author: SHAW, Justice.

text:
    STATE of Florida, Petitioner, v. Michael Henry MICHAELS, Respondent.
    No. 63610.
    Supreme Court of Florida.
    July 26, 1984.
    Rehearing Denied Sept. 18, 1984.

      Jim Smith, Atty. Gen., and Frank Lester Adams, III and Gary 0. Welch, Asst. At-tys. Gen., Tampa, for petitioner.
    Robert E. Jagger, Public Defender, and Eula T. Mason and Deborah K. Brueck-heimer, Asst. Public Defenders, Tenth Judicial Circuit, Clearwater, for respondent.
   SHAW, Justice.

This is a petition to review Michaels v. State, 429 So.2d 338 (Fla. 2d DCA 1983) on the ground that it conflicts with Buckrem v. State, 355 So.2d 111 (Fla.1978). We find conflict and jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Respondent was convicted of manslaughter. The evidence reflects that respondent’s daughter and the victim had formerly lived together and had ended the relationship with acrimony. On October 8, 1980, the daughter and respondent, on one side, and the victim, on the other, engaged in an altercation in and outside a bar. The altercation was broken up and shortly afterward the victim and- respondent went together to another bar across the street, where they drank together for a period of time. The daughter came in several times but respondent declined to leave with her. At some point the daughter and the victim engaged in another altercation outside the bar while respondent was inside. The daughter and the victim entered the bar and the daughter called to respondent, who left his seat and struck the victim in the face once or twice. The victim fell backwards and struck his head on the floor. He never regained consciousness and died several days later from a severe injury to the back of the head. An autopsy showed he also had a fractured nose and jaw. Among the witnesses were two bartenders and a bartender’s wife who testified as to what they had seen and heard. Respondent testified in his own behalf, claiming self-defense and defense of others. The daughter was available but was not called to testify. The prosecutor was permitted to comment on the failure of respondent to call his daughter as a witness and to infer that she was not called because her evidence would not support the defense. The district court reversed, finding, inter alia, that it was clearly improper to comment on the respondent’s failure to, call his daughter as a witness. Kirk v. State, 227 So.2d 40 (Fla. 4th DCA 1969).

Petitioner raises three points. We address first the point on which our jurisdiction is based: whether it was improper to comment on the failure to call the daughter as a witness. In Buckrem the defense was alibi. We held that there was no merit in defendant’s argument that the prosecutor should not have referred to his failure to call two witnesses who could have testified relative to the alibi defense. In so holding, we quoted from Judge Mills’ opinion in Jenkins v. State, 317 So.2d 90, 91 (Fla. 1st DCA 1975):

Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant’s failure to produce the witness is properly a subject of comment by the prosecutor. This is particularly true if the witness is the spouse of the defendant. 23A C.J.S. Criminal Law § 1099b, page 181; 5 A.L. R.2d 930.

Respondent argues that the rule in Buck-rem and Jenkins applies to alibi defenses and is not applicable here where self-defense and defense of others are at issue. We disagree. The basis for the rule is that the trier of fact is entitled to hear relevant evidence from available and competent witnesses. When such witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness. Here, however, the witness was the daughter of the defendant. She was not “equally available” to the prosecution because of the parent-child relationship which would normally bias her toward supporting her father’s defenses. The Buckrem rationale is applicable under these circumstances. The daughter was at the center of the dispute between respondent and victim and was present at both altercations on the day in question. Her evidence was highly relevant as to the reasonableness of respondent’s claim that he was protecting her and equally relevant as to whether respondent’s argument of self-defense was justified. See 22A C.J.S. Criminal Law § 594 at 370; 23A C.J.S. Criminal Law § 1099a at 174; and 5 A.L.R.2d § 18 at 934. We disapprove the district court decision on this point.

At trial, the prosecutor questioned the bartender who witnessed the fatal battery as to the victim’s reputation for peacefulness in the community. On cross-examination, respondent’s counsel questioned the bartender as to whether respondent was a violent person and elicited the response that the bartender had never seen him violent and he had always seemed to be a pleasant person. On redirect, after some preliminary sparring, the prosecutor was permitted to ask the bartender if he had heard of respondent striking his wife on March 4, 1981. Respondent objected and moved for a mistrial, noting that the alleged striking took place after the offense being tried. On appeal the district court held that the trial judge erred in denying the motion and held that questioning regarding respondent’s reputation for peacefulness should have been limited to events prior to the offense being tried. We agree that there is a logical distinction between an inquiry to establish a defendant’s reputation for peacefulness, which is relevant only as of the date of the offense being tried, and an inquiry to establish the reputation of a witness for truth and veracity which is relevant as of the time of the testimony. Greenfield v. State, 336 So.2d 1205 (Fla. 4th DCA 1976). Petitioner argues that the question concerning the alleged wife striking was intended to test the credibility of the witness at the time of his testimony. This argument is unpersuasive in light of the limited scope of direct and cross-examination of the bartender regarding acts of violence on the part of the respondent on the date of the offense or prior thereto. After having testified on direct examination that he saw the respondent violently attack the victim and leave him unconscious, he testified on cross-examination, “I have never seen him violent ... every time I have seen (respondent), (he) always seemed to be a pleasant person.” In light of his direct testimony, the only logical conclusion is that the bartender’s testimony on cross-examination was limited to events prior to the date of the offense. Neither the bartender’s direct or cross-examination afforded a basis for the prosecutor’s inquiry regarding a wife-striking incident which occurred subsequent to the date of the offense charged. Since the bartender’s testimony regarding acts of violence on the part of the respondent was limited to the date of the offense and prior thereto, his credibility could not be impeached by what did or did not happen on March 4, 1981. The only probative worth of the prosecutor’s inquiry was to get before the jury a suggestion that the respondent was a wife beater. This was especially egregious in this instance where the respondent’s defense to the charged offense was self-defense and defense of his daughter. It is very likely that a jury could view wife beating as inconsistent with respondent’s defense. We are influenced by the likelihood of undue prejudice to the respondent by questions suggesting he was a wife beater.

Under the facts and circumstances of this case, it is not clear beyond a reasonable doubt that the jury would have returned a guilty verdict absent the error above. Accordingly, we find that the error was harmful and approve the decision of the district court. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Murray, 443 So.2d 955 (Fla.1984).

Petitioner raises a third point concerning the district court holding that it was error to cross-examine respondent about the alleged wife beating. Having resolved the conflict issue which is the basis for our jurisdiction and disposed of the case on point two above, the third point is rendered moot.

The decision of the district court is approved in part and disapproved in part. We remand for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN and EHRLICH, JJ., concur.

OVERTON and McDONALD, JJ., Concur in result only and would approve the opinion of the district court on all issues.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. J.H., a juvenile, Appellee.
    No. 83-32.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we deny the State’s motion for rehearing of our dismissal of its appeal from the trial court’s order granting a motion to suppress in a juvenile case and decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file an interlocutory appeal from an order granting a motion to suppress in a juvenile case, and, if not, may this court review that order by certiorari?”


author: SCHEB, Judge.

text:
    Gerald L. PIERSTORFF, Appellant, v. James M. STROUD, Alva Pope, and John B. Johnson, individually and as Trustees of the Stroud Construction Company Pension Plan, Appellees.
    No. 83-659.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    Rehearing Denied Aug. 31, 1984.
    Claire L. Hamner and Ward E. Dahlgren of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellant.

