author: ERVIN, Judge.

text:
    Gerald SOHN, Appellant, v. Hazel BROCKINGTON and Evelyn Brockington, his wife, Thomas E. Brown, Home Transportation Company, Inc., and Home Indemnity Co., Appellees.
    No. LL-277.
    District Court of Appeal of Florida, First District.
    June 13, 1979.
    Rehearing Denied July 6, 1979.

      Gerald Sohn, Jr., Jacksonville, for appellant.
    Lee S. Carlin of Wood, Godfrey & Carlin, Jacksonville, for appellees.
   ERVIN, Judge.

Attorney Sohn, discharged without cause by his former client before he had accomplished the contingency stated in his contingent fee contract, appeals the quantum me-ruit fee award entered by the lower court, arguing first, that he is entitled to recover under the terms of the fee contract, and second, even if quantum meruit is the correct means of evaluating the fee to be awarded, the amount awarded, given the nature of the services rendered, was insufficient. We agree with the lower court as to the first point, but reverse and remand as to the second.

On August 25, 1976, attorney Sohn and his former client, Hazel Brockington, entered into a 40% contingent fee contract relating to services to be performed by Sohn pertaining to the recovery of damages resulting from injuries which had occurred to Brockington in an automobile accident. During the course of his employment, Sohn had successfully represented Brockington on his workmen’s compensation claim as well as in a personal injury protection claim with Brockington’s insurer. However, five months after the execution of the contract, Sohn was discharged without any cause given, and before he had filed a complaint pertaining to the common law tort action. Subsequently additional attorneys were employed by Brockington on the same percentage terms as Sohn, and, during pendency of the personal injury action, Sohn filed a motion seeking a lien on the proceeds of any recovery or settlement in accordance with his contingency contract. Ultimately Brockington’s newly retained attorneys secured a settlement in the sum of $75,000. Later, at the hearing on the motion for attorney Sohn’s charging lien, the court concluded that Sohn was discharged by Brockington without cause, that prior to the discharge Sohn performed valuable legal services for Brockington, all of which were rendered on the workmen’s compensation claim, that based on the persuasive guidance of the Florida Supreme Court in Milton Kelner, P. A. v. 610 Lincoln Road, Inc., 328 So.2d 193 (Fla.1976), attorney Sohn was limited to a quantum meruit recovery for the value of his services rendered prior to his discharge, and that the value of those services as to the common law action only was determined to be $950.

We are confronted again with the same question which the Third District Court of Appeal answered in 610 Lincoln Road, Inc. v. Kelner, P. A., 289 So.2d 12 (Fla.3d DCA 1974), but which was vacated by the Supreme Court in Kelner, P. A. v. 610 Lincoln Road, Inc., supra. In Kelner, the Third District Court of Appeal held that the discharged attorney, a party to a contingent fee contract, could recover from his former client only on quantum meruit. The Supreme Court, in reversing, stated that while quantum meruit might be the proper standard when the discharge happens prior to the occurrence of the contingency stipulated in the contract, nevertheless held, since the attorney had obtained maximum recovery on behalf of his client prior to discharge, the facts did not present a question requiring it to decide whether quantum me-ruit was the exclusive remedy. The court therefore permitted the discharged attorney to recover on the contract.

In the instant case the lower court concluded that Milton Kelner, P. A. v. 610 Lincoln Road, Inc., supra, was persuasive and that attorney Sohn was limited to quantum meruit for the legal services he had rendered only on the personal injury claim prior to his discharge. The dictum expressed in Kelner by the Supreme Court, while not controlling, is certainly persuasive, and we agree that when an attorney has entered into a contingent fee contract with his client and he is later discharged, either with or without cause before any recovery is obtained, his sole recourse is to seek damages for the reasonable value of the services he rendered before discharge.

The subject of an attorney’s right to recover either under contract or quantum me-ruit has been one of extensive litigation. The majority rule is that an attorney employed under a contingent fee contract and discharged without fault on his part may recover damages for breach of the contract. See annot., 136 A.L.R. 232, 242 (1942). For example the courts of some states permit the discharged attorney to recover the full amount of the contingent fee for which he contracted. Carter v. Dunham, 104 Kan. 59, 177 P. 533 (1919); Harrison v. Johnson, 64 Ohio App. 185, 28 N.E.2d 615 (1940); Dolph v. Speckart, 94 Or. 550, 179 P. 657 (1919); Williams v. Philadelphia, 208 Pa. 282, 57 A. 578 (1904); White v. Burch, 19 S.W.2d 404 (Tex.App.1929). Other courts, such as those in Missouri, permit an attorney, employed under a contingent fee contract and discharged without cause, to elect either to treat the contract as rescinded and seek quantum meruit for services rendered or to wait until the client’s cause of action is liquidated by judgment or settlement and then sue for his fee according to the contract. Mills v. Metropolitan St. Ry. Co., 282 Mo. 118, 221 S.W. 1 (1920). Indiana also allows an election. French v. Cunningham, 149 Ind. 632, 49 N.E. 797 (1898). Arkansas allows recovery of the stipulated contingent fee computed upon the amount ultimately realized by the client, less the expenses which the discharged attorney would have been required to make in performing the unperformed portion of the contract. Brodie v. Watkins, 33 Ark. 545 (1878); Bockman v. Rorex, 212 Ark. 948, 208 S.W.2d 991 (1948). The rule in Wisconsin is similar. The attorney is allowed to sue for damages on the contingent fee contract based upon the amount of the settlement or judgment ultimately realized by the client, less a fair allowance for services and expenses which would have been expended by the discharged attorney in performing the balance of the contract. Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261 (1959); Knoll v. Klatt, 43 Wis.2d 265, 168 N.W.2d 555 (1969).

A more recent trend of cases denies the attorney, discharged by his client before the contingency has been fulfilled, any contract action and limits his recovery exclusively to quantum meruit. See annot., 136 A.L.R. at 254. E. g., Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (N.Y.1916); Ramey v. Graves, 112 Wash. 88, 191 P. 801 (1920); Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9 (1972); Johnson v. Long, 15 Ill. App.3d 506, 305 N.E.2d 30 (1973); In re Estate of Poli, 134 N.J.Super. 222, 338 A.2d 888 (1975).

We feel the minority rule, limiting recovery only on quantum meruit, is the more logical and should be adopted in this state. In Martin v. Camp, supra, the New York Court of Appeals held that an attorney cannot seek an action in contract against his client unless the attorney completely performs. Its rule was based upon the principle that the client has the right to terminate the contract with or without cause at any time, and, if he exercises a right which is an implied condition of the contract, he obviously cannot be held liable for damages resulting from an asserted breach of the contract, since no breach ever occurred. Therefore, the lawyer who rendered services under the contract can recover only the reasonable value of the services which he performed prior to discharge.

