text:
    Worthy WATSON, Appellant, v. FREEMAN DECORATING CO. and Hartford Insurance Group, Appellees.
    No. AW-350.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.

      Ronald B. Gilbert, Miami, for appellant.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   PER CURIAM.

In this workers’ compensation proceeding the deputy commissioner denied payment of claimant’s hospital and doctor bills, finding no good cause shown for the failure to file reports timely as required by Section 440.13(1), Florida Statutes (1981). We reverse.

On October 5, 1981, claimant was working as a warehouseman for Freeman Decorating Company. As claimant stacked tables, he experienced chest pains and stopped working. After resting a few minutes, he reported the incident to his foreman. The foreman told claimant to go to the hospital to have his pains checked, and directed one of the truck drivers to drive claimant to the hospital. Claimant testified that the decision to go to Palmetto General Hospital was not his — nor could he recall whether the foreman expressly directed that he be taken to Palmetto General. Dr. Suarez-Pupo, a specialist in internal medicine and cardiology, was covering the emergency room when claimant was brought in with complaints of pain from the low chest area up to the mid anterior chest. Claimant told Dr. Suarez-Pupo that he had been lifting items at work. On receipt of this information, Dr. Suarez-Pupo ordered a complete series of tests to rule out the possibility of a heart attack. Dr. Suarez-Pupo testified that he performed no tests that were not indicated by claimant’s symptoms and the history presented by claimant when he was admitted. Claimant’s industrial injury was diagnosed as muscle strain which produced chest pain from the chest wall. Claimant was admitted to the hospital on October 5, 1981, and was discharged on October 7, 1981. On October 6, claimant called his foreman and told him in general terms about the care he was receiving. Claimant’s hospital discharge was on a Thursday, and he returned to work the following Monday.

On October 22, 1981, Dr. Suarez-Pupo submitted a bill for his services. The employer/carrier controverted on the ground that Dr. Suarez-Pupo had not complied with the reporting requirement of Section 440.13(1). Two to three weeks after claimant’s discharge, he received a statement from the hospital. This statement was dated October 10, 1981. Claimant took the statement to the person at Freeman Decorating Company, employer, charged with the responsibility of processing insurance forms, and was told by her that the appropriate forms would be filled out. After claimant received a letter from the carrier advising that the carrier would not pay the hospital bill, claimant filled out the forms and filed for payment himself. The deputy commissioner found that claimant had suffered a compensable injury but denied payment of the medical bills on the grounds that the medical services were provided without the knowledge or authorization of the employer/carrier, and neither the doctor nor the hospital complied with the reporting requirement of Section 440.13(1), with which no good cause shown for failure to so comply.

The employer/carrier argue that the statute relieves them of the obligation to pay the bill of the health care providers because they failed to file timely reports with the employer. The consequences of sustaining the employer/carrier’s position would, paradoxically, place the obligation on the injured worker to pay for medical expenses sustained by him as a result of an industrial injury, notwithstanding his lack of control over the treating physician’s tardy conduct.

The legislature, however, has recognized the harshness of what might result if an inflexible rule were applied in all cases disallowing the payment of medical bills caused by a technical violation of the statute. Section 440.13(1) further provides that the deputy may excuse for good cause the failure of the physician to furnish the report during the period involved. We must now determine whether good cause was established to excuse such failure.

We note at the outset that we reject the deputy commissioner’s finding that Palmetto General Hospital failed to comply with the reporting requirement of Section 440.13(1). A hospital representative testified that the billing code indicated the statement was mailed in the ordinary course of business. The record reflects the statement is dated October 10, 1981, which places it within the ten-day statutory reporting period. There is a general presumption that the ordinary course of business has been followed, absent a showing to the contrary. Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973); Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545, 548 (Fla. 3d DCA 1974). The employer/carrier here offered no such contrary showing.

In the case at bar, there are two possible explanations for Dr. Suarez-Pupo’s failure to timely file reports as required by Section 440.13(1). First, Dr. Suarez-Pupo testified that this case was his first experience with workers’ compensation claims and billing. Second, there was some confusion on Dr. Suarez-Pupo’s part over where he should send his bill. On October 22, 1981, Dr. Suarez-Pupo billed Bankers Insurance for medical services rendered to claimant, rather than the carrier, Hartford. No explanation was advanced that would explain why the doctor sent his bill to the wrong insurer. However, failure to timely file Section 440.13(1) reports has been excused when the record demonstrates confusion on the part of physicians over where they should send their bills, and the carrier was not hindered in evaluation of the claim by the absence of prompt formal reports. Florida Sod Co. v. Myers, 432 So.2d 645 (Fla. 1st DCA 1983). Ordinarily, the reason advanced by the health care provider is the most relevant evidence in reaching a decision as to whether or not good cause applies. See, e.g., Jack Eckerd Corp. v. Coker, 411 So.2d 1026, 1028 (Fla. 1st DCA 1982); Walt Disney World v. Schiebel, 414 So.2d 602, 603 (Fla. 1st DCA 1982); Cedars of Lebanon Health Care v. Summerset, 409 So.2d 185 (Fla. 1st DCA 1982); Vannice Construction Co. v. Silverman, 419 So.2d 369 (Fla. 1st DCA 1982). Other cases, however, consider the conduct of the employer as the more determinative evidence in resolving a good cause question. See, e.g., Willard Kaufman Co. v. Rawlings, 414 So.2d 641 (Fla. 1st DCA 1982); Commercial Carrier Corp. v. Fox, 400 So.2d 154 (Fla. 1st DCA 1981).

Because the cases have not clearly defined which party bears the burden of establishing good cause, we think it first necessary to resolve that question. As was observed by the Florida Supreme Court in Corporate Group Service, Inc. v. Lymberis, 146 So.2d 745, 747 (Fla.1962), the statute itself “is silent about the manner in which and the person by whom the [good cause] showing should be made.” Nevertheless, we conclude, because the burden is upon the claimant to establish his injury and the causal connection between the injury and the employment, Martin v. Board of County Commissioners, 79 So.2d 513 (Fla. 1955), that any claim requesting the payment of medical expenses necessarily places the burden on claimant to show a good cause excuse, if such becomes an issue. See St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753 (Fla.1966). The type of evidence necessary to meet the burden may vary in a given case. Thus, in certain cases, the claimant may satisfy his burden simply by presenting evidence of an employer’s pattern of conduct which may be so incongruent with its reliance upon a reporting violation as to be considered a waiver of such defense. Professor Alpert has noted the inconsistency in the early supreme court decisions on the subject, observing that one is left in doubt as to whether they are applying the principle of excuse for good cause or waiver. Alpert, Florida Workmen’s Compensation Law, § 17-16, at 631 (3d ed. 1978).

Drawing a distinction between the two terms is, however, an exercise in which we need not indulge. We consider that the concept of waiver has since been subsumed within that of good cause; that it is now a species of excusal for good cause. This conclusion we think is made evident from the Florida Supreme Court’s opinion in Torres v. Eden Roc Hotel, 238 So.2d 639, 643 (Fla.1970), in which the court observed:

[S]ince there is inherent harshness and risk of injustice in a rule which denies recovery to a merited claim on failure to meet a procedural time limit, there is a “good cause” provision which is intended to allow recovery of equitable claims, even if not filed in time, within the discretion of the Commission, subject to judicial review. For good cause, the Court should not enforce the ten-day limitation. For example, inability to file, waiver or conduct by the employer, may support a finding of good cause to waive the ten-day requirement. Actual knowledge is an important element of waiver.

The Torres decision is significant in several respects. First, it identifies the reasons for section 440.13(l)’s reporting provisions (to notify the employer in order to avoid the risks of inflated bills or treatment which duplicates treatment already made available, and to bring such treatment properly within the machinery of the workers’ compensation program). Second, it demonstrates certain examples which may support a good cause finding excusing the necessity to report, such as a claimant’s inability to file, or conduct by the employer tantamount to waiver. Not insignificantly, the court observed that an employer’s “[a]ctual knowledge is an important element of waiver.” The principle pf waiver was often applied by early Florida Supreme Court decisions as a means of excusing the health care provider’s failure to file reports timely. The cases all reflect a. recurring theme: the employer’s knowledge of the claimant’s condition and of the fact that benefits were being provided by a specific health care provider; its acquiescence in the treatment, and its disavowal of its responsibility to furnish medical benefits because of a violation of the reporting provisions. See, e.g., Foster v. Cooper, 143 Fla. 493, 197 So. 117, 118 (1940); Consolidated Growers Association v. Kruse, 159 Fla. 405, 31 So.2d 545 (1947); Geiger Distributors, Inc. v. Snow, 186 So.2d 507, 509 (Fla.1966). Those opinions suggest that when a claimant presents evidence revealing the employer’s inconsistent conduct, the employer must demonstrate how it was prejudiced by the reporting failure; that prejudice is not presumed because the employer had the ability to obtain, if it wished, any material information concerning the employee’s condition.

