. 3d DCA), cert. denied, 201 So.2d 894 (Fla.1967).

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

I think the stated reason for affirmance should be that a party, such as the appellant here, which expressly declines to move for a mistrial and asks only for curative instructions and admonitions cannot be heard to complain of the trial court’s refusal to grant it a new trial on the asserted ground that it was prejudiced by improper questions, remarks and conduct of opposing trial counsel. Sears Roebuck & Company v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983); Earl Hollis, Inc. v. Fraser Mortgage Company, 403 So.2d 1038 (Fla. 4th DCA 1981). See Walt Disney World Co. v. Althouse, 427 So.2d 1135 (Fla. 5th DCA 1983).


author: HENDRY, Judge.

text:
    Maurice Barry KARCH, Appellant, v. Roberta T. KARCH, Appellee.
    No. 83-587.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.

      Lapidus & Stettin and Herbert Stettin, Miami, for appellant.
    Frank, Strelkow & Gay and Michael A. Frank, North Bay Village, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   HENDRY, Judge.

The husband in this post-dissolution action appeals from the decision of the trial court, adopting the findings of the general master, which denied his petition for modification of alimony on the basis that the final judgment of dissolution incorporated a non-modifiable property settlement agreement. We affirm.

It is well settled that payments made as consideration for the relinquishment of a valuable property right cannot be modified, even if these payments are called “alimony.” Wolfe v. Wolfe, 424 So.2d 32 (Fla.4th DCA 1982); Pujals v. Pujals, 414 So.2d 228, 229 n. 1 (Fla.3d DCA 1982); Lau v. Lau, 407 So.2d 927 (Fla.3d DCA 1981); Johnson v. Johnson, 403 So.2d 1388 (Fla.2d DCA 1981). Where an agreement purports to resolve the property rights of the parties, its provisions are to be interpreted in the same manner as any other contract. Farkas v. Farkas, 426 So.2d 1213 (Fla.4th DCA 1983). In the instant case the wife bargained away her interest in the husband’s business in return for ownership of the marital home, money for a downpayment on a new car, and payments, called alimony, of $100 a week. She did not sell her interest in the business for a sum certain, cf. Friedman v. Friedman, 366 So.2d 820 (Fla.3d DCA), cert. denied, 376 So.2d 71 (Fla.1979), neither has she taken the position that the agreement is modifiable, cf. Broudy v. Broudy, 423 So.2d 504 (Fla.3d DCA 1982), nor accepted modification in the past and now complains of such, cf. Singer v. Singer, 442 So.2d 1020 (Fla.3d DCA 1983) (1983). The only modification has been the child support portion of the agreement which, unlike property settlement agreements, is always subject to judicial modification whenever there is a change in the circumstances from the time of the award. Cannon v. Morris, 407 So.2d 372, 373 (Fla.lst DCA 1981). See also Cherna v. Cherna, 427 So.2d 395 (Fla. 4th DCA 1983); Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983). We find that this property settlement was a freely bargained exchange of valuable property rights, with both parties represented by counsel, and as such, is non-modifiable.

Affirmed.


author: NESBITT, Judge.

text:
    Krimhild HACKMANN, Appellant, v. Barbara T. HYLAND, Dianne R. Beskind, James Warren Thomas, Jr. and the Estate of James Warren Thomas, Appellees.
    No. 83-943.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Ginsberg & Goldman and Burton Ginsberg, North Miami Beach, for appellant.
    Bauman, Wurtenberger & Baker and Robert Baker, Plantation, for appellees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   NESBITT, Judge.

This is an appeal from a final judgment dismissing Hackmann’s counterclaim for reformation of a deed. We reverse and remand for a new trial.

The facts relevant to this appeal are quite simple. Hackmann had a long-term relationship with decedent, Thomas. She alleges that, prior to his death, he intended to convey to her the home which they had shared and which was the only real property owned by decedent at that time. Toward this end, the decedent executed a quit-claim deed. It was later discovered that the legal description of the property corresponded to land which he had previously owned rather than to the parcel he owned at the time of the conveyance. Hackmann sought reformation of the deed arguing that a mutual mistake had occurred.

Pursuant to this theory, she attempted at trial to call friends and neighbors who could testify as to the parties’ relationship and as to the decedent’s stated intention to provide for Hackmann upon his death. In addition, a nurse who notarized the deed was prepared to testify as to statements made by the decedent indicating his intent to deed the property, to which he held title, to Hackmann. The trial court excluded this evidence because it concluded that the dead man statute, section 90.602, Florida Statutes (1981), barred the testimony. We disagree.

The dead man statute precludes any person who is interested in the action from testifying as to oral communications between the interested person and the decedent. The appellees argue that the testimony was properly excluded because Hack-mann failed to satisfy her burden of showing that the parties were disinterested. However, the law does not place this burden on the party who seeks to call a witness. Competency to testify is presumed until the contrary is established. See § 90.601, Fla.Stat. (1981); Williams v. McGehee, 2 Fla. 58 (1848). Thus, the burden of proving a witness’ disqualification to testify because of interest is upon the objecting party. Lynagh v. Marine Bank & Trust Co., 177 So.2d 256 (Fla. 2d DCA 1965). Since the appellee failed to satisfy this burden, the trial court erroneously precluded the testimony.

Consequently, we reverse and remand for a new trial.


author: PER CURIAM.

text:
    FLAGSHIP NATIONAL BANK, Appellant, v. GRAY DISTRIBUTION SYSTEMS, INC., G.D.S. Drugs, Inc., G.D.S., Inc., Gray Tobacco Company, Inc., Samuel Gray and Marilyn Gray, Appellees.
    No. 83-1228.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Rehearing Denied March 21, 1984.
    Daniels & Hicks and Patrice A. Talisman and Sam Daniels, Therrel, Baisden, Stanton, Wood & Setlin, Miami, for appellant.
    Greenfield & DuVal and Leo Greenfield, North Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Following this court’s opinion reported in Flagship National Bank of Miami v. Testa, 429 So.2d 69 (Fla. 3d DCA 1983) the matter recurred in the trial court which entered a judgment on severed count VI of the counter-claim finding that the settlement agreement of November 20, 1978, was procured in part through the breach of the fidelity owed to the appellees by their attorney, which fidelity was compromised by the appellant bank. This appeal ensued. We find that it is an appealable order. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). Following a review of the record and the findings of fact made by the trial judge, we affirm same. Smith v. Hamilton, 428 So.2d 382 (Fla. 4th DCA 1983); Mori v. Matsushita Electric Corporation of America, 380 So.2d 461 (Fla. 3d DCA 1980); Castellanos v. Hialeah-Miami Springs First State Bank, 330 So.2d 100 (Fla. 3d DCA 1976); Brune v. Kings Creek of Gainesville, Inc., 317 So.2d 848 (Fla. 1st DCA 1975).

Affirmed.


text:
    Michele R. SCHRAM, as Personal Representative of the Estate of Michael Gaydos, deceased, and individually; Miller Adams and Mary Adams, his wife; and Nick Adams and Josie Adams, his wife, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 83-1276.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Rehearing Denied March 23, 1984.

      Lee Weissenborn, Miami, for appellants.
    Robert A. Ginsberg, County Atty. and Stephen J. Keating, Asst. County Atty., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. State Road Department v. Bramlett, 189 So.2d 481 (Fla.1966); Section 73.071(3)(b), Florida Statutes (1981).


text:
    Joel SUSSMAN, d/b/a Surrey Management Company; Business Property Progress, Inc., d/b/a Surrey Hotel; and Kent Insurance Company, Appellants, v. Mary TUTELMAN, Appellee.
    No. 83-1424.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Rehearing Denied March 23, 1984.
    Walton, Lantaff, Schroeder & Carson and Kathleen M. O’Connor, Miami, for appellants.
    Robert A. Glassman, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The appellants, the defendants below in a personal injury lawsuit, seek reversal of an adverse final judgment. For the reasons which follow, we reverse and remand for the entry of a directed verdict in favor of the defendants.

Mary Tutelman had lived at the Surrey Hotel and walked in and out of the lobby three times daily for about one and one-half years. Upon entering the lobby one day she walked down a three to six foot wide “aisle” formed by a row of chairs facing a ten to twelve foot long yellow sofa. Both the sofa and the chairs were occupied. As Tutelman walked down the “aisle” she, by her own testimony, saw and then tripped over a cane held by a person sitting either upon the sofa or in one of the chairs and sustained injuries. She brought suit against the owner, lessor and insurer of the hotel property. The defendants moved for a directed verdict, which was denied. The jury found the defendants forty per cent negligent.