The New York rule was followed in the landmark decision of Fracasse v. Brent, supra, where the California Supreme Court overruled a long line of cases which had held that when an attorney is discharged without cause by his client before he has completely performed his contract, he could elect either to sue his former client for damages resulting from the breach, or he could recover in quantum meruit for the reasonable value of his services. E. g., Herron v. State Farm Mutual Insurance Co., 56 Cal.2d 202, 14 Cal.Rptr. 294, 363 P.2d 310 (1961); Moore v. Fellner, 50 Cal.2d 330, 325 P.2d 857 (1958); Oliver v. Campbell, 43 Cal.2d 298, 273 P.2d 15 (1954). The opinion in Fracasse was based both upon the nature of the contractual relationship between attorney and client as stated in Martin v. Camp, supra, and the policy reasons expressed in the concurring opinion of Chief Justice Gibson, in Salopek v. Schoemann, 20 Cal.2d 150, 124 P.2d 21 (1942).

In Salopek, the trial court had allowed an attorney’s lien on the proceeds of a judgment to the extent of the reasonable value of the services and the court affirmed, the majority holding that the attorney was discharged for cause and therefore was enti-tied only to a quantum meruit recovery. Chief Justice Gibson concurred but stated that whether the discharge was with or without cause, the measure of damages should be the reasonable value of the attorney’s services. The policy reasons for limiting an attorney to quantum meruit were forcefully and cogently stated as follows:

It is recognized as a part of the ethical rules governing the legal profession that an attorney will not sue a client for a fee except to prevent injustice, imposition or fraud. See American Bar Association, Canons of Professional Ethics, Canon 14.
The relation of attorney and client is one of special confidence and trust and the dignity and integrity of the legal profession demand that the interests of the client be fully protected. [Citations omitted.] Without public confidence in the members of the legal profession which is dependent upon absolute fairness in the dealings between attorney and client, courts cannot function in the proper administration of justice. And inherent in the relationship between attorney and client is the fact that the client must rely almost entirely upon the good faith of the attorney who alone can make an informed estimate of the value of the client’s legal right and of the expense and effort necessary to enforce it. These considerations have given rise to the generally accepted rule that a client may discharge his attorney at any time with or without causes [Citations omitted.] But that is not enough. The right to discharge is of little value if the client must risk paying the full contract price# for services not rendered upon a determination by a court that the discharge was without legal cause. The client may frequently be forced to choose between continuing the employment of an attorney in whom he has lost faith, or risking the payment of double contingent fees equal to the greater portion of any amount eventually recovered. [Citations omitted.]
♦ * * * * *
Unless a rule is adopted allowing an attorney as full compensation the reasonable value of services rendered to the time of discharge, clients will often feel required to continue in their service attorneys in whose integrity, judgment or capacity they have lost confidence. 124 P.2d at 24-25.

We feel, for the reasons stated in Martin v. Camp, supra, Fracasse v. Brent, supra, and the concurring opinion in Salopek v. Schoemann, supra, that when an attorney, before he has completely performed under a contingent fee contract, is discharged, his recovery should be limited only to quantum meruit. Certainly if one of the goals of the attorney-client relationship is absolute confidence, a client should be free to discharge one attorney and hire another at will. The reason for the discharge is simply not relevant to a determination whether recovery on the contingent fee contract or quantum meruit should be permitted since it is an implied condition of the contract that the client may terminate at will.

We agree also with the Fracasse court that the adoption of a rule limiting an attorney’s action exclusively to quantum meruit is unlikely to result in the wholesale discharge of attorneys by clients shopping for the least expensive fees. The clients who do so run the risk of being twice exposed to fees, once, to the discharged attorney for the reasonable value of services, which could conceivably be in excess of the contingent fee recovery, and again to the substituted attorney on the contract.

While Sohn’s request for a lien was directed only to the proceeds of the final settlement, we think it would be helpful to future litigants to express some general comments as to when a cause of action in quantum meruit accrues. We disagree with the California rule which permits the attorney’s action to commence only when the contingency stated in the original agreement has occurred — i. e., when the client has achieved recovery either by settlement or judgment. We think the New York rule is the more logical since it permits the action immediately upon discharge. Adams v. Fort Plain Bank, 36 N.Y. 255 (1867); Tillman v. Komar, 259 N.Y. 133, 181 N.E. 75 (1932). It seems inconsistent on the one hand to hold that an attorney’s exclusive remedy is quantum meruit, since it is founded on an implied assumpsit or promise by the defendant to pay the plaintiff as much as he reasonably deserved to have for his labor, Black’s Law Dictionary (Rev. 4th ed. 1968), yet hold that until the contingency stated in the contract occurs, the discharged attorney’s cause of action does not accrue. After discharge neither the attorney nor client is bound by the terms of the contract, therefore no contingency stated in the rescinded contract should govern the right of the attorney to bring his action immediately following discharge.

The option of electing whether to proceed immediately upon discharge or to defer the action until the ultimate accomplishment of the contingency is that of the displaced attorney. Thus if he chooses the former alternative he is entitled to seek his quantum meruit fee immediately without regard to the successful completion of litigation in the case which he contracted with his former client. Paolillo v. American Export Isbrandtsen Lines, Inc., 305 F.Supp. 250 (S.D.N.Y.1969). If he seeks a fee award following discharge, the court may in its discretion decide that the attorney’s impact on the actual outcome of the litigation is an essential factor which must be considered in determining the value of the services rendered. For example, New York courts often grant declaratory judgments holding that the discharged attorney is entitled to recover, yet defer an award of attorney’s fees until after the case in controversy is brought to a conclusion. E. g., Friedman v. Gordon, 260 App.Div. 1023, 23 N.Y.S.2d 757 (2d Dep’t. 1940), aff’d. 285 N.Y. 630, 33 N.E.2d 555 (1941); Shattuck v. Pennsylvania R. Co., 48 F.2d 346 (W.D.N.Y.1931).

If he decides to delay his action until the occurrence of the contingency so that the court may weigh the impact of his services on the final outcome of the case, he has the right to take a contingent amount or percentage also based upon quantum me-ruit, the amount to be determined at an ancillary proceeding at the conclusion of the case. Id. If, however, the former client objects to the displaced attorney’s request for a percentage lien, the request will be denied. Brown v. Moffitt, 5 App.Div.2d 1002, 173 N.Y.S.2d 716 (2d Dep’t. 1958).

We think the reasons expounded in both New York and other jurisdictions have more to commend the adoption of a rule permitting the cause to accrue immediately upon discharge rather than the inflexible California rule which requires the displaced attorney who may have performed substantial services prior to discharge to defer his action until the ultimate occurrence of the contingency, which may never happen or be inordinately prolonged due to protracted litigation.