The case before us is on point with the cases finding waiver as a basis for excusing timely reporting. Here, the employer clearly had knowledge of the claimant’s condition. The employer knew that benefits were being provided by Palmetto General Hospital and its staff. The employer acquiesced in the treatment and the employer disavowed responsibility to furnish medical benefits because of a reporting violation. Not explicitly articulated, but clearly intimated in cases involving waiver, is the same principle expressed in those cases sustaining bad faith attorney fee awards: an obligation imposed by law upon the employer to place benefits in the hands of the injured worker, and a breach of that obligation by the employer despite its knowledge of the employee’s continuing need for the same. See Florida Erection Services, Inc. v. McDonald, 395 So.2d 203, 211 (Fla. 1st DCA 1981); Holiday Care Center v. Scriven, 418 So.2d 322, 327 (Fla. 1st DCA 1982).

We therefore conclude that a claimant satisfies his burden of establishing a good cause excuse for a health care provider’s failure to honor section 440.13’s reporting requirements when under such circumstances as this case, he has presented evidence disclosing that the employer has conducted itself so inconsistently as to have waived its right to rely on those requirements as a defense to the claim. Waiver may occur here because the employer, after having actual knowledge of both the injury and the care provided, breaches its obligations to compensate the health care providers for the treatment of the injured worker. Under such circumstances, the claimant satisfies his burden, and he need not present further evidence on the question of whether the reason offered by the health care provider’s failure to file timely reports was for good cause.

The denial of payment of claimant’s hospital and doctor bills is reversed and remanded to the deputy commissioner with instructions to order the payment of those bills.

ERVIN, C.J., and JOANOS and NIM-MONS, JJ., concur.


source: Caselaw Access Project

author: SHARP, WINIFRED J., Associate Judge.

license: Public Domain

text:
    TALL TREES CONDOMINIUM ASSOCIATION, INC., Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellee.
    No. 83-2474.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.

      Joseph C. Segor, Miami, for appellant.
    Karl M. Scheuerman, Tallahassee, for ap-pellee.
    Before SCHWARTZ, C.J., HUBBART, J., and SHARP, WINIFRED J., Associate Judge.
   SHARP, WINIFRED J., Associate Judge.

Tall Trees Condominium Association, Inc. appeals from a final order of the Division of Florida Land Sales and Condominiums (“Division”), finding that appellant violated section 718.111(7), Florida Statutes (1983), and assessing a civil penalty of $5,000.00. We have jurisdiction pursuant to section 120.68, Florida Statutes (1983), and reverse.

This cause of action stems from a complaint filed with the Division by a unit owner in appellant’s condominium development. As a result of misinformation about appellant’s willingness to comply with the complainant’s request and what kind of financial records were requested by the complainant, a show cause order was issued by the Division at a time when appellant’s attorney was on vacation. In addition, when the show ca.use order was received, it was confused with a continuance granted in another matter involving the Division, and, as a consequence, misfiled. As a result, the time for requesting a hearing lapsed and the final order now under appeal issued. Appellant moved to set aside the final order on the basis that it had complied with the complainant’s requests and explained that the failure to request a hearing was due to inadvertence and clerical error. The Division, which has no procedure for setting aside a final order, treated the motion as an informal request to reconsider its action in the case and upheld the final order.

It is well settled that agency findings must be supported by competent, substantial evidence in the record as a whole. Bureau of Crimes Compensation, Florida Dept, of Labor & Employment Security v. Reynolds, 443 So.2d 501 (Fla. 3d DCA 1984); City of Lake Wales v. Public Employees Relations Commission, 402 So.2d 1224 (Fla. 2d DCA 1981); Brewer v. Insurance Commissioner & Treasurer, 392 So.2d 593 (Fla. 1st DCA 1981). From the evidence contained in the record, we find that there is no basis for concluding that appellant wilfully refused to allow the complainant to inspect the financial records. Indeed, the record affirmatively shows otherwise. Appellant responded quickly to the complainant’s initial request, opened the receipts and expenditures records (those records specifically named in § 718.111[7]) for his inspection, and was in the process of responding to the complainant’s request for additional records when the Division decided to proceed against appellant for its denial of the complainant’s request to inspect. Therefore, we find that the Division’s action in this case was not supported by competent, substantial evidence on the record as required by section 120.57, Florida Statutes (1983).

As a parenthetical, we note that the Division has no procedural rule or provision for setting aside a final order; no counterpart to Rule 1.540, Florida Rules of Civil Procedure. Chapter 28-3, Florida Administrative Code and Section 120.53, Florida Statutes (1983), give agencies the authority to enact rules of procedure and practice. While we cannot require that the Division adopt such a rule, Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978), we suggest that notions of due process and fundamental fairness require that a procedure for setting aside a final order be available for use in appropriate situations.

The final order of the Division of Florida Land Sales and Condominiums is

REVERSED.

      . At this time, the complainant was involved in litigation with appellant. Certain financial records were in the possession of the court. When the complainant demanded to see the additional records, the Division wrote to appellant on August 5, 1983 requiring it to produce the records within seven days, stating as its reason for doing so that on June 8, 1983, complainant had asked to see "all financial records not in the possession of the court.” In fact, complainant’s June 8th letter asked to see "all of the records authorized by § 718.111(7).” These records were given to and inspected by the complainant.


author: PER CURIAM.

text:
    SOUTH MIAMI HOSPITAL FOUNDATION, INC., a corporation not for profit, Appellant, v. Juan B. HERNANDEZ, Appellee.
    No. 84-244.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.

      George A. Buchmann, South Miami, for appellant.
    Whitman, Wolfe & Gross and Andrew Newman and Douglas Kramer, Miami, for appellee.
    Before BARKDULL and HUBBART and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered in an action to collect on an outstanding hospital bill. It is undisputed that the defendant Juan Hernandez incurred a debt for hospital services rendered by South Miami Hospital Foundation, Inc. to his deceased wife, which was payable by the said defendant thirty days after his wife’s discharge from the hospital. Subsequent to the debt becoming due and payable, a hospital representative agreed to accept $50.00 a month from the defendant as part payment on the outstanding debt; the defendant apparently was financially unable to pay the entire bill at that time. The trial court concluded that this installment arrangement constituted a novation agreement. The court, however, did not cancel the original debt in the final judgment, but. instead ordered it paid in installments of $50.00 a month. This result means that the monthly installments will never cease and the subject debt will grow larger every month because the monthly interest on the outstanding debt is considerably more than $50.00 a month payments. The hospital appeals.

Under the above facts, it is plain that a novation agreement was never established below. The law is settled that an agreement to pay in installments on a debt which is already due and owing, as here, cannot, without more, constitute a novation agreement. This is so because the original debt is not thereby extinguished and no consideration is given to the creditor for the installment arrangement. Miami National Bank v. Forecast Construction Corp., 366 So.2d 1202 (Fla. 3d DCA 1979). Moreover, the creditor’s claimed forebearance to sue the debtor cannot, as urged, constitute consideration to the creditor for the asserted novation agreement because the creditor gains nothing — indeed, he suffers a detriment — by such a forebearance.

We therefore reverse the final judgment under review and remand the cause to the trial court with directions to enter judgment for South Miami Hospital Foundation, Inc. in the amount of the hospital bill due and owing, plus interest.

Reversed and remanded.


author: NESBITT, Judge.

text:
    Selvin G. HINES, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission and the Central Press of Miami, Inc., Appellees.
    No. 84-292.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.

      Barbara Green, Miami, for appellant.
    Donna Erlich, Tallahassee, for appellee, Unemployment Appeals Com’n.
    Manas & Marcus and Richard Manas, Miami, for appellee, The Central Press of Miami, Inc.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

Hines appeals a decision of the Unemployment Appeals Commission affirming an Appeals Referee’s denial of his claim for unemployment compensation. We affirm.

In 1979 Hines began working for Central Press as a feeder in the press room. Hines was at one point promoted to the position of pressman, but due to substandard performance in that position, he was demoted to second pressman. In April 1983, Hines had a heated argument with the pressman with whom he was working. Both Hines and the pressman were reprimanded for this conduct by the vice president in charge of production. This led to a heated exchange between Hines and the vice president in which Hines challenged the vice president to fire him. The vice president informed Hines that he did not intend to discharge him, but warned Hines never to make such a challenge again.

On June 16, 1983, there being insufficient printing work to be done, Hines was working in the stock area. He had finished the work in the stock area and was engaged in a conversation with the bindery-supervisor when Hines’ foreman sent for him. When Hines failed to report immediately, the foreman went to the stock area and told Hines to get back to work in his assigned area. When Hines attempted to explain his absence, the foreman refused to listen and told him to keep busy by assisting the feeder operator and cleaning and sweeping the floor. Both persons became upset and a confrontation occurred in front of other employees in which Hines offensively refused to clean or sweep the floor. The foreman then asked Hines how much he liked or wanted his job. At this point, Hines slammed his fist down on a stack of skids and shouted that he “didn’t give a damn” if the foreman fired him, and that the foreman should go ahead and fire him. The foreman complied with the request.