The evidence offered fails to demonstrate the presence of any legal duty, breach or causation linking the defendants to Tutelman’s injuries. See Heps v. Bur- dines, Inc., 69 So.2d 340 (Fla.1954); Kraver v. Edelson, 55 So.2d 179 (Fla.1951); Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA), review denied mem., 407 So.2d 1102 (Fla.1981).

Reversed and remanded with directions.


text:
    Robert N. VERLINGO, Appellant, v. STATE of Florida, Appellee.
    No. 83-896.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Rehearing Denied March 21, 1984.
    Harvey D. Rogers, Miami, for appellant..
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to seek post-conviction relief in the trial court. The appellant, for the first time on appeal, seeks to withdraw his prior plea of guilty on the basis that an agreement he made with the state subsequently became impossible to perform. The state disputes the appellant’s interpretation of the provisions of the agreement. Since the appellant never sought to withdraw his plea nor sought a trial court ruling as to the now disputed meaning of the contract, we have no alternative but to affirm.

ANSTEAD, C.J., and HURLEY and WALDEN, JJ., concur.


author: WALDEN, Judge.

text:
    U-HAUL COMPANY, an Ohio corporation, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY and Glasgow and Davis Company, Appellees.
    No. 83-1048.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.

      John W. Bussey, III, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Orlando, for appellant.
    R. Fred Lewis of Magill, Reid & Lewis, Miami, for appellees.
   WALDEN, Judge.

U-Haul Company appeals from an order denying its motion to dismiss based upon lack of personal jurisdiction and insufficiency of service of process. We affirm.

First, U-Haul says that a trailer is not a “motor vehicle” with the consequence that Section 48.171, Florida Statutes (1981), entitled, Service on Nonresident Motor Vehicle Owners, etc., is not applicable. We disagree and hold that a trailer is a motor vehicle within contemplation of Section 48.-171, Florida Statutes (1981). We support this with the definition found in Chapter 320, Florida Statutes (1979), Motor Vehicle Licenses, as follows:

320.01 Definitions, general. — In construing these statutes, when applied to motor vehicles, and when the context permits, the word, phrase, or term:
(1) “Motor vehicle” includes:
(a) Automobiles, motorcycles, motor trucks, trailers, semitrailers, tractor trailer combinations, and all other 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, but does not include traction engines, road rollers, such vehicles as run only upon a track, bicycles, or “mopeds,” as defined in subsection 316.-003(2). (emphasis added)
(b) A recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle....

Further, this statute defines trailer:

(6) “Trailer” includes all four-wheel vehicles coupled to, or drawn by a motor vehicle.

U-Haul relies upon Powell v. Henry, 224 So.2d 730 (Fla. 2d DCA 1969), and Garcia v. Mid-Florida Hauling, Inc., 350 So.2d 1141 (Fla. 1st DCA 1977), for the proposition that a trailer is not a motor vehicle. We distinguish and disregard them because there the question was whether or not a trailer is a dangerous instrumentality, a totally different issue. It is our position that a trailer is a motor vehicle per statute for certain purposes such as licensing or service of process. However, a trailer may not be a motor vehicle within the context of whether or not it is a dangerous instrumentality so as to impose vicarious liability.

U-Haul’s remaining point is without merit.

Affirmed.

ANSTEAD, C.J., and BERANEK, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    Sharon L. LANGFORD, Appellant, v. Herbert J. LANGFORD, Jr., Appellee.
    No. 83-1295.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.

      Jonathan S. Silverman of Becker & Sil-verman, Clearwater, for appellant.
    N. David Korones, Clearwater, for appel-lee.
   GRIMES, Acting Chief Judge.

This case would tax the patience of Judge Wapner.

Pursuant to a judgment of dissolution, the parties entered into an agreement with respect to the division of their personal property. Thereafter, upon the husband’s motion, the court directed that the wife immediately deliver specified items to the husband. The court provided that if the items were not returned, counsel should “submit by letter to the court the intrinsic and extrinsic value of each item for determination of additional credits, without necessity of further hearing.” The husband subsequently filed a motion for contempt stating that certain of the items had not been returned and suggested the “intrinsic and extrinsic value” of each item. The husband and wife then filed conflicting affidavits concerning whether some of the items had been returned.

At this point, the judge wrote the lawyers for both parties, noting the conflicting affidavits and suggesting that if either party felt “that possession of these items merits another hearing, then the affidavits constitute the springboard for hearing or charges on these detailed, but limited items.” The court further directed that the wife return six enumerated items and entered a supplemental order stating that the wife would be held in contempt if this were not accomplished by May 9,1983. Upon an ex parte motion supported by the husband's affidavit of noncompliance by the wife, the court entered an order on May 11, 1983, determining that “the intrinsic and extrinsic values of the personal property which remains undelivered” to the husband was $2,500. After crediting the wife with $947.24, which was due as a result of the disposition of jointly owned real estate, the court offset the balance against a previous award of $4,000 in attorney’s fees to the wife.

While we fully appreciate the court’s exasperation over the trivial nature of the parties’ disputes and the wife’s apparent intransigence, we are compelled to reverse on grounds of due process. There was obvious disagreement over the status of certain of the items which could only be resolved by testimony at a hearing. Moreover, if the wife was to be monetarily penalized for failure to return any items, she was entitled to a hearing on valuation.

The order of offset against the attorney’s fees is reversed, and the case is remanded for further proceedings consistent with this opinion.

RYDER, J., concurs.

SCHOONOVER, J., concurs in result only.

      . "The People's Court,” a nationally syndicated television program produced by Ralph Edwards Productions in association with Stu Billet Productions, shown locally on Channel 10, WTSP, St. Petersburg, Florida.

      . ‘ITEM EXTRINSIC INTRINSIC VALUE VALUE
      Barbeque Bean Cups (4) and bowls $ 30.00 $ 500.00
      Bud vase (sterling) 80.00 1,000.00
      Head phones to stereo 100.00 .00
      "ITEM EXTRINSIC INTRINSIC VALUE VALUE
      Pear coasters $ 15.00 $ .00
      One nutcracker set 5.00 .00
      Wood antelope 25.00 .00
      Two life preservers, orange, CG. required 20.00 .00
      Gray suitcase 85.00 .00
      Four Girl Scout badges 5.00 300.00
      Herb’s campaign posters .00 250.00
      One navy windbreaker 25.00 .00”


author: ERVIN, Chief Judge.

text:
    Daniel Claude RUMSEY, Appellant, v. EASTERN DISTRIBUTION, INC., a corporation, Appellee.
    No. AT-292.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1984.
    S. Perry Penland, Jr., of Penland, Seelie, Morgan & Penland, Jacksonville, for appellant.
    Robert Wilhelm of Howell, Liles, Braddock & Milton, Jacksonville, for appellee.
   ERVIN, Chief Judge.

Appellant, Rumsey, appeals a summary final judgment, contending the trial court erred in finding Rumsey to be a “borrowed servant” of Appellee, Eastern Distribution, Inc. (Eastern), which finding barred Eastern from suit in tort by virtue of the exclusivity provisions of Florida’s Workers’ compensation Law. We disagree with his argument and affirm.

Rumsey was hired by Right Hand Man of Florida, a labor pool, to perform manual labor for various companies in Jacksonville. Rumsey would report to Right Hand Man daily and, if a job was available, he would be given a work order indicating the company he was assigned to and the name of the supervisor he should contact, and he would then be transported to the job site by a Right Hand Man employee. Once there, Rumsey’s work would be directed by supervisors employed by the hiring company and he would follow that company’s routine as to lunch hours and breaks. All necessary equipment would be supplied by the hiring company, and Rumsey’s labors would be controlled by that company during the hours for which he was hired. Right Hand Man retained the exclusive right to fire Rumsey, and it paid him at the end of each work day based upon the hours worked, as reflected on the completed work order form. Right Hand Man in turn billed its customers on a weekly or monthly basis, charging them for the hours worked by each Right Hand Man employee, plus amounts designed to cover Right Hand Man’s overhead, including the cost of workers’ compensation insurance, as well as to produce for Right Hand Man a profit.

On August 20, 1980, Rumsey was assigned by Right Hand Man to work for Eastern in cleaning the interior of a warehouse. When Rumsey arrived at the job site, he was directed by Eastern’s supervisor to climb a scaffold some fifty feet above the floor and to pressure clean the warehouse rafters. Rumsey did so; the safety rail on the scaffold gave way, causing Rumsey to fall to the warehouse floor, breaking his ankle. He collected workers’ compensation benefits from Right Hand Man and then filed a complaint, seeking damages for negligence from Eastern. At a pre-trial conference, the trial court granted Eastern’s motion for summary judgment, finding that Rumsey was Eastern’s “borrowed servant”, and such status precluded a tort action against Eastern. Rumsey, as stated, assails this finding, contending that workers’ compensation coverage is inapplicable.

