text:
    Ruth E. BOWERS, as Personal Representative of the Estate of Lawrence Bowers, and individually, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 83-1991.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 19, 1984.
    Stanley Jay Bartel, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller & Downs and Donna S. Catoe and Jackson L. Peters, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence. Finding that the judgment of the trial court is supported by competent evidence, we affirm. Kuvin v. Kuvin, 442 So.2d 203, 206 (Fla.1983); Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Laufer v. Norma Fashions, Inc., 418 So.2d 437, 439 (Fla.3d DCA 1982); Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James H. JACOBY, Appellant, v. Miriam K. JACOBY, Appellee.
    No. 83-2920.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 17, 1984.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul Siegel, Miami, for appellant.
    Maurice Jay Kutner, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Garcia v. Garcia, 445 So.2d 1093 (Fla. 3d DCA 1984).


author: PER CURIAM. JORGENSON, Judge,

text:
    METROPOLITAN DADE COUNTY, Petitioner, v. Bertram CRAVEN, Respondent.
    No. 84-1134.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 17, 1984.
    Robert A. Ginsburg, County Atty. and Richard Jay Weiss, Asst. County Atty., for petitioner.
    Arthur B. Stark, Miami, for respondent.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Certiorari denied.

JORGENSON, Judge,

dissenting.

I respectfully dissent from the denial of certiorari in this case. Although the circuit court was correct in reversing the county manager’s decision to terminate the employee, see Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980) (circuit court correctly reversed board’s termination order because charges were unsubstantiated by the evidence), petition for rev. denied, 399 So.2d 1140 (Fla.1981); see also Metropolitan Dade County v. Marusa, 295 So.2d 704 (Fla. 3d DCA 1974) (circuit court erred in setting aside termination by county manager where there was sufficient supportive evidence in hearing examiner’s record), in my view the circuit court departed from the essential requirements of law, see City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982); Board of County Commissioners of Pinellas County v. City of Clearwater, 440 So.2d 497 (Fla. 2d DCA 1983); Town of Mangonia Park v. Palm Beach Oil, Inc., 436 So.2d 1138 (Fla. 4th DCA 1983), petition for rev. denied, 450 So.2d 487 (Fla.1984), when it granted further relief directing Craven’s reinstatement. The appropriate relief in the circuit court would have been a remand to the county manager with directions to return the file to the hearing examiner so that the unresolved fact credibility issues upon which this case turns are decided. See Gentile v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087 (Fla. 1st DCA 1984); Metropolitan Dade County v. Stein, 296 So.2d 643, 645 (Fla. 3d DCA 1974) (Carroll, J., dissenting), cert. denied, 307 So.2d 185 (Fla.1975); cf. City of Opa-Locka v. Carlile, 323 So.2d 661 (Fla. 3d DCA 1975) (no competent evidence warranted dismissal and reinstatement proper because no question of unresolved issues), cert, dismissed, 330 So.2d 15 (Fla. 1976).


text:
    CENTRAL TRUCK LINES, INC. and Liberty Mutual Insurance Company, Appellants, v. Noah COLEMAN, Appellee.
    No. AW-382.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.

      A.H. Lane of Lane, Trohn, Bertrand & Williams, Lakeland, for appellants.
    Sherry L. Davis of Meyers & Mooney, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal from the order of the deputy awarding claimant’s attorney a fee of $40,000 for services performed in obtaining compensation benefits of $325,208.38 as a result of an industrial injury by accident occurring June 30, 1981. We do not find this fee to be excessive; however, we are constrained to remand the cause because the deputy, in his order, failed to evaluate the statutory factors enumerated in Sections 440.34(l)(a-h), Florida Statutes, and to indicate how each factor was operative in determining the fee. Aetna Maintenance Corp. v. La Baff, 377 So.2d 53 (Fla. 1st DCA 1979).

The order of the deputy is, in pertinent part, as follows:

I considered, weighed, and evaluated the testimony presented to me by the witnesses concerning each of the relevant factors set forth in FS 440.34(a) (a)-(h). A guidesline [sic] attorney fee on the benefits secured would be approximately $49,000.00. I have decreased the guidelines fee by approximately $9,000.00 due to the time of 62 hours. The Court in considering factor 440.-34(l)(a) recognizes the claimant’s attorney is outstanding in his abilities as a workers’ compensation specialist attorney and has specialized in the area of law for many years and has a breadth of experience that few workers’ compensation attorneys can approach. The average workers’ compensation practioneer [sic] would have spent probably a [sic] 100 hours to do what claimant’s attorney accomplished in 62 hours.
In addition, emphasis was placed by me on factor (h) as to the contingency aspect of the claim.
Factor (g) played a most important part in my consideration of the fee due to the amount of the benefits secured by claimant’s attorney for his client.

The foregoing order fails to evaluate in full the statutory factors required, specifically Section 440.34(l)(a), the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; factors of Sections 440.34(l)(b), (c), (e), and (f) are not evaluated at all, and factor (h) is mentioned but without explanation. Finally, it does not appear that the deputy considered whether concessions or admissions made by the employer/carrier in this case simplified or shortened the litigation, a matter entitled to consideration under this Court’s opinion in Moss v. Keller Industries, Inc., 393 So.2d 574 (Fla. 1st DCA 1981). The determination of a reasonable attorney’s fee is not to be based on a strictly mechanical formula, either a percentage of the benefits secured or a fixed hourly rate for services performed. All factors required under the statute and case law must be considered and evaluated expressly in the order awarding fees.

Accordingly, the order is reversed and the cause remanded for further proceedings consistent herewith.

BOOTH, SMITH and THOMPSON, JJ., concur.

      . 8 Davis Workers' Compensation § 684 (1982).


author: WENTWORTH, Judge.

text:
    Bonnie Heath FARM and the Hartford, Appellants, v. Franklin FERRELL, Appellee.
    No. AX-370.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Rehearing Denied Dec. 4, 1984.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    Daniel L. Hightower of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lee.
   WENTWORTH, Judge.

This is an appeal from a workers’ compensation order of February 15, 1984, awarding payment under Chapter 440, Florida Statutes, for nursing services to claimant’s wife at the rate of $3.35 per hour, eight hours per day, seven days a week, retroactive to January 23, 1976. Claimant was accepted as permanently totally disabled by the appellant carrier in 1976, and the parties then stipulated to a fee for nursing services “from the date of accident [2/20/75] to the date she was married to the Claimant” on January 23, 1976, with provision for a new claim in event of further entitlement. Three hours’ daily care had been voluntarily authorized as of May 2, 1983, and appellants challenge the order granting five additional daily hours’ care from that date as well as the entire award for earlier years. We affirm.

The record is replete with both expert and lay testimony as to claimant’s need for medical monitoring and assistance with basic personal activity, including his repeated incidents of drug overdose before and after the initial payment for nursing services, supra. Based on the stipulated termination date, coinciding with claimant’s marriage to the provider of such service, appellants “suggest that the only conclusion to be drawn from that agreement and order is that all the parties recognize that once she married the claimant she was excluded from payment for her services because the services were of the type that fall within the gratuitous presumption when performed by a spouse.” We find no such inference in this case. Even the current statute, § 440.13(2)(d), Florida Statutes, as amended in 1983 to codify the earlier decisional rule, clearly contemplates compensation for family members who render nonprofessional custodial care except “when the services they provide do not go beyond those which are normally provided by family members gratuitously.” The deputy in this case properly concluded that the evidence before him substantiated payment for services of the nature and duration awarded, because they were required by claimant’s injury and therefore were not such services as are normally provided by family members gratuitously.

With respect to the cross-appeal asserting error in the hourly rate of compensation, we find sufficient support for the deputy’s award.

Affirmed.

SHIVERS and NIMMONS, JJ., concur.

      . Appellee argues with some persuasiveness: "... such a presumption would be discrimination based on marital status. If services are needed, it would be discriminatory to pay a nurse's aide who lived in, but not pay a nurse due to the mere fact of marriage."

      . Cf. Walt Disney World v. Harrison, 443 So.2d 389, 393: "It is not the purpose of section 440.13 to burden family members with medically required ... unskilled attendate care_”


text:
    Hiram D. BERRY, Appellant, v. J.C. PENNEY COMPANY and Liberty Mutual Insurance Company, Appellees.
    No. AY-351.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Rehearing Denied Dec. 4, 1984.

      Paul D. Srygley, Tallahassee, for appellant.
    Frank J. Santry of Field, Granger, San-try & Mitchell, Tallahassee, for appellees.
   PER CURIAM.

This cause is before us on appeal from a workers’ compensation order granting the employer/carrier’s motion to dismiss with prejudice the employee’s claim due to claimant’s failure to appear at two duly scheduled depositions. The record shows the motion to dismiss was served on the day of the previously scheduled hearing on the merits. Further, the record fails to indicate that there was any notice of hearing on the motion to dismiss. Claimant, proceeding pro se, attended the hearing on the merits, but the deputy converted the merits hearing into a hearing on the motion to dismiss, which motion the deputy subsequently granted.