Hines filed a claim for unemployment compensation which was initially granted by a claims examiner. Hines’ employer, however, filed an appeal and the Appeals Referee reversed the determination of the claims examiner by finding that Hines’ action amounted to “misconduct connected with work” and that, therefore, Hines was “disqualified from receiving benefits.” The Unemployment Appeals Commission affirmed the decision of the Appeals Referee finding that it was “in accord with the essential requirements of law.” This appeal followed.

Under section 443.101, Florida Statutes (1983), an individual is disqualified for unemployment compensation benefits if he has been discharged “for misconduct connected with his work, if so found by the division.” The sole issue presented is whether Hines’ attitude and actions on June 16, 1983 constituted “misconduct.”

Under the specific language of the statute, the question of whether an employee has been discharged for misconduct connected with his work is a matter to be determined by the division. Marion County School Board v. Clark, 378 So.2d 831 (Fla. 1st DCA 1979). This court, therefore, lacks authority to interfere with an administrative decision based upon an acceptable view of the evidence below. Perez v. State, Department of Labor & Employment Security, Appeals Commission, 377 So.2d 806 (Fla. 3d DCA 1979). Accordingly, we must affirm the referee’s determination of misconduct if it is supported by competent, substantial evidence in the record. Sanchez v. Department of Labor & Employment Security, State of Florida, Unemployment Appeals Commission, 411 So.2d 313 (Fla. 3d DCA 1982). Accord Lundy’s Market, Inc. v. Florida Department of Commerce, Division of Employment Security, 373 So.2d 433 (Fla. 3d DCA 1979); Varig Brazilian Airlines v. Florida Department of Commerce, Division of Employment Security, 354 So.2d 921 (Fla. 3d DCA 1978); Carlson v. Florida Department of Commerce, 275 So.2d 24 (Fla. 2d DCA 1973).

For purposes of the unemployment compensation statutes, misconduct includes, but is not limited to:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

§ 443.036(24), Fla.Stat. (1983). The two contributing factors in the referee’s determination of misconduct were Hines’ offensive challenge to the foreman to fire him in the presence of other employees, despite a prior warning not to make such a challenge, and Hines’ belligerent refusal to follow the foreman’s direct order to do certain work. We find that either of these factors would support the referee’s determination.

Hines’ insubordinate and offensive challenge of the foreman’s authority in the presence of other employees was extremely detrimental to the work atmosphere from which an employer must be able to direct and command his employees. As was stated in Jeck v. Board of Review, 377 So.2d 812, 814 (Fla. 4th DCA 1979):

Orderly respect for those in the chain of command is a must in every field of endeavor and very much in every employer’s interest.

Thus, Hines’ actions in the present case were certainly in contravention of his employer’s interests. Additionally, Hines’ disregard of the prior warning not to challenge his superiors to fire him was also a material fact properly considered in determining that his actions constituted misconduct. See Fort Myers Pump & Supply, Inc. v. Florida Department of Labor & Employment Security, Division of Employment, 373 So.2d 429 (Fla. 2d DCA 1979); Varig Brazilian Airlines. While, perhaps Hines’ conduct would not have constituted misconduct under the statute if it was a first occurrence, the fact that he had been previously warned against conducting himself in such a manner and he disregarded that warning amounts to misconduct under the facts of the present case.

Furthermore, Hines’ belligerent refusal to comply with the foreman’s legitimate work order is in itself sufficient to constitute misconduct within the purview of section 443.101. Obviously, an employer has the right to expect his employee to carry out assigned tasks, and an employee’s refusal to do so is harmful to the employer’s interest. Castor v. Department of Labor & Employment Security, 429 So.2d 829, 830-31 (Fla. 2d DCA 1983). Thus, an employee’s intentional refusal to follow a superior’s valid work order is considered misconduct connected with work. Citrus Central v. Detwiler, 368 So.2d 81 (Fla. 4th DCA 1979).

In Citrus Central, the employee disobeyed his foreman’s order by leaving his work site. The employee left to complain to the main office about his transfer from one department to another. The foreman had advised the employee to continue working and to take his complaint to the main office when he was off duty. The employee disregarded this advice and was fired. The court noted that the employee’s work history indicated that he was often transferred from department to department. 368 So.2d at 82-83. The court then held:

We rule that flagrant and intentional disobedience to a valid work order by a superior on the job should indeed be characterized as misconduct on the job

368 So.2d at 83.

In the present case, the record indicates that, due to a lapse in printing work, Hines often did other work for his employer. The foreman’s order on June 16, 1983 that Hines assist the feeder operator, and sweep and clean the floor, therefore, was a valid work order given by Hines’ superior. Hines’ “flagrant and intentional” refusal to comply with that order amounted to misconduct connected with his work within the meaning of section 443.101. Citrus Central. See Castor.

We also find Hines’ provocation defense to be without merit. Although we agree that unjustifiable provocation by an employer may in some instances be a valid defense to a charge of employee misconduct, we find that the foreman's action in the present case did not amount to such provocation. Cf. First Family Federal Savings & Loan Association v. Commonwealth, Unemployment Compensation Board of Review, 68 Pa. Commw. 578, 449 A.2d 870 (1982) (an employee’s threat of hitting his manager if the manager hit him again does not amount to misconduct where the manager initiated physical contact by slapping the employee, thus amounting to justifiable provocation; in addition, the threat was de minimis in nature under the circumstances); Nehi Bottling Co. v. Unemployment Compensation Board of Review, 27 Pa.Commw. 251, 366 A.2d 594 (1976) (a threat by an employee to his superior does not constitute willful misconduct where it is the result of calculated and purposeful harassment of the employee); Horace W. Longacre, Inc. v. Commonwealth, Unemployment Compensa tion Board of Review, 12 Pa.Commw. 176, 316 A.2d 110 (1974) (although the use of vulgar and offensive language addressed to a superior constitutes willful misconduct, de minimis offensive language does not amount to misconduct when it is provoked by an “improper and unpardonable indiscretion by an executive”). Hines is simply reading too much into the referee’s finding that “[a]s the result of the foreman being upset, the claimant became up-set_” This finding read in pari mate-ria with the remainder of the findings and the record indicates that provocation is not a valid defense in the present case.

Accordingly, we find that the Appeals Referee’s decision that Hines’ actions constituted misconduct is supported by competent, .substantial evidence. The Commission’s affirmance of that decision is hereby affirmed.


text:
    Jessie James DENT a/k/a Arline Anderson, Appellant, v. The STATE of Florida, Appellee.
    No. 84-387.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Weiner, Robbins, Tunkey & Ross, Miami, and David Raben, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The trial court’s findings of violation of probation and the sentences imposed in case no. 74-9865, counts I and III, and case no. 76-2992, count I, are reversed. Regardless of whether the court had jurisdiction on October 14, 1976, to place the defendant on probation for three years, the trial court was without jurisdiction to consider an affidavit for violation of this probation which was not filed until September 28, 1983. Shankweiler v. State, 427 So.2d 215 (Fla. 4th DCA 1983); Gardner v. State, 412 So.2d 10 (Fla. 2d DCA 1981); Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978). As to count I in case no. 74-9865, see also Mounts v. State, 421 So.2d 22 (Fla. 5th DCA 1982).


author: DANIEL S. PEARSON, Judge.

text:
    C.U. ASSOCIATES, INC. and Aetna Casualty and Surety Company, a Connecticut corporation, Appellants, v. R.B. GROVE, INC., a Florida corporation, Appellee.
    No. 84-548.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Broad and Cassel and Steven W. Davis, Miami, for appellants.
    Fred A. Harrison, Jr., South Miami, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ. ,
   DANIEL S. PEARSON, Judge.

C.U. Associates, Inc. appeals that portion of the final judgment which found the ap-pellee, R.B. Grove, Inc., entitled to attorneys’ fees and costs as the prevailing party in this mechanics’ lien litigation. It contends that because the amount recovered by Grove in litigation was no greater than the amount offered to Grove before litigation, Grove cannot be considered the prevailing party.

While appellant’s position finds some support elsewhere in this state, see Monde Investments No. 2, Inc. v. R.D. Taylor-Made Enterprises, Inc., 344 So.2d 871 (Fla. 4th DCA 1977); cf. S.C.M. Associates, Inc. v. Rhodes, 395 So.2d 632 (Fla. 2d DCA 1981), this court has taken the view that “a claimant who succeeds in establishing a mechanic’s lien and receives a judgment in his favor in any amount whatever is necessarily the ‘prevailing party’ under Sec[tion] 713.29" without regard to whether the judgment recovered exceeds, equals or is less than any prelitigation offer. Acadia Development Corp. v. Rinker Materials Corp., 419 So.2d 1142, 1144 (Fla. 3d DCA 1982), rev. denied, 431 So.2d 988 (Fla.1983). In essence, then, a party prevails and is entitled to fees and costs when he receives a favorable judgment, and it is irrelevant that he turned down a more favorable prelitigation offer or that his victory in court is pyrrhic. What is relevant, however, to the prevailing party’s entitlement to fees and costs is whether the non-prevailing party has served an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442 more favorable to the prevailing party than the judgment actually obtained. As we said in a factually different but legally indistinguishable context:

“If, as the record below reflects, the defendant’s negligence and the plaintiff’s property damage were not issues of serious dispute, and the defendant’s primary defense was that the plaintiff had not suffered a permanent injury within reasonable medical probability so as to entitle the plaintiff to recover for personal injuries, see § 627.737, Fla.Stat. (1981), then, given the results of this case, the defendant could have preserved his claim for costs had he made an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442 in the undisputed amount of the property damage. That not having been done and the defendant not being a ‘party recovering judgment,’ the defendant’s motion to tax costs was correctly denied.” Upson v. Hazelrig, 444 So.2d 1127, 1128 (Fla. 3d DCA 1984).