The general rule on the question of borrowed servants is set out as follows by Professor Larson in his treatise on workers’ compensation:

When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) the employee has made a contract of hire, express or implied, with the special employer;
(b) the work being done is essentially that of the special employer; and
(c) the special employer has the right to control the details of the work.
When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.

1C Larson, Law of Workmen’s Compensation '§ 48.00 (1982) \Larson\ Rumsey contends that the first part of the above test is not satisfied by the facts before us, i.e., that he did not enter into an express or implied contract for hire with Eastern, and therefore the borrowed servant doctrine does not apply. That argument, however, ignores the fact that the requisite consent to employment “may be implied from the employee’s acceptance of the special employer’s control and direction.” Larson, supra at § 48.10. See also Stuyvesant Corporation v. Waterhouse, 74 So.2d 554 (Fla.1954) (contract of employment for purposes of borrowed servant doctrine may be implied from circumstances). Rumsey’s argument also ignores the large body of factually indistinguishable cases involving labor pools in which the employee has been invariably found to be a borrowed servant and thus precluded from maintaining a tort action against the special employer. See Larson, supra at § 48.23; Fox v. Contract Beverage Packers, Inc., 398 N.E.2d 709 (Ct.App.Ind.1980); Hoffman v. National Machine Co., 113 Mich.App. 66, 317 N.W.2d 289 (1982); Renfroe v. Higgins Rack Coating & Manufacturing Co., Inc., 17 Mich.App. 259, 169 N.W.2d 326 (1969); Danek v. Meldrum Manufacturing & Engineering Co., Inc., 312 Minn. 404, 252 N.W.2d 255 (1977); Campbell v. Central Terminal Warehouse, 56 Ohio St.2d 173, 383 N.E.2d 135 (1978); English v. Lehigh County Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981); Simmons v. Atlas Vac Machine Co., 493 F.Supp. 1082 (E.D.Wisc.1980). In two such cases, which are factually on point with this case, the borrowed servants were injured from falls from scaffolding on the premises of the special employers. See Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir.1980); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967). In both cases summary judgments were entered and affirmed on the theory of the borrowed servant doctrine.

Rumsey urges that the case of Thornton v. Paktank Florida, Inc., 409 So.2d 31 (Fla. 2d DCA 1981), is controlling and requires reversal of this case. The facts recited in Thornton do not, however, support this contention. There the employee was, as here, hired by a temporary labor pool, Gale Porter Temporary Help, and was assigned to work for Paktank in cleaning barges. Finding the borrowed servant doctrine inapplicable, the Second District reversed a directed verdict entered in favor of the special employer. The factor motivating the court’s determination was a provision in the contract between Porter and Paktank, stating that Porter’s workers were not to be considered Paktank employees “for any purpose.” Because no similar contractual provision is before us we do not consider Thornton controlling.

Even without this clear factual distinction, the substantial weight of contrary authority would compel us to agree with Judge Grimes’ well reasoned dissent in Thornton, which observes that “practically all of the borrowed servant cases involving general employers in the business of furnishing temporary help hold that an employee who is covered by his general employer’s workmen’s compensation cannot claim damages against his special employer for injuries suffered while working on the temporary job.” 409 So.2d at 33 (Grimes, A.C.J., dissenting) (e.s. in original).

AFFIRMED.

BOOTH and ZEHMER, JJ., concur.


text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. Dolores R. SUPINO, Appellee.
    No. AU-215.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1984.
    Richard L. Robison, of Robison, Rooks & Owen, P.A., Casselberry, for appellant.
    Joseph H. Williams, of Troutman, Parrish, Williams & Blankenship, P.A., Winter Park, for appellee.
   PER CURIAM.

AFFIRMED. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

SHIVERS, JOANOS and THOMPSON, JJ., concur.


text:
    CITY OF GAINESVILLE and Crawford and Company, Appellants, v. Dan G. SAPP, Appellee.
    No. AU-383.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1984.

      John P. Brooks, of Jones & Langdon, P.A., Gainesville, for appellants.
    Thomas W. Davis, of Law Offices of Barton, Cox & Davis, Gainesville, for appel-lee.
   PER CURIAM.

AFFIRMED. Barris v. Toppers of Florida, Inc., 382 So.2d 441 (Fla. 1st DCA 1980).

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: NIMMONS, Judge.

text:
    Morris Daniel SAPP, Appellant, v. STATE of Florida, Appellee.
    No. AV-2.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1984.
    Michael Allen, Public Defender, and Pau-. la S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Appellant claims that the trial court erred in failing to give him credit, pursuant to Section 921.161(1), Florida Statutes (1981), for time which he had served prior to revocation of probation and sentencing. We reverse and remand.

As a condition of probation, appellant was required to “serve 364 days at the Jacksonville Work Release Center.” He contends that his entitlement to credit for that time is governed by this Court’s holding in Calhoun v. State, 403 So.2d 1082, 1084 (Fla. 1st DCA 1981), where we said:

We consider that the Jacksonville Community Correctional Center is an adjunct of the Duval County Jail and that appellant is entitled to credit for the time he was confined there.

Counsel asserts on appeal that the Jacksonville Work Release Center is the same facility or program as that to which we referred in Calhoun. However, the record is unclear as to whether that is the case. In fact, it would appear questionable to us that the two facilities are one and the same as it is doubtful that the circuit judge in Union County required the appellant to serve a period of time in “an adjunct of the Duval County Jail.”

Moreover, the record is virtually devoid of any evidence indicating whether the confinement required by the probation order was in a facility or program the purpose of which was structured rehabilitation and treatment or simply incarceration. As the court stated in Pennington v. State, 398 So.2d 815 (Fla.1981):

Halfway houses, rehabilitative centers, and state hospitals are not jails. Their purpose is structured rehabilitation and treatment, not incarceration.

See also Turner v. State, 395 So.2d 1242 (Fla. 1st DCA 1981), where this Court held that “residence” of a probationer at the “Men’s Probationers Restitution Center in Jacksonville” was not incarceration for purposes of entitlement to credit for time served under Section 921.161.

In the instant case, there is no evidence, as there was in Turner, indicating the milieu in which the appellant was confined or residing. Because of the factual criteria upon which the courts have relied in determining entitlement under Section 921.161 to time “served” in a facility other than a jail, we must remand to the trial court for reconsideration, after an eviden-tiary hearing, of the appellant’s entitlement to credit for the time spent at the subject facility in Jacksonville.

The trial court also refused to give appellant credit for the time which he spent in the Union County Jail while awaiting disposition of the probation violation charges. At the post-sentencing hearing (two weeks after revocation and sentencing) on the defendant’s motion to correct the sentence to allow credit for such jail time, the following colloquy occurred:

The Court: My intention by the 18 month sentence was a net 18 months. If I had the authority to do so, if you wish to have credit for any incarcerative time awaiting disposition while on probation, Mr. Replogle, it would be my intention to modify upward.
* ⅜ * # * *
Mr. Replogle: I guess on behalf of Mr. Sapp, I would ask the court to not modify the sentence, but to give credit for time served.

The court refused to do so. This was error. The defendant, by virtue of the provisions of Section 921.161(1), was entitled to credit against the sentence imposed for all time which he had served in the county jail. On remand, the trial court shall amend the sentence to show entitlement to credit for all county jail time. The court is precluded on remand from modifying the sentence upward. Cf. James v. State, — So.2d -(Fla. 1st DCA 1984) [9 FLW 193, January 27, 1984],

Reversed and Remanded for further proceedings consistent with this opinion.

SMITH and WIGGINTON, JJ„ concur.

      , Section 921.161(1) provides:
      (1) A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.


text:
    COSTA BELLA DEVELOPMENT CORPORATION, Appellant, v. COSTA DEVELOPMENT CORP., Ruth L. Elsasser, Sergio Diaz, Mercedes Diaz, Carol White, Irving Nissman, Flora Nissman, Alberto Fernandez Bravo, Teresita Fernandez Bravo, Irene Redstone, Hugo Misle, Abraham Janna and Carmen Janna, Appellees.
    Nos. 82-1277, 82-1278 and 82-2129.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Jill Nexon and Edward A. Stern; Fleming & Huck and Paul Huck, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The rulings of the trial court in this action to foreclose mortgages on condominium apartments are affirmed upon a holding that (1) the issue of whether the dismissal was proper was rendered moot by this court’s decision in Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla. 3d DCA 1983), (2) a trial court’s ruling permitting or denying further amendments to pleadings will not be disturbed on appeal in the absence of an abuse of discretion, Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983); Lasar Manufacturing Company, Inc. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983), (3) the trial court did not err in refusing to strike appellees’ affirmative defenses since the striking of pleadings is not favored and all doubts are to be resolved in favor of the pleadings, Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1979); Bay Colony Office Building Joint Venture v. Wachovia Mortgage Co., 342 So.2d 1005 (Fla. 4th DCA 1977), (4) the trial court’s adjudication of appellees’ counterclaim while an appeal was pending did not interfere with this court’s authority to decide the pending appeal since different issues were involved in the respective cases, Seaboard Coast Line Railroad Co. v. Lantz, 405 So.2d 495 (Fla. 3d DCA 1981); FMS Management Systems, Inc. v. IDS Mortgage Corp., 402 So.2d 474 (Fla. 4th DCA 1981), (5) appellant’s assertion that the summary judgment is too broad is wholly without merit since the trial court’s order clearly states that it encompasses only those owners whose title was recorded on or before January 8, 1979, and (6) appellant’s affirmative defenses are clearly resolved in favor of the appellees by simply referring to the agreement itself and to appellant’s conduct in this case.