Accordingly, we must vacate the order and remand this cause since the record before us shows that claimant was not given adequate notice of the motion to dismiss or of hearing on that motion. International Brotherhood of Electrical Workers, Local 349 v. Albury, 299 So.2d 581 (Fla.1974).

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    Leroy McKINNEY, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. BC-64.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Leroy McKinney, in pro. per.
    No appearance for respondent.
   PER CURIAM.

McKinney’s conviction for possession of a firearm by a convicted felon was affirmed by this court in McKinney v. State, 428 So.2d 322 (Fla. 1st DCA 1983). In a petition for writ of habeas corpus filed in this court, he claims that his appellate counsel was ineffective because of the failure to assert on appeal that the firearm should have been suppressed pursuant to Section 901.151(6), Florida Statutes (1981). However, even assuming that the facts of this case justified raising such issue, appellate counsel would have been precluded from doing so inasmuch as such defense was not asserted at trial. The petition is therefore Denied.

BOOTH, WIGGINTON and NIMMONS, JJ., concur.


text:
    Thomas James TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2988.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Rehearing Denied Dec. 17, 1984.
    Chaykin, Karlan & Jacobs and Sharon Jacobs, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We hold that under the totality of the circumstances the identification was reliable, and there was no substantial likelihood of misidentification, even though the confrontation procedure was suggestive. We therefore affirm the judgment of conviction. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Grant v. State, 390 So.2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981); Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982).

Affirmed.


author: BARFIELD, Judge.

text:
    John L. WHITE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AY-134.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    Rehearing Denied Nov. 30, 1984.

      Louis 0. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

John L. White, Jr. appeals his conviction for possession of marijuana and cocaine. He pled nolo contendere while reserving his right to appeal the denial of his motion to suppress evidence.

The issues presented in this appeal are whether the trial court erred in denying the motion to suppress on grounds that the officer had probable cause to arrest White for loitering or prowling and whether the search was permissible and the evidence admissible on other grounds.

On September 6, 1983, Officer Frank Munday of the Jacksonville Sheriff’s Office was on patrol at approximately 1 a.m. when he observed a vehicle parked at the side of the Northside Jacksonville Health Clinic, which is apparently adjacent to a school where there had been several burglaries. Munday shined his bright lights and his spotlight on the car and did not see anyone inside it. He approached the vehicle and found the defendant soundly asleep in the driver’s seat, which was fully reclined. The officer recognized the defendant but had no information that he was armed or dangerous. Munday approached the car and identified himself as police, but White remained asleep. The officer concluded that the suspect was either intoxicated or sick, and shook him and asked if he needed assistance. White woke up and answered negatively. Munday asked him to exit the auto and to produce some identification. White agreed to produce the identification, but never did. Rather, he insisted on going home and became verbally “very abusive and very defensive”. At the hearing (but not in an earlier deposition) Munday stated that he then suspected that White was waiting for someone who was engaged in criminal activity in the back of the building. Munday felt he had grounds to arrest White for prowling at this time.

The officer got White out of the car and got him to place his hands on the car for a pat down. White pushed back and Munday had to use some force to accomplish the pat down. Munday felt something in White’s front pants pocket and reached in and found a folded small manila envelope. He squeezed the envelope so he could observe the contents and concluded that it was marijuana. Officer Munday’s testimony regarding his impression of the contents of the pocket was equivocal. He said he did not know what it could have been, but that it possibly could have been a knife or a gun. He admitted, however, that he knew it was not metal or wood. On cross-examination, he stated that he thought it might be powder that could be thrown in his eyes or plastic explosives. He admitted that he had never arrested anyone in possession of plastic explosives.

At this point, appellant was arrested and placed in the patrol car. When asked, he told the officer that he wished to leave his car at the scene but asked that his checkbook and shoulder bag, which were in the front seat, be placed in the trunk. Munday got the articles and, using the keys which had been left in the ignition, opened the trunk. He there observed a water pipe protruding from a large paper bag. He opened the bag and found other bags containing drug paraphernalia and cocaine. White was arrested for possession of marijuana, cocaine and drug paraphernalia. The latter charge was later dropped. Defendant moved to suppress the evidence; the motion was denied on grounds that Munday had probable cause to arrest White for violation of section 856.021, Florida Statutes (1983) and the search was subsequent to the arrest.

We reverse the trial court’s denial of the motion to suppress. Officer Munday did not have probable cause to arrest for prowling or loitering and there were no other grounds to conduct a full search. Even if a stop and pat down pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), were permissible, the officer did not have a reasonable belief that the object in appellant’s pocket was a weapon.

White’s conduct cannot possibly be construed to be that prohibited by section 856.021. It must be remembered that White was prone in a fully reclined driver’s seat and was in a very deep sleep. This is simply not a situation where “peace and order are threatened or where the safety of persons or property is jeopardized.” State v. Ecker, 311 So.2d 104, 109 (Fla.), cert. denied sub nom. Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). Officer Munday’s statement at hearing that he was concerned that appellant was the look-out for a burglar is patently absurd. Rather, it looks more like a rationalization constructed after deposition and before hearing when the officer realized the arrest may not have been for probable cause.

The officer’s testimony that he thought the object in appellant’s pocket was a weapon is far-fetched. He carefully avoided saying that he knew it was not a weapon, but he admitted it was soft and not metal or wood. His “plastic explosives” theory is incredible given the circumstances; it defies reason to suspect the defendant was a potential terrorist. While Officer Munday did say he had powder thrown in his face previously, if this explanation is permitted, nearly anything found in a pat down will become admissible. This flies in the face of the Supreme Court’s opinion in Terry v. Ohio, supra, as well as Florida precedent. See Baldwin v. State, 418 So.2d 1219 (Fla. 2d DCA 1982); Meeks v. State, 356 So.2d 45 (Fla. 2d DCA), cert. denied, 364 So.2d 892 (Fla.1978); and Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977).

There being no other grounds for the search of appellant’s person and vehicle, the evidence was improperly seized and the motion to suppress should have been granted.

The decision of the trial court is REVERSED.

JOANOS and WIGGINTON, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Gary B. ADAMSON, Appellant, v. Joann ADAMSON, Appellee.
    No. 84-443.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1984.

      Robert G. Stokes, Bartow, and Craig M. Spanjers of Stanley, Wines, Bennett, Murphy, Spanjers & Helms, P.A., Auburndale, for appellant.
    Robert L. Valentine of Jacobs & Valentine, Lakeland, for appellee.
   GRIMES, Acting Chief Judge.

In this appeal from a judgment of dissolution, the husband complains that the court abused its discretion in making a $216,000 lump' sum alimony award to the wife.

The parties were married for twenty-seven years. They had three children, all of whom have completed college. The husband is a corporate executive with annual earnings of approximately $105,000 plus fringe benefits. The wife had taught school as a young woman but has not been employed outside the home for the last twenty-five years. The acquisition of all of the parties’ assets arose out of their marriage. At the time of the dissolution hearing both parties were forty-nine years old and in good health.

The court ordered the husband to pay permanent alimony of $1,500 per month. The court’s distribution of the significant marital assets is illustrated by the following table.

ASSET VALUE LIEN AWARD TO WIFE AWARD TO HUSBAND

Home $123,000.00 $ 34,526.00 $ 88,474.00 $ -0-

Furnishings 20,000.00 None 20,000.00 -0-

IRA’s 4,000.00 None 2,000.00 2,000.00

Corporate Stock of Employer 227,180.00 86,940.00 140,240.00

Lump Sum Alimony N/A N/A 50,000.00 -0-

Vested portion of profit sharing plan 55,562.32 None 55,562.32

Lump Sum Alimony N/A N/A 216,000.00 -0-

Marital Debts N/A 50,000.00 -50,000.00

$429,742.32 $171,466.00 $376,474.00 $147,802.32

The court ordered the husband to pay the marital debts. The $50,000 lump sum alimony award is to be paid in full on or before January 1989. This award was made in lieu of the wife’s claim for an interest in the husband’s stock. The $216,-000 in lump sum alimony is payable in monthly installments of $1,500 for a period of twelve years. The judgment recites that the wife’s claim to an interest in the husband’s pension plan was denied in part because of that award. The husband attributes the disparity in the distribution of marital assets to the lump sum $216,000 award.

This case graphically illustrates the dilemma often faced by trial courts in dissolution proceedings. The husband’s high earning capacity and the wife’s lack of marketable skills, when viewed in the context of a long marriage in which the parties enjoyed a high standard of living, dictate the need of substantial support for the wife. Yet if all of the wife’s support is ordered in the form of permanent alimony, that award is subject to immediate termination upon the husband’s untimely demise. Aldrich v. Aldrich, 163 So.2d 276 (Fla. 1964), By awarding lump sum alimony on an installment basis, the court has effectively provided for a portion of the wife’s support through an ostensible distribution of marital assets. On the other hand, the husband points out that if he were unable to work in the future, he could not obtain a reduction in the installments because lump sum alimony is not subject to modification. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). At first blush, the use of life insurance might appear to offer a solution, but this avenue seems to have been judicially closed. Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Perkins v. Perkins, 310 So.2d 438 (Fla. 4th DCA 1975); Putman v. Putman, 154 So.2d 717 (Fla. 3d DCA 1963).