      Henry P. Trawick, Jr., of Trawick & Grif-fis, P.A., Sarasota, for appellees.
   SCHEB, Judge.

In this case the plaintiff filed a notice of trial in the circuit court on December 7, 1981. The case remained on the court’s waiting list with no further activity occurring until December 29, 1982, when the defendant filed a motion to dismiss for lack of prosecution. On March 10, 1983, the trial court granted the motion and dismissed the suit, noting that “the 1976 change to Rule 1.420(e) [Florida Rules of Civil Procedure] by the addition of the language ‘on the face of the record’ requires the filing of some motion, pleading, order or other paper by a party to prevent the application of the rule.” This appeal by the plaintiff ensued.

Once a proper notice of trial has been filed pursuant to Florida Rule of Civil Procedure 1.440(b), a party has no duty to take any affirmative action to prevent dismissal of a cause for failure to prosecute, despite the lack of record activity during the ensuing year. City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976). The addition of the language “on the face of the record” in the 1976 amendment to Rule 1.420(e) does not alter the duty of the trial court to take affirmative action once a notice of trial has been properly filed pursuant to Rule 1.440(b). Sarasota Cattle Co. v. Mikos, 431 So.2d 260 (Fla. 2d DCA 1983); Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So.2d 973 (Fla. 2d DCA 1983). Accord Fox v. Playa Del Sol Ass’n., 446 So.2d 126 (Fla. 4th DCA 1983). Contra Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977) (Boyer, J., dissenting); Brennan v. Ryter, 339 So.2d 661 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla.1977); and Allen v. Gaither, 112 So.2d 855 (Fla. 1st DCA 1959).

In fairness to the trial judge, we note that at the time he entered the order appealed from, there was no precedent governing the issue in this district, only disparate rulings by the First and Third Districts.

We reverse the order dismissing plaintiff’s cause for lack of prosecution and remand with directions to reinstate the cause.

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


author: LEHAN, Judge.

text:
    Frankie L. BOWEN, Appellant, v. Eugenia BOWEN and the Florida Department of Health and Rehabilitative Services, Appellees.
    No. 83-446.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1984.

      Robert T. Connolly of Fla. Rural Legal Services, Inc., Bartow, for appellant.
    Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee Fla. Dept, of Health and Rehabilitative Services.
   LEHAN, Judge.

We grant the petition for rehearing and vacate our affirmance of September 30, 1983. 446 So.2d 106.

This case involves whether a parent may be imprisoned for contempt of court on a finding that he wrongfully divested himself of the ability to make court-ordered child support payments and, if so, whether the parent is entitled to counsel at the contempt hearing. As explained below, we reverse the petitioning parent’s conviction and sentence and hold that the parent under the facts of this case may be imprisoned for contempt but that since such a proceeding takes on criminal contempt characteristics, the parent is entitled to counsel and to the other protections of Florida Rule of Criminal Procedure 3.840.

The Florida Department of Health and Rehabilitative Services (“HRS”) on May 3, 1982 filed an action for child support against Frankie L. Bowen, appellant, a father who was separated from his wife. No dissolution of marriage proceeding had been filed. The HRS action was to establish the amount of child support to be paid by Mr. Bowen to HRS, apparently to reimburse HRS for public assistance payments made to Mrs. Bowen.

HRS obtained a default against Mr. Bowen, and an order of support, signed by Circuit Judge Richard A. Bronson, was filed July 20, 1982. That order directed Mr. Bowen to pay $161.00 plus a $2.00 fee monthly to the HRS Domestic Relations Department.

After Mr. Bowen did not make the court-ordered payments, Circuit Judge Randall G. McDonald, on October 1, 1982, issued an order for Mr. Bowen to appear and show cause why he should not be held in contempt. When Mr. Bowen did not appear as directed, Judge McDonald issued an arrest warrant.

Mr. Bowen was arrested and brought before Circuit Judge Clinton A. Curtis to show cause why he should not be held in contempt for failure to comply with the July 20, 1982 order. Judge Curtis on December 27, 1982 adjudged Mr. Bowen in contempt of court upon a finding that Mr. Bowen was financially able to make the support payments. Mr. Bowen was ordered to begin paying the Domestic Relations Department $50.00 per week. In the contempt order Judge Curtis excused Mr. Bowen from serving jail time.

After Mr. Bowen’s failure to make payments continued, Judge McDonald, on January 20, 1983, issued an order for Mr. Bowen to appear and show cause on February 11, 1983 why he should not be held in contempt. This order admonished Mr. Bowen to bring “all proof you may have such as pay stubs, income tax returns, doctor’s statements, receipts, etc. to show why you have not made these payments.” The order notified Mr. Bowen that “if you are adjudged in contempt you may be imprisoned and/or assessed a fine and costs.”

Mr. Bowen’s affidavit filed in the trial court presented various purportedly exculpatory circumstances: Mr. Bowen was laid off from his $95.00 per week job as a painter in May 1982 due to a general cutback in the employer’s work force. Although he diligently searched for work and had occasional income from yard work never exceeding $25.00 per week, he was otherwise unemployed to January 1,1983. After that period of unemployment he received his first paycheck on January 21, 1983 and tendered to the Domestic Relations Department $50.00 that same day. However, the department would not accept that payment until after the then scheduled February 11, 1983 hearing.

The February 11, 1983 hearing was without a court reporter, but the parties and Judge McDonald agreed to the statement of evidence and proceedings concerning that hearing which is in the record. That statement reflects that at the five to ten minute hearing Mr. Bowen was told that he could present any evidence or witnesses on his behalf, that Mr. Bowen did ask questions to Mrs. Edie Smith of the Domestic Relations Department, and that Mr. Bowen appeared without counsel. Mrs. Smith testified that Domestic Relations Department employees are instructed to accept any payment whenever it is tendered. Mr. Bowen was unable to give the court the name or description of the person who allegedly refused to accept his payment. Judge McDonald advised Mr. Bowen that he was then $916.00 in arrears and asked how much Mr. Bowen could pay at that point. Although Mr. Bowen responded that he could pay $200, he did not demonstrate that he had that sum in his possession.

On February 11, 1983, Judge McDonald adjudged Mr. Bowen to be in contempt for the failure to make support payments, finding that Mr. Bowen had had the ability to comply with the December 27, 1982 order but had divested himself of the ability to do so through his own fault or neglect to frustrate that order. The contempt order sentenced Mr. Bowen to five months and twenty-nine days in jail but provided that Mr. Bowen could purge himself by paying the $916.00.

Apparently the trial court felt that petitioner’s job provided him the resources to pay but that he had used those resources for other purposes. Evidently the trial court disbelieved petitioner’s testimony that he had tendered $50.00 to the Domestic Relations Department and that he could pay $200.00 on February 11,1983. Despite the prior proceedings, petitioner still did not come up with the money on that date. However much the record may lack total clarity concerning petitioner’s inability to pay, this case comes to us on a finding that petitioner was unable to pay and that his inability was his own fault. There is some support in the record for that finding, but, in any event, petitioner did not carry his burden of proof to establish otherwise, as explained further below.