Affirmed.


text:
    Raymond R. RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1530.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    William Kuypers, Key West, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Raymond Russell appeals from a conviction and sentence for the crime of aggravated battery. He alleges as error the denial of a defense motion for mistrial which was predicated upon the following question and answer during the state’s case in chief:

Q Would you tell me what this photo album looks like? Describe it for the jury.
A Big photo album like a photo album except you have photographs of people that we’ve arrested in the past or whatever. It’s like a mug photo album.

Russell promptly moved for a mistrial. The trial court denied the motion. Relying on State v. Rucker, 330 So.2d 470 (Fla.1976), the state argues that a reference to “mug shots” does not constitute reversible error in all cases. We agree. We nevertheless reverse and remand for a new trial because the error here complained of, based upon our review of the entire record, was indeed highly prejudicial.

The issues in this case involve the credibility of the state’s primary witness, Denise Reiser, and that of the defendant. Identification was never an issue in this trial. The jury’s focus was necessarily on the believability of the defendant’s testimony. The totally unnecessary question regarding the photo album begged for the highly prejudicial answer which may have created an inference in the jury’s mind that the defendant had previously been involved with the police. The reference here is not harmless within the meaning of section 924.33, Florida Statutes (1981).

Viewing the entire record and circumstances we hold that it was error to deny Russell’s motion for a mistrial. See Loftin v. State, 273 So.2d 70 (Fla.1973); see also Encinosa v. State, 431 So.2d 705 (Fla. 2d DCA 1983) (the denial of defendant’s motion for mistrial was proper where identity was an issue and there was other competent evidence identifying the defendant besides references to mug shots); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982) (no harmful error where defense counsel elicited reference to mug shots); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977), cert. denied mem., 359 So.2d 1217 (Fla.1978) (circumstances rendered introduction of “cropped” mug shots harmless error at most).

Reversed and remanded for a new trial.


text:
    Julius HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2008.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed upon the authority of Brown v. State, 431 So.2d 696 (Fla. 3d DCA 1983).


text:
    The STATE of Florida, Appellant, v. Pete PEPLER, Appellee.
    No. 83-488.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Deconingh v. State, 433 So.2d 501 (Fla.1983); Reddish v. State, 167 So.2d 858 (Fla.1964).


text:
    Roberto FARRA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-491.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Bennett H. Brummer, Public Defender and Lisa Bennett, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Ferguson v. State, 417 So.2d 639 (Fla.1982); Blair v. State, 406 So.2d 1103 (Fla.1981); Baxter v. State, 375 So.2d 16 (Fla. 2d DCA 1979).


text:
    Oscar GARCIA, Appellant, v. Icer GARCIA, Appellee.
    No. 83-563.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 10, 1984.
    Hershoff & Levy and Jay Levy, Miami, for appellant.
    Maurice Jay Kutner, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   NESBITT, Judge.

The husband filed a petition for dissolution of marriage and sought partition of the marital property. The wife counterclaimed seeking equitable distribution. The husband appeals from the trial court order granting equitable distribution.

He argues, based on Hu v. Hu, 432 So.2d 1389 (Fla. 2d DCA 1983), that in the absence of a pleading setting forth a claim for lump sum alimony, the trial court could not equitably distribute the property. The wife, citing Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1983) (en banc), responds that equitable distribution, in and of itself, is a vehicle which can be utilized to justify a property award without a claim for alimony.

Because we find that this issue was not raised by the husband below, we are pre-eluded from considering it on appeal. Concluding that the other contentions raised by the husband are without merit, we affirm.


text:
    Nathaniel STEPHENS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1399.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Bennett H. Brummer, Public Defender, and Joseph C. Segor, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See Donovan v. State, 417 So.2d 674, 675 (Fla.1982); Vitali v. United States, 383 F.2d 121, 123 (1st Cir.1967).


text:
    The STATE of Florida, Appellant, v. Vladimiro DERKAC, Appellee.
    No. 83-1747.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    John H. Lipinski, Miami, Louis Casuso, Coral Gables, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983).


text:
    The STATE of Florida, Appellant, v. Angel Gabriel RAMOS and Lazaro Acosta, Appellees.
    No. 83-1756.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellant.
    Kirk W. Munroe, Kenneth J. Duckworth, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 420 So.2d 655 (Fla. 3d DCA 1982), review denied mem., 429 So.2d 7 (Fla.1983).


text:
    Nathan ZIGMAN, Appellant, v. PUBLIX SUPERMARKETS, INC., Appellee.
    No. 83-1800.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Abramson & Magidson and John Abram-son, Miami, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Hagens v. Hilston, 388 So.2d 1379 (Fla. 2d DCA 1980).


text:
    Eusebio COSTA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1860.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Julio C. Codias, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See State v. Isaac, 436 So.2d 189 (Fla. 2d DCA 1983); Jordan v. State, 419 So.2d 363 (Fla. 1st DCA 1982); Way v. State, 418 So.2d 1227 (Fla. 3d DCA 1982); Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982); De La Cova v. State, 355 So.2d 1227 (Fla. 3d DCA 1978); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974); Compare, Lockett v. Blackburn, 571 F.2d 309 (5th Cir.1978).


text:
    Dionisio GOMEZ and Ana Maria Suarez, his wife, Appellants, v. Maria Cabrera ESPINOSA, Appellee.
    No. 83-2294.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Goethel and Garcia-Vidal and David A. Donet, Coral Gables, for appellants.
    Mascaro & Peppier and Charles Peppier, Miami, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Cash v. Surf Club, 436 So.2d 970 (Fla. 3d DCA 1983); Poe v. Estate of Levy, 411 So.2d 253 (Fla. 4th DCA 1982); Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561 (Fla. 3d DCA 1976).


author: HERSEY, Judge. BERANEK, Judge,

text:
    The GREENS OF INVERRARY CONDOMINIUM ASSOCIATION PHASE I, INC., Appellant, v. Floyd JOHNSON, Clerk of Broward County Property Appraisal Adjustment Board, Appellee.
    No. 82-2048.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied March 20, 1984.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.
    Harry A. Stewart, Gen. Counsel, Susan F. Delegal and Larry E. Lymas-Johnson, Asst. Gen. Counsel, Broward County, Fort Lauderdale, for appellee.
   HERSEY, Judge.

This is an appeal from a final order quashing an order to show cause and dismissing a petition for writ of mandamus in an action by a condominium association against the Broward County Property Appraiser regarding valuation adjustments.

After the owners of condominium units at the Greens of Inverrary each received a “Notice of Proposed Property Taxes” (“TRIM” notice) showing their newly assessed property valuations, the appellant condominium association attempted to file a petition for adjustment with the Property Appraisal Adjustment Board on behalf of all unit owners. The Property Appraiser and appellee, Johnson, Clerk of the Board, served notice on the owners that such class action petitions would not be accepted. Appellant filed a petition for a writ of mandamus requiring appellee to accept the class petitions. The lower court dismissed the petition for mandamus.

The legal issue presented for review is WHETHER A CONDOMINIUM ASSOCIATION HAS A CLEAR LEGAL RIGHT TO FILE A CLASS ACTION PETITION ADDRESSED TO A PROPERTY APPRAISAL ADJUSTMENT BOARD CONTESTING THE APPRAISED VALUATION OF THE INDIVIDUAL CONDOMINIUM PARCELS IN THE CONDOMINIUM.

A taxpayer who objects to his assessed valuation may seek relief by means of administrative review at an informal conference with the Property Appraiser (Section 194.011, Florida Statutes (1981)) or at a hearing before the Property Appraisal Adjustment Board (Section 194.032, Florida Statutes (1981)) or by means of judicial review in the circuit court (Section 194.171, Florida Statutes (1981)). Section 194.181, Florida Statutes (1981), provides that

(1) The plaintiff in any tax suit shall be:

(a) The taxpayer contesting the assessment of any tax, the payment of which he is responsible for under the law; or
(b) The property appraiser ....