Sohn also argues that his quantum meruit recovery of $950 from a total legal fee of $30,000, obtained by the replacing attorneys, was inadequate considering the value of services which Sohn had performed prior to discharge. Essentially, the dispute before us is between the displaced attorney and the substituted attorney. Sohn is seeking a lien on the proceeds of the settlement. In our view the lower court erred in refusing to consider what effect, if any, Sohn’s services in the workmen’s compensation claim contributed to the ultimate recovery of $75,000 by the substituted attorney.

The determination of the reasonable value of Mr: Sohn’s efforts is complicated because he had received authority from his client to handle three claims simultaneously: the personal injury protection claim against Brockington’s insurer, the workmen’s compensation claim, and the common law tort claim. Prior to discharge Sohn had successfully prosecuted the first two claims and had entered into negotiations with the tortfeasor’s insurer concerning possible settlement of the last. It appears from the record that the insurer, during negotiations with Sohn, never contested liability — only the extent of Brockington’s injuries. Indeed the local adjuster for the tortfeasor’s insurer had offered to settle Brockington’s claim for $10,000 but the offer was rejected. Additionally, on February 11 and 15, 1977, after discharge attorney Sohn sent to the substituted attorney numerous medical records from his office, which had been received by him prior to discharge, and, while used primarily in the workmen’s compensation claim, might have had a decisive impact in the tort claim. Sohn testified without contradiction that the physician who was instrumental in obtaining recovery for Brockington in the action against his employer was “the key to the tort claim’s value.”

When the displaced attorney or the court elects to measure the value of the attorney’s services by the amount recovered, it is absolutely imperative that the court determine what impact, if any, the attorney’s services prior to discharge had on the ultimate recovery. If the substituted attorneys relied primarily upon Mr. Sohn’s work product in achieving a settlement on behalf of Brockington, then it is obvious that Sohn has been shortchanged. “[T]he result of the trial and recovery . . not infrequently are due to the preliminary conduct of the case, . . Shattuck v. Pennsylvania R. Co., supra at 348. The lower court, no doubt assuming that Sohn would be paid a fee for his services in the workmen’s compensation claim as required by Section 440.34, Florida Statutes (1977), in essence discounted the value of those labors in evaluating the fee it awarded Sohn in the tort proceeding. Yet Sohn’s services to his client during prosecution of both claims appear to be inextricably intertwined. It appears from the answer filed to interrogatories in the tort action by Brockington and his later attorney that both relied essentially upon the same physicians as were earlier used during the workmen’s compensation action.

We feel, based upon the record, that fairness requires this cause to be remanded to the trial court for further consideration of Mr. Sohn’s quantum meruit claim to the extent that medical reports and witnesses, utilized in the workmen’s compensation claim and obtained by Mr. Sohn, may have influenced the ultimate settlement recovery with the tortfeasor's insurer. If his efforts had a substantial impact upon the amount recovered, the court should re-evaluate the apportionment of the contingent fee award between the attorneys.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

      . The court also left undecided the question whether the cause of action accrued either upon discharge or upon the occurrence of the contingency. 328 So.2d at 196.

      . This right is recognized in Florida. Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538 (1938).

      . One of the points raised by attorney Sohn is that he is entitled to recovery under the terms of the contract because the sole reason for his discharge was that he refused to advance money to his client for purposes unrelated to the litigation, and had he done so, it would have been in violation of the code of professional responsibility.

      .For example, in In re Montgomery, 272 N.Y. 323, 6 N.E.2d 40 (1936), an attorney retained for $5,000 to settle an estate was discharged after he had performed five-sixths of his labors toward completion of the settlement. He was awarded $13,000 in his quantum meruit action

      . There is no rational basis in permitting a quantum meruit recovery in the form of a percentage of a client’s future recovery since the court cannot determine the value of all the services performed until the former client’s case is concluded by either judgment or settlement. See note, Attorney-Client Relationship: Remedies of Attorneys Discharged Without Cause in Contingent Fee Contract Situations, 37 Albany L.Rev. 364, 382-83 (1972).

      . If he delays his action until the occurrence stated in the contingency, he runs the risk of being barred by the statute of limitations in a jurisdiction which has adopted the rule that the cause of action accrues immediately upon discharge. Cf. Wright v. Johanson, 132 Wash. 682, 233 P. 16 (1925).

      . Georgia, Watson v. Columbia Min. Co., 118 Ga. 603, 45 S.E. 460 (1903) and Washington, Wright v. Johanson, supra at fn. 6, also follow the immediate recovery theory while Oklahoma, First Nat. Bank & Trust Co. of Tulsa v. Bassett, 183 Okl. 592, 83 P.2d 837 (1938), follows the California rule.


source: Caselaw Access Project

author: PER CURIAM. ERVIN, Judge,

license: Public Domain

text:
    TUTTLE/WHITE CONSTRUCTORS, INC., Appellant, v. STATE of Florida, DEPARTMENT OF GENERAL SERVICES, and Gorham Construction Company, Appellees.
    No. LL-39.
    District Court of Appeal of Florida, First District.
    June 19, 1979.
    Rehearing Denied Aug. 1, 1979.
    Jon M. Wilson, of Van Den Berg, Gay & Burke, P. A., Orlando, for appellant.
    Spiro T. Kypreos, Tallahassee, for appel-lee Dept, of General Services.
    Robert D. Melton, Orlando, for Gorham Const. Co., appellee.
   PER CURIAM.

Appellant contractor appeals a final order of the Department of General Services of the State of Florida adopting a report of a hearing officer of the Division of Administrative Hearings recommending that appellant’s claims for additional compensation over and above the contract price, under a contract with the Department to construct a youth detention facility, be denied due to the untimely filing of notice of such claims.

We affirm. Articles 8.3.1, 8.3.2 and 12.2.1 of the General Conditions of the contract for construction (AIA Document A-201) which pertain to claims on the part of the contractor (appellant herein) for additional compensation based upon claims for delays or extensions of time not due to the contractor’s fault, or upon claims for additional costs incurred by the contractor in the performance of the contract, require that all such claims shall be made in writing to the architect no more than twenty days after the occurrence of the event giving rise to any such claim, or else any such claim shall be waived or deemed invalid. (Emphasis supplied). The hearing officer found that in each instance for which a claim was made the contractor had failed to give the notice of claim within the prescribed twenty day limitation period.

Our examination of the record herein leads us to the conclusion that these findings of the hearing officer as to each claim of the contractor is supported by substantial competent evidence and that we should not substitute a contrary judgment for that of the agency which is based upon such evidence. McDonald v. Dept. of Banking and Finance, (1977, Fla.App. D1) 346 So.2d 569; Pasco County School Board v. Florida Public Employees Relation Commission, et al., (1977, Fla.App. D1) 353 So.2d 108; U. S. Y. & T. Industries, Inc. f/k/a Union Stockyards & Transit Company of Chicago v. Charolais Herds & Ranchers, Inc., (1979, Fla.App. D1) 367 So.2d 1084, and cases cited therein.