The record is unclear as to whether Mr. Bowen was then arrested and delivered to the sheriff for incarceration. But Judge McDonald stayed the incarceration pending this appeal and granted Mr. Bowen’s motion for determination of indigency for purposes of this appeal.

The issues of whether a parent, who is accused of contempt for failing to make child support payments, is entitled to counsel and is subject to incarceration potentially involve (1) three potential types of parental circumstances; (2) two potential types of contempt; and (3) at least two potential types of the underlying legal proceedings. As to (1), the parent may be either able to pay, unable to pay through no fault of his own, or unable to pay because, although he was initially (at the time of the support order) able to pay, he was divested of the ability to pay through his own fault or neglect in frustration of the purpose of the support order. As to (2), the contempt proceeding may be characterized as civil or criminal. As to (3), the support order may have been entered in a dissolution of marriage proceeding or in a support proceeding brought by HRS under section 409.2561, Florida Statutes (1981).

Two supreme court cases are especially recognized as expressing the law which governs contempt proceedings involving the foregoing types of parental circumstances, contempt, and legal proceedings, Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976), and Andrews v. Walton, 428 So.2d 663 (Fla.1983). Both concern the civil contempt requirement that the penalty of incarceration not be imposed unless there is proof of the defaulting parent’s ability to make the court-ordered support payments. Faircloth required affirmative trial court findings of that ability. Andrews affirmed a trial court’s findings of that ability. Neither case directly addresses the circumstances of the case now before us.

This case involves a parent who was sentenced to prison upon an express finding that the parent was unable to pay child support because the parent, through his own fault or neglect, was divested of that ability. Although under the language of Faircloth such a finding supports an adjudication of contempt, it would not justify incarceration of the parent for civil contempt. See Ponder v. Ponder, 438 So.2d 541 (Fla. 1st DCA 1983), where Judge Zeh-mer interpreted the effect of Andrews on Faircloth and found that “in every case, present ability to pay ... is a necessary predicate to committing a civil contemnor to jail....”

This court, in our now vacated September 30, 1983 order affirming petitioner’s conviction and sentence, cited Fair-cloth. Faircloth may be construed from its holding and dicta as standing for at least three propositions. First, that case put the burden of proving inability to pay on the parent and defined that burden:

The burden is upon the party in default to prove not only that he is unable to comply with the court’s present order to pay but also that his present inability is due not to his fault or neglect but rather to circumstances beyond his control which intervened since the final decree ordering him to pay.

339 So.2d at 652. Second, the trial court, to justify an adjudication of contempt, must make an express finding that either

(1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent or purpose of the order.

339 So.2d at 651. Third, the parent has no right to counsel in the contempt proceeding, even though incarceration is the penalty imposed, when a portion of the first of the foregoing two types of express findings referred to in Faircloth is made, i.e., when the parent has the ability to pay. 339 So.2d at 652.

The trial court in the case now before us made express findings that petitioner had the ability to comply with the support order but had divested himself of that ability to do so through his own fault or neglect. Also, we believe that petitioner failed to carry the burden of proof which is required by the above quotation from Faircloth. Thus, the trial court’s actions were consistent with the first two of the foregoing three propositions from Faircloth.

However, petitioner asserts that the trial court erroneously failed to afford petitioner his constitutional right to counsel. We have here the converse of the foregoing third proposition in Faircloth. The issue here is whether the parent has a right to counsel, when incarceration is the penalty imposed, upon a finding that the parent has inability to pay.

Andrews v. Walton, supra, confirmed and expanded upon Faircloth and did refer directly to circumstances in which the parent does not have the ability to pay. Andrews may have appeared, on the surface, to dispose of the issue before us by saying that

[TJhere are no circumstances in which a parent is entitled to court-appointed counsel in a civil contempt proceeding for failure to pay child support because if the parent has the ability to pay, there is no indigency, and if the parent is indigent, there is no threat of imprisonment.

428 So.2d at 666. However, Andrews did not address the particular type of parental circumstances now before us, to wit, that the parent, by his own fault or neglect, divested himself of the ability to pay (the second type of express finding referred to in Faircloth as justifying a contempt adjudication).

We do not believe the foregoing language of Andrews saying that there is no right to counsel encompasses the present fact situation. Andrews does find that, “there are no circumstances in which a parent is entitled to court-appointed counsel in a civil contempt proceeding for failure to pay child support....” (emphasis added), 428 So.2d at 666. But Andrews also cites the United States Supreme Court for the proposition that

an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.

428 So.2d at 665, quoting from Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). That Lassiter quotation describes precisely the situation before us.

Petitioner’s jail sentence for civil contempt was improper because he did not have the present ability to pay. Petitioner here faces incarceration without carrying “the key to his cell in his own pocket” by having the ability to purge the contempt by paying. Andrews, 428 So.2d at 665. A contemnor’s ability to purge himself is, of course, the well understood justification for imprisonment in civil contempt proceedings where the defendant does not have the due process protections, such as right to counsel, afforded in criminal contempt proceedings. See also Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

In view of petitioner’s present inability to pay, the court’s sentence was equivalent to punishment for criminal contempt. At that point the proceeding no longer had as its purpose “to coerce action or non-action by a party.” Andrews, 428 So.2d at 665 (stating the characteristics of civil contempt proceeding). The punishment was being imposed

solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.

Andrews, 428 So.2d at 665 (stating the characteristics of criminal contempt proceedings). The contempt proceeding then took on criminal characteristics in that the sanctions became punitive. See Ponder v. Ponder, supra, where “[t]he sentencing ... to jail ... turned the civil contempt proceedings into a criminal contempt pro-ceeding_” See also Robbins v. Robbins, 429 So.2d 424, 431 (Fla. 3d DCA 1983), involving civil contempt proceedings where a “lack of ability to pay turned them into criminal contempts.” In fact, the wording of the February 11, 1983 contempt order states that the prison sentence was “as punishment.”

Both Ponder and Robbins, in effect, equate lack of an adequate' showing of ability to pay with inability to pay when the penalty is incarceration. Both cases found that a prison sentence imposed upon a parent for present (at the time of the contempt proceeding) inability to make court-ordered support payments caused the proceeding to become a criminal contempt proceeding at which the parent was entitled to counsel. Neither case involved a finding, as here, by the trial court that the parent had divested himself of the ability to pay through his own fault or neglect. Subsequent proceedings where the accused parents were entitled to representation by counsel may have occurred in the trial courts following the district courts of appeal opinions in Ponder and Robbins. In each of such proceedings only a finding that the parent had divested himself of the ability to pay through his own fault or neglect would have supported continued imposition of prison sentences, assuming that the parent’s inability to pay continued to the time of those subsequent proceedings. That is, nonculpable inability to pay would not justify incarceration.