Taxpayer is defined as “the person or other legal entity in whose name the property is assessed.” § 192.001(13), Fla.Stat. (1981). This definition was amended by Laws 1982, Chapter 82-226 § 53, effective January 1, 1983 to state: “the person or other legal entity in whose name property is assessed, including an agent of a time-share period titleholder.” Clearly, the condominium association is not the taxpayer under the statutory definition.

The remaining question is whether the various unit owners constitute a class for which the association may act as the taxpayers’ agent.

By statute the condominium association is granted the following powers:

(2) The association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance, management, and operation of the condominium property. After control of the association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action. Nothing herein limits any statutory or common-law right of any individual unit owner or class of unit owners to bring any action which may otherwise be available. [Emphasis added.]

§ 718.111(2), Fla.Stat. (1981); Fla.R.Civ.P. 1.221.

Therefore, in essence, the association may act on behalf of the unit owners as to those matters in which the owners have a common interest. In refusing to modify Rule 1.220(b) (present Rule 1.221), Florida Rules of Civil Procedure, the supreme court concurred in respondent’s assertions

that the rule is necessary and that public policy is advanced by expressly declaring condominium association members a class as a matter of law without the necessity for pleading or proving the traditional seven class action elements enunciated in Frankel [v. Miami Beach, 340 So.2d 463] and Harrell [v. Hess Oil & Chemical Corp., 287 So.2d 291], supra. Respondent’s position essentially is that the elements traditionally required to establish the efficacy of a class are inherent in a condominium association relationship making pleading and proof of such elements unnecessary and burdensome. This position is reinforced by the argument that individual association members are protected from capricious or arbitrary class actions by the governing authority of the association through provisions of Chapter 718, Florida Statutes (Supp.1976), as well as decisions which impose a fiduciary duty upon the governing body of such associations to afford due process and equal protection to its members. See McCune v. Wilson, 237 So.2d 169 (Fla.1970), and Franklin v. White Egret Condominium, Inc. [358 So.2d 1084] (Fla. 4th DCA 1977).

In Re Rule 1.220(b), Florida Rules of Civil Procedure (Petition to Modify), 353 So.2d 95, 97 (Fla.1977).

We take the issue whether the owners of these parcels can join together in a class action before the Property Appraisal Adjustment Board to be synonymous with the question whether they could ultimately proceed to litigation in that posture.

This court has held that a complaint in a class action brought by condominium owners against the county Property Appraiser for declaratory and monetary relief as to an ad valorem tax assessment alleged sufficient facts to survive a motion to dismiss. Adams v. Reid, 396 So.2d 1182 (Fla. 4th DCA 1981). In Adams the complaint alleged the county Property Appraiser singled out the appellant condominium apartments to suffer an increase in taxes while substantially all other condominium complexes in the county were intentionally omitted from increased tax assessment and hence were assessed at a lower valuation. That case makes it clear that a class action is proper where discrimination against the class is alleged. On the basis of this “common interest” it can be inferred that in such a case the condominium association would be a permissible plaintiff pursuant to Section 718.111(2), Florida Statutes (1981) and Rule 1.221, Florida Rules of Civil Procedure. Such blanket allegations were not advanced in the present case and review of the record convinces us that they could not be. Each condominium unit is a separate taxable parcel and absent a claim that some aberration in the assessment process is common to every such parcel there is not that “common interest” upon which the applicable statute and rule can operate to permit a class action.

We conclude that the permissibility of a class action by the condominium association under Rule 1.221 is dependent upon the facts alleged. In the instant case the facts alleged in the petition demonstrate that the issues involved do not concern matters of common interest such that the condominium association is a proper party and on that basis we affirm.

AFFIRMED.

DOWNEY, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting.

I dissent. The clerk should have accepted the class petitions for filing and the trial court should have granted mandamus to this effect.


author: DOWNEY, Judge.

text:
    Jeannette MROWCZYNSKI, Appellant, v. Frances Sass VIZENTHAL, et al., Appellees.
    No. 82-2185.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Lawrence J. Bohannon and Daniel E. Jacobson of Lawrence J. Bohannon, P.A., Fort Lauderdale, for appellant.
    Patrick Gent of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellees Broward County, Ferdinan-do S. Carollo and Allstate Ins. Co.
   DOWNEY, Judge.

This is an appeal from a summary judgment for Broward County, one of its employees, and its insurer, in an action arising out of a motor vehicle collision.

Jeannette Mrowczynski was a passenger on a bus owned by Broward County, operated by Ferdinando S. Carollo, and insured by Allstate Insurance Company on November 22,1977, when that bus was involved in a collision with a vehicle driven by Frances S. Vizenthal, owned by her and George Yizenthal, and insured by Government Employees Insurance Company. Immediately following the collision Carollo asked Mrow-czynski to fill out a form card that provided blanks for her name, address, telephone number and asked the question: “Were you hurt?” She wrote the answer: “Knee.” In response to the question: “In your opinion who was at fault?” she wrote: “Blue car.”

On March 9, 1978, an adjuster working on behalf of the County and Allstate wrote Mrowczynski and asked her to fill out a witness statement form.. Thereafter the adjuster interviewed her and took a recorded statement. In describing the November 22, 1977, incident in the statement, Mrow-czynski said:

“As we were approaching Washington Street, there was a lady in a blue car that had gone through the stop sign and the bus driver did not have enough time to stop and there was no way that he could have avoided the accident and by the time (sic) got on top of her it was too late. The bus hit the car and all passengers were thrown in the bus.”

She said she was thrown out of her seat and her knees were bruised. She had been treated by a physician; the treatment ended and she paid the physician $55.

On January 29, 1981, Mrowczynski wrote the Department of Insurance that she had a claim against the County. It does not appear that the Department ever replied to the notification of the claim. On April 29, 1981, Mrowczynski filed a complaint against Broward County, Carollo, Allstate, and the Yizenthals, and GEICO seeking damages for injuries resulting from the November 22, 1977, collision. The County group of defendants moved for a summary judgment on the ground that Mrowczynski had failed to comply with the notice requirements of Section 768.28(6), Florida Statutes (1981), and the court granted the motion and entered final judgment for the County, Carollo, and Allstate on the grounds that:

“1. Proper written notice as required under Florida Statutes § 768.28 was not given within the three years required by that Statute.
2. Further, the actions of BROWARD COUNTY and its agents alleged to constitute a waiver or to give rise to an estoppel concerning the notice requirements were insufficient, under the case law presented to this Court, to amount to a waiver or estoppel.”

On appeal Mrowczynski says the summary judgment was improper because (a) she filed her suit “under” Section 286.28, Florida Statutes (1981), and she is entitled to recovery “under” that statute; and (b) she complied with the Section 768.28(6), since by filling out the card after the collision and by responding to the insurance adjuster she, in effect, gave the County notice of her claim against it; and (c) in any event she is entitled to maintain her action against Carollo, the driver of the bus. We reject all of those arguments and affirm the judgment appealed from.

Appellant contends that she has a cause of action under Section 286.28, Florida Statutes, formerly Section 455.06, which has no notice provision similar to Section 768.28(6), since Broward County purchased insurance covering the tortious acts. Appellant argues the present claim is cognizable without the necessity of making a claim in writing within three years.

Appellees respond to appellant’s contention regarding the applicability of Section 286.28 in the context of McPhee v. Dade County, 362 So.2d 74 (Fla. 3d DCA 1978), which discusses the peculiarities of that statute authorizing a political subdivision to purchase liability insurance to cover its “necessary functions” and the dichotomy between governmental and proprietary functions. Without further plumbing the problems inherent in construing that statute, for purposes of the decision in this case we believe reference to the recent case of Burkett v. Calhoun County, 441 So.2d 1108 (Fla. 1st DCA 1983), fully answers appellant’s arguments in point one. Burkett points out: As

Burkett and Maddox contend on appeal that the notice provision of Section 768.-28(6) does not apply to their suit because Calhoun County had waived its sovereign immunity by securing liability insurance as authorized by Section 286.28, Florida Statutes (1981). We cannot agree with that contention.
Section 286.28 authorizes political subdivisions of the State to secure liability insurance, and that section goes on to provide that the sovereign immunity of those subdivisions is waived to the extent of the coverage. Section 768.28(10) evidences a legislative intent not to repeal Section 286.28. Nevertheless, Section 768.28 represents a complete overhaul of the area of sovereign immunity law in Florida. Dade County School Board v. Ingraham, 428 So.2d 283 (Fla. 3d DCA 1983). Section 768.28(1) waives sovereign immunity “only to the extent specified in this act.” Therefore, we believe that it was the intent of the legislature to require compliance with the notice provision of Section 768.28(6) whether or not the political subdivision elected to carry liability insurance.