Affirmed.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I disagree with the finding of the agency that Tuttle/White’s claim is barred because a written claim for damages was not filed pursuant to the provisions of the contract requiring the filing within 20 days. In my view, neither article 8.3.2 or 12.2.1 of the general conditions is relevant to a claim for delay damages. The former article requires that all claims for extension of time shall be placed in writing with the architect no more than 20 days after the occurrence of the delay. Section 8.3.4 of article 8, however, states that none of the provisions of that article “exclude[s] the recovery of damages for delay by either party under other provisions of the Contract Documents.” Article 12.2.1 requires, if the contractor wishes to make a claim for an increase in the contract sum, written notice be given to the architect within 20 days after the event giving rise to the claim. Article 12.2.1 also does not govern damages for breach of contract. It applies to claims seeking an increase in the contract sum which, for example, are permissible when the parties agree upon change orders which may have the effect of increasing the contract sum. Article 5 of the contract, governing the contract sum, states the amount the owner is to pay the contractor and provides also that the sum is “subject to additions and deductions by Change Orders as provided in the Conditions of the Contract . . . .” Article 12.2.1 of the general conditions explains that the

[o]wner, without invalidating the Contract, may order Changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and the Contract Time being adjusted accordingly. All such Changes . . . shall be authorized by Change Order, and shall be executed under the applicable conditions of the Contract Documents, (e. s.)

It is clear that articles 8.3.2 and 12.2.1 of the general conditions govern changes which are modifications of the contract, agreed upon by both parties, not breaches of the contract.

The applicable article, which governs the procedure for filing claims for delay damages, is article 7.4.1, providing that if either party suffers damages because of any act or omission by the other party, a claim shall be made in writing “to such other party within a reasonable time after the first observance of such injury or damage.” (e. s.) In my view Tuttle adequately complied with the only condition in the contract which was relevant to its claim.

While Tuttle did not provide the architect in writing with its specific claim until January 13, 1976, well after the time Tuttle was first aware of the delay, nevertheless, prior to that date, the parties had frequent communications between one another concerning delays which Tuttle had encountered at the job site, allegedly due to the failure of the predecessor contractor, Gorham Construction Co., to prepare the site in an adequate manner so that it could proceed. For example, on May 13,1975, less than 30 days after Tuttle had proceeded under the contract, the minutes of a meeting held with the contractor, the supervising architects and a representative of DGS reflected that an employee of Tuttle had asked DGS “for their opinion concerning claims for delays in the awarding of their contract.” (e. s.) A letter written the following day from DGS’s products manager confirmed that Tut-tle/White had asserted it was “heavily damaged financially because their crews [could not] proceed at the rate they had anticipated.” (e. s.) Indeed, from the very inception of the project Tuttle had consistently complained of delays at the site because of Gorham’s failure to complete that part of its assigned work. These delays were the alleged cause of the damages which led to Tuttle’s letter of January 13, 1976.

It is clear from the record that during the existence of the contract the parties had dealt with each other in a very informal manner. Their course of dealing was not unlike that of the parties in Fletcher v. Laguna Vista Corporation, 275 So.2d 579 (Fla. 1st DCA 1973), who were laboring under the same AIA contract. There, the owner contested a change order because it was signed only by the architect contrary to the provisions of article 12.1.1, which required such order to be signed by both the architect and the owner. In affirming the trial court’s judgment which had construed the contract in favor of the contractor, we stated:

[T]he printed AIA contract is replete with ambiguities, contradictions and is an attempt to give all things to both parties. In such a situation the manner in which the parties themselves have interpreted the contract through their course of dealings is of utmost importance. Id. at 580-81.

Since the parties were not bound by the terms of articles 8.3.2 or 12.3.1 of the contract, in my view the reasonable time provision of 7.4.1 prevails. I conclude from the record that DGS had reasonable notice of the contractor’s claim for delay damages. DGS never reached the merits of the contractor’s claim and ruled only on the jurisdictional issue by precluding Tuttle’s claim because it was not filed within 20 days. I would, therefore, remand the case for a hearing on the merits.


author: PER CURIAM.

text:
    James H. CAIN, Appellant, v. G. H. HUDSON, Sr., et al., Appellees.
    No. LL-119.
    District Court of Appeal of Florida, First District.
    June 19, 1979.
    Thomas K. McKee, Jr., Lake City, for appellant.
    Michael C. Murphy, Lake City, for appel-lees.
   PER CURIAM.

This cause is before us on Order to Show Cause why sanctions should not be imposed against Thomas K. McKee, Jr., attorney for appellant herein, for violation of the Florida Appellate Rules.

The facts as shown by the record are that notice of appeal to review the final judgment of the Circuit Court, Columbia County, was filed here on September 5, 1978. Appellant’s initial.brief was due November 14, 1978, but that day passed without a brief being filed in this Court. Finally on April 20, 1979, this Court, sua sponte, ordered that appellant show cause within ten days why the appeal should not be dismissed for failure to comply with the rules. At this point appellant’s brief was more than five months late. On May 3,1970, this Court closed appellant’s case. On May 8, 1979, McKee filed his motion to vacate and motion for extension of time. In his motion McKee states that he “certified appellant’s brief in this Court on December 5, 1978.”

On May 15, 1979, this Court entered an Order vacating the certification of the case closing and granting appellant twenty days from that date within which to file his record on appeal and brief. The Order also directed the appearance of attorney McKee before this Court on June 1, to respond citing Winstead v. Adams, 363 So.2d 807 (Fla. 1st DCA 1978).

Prior to the date set for McKee’s appearance before us, he filed a response to Order to Show Cause and appellant’s brief, a two-page brief which is not in compliance with Florida Rules of Appellate Procedure. McKee’s response again asserts that he certified appellant’s brief to this Court on December 5, 1978.

On consideration of the record before us, and having heard the response of attorney McKee in this cause, we find:

(1) That this Court has no record of any brief being filed in this case prior to May 31, 1979.

(2) That McKee’s assertion that he “certified” to this Court appellant’s brief on December 5, 1978, an assertion which we take to mean that he mailed or caused to be delivered to this Court and to opposing counsel his brief is unsupported by affidavit or by any statement of opposing counsel that he received a copy, and is therefore subject to question.

(3) That in the event such a brief was mailed to the Court and to opposing counsel on December 5, 1978, but was never delivered through no fault of McKee, said brief was nonetheless late since it should have been filed November 14, 1978.