The $216,000 in lump sum alimony cannot be sustained as an award of support on a deferred basis because it is not subject to modification for change of circumstances. Likewise, it cannot be sustained as an equitable distribution of marital assets because, as illustrated in the table, the wife will receive more than two-thirds of the property. Consequently, under the existing law the $216,000 in lump sum alimony cannot stand.

In vacating this award we necessarily remand for reconsideration of the other aspects of the final judgment. The court may choose to alter the form of alimony. See Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), petition for review denied, 392 So.2d 1378 (Fla. 1981). However, we do not suggest that a more modest installment lump sum alimony award could not be sustained or that another form of equitable relief could not properly be fashioned.

Reversed and remanded.

OTT and SCHOONOVER, JJ„ concur.

      . In First National Bank v. Ford, 283 So.2d 342 (Fla.1973), the court held that under certain equitable circumstances a court could provide that the payment of alimony would survive the death of the obligated spouse. However, the court later receded from this position in O'Malley v. Pan American Bank, 384 So.2d 1258 (Fla. 1980). Thus, absent legislative intervention, it is clear that alimony can only become a charge against one’s estate if he has agreed to it.

      . The phraseology of the judgment suggests that the court intends that the installment payments of lump sum alimony will be deductible by the husband and taxable to the wife for federal income tax purposes. However, the husband despairs over the possibility that he may not be able to deduct such installment payments, particularly because the judgment recites that the wife’s claim to an interest in the husband’s pension plan was denied in part because of that award. See Beard v. Commissioner, 77 T.C. 1275 (1981).

      . Cf. Stith v. Stith, 384 So.2d 317 (Fla. 2d DCA 1980) (where under the particular facts of that case this court adopted an innovative use of life insurance to resolve a problem somewhat like that posed in the instant case).

      . In order to analyze the distribution of marital assets, the figures used for the profit sharing plan and the lump sum alimony could properly be reduced to present value, but the disparity still would be so great as to require reversal.

      . The concept of "equitable distribution” does not require equal division of the assets acquired during the marriage. Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981). .


author: THOMPSON, Judge.

text:
    David Marshall BERRY, Appellant, v. STATE of Florida, Appellee.
    No. AV-83.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 11, 1984.
    Michael Allen, Public Defender; and Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Berry appeals his conviction of burglary and the resulting judgment and sentence of 15 years. We affirm the conviction but reverse the sentence and remand for resen-tencing.

Although it is contended that the trial court erred in at least six respects, only three of the alleged errors warrant discussion. Berry’s first contention is that the trial court erred in denying his motion to dismiss on double jeopardy grounds. His first trial on the burglary charge ended in a mistrial. The second trial for burglary resulted in the conviction and sentence appealed. Berry contends that he was entitled to a judgment of acquittal in the first trial and that his second trial violated the double jeopardy clause. It might appear that a second trial would violate the double jeopardy clause if evidence sufficient to convict was not presented at the first trial. However, the Supreme Court of the United States in the very recent case of Richardson v. United States, — U.S. -, 104 S.Ct. 3081, 82 L.Ed.2d 212 (1984), held that the protection of the double jeopardy clause by its terms applies only if there has been some event, such as an acquittal, that terminates the original jeopardy. Neither the failure of a jury to reach a verdict nor a trial court’s declaration of a mistrial following a hung jury is an event that terminates the original jeopardy.

It is also contended that the application at Berry’s trial of our Supreme Court’s new interpretation of the burglary statute in State v. Waters, 436 So.2d 66 (Fla.1983) violated his right of protection from ex post facto laws. Although an unforeseeable judicial enlargement of a criminal statute, applied retroactively, can be a violation of the ex post facto clause of the Constitution, the Waters decision was not an unforeseeable enlargement of the burglary statute. In our view the Waters decision merely permitted the state to allege a violation of the burglary statute in the language of § 810.07, Fla.Stat. without alleging an intent to commit a specific crime, saying that statute set out only three factual elements: entry, stealth, and lack of consent. The court held that proof of these facts would be prima facie evidence of entering with intent to commit an offense and would be sufficient to allow a case to go to the jury and to support a verdict. While some may not agree with the court’s decision in Waters and may believe that it could result in some abuse by overzealous prosecutors, it is the law and is controlling here.

Berry further contends that the trial court erred in sentencing him by considering his prior arrests not leading to convictions. The transcript of the sentencing hearing reflects that the trial judge had presided at Berry's previous trials which resulted in acquittals but that the trial judge was of the opinion that the juries were incorrect in their verdicts and that Berry was actually guilty of the prior offenses. The trial judge clearly appears to have taken into consideration his opinion as to Berry’s guilt on the prior charges when he imposed the sentence in this case. Therefore, the judge impermissibly considered prior arrests not leading to convictions as evidence of guilt. Crosby v. State, 429 So.2d 421 (Fla. 1st DCA 1983).

In order to preclude any perception on Berry’s part that the resentencing may not be conducted in a completely fair and impartial manner, we think it best that he be resentenced by another judge to be assigned by the Chief Judge of the Circuit. Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979).

Accordingly, appellant’s judgment of conviction is affirmed but his sentence is vacated and the case is remanded for further proceedings consistent with this opinion.

ERVIN, C.J., and MILLS, J., concur.


author: MILLS, Judge.

text:
    Winford Lee DICKEY Appellant, v. STATE of Florida, Appellee.
    No. AW-470.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.

      Michael Allen, Public Defender; Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.
   MILLS, Judge.

Dickey appeals his conviction of grand theft and from the imposition of a sentence allegedly deviating from the sentencing guidelines as established in Rule 3.701, Florida Rules of Criminal Procedure. We affirm.

Dickey was charged with grand theft after he was observed by a store owner and his wife with articles of clothing from the store concealed in leg warmers which he wore under his trousers. As well as the testimony of the owners, the State presented a rebuttal witness to impeach Dickey’s previous testimony, volunteered on direct examination, that he had never been in the store prior to the alleged theft. The witness, a store employee, testified that she had encountered Dickey in the store about a month before the incident, and that he had acted in a manner similar to the method of the crime charged, regarding other items of clothing, although she did not actually see him remove items from the store. The defense objected to this “Williams Rule” evidence (specific act testimony) on the ground that it had not received notice of the State’s intent to use it at trial. The court held the testimony admissible based on Section 90.404(2)(b), Florida Statutes (1983), which obviates the need for such notice when the testimony is offered for purposes of rebuttal or impeachment, and the jury heard the witness’ testimony. Dickey was convicted.

At the subsequent sentencing proceeding, Dickey elected to be sentenced under the guidelines. The court had before it a presentence investigation (PSI) report, which listed 23 arrests; only six of which (one felony and five misdemeanors) had dispositions indicated. The PSI also included information obtained from Dickey’s mother and a drug abuse counselor of a longstanding (8-10 years), continuing problem with drug abuse (specifically addiction to dilaudid) and its contribution to Dickey’s criminal history. Dickey’s guidelines score sheet reflected a total of 24 points, reflecting the instant conviction and his prior record of one felony and five misdemeanor convictions. The recommended guidelines sentence was “any non-state prison sanction”; the court sentenced Dickey to 40 months in Lantana Correctional Institution, to afford him the opportunity to participate in the drug rehabilitation program there. Its written reasons for this departure were: “1) manner in which crime was committed shows absolute premeditation. Was done in manner to indicate a 'pro.’ 2) prior record and drug usage does not lend itself to rehabilitation while in the community.”

Dickey appeals his conviction on the ground that it was error to admit the rebuttal witness’ testimony because: 1) the impeached testimony was irrelevant, and it was error to allow it to be impeached, see Section 90.608(l)(e), Florida Statutes, and 2) even if it was relevant, the probative value of the impeaching testimony was outweighed by the danger of unfair prejudice, see Section 90.403, Florida Statutes. We disagree on both counts.

It was not error to allow the witness’ testimony for the purpose of impeaching Dickey’s statements based on lack of notice. The witness’ testimony clearly impeached his credibility and therefore no notice was required. See Tuff v. State, 408 So.2d 724, 729-30 (Fla. 1st DCA 1982); Section 90.404(2)(b), Florida Statutes. As for the grounds for inadmissibility raised by Dickey on appeal, they were not raised at trial. For an argument to be cognizable on appeal, it must be the specific contention asserted as legal grounds for the objection below. Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Dickey argues, however, that the actions of the court were “fundamental error” so as to warrant consideration on appeal despite the failure to preserve the issue below.

In White v. State, 446 So.2d 1031 (Fla.1984), the Florida Supreme Court stated that to be fundamental, an error must “be of the magnitude that would have prevented the jury from reaching a fair and impartial verdict.” Id. at 1034. Here, leaving aside the disputed testimony, the case against Dickey was very strong, including eyewitness testimony that the stolen clothing was under the leg warmers and that Dickey removed the clothing from the warmers before the arrival of the police. Therefore, even if the court erred in admitting the impeaching testimony, we do not believe such error would have prevented the jury from reaching a fair and impartial verdict. White, supra; see also Holland v. State, 432 So.2d 60 (Fla. 1st DCA 1983), (considering the clear and convincing evidence identifying appellant as the perpetrator, any error would be harmless). We therefore hold that the trial court’s admission of the disputed testimony did not rise to the level of fundamental error so as to excuse counsel’s failure to raise these specific contentions at trial.