Accordingly, we hold that to maintain a tort action against the State or one of its subdivisions (other than a municipality) the notice requirements of Section 768.-28(6) must be complied with regardless of whether or not the subdivision has procured liability insurance in compliance with Section 286.28, Florida Statutes (1981).

The next issue is whether there is evidence Mrowczynski did comply with the notice requirements set forth in Section 768.28(6), Florida Statutes (1981), which reads:

(6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

In order to comply with the foregoing section, a plaintiff must, within three years after a claim áccrues, submit his claim in writing to the potential defendant and, unless that potential defendant is a municipality, to the Department of Insurance. So the question here is whether Mrowczyn-ski’s responses on the card she filled out right after the collision-and when she was interviewed by the adjuster constituted a claim against the County.

A claim is a demand for something due as a right. 14 C.J.S., Claim, pp. 1182-1183; Cf. Herrera v. Doctor’s Hospital, 360 So.2d 1092, 1095 (Fla. 3d DCA 1978). There is no indication either in the card Mrowczynski filled out right after the collision or in the interview that she had with the insurance adjuster in March 1978 that she was making a demand on the County for something due her from the County for any injury she might have incurred in the collision. To the contrary, both the card and the interview indicated to the County that Mrowczynski felt the driver of the other vehicle was responsible for the collision and therefore would be answerable to any demand for compensation of any injury to her. We hold that Mrowczynski’s responses did not constitute a claim against the County. In any event judgment for the County was correct because Mrowczynski failed to provide written notice of any claim to the Department of Insurance within three years of November 22, 1977, as required by Section 768.28(6). Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983).'

Finally, appellant contends that summary judgment should not have been entered in favor of the driver Carollo because he cannot raise the notice requirement of Section 768.28(6) as a defense. She relies on Hucker v. City of Oakland Park, 427 So.2d 244 (Fla. 4th DCA 1983). Unfortunately for appellant, Hucker does not apply here. Section 768.28(9)(a), Florida Statutes (1981), provides that an employee of the state or any of its subdivisions shall not be held liable in tort unless the employee acted in bad faith or with malicious purpose or in a manner exhibiting wanton and wilful disregard of human rights, safety, or property. The complaint herein makes no such allegations regarding Carollo’s conduct at the time of the incident. Thus, appellant’s claim against Car-ollo individually cannot be maintained. Rupp v. Bryant, 417 So.2d 658 (Fla.1982).

Having treated all of appellant’s contentions, we find no reversible error and thus affirm the judgment under review.

AFFIRMED.

LETTS and DELL, JJ., concur.


text:
    Derrick Waverly MOO YOUNG, Appellant, v. AIR CANADA, a foreign corporation; and Venezolana International De Aviacion, S.A., a foreign corporation, Appellees.
    No. 83-1007.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Thomas R. Trompeter of Casuso & Trom-peter, South Miami, for appellant.
    Walters, Costanzo, Russell, Zyne & Newman and E.J. Rickenback of Miller & Cliff, Miami, for appellee/Air Canada.
    J. Michael Nifong, Sandra S. Barker of Squire, Sanders & Dempsey, Miami, for appellee/Venezolana De Aviación, S.A.
   DOWNEY, Judge.

Appellant, Derrick Waverly Moo Young, sued appellees, Air Canada and Venezolana International de Aviación, S.A., both foreign corporations, in the Broward County circuit court and attempted to obtain service of process pursuant to Section 48.181, Florida Statutes (1981). The trial court dismissed the complaint for lack of jurisdiction over appellees and Moo Young appealed.

Essentially, the amended complaint alleged that Moo Young operated a business involving the shipping of agricultural products and other goods; his principal place of business is Broward County, Florida. Air Canada and Venezolana jointly operate a weekly cargo flight between San Jose, Cos-ta Rica, and Toronto, Canada. Moo Young alleged that appellees breached their agreement with him whereumder he was to have the right to ship goods on this flight on an exclusive basis.

Air Canada filed a motion for more definite statement. Venezolana and Moo Young filed a joint motion to vacate a default judgment against Venezolana. Thereafter, appellees filed motions to dismiss for lack of subject matter and personal jurisdiction. Moo Young contends that the trial court erred in dismissing his action for want of jurisdiction over appellees.

Moo Young claims that the trial court had jurisdiction over the appellees because they both do business in Florida, namely, transporting persons and goods by air. In addition, Moo Young contends that appel-lees waived the right to contest personal jurisdiction because their motions prior to the motion to dismiss for lack of jurisdiction constituted general appearances before the trial court.

Appellant is wrong on both counts. The alleged contract between Moo Young and appellees did not involve any activity in Florida of the type necessary to create the minimum contacts required for jurisdiction. The weekly flight went from San Jose to Toronto; there was simply no nexus alleged between the performance of the contract and the appellees’ business in Florida. As stated in Venezolana’s brief:

The oral contract at issue in this case had no nexus whatsoever with the State of Florida. The action is predicated upon an alleged breach of an alleged oral contract between MOO YOUNG and VIASA [appellee Venezolana] for an exclusive shipment of certain agricultural products on a once a week flight jointly operated by VIASA and Defendant, Air Canada from San Jose, Costa Rica to Toronto, Canada. Other than allegations that Plaintiff resides in Broward County, Florida, made phone calls to the defendants, and that VIASA operates an airline with regularly scheduled commercial routes within the United States, including the State of Florida, even the Amended Complaint did not contain any allegations that would have supplied the necessary nexus. Nowhere did or could MOO YOUNG have alleged that the contract was entered into in the State of Florida; that the alleged contract was breached in the State of Florida; or that any of the transactions at issue had any nexus with the State of Florida at all. It is, therefore, irrelevant that VIASA is doing business in the State of Florida since it has not been shown that the present suit arose out of any transaction connected with VIASA’s business in Florida.

The fact that a non-resident does business in Florida is not enough to obtain jurisdiction over it. In addition, there must be some connection between the cause of action pleaded and the business operations conducted in Florida. This principal of con-nexity is described in Bloom v. A.H. Pond Co., Inc., 519 F.Supp. 1162 (S.D.Fla.1981), wherein the court stated:

Personal jurisdiction over nonresident defendants in Florida is limited to situations where the cause of action arises from the doing of business in Florida or the cause of action has some other connection to a specified act committed in Florida. This has been described as the ‘connexity’ requirement that must be met before jurisdiction over a nonresident can be sustained. It is clear that doing business in this state is not a sufficient basis, standing alone, upon which to predicate long-arm jurisdiction. There must also be some nexus or connection between the business that is conducted in Florida and the cause of action alleged. This interpretation of the long-arm statutes is supported by both state and federal courts faced with the problem, (citations omitted.) — Bloom, supra, at 1168.

Because no sufficient connection between the cause of action and appellees’ business operation in Florida was demonstrated, dismissal for lack of jurisdiction was appropriate.

The motions filed by appellees did not go to the merits of the case and therefore did not constitute a general appearance waiving the absence of jurisdiction. See Public Gas Co. v. Weatherhead Co., 409 So.2d 1026 (Fla.1982); McKelvely v. McKelvely, 323 So.2d 651 (Fla. 3d DCA 1976).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

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


author: DELL, Judge.

text:
    Michael SHIFFMAN, Appellant, v. John Kirby STUMPFF and Hallie J. Stumpff, his wife, and United States Fidelity and Guaranty Company, Appellees.
    No. 83-1123.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Scott A. DiSalvo of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellant.
    Harry M. Hausman of David L. Kahn, P.A., Fort Lauderdale, for appellees-Stumpff.
   DELL, Judge.

The non-resident defendant in a negligence action appeals from the trial court’s order denying his motion to quash service of process. We have jurisdiction. Fla.R. App.P. 9.030(b)(1)(B) and 9.130(a)(3)(C)®.

An automobile accident occurred in 1976. Appellee attempted to secure substituted service upon appellant by serving process upon the Secretary of State in 1980. Ap-pellee failed to file an affidavit of compliance as required by section 48.161(1), Florida Statutes (1981). On July 14, 1980, appellant specially appeared and moved to quash for failure to comply with Chapter 48, Florida Statutes. No further activity with reference to this motion occurred for two years and five months. On November 10,1982, before any hearing took place, the court below denied appellant’s motion to quash and allowed appellee ten days in which to file an affidavit of compliance or face dismissal. Appellee filed his affidavit two days later.

Section 48.161(1) provides for substituted service upon a nonresident defendant by leaving a copy of the process with the designated public officer. It also requires:

Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his attorney of compliance shall be filed on or before the return day of the process or within such time as the court allows, ... (emphasis added).

Clearly, appellee failed to file his affidavit of compliance by the return day of the process. Equally clearly, appellee filed his affidavit within the time the court allowed. Therefore, we must determine whether the trial court committed error when it sua sponte permitted appellee to file the affidavit two years and five months late.