We do not suggest that the court could not punish petitioner for failing to comply with previous orders for payment at a time when he had the ability to pay. An indigent parent should be subject to jail if he has disdained the authority of the court by divesting himself of his ability to comply with a child support order. However, this can only be accomplished by first providing petitioner with the right to appointed counsel. Andrews, itself, recognizes that defendants in criminal contempt proceedings are entitled to counsel. 428 So.2d at 665. See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

Our views are reflected in Judge Pearson’s opinion in Chapman v. Lamm, 388 So.2d 1048, 105 (Fla. 3d DCA 1980), rev’d on other grounds, Lamm v. Chapman, 413 So.2d 749 (Fla.1982):

We would not in any way indicate that ... [the father] is not to be susceptible to punishment for his failure, as a father, to help to support his children. The propo-gation of children for others to support is an evil that is all too prevalent in our social system and one that threatens its stability. Nevertheless, a defaulting father must be accorded due process of law if be is to be imprisoned.

See also Judge Baskin’s opinion in Robbins v. Robbins, 429 So.2d at 431, saying that “if the contempts were in fact criminal, the likelihood of incarceration would have required appointment of counsel.” Of course, a proceeding for indirect criminal contempt should also follow the requirements of rule 3.840, Florida Rules of Criminal Procedure.

In the final analysis, it appears that either the entire proceeding was civil in nature and the petitioner should not have been sentenced to prison, or the proceeding became criminal in nature and petitioner could properly have been imprisoned but was entitled to counsel at the contempt hearing.

Our holding applies regardless of whether a parent’s disobedience is to a child support order entered in a dissolution of marriage proceeding, as in Faircloth, or in a support proceeding brought by HRS not incident to a dissolution proceeding, as here and in Andrews. Also irrelevant to our disposition of this case is the unusual facet that petitioner was initially held in contempt on a finding of ability to pay. That contempt order did not impose incarceration. His right to counsel derives from the subsequent contempt order which was based upon petitioner having wrongfully divested himself of the ability to pay and which imposed incarceration.

A conclusion from the facts of this case that petitioner otherwise received fair treatment from the trial judges and nonetheless persisted in his failure to recognize his obligations is supported by the record. Of course, it is entirely possible that a lawyer for petitioner might have enabled petitioner to present his case somewhat more favorably. In any event, the constitutional rights in criminal proceedings of not only petitioner but of similarly situated parents facing contempt punishments are paramount. It may well be, and hopefully will be, that counsel for such parents, cognizant of potential penalties under the law, will render advice which will in many cases convince parents to meet their obligations, thereby avoiding these types of proceedings.

We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: SHIVERS, Judge. SHIVERS, Judge.

text:
    GROVE ISLE, LTD., Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AO-354.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Rehearing Denied Aug. 16, 1984.

      Kenneth G. Oertel, of Oertel & Hoffman, P.A., Tallahassee, and Larry Stewart, of Floyd, Pearson, Stewart, Richman, Greer & Weil, Miami, for appellant.
    John C. Bottcher, Deputy Gen. Counsel; Bram D.E. Canter, Asst. Gen. Counsel, State Dept, of Environmental»Regulation, Tallahassee, for appellee.
    Parker D. Thomson, Douglas M. Halsey, and Laura Besvinick, and David A. Doheny, Miami, for amici curiae, Tropical Audubon Society, Bayshore Homeowners Ass’n, Coconut Grove Civic Club, Tigertail Ass’n and David A. Doheny.
   SHIVERS, Judge.

Grove Isle appeals the final order issued by a hearing officer for the Division of Administrative Hearings (DOAH) upholding the validity of two rules of the Department of Environmental Regulation (DER). At issue is the validity of DER Rules 17-3.-041 and 17-4.242, Fla.Admin.Code. These rules were applied by DER in denying Grove Isle’s application for a permit to construct a concrete fixed pier marina in Biscayne Bay, a body of water designated as “Outstanding Florida Waters” by DER Rule. Rule 17-3.041, which is entitled “Special Protection, Outstanding Florida Waters,” declares that DER policy is to afford the highest protection to waters designated “Outstanding Florida Waters.” The rule also designates several classifications of “Outstanding Florida Waters.” One such classification is designated as “Aquatic Preserves” and includes Biscayne Bay. Rule 17-4.242, which is entitled “Special Protection: Outstanding Florida Waters; Equitable Abatement” states that:

(1) Outstanding Florida Waters
(a) No department permit or water quality certification shall be issued for any stationary installation which significantly degrades, ... or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
2. The proposed activity or discharge is clearly in the public interest; and either,
b. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge....

(emphasis added).

It is a cornerstone of administrative law that administrative bodies or commissions, unless specifically created in the constitution, are creatures of statute and derive only the power specified therein. Florida Power & Light Co. v. Florida Public Service Commission, 8 FLW 116 (Fla., March 17, 1983); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978); State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA); cert. dismissed, 300 So.2d 900 (Fla.1974). As such, administrative bodies have no inherent power to promulgate rules and must derive that power from a statutory base. Section 120.54(14), Fla.Stat. (1981). Grove Isle contends on appeal, as it did before the DO AH hearing officer, that the challenged rules are invalid because they were enacted without legislative authority.

Section 403.087, Florida Statutes (1981), provides specific statutory authority which allows DER to “adopt, amend, or repeal rules, regulations, and standards for the issuance, denial, and revocation of permits.” Also, section 403.061(7), Florida Statutes (1981), provides DER with authority to “adopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act.” We think that the proper standard of review concerning rules promulgated pursuant to these sections, such as the rules sub judice, is set forth in General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla.1984). The rules should be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious. Id. The party challenging the validity of an agency rule must show that the agency adopting the rule has exceeded its authority, that the requirements of the rule are not appropriate to the ends specified in the legislative act, and that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. Department of Administration, Division of Retirement v. Albanese, 445 So.2d 639 (Fla. 1st DCA 1984); Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979).

Grove Isle first contends that both Rules 17-3.041 and 17-4.242 are invalid because the designation of “Outstanding Florida Waters,” as described in both rules, does not constitute a classification of water made “in accordance with the present and future most beneficial uses” as required by section 403.061(10). This contention is without merit. Although the title “Outstanding Florida Waters” is not as descriptive as to the present and future most beneficial uses of these waters as are other classifications of water bodies made by DER, we believe that the title along with the criteria set forth in Rule 7-4.242 amply demonstrate that the designation of “Outstanding Florida Waters” refers to environmentally sensitive waters which are to be given extremely restrictive uses. We find, therefore, that the classification “Outstanding Florida Waters,” as used in Rules 17-3.041 and 17-4.242 does not conflict with the statutory requirements of section 403.-061(10).

We agree, however, with Grove Isle’s further contention that Rule 17-4.242 is an invalid exercise of delegated legislative authority insofar as it establishes a “public interest” requirement as a precondition to the issuance of a construction permit. In addition to imposing an affirmative duty on an applicant for a permit to demonstrate that the proposed activity will meet DER’s water quality standards, Rule 17-4.242 also imposes a separate affirmative duty on the applicant to demonstrate that the “proposed activity or discharge is clearly in the public interest.” Grove Isle, Ltd. v. Bayshore Homeowners’ Association, 418 So.2d 1046 (Fla. 1st DCA 1982), rev. denied, 430 So.2d 451 (Fla.1983). This “public interest” requirement is not defined. No criteria are provided, in the rule or elsewhere, which would enable a permit applicant, DER, or a court to determine whether an applicant had satisfied this requirement. The “public interest” requirement is not tied to any particular form of air or water pollution, or even to pollution in general. In other words, the rule appears to allow DER to determine arbitrarily whether an applicant has proposed an activity which is “clearly in the public interest” based on DER’s subjective and unwritten notions of what the “public interest” might be.