We also find no error in the trial court’s deviation from the sentencing guidelines. In Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984), this court rejected the notion that Rule 3.701(d)(ll), Fla.R.Cr.P., forbids consideration of all factors relating to the instant offense for purposes of deviating from the guidelines but rather only those “factors, related to ... the instant offense, for which conviction has not been obtained.” Id. at 139 (emphasis supplied). Therefore, the trial court’s consideration of Dickey’s “professional manner” in committing the crime is proper. With regard to the court’s use of Dickey’s prior record to deviate from the guidelines, we agree that the use of any priOjT offense for which conviction has not been obtained would be erroneous. Rule 3.701(d)(ll), Fla.R.Cr.P. However, nothing in Rule 3.701 states that the court cannot consider offenses for which the offender has been convicted, even if already considered in calculating the guidelines range score. See Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984). Therefore, the court’s use of Dickey’s prior record, as shown by the one felony and five misdemeanors for which convictions were obtained, to deviate from the guidelines was proper.

We affirm.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    Berthold KINAST, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Construction Industry Licensing Board, Appellee.
    No. AX-328.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Kenneth G. Oertel and Segundo J. Fernandez of Oertel & Hoffman, P.A., Tallahassee, for appellant.
    Edward C. Hill, Jr., Tallahassee, for ap-pellee.
   MILLS, Judge.

Kinast appeals from a final order suspending his residential contractor’s license for three years, to be followed by three years probation, and imposing a $1,000 fine. The order is vacated, and the cause remanded for entry of an amended final order.

The proceedings against Kinast were commenced by a twelve-count administrative complaint alleging various violations of § 489.129(1), Florida Statutes (1981). Counts I — III and V-VII charged that Ki-nast had falsely sworn that certain construction bills had been paid, in order to obtain further construction monies. Counts IV and X alleged violation of applicable building codes in construction projects. Count VIII charged improper diversion of construction funds so as to render impossible the completion of the project for which the funds were intended and Count XI related to Kinast’s conviction for passing a worthless check to purchase building materials, i.e., conviction of a crime directly relating to the practice of contracting.

A hearing pursuant to § 120.57(1), Florida Statutes (1983), was requested by Ki-nast and granted. At the conclusion of the hearing, both Kinast and the Department submitted proposed recommended orders. Kinast’s proposed order took the form of a handwritten letter, which did not clearly delineate “findings of fact” and “conclusions of law.” However, the proposed facts were set off by the count number to which they related, and were clearly separated from the “conclusion.”

The recommended order of the hearing officer did not address each of Kinast’s proposed facts, despite the requirement of § 120.59(2), Florida Statutes (1983), that

[i]f, in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.

Rather, the hearing officer stated at the outset of the recommended order that “to the extent the proposed findings of fact have not been adopted in this recommended order they have been rejected as not having been supported by the evidence, as irrelevant to the issues under consideration or as constituting unsupported argument of counsel or conclusions of law.” The order proceeded to find that all but one of the charges against Kinast had been proven by the agency, and imposed the sanctions discussed above. The final order adopted the recommended order in its entirety.

It has been held that the necessity for a ruling on each of a party’s proposed facts is obviated if “such findings [are] subordinate, cumulative, immaterial or unnecessary.” Wong v. Career Service Commission, 371 So.2d 530, 531 (Fla. 1st DCA 1979). We cannot find that Kinast’s proposed facts fall within this exception. Specifically with regard to the counts of the complaint alleging false affidavits or endorsements to obtain additional funds, Ki-nast requested findings that the bills relied on by the agency to prove this charge were either not due or the jobs to which they applied were not complete at the time of Kinast’s signatures. No rulings were made as to these proposed findings, which, if true, would tend to negate the validity of the charges. Under these circumstances, it cannot be argued that the proposed facts were “immaterial or unnecessary.” Wong, supra.

This is not the first time the court has addressed a hearing officer’s failure to comply with § 120.59(2). The same type of “blanket” statement was used to dispose of proposed findings in Pelham v. Superintendent of the Wakulla County School Board, 436 So.2d 951 (Fla. 1st DCA 1983). In rejecting the statement, the court held that

[t]his cannot be regarded as the kind of explicit ruling on a party’s proposed findings required by Section 120.59(2). Moreover, to the extent that the ... statement of the hearing officer can be regarded as referring to the ... proposed findings, it is impossible to tell whether those findings were omitted: 1) because they were found not to be supported by the evidence; or 2) because they were deemed to be immaterial, (citations omitted)

Id. at 953. The same objection applies to the statement made in this case. For that reason, the final order is vacated and the cause is remanded for the entry of an amended final order after submission of an amended recommended order by the hearing officer ruling on Kinast’s proposed findings. The Board shall have the opportunity to submit exceptions to the amended recommended order pursuant to § 120.-57(l)(b)(4), Florida Statutes (1983).

ERVIN, C.J., and ZEHMER, J., concur.


text:
    Richard T. ADAMS d/b/a Best Way Carpet Service, Appellant, v. DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, DIVISION OF UNEMPLOYMENT COMPENSATION, Appellee.
    No. AZ-42.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 11, 1984.

      Randall J. Silverberg, Jacksonville, for appellant.
    Alex D. Littlefield, Tallahassee, for ap-pellee.
   MILLS, Judge.

Adams appeals from a final order holding him liable for payment of unemployment taxes under Chapter 443, Florida Statutes (1983). We affirm.

Adams is the sole proprietor of a carpet and cleaning service. He uses individual workers to clean residential and commercial carpets and furniture and to promote his cleaning products while on the job. Upon hiring, the workers receive a three-day training program in the use of the equipment and products during which they are paid a salary and are considered employees. Upon completion of the training, each worker signs an agreement with Adams, the salient points of which are: 1) the worker is not to be considered an agent or employee of Adams, but an independent contractor; 2) Adams does not agree to use the worker exclusively; and 3) the worker may perform similar services for other cleaning businesses.

The workers also agree to provide their own transportation to job sites, and to rent all equipment and purchase all cleaning materials from Adams. Adams provides promotion and advertising (although the workers can do their own) and handles the booking of locations for the individuals to call on prospective customers. The workers are compensated at 45% of their gross sales, less 10% to Adams as payment for the lease of the equipment. They are required to report to Adams’ office each day to receive their job assignments, which are gathered through prospective customers’ contacts of the office. They must “check out” their cleaning equipment from Adams’ office each day and return it in the evening, despite the payment for its rental; it can only be used for Adams’ customers.

Workers receive no personal on-the-job supervision by the central office when actually selling and cleaning, although the purpose of the initial training is to ensure proper use of the equipment and cleaners while working. They are required to attend weekly sales meetings at the office; missing these meetings can and does result in suspension and, eventually, dismissal.

The Department initiated its investigation of Adams' business when one of these workers was discharged and applied for unemployment benefits; it was discovered that no wage credits were on file for the worker’s service with Adams. After an investigation into the status of the worker, and those similarly situated, the Department determined that the workers were employees, not independent contractors, making Adams responsible for payment of the unemployment benefits tax under Chapter 443, Florida Statutes. We affirm.

The facts of this case present a close question as to the status of Adams’ workers, but we find them sufficient to support the Department’s determination. We agree that the basic test for determining a worker's status is the employer’s right of control over the manner in which the work is performed. Farmer’s and Merchant’s Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958). As the court stated in that case:

[I]f the person serving is merely subject to the control of the person being served as to the results to be obtained, he is an independent contractor; if he is subject to the control of the person being served as to the means to be employed, he is not an independent contractor. It is the right of control, not actual control ... or interference with the work which is significant in distinguishing between an independent contractor and a servant.

Id. at 95. The court expanded on this distinction in La Grande v. B & L Services, Inc., 432 So.2d 1364 (Pla. 1st DCA 1983), holding that it centered around

the degree of control which the putative employer exercises over the person, the decisive question being who has the right to direct what shall be done and how and when it shall be done; ... whether the person is subject to or whether he is free from the control with regard to the details of the engagement.

Id. at 1367-8.

We do not agree that the agreement signed by the parties at the end of the training period must control the determination in this ease. “[A] statement in an agreement that the existing relationship is that of independent contractor is not dis-positive of the issue.” Lee v. American Family Assurance Co., 431 So.2d 249, 250 (Fla. 1st DCA 1983.) “[Sjtatus depends not on the statements of the parties, but upon all the circumstances of their dealings with each other.” Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966). The circumstances herein reflect a degree of control by Adams sufficient to support the Department’s decision.