(4) That McKee has offered no explanation of his failure to move timely for extension of time for filing the appellant’s brief; has failed to furnish the record on appeal as required by Rule 9.200, Florida Appellate Rules, or to seek an extension of time for the filing of said record.

(5) That McKee’s client, appellant Cain, appeared before this Court at the time of McKee’s appearance on the show cause order on June 1, and stated his dissatisfaction with the representation, or lack of representation, he has received from McKee, a dissatisfaction which a review of the record here, including the brief filed by McKee on behalf of appellant, amply justifies.

Accordingly, it is the Order of this Court that:

(1) Thomas K. McKee, Jr., pay to the Clerk of this Court a fine of $300.00, said sum to be paid within twenty days of this Order, to wit: July 9, 1979.

(2) Further proceedings are stayed for a period of thirty days from the date of this Order within which appellant Cain may employ new counsel, should he desire to do so. On filing of any new brief for appellant, the brief filed by McKee shall be stricken.

(3) Thomas K. McKee, Jr., is hereby publicly reprimanded for his flagrant disregard of the appellate rules and admonished that his failure to comply with the dictates of this Order will subject him to the contempt powers of the Court.

(4) The Clerk of this Court is directed to certify a copy of this Opinion to the Florida Bar for such consideration as it deems appropriate.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Chester Craig CAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. LL-337.
    District Court of Appeal of Florida, First District.
    June 19, 1979.

      James B. Gibson, Public Defender, and Charles E. Pellicer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant urges he is entitled to credit for the time he spent in the state hospital under commitment as a mentally disordered sex offender. Section 917.218, Florida Statutes (1977). We agree that appellant is entitled to such credit. Hall v. State, 358 So.2d 891 (Fla. 2d DCA 1978). Accordingly, the judgment is affirmed, but the cause is remanded with directions to give appellant credit for the time he spent in the mentally disordered sex offender program.

McCORD, C. J., and BOOTH and LARRY G. SMITH^ JJ., concur.


text:
    Glenn Joseph VALERIO, Appellant, v. STATE of Florida, Appellee.
    Nos. LL-383, LL-384.
    District Court of Appeal of Florida, First District.
    June 19, 1979.
    William T. Lassiter, Jr., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant pleaded nolo contendere to two charges of cocaine sale after the trial court denied his motion to compel disclosure of the identity of a confidential informant. He appeals both convictions, claiming error in the court’s denial of the motion. We affirm, noting first that appellant’s motion alleging the informant’s involvement was unsworn, and second that appellant rejected the state’s offer to have an in camera hearing to determine whether disclosure was necessary to his defense. See Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), reversed on other grounds, 357 So.2d 706 (Fla.1978); Beasley v. State, 354 So.2d 934 (Fla. 2d DCA 1978).

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Edward Vose BABCOCK, III, Appellant, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT, Appellee.
    No. 78-872.

    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Bailey & Dawes and Jesse C. Jones, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Edward J. Atkins, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The order under review is reversed and the cause remanded. Since the alleged negligent acts of the non-resident defendant took place before the effective date of Section 48.193, Florida Statutes (1973), but after the effective date of Section 48.182, Florida Statutes (1970), the trial court erred in ruling that Section 48.182 did not apply, as it is the prior long-arm statute which governs service on the defendant. See, AB CTC v. Morejon, 324 So.2d 625 (Fla.1975); Griffis v. J. C. Penney Company, Inc., 333 So.2d 503 (Fla. 1st DCA 1976); American Motorists Insurance Company v. Hussain, 363 So.2d 1175 (Fla. 3d DCA 1978). See also, Genaw v. Volkswagenwerk A.G., 536 F.2d 1039 (5th Cir. 1976).

Reversed and remanded.


text:
    Linda J. HART et al., Appellants, v. DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION, Appellee.
    No. 78-1112.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Leib & Popper and David Popper, Miami, for appellants.
    Stephen S. Mathues, Tallahassee, for ap-pellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See, Crawford v. Division of Retirement, 369 So.2d 689 (Fla. 1st DCA 1979).


author: PER CURIAM. SCHWARTZ, Judge

text:
    Renae Irene MUSKIN, Appellant, v. Joe MUSKIN, Appellee.
    No. 78-1319.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Morrow & Morrow and Steve G. Morrow, Jr., Miami, for appellant.
    Klein, Oshinsky & Solomon and Michael B. Solomon, Hallandale, for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed upon the authority of Salomon v. Salomon, 196 So.2d 111 (Fla.1967); White v. White, 338 So.2d 883 (Fla. 3d DCA 1976); and Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977).

SCHWARTZ, Judge

(dissenting).

By entering judgment on the pleadings for the appellee-husband, the trial judge ruled that, as a matter of law, the agreement between the parties was a “property settlement” which was not subject to modification. I believe that the issue should not have been determined upon the face of the agreement alone, and that, as the court held in the recent case of Coffin v. Coffin, 368 So.2d 105, 107 (Fla. 4th DCA 1979), which is very closely on point, “. . . the parties’ intentions [should] be fully explored at trial See also Cambest v. Cambest, 367 So.2d 686 (Fla. 3d DCA 1979); Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA 1979). I would therefore reverse the judgment below and remand the cause for trial.


text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Foreign Corporation, et al., Appellants, v. Hilda Borges Jou DUNLAP, Appellee.
    Nos. 78-1500, 78-1512 and 78-1577.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Welbaum, Zook, Jones & Williams and J. Bruce Hoffmann, Carey, Dwyer, Cole, Sel-wood & Bernard and Steven R. Berger, Thornton, Conroy & Herndon and John Edward Herndon, Jr., Miami, for appellants.
    Everett H. Dudley, Jr., Hialeah, for ap-pellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Fidelity and Casualty Company of New York, one of the defendants in the declaratory action, appeals a summary judgment ordering it to extend coverage on a policy which had been issued to Hilda Borges Jou Dunlap. The summary judgment also determined a question of liability, which had been presented in the alternative against Reserve Finance Corporation and Hialeah Insurance Company. All three companies appealed, the cases were consolidated, and the appellants filed briefs. Thereafter, the appellee confessed error as to Reserve and Hialeah, and requested that the summary judgment be reversed as to them.

We find no error in the summary judgment as to Fidelity, and affirm same. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla. 1st DCA 1962); All American Life & Casualty Company v. Rose, 145 So.2d 555 (Fla. 3d DCA 1962); Tavares v. Allstate Insurance Company, 342 So.2d 551 (Fla. 3d DCA 1977); Bared v. Miami Professional Sports Ltd., 353 So.2d 167 (Fla. 3d DCA 1978); F&R Builders v. Lowell Dunn Company, 364 So.2d 826 (Fla. 3d DCA 1978). Therefore, upon the confession of error, the summary judgment is reversed as to Reserve and Hialeah and affirmed as to Fidelity.