Section 403.087(2), Florida Statutes (1981), lays an affirmative duty upon DER to issue permits. Section 403.087, inter alia, states:

(3) The department shall issue permits on such conditions as are necessary to effect the intent and purposes of this section.
(4) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department, except as provided in s. 403.088, and which will comply with the prohibitions in s. 124.41 of Vol. 40 of the Code of Federal Regulations.

(emphasis added). By its terms, the statute would require DER to issue a permit if the applying installation can comply with the standards or rules promulgated by DER to abate or prevent pollution and can comply with the prohibitions in the Code of Federal Regulations. The only exception is provided in section 403.088.

In the instant case, the hearing officer seized upon section 403.088 as providing statutory authority for the “public interest” requirement of Rule 17-4.242. It is true that section 403.088(2)(b) contains language which authorizes the issuance of an operation permit if DER finds, inter alia, “circumstances which are clearly in the public interest.” Section 403.088, however, concerns the issuance of operation permits to persons who are discharging waste into waters within the state. This statute cannot, therefore, provide statutory authority for a rule which concerns the issuance of construction permits for stationary installations which will not discharge waste into waters within the state.

The only other section listed as statutory authority for the promulgation of Rule 17-4.242 which might arguably justify the adoption of a “public interest” requirement by rule is section 403.062, Florida Statutes (1981). This section states:

The department and its agents shall have general control and supervision over underground water, lakes, rivers, streams, canals, ditches, and coastal waters under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interest of the public or persons lawfully using them,

(emphasis added). Clearly, this statute limits DER’s consideration of the public interest to pollution. Rule 17-4.242 does not so limit DER’s consideration of the public interest. In fact, the “public interest” requirement of the rule impliedly is broader than consideration of mere pollution, since the requirement is one in addition to a requirement that water pollution quality standards are met. Indeed, it affirmatively appears from the record that DER interprets the “public interest” requirement of Rule 17-4.242 to be broader than a consideration of the public interest merely in regard to pollution. When asked on deposition how the public interest is determined, for example, compared to Grove Isle, the Secretary of DER responded, “I think the participation of a public body is one issue; the benefit to the public as a larger group is another one. The larger the public is that appears to be able to enjoy the benefits of the project involved, I think that tends to weigh.” Since Rule 17-4.242 allows DER to consider the public interest in a broad sense not tied to pollution, section 403.062 cannot provide statutory authority for this aspect of the rule.

Appellee argues that this court upheld a similar “public interest” test, that of section 253.124, Florida Statutes, in Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA), cert. denied, 359 So.2d 1210 (Fla.1978). Al-brecht, however, did not involve a question of whether a rule was authorized by statute. The statute involved in Albrecht clearly authorized DER to consider the public interest. The question in Albrecht was whether that statute was an unlawful delegation of legislative authority to the administrative agency. Further, the statute was upheld in Albrecht because section 253.124 contained criteria which constrained DER’s interpretation of the public interest for purposes of that statute. As discussed supra, Rule 17-4.242 contains no such criteria and provides no constraint on DER’s discretion in determining the public interest.

We find that DER, in adopting an undefined “public interest” requirement in Rule 17-4.242, has exceeded its statutory authority. A “public interest” requirement which is not related to the control of air or water pollution is not appropriate to the ends specified in the Florida Air and Water Pollution Control Act, is not reasonably related to the purpose of this enabling legislation, and is arbitrary. We therefore hold that Rule 17-4.242 is an invalid exercise of delegated legislative authority to the extent it requires an applicant to meet a “public interest” requirement prior to the issuance of a construction permit for a stationary installation not involving the discharge of waste into waters within the state. In light of this holding that no statutory basis exists for the “public interest” requirement of Rule 17-4.242, we find it unnecessary to address the constitutional issues raised by appellant concerning the operation of this rule.

WIGGINTON and BARFIELD, JJ., concur.

ON MOTION FOR REHEARING

SHIVERS, Judge.

Upon further consideration, after reviewing supplemental briefs and hearing oral argument, the motion for rehearing is DENIED.

WIGGINTON and BARFIELD, JJ., concur.

      . We express no opinion on the validity of Rule 17-4.242 as applied to the issuance of operation permits to persons who discharge waste into waters within the state pursuant to section 403.-088, Florida Statutes (1981).


text:
    Arnold Ray SAXTON, Appellant, v. Elizabeth J. SAXTON, Appellee.
    No. 82-2128.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Donald J. Sasser of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellee.
   PER CURIAM.

This appeal stems from a final judgment of dissolution in which the trial court attempted to equitably distribute the parties’ property. The major point on appeal involves the valuation of a piece of property in North Carolina. The final judgment specified a dollar figure and indicated that the valuation was derived from the husband’s testimony. The record of his testimony, however, fails to support the court’s finding. In an effort to clarify this issue, we remanded the cause to the trial court to determine whether its finding was derived from the totality of the evidence or solely from the husband’s testimony. The trial court’s responding order, entered with commendable candor, confirms the presence of irremediable confusion on this point. Since the valuation on the North Carolina property is integral to the court’s entire plan of distribution, we believe that the interests of justice compel reversal of all aspects of the final judgment save the dissolution. Accordingly, the cause is remanded for retrial with the strong recommendation that the parties assist the trial court by providing expert testimony on the valuation of the various parcels of real property.

REVERSED AND REMANDED.

LETTS and HURLEY, JJ., and VO-CEELE, L.B., Associate Judge, concur.


author: BARKDULL, Judge. DANIEL S. PEARSON, Judge,

text:
    LAKEVIEW TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Appellant, v. EAST FLORIDA DEVELOPMENT CORPORATION, Michael Stein, David Schwadron, Owen Goldwyn, Gioia & Attardi, Appellees.
    No. 83-2421.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied Sept. 12, 1984.

      Paul R. Lipton, North Miami Beach, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Guy W. Harrison, Miami, for ap-pellees.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.

       Participated in decision, but not oral argument.

   BARKDULL, Judge.

This is an appeal from a final order dismissing with prejudice certain counts of a complaint as amended as directed to the individual defendants, Michael Stein, David Schwadron and Owen Goldwyn.

East Florida Development Corp. was the developer of the Lakeview Townhomes Condominiums. Gioia & Attardi was the contractor. The individual defendants, Michael Stein, David Schwadron, and Owen Goldwyn were the developer’s corporate officers. They were also the first officers and directors of the Lakeview Townhomes Condominium Association.

The Association alleged fraudulent misrepresentations were made to the ultimate purchasers concerning both the common areas and the individual units. In addition the Association alleged that the individual defendants breached a duty, owed to the condominium purchasers in their capacity as the first officers of the Association, to require East Florida Development to correct those things which were not as they were represented they would be. The trial court dismissed the counts of the Association’s complaint alleging fraud and breach of fiduciary duty. We affirm. The Supreme Court of Florida has consistently held that a class action by an association such as the plaintiff will not lie for alleged fraud on its individual members. Cherin v. Southern Star Land and Cattle Company, Inc., 400 So.2d 1 (Fla.1981); Avila South Condominium Association v. Kappa Corporation, 347 So.2d 599 (Fla.1977); Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955). Therefore the trial court was correct in dismissing Count V. As to the dismissal of Count VI, this dismissal was appropriate under this court’s ruling in Olympian West Condominium Association, Inc. v. Kramer, 427 So.2d 1039 (Fla. 3d DCA 1983). Therefore for the reasons above stated the final order of dismissal be and the same is hereby affirmed.