First of all, the workers receive a three-day training program in how to use Adams’ own equipment and cleaning products, to assure uniform results for all jobs. This equipment remains with Adams when not in use. It must, and indeed can, only be used for Adams’ customers. Similarly, the cleaning products are chosen by Adams and must be used on jobs done for his customers. Further, Adams decides which customers will be assigned to each worker and the workers receive these assignments from him every day; the customers contact Adams, not the individual workers. These factors indicate that Adams determines and controls: 1) the equipment and cleaners which will be used by the workers, 2) the method for using the equipment and cleaners, and 3) the customers for whom the workers will clean. Therefore, it cannot be said that these workers are “free from control with regard to the details of the engagement.” La Grande, supra.

We do not find that the Department was without authority to make its determination applicable, not only to the worker whose unemployment benefit application initiated the investigation, but to all of Adams’ similarly situated workers. No evidence was adduced showing any difference between the employment conditions of the applicant and the other workers. More importantly, § 443.171(1), Florida Statutes, provides that:

It shall be the duty of the division to administer this chapter; and it shall have power and authority to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as it deems necessary or suitable to that end. (emphasis supplied)

The determination of the Department is affirmed.

ERVIN, C.J., and ZEHMER, J., concur.


author: NESBITT, Judge.

text:
    Hans Ulrich BOTHMANN, Appellant, v. Vera M. HARRINGTON, formerly known as Vera M. Bothmann, and Richard Baron and Corrigan, Baron & Zelman, P.A., Appellees.
    No. 83-1426.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.

      Horton, Perse & Ginsberg and Arnold Ginsberg and William A. Daniel, Jr., Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Sally R. Doerner, Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

The plaintiff, Bothmann, appeals a portion of a final summary judgment limiting his compensatory damages to $1,000 and disallowing his claim for punitive damages. The defendant, Harrington, and the third-party defendants, Baron and Corrigan, Baron & Zelman, P.A. (collectively hereinafter Baron), cross-appeal that portion of the summary judgment finding liability. We affirm in part and reverse in part on the main appeal, and we reverse as to the cross-appeals.

Bothmann and Harrington lived together as husband and wife until the dissolution of their marriage in March 1978. Approximately one year after this dissolution, Harrington, through her attorney, filed a motion to set aside the property settlement agreement involved in the dissolution action in an attempt to modify the child support provisions therein. As part of that lawsuit, Harrington, through her attorney, Baron, caused a lis pendens to be recorded on November 9, 1979 against a condominium unit owned by Bothmann.

Three days prior to the filing of the lis pendens, Bothmann had entered into a contract for the lease and/or sale of the condominium unit with Wohlgemuth. The contract contained a purchase option which could be exercised at Wohlgemuth’s discretion at any time, with the condition that if the option were exercised, the closing date would be on or before August 20,1980. In January 1980, Wohlgemuth decided to purchase the unit and exercised the option. During a routine title search, Wohlgemuth discovered the lis pendens and refused to close until Bothmann had it removed.

Bothmann’s attorney wrote a letter to Harrington and Baron requesting the removal of the lis pendens. This request was refused. Subsequently, a motion to dissolve the lis pendens was filed in the dissolution proceedings. An order granting Bothmann’s motion to dissolve the lis pen-dens was entered on July 23, 1980. The sale of the condominum unit was closed on July 25, 1980.

In August 1980, Bothmann sued Harrington for compensatory and punitive damages on theories of slander of title and abuse of process. Bothmann pled four items of special damages: (1) the attorney’s fee paid for the removal of the lis pendens; (2) a lost profit resulting from his selling of the property for the same purchase price in July 1980 that he would have received in November 1979 due to the delay caused by the filing of the lis pen-dens, despite an increase in property values; (3) the higher price he would have to pay for a new residence due to an upswing in the real estate market; and (4) a loss due to his inability to make a margin call on bonds in February 1980 from the sale proceeds he expected at that time, forcing liquidation of the bonds on a depressed market. Harrington instituted a third-party action against Baron, the counsel who represented her at the time the lis pendens was filed. Harrington sought indemnity against Baron for legal malpractice, seeking as damages any recovery Bothmann secured in the main action.

In December 1981, a partial summary judgment on damages was rendered in the main action, which in effect limited any recoverable damages to the $1,000 attorney’s fee incurred for the removal of the lis pendens, and found “the other damages claimed are speculative and remote and do not necessarily flow from the filing of the lis pendens.” In April 1983, the court entered a summary final judgment in the main action, finding liability on the part of Harrington and incorporating the December 1981 judgment limiting damages to the $1,000 attorney’s fee. All parties have appealed.

POTENTIAL INDEMNITOR’S RIGHT TO APPEAL JUDGMENT ADVERSE TO INDEMNITEE

A preliminary issue confronting us is whether the order under review is susceptible to the third-party defendant’s (Baron’s) cross-appeal. The order makes no reference to and makes no determination concerning the third-party claim. In fact, the third-party action between Harrington and Baron is still pending before the trial court. Nevertheless, under the law of indemnity, we find that Baron’s cross-appeal is proper.

The settled law is that a potential indemnitor, like Baron, is bound by a judgment rendered against an indemnitee when the indemnitor is on notice and is not precluded from defending in the action. Hull & Co. v. McGetrick, 414 So.2d 243 (Fla. 3d DCA 1982) and cases cited therein. In the present case, the alignment of the parties is similar to that which existed in Seaboard Coast Line Railroad v. Lantz, 405 So.2d 495 (Fla. 3d DCA 1981). In that case, the third-party indemnity action was being appealed while a trial on damages in the main action was proceeding below. This court held that the third-party defendants, if not precluded from defending, would be bound by the outcome of the trial if the judgment in their favor on the third-party indemnity claim was later overturned. Lantz, 405 So.2d at 497 n. 3. The clear inference from the cases is that a potential indemnitor should be given every opportunity to defend the main action. In the present case, this includes allowing Baron to cross-appeal the adverse judgment on liability rendered against Harrington, the potential in-demnitee.

LIABILITY

We turn now to the substantive issues presented. We will first deal with the issue of liability raised in the cross-appeals. Simply stated, the question is whether there exists any genuine issues of material fact concerning Harrington’s liability to Bothmann. We find there does and reverse the summary judgment entered against Harrington on liability.

Disparagement of Property

Bothmann’s primary cause of action is for slander of title, or more appropriately called disparagement of title or property. See Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981); W. Prosser, Handbook of the Law of Torts § 128 (4th ed. 1971). In a disparagement action the plaintiff must allege and prove the following elements: (1) A falsehood (2) has been published, or communicated to a third person (3) when the defendant-publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff and (4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and (5) special damages are proximately caused as a result of the published falsehood. See Allington Towers Condominium, North, Inc. v. Allington Towers North, Inc., 415 So.2d 118 (Fla. 4th DCA 1982); Continental Development Corp. of Florida v. Duval Title & Abstract Co., 356 So.2d 925 (Fla. 2d DCA 1978); Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965); Restatement (Second) of Torts §§ 623A-634, 651 (1977); W. Prosser, Handbook of the Law of Torts § 128 (4th ed. 1971). On this appeal, we are concerned only with the first and last elements.

The basis of a disparagement of property action arises out of an injurious falsehood or false statement concerning one’s property. In the present case, Both-mann contends that the filed notice of lis pendens constituted the necessary falsehood because it falsely indicated that his condominium unit was involved in a lawsuit. Generally, a wrongful and intentional filing of a notice of lis pendens will support an action for disparagement of property. See Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981). We find, however, that a distinction must be drawn between an improper filing in a procedural sense, and a wrongful filing in a substantive sense. Only the latter will support an action for disparagement of property because only it meets the requisite falsehood element of the action. In the present case it is far from clear, at this stage of the proceedings, that the filing of the lis pendens was wrongful in a substantive sense. The lis pendens was filed and subsequently dissolved in an action separate and distinct from the present action. The order dissolving the lis pendens, attached as an exhibit to Bothmann’s complaint, fails to indicate the basis for the dissolution. On the record before us, therefore, we must reject Bothmann’s contention that the order dissolving the lis pendens has a res judicata effect on the issue of whether the lis pen-dens was wrongfully filed.

A review of the record and the pleadings reveals that a genuine issue of material fact exists as to the falsehood element of the disparagement action. In this type of action, there is no presumption that a disparaging statement is false, as is the case in a personal slander action, and the plaintiff has the burden of establishing falsity. See Restatement (Second) of Torts §§ 634, 651 (1977); W. Prosser, Handbook of the Law of Torts § 128 (4th ed.1971). It was, therefore, error for the trial court to grant a summary judgment on liability for Bothmann on the disparagement of property cause of action.

Abuse of Process

We now turn to the liability issue in relation to the cause of action for abuse of process. Although this theory has not been argued before this court nor briefed on this appeal, it was before the trial court in the pleadings when the summary judgment was entered. Since the 'summary final judgment does not indicate on which theory it was granted, we must also examine the judgment in this context.

Abuse of process involves the use of criminal or civil legal process against another primarily to accomplish a purpose for which it was not designed. See Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla. 3d DCA 1968). For the cause of action to exist there must be a use of the process for an immediate purpose other than that for which it was designed. There' is no abuse of process, however, when the process is used to accomplish the result for which it was created, regardless of an incidental or concurrent motive of spite or ulterior purpose. In other words, the usual case of abuse of process involves some form of extortion. Restatement (Second) of Torts § 682 comment b (1977); W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971).