Affirmed in part; reversed in part.


text:
    STATE of Florida, Appellant, v. David Carl CARROLL, Appellee.
    No. 78-1643.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Janet Reno, State’s Atty., and Arthur Joel Berger, Asst. State’s Atty., for appellant.
    duFresne & duFresne and Elizabeth du-Fresne, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The order suppressing evidence based on the unreasonable search and seizure grounds is reversed and the cause remanded to the trial court with directions to reconsider its ruling and thereafter enter an appropriate order on the motion to suppress in the light of Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).

The above decision [which, in all fairness to the trial judge, was rendered subsequent to the order under review] raises an issue not determined by the trial court, namely, whether the police gave certain advise-ments to the defendant on his right not to consent to the search, and, if so, whether such advisements broke the chain of presumptive coercion created by the prior illegal stop of the defendant so as to render voluntary the subsequent consent to search. The trial court may, in its discretion, take additional testimony and evidence upon remand to resolve this issue.

Reversed and remanded for further proceedings.


author: PER CURIAM. HUBBART, Judge

text:
    A. G., a child, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1732.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Weiner, Robbins & Tunkey and Neil M. Nameroff, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin F. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the adjudication of delinquency appealed from and remand the cause to the trial court with directions to discharge the juvenile from the cause based on the authority of Morgan v. State, 355 So.2d 149 (Fla. 1st DCA 1978). In my view, Morgan is indistinguishable from the instant case and clearly calls for a reversal and discharge herein for lack of sufficient evidence establishing beyond a reasonable doubt that the juvenile aided and abetted in the offense with which he was charged and adjudicated delinquent. State v. V. D. B., 270 So.2d 6 (Fla.1972).


text:
    Wilda QUINONES, Individually and as Natural Guardian of Erick Urena Quinones, a minor, Appellant, v. SEARS, ROEBUCK & COMPANY, Appellee.
    No. 78-2093.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Helliwell, Melrose & DeWolf and Kenneth F. Claussen, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The summary final judgment entered in favor of the defendant Sears, Roebuck & Company in this negligence action is reversed and the cause remanded for further proceedings. On this record we cannot say that the defendant’s proof adduced in support of its motion for summary judgment was sufficient as a matter of law to negate the plaintiff’s cause of action for negligence against the defendant as set forth in the complaint. As such, a summary judgment at this stage of the proceedings was improper. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966). See Burdine’s Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462 (1941).

Reversed and remanded.


text:
    Edward A. KUPPERMAN, Appellant, v. George POWELL, Appellee.
    No. 78-2372.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Male, Bloom, Bodne, Kuperstein & Eisn-berg and Sheldon Evans, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Tino v. Outdoor Media, Inc., 242 So.2d 196 (Fla.3d DCA 1970).


text:
    Willie TIMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-574.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The order under review is reversed and the cause is remanded to the trial court with directions to discharge the defendant from the cause based on the authority of Solomon v. State, 341 So.2d 537 (Fla.2d DCA 1977); Moss v. State, 330 So.2d 742 (Fla.1st DCA 1976), and Ware v. State, 231 So.2d 872 (Fla.2d DCA 1970).


text:
    Cragg GOSS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1034.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.

      Gragg Goss, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of his motion is affirmed.

Affirmed.


author: MOORE, Judge.

text:
    SENTRY INDEMNITY COMPANY, Appellant, v. HENDRICKS ENTERPRISES, Appellee.
    No. 77-885.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    James W. Markel and Alan F. Scott, Jr., of «Graham, Markel & Scott, Orlando, for appellant.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, fcr appellee.
   MOORE, Judge.

This appeal involves the entry of a default judgment in a garnishment after judgment action. We affirm in part and reverse in part.

Subsequent to obtaining a final judgment against the judgment debtor the appellee (hereinafter referred to as garnishor) commenced garnishment proceedings against the appellant (hereinafter referred to as garnishee) by an unsworn motion for writ of garnishment after judgment. That motion alleged a judgment in the sum of $3,436.15 plus costs of $39.00 and that the garnishor expected to recover the sum of $1,800.00 from the garnishee. A writ of garnishment was duly executed and served upon the garnishee by serving the Insurance Commissioner and Treasurer of the State of Florida who, in turn, forwarded the writ and motion to the garnishee at its Orlando office. An agent of the garnishee received the writ and motion, and not being familiar with this type of process, contacted the attorney for the garnishor. After a few days and receiving no satisfactory reply the agent for the garnishee forwarded the papers to his home office in the State of Wisconsin. The record fails to reflect what transpired between the forwarding of the papers to Wisconsin and the time when the home office was notified that a final judgment had been entered against the garnishee in the total sum of $3,490.15.

The record reflects that the home office of the garnishee was not aware of the garnishment proceedings until February 23, 1977 when correspondence was received from the garnishor’s attorney indicating that a final judgment had been entered against the garnishee. The garnishee filed a motion to set aside the default judgment on March 25, 1977 which together with the affidavits attached thereto, indicated a meritorious defense to the garnishment action and alleged excusable neglect in failing to file an appropriate response. The motion to set aside the default judgment was denied on April 18,1977. It is from the entry of the final default judgment and denial of the defendant’s motion to set aside the default judgment that this appeal stems.

The garnishee initially contends that the trial court erred in failing to set aside the default judgment entered against it. A showing of a gross abuse of the trial court’s discretion is necessary to reverse a ruling on a motion to vacate and set aside a default. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); Burbank v. Southland Corp., 345 So.2d 1108 (Fla.1st DCA 1977); Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364 (Fla.2d DCA 1977). In the instant case the record reflects that the garnishee’s agent received the writ and motion therefore. After a few days he forwarded the writ to his home office. No effort was made to demonstrate what happened to the writ after it left the agent’s office, nor does the record reflect any excuse for the failure to respond within the appropriate time. We hold that the trial court did not err in finding that the garnishee had failed to demonstrate excusable neglect. Thus, there is no showing of a gross abuse of discretion in denying the motion to set aside the default.

We now turn to the final judgment against the garnishee for the full amount of the garnishor’s claim against the judgment debtor. In entering the final judgment on default the trial court had before him an unsworn motion for writ of garnishment after judgment, proof of service on the garnishee, a default properly entered by the clerk of the court and the garnishor’s un-sworn motion for final judgment on default. No evidence was received.