Thus, if the appellant herein wanted to prevent or mitigate the assessment of fees and costs against it or itself wanted to recover such fees and costs, it could have renewed its prelitigation offer in the form of a Rule 1.442 offer of judgment after litigation began. That not having occurred, the final judgment must be affirmed in all respects.

Affirmed.

      . Section 713.29, Florida Statutes (1981), provides:
      “In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.”

      . We assume, without deciding, that when Grove rejected C.U.’s good faith offer and demanded a greater amount, formal tender by C.U. was excused. See Sisco v. Rotenberg, 104 So.2d 365 (Fla.1958); Martin v. Albee, 93 Fla. 941, 113 So. 415 (1927).

      . In Acadia, this court found that no bona fide prelitigation offer was made, 419 So.2d at 1144 n. 2, and thus distinguished Monde Investments and S.C.M. Associates. We recognized, however, that we would decline to follow those decisions were they not factually distinguishable.

      . As one court has noted, the existence of an offer of judgment is irrelevant to determining the prevailing party. See Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754, 756 n. 1 (Fla. 2d DCA 1978). That is so because a successful offer of judgment under Rule 1.442 serves to cut off liability for only those fees and costs incurred after the making of the offer. Liability for fees and costs incurred before the offer is unaffected, and the prevailing party is entitled to such fees and costs notwithstanding the later successful offer of judgment.

      . Because no offer of judgment was made, the form of the offer of judgment is not in issue here. See Encompass Inc. v. Alford, 444 So.2d 1085 (Fla. 1st DCA 1984).


text:
    Jose CISNEROS, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and Property Management and Maintenance, Inc., Appellees.
    No. 84-710.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Barbara Green, Miami, for appellant.
    William T. Moore, Tallahassee, for appel-lees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the order of the Unemployment Appeals Commission which affirmed the decision of the Appeals Referee dismissing Cisneros’ appeal from a denial of unemployment compensation benefits. A review of the record demonstrates that a dismissal of Cisneros’ appeal on the grounds of his non-appearance is unsupportable. Cisneros’ hearing before the Referee was scheduled for 2:15 p.m. on December 1, 1983. As the Referee herself noted, Cisneros (who neither spoke nor understood English) appeared at 2:10 p.m. without an interpreter, was advised to get an interpreter, and reappeared at 2:15 p.m. with “another claimant he found in the claims line to interpret.” When this interpreter could not stay for the hearing, Cisneros was told the hearing could not be held without an interpreter, and Cisneros left. There is absolutely nothing in this record to indicate that Cisneros was made aware that his leaving would constitute a non-appearance, and thus a failure to prosecute, resulting in dismissal of his appeal, and nothing to support the Referee’s formal order, which states, inter alia, that “[t]he appellant was duly notified to appear but failed to do so,” and “[t]he Referee was not notified of any reason for nonappearance.”

Reversed and remanded with directions that appellant be given a new hearing upon proper notice before an Appeals Referee.


author: BARKDULL, Judge.

text:
    Hansel Tyrone CLARKE, Petitioner, v. The STATE of Florida, Respondent.
    No. 84-1380.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Howard J. Hochman, Sp. Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., and Steven Kolod-ny, Asst. Atty. Gen., for respondent.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BARKDULL, Judge.

We deny the petition for certiorari under review because we find that the trial court properly found that before the accused can be considered for the remedies provided under Rule 3.213(b) Florida Rules of Criminal Procedure, said accused must demonstrate 5 consecutive uninterrupted years of incompetency to stand trial. As the record herein reflects that the defendant’s periods of incompetency had been broken by periods of competency the trial court was correct in denying the defendant’s motion to dismiss.

Until such time as a trial court determines that the defendant has been incompetent for 5 consecutive years it does not reach the second determination of the rule “that there is no substantial probability that the defendant will become mentally competent to stand trial in the foreseeable future”.


author: WALDEN, Judge. HERSEY, Judge, GLICKSTEIN, J.,

text:
    Morgan JAMISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-18.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      Richard L. Jorandby, Public Defender, Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

Jamison was charged with possession of methaqualone. He pled nolo contendere reserving the right to appeal the denial of his Motion to Suppress. He was adjudicated guilty and sentenced to three years imprisonment. He appeals. We reverse and remand.

The State accepts Jamison’s version of the facts as follows:

Deputy Sheriff Gregory Younkin received a radio dispatch that a Marion Craft called in a complaint. The complaint was that a black male wearing long blue pants, no shirt, and a short afro was at the south end of Jensen Beach with a firearm. Deputy Younkin testified that he never talked to Marion Craft, and that he knew nothing about her reliability.
Deputy Younkin responded to the beach four minutes after the dispatch. He observed the appellant, a black male, inside the pavilion area. The appellant had no shirt and he was wearing long blue pants. There were a number of black males in the area. Initially, Deputy Younkin asked all the people inside the pavilion if anyone had a firearm. He then asked the appellant to lift his pants leg up. Deputy Younkin testified that if the appellant had refused to lift his pants leg up, he would have frisked him. After appellant lifted his pants leg up, Deputy Younkin noticed a bulge in appellant’s left sock. He had not observed this bulge before. The appellant was asked to remove a brown paper bag which he was ordered to dump upon a table by Deputy Younkin. Deputy Youn-kin testified that he observed about 50 white pills.
On cross-examination, Deputy Younkin acknowledged that he did not see anything about the appellant that would lead him to believe that the appellant had a weapon prior to asking him to lift up his pants leg.
The State adds:
None of the persons at the Jensen Beach pavilion matched the description given in the dispatch except the appellant, as he was the only one wearing long trousers. Deputy Younkin testified he thought the bulge in the appellant’s sock was caused by a small caliber firearm because in the past he has encountered people who have carried weapons in their socks.
Deputy Younkin directed the appellant to raise his pants leg rather than do a patdown because the presence of the other persons in the area concerned him and he wanted to keep an eye on everyone.

In our opinion Jamison was properly subjected to a stop and frisk pursuant to Section 901.151, Florida Statutes (1981). The facts were insufficient to constitute probable cause for an arrest at the time he was stopped.

However, we are concerned with the provisions of Section 901.151(5) (1981) as applied to this case. It provides:

(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) of this section has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

Here the officer took these particular actions which constituted an illegal search: (1) He directed Jamison to lift up his pants leg; (2) He directed Jamison to take out what was in his sock when he observed a bulge in the sock; and (3) He directed Jamison to dump the contents of the brown paper bag that Jamison had removed from his sock. We hold that these actions exceeded the limitations found in Section 901.151, Florida Statutes (1981). It was not necessary for the officer to go to the extent he did in order to determine if Jamison had a weapon.

The law is clear that a protective frisk or “pat-down” must be limited to that which is necessary for the discovery of weapons. It may not extend beyond a pat-down of the suspect’s outer clothing unless the pat-down or other circumstances lead the officer to believe that the suspect has a weapon. Meeks v. State, 356 So.2d 45 (Fla. 2d DCA 1978). See also Baldwin v. State, 418 So.2d 1219 (Fla. 2d DCA 1982); Fraley v. State, 374 So.2d 1122 (Fla. 4th DCA 1979).

Here the officer did not pat-down Jami-son. He testified that he did not conduct a pat-down because he was concerned for his safety and wanted to keep an eye on others in the area. Accepting this excuse in toto for his failure to pat-down Jamison’s outer clothing, we still feel that the officer could have satisfactorily protected his safety and still honored the defendant’s rights by simply having Jamison hand the paper bag to the officer or place it on the ground and walk a distance away, whereupon the officer could have patted-down or felt the bag without opening it. Had he done so he would have felt pellets or pills and no weapon. Thus, there would have been absolutely no justification for proceeding or searching further into the contents of the bag.

We primarily base our reversal upon J.R.H. v. State, 428 So.2d 786 (Fla. 2d DCA 1983) which involved the search of a satchel under circumstances similar to those at hand. There, the Court held:

At most, Truesdale could have asked appellant if the bag contained a dangerous weapon or could have conducted a pat-down search of the bag. He was not entitled to inquire further than that into the nature of its contents or to conduct a full-scale search of the bag.