Unless the plaintiff has complied with section 48.161, the court does not have jurisdiction. Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So.2d 892 (Fla.3d DCA 1982); P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978). Cases construing this and other substituted service statutes have repeatedly held that such statutes must be strictly construed and strictly complied with. See, e.g., Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267 (Fla. 4th DCA 1981); George Fischer Ltd. v. Plastiline, Inc., 379 So.2d 697 (Fla. 2d DCA 1980); Leviten v. Gaunt, 360 So.2d 112 (Fla. 3d DCA 1978); Century Brick Corp. of America v. Gatewood, 157 So.2d 95 (Fla. 3d DCA 1963); Rever v. Lapidus, 151 So.2d 61 (Fla. 3d DCA 1963).

Appellee contends that he has strictly complied, because he filed his affidavit of compliance “within such time as the court allows,” a matter within the trial court’s discretion. However, the policy which appears from the above cited cases is that substituted service statutes must be strictly construed against the party seeking to exercise long-arm jurisdiction. Not only does the plaintiff bear the initial burden to demonstrate compliance with the statute, once the defendant has made a prima facie showing of failure to comply, the burden again shifts to the plaintiff to demonstrate the statute’s applicability.

We have discovered only one case in which a trial court specifically permitted late filing of the affidavit of compliance. Green Manor Const. Co. v. Punta Gorda Ready Mixed Concrete, Inc., 159 So.2d 255 (Fla. 2d DCA 1963); rev’d on other grounds, 166 So.2d 889 (Fla.1964). Therein, however, the plaintiff filed his affidavit not more than two months late, and well before the defendant contested jurisdiction upon the ground of failure to file the affidavit of compliance. Our sister court correctly held that the plaintiff had satisfied the substituted service statute by filing his affidavit within such time as the court allowed.

The case sub judice presents a markedly different set of facts. Appellee did not comply with the statute and made no effort to do so before appellant moved to quash. After appellant filed his motion, appellee still made no effort to remedy his omission; he never even sought the court’s permission to file his affidavit late. The trial court denied the motion to quash despite appellant’s unrebutted prima facie demonstration of lack of jurisdiction, and despite two years and five months of inaction by appellee.

Appellee failed to carry his burden of proof. The trial court erred when it denied appellant's motion to quash.

REVERSED AND REMANDED WITH DIRECTIONS TO QUASH SERVICE OF PROCESS.

DOWNEY and HERSEY, JJ., concur.

      . In fact, no Record activity at all occurred until one year later, when appellant’s insurer/co-defendant moved to dismiss for lack of prosecution. Appellant’s motion to quash was set for hearing on November 23, 1981, but continued upon a stipulation that nothing further would be filed for record. The parties noticed several hearings on these motions, but apparently no hearing was held before the court entered the order contested here.


text:
    STATE of Florida, Appellant, v. Donald David LAMBERT, Jr., Appellee.
    No. 83-1244.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied March 21, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    Bernard Berman of Bernard Berman, P.A., Fort Lauderdale, for appellee.
   DELL, Judge.

The State appeals from an order granting appellee’s sworn motion to dismiss.

The state attorney’s office filed an information charging appellee and Anthony Charles Shust with burglary of a conveyance. Appellee subsequently filed a sworn motion to dismiss on the grounds that no dispute existed as to the material facts and that the undisputed facts did not establish a prima facie case. The State filed its traverse in which it specifically denied ap-pellee’s allegations and alleged that

[t]he State is prepared to establish that the Defendant did aid and abet the burglary of the subject motor vehicle by evidence showing that he acted as a lookout for Shust, the co-defendant, who physically committed the crime ....

The court deferred ruling on the State’s traverse and stated that it wanted to see if the State had “a shred of evidence.” The judge later granted appellee’s motion to dismiss after holding as follows:

[T]he Court has delved into the validity and the good faith of the traverse, and based upon Mr. Dupree’s further investigation, it seems as though the traverse is really presented not in the best faith, and there is really no genuine issue for the Court to consider in the case.

The State contends that because it denied the facts set out in appellee’s motion to dismiss with specificity, the trial court should have denied the motion. We agree and reverse.

Florida Rule of Criminal Procedure 3.190(d) provides that a motion to dismiss “shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss.” The traverse filed by the State denied with particularity the allegations of the motion to dismiss, thus putting material facts in issue. We do not find the trial judge’s comments that the affidavit was not filed “in the best faith” sufficient to bring the traverse within the language of Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977), wherein the court stated “any denial by the State must be in good faith, and not be based upon speculation, conjecture, presumption nor assumption.”

The State met the requirements of Florida Rule of Criminal Procedure 3.190(d) and the trial court should have denied appel-lee’s motion to dismiss. See State v. Oberholtzer, 411 So.2d 376 (Fla. 4th DCA 1982), petition for review denied, 419 So.2d 1199 (Fla.1982).

Accordingly, we reverse the trial court’s order of dismissal and remand this cause for further proceedings.

REVERSED and REMANDED.

BERANEK and WALDEN, JJ., concur.


text:
    GREYHOUND LINES, INC., a foreign corporation, Petitioner, v. May JACKSON, as Personal Representative of the Estate of Caprida Jackson, deceased; and as Personal Representative of the Estate of Tarrah Jackson, deceased, Respondents.
    No. 83-2692.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      G. William Bissett of Preddy, Kutner & Hardy, P.A., Miami, and Thomas Howard, West Palm Beach, for petitioner.
    Jeffrey Leibovit and Richard W. Slawson of Slawson & Berman, North Palm Beach, for respondents.
   PER CURIAM.

By petition for writ of certiorari, we are asked to review an order of the trial court denying a motion for a protective order as to certain interrogatories propounded by the plaintiff to the defendant. Certiorari is the appropriate vehicle for testing the correctness of an order governing discovery procedures. Malt v. Simmons, 405 So.2d 1018 (Fla. 4th DCA 1981). However, certiorari will be granted only where the order of the trial court is a departure from the essential requirements of law and there would be no adequate remedy by appeal. Everglades Protective Syndicate, Inc. v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1980).

In the instant case, the plaintiff filed a complaint against the petitioner for the negligent operation of its bus by one of its employees which resulted in a collision. The requested production demands information concerning traffic violations committed by each and every one of all the defendant’s bus drivers operating in Florida for a three year period. The expenditure of time and money required for this endeavor is burdensome and oppressive and we believe the respondents have failed to show a necessity justifying such discovery. See Slatnick v. Leadership Housing Systems, Inc., 368 So.2d 78 (Fla. 4th DCA 1979), and North Miami General Hospital v. Royal Palm Beach Colony, Inc., 397 So.2d 1033 (Fla. 3d DCA 1981).

Accordingly, we grant the writ, quash the trial court’s order and direct the trial court to strike the objectionable interrogatories and to expunge them from the record.

DOWNEY and LETTS, JJ., concur.

HURLEY, J., dissents without opinion.


author: SCHEB, Judge.

text:
    Walter Reed KING, Appellant, v. STATE of Florida, Appellee.
    No. 82-853.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.

      Paul J. Martin of Boardman & Martin, P.A., Immokalee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Walter Reed King was convicted of conspiracy to traffic in cannabis and was sentenced to fifteen years imprisonment. He was declared indigent prior to trial and subsequently for the purpose of appeal. Along with his term of imprisonment, the trial court also ordered King to pay a fine of $10,000 and assessed the following costs and fine against him: court costs of $500; $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund); $2 pursuant to section 943.-25(4) (Law Enforcement Training and Correctional Officer Training Trust Fund); and $10 pursuant to section 775.0835 (optional fine for Crimes Compensation Trust Fund).

On appeal King challenges the fines and costs imposed on the ground that he was indigent at the time of sentencing.

The mere fact of King’s indigency is no basis for challenging the $10,000 fine. Nash v. State, 434 So.2d 33 (Fla. 2d DCA 1983). However, we hasten to point out that if King is financially unable to pay the fine, the court may not impose an alternative sentence of imprisonment for his failure to pay. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Rollins v. State, 299 So.2d 586 (Fla.), cert. denied, 419 U.S. 1009, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); Dunn v. State, 247 So.2d 26 (Fla. 2d DCA 1971).

The assessment of costs under sections 960.20 and 943.25(4) would be permissible if King was first given adequate notice of such assessment and full opportunity to object. Jenkins v. State, 444 So.2d 947 (Fla.1984). Where no prior notice has been given, this court has stricken the assessment of such costs. Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984).

Here, nothing in the record indicates that King was given notice and an opportunity to object to the assessment of costs under sections 960.20 and 943.25(4). Accordingly, the assessment of these costs was inappropriate and is hereby stricken. Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins. See also Williams v. State, 445 So.2d 408 (Fla. 2d DCA 1984).