By suffering a default to be entered against him the defaulting party admits only the well pleaded facts and acquiesces in the relief sought. Williams v. Williams, 227 So.2d 746 (Fla.2d DCA 1969); Bay Products Corp., v. Winters, 341 So.2d 240 (Fla.3d DCA 1976). See also, Hauser v. Dr. Chatelier’s Plant Food Co., Inc., 350 So.2d 548 (Fla.2d DCA 1977). Unlike the well reasoned opinion in Hauser, supra, the motion for writ of garnishment and the writ here each specified the sum of $1,800.00 as that sought by the garnishor from the garnishee. That was the amount for which the garnishee suffered a default, and by so doing, admitted was due and owing to the judgment debtor. Under these circumstances we hold that $1,800.00 was “the amount of the plaintiff’s claim” as that term is used in Section 77.081, Florida Statutes (1977) and the trial court erred in entering final judgment in excess of that amount plus interest and costs.

Accordingly, the order denying the motion to set aside the default is affirmed; the final judgment is reversed; and this cause is remanded with instructions to enter judgment in favor of the garnishor in the amount of $1,800.00 plus interest and costs.

AFFIRMED in part; REVERSED in part; REMANDED.

LETTS and BERANEK, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Barbara IMPELLITIER, Appellant, v. Kenneth IMPELLITIER, Appellee.
    No. 77-1580.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    S. Robert Zimmerman, Pompano Beach, for appellant.
    Harry D. Dennis, Jr., Pompano Beach, for appellee.
   DOWNEY, Chief Judge.

The final judgment entered in this case, among other things, dissolved the marriage of the parties, granted custody of a child to the wife, awarded the wife child support, and granted the husband’s prayer for partition of the jointly owned marital domicile and personal property therein, but deferred “a specific order thereon until a motion so requesting is filed by either party hereto.”

Appellant attacks the following features of the final judgment: 1) the granting of appellee’s prayer for partition; 2) the failure to award possession of the marital home to appellant and the child, 3) the failure to require the appellee to pay for medical insurance for the child, and 4) the provision of the judgment retaining jurisdiction to issue “any further order as equity may deem just.”

We have examined each of the challenged provisions closely. The granting of partition of the marital home was supported by adequate pleadings in appellee’s complaint. However, as appellee candidly admitted, the partition as to the personal property had no support in the pleadings.

The other provisions of the judgment are discretionary calls by the trial judge and do not require our interference. Should the trial judge attempt to exercise inappropriate jurisdiction under the retention provision of the judgment, there will be time enough to limit such exercise to matters allowable by law.

Accordingly, the judgment appealed from is affirmed in all respects except the provision thereof providing for partition as to the personal oroperty of the parties. That provision is reversed and the cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; and remanded for further proceedings.

ANSTEAD and LETTS, JJ., concur.


author: R. WALLACE PACK, Associate Judge.

text:
    Roscoe WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-2561.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    Louis R. Beller, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
   R. WALLACE PACK, Associate Judge.

On August 19, 1977, Roscoe Washington was charged with escape. On September 22,1977, Washington filed a notice of intention to rely on insanity defense. Pursuant to a bifurcated trial Washington was, on November 2, 1977, found by a jury to be guilty of escape. He was, on November 3, 1977, found by the same jury to be sane at the time the offense was committed. On November 3, 1977, Washington was adjudicated guilty of escape and sentenced to 15 years imprisonment. Washington now appeals from the judgment of the trial court. We reverse.

At the commencement of Washington’s trial on November 1, 1977, the court informed counsel that a bifurcated trial would be conducted on the issues of guilt and sanity.

THE COURT: This is in regard to what you call the so-called ground rules in regards to the new statute 77-312 House Bill No. 5 that became effective on September 2nd of this year. As far as the ground rules, the Court is going to very strictly interpret 918.017, insanity, and paying particular attention through the course of the trial where there is a finding of guilty or innocence regarding the defendant, there will be no mention of any nature whatsoever or reference in regard to the possibility of a plea of insanity. I would incorporate that section as to what the ground rules the Court is concerned with is 77 — 312, 918.-017.
MR. BELLER: Your Honor, I would object in this respect, in effect if there is going to be a plea of insanity, it shall be presented. You do not exclude the factors there will be a plea of insanity from being presented to the jury; and in addition, Your Honor, if it is the Court’s intention to use the same jury it will seriously restrict us on voir dire if we are limited in the mentioning of insanity of any type that might be raised.
In addition, this is another aspect which doesn’t quite go towards the insanity. It goes to the intent to commit the crime of escape — which can be adduced by circumstantial evidence. But it is a subjective thing and part of our defense involves— which would not involve the strict definition of insanity.
THE COURT: I don’t think I can buy that. Intent is an element of the particular crime, is it not?
MR. BELLER: Well, it’s a determination.
THE COURT: That is a jury consideration.

By reason of the ground rules as set forth by the court, the defense was unable to examine the jury concerning the defense of insanity. The defendant filed his notice of intention to rely upon an insanity defense and to prohibit a voir dire examination of prospective jurors concerning that defense is error.

Subsequent to the trial of this case, our Supreme Court in State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1979) declared Chapter 77-312, Section 1, Laws of Florida, creating F.S. 921.131(1) unconstitutional as raising an irrebuttable presumption of intent. This irrebuttable presumption was well illustrated herein. In the bifurcated trial given Mr. Washington the defense was not allowed to show a lack of intent to commit the crime of escape, clearly a denial of due process.

We find no merit in the other points raised on appeal.

Accordingly, the judgment of the trial court is reversed and the case remanded for a new trial.

MOORE and BERANEK, JJ., concur.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Frank Alfred UMBRECHT, Appellee.
    No. 78-553.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Martin Lemlich, Miami, for appellee.
   BERANEK, Judge.

This is an appeal by the State of an order dismissing an information. The defendant was not in custody at the time an information against him was filed. Defendant was arrested more than twenty-one days after the filing of the information. Defendant requested an adversary preliminary hearing pursuant to Fla.R.Crim.P. 3.131(b)(1). At this hearing, the State declined to present evidence and the trial court dismissed the information. We reverse. Fla.R.Crim.P. 3.131(b)(5) states what action may be taken as a result of a finding of no probable cause. In such circumstances the defendant is to be released under specified conditions. The Rule specifically states that, “Such release does not, however, void further prosecution by information or indictment . . .” In considering a non-adversary preliminary hearing, this Court has, previously ruled that the finding of no probable cause does not authorize dismissal of the information. State v. Antel, 333 So.2d 76 (Fla. 4th DCA 1976). The case at hand involved an adversary preliminary hearing but this distinction did not warrant dismissal of the information. The order below is reversed and the cause remanded with instructions to reinstate the information.

REVERSED AND REMANDED WITH INSTRUCTIONS.

DAUKSCH and LETTS, JJ., concur.


text:
    T. V. NURSERIES, INC., a Florida Corporation, Appellant, v. Tolly VINIK and Elsie J. Vinik, his wife, Appellees.
    No. 78-666.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    D. June Owen of Buck & Tatum, P. A., Fort Lauderdale, for appellant.
    Frederick C. Heidgérd of Cabot, Wenkst-ern & Casteel, Fort Lauderdale, for appel-lees.
   PER CURIAM.