428 So.2d at 787-788.

Reversed and Remanded.

HERSEY and GLICKSTEIN, JJ., concur specially with opinions.

HERSEY, Judge,

concurring specially.

In J.R.H. v. State, 428 So.2d 786 (Fla. 2d DCA 1983) relied upon by the majority, (1) the search resulted from an officer’s recollection that there had been recent burglaries in the area and (2) the search was carried out in the presence of only two juveniles. There was no hint of a weapon and no other obvious threat to the officer’s safety. In our ease the search was occasioned by an individual’s description of appellant which included the fact that he had a gun. This was neither an anonymous tip nor one from a confidential informant. It was a complaint by a citizen who gave her name and who supplied details of a crime in progress. Thus the officer, upon recognizing appellant from the description, had every reason to be apprehensive about the presence of a firearm. In addition, several individuals were standing around during the interrogation and the officer, again being concerned for his safety (not being certain who might have the weapon) wanted to keep an eye on everyone. Assuredly he could have “frisked” the brown paper bag. The question is: was he constitutionally mandated only to feel the bag rather than to request that appellant dump out the contents. In my view, a rule that requires the making of such fine distinctions in the presence of possible imminent peril asks too much of law enforcement personnel. Nonetheless, such eases as Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) appear to mandate the result we reach with respect to this “container search.” I therefore reluctantly concur.

GLICKSTEIN, J.,

concurring specially.

I concur with Judge Walden's well-reasoned opinion and wish only to comment upon the law vis a vis the enforcement of law, while avoiding repetition of whatever expressions I may have earlier made on this subject in State v. Drowne, 436 So.2d 916, 921 (Fla. 4th DCA), pet. for rev. den., 441 So.2d 633 (Fla.1983). Square one, to me, is the recent expression of the general rule — not the exceptions thereto — as verbalized by the United States Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2166, 72 L.Ed.2d 572 (1982), wherein it commented upon the courts earlier opinion in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977):

In ruling that the warrantless search of the footlocker was unjustified, the Court reaffirmed the general principle that closed packages and containers may not be searched without a warrant. Cf. Ex parte Jackson, [6 Otto 727] 96 U.S. 727, 24 L.Ed. 877; United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282. In sum, the Court in Chadwick declined to extend the rationale of the “automobile exception” to permit a warrantless search of any movable container found in a public place.

(Footnote omitted.)

The court further said in discussing Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1982), which was decided without a majority opinion:

One point on which the Court was in virtually unanimous agreement in Robbins was that a constitutional distinction between “worthy” and “unworthy” containers would be improper. Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.
As Justice Stewart stated in Robbins, the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view. 453 U.S., at 427, 101 S.Ct. at 2846 (plurality opinion). But the protection afforded by the Amendment varies in different settings. The luggage carried by a traveler entering the country may be searched at random by a customs officer; the luggage may be searched no matter how great the traveler’s desire to conceal the contents may be. A container carried at the time of arrest often may be searched without a warrant and even without any specific suspicion concerning its contents. A container that may conceal the object of a search authorized by a warrant may be opened immediately; the individual’s interest in privacy must give way to the magistrate’s official determination of probable cause.

Id. 102 S.Ct. at 2171 (footnotes omitted).

Finally, it said in rejecting the precise holding in Robbins:

We reaffirm the basic rule of Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous Court in Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290:
“The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576] (footnotes omitted).”

Id. at 2172.

The following remarks of Chief Justice Burger in Chadwick are worth repeating here:

“In this Court the Government again contends that the Fourth Amendment Warrant Clause protects only interests traditionally identified with the home. Recalling the colonial writs of assistance, which were often executed in searches of private dwellings, the Government claims that the Warrant Clause was adopted primarily, if not exclusively, in response to unjustified intrusions into private homes on the authority of general warrants. The Government argues there is no evidence that the Framers of the Fourth Amendment intended to disturb the established practice of permitting warrantless searches outside the home, or to modify the initial clause of the Fourth Amendment by making war-rantless searches supported by probable cause per se unreasonable.

Drawing on its reading of history, the Government argues that only homes, offices, and private communications implicate interests which lie at the core of the Fourth Amendment. Accordingly, it is only in these contexts that the determination whether a search or seizure is reasonable should turn on whether a warrant has been obtained. In all other situations, the Government contends, less significant privacy values are at stake, and the reasonableness of a government intrusion should depend solely on whether there is probable cause to believe evidence of criminal conduct is present. Where personal effects are lawfully seized outside the home on probable cause, the Government would thus regard searches without a warrant as not ‘unreasonable.’

We do not agree that the Warrant Clause protects only dwellings and other specifically designated locales. As we have noted before, the Fourth Amendment ‘protects people, not places,’ Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy. In this case, the Warrant Clause makes a significant contribution to that protection. The question, then, is whether a warrantless search in these circumstances was unreasonable.

It cannot be doubted that the Fourth Amendment’s commands grew in large measure out of the colonists’ experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Though the authority to search granted by the writs was not limited to the home, searches conducted pursuant to them often were carried out in private residences. See generally Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509-511, 13 L.Ed. 2d 431 (1965); Marcus v. Search Warrant, 367 U.S. 717, 724-729, 81 S.Ct. 1708, 1712-1714, 6 L.Ed.2d 1127 (1961); Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959).

Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home. First, the Warrant Clause does not in terms distinguish between searches conducted in private homes and other searches. There is also a strong historical connection between the Warrant Clause and the initial clause of the Fourth Amendment, which draws no distinctions among ‘persons, houses, papers, and effects’ in safeguarding against unreasonable searches and seizures. See United States v. Rabinowitz, 339 U.S. 56, 68, 70 S.Ct. 430, 445, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).

Moreover, if there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence at all that they intended to exclude from protection of the Clause all searches occurring outside the home. The absence of a contemporary outcry against warrantless searches in public places was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America. Thus, silence in the historical record tells us little about the Framers’ attitude toward application of the Warrant Clause to the search of respondents’ footlocker. What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.

Moreover, in this area we do not write on a clean slate. Our fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization ‘particularly describing the place to be searched and the persons or things to be seized.’ Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967).

Just as the Fourth Amendment ‘protects people, not places,’ the protections a judicial warrant offers against erroneous governmental intrusions are effective whether applied in or out of the home. Accordingly, we have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings. A century ago, Mr. Justice Field, speaking for the Court, included within the reach of the Warrant Clause printed matter traveling through the mails within the United States:

‘Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household.’ Ex parte Jackson [6 Otto 727, 733] 96 U.S. 727, 733, 24 L.Ed. 877 (1878).

We reaffirmed Jackson in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), where a search warrant was obtained to open two packages which, on mailing, the sender had declared contained only coins. Judicial warrants have been required for other searches conducted outside the home. E.g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (electronic interception of conversation in public telephone booth); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (automobile on private premises); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (automobile in custody); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (hotel room); G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1968) (office); Mancusi v. De-Forte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (office). These cases illustrate the applicability of the Warrant Clause beyond the narrow limits suggested by the Government. They also reflect the settled constitutional principle, discussed earlier, that a fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests, and not simply those interests found inside the four walls of the home. Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949).

433 U.S. at 6, 97 S.Ct. at 2481, 53 L.Ed.2d at 545 (all other footnotes omitted).

Turning back to the present case, Judge Walden has cut through the chaff by his to-the-point opinion. Had the law enforcement officer been consciously aware of the law it was his duty to enforce, the improper, warrantless search would not have occurred in the absence of probable cause for the arrest. I view “law enforcement” as two buzz words, meaning enforcement of the law not only as it is but also as it should be unequivocally announced by the judiciary, clearly taught by law enforcement advisers, and plainly understood by law enforcement officers.

       The Fourth Amendment provides:
      ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by. Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’"


text:
    William T. IRWIN, Appellant, v. Kathleen N. IRWIN, Appellee.
    No. 83-1539.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      William Randolph Klein of Klein, Bennett & King, Sarasota, for appellant.
    Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

Following our opinion, Irwin v. Marko, 417 So.2d 1108 (Fla. 4th DCA 1981), the Honorable Paul M. Marko, Judge of the Circuit Court of the Seventeenth Judicial Circuit entered an order of recusement in the fall of 1982, copies of which were sent to respective counsel. The matter was thereafter reassigned to Judge Estella May Moriarty, Circuit Court Judge of the Seventeenth Judicial Circuit. There is nothing in the record that indicates when counsel for the Irwins received the actual notice of this reassignment. In any event, on March 24, 1983 they received an order, entered ex parte, setting the matter for hearing on April 25, 1983 before Judge Moriarty as to the amount of attorney’s fees to be awarded to counsel for Mrs. Irwin. Immediately upon the receipt of this order, the lead counsel for the Irwins, Mr. William Klein, of Sarasota, Florida, filed a motion for continuance containing among its grounds the fact that Mr. Klein had been previously scheduled to be present in a federal court in Indiana between the period, April 13th through April 29, 1983, and possibly extending over an additional week as a defense counsel in a pending federal criminal prosecution. The trial court, ex parte, summarily denied this motion on April 11, 1983 and subsequently denied all other attempts to secure a continuance and proceeded with the hearing as scheduled which resulted in an attorney’s fee order, and costs totaling $131,498.42. This appeal ensued.