The trial court also erred in imposing the $500 court costs against King since he had been adjudged insolvent. Cox v. State, 334 So.2d 568 (Fla.1976); Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983). Accordingly, the assessment of this cost is stricken.

Finally, we address the fine assessed under section 775.0835, which authorizes the court to order an optional fine, not to exceed $10,000, payable to the Crimes Compensation Trust Fund. However, such a fine may be ordered only if the crime pled to, or convicted of, is a felony or misdemeanor which results in the injury or death of another person. Because King was convicted of a felony which did not result in the personal injury or death of another person, the court was not authorized under the statute to order such a fine. Moore v. State, 422 So.2d 1069 (Fla. 2d DCA 1982). Accordingly, we strike the $10 fine imposed pursuant to section 775.0835.

We have examined all other points raised by King and find them to be without merit. Therefore, in all other respects, we affirm his judgment and sentence.

GRIMES, A.C.J., and RYDER, J., concur.


text:
    Randy Beven EASTERLY, Appellant, v. STATE of Florida, Appellee.
    No. 82-871.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.

      Paul J. Martin of Boardman & Martin, P.A., Immokalee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Randy Beven Easterly was convicted of conspiracy to traffic in cannabis and attempted trafficking in cannabis. He was sentenced to two consecutive fifteen-year terms of imprisonment and ordered to pay a fine of $20,000. Additionally, the court assessed the following costs against him: court costs of $1,000; $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund); $2 pursuant to section 943.25(4) (Law Enforcement Training and Correctional Officer Training Trust Fund); and $20 pursuant to section 775.-0835 (optional fine for Crimes Compensation Trust Fund). Five days after entry of judgment and sentence, he filed an affidavit of indigency and was subsequently declared insolvent for the purpose of appeal, and counsel was appointed to represent him. Easterly was represented by private counsel during trial.

On appeal Easterly challenges the fines and costs imposed on the ground that he was insolvent.

We first note that Easterly had not been found insolvent at the time of sentencing. At that time he was represented by private counsel and was not declared insolvent until some time later. Although Easterly relies on Ortiz v. State, 420 So.2d 923 (Fla. 2d DCA 1982), in support of his argument, we note that Ortiz applies only to the assessment of costs against a defendant who is insolvent at the time of sentencing. Therefore, we find no error in the trial court’s assessment of fines and costs against Easterly since, at that time, he was not found to be insolvent.

However, we do find that the fine assessed pursuant to section 775.0835, Florida Statutes (1981), was improper, since Easterly was convicted of felonies which did not result in the injury or death of another person. Moore v. State, 422 So.2d 1069 (Fla. 2d DCA 1982).

Accordingly, we strike the $20 fine imposed pursuant to section 775.0835. We have examined all other points raised by Easterly and find them to be without merit. Therefore, in all other respects, we affirm his judgment and sentences.

GRIMES, A.C.J., and RYDER, J., concur.


text:
    Edward Lynn RIBLETT, Appellant, v. STATE of Florida, Appellee.
    No. 82-974.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty.' Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Edward Lynn Riblett was convicted of conspiracy to traffic in cannabis. This is a felony which did not result in the injury or death of another person. Accordingly, we strike the fine of $10 imposed pursuant to section 775.0835, Florida Statutes (1981). Moore v. State, 422 So.2d 1069 (Fla. 2d DCA 1982).

We affirm all other fines and costs assessed against Riblett on the basis of our holding in Easterly v. State, 445 So.2d 1110 (Fla. 2d DCA, 1984).

We have examined all other points raised by Riblett and find them to be without merit. Therefore, in all other respects, we affirm his judgment and sentence.

GRIMES, A.C.J., and RYDER, J., concur.


text:
    Alex Washington WIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-975.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    Paul J. Martin of Boardman & Martin, P.A., Immokalee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Alex Washington Wiggins was convicted of conspiracy to traffic in cannabis and attempted trafficking in cannabis. These are felonies which did not result in the injury or death of another person. Accordingly, we strike the fine of $20 imposed pursuant to section 775.0835, Florida Statutes (1981). Moore v. State, 422 So.2d 1069 (Fla. 2d DCA 1982).

We affirm all other fines and costs assessed against Wiggins on the basis of our holding in Easterly v. State, 445 So.2d 1110 (Fla. 2d DCA, 1984).

We have examined all other points raised by Wiggins and find them to be without merit. Therefore, in all other respects, we affirm his judgment and sentences.

GRIMES, A.C.J., and RYDER, J., concur.


text:
    Calvin E. MURPH, Jr., a/k/a Karem Abdullah, Appellant, v. STATE of Florida, Appellee.
    No. 82-2468.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Calvin Murph appeals from his judgment and sentence for robbery with a weapon.

The final judgment assessed an attorney’s fee of $250 and clerk costs of $50 against the defendant. Because he is insolvent, Murph argues that the attorney’s fees and clerk costs should not have been assessed against him.

Attorney’s fees and costs may be assessed against a defendant adjudged insolvent after notice and hearing under section 27.56, Florida Statutes (1981). Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982). Here, nothing in the record indicates that Murph was given notice and an opportunity to object to the assessment of attorney’s fees and costs. Drumm v. State, 432 So.2d 765 (Fla. 2d DCA 1983).

Accordingly, the assessment was not appropriate and is hereby stricken. Our decision is without prejudice to the state to assess these fees and costs in accordance with the procedures outlined in section 27.-56.

We see no merit in Murph’s other contentions; therefore, in all other respects, the judgment and sentence is affirmed.

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


author: RYDER, Judge.

text:
    John William ST. CLAIR and Thelma Elizabeth St. Clair, Appellants, v. Victor S. SMITH and Mary A. Smith, Appellees.
    No. 83-339.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    E. Summers Sheffey, Dade City, for appellants.
    A.P. Gibbs of Gibbs, McAlvanah & Hanson, P.A., Dade City, for appellees.
   RYDER, Judge.

The St. Clairs timely appeal from the trial court’s entry of a final summary judgment in favor of the Smiths, the plaintiffs below. In granting the Smiths’ motion for summary judgment, the trial court held that the Smiths were owners in fee simple of real property situated in Pasco County, Florida, by virtue of adverse possession without color of title; title in the property was thereby quieted in the Smiths. The court found that the Smiths have an easement by prescription for ingress and egress over and across a portion of the St. Clairs’ adjacent property. It was also held that a fence which separates the lands of the parties “has been recognized and acquiesced in by all of the parties and their predecessors in title since at least the year 1922,” and the fence has become the boundary line between the respective parcels of the parties by acquiescence.

The Smiths raised various claims before the trial court. The St. Clairs disputed the claims and made various allegations supporting their own contentions. The trial court had before it, in addition to the pleadings, affidavits and depositions of the parties and several witnesses. Surveys of the property were presented, and challenged, as were aerial photographs. Similarly, factual issues were raised as to the existence and location of fences on the property, improvements made on the land, the exercise of control over the land, and the payment of taxes on the property.

After a careful review of the record and the arguments of the parties, we are led to the conclusion that the trial court improperly weighed the evidence presented on the motion. The law is clear that summary judgment is not a substitute for trial. A motion for summary judgment is only to be granted when it is shown that there are no genuine issues of material fact presented in the pleadings and other evidence before the trial court, and the mov-ant is entitled to judgment as a matter of law. L & S Food Services, Inc. v. Roberts Cafeteria, Inc., 422 So.2d 45 (Fla. 2d DCA 1982); Monroe v. Appelton, 419 So.2d 356 (Fla. 2d DCA 1982); Burkett v. Parker, 410 So.2d 947 (Fla. 1st DCA 1982). The Smiths have not carried the burden which would support summary judgment.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SCHEB, A.C.J., and SCHOONOVER, J„ concur.


text:
    STATE of Florida, Appellant, v. Charles Anthony HAGER, Appellee.
    No. 83-1273.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Joseph R. Miele, St. Petersburg, for ap-pellee.
   PER CURIAM.

The state seeks review of the trial court’s order granting appellee Hager’s motion to suppress evidence. After a careful consideration of the record, arguments, and the applicable law, we find no error in the trial court’s decision. A “founded” suspicion would be necessary to justify the actions of the police officer in this case. In fact, the record reflects that the police officer had no more than a “bare” or “mere” suspicion of illegal activity. The trial court properly granted Hager’s motion to suppress. Mullins v. State, 366 So.2d 1162 (Fla.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979); Coladonato v. State, 348 So.2d 326 (Fla.1977); Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983); R.B. v. State, 429 So.2d 815 (Fla. 2d DCA 1983); Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980).

AFFIRMED.

GRIMES, A.C.J., and SCHEB and RYDER, JJ., concur.