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

I would reverse the dismissal of Count V on the authority of Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), and Lance v. Wade, 424 So.2d 161 (Fla. 3d DCA 1983), rev. granted, 457 So.2d 1008 (Fla.S.Ct.1983).

      .The order as amended reads as follows:
      ORDER AND ADJUDGED:
      1. That portion of Count V which alleges that the Defendants fraudulently induced individual members of the Association to purchase condominium units is dismissed with prejudice. The Association has no standing to bring a class action on behalf of individual unit owners for fraud on separate purchase contracts, regardless of whether the alleged misrepresentations concern common elements or individual units. Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599, 608-609 (Fla.1977).
      2. That portion of Count V purporting to state a claim for fraud allegedly perpetrated on the Association itself is Dismissed for failure to allege reasonable reliance on the alleged misrepresentations by the Association itself as opposed to reliance by individual purchasers. Avila, supra, at 608-609. Plaintiffs ore tenus Motion for Leave to Amend this portion of Count V is Granted. Plaintiff shall serve its Amended Complaint within twenty (20) days of the entry of this Order. Defendants shall serve their response within twenty (20) days of service of the Amended Complaint.
      3.Count VI, which purports to state a cause of action for breach of fiduciary duty against the Defendants, is Dismissed with prejudice. It is alleged that the individual Defendants were principals of the corporate developer-builder who also served, pursuant to the designation of the developer, as directors of the Lakeview Townhomes Condominium Association, Inc. prior to the assumption of control by the unit owners. The claim that the individual Defendants breached their fiduciary duty arises from and is based upon the existence of, or the failure to correct construction defects in the condominium which were allegedly created by the developer itself. "The principals of the corporate developer/builder who serve, pursuant to the designation of the developer, as directors of the condominium association, prior to the assumption of control by the unit owners, are not personally liable in that latter capacity to the association for the existence of, or the failure to correct construction defects in the condominium building which are allegedly created by the developer itself." Olympian West Condominium Association, Inc. v. Kramer, et al., 427 So.2d 1039 (3rd DCA 1983).

      . We have jurisdiction of this appeal even though the matter continued in the trial court as to the other defendants on the first four counts of the complaint, as amended, because the order under review finally disposed of all claims against the individual defendants. See, e.g. Mortgage Guarantee Insurance Corp. v. Stewart, 427 So.2d 776 (Fla. 3d DCA 1983); Clermont Builders Supply, Inc. v. General Construction & Design, Inc., 423 So.2d 518 (Fla. 5th DCA 1982); Hamer v. Kahn, 404 So.2d 847 (Fla. 4th DCA 1981). Cf. Niesz v. Morgan Building Co., Inc., 401 So.2d 822 (Fla. 5th DCA 1981).


author: GLICKSTEIN, Judge.

text:
    Janet SANDINI, Appellant, v. FLORIDA EAST COAST PROPERTIES INC., and Shelby Mutual Insurance Company, Appellees.
    No. 82-1693.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Rehearing Denied Sept. 17, 1984.

      David T. Price of Price & Byrne, Fort Lauderdale, for appellant.
    Maxine Caster of Conrad, Scherer & James, Fort Lauderdale, for appellee Florida East Coast Properties, Inc.
    Van E. Anastasiou of Clifford B. Sel-wood, Jr., P.A., Fort Lauderdale, for appel-lee Shelby Mut. Ins. Co.
   GLICKSTEIN, Judge.

This is an appeal from two orders, dismissing plaintiff’s action against two of several defendants for lack of prosecution. We affirm as to Shelby Mutual Insurance Company and reverse as to Florida East Coast Properties, Inc. (FEC).

The action was originally filed in 1976 against FEC, which filed an answer. Appellant immediately filed a notice of trial. Two months prior to trial,. FEC obtained leave to file a third party complaint against other parties, which was done in February, 1977. Later that year, appellant filed an amended complaint, joining as additional defendants those parties impleaded by FEC. After the defendants answered, appellant, in late 1977, noticed the action for trial. In 1978, FEC filed an offer of judgment for $25,001. Later that year, one of the new defendants sought leave to im-plead yet another party, Able Services, Inc., (Able) and appellant filed a second amended complaint adding that party and others. One of the other parties added by appellant was Shelby Mutual Insurance Company (Shelby), which filed a motion to abate in early 1980 because service had not been obtained against its insured, Able. In January, 1981, appellant filed its third notice of trial, which Shelby sought to strike on the ground of prematurity. Shelby also moved to dismiss the complaint against it and to strike Able as a party because no service had been effected upon Able. The trial court granted all of Shelby’s motions and stayed the action against Shelby and Able until service was obtained upon Able. In June, 1981, two of the defendants, P & D Security, Inc., (P & D) and Parliament Insurance Company (Parliament) made an unrecorded offer of judgment for $15,000. Nothing took place thereafter until March, 1982, when Shelby moved to dismiss for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). Twelve days later, appellant’s counsel filed a sworn notice of good cause why the action should remain pending, attesting to a number of personal and professional causes for non-activity. More significantly, it filed a notice to produce directed to FEC. Subsequently, FEC then filed motions to dismiss for lack of prosecution. However, FEC also filed thereafter a response to appellant’s notice to produce which had been filed simultaneously with its sworn notice. P & D and Parliament filed a response, pointing out their offer of judgment. The trial court granted the Shelby and FEC motions. Appellant then filed an unsuccessful, unsworn motion for rehearing, alleging the court file was missing when the motions were heard.

The above scenario hardly reflects an appellant who has made no attempt to prosecute her case. Effort after effort to notice the cause for trial has been frustrated — in large measure by defendants bringing new players into the drama for cover or companionship. Even the most vigorous plaintiff can be worn out.

We affirm the dismissal as to Shelby Mutual Insurance Company because no record action had been taken against it for one year prior to the motion to dismiss. Nor was good cause shown for the lack of further effort to obtain jurisdiction over its insured, Able, or to otherwise pursue the claim against that defendant. We reverse the dismissal against FEC in light of all of the above recited factual circumstances, particularly the notice to produce, which speak for themselves and need not be repeated. FEC’s successful ability to insulate itself from trial in this case, given the recited chronology, did not justify application of the one-year rule. We are aware of the line of cases, among them this court’s recent decision in Magers v. Walker’s Cay Air Terminal, Inc., 451 So.2d 867 (Fla. 4th DCA 1983), holding that dismissal for lack of prosecution inures to actions, not individual parties. These decisions are distinguishable from the instant case, however, because jurisdiction was not obtained over all of the parties. See Crouse-Hinds Company v. Capellia, 302 So.2d 800 (Fla. 4th DCA 1974). It is therefore appropriate that the action proceed against FEC — the sole original defendant who successfully started the snowball of additional parties.

HURLEY, J., and SMITH, CHARLES E., Associate Judge, concur.