Points urged for reversal are, first, that the trial court had no jurisdiction to entertain a motion for attorney’s fees by the counsel of record after the parties had dismissed the original dissolution proceedings, second, that the trial court erred in refusing to permit the parties to amend their pleadings to state a counterclaim and third-party-claims, third, that the trial court erred in denying the several motions for the continuance, and lastly, that the evidence failed to establish the wife’s need and the husband’s ability to pay. We find no merit in the first point. The earlier Marko opinion found in 417 So.2d 1108 expressly authorized such a proceeding. The parties to a domestic litigation matter may not settle it and thereby attempt to escape liability for attorney’s fees. Wiggins v. Wiggins, 446 So.2d 1078 (Fla.1984) affirming Wiggins v. Wiggins, 417 So.2d 691 (Fla. 2d DCA 1982); Irwin v. Marko, 408 So.2d 677 (Fla. 4th DCA 1982); Knott v. Knott, 395 So.2d 1196 (Fla. 3d DCA 1981); Turnipseed v. Turnipseed, 158 So.2d 808 (Fla. 1st DCA 1963); Hadlock v. Hadlock, 137 So.2d 873 (Fla. 2d DCA 1962). As to the second point, we find no error in refusing to permit an amendment to the pleadings. Previously the parties’ pleadings had been stricken and no appeal' from these orders had been taken. We do find error in the trial court’s refusal to grant a continuance. There was no dispute that Mr. Klein was under a previous federal court mandate to be present in another state during the time the matter was set for hearing. He immediately brought this to the attention of the trial court upon receipt of the order setting the April 25, 1983, hearing and it was an abuse of discretion not to continue the matter under these circumstances. Ford v. Ford, 150 Fla. 717, 8 So.2d 495 (1942); Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933); Thompson v. General Motors Corporation, Inc., 439 So.2d 1012 (Fla. 2d DCA 1983); In Re Estate of Rutherfurd, 304 So.2d 517 (Fla. 4th DCA 1974); Diaz v. Diaz, 258 So.2d 37 (Fla. 3d DCA 1972). This case had been pending for many years, another month delay in determining the amount to be awarded as attorney’s fees would not have been detrimental to any of the parties. See 402 So.2d 1353 (Fla. 4th. DCA 1981). Lastly, we find no error under the facts as established in this record as to the husband s ability to pay and the wife’s needs. It is true that this evidence comes from material developed during the course of the divorce proceedings, which are now several years old, however, the Irwins, both husband and wife, have consistently resisted discovery proceedings, at least since reconciliation, and therefore if they desire to contest the husband’s ability to pay and the wife’s inability, it is their burden under this record.

Therefore for the reasons above stated the order awarding fees is reversed and the cause is remanded for further proceedings, upon due notice, as to the amount of fees due to the wife’s attorneys.

Reversed and remanded with directions.

BARKDULL, THOMAS H., Jr., HUB-BART, PHILLIP A., and JORGENSON, JAMES R., Associate Judges, concur.

      . Mr. Klein did not appear in this case until 3 days before the scheduled hearing on fees in 1982 and since that time has been the lead counsel on this issue. There has been a local counsel, but it is apparent from the record that the fees issue was always handled by Mr. Klein.

      . The Irwins relied heavily on Baucom v. Bau-com, 397 So.2d 345 (Fla. 3d DCA 1981). The facts are clearly distinguishable. In the Bau-com case, counsel had obtained an order of withdrawal prior to moving for fees, no such event had occurred in the instant case.

      . At this reconvened hearing the quality of the work performed by the attorneys may be examined, as well as the quantity, even though no counterclaim or third-party complaint has been permitted.


author: LETTS, Judge.

text:
    ATLAS POOLS OF THE PALM BEACHES, INC., a Florida corporation, Appellant, v. P.V. CONSTRUCTION CORP., a Florida corporation, Appellee.
    No. 83-1584.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      Cynthia S. Greenhouse of Cohen, Scherer & Cohen, P.A., Lake Worth, for appellant.
    Robert S. Levy of Law Offices of Robert S. Levy, P.A., West Palm Beach, for appel-lee.
   LETTS, Judge.

We do not believe a protracted recitation of the facts of this ease will contribute to the body of the law. Suffice it to say, a homeowner, in an amendment to a contract for the construction of a pool, agreed to a “late charge” of 1% for each day he failed to make the final payment thereon. The balance owed on the pool was $1,880 and by the time the motion to dismiss was heard the late charge totalled $4,414.

The motion to dismiss the pool builder’s complaint was filed by the homeowner upon the basis that the late charge was tantamount to interest at a usurious rate. The trial court agreed and granted the motion. We reverse.

This controversy should not have been disposed of on a motion to dismiss. From the four corners of the complaint, it cannot be determined whether the “late charge” was a provision to induce timely payment of an obligation, see Homewood Investment Co. v. Moses, 608 P.2d 503 (Nev.1980), a forbearance to enforce the collection of a debt, or a provision for liquidated damages. Moreover, assuming it was a liquidated damages provision, there would remain the question of whether it was reasonably proportionate to the damages sustained.

This cause is reversed and remanded for further proceedings.

REVERSED AND REMANDED.

HERSEY and WALDEN, JJ., concur.


text:
    MARITIME LIMITED PARTNERSHIP, d/b/a Maritime Beach & Racquet Club, and T-Jon Properties, Inc., Appellants, v. GREENMAN ADVERTISING ASSOCIATES, INC., Appellee. GREENMAN CORPORATE CONSULTANTS, INC., Appellant, v. MARITIME LIMITED PARTNERSHIP d/b/a Maritime Beach & Racquet Club, and T-Jon Properties, Inc., Appellees.
    Nos. 83-2143, 83-2308.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for Maritime Ltd. Partnership and T-Jon Properties, Inc.
    Scott R. Gill of Jacobson & Gottlieb, Hollywood, for Greenman Advertising Associates, Inc.
   LETTS, Judge.

The question we believe to be controlling in these consolidated appeals is whether parties to an agreement may contract in advance to submit to the jurisdiction of a given forum, even though no cause of action exists at the time of signing. We hold under the facts of this case, that they can.

Two interlocking Florida firms entered into certain closely related contracts with a Carolina developer under which the Florida firms were to supply consulting and advertising services for a time-share project in Myrtle Beach, South Carolina. Apparently, much of the work performed by the firms was undertaken in Florida and payment for their services were received here. However, it is conceded that the contracts were signed in South Carolina despite some boilerplate language to the contrary.

The contracts in question had two different provisions concerning potential litigation. The first of these provided that all issues would be resolved at a forum situated “midway between Myrtle Beach [South Carolina] and Hollywood [Florida].” It was conceded at oral argument that this extraordinary choice of location would be either on land in Florida or someplace out in the Atlantic Ocean. We view the oceanic alternative as absurd or at a minimum indicative of a Florida forum and instead adopt the second provision which provided that “jurisdiction for any litigation arising under this agreement shall lie within the appropriate court in Broward County, Florida.” From this we deduce that a Florida forum would be appropriate.

There is a paucity of law in Florida about whether jurisdiction over a person can be obtained by consent, but the Third District has held that “parties to a contract cannot confer jurisdiction on a particular court by contract.” Sausman Diversified Investments, Inc. v. The Cobbs Co., 208 So.2d 873, 875 (Fla. 3d DCA 1968), Zurich Insurance Co. v. Allen, 436 So.2d 1094 (Fla. 3d DCA 1983), and Huntley v. Alejandre, 139 So.2d 911 (Fla. 3d DCA 1962). There are other factors and language in these three Third District cases which might make the foregoing quoted statement not quite as unequivocal as it sounds. However, assuming it is the law of the Third District that one cannot ever designate resolution of disputes to a particular forum by contract, because to do so ousts some other court of jurisdiction, we disagree with that conclusion, under the circumstances of the case now before us.

No one questions subject matter jurisdiction in these appeals; and, of course, we agree that such cannot be conferred by consent of, or acquiescence by, the parties. It goes without saying that a million dollar controversy could not be litigated in a Florida county court just because the contracting parties agreed to do so. However, the question of in personam jurisdiction is another matter and we adopt the reasoning of the Supreme Court of the United States in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), wherein the court held that in personam jurisdiction can be conferred by consent even though no cause of action exists when the contract is entered into, providing that:

1. The forum was not chosen because of overwhelming bargaining power on the part of one party which would constitute overreaching at the other’s expense.

2. Enforcement would not contravene a strong public policy enunciated by statute or judicial fiat, either in the forum where the suit would be brought, or the forum from which the suit has been excluded.

3. The purpose was not to transfer an essentially local dispute to a remote and alien forum in order to seriously inconvenience one or both of the parties.