In the present case, the pleadings indicate that Harrington denies each and every allegation in the abuse of process count of Bothmann’s complaint. A review of the record reflects that genuine issues of material fact exist as to Harrington’s liability for abuse of process. Therefore, the summary final judgment on liability cannot be affirmed on this theory either.

DAMAGES RECOVERABLE

Finally, we turn to the main appeal which challenges that portion of the summary judgment which limited recoverable damages to the $1,000 attorney’s fee. We start out with the fact that there is no dispute over the recoverability or amount of attorney’s fees if liability is ultimately established. See Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973); Stoler v. Levinson, 394 So.2d 462 (Fla. 3d DCA 1981). The dispute, instead, revolves around the three other claimed items of compensatory damages and the punitive damages claim.

The three contested items of compensatory damages can be characterized as special damages. In a disparagement action, the plaintiff must always plead and prove special damages as an essential element in the cause of action. Although not an essential element in an action for abuse of process, special damages can be pled and proved under this theory as well. Regardless of which theory a plaintiff is proceeding under, “special damages” generally means pecuniary loss.

In a disparagement action, the pecuniary loss recoverable for the injurious falsehood is restricted to that which results directly and immediately from the falsehood’s effect on the conduct of third persons and the expenses incurred to counteract the publication. See Restatement (Second) of Torts § 633 (1977). Under either the disparagement theory or the abuse of process theory, the alleged wrongful act of the defendant must be the legal cause of the claimed pecuniary losses. This means that the special damages pled must have been foreseeable and normal consequences of the alleged wrongful conduct, and the conduct must be a substantial factor in bringing about the losses.

In the present case, the first disputed item of special damages involves a lost profit resulting from the delay in closing the sale of Bothmann’s condominium unit. Bothmann, however, had entered a contract with Wohlgemuth which allowed the purchase of the unit for a specified price up until August 20, 1980. The sale actually closed on July 25, 1980, under the agreed terms of the contract. Therefore, there was no loss or damage attributable to Harrington’s filing of the lis pendens and the trial court properly disallowed this claimed item of damage.

The final two items of special damages claimed by Bothmann were also properly disallowed. One item involves the greater amount he would have to pay for a new residence and the other involves a loss on bond investments due to his inability to make a margin call. Bothmann is apparently alleging that if he had received the $43,000 sale proceeds a few months earlier, not only would he have used them to meet the margin call he owed on bonds in the amount of $405,000, but he also would have bought a new residence with the proceeds. How he intended to stretch the proceeds so far is not indicated in the record. In any event, these are precisely those types of damages considered to be too speculative or remote to allow recovery. These losses simply are not the direct and immediate result of Harrington’s filing of the lis pen-dens. Recoverable damages for a wrongful filing of a lis pendens do not include any loss resulting from the plaintiffs failure to make an advantageous use of money that he would have (or might have) made if a prospective sale had been consummated, or in this case, consummated at an earlier date. See Earp v. Nobmann, 122 Cal. App.3d 270, 175 Cal.Rptr. 767 (Ct.App. 1981); Restatement (Second) of Torts § 533 comment i, esp. illustration 4 (1977).

The final point under review involves the issue of punitive damages. It is clear that punitive damages are recoverable in both disparagement actions and abuse of process actions. See Glusman; Stolen Before they can be recovered, however, the plaintiff must establish actual malice on the part of the defendant. See Continental Development; W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971). We find that Bothmann has adequately pled entitlement to punitive damages and, therefore, should be given the opportunity to prove actual malice on the part of Harrington.

In conclusion, we affirm the trial court’s disallowance of Bothmann’s claimed items of special damages other than the attorney’s fee; we reverse the remainder of the summary final judgment upon a finding that genuine issues of material facts exist as to Harrington’s liability and as to the propriety of punitive damages if liability is established. Affirmed in part, reversed in part, and remanded for further proceedings.

      . Although Bothmann alleges in the complaint that he would have received the purchase money in November 1979, it is undisputed that Wohlgemuth did not decide to buy the property until January 1980. November 1979 was merely when the purchase option agreement was entered.

      . We express no opinion on a party's ability to preclude a potential indemnitor from defending for any particular reason. Such a situation is not before us at this time. We are merely expressing the policy that courts, on their own, should not preclude a potential indemnitor from defending in an action against the indem-nitee.

      . The malicious intention, or "legal malice," sometimes said to be an element of a disparagement of property action, is presumed to exist if the other elements are established. If a privilege is shown by a defendant, however, the plaintiff must establish the defendant acted with "actual malice” to overcome the privilege. Allington Towers Condominium North, Inc. v. Allington Towers North, Inc., 415 So.2d 118 (Fla. 4th DCA 1982); Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). See infra note 11.

      . The last element, that the falsehood proximately caused special damages, is discussed in our analysis of the damages issues raised in the main appeal. The second, third and fourth elements are not in dispute in this case.

      . An example of an improperly filed notice of lis pendens in a procedural sense would be the filing of a defective notice under the statute. Section 48.23(l)(a), Florida Statutes (1983), requires a number of items to appear on the face of the notice. If one or more of these items is absent, the notice is improper. This does not mean, however, that the lis pendens was wrongfully filed in a substantive sense. The property may in fact be rightfully subject to a properly filed notice of lis pendens. In such a case, a disparagement action would not lie because there is no injurious falsehood. Cf. Procacci (if property is involved in litigation and a lis pen-dens is filed against that property pursuant to the litigation, the filing party is protected by the absolute privilege granted participants in judicial proceedings). It is also generally held that a good faith privilege can be asserted as an affirmative defense in a disparagement action. See Allington Towers; W. Prosser, Handbook of the Law of Torts § 128 (4th ed. 1971).

      . The trial court is given a limited amount of discretion to control a notice of lis pendens. If the action is not founded on a recorded instrument or a mechanic’s lien, section 48.23(3) gives the courts the same authority to control and discharge a notice of lis pendens as they have to grant and dissolve injunctions. In the present case, the notice was defective on its face in that it failed to indicate the time the action was instituted and it did not contain a statement of the relief sought as to the property. § 48.-23(l)(a), Fla.Stat. (1979). The trial court, in its discretion, could have dissolved the notice of lis pendens based upon these defects. These defects, however, would not support a disparagement cause of action. See supra note 5.

      . "Legal malice” is presumed to exist if the plaintiff establishes that the process has been used for an improper purpose.
      It is often said that proof of "malice" is required; but it seems well settled that, except on the issue of punitive damages, this does not mean spite or ill will, or anything other than the improper purpose itself for which the process is used .... [footnotes omitted]
      W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971). Cf. supra note 3. See infra note 11.

      .Even a pure spite motive is not sufficient where process is used only to accomplish its intended purpose.
      Some definite act or threat not authorized by the process, or aimed' at an objéctive not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process, itself, which constitutes the tort, [footnotes omitted]
      W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971). See McMurray v. U-Haul Co., 425 So.2d 1208 (Fla. 4th DCA 1983). See also Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980).

      . Once the tort of abuse of process is established, the damages recoverable are generally the same as those recoverable in a malicious prosecution action. Since special damages are recoverable in a malicious prosecution action if they are specifically pled and proved, they are likewise recoverable in an abuse of process action. See W. Prosser, Handbook of the Law of Torts §§ 119, 121 (4th ed. 1971).

      . The reason these types of losses are not recoverable in a disparagement action is because they are
      not the direct and immediate consequence[s] of the injurious falsehood but [depend] upon the situation of the disappointed vendor and the particular purposes for which it would have been necessary or advantageous for him to apply the purchase money.

        Restatement (Second) of Torts § 633 comment i (1977).

      . The malice necessary to support a punitive damages claim is not equivalent to the "legal malice” that is sometimes said to be necessary to prove a claim of disparagement or abuse of process. In Florida, "legal malice” is presumed in these actions once the other elements are established. See supra notes 3 and 7. "Legal malice” generally means that the act was deliberate conduct without reasonable cause. On the other hand, "actual malice” necessary for punitive damages (or to overcome a privilege, see supra note 3) means ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a willful or wanton act. See Collier County Publishing Co. v. Chapman, 318 So.2d 492, 495 (Fla. 2d DCA 1975), cert. denied, 333 So.2d 462 (Fla. 1976).


text:
    Malcolm WINFIELD, Appellant, v. The STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 83-2521.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 17, 1984.
    Milton E. Grusmark, Miami, Sheryl Low-enthal, Coral Gables, for appellant.
    Elliot Henslovitz, Staff Atty., Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The final order of the Division of PariMutuel Wagering is affirmed upon a holding that there is substantial competent evidence in the record to support the hearing officer’s determinations, which were adopted by the Division, that Winfield violated three rules of the Florida Administrative Code.