      . Rule 1.420(e) provides:
      (e) FAILURE TO PROSECUTE. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.


author: NESBITT, Judge.

text:
    ROLLINS, INC., et al., Appellants, v. Daniel Neal HELLER and Diane Heller, his wife, Appellees.
    Nos. 82-2687, 83-106.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Sept. 17, 1984.

      Capp, Reinstein, Kopelowitz & Atlas and Jan D. Atlas, Palm Beach, and Addison & Paris, Tampa, for appellants.
    Daniel Neal Heller, Sams, Gerstein & Ward, Miami, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

Rollins appeals a final judgment finding it liable for gross negligence and deceptive and unfair trade practices in connection with the installation and servicing of a burglar alarm system and granting an award of compensatory and punitive damages to-talling $228,487. We reverse as to the award of damages.

The Hellers entered a contract with Rollins Protective Services Company (RPS) to install and maintain a burglar alarm system in their home. RPS is a subsidiary corporation of Rollins, Inc., the defendant below. The Hellers believed themselves to be dealing with Rollins, Inc. and were unaware of the separate corporate identities. The system was installed and then allegedly “serviced” regularly for more than two years, up until the time the Hellers’ residence was burglarized. The alarm system did not work at the time of the burglary and property belonging to the Hellers, valued in excess of one million dollars, was stolen. Subsequently, through investigation and paying of ransom monies, about ninety per cent (in dollar value) of the stolen property was recovered.

The Hellers commenced an action claiming negligence, breach of express and implied warranties, fraud and deceit, misleading advertising, gross negligence and deceptive and unfair trade practices on the part of Rollins. The Hellers voluntarily abandoned their claims based upon ordinary negligence and warranties. The trial court found that the Hellers failed to establish their claims based upon fraud and deceit and misleading advertising. The Hel-lers have not challenged these findings. The court, however, found Rollins liable for gross negligence and deceptive and unfair trade practices under section 501.201 et. seq., Florida Statutes (1981). The court awarded $128,487 in compensatory damages (based upon the value of the unrecov-ered stolen items) and $100,000 in punitive damages. Rollins thereupon instituted this appeal challenging its liability as found by the trial court and the damages awarded.

Rollins first contends that the Hellers have failed to pierce the corporate veil and that RPS is the only proper defendant. We find, however, that the record supports the trial court’s implicit finding that Rollins was itself a direct participant in the dealings with the Hellers. Therefore, there is no need for the Hellers to pierce the corporate veil between RPS and Rollins.

GROSS NEGLIGENCE

The crucial issue concerning Rollins’ liability for gross negligence is whether the limitation of damages provision in the contract is applicable. In pertinent part, the contract states:

It is further agreed that Rollins is not an insurer of the Customer’s property and that all charges and fees herein provided for are based solely on the cost of installation, service of the System and scope of liability hereinafter set forth and are unrelated to the value of the Customer’s property or the property of others located on the Customer’s premises.
The parties agree that if loss or damage should' result from the failure of performance or operation or from defective performance or operation or from improper installation or servicing of the System, that Rollins’ liability, if any, for the loss or damage thus sustained shall be limited to a sum equal to ten (10%) per cent of one year’s service charge or $250.00, whichever sum is the greater, and that the provisions of this paragraph shall apply if loss or damage, irrespective of cause or origin, results, directly or indirectly to persons or property from performance or nonperformance of obligations imposed by this Agreement or from negligence, active or otherwise, of Rollins, its agents or employees.

It is well settled that exculpatory and limitation of damages provisions are valid and enforceable in these types of contracts. Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332 (Fla. 3d DCA 1983); Continental Video Corp. v. Honeywell, Inc., 422 So.2d 35 (Fla. 3d DCA 1982); Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So.2d 8 (Fla. 3d DCA 1982); L. Luria & Sons, Inc. v. Alarmtec International Corp., 384 So.2d 947 (Fla. 4th DCA 1980).

In Mankap, this court held that such provisions will not limit one’s liability for fraud, an intentional tort. 427 So.2d at 333-34. The trial court in the present case, however, specifically found that the Hellers failed to establish fraud and deceit on the part of Rollins. Instead, the court found the provisions did not apply because Rollins was guilty of gross negligence amounting to a willful, wanton and reckless indifference to the rights of the Hellers. Without unnecessarily lengthening this opinion, we simply hold that the record supports the finding of gross negligence. See Maddalena v. Southern Bell Telephone & Telegraph Co., 382 So.2d 1246 (Fla. 4th DCA 1980) (compounding effect of successive acts can amount to gross negligence). This, however, does not put the case within Mankap’s fraud exception to the application of the provisions.

In L. Luria, the plaintiffs sought compensatory damages for breach of contract and warranties and for negligence, and also sought punitive damages for “gross, wanton and willful negligence” on the part of a burglar alarm company. The contract between the parties stated that the company was not liable for any loss or damage resulting from their services under the contract. The contract also contained a limitation of damages provision. The court found that the exculpatory clause totally excluded liability on the company’s part for losses due to burglary and affirmed the trial court’s dismissal of the action. The court further found that the limitation of damages provision was enforceable and in a proper case would limit damages according to its terms. 384 So.2d at 947-48. Accord Mankap; Continental Video; Ace Formal Wear.

Although the contract in the present case does not contain an exculpatory clause which would immunize Rollins from all liability, it does contain a limitation of damages provision. On the authority of the above cases, therefore, any damages awarded pursuant to Rollins’ gross negligence should have been limited according to the contract, and it was error for the trial court to find the provision did not apply in the face of gross negligence. Accordingly, the aggregate of compensatory and punitive damages recoverable by the Hellers for Rollins’ gross negligence is limited to ten per cent of one year’s service charge or $250, whichever is greater.

THE FDUTPA VIOLATION

We now turn to the trial court’s finding that Rollins violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). § 501.201 et. seq., Fla.Stat. (1981). The applicable provision makes unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1). Although the trial court found no fraud on Rollins’ part, such a finding is not necessary to sustain a violation under the FDUTPA. The legislature specifically provided that great weight was to be given to the federal courts’ interpretations of the Federal Trade Commission Act. § 501.204(2). In D.D.D. Corp. v. Federal Trade Commission, 125 F.2d 679, 682 (7th Cir.1942), the court held “that the false, unfair or deceptive acts defined in the Federal Trade Commission Act need not be such as would constitute fraud.” Reviewing the record, we find that there was competent substantial evidence presented to support the court’s finding that Rollins violated the FDUTPA. See Deltona Corp. v. Jannotti, 392 So.2d 976 (Fla. 1st DCA 1981).

Having upheld the trial court’s finding on the FDUTPA violation, we now must determine what damages are allowed by the Act. The Act specifically provides that an “individual may recover actual damages, plus attorney’s fees and court costs.” § 501.211(2). The Act, however only allows recovery of damages related to the property which was the subject of the consumer transaction. § 501.212(3). We find that the subject of the consumer transaction in the present case was the installation of the burglar alarm system and the services performed thereon, rather than the items stolen from the Hellers’ house. A company which installs and services burglar alarms does not assume the responsibility of insuring all the items intended to be protected by the system. Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (Ct.App.1977). This immunity was made clear in the present case by the provision in the contract stating that “Rollins is not an insurer of the Customer’s property.” Therefore, the damages awarded pursuant to the violation of the FDUT-PA must be limited to the actual damages related to the system and services Rollins contracted to provide.