In the case before us, there is nothing in the record to indicate overreaching. No stated strong public policy or statute appears to have been contravened, unless the pronouncements of the Third District in and of themselves constitute state-wide public policy, which we do not feel is so. Moreover, the forum is obviously neither remote nor seriously inconvenient since one of the parties is located in Florida and much of the substance of the contracts call for performance here. Accordingly, we adopt the Bremen rationale, even though Bremen involved an international rather than an inter-state contract, and conclude that the clause providing that this matter be litigated in Broward County circuit court was valid. See also Woods v. Luby Chevrolet, Inc., 402 So.2d 1316, 1317 (Fla. 4th DCA 1981); National Equipment Rental, Ltd. v. Reagin, 338 F.2d 759 (2d Cir.1964); Annot., 56 A.L.R.2d 300 (1957 & Supp.1984); and 21 C.J.S. Courts § 85 (1940).

In these frenetic days of jet travel, satellite communication and the like, inter-state contracts between corporations are commonplace. Absent a statute to the contrary, and if such contracts are entered into at arms length with equal bargaining power and partial performance is called for in both states, we can perceive no public policy against the contracting parties designating the home state of one of two corporations as the forum for ensuing litigation. Indeed, a conclusion to the contrary does not appear to serve any purpose other than to provide procedural loopholes through which one of the contracting parties can use dilatory tactics to escape clearly entered into obligations. Furthermore, it is well recognized that contracting parties can agree on what state law is to apply without doing violence to public policy. Dept. of Motor Vehicles v. Mercedes-Benz of No. Am., Inc., 408 So.2d 627 (Fla. 2d DCA 1981) and Hirsch v. Hirsch, 309 So.2d 47 (Fla. 3d DCA 1975). That being so, if one can choose the law of the forum, we fail to understand how arms length choice of the forum itself is anything other than a distinction without much of a difference. We recognize, however, that our ruling here is contra to considerable case precedent and is, apparently, in conflict with the Third District Court of Appeal. As a consequence, deeming this matter to be of great public importance, we hereby certify the following question to the Supreme Court:

CAN PARTIES TO A CONTRACT AGREE THEREIN TO SUBMIT TO THE JURISDICTION OF A CHOSEN FORUM IN THE EVENT OF SUBSEQUENT LITIGATION ARISING OUT OF SAID CONTRACT WHEN THERE IS NO OVERREACHING, NO CONTRAVENTION OF STATED PUBLIC POLICY AND THE FORUM IS NEITHER REMOTE NOR ALIEN?

In the consolidated matters before us, the trial court in one case, in effect, found jurisdiction to exist under the long arm statute, Section 48.193, Florida Statutes (1981), thereby rendering the in personam jurisdiction by contract agreement moot. However, this latter issue is properly raised on appeal, we have chosen to address it and we find our conclusion both dispositive and in accord with the result reached by the trial court.

In the other case, the trial court granted the motion to dismiss citing lack of jurisdiction. Our conclusion disputes this latter ruling and we reverse it.

AFFIRMED IN PART, REVERSED IN PART.

HURLEY and DELL, JJ., concur.

      . For the purposes of this opinion, we do not address any arguments concerning doing business or performing acts in Florida through minimum contacts and address ourselves solely to the question of consent to jurisdiction.

      . As we perceive it, the instant case does not present a venue question. As reported in Bayitch, Conflict of Laws: Florida 1968-69, 24 U. Miami L.Rev. 433, 438 (1970) venue appears to be an intra-state matter quite distinct from jurisdiction.


author: GLICKSTEIN, Judge.

text:
    A & M ENGINEERING PLASTICS, INC., a Florida corporation, Appellant, v. ENERGY SAVING TECHNOLOGY CO., Appellee.
    No. 84-714.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      William W. Wilhelm of Watts, Wilhelm and Stoutamire, Belleair, for appellant.
    Thomas F. Panza of Panza & O’Donnell, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a non-final order denying a motion to transfer venue. We reverse and remand.

Appellant, a Florida corporation with its only office in Pinellas County, was asked to and did submit a quote on some plastic parts and moldings to appellee, also a Florida corporation, with its principal place of business in Broward County. Appellant made several shipments according to the contract, then informed appellee that a machinery breakdown would necessitate a temporary shutdown. In response, appel-lee filed suit for breach of contract in Bro-ward County. Appellant moved to abate or transfer the cause to Pinellas County. The trial court took the motion under advisement pending taking of a deposition. The court then denied the motion, and appellant brings this appeal.

The issue is whether the trial judge erred in denying the motion to transfer venue. We conclude it did.

When a domestic corporation is sued, section 47.051, Florida Statutes (1983), provides for venue in the county where the defendant corporation keeps an office, where the cause of action accrued, or where litigated property is located. A plaintiff may select any of these three venue alternatives, and his choice will be honored. Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443, 444 (Fla. 1st DCA 1978). In the instant case, the defendant corporation does not keep a Broward County office, nor is there litigated property in that county, so the only justification for laying venue in Broward County would be a finding that the cause of action accrued there.

A cause of action in contract actions is said to accrue in the county in which the breach occurs. E.g., Windsor v. Migliaccio, 399 So.2d 65, 66 (Fla. 5th DCA 1981). Specifically, venue lies in the county where the covenant alleged to be breached was to have been performed. Id. In this case, the covenant allegedly breached was that of supplying certain plastic parts, but it is unclear where this covenant was to be performed. The written quotation contains the statement that “Prices are quoted F.O.B. Clearwater, FI.” The purchase order accepting the quotation contains no contrary term, nor is there any other evidence indicating a different arrangement. Where an agreement is expressed by forms, one of which contains a term that is neither rejected by the other form nor contradicted by any of its provisions, the term is generally considered incorporated. Cf. § 672.207, Fla.Stat. (1983). Given the above, the contract in question was to have been for shipment of the parts F.O.B. Clearwater. This means that the seller’s delivery point was in Clearwater, and there the risk of loss passed to the buyer. J. White & R. Summers, Uniform Commercial Code § 3-5 (2d Ed.1980).

A similar situation occurred in Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979), in which Speedling had contracted to supply seedlings to Krig under a contract providing “all prices f.o.b. production area.” The court found there that because delivery was to occur at Spee-dling’s place of business, the cause of action accrued there because Speedling failed to deliver there. Venue was therefore correct in Speedling’s home county.

As in Speedling, in this case delivery was to be complete in the seller’s county; therefore the failure to perform was in the seller’s county. Pinellas County is where the breach occurred, and the cause of action accrued. Pinellas County is also the site of the seller’s principal place of business, so venue was not appropriate in any place other than Pinellas County.

DOWNEY and HERSEY, JJ., concur.


text:
    Marvin FEINSTEIN, Petitioner, v. DOLENE, INC., a Florida corporation, Respondent.
    No. 84-886.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    William S. Weisman of Gilbride, Heller & Brown, P.A., Miami, for petitioner.
    Scott E. Simowitz of Goldberg, Young & Borkson, P.A., Fort Lauderdale, for respondent.
   GLICKSTEIN, Judge.

This is a petition for writ of certiorari, by defendant below, who seeks review of the trial court’s denial of rehearing on its order denying petitioner/defendant’s motion to control respondent/plaintiff’s lis pendens as an injunction. We grant the petition and quash the order.

Plaintiff/respondent Dolene, Inc., filed a seven count complaint against Marvin Fein-stein, as well as his father, Morris Fein-stein, Samuel Workman and Village, Inc., of Broward County. Dolene alleged that a joint venture to develop a certain parcel of real property had been orally agreed to among Dolene, Village, Inc., S.L. Workman, Merrick Development, Inc., Gilfat Florida, Inc., and B & M Holdings, Inc. Samuel Workman is the majority stockholder of S.L. Workman. Dolene is one-third owner of Village, Inc. Morris Feinstein is majority stockholder in and chief operating officer of Bonavista Holdings, Inc., which is also a one-third shareholder of Village, Inc. Marvin Feinstein is one-half shareholder and officer of B & M Holdings, Inc.

The joint venture was to be known as Pembroke Pines Joint Venture. It was to purchase the parcel and develop, build, and sell about 200 single family units on it. The parcel was to be purchased for the joint venture in the names of Morris Fein-stein and Sam Workman as trustees for the joint venture. Morris Feinstein and Workman as trustees did take title to the property. Allegedly, Dolene contributed $26,000 to be used as partial payment for the land. Thereafter, Morris Feinstein and Workman transferred the property to Marvin Fein-stein as trustee. Dolene instituted its suit as a shareholders derivative action. Do-lene did not attempt first to get Village, Inc.’s, Board of Directors to bring the action, because Village, Inc., is controlled by the people being sued.

At the same time as the respondents/plaintiffs filed this suit they also filed and recorded a notice of lis pendens. Marvin Feinstein then moved, pursuant to section 48,23(3), Florida Statutes (1983), to have the lis pendens controlled and discharged as if an injunction, claiming the respondents’/plaintiff s’ action was based on an alleged oral joint venture agreement and not on a recorded instrument or a mechanic’s lien. The trial court denied this motion and subsequently also denied Marvin Feinstein’s motion for rehearing. Marvin Feinstein timely petitioned for writ of certiorari. The general issue is whether the trial court departed from the essential requirements of law when it denied petitioner’s motion to have respondent’s Ms pendens controlled as if an injunction, and denied petitioner’s motion for rehearing.