Affirmed.


author: DOWNEY, Judge.

text:
    Thomas J. FREIHEIT, Appellant, v. STATE of Florida, Appellee.
    No. 82-1629.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    D. Robert Silber of Kay & Silber, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks reversal of an order revoking his probation. His sole point on appeal is that he was denied due process in that he was charged by affidavit with violating his probation by failure to live at liberty without violating any law, in that he “did unlawfully enter or remain in a structure, to-wit: A dwelling or the curtilage thereof, located at 2509 N.W. 53rd Street, Tamarac, Florida, property of Anthony Russo, with intent to commit the offense of Burglary therein contrary to Florida Statute 819.02(3).” However, in the trial of the substantive crime he was found guilty of the lessor included offense of attempted burglary. At his probation violation hearing the state offered in evidence a certified copy of the judgment of conviction of attempted burglary and rested. Appellant moved to dismiss the charges because of the discrepancy between the charge and the crime of which he was convicted. When that was denied, appellant proffered for consideration by the court the tenuous evidence of his identification in the trial of the substantive crime.

In support of his appellate point appellant cites a number of cases in which this and other courts have held that the state cannot charge a probationer with commission of one offense and revoke his probation upon proof of an entirely different offense. For example, see Mack v. State, 342 So.2d 562 (Fla. 2d DCA 1977); Hooks v. State, 207 So.2d 459 (Fla. 2d DCA 1968). See also Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973), where the probationer was charged only with having been arrested for a felony. Though the proof adduced would have supported a finding of burglary, this court held that due process requires that a revocation be based only on the violation alleged and there was no adequate allegation of the violation.

Crum, Frederick v. State, 339 So.2d 251 (Fla. 4th DCA 1976), and Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974), have been substantially eroded by the supreme court in Hines v. State, 358 So.2d 183 (Fla.1978). There the probationer was charged with having been arrested for a felony. Under the circumstances of that case the supreme court held due process was not denied and affirmed the district court of appeal, which in turn had affirmed the order revoking probation. The court pointed out that, although the probationer was charged only with being arrested for a felony, he knew what the felony charge was; he had in fact been arrested near the scene of the crime and confessed to the substantive crime. The court held that, while due process requires the charging affidavit to allege the basic facts concerning the alleged violation, such as the nature, time, and place of the occurrence, the same specificity required of a criminal information is not required. The primary goal is notice. “If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him.” 358 So.2d at 185, footnote omitted.

This court has relied upon the Hines holding in Evans v. State, 409 So.2d 1078 (Fla. 4th DCA 1981), and Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980). In Evans probation was revoked based upon the charge of burglary, whereas the court found the probationer guilty of grand larceny and aiding and abetting. Though the substantive crimes of which appellant was convicted were not even a lesser included offense of burglary, based upon Hines, this court found the probationer had notice of what he was being charged with and thus denied the due process attack.

In Norris the probationer was charged with violation of the condition requiring him to live honorably. He allegedly violated that condition by committing a battery on his wife on two occasions. The court held, relying on due process rationale of Hines, that the proof showed the probationer had violated another condition requiring the probationer to live within the law; he was not taken by surprise; he knew the facts going to make up the charge and due process was not lacking.

The events that occurred at the Tamarac residence led to two proceedings. First the state charged appellant by information with a burglary of the house of Anthony Russo. Second, an affidavit of probation violation was filed claiming appellant, by committing a burglary of Russo’s property, had violated the condition requiring him to live without violation of any law. The two proceedings are governed by different rules since a probation revocation proceeding is a sentencing function, not a criminal trial. E.g. State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983). Appellant was convicted of attempted burglary on the burglary charge, and the judgment of conviction of attempted burglary was the evidence used to revoke his probation. The burglary and attempted burglary involved an incident at the same time and place. The conviction was of a lesser included offense of the substantive crime charged. Appellant never contended that he was prejudiced by the departure between pleading and proof. Following Hines, supra, we, therefore, hold that due process was afforded appellant.

AFFIRMED.

LETTS and WALDEN, JJ., concur.


text:
    Peter MAGEE, John Mahon d/b/a P.J. Cavanaugh’s Restaurant, Cross Appellants, v. BISHOP SIGNS, INC., Cross Appellee. BISHOP SIGNS, INC., Appellant, v. Peter MAGEE, John Mahon d/b/a P.J. Cavanaugh’s Restaurant, Appellees.
    Nos. 83-284, 83-2687.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Stephen F. Radford, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellant.
    Harvey Kaufman and Timothy H. Ken-ney of Kenney, Boswell & Kaufman, West Palm Beach, for appellees.
   DOWNEY, Judge.

Appellant, Bishop Signs, Inc., (Bishop) filed a one count complaint to foreclose a mechanic’s lien. Appellees, Magee and Mahon (Magee), as owners of the property filed an answer and counterclaim, which among other things contended that the lien slandered appellees’ title, it was exaggerated and fraudulent, and the work was deficient. Well over a year after suit was commenced Magee moved to dismiss the amended complaint because the claim of lien was unsigned and the complaint failed to allege Bishop had furnished a contractor’s affidavit as required by section 713.-06(3)(d)(l). Judgment was entered 1) dismissing the complaint with prejudice for failure to plead the furnishing of the contractor’s affidavit, 2) denying the motion to dismiss on the ground the claim of lien was unsigned, 3) discharging the lien and lis pendens, and 4) reserving jurisdiction to award attorney’s fees and costs in connection with the discharge of the lien. Bishop appealed the judgment in Case No. 83-284 and Magee cross appealed, the latter claiming error in not dismissing the complaint based on the ground the lien claim was unsigned. This court dismissed the appeal because the counterclaim involving the same subject matter was still pending. We should have dismissed the cross appeal also because it seeks review of a non-appealable order and is not cognizable without the pendency of the main appeal.

While Case No. 83-284 was pending on the cross appeal Magee obtained a judgment in the trial court awarding the owners attorney’s fees of $5,000 based upon a finding that Magee was the prevailing party within the meaning of section 713.29, Florida Statutes (1981). Bishop has appealed that judgment in Case No. 83-2687.

With regard to the judgment for attorney’s fees, the award thereof is appropriate if Magee is the prevailing party. Bishop sued in one count to foreclose a mechanic’s lien. It did not seek damages for breach of contract in a second count in the event it was unsuccessful in the foreclosure of its lien. Had it done so and failed on the foreclosure count but prevailed on the damages count, Magee would not have been the prevailing party. First Atlantic Bldg. Corp. v. Neubauer Const., 352 So.2d 103 (Fla. 4th DCA 1977). Thus, as matters now stand Magee is the prevailing party vis-a-vis Bishop’s lien claim. However, should Bishop successfully appeal the dismissal of its complaint and eventually obtain a judgment thereon Ma-gee would not be the prevailing party and thus not entitled to attorney’s fees under the statute. Since that potentiality remains, a resolution of the right to attorney’s fees cannot be made until the litigation is concluded.

In view of the foregoing, the cross appeal in Case No. 83-284 is dismissed and the judgment appealed from in Case No. 83-2687 is reversed without prejudice to a future determination of attorney’s fees when the issue is ripe.

LETTS and DELL, JJ., concur.


author: RIVKIND, LEONARD, Associate Judge.

text:
    Sidney SPIEGEL, as Trustee, Appellant/Cross Appellee, v. STANLEY NELSON, INC., Appellee/Cross Appellant.
    No. 83-342.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.

      Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant/cross appellee.
    Dean J. Rosenbach of Lewis, Yegosen & Rosenbach, P.A., Palm Beach, and Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, for appellee/cross appellant.
   RIVKIND, LEONARD, Associate Judge.

In a non-jury trial, appellant, plaintiff below, was awarded $17,969 on the complaint and appellee was awarded $100,000 on the counterclaim. We affirm the judgment on the complaint and reverse the judgment on the counterclaim.

We have reviewed the entire record and find there is competent, substantial evidence to support the finding of the trial court concerning the amount of additional percentage rent due appellant as a result of prior inaccurate reporting of gross sales. We reject appellant’s contentions that parol evidence should not have been allowed regarding the provision of the lease relating to percentage rent and that the wholesale business of appellee should have been included in determining the percentage rent due. The handwritten additions to the typed provision of the lease concerning the percentage rent created an ambiguity permitting parol evidence as to the meaning and intent of the parties to the lease. The trial court committed no error in allowing parol evidence nor in concluding therefrom that the wholesale business conducted from the premises was not to be included in gross sales to determine percentage rent. See Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735 (Fla. 3d DCA 1982); Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981); J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So.2d 38 (Fla. 3d DCA 1978). Therefore, the amount awarded appellant is affirmed.

We find that the judgment on the counterclaim must be reversed on the record presented because it is not supported by competent, substantial evidence. The counterclaim was based upon an alleged breach by appellant of a provision of the renewal lease that the shopping center would be maintained “... as a dignified first-class retail establishment...” At the time appellant acquired title to the shopping center, appellee provided an “estoppel letter” which stated there was no existing default of the lease on the part of the lessor. Yet, the evidence is clear that the character of the shopping center had already drastically changed before appellant assumed the lessor’s obligations under the lease and this was apparent to appellee prior to furnishing the estoppel letter. Such conduct precludes any recovery on the counterclaim. Furthermore, appellee failed to establish damages with reasonable certainty. Mathematical preciseness is not required. However, this record does not reflect nor have the parties in their brief or at oral argument been able to enlighten this court as to the basis for the award of damages. See Polyglycoat Corporation v. Hirsch Distributors, Inc., 442 So.2d 958 (Fla. 4th DCA 1983). Ergo, we reverse the final judgment on the counterclaim with instructions to enter a final judgment in favor of appellant on appellee's counterclaim.