While the FDUTPA does not define “actual damages,” courts of other jurisdictions have had occasion to define the term within similar statutes. In interpreting Texas’ Deceptive Trade Practices Act, Tex.Bus. & Com. Code Ann. § 17.41, et. seq. (Vernon 1979), the Texas supreme court held that actual damages are those damages recoverable at common law. Brown v. American Transfer and Storage Co., 601 S.W.2d 931 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). See also Lubbock Mortgage & Investment Co. v. Thomas, 626 S.W.2d 611 (Tex.App.1981); United Postage Corp. v. Kammeyer, 581 S.W.2d 716 (Tex.App.1979). In determining the measure of actual damages, the court in Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983), held:

Generally, the measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties, [citations omitted] A notable exception to the rule may exist when the product is rendered valueless as a result of the defect — then the purchase price is the appropriate measure of actual damages, [citation omitted]

We hold that Florida’s statutes should be interpreted, and actual damages measured, in a similar manner. Therefore, the actual damages awardable to the Hellers pursuant to the FDUTPA violation should be measured in accordance with the formula set out in Raye.

The recovery of actual damages pursuant to this violation, however, is not limited by the limitation of damages provision in the contract. The provision, literally read, does not attempt to cover this situation. See L. Luria (intention must be made clearly and unequivocally to uphold an exculpatory provision). Further, any attempt to limit one’s liability for deceptive or unfair trade practices would be contrary to public policy. Cf. John’s Pass Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979) (it would be contrary to public policy to enforce an exculpatory clause that attempts to immunize one from liability for breach of a positive statutory duty); Man-kap (exculpatory clauses relating to fraud or intentional misrepresentation are contrary to public policy and unenforceable). Therefore, actual damages are recoverable in full for the FDUTPA violation notwithstanding Rollins’ attempt to limit its liability in the contract.

We now must determine whether an award of punitive damages is allowable pursuant to an FDUTPA violation. The Act specifically provides for the recovery of actual damages, but makes no provision for punitive damages. See § 501.211. See also 2 Words and Phrases 363 (1955) (actual damages generally considered synonymous with compensatory damages, in contradistinction to punitive damages). A claim for punitive damages is outside the scope of chapter 501 and the FDUTPA. See LaFerney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534 (Fla. 5th DCA 1982). Accordingly, any award of punitive damages based upon a violation of FDUTPA would be improper absent some independent basis such as fraud. See Bert Smith Oldsmobile, Inc. v. Franklin, 400 So.2d 1235 (Fla. 2d DCA 1981); Hauser Motor Co. v. Byrd, 377 So.2d 773 (Fla. 4th DCA 1979). In the present case, the trial court specifically found in favor of Rollins on the Hellers’ claim of fraud. Since no basis existed in the present case upon which punitive damages could be assessed beyond the amount stated in the limitation of damages provision, it was error for the trial court to award $100,000 in punitive damages.

CONCLUSION

In sum, we hold that the record supports the trial court’s findings that Rollins is liable for its gross negligence and for violating the FDUTPA. We find, however, that the damages awarded were improper. Any damage award, including an award of punitive damages, based upon liability for gross negligence is limited by the limitation of damages provision in the contract. Although this provision does not apply to an award of damages pursuant to the FDUT-PA violation, any such award must be limited to “actual” damages. The actual damages in the present case should be computed based upon the alarm system and the services Rollins agreed to provide, and not with regard to the value of the items stolen during the burglary. The trial court, of course, will ensure that the Hellers do not recover twice for the same element of damages. See Hillsborough County Aviation Authority v. Cone Brothers Contracting Co., 285 So.2d 619 (Fla. 2d DCA 1973).

Following our determination of the above issues, we find that the other points raised by Rollins do not merit discussion and that the Hellers’ points on cross-appeal are hereby rendered moot. Reversed and remanded for a new trial on damages.

      . The duty breached by Rollins may have sprung from a contractual promise, but "the duty sued on in a negligence action is not the contractual promise but the duty to use reasonable care in affirmatively performing that promise. The duty exists independent of the contract.” Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 691 (Fla. 2d DCA 1979). See also Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Robertson v. Deak Perera (Miami), Inc., 396 So.2d 749 (Fla. 3d DCA 1981); Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969).

      . The limitation of damages provision involved in L. Luria was somewhat similar to the one in the present case. It stated:
      If there shall, notwithstanding the above [exculpatory] provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages.

        384 So.2d at 948. Although this provision looks similar to a liquidated damages provision, the court adopted the holding in Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (Ct.App.1977), which found these types of provisions were actually limitation of damages provisions. L. Luria, 384 So.2d at 948. See also the limitation of damages provisions in Mankap, Continental Video and Ace Formal Wear which more closely resemble the provision in the present case.

      . The Hellers’ attempt to avoid these provisions by claiming the entire contract is void on the ground that Mrs. Heller did not read it before she signed it and believed it was merely an order form is without merit. Implicit in the trial court’s attempt to avoid the exculpatory and limitation of damages provisions is its finding that the contract was valid. We agree. The evidence indicates Mrs. Heller had the ability to understand the contract if she had taken the time to read it. Although Mrs. Heller testified that she did not read the contract nor was it read to her before she signed it, she nevertheless admitted that she was not prevented from reading it. Accordingly, the Hellers are bound by the contract and its provisions despite the fact that Mrs. Heller did not read, and consequently did not know, the terms of the contract she was signing. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla.1977); All Florida Surety Co. v. Coker, 88 So.2d 508 (Fla.1956).

      . Any such holding would in effect convert burglar alarm companies into insurance companies. It is most likely that the majority of persons obtain a burglar alarm system to deter by threat of detection some would-be thieves. Having such a system would probably result in lower insurance premiums, but it should not be used as an alternative to insurance. It is apparent in the present case that the Hellers had underinsured the unrecovered stolen property. There is no sound reason why Rollins should bear the burden of this oversight by the Hellers.


text:
    Otis YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 83-1510.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Rehearing Denied Sept. 12, 1984.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant was charged by information and convicted with the offenses of armed robbery, contrary to Florida Statute, Section 812.13(1) and (2)(a); aggravated battery, contrary to Florida Statute, Section 784.045; and grand theft, contrary to Florida Statute, Sections 812.014(l)(a), 812.014(l)(b), and 812.014(2)(b). Sentencing was entered for all convictions but that of grand theft. The defendant argues that his conviction for grand theft cannot stand because it is the lesser included offense of armed robbery. We agree and reverse the grand theft conviction. Broomfield v. State, 436 So.2d 435 (Fla. 4th DCA 1983); Bell v. State, 437 So.2d 1057 (Fla.1983).

The defendant also argues that his conviction and sentencing for aggravated battery cannot stand because it too is a lesser included offense of the armed robbery conviction. We do not agree. We affirm upon the authority of Gaylord v. State, 413 So.2d 72 (Fla. 2d DCA 1982); Gilbert v. State, 410 So.2d 609 (Fla. 5th DCA 1982).

Accordingly, this cause is remanded to the trial court with instructions to vacate the conviction of grand theft.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.

HURLEY, DELL and WALDEN, JJ., concur.