The governing statute is section 48.-23(3), which provides:

When an initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of Ms pendens as the court may grant and dissolve injunctions.

The effect of the statute is to make applicable to a Ms pendens not founded on either a duly recorded instrument or a mechanic’s lien the same safeguards that apply to an injunction; e.g., notice, the posting of an adequate bond, and the showing of irreparable harm. Cacaro v. Swan, 394 So.2d 538, 539 (Fla. 4th DCA 1981).

In the instant case, the trial court’s order was directed to the stipulated threshold issue which had to be determined before any evidentiary hearing could be held; namely, whether the present action was founded on a duly recorded instrument. Marvin Feinstein relied on Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984). In that opinion, the District Court wrote: “A duly recorded instrument constitutes notice to the public of plaintiff’s legal or equitable interest in the subject property and the Ms pendens gives further notice that a lawsuit has been filed which may affect the title to the property.” Id. at 481. The court illustrated this principle by discussing mortgage foreclosure as an example. “When a lawsuit is based upon a mortgage there is already notice to the public on record which shows the mortgagee’s interest in the property.” Id. Because the public has already been informed of the plaintiff’s interest in the real property via the recorded mortgage on which he is suing, there is no reason to require the plaintiff to post a bond for his Ms pendens. See id.

In Mohican Valley the plaintiff claimed he was suing to quiet title. Actually, said the court, the suit was a shareholders derivative suit to cancel a deed fraudulently transferred by the corporate directors, officers, or employees. The deed at issue was incidental to the tortious misconduct charged and was not at the foundation of the action. The Fifth District said that Ms pendens is permissible in such a case, but if the Ms pendens places a cloud on the title that did not preexist the Ms pendens a bond should be considered. In the case where an instrument on the record has already given notice of the plaintiffs interest, there should be no bond required. Id.

In Glusman v. Warren, 413 So.2d 857 (Fla. 4th DCA 1982), plaintiffs alleged that respondents had orally agreed to form a partnership to acquire and develop land, and that Warren had taken title to the property as trustee for Glusman. There was, however, a signed agreement stating Glusman would have no equitable interest in the property. Petitioners Glusman and Gordon complained of breach of fiduciary duty, sought equitable relief against the respondents, and recorded a lis pendens. Respondents sought either dissolution of the lis pendens or the posting of a $7,000,-000 bond, claiming if a proposed sale for that amount were not closed the property would be lost to foreclosure. Without taking evidence as to the amount and terms of a reasonable bond, the trial court granted the bond in the amount requested by respondents. The petitioners sought relief via certiorari, claiming the complaint was based on a duly recorded instrument, which precluded a bond, and that the trial court should have taken evidence on the issue of the amount and terms of a bond sufficient to protect the respondents if the lis pen-dens was wrongfully continued in effect. This court found the complaint was not based on a duly recorded instrument because the deed referred to had not been made a part of the complaint by attachment thereto or by reference. This court stated, however, that had the deed been properly incorporated in the complaint there would still be a question of whether that deed, naming only the trustee as grantee without identifying the beneficiaries or a trust agreement of record, furnished an adequate basis for a lis pendens without bond. Thus a bond would still have been mandatory if without it irreparable damage would result. This court found the petitioners’ second argument meritorious, and remanded for a proper hearing on respondents’ actual damages and costs, as the basis for determining the terms and amount of the bond. Accordingly, certiora-ri was granted.

We see no conflict between Glusman and Mohican Valley as to what is meant by a lis pendens founded upon a duly recorded instrument. See also Hough v. Bailey, 421 So.2d 708 (Fla. 1st DCA 1982). Further, we believe Mohican Valley correctly states the law, as does Glusman v. Warren; and that the trial court erred in its ruling. The essential idea behind section 48.23(3) is that if it was already clear to the public before the suit was filed that there was a cloud on the property being sued about, because of a recorded instrument showing an interest of the plaintiff, there was no reason to require a bond or otherwise to control or to discharge the lis pendens. On the other hand, where the lis pendens for the first time announced plaintiff’s claimed interest in the property, defendant titleholder was entitled to notice and hearing and could demand a bond if he could show the danger of irreparable harm in the event the lis pendens was unjustified.

Here nothing about the deed gave notice of plaintiffs/respondents’ purported interest in the subject real property. The deed did not say for whom the trustees held the property in trust, or what recorded trust agreement provided for the trusteeships. (In fact, it is not claimed there was such a recorded trust agreement.) Therefore the trial court departed from the essential requirements of law in denying Marvin Feinstein’s motion to control the lis pendens. Rather, the trial court should have held an evidentiary hearing so that Marvin Feinstein might show irreparable harm, whereupon reasonable terms for a bond could be determined.

HERSEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    SCOTCHEL ENTERPRISES, INC., d/b/a Mr. G’s Lounge, Petitioner, v. Nelson VELEZ, as Personal Representative of the Estate of Michelle Velez, deceased, for the use and benefit of her survivors, Respondent.
    No. 84-1374.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    John P. Wiederhold of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for petitioner.
    Joseph D. Farish, Jr., of Farish, Farish & Romani, West Palm Beach, for respondent.
   DELL, Judge.

Petitioner Scotchel Enterprises, Inc., d/b/a Mr. G’s Lounge seeks review by petition for a writ of certiorari of an order denying petitioner’s motion for a protective order from a subpoena duces tecum served upon a non-party witness. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A).

In December of 1981, a shooting occurred in petitioner’s lounge resulting in the death of a patron. Shortly after the incident an adjuster retained by petitioner’s insurance carrier took the statement of an employee named Lloyd Richards. The statement was recorded and later transcribed. Respondent discovered the existence of the statement while taking Mr. Richard’s deposition. The following colloquy occurred:

Q. Have you ever given any insurance company any statements?
A. Yes, sir.
Q. When?
A. It was after that. I don’t know how long of a period of time.
Q. Did they give you a copy of them?
A. Yes, sir.
Q. Where is that statement? Have you got it home? Got it with you?
A. Yes.
Q. Let me see it.
MR. WIEDERHOLD: You don’t have to , give it to him. It’s up to you.
THE WITNESS: I read it before.
MR. FARISH: Read it before you came in here today?
A. No, but I had to sign it when I gave this way back then.
Q. Could I see it please?
MR. WIEDERHOLD: It’s up to you, Lloyd. If you want to give it to him it’s up to you. You weren’t subpoenaed here duces tecum meaning everything with you.
MR. FARISH: We can make you come back, sir.
MR. WIEDERHOLD: Don’t worry about it. We will come back.
MR. FARISH: Could I see it now? Are you refusing to give it to me?
THE WITNESS: Yes, sir.

The next day respondent subpoenaed Mr. Richards for a deposition duces tecum. Petitioner moved for a protective order on the grounds that the requested statement was work product or otherwise privileged in nature and therefore not discoverable. The trial court denied the motion for protective order and this petition for certiorari followed.

Petitioner contends that the insurance adjuster took Mr. Richards’ statement in anticipation of litigation and it is therefore protected under the work product rule. Respondent contends that Mr. Richards referred to the statement to refresh his recollection, thereby entitling him to the statement under Section 90.613, Florida Statutes (1983). Section 90.613 provides in part that:

When a witness uses a writing or other item to refresh his memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon ....

We find no record evidence to support respondent’s assertion that the witness used the statement to refresh his recollection either before, or during, the taking of the deposition. Rather, the witness testified that he last read the statement when he signed it.

Under the provisions of the work product rule:

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of his ease and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Fla. R. Civ. P. 1.280(b)(2) (emphasis added). Respondent has made no showing that the statement is unique, that the “substantial equivalent” is not available, or that he will be prejudiced if the statement is not produced. Thus, respondent has failed to make the requisite showing and cannot obtain discovery of the statement if it was taken in anticipation of litigation.

Although it appears obvious that the witness’s statement was not taken for any purpose other than in anticipation of litigation, we do not have the benefit of the trial judge’s finding of fact on this question. We must again emphasize the importance of having such findings as we did in Selected Risks Insurance Co. v. White, 447 So.2d 455, 456 (Fla. 4th DCA 1984):

In Cotton States, as here, the trial judge’s order did not reveal his reasons for requiring discovery, nor whether he had made a finding as to the purpose of the statements. As in Cotton States, the trial court should make a finding regarding whether the statement was in the ordinary course of business or in preparation for litigation. If it has been made in preparation for trial, the state-merit’s substance would be protected per Cotton States and cases cited therein.

Therefore, we grant this petition for writ of certiorari and quash the order of the trial court denying petitioner’s motion for a protective order and remand this case for further proceedings consistent herewith.

CERTIORARI GRANTED.

HERSEY and GLICKSTEIN, JJ., concur.