Affirmed in part, reversed in part.

LETTS and HERSEY, JJ., concur.

      . The estoppel letter is not contained in the record. However, it was marked in evidence as an exhibit and its contents are not disputed.


author:
BARKETT, Judge.
      GLICKSTEIN, Judge,

text:
    VILLA SORRENTO, INC., Appellant, v. John ELDEN, et al., Appellees.
    No. 84-425.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Joseph A. Hubert and James D. Rudd of Watson, Hubert & Clark, Fort Lauderdale, for appellant.
    Anthony J. Beisler, III of Anthony J. Beisler, III, P.A., Fort Lauderdale, for ap-pellees.
   BARKETT, Judge.

This appeal arises from an action between a cooperative association and a unit owner. The cooperative association prevailed on the merits. The lower court failed to award attorney’s fees in accordance with section 719.303, Florida Statutes (1983). We reverse.

Appellees suggest that the statutory language in question, “[t]he prevailing party is entitled to attorney’s fees,” is not mandatory. Appellee suggests that the trial courts have discretion to determine whether to award fees. We disagree. The statutory language is mandatory. The discretion of the trial court exists only to the extent of determining the reasonableness of the amount in light of the circumstances.

Accordingly, we reverse and remand for the assessment of a reasonable fee.

REVERSED AND REMANDED.

HURLEY, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

specially concurring.

I hesitate to write because of concern for detracting from the majority opinion, in which I concur. Nevertheless, I add a thought that should be obvious to litigants; namely, that in resolving differences by way of settlement which the parties wish the trial court to ratify by order, litigants may agree that each party shall bear his own costs and attorney’s fees.


author: HERSEY, Judge.

text:
    CENTURY UTILITIES, INC., Appellant, v. PALM BEACH COUNTY, Appellee.
    No. 84-695.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Kim St. James of Levy, Shapiro, Kneen & Kingcade, P.A., Palm Beach, for appellant.
    Joanne Stafford of Nason, Gildan, Yae-ger & Gerson, P.A., West Palm Beach, for appellee.
   HERSEY, Judge.

This appeal raises the narrow issue of whether it is procedurally appropriate for a respondent in an enforcement proceeding brought pursuant to Section 120.69, Florida Statutes (1983) to file a Third Party Complaint.

On August 18, 1977, the Department of Environmental Regulation entered a consent order requiring Century Utilities, Inc. “to connect its [sewage] treatment plant within 180 days to the regional treatment facility upon completion of proposed Pumping Station # 240....” The regional treatment facility is under the jurisdiction of Palm Beach County.

On February 25, 1983, the Department filed a petition for enforcement, seeking damages and other relief, pursuant to Section 120.69, Florida Statutes. The petition states that Pumping Station $240 was placed into service in November 1981 but that Century had not yet connected its sewage treatment plant to the facility. Century answered, denying any wrongdoing and asserting among other affirmative defenses that the consent order was based on a mutual mistake of fact and that its failure to comply with the consent order was due to acts of third parties over which it had no control. Subsequently, Century filed a third party claim against Palm Beach County seeking indemnity and contribution on the basis that any fault in the failure of Century to connect to Pumping Station $240 was solely the fault of the County. The lower court’s order dismissing the third party complaint without leave to amend is the subject of this appeal. The order states: “A Third Party claim does not appear to be contemplated or permitted in a proceeding pursuant to P.S. 120.69.” Whether this conclusion of the trial court is accurate depends upon the extent to which the Florida Rules of Civil Procedure apply in special statutory proceedings brought under the Administrative Procedure Act and particularly Section 120.69. The rules themselves make reference to the ambit of their applicability. Rule 1.010 provides:

These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the probate and guardianship rules or the summary claims procedure rules apply. The form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary. These rules shall be construed to secure the just, speedy and inexpensive determination of every action. These rules shall be known as the Florida Rules of Civil Procedure.

Thus, the rules apply to “all special statutory proceedings” (such as an enforcement proceeding under Section 120.69) except that in such special proceedings the “form, content, procedure and time for pleading” are governed by the statute rather than the rules unless the rules expressly provide to the contrary. We find nothing in the rules “specifically providing] to the contrary” with reference to Section 120.69 proceedings or with reference to third party practice. Assuming, then, that the statute controls as to the enumerated factors (form, content, procedure, time), does this eliminate the possibility of looking back at the rules to engraft upon the statutory proceedings the third party practice concept embodied in Rule 1.180, Florida Rules of Civil Procedure?

The County argues, by analogy, that this question should be answered in the affirmative. Its position is that special statutory proceedings are designed for the consideration and disposition of certain enumerated issues and that it is inappropriate to insert any other issues into the litigation. Examples given in support of this argument are McCoy Restaurants, Inc. v. City of Orlando, 392 So.2d 252 (Fla.1980) (trial court lacked jurisdiction to consider validity of lease agreement between airport and its lessees in a bond validation proceeding under Chapter 75, Florida Statutes); Shavers v. Duval County, 73 So.2d 684 (Fla.1954) (in eminent domain proceedings the rights of mortgagees, judgment creditors and lienholders were to be considered in supplemental proceedings and not in the main action, as the jury is empanelled to decide what compensation should be made to the owners); and Vecellio v. Vecellio, 313 So.2d 61 (Fla. 4th DCA 1975) (the lower court erred in terminating a father’s child support obligation due to the mother’s failure to comply with a visitation order in a proceeding brought under Chapter 88, Florida Statutes, which chapter is for the determination of the child support duty only). None of the eases addresses the issue of a third party complaint or construction of Rule 1.010.

Century disagrees, pointing out that the comment to Rule 1.010, Florida Rules of Civil Procedure, explains that to the extent that statutes dealing with a particular civil action do not set out a rule for a particular phase of practice or procedure, such phase is governed by the rules of civil procedure. Because third party practice is neither proscribed nor referred to by the statute, the rule applies. Century also calls attention to the fact that Rule 1.180, Florida Rules of Civil Procedure, which governs third party practice, is applicable to the instant case, in light of its stated policy “[to secure] the just, speedy, and inexpensive determination of every action.”

A final point of contention between the parties relates to the language of the statute, Section 120.69(5), which provides:

(5) In any enforcement proceeding the respondent may assert as a defense the invalidity of any relevant statute, the inapplicability of the administrative determination to respondent, compliance by the respondent, the inappropriateness of the remedy sought by the agency, or any combination of the foregoing. In addition, if the petition for enforcement is filed during the time within which the respondent could petition for judicial review of the agency action, the respondent may assert the invalidity of the agency action.

The County contends that the statute, by reciting the defenses which may be raised by a respondent, effectively eliminates the possibility of a respondent filing a third party complaint. Century responds that the statute speaks only to limiting the availability of defenses and is not probative of the issue at hand. As far as we have been able to determine, this issue is one of first impression in Florida. No cases on point have been referred to by the parties and our independent research has disclosed none.

It seems reasonably clear that the statute (Section 120.69) does not itself specifically exclude the possibility of a third party complaint. Further, the special statutory proceedings called to our attention by the County purposely treat limited issues for reasons that are apparent — at least they seem to us to be apparent — in view of the nature of the proceeding involved. We are therefore not persuaded that third party practice is prohibited by the statute or by analogy to other statutory proceedings.

We turn, then, to a brief consideration of the practical consequences of permitting third party practice in the setting of agency enforcement proceedings. The agency seeks to enforce a rule or ruling against a respondent as expeditiously and, it is hoped, as inexpensively as possible. It. could be argued that to bring into the arena a third combatant against whom the respondent has a grievance only distantly related to the original issue being litigated may tend to inhibit the attainment of both of these goals. Should this become an actuality rather than a mere possibility, the trial court has a variety of options available to ameliorate any harmful effects, such as severing the issues for separate trials. The third party, being cast in the role of defendant, has no realistically assessable disadvantage whether his liability is determined within the Section 120.69 proceeding or later in an independent action. Finally, the judicial system can only benefit from a combination of the actions, leading toward consistency in determinations and efficiency in the use of court time and resources.

While this case may represent the first time a third party complaint has been permitted in an agency’s action for enforcement under Section 120.69, it will not be the first time that enforcement has been sought in litigation involving other issues. In Doyal v. School Bd. of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982), enforcement of an order of the Public Employees Relations Commission was one of four counts in the complaint, all of which were resolved in the single action.

For the reasons developed by the foregoing analysis, we reverse the order dismissing Century’s Third Party Complaint and order it reinstated. We remand the cause for further appropriate proceedings.

REVERSED AND REMANDED.

GLICKSTEIN and BARKETT, JJ., concur.