This is an appeal from a judgment awarding damages to the lessors, Tolly and Elsie Vinik, because of the alleged breach and termination of a lease by the lessee, T. V. Nurseries, Inc. The lease contained a valid liquidated damages clause providing for the forfeiture of a security deposit upon the wrongful termination of the lease by the lessee. Kanter v. Safran, 68 So.2d 553 (Fla.1953). The lessors claimed and apparently the trial court concluded that lessee, and not lessors, had terminated the lease by repudiation of the terms of the lease and abandonment of the premises. We find no error in such conclusion. However, in addition to allowing the lessor to retain the security deposit, the trial court awarded the lessors additional damages for breach of the lease. Under the terms of the lease we believe the lessor was limited to retaining the security deposit as liquidated damages upon the lessee’s default and termination.

Accordingly, the judgment of the trial court is reversed with directions that judgment be entered in accordance with the terms of this opinion.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


text:
    Arlene FESSER, Petitioner, v. STATE of Florida, Respondent.
    No. 78-2267.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.

      Robert W. Pope, St. Petersburg, for petitioner.
    No appearance for respondent.
   MOORE, Judge.

Petitioner, by petition for writ of common law certiorari, seeks review of a decision of the Circuit Court sitting in its appellate capacity. As Judge Beranek stated in Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979), such review is of a limited nature. Our review of the record in the instant case fails to indicate a departure from the essential requirements of law with respect to the steps necessary to afford petitioner procedural due process and the petition for certiorari is, therefore, denied.

CERTIORARI DENIED.

DOWNEY, C. J., and BERANEK, J., concur.


author: ANSTEAD, Judge.

text:
    CITY OF LAUDERDALE LAKES, a Florida Municipal Corporation, Howard Craft, Mayor of the City of Lauderdale Lakes, Alfonso Gereffi, Jerome J. Cohan, Morris Klein, Lyman L. Allen, Louis Greenwald, Harry Kaufman, City Councilmen, and Ben Eigner, Building Official, Appellants, v. Herman CORN, Trustee, Appellee.
    No. 78-2438.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    Mallory H. Horton, of Horton, Perse & Ginsberg, Miami, and James C. Brady, P.A., Fort Lauderdale, for appellants.
    Gary M. Farmer, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.
   ON MOTION TO REVIEW ORDER REQUIRING SUPERSEDEAS BOND

ANSTEAD, Judge.

This cause is before the court upon the appellant’s motion to review an order requiring the city to post a supersedeas bond in the amount of 1.14 million dollars for potential damages for delay to the appellee during the pendency of the appeal. Part of the relief granted the appellee in the judgment on appeal was a determination that appellee was entitled to develop certain property within the city. When the city appealed, the appellee requested the trial court to condition a stay of the final judgment upon the city’s posting of a bond. The appellee then presented expert testimony to the trial court that, based upon anticipated inflation, the cost of the construction and financing of the development would be 2.28 million dollars more in two years than presently.

The city claims that it cannot legally be held liable to the appellee for damages for delay, and therefore it cannot be required to post a bond for such damages. The appellee claims that damages for delay is one of the specific purposes of a supersede-as bond and that such a bond is authorized under the appellate rules and case law.

In Jacksonville v. Brentwood Golf Course, Inc., 338 So.2d 1105 (Fla. 1st DCA 1976), the First District reversed an award for damages for delay during appeal assessed against a city under circumstances similar to those here, except that no bond during appeal had been sought or required. However, the First District stated that a bond covering such damages could have been required; and in such case the city would have been liable on the bond for such damages. Also see City of Miami Beach v. State ex rel. Fountainebleau Hotel Corp., 109 So.2d 204 (Fla. 3d DCA 1959), in which the Third District Court of Appeal, while declining to require such a bond under similar circumstances, noted that such a bond could be required. And in State ex rel. State Board of Trustees v. District Court of Appeal for Second District, 261 So.2d 818 (Fla.1972), the Supreme Court held that while a bond could be required as a condition for granting a stay, such a bond could not be required as a condition to prosecuting an appeal. We are not aware of any Florida decision that has actually upheld an award of damages for delay against a public body after an appeal, with or without a bond.

Under Fla.R.App.P. 9.310(b)(2) a public body is automatically granted a stay upon filing a notice of appeal. The rule further provides that the trial court may impose conditions on the stay or even vacate the stay. Hence, while the stay is automatic, it is not a matter of absolute right, since the trial court retains jurisdiction to vacate or impose conditions upon the stay. Rule 9.310(c)(2) defines the conditions that may be imposed in a supersedeas bond:

The conditions of a bond shall include a condition to pay or comply with the order in full, including costs, interest, fees, damages for delay, use, detention and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may be required by the lower tribunal.

Hence, in the usual case a bond may be required to protect the appellee for damages incident to the delay caused by the granting of a stay pending appeal. We believe the provisions of Rule 9.310(b)(2) authorizing the trial court to vacate or impose conditions upon a stay were intended to afford relief to an appellee from the unjust effects of a stay if the circumstances so require, including vacating the stay or requiring a bond to protect the appellee for damages which a stay may cause.

This condition creates no new cause of action. Jacksonville v. Brentwood Golf Course, Inc., supra. It merely tempers the granting of a stay with the responsibility for the consequences of such stay. By the imposition of such condition the city is not automatically being held legally responsible for damages for delay. Rather, the court is imposing a condition on the city’s receipt of a stay, something the city is not entitled to as a matter of right. The city may accept the condition and receive the stay or may decide to proceed without a stay. If the appellee proceeds to enforce the final judgment under the latter circumstances, however, he does so at the risk of a reversal of the final judgment. In this way each party is free to choose its course of action after judgment knowing in advance the risks involved.

We believe this issue is one of great public interest and accordingly, we hereby certify the following question to the Supreme Court:

May a city be required to post a bond for damages for delay in order to secure a stay of a final judgment that requires the public body to permit the construction of a development project?

Because we have concluded that Rule 9.310(b)(2) does authorize the imposition of a bond for damages for delay, the motion for review is denied.

DOWNEY, C. J., and BERANEK, J., concur.


text:
    HALE MANUFACTURING COMPANY and Employers Casualty Company, Appellants, v. Kathleen G. BAUDO, Hartford Accident & Indemnity Company and Steven B. Stratton, Appellees.
    No. 77-1835.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    Ronnie H. Walker of D’Aiuto, Walker & Buckmaster, Orlando, for appellants.
    Sidney H. Parrish of Troutman, Parrish & Weeks, P. A., Winter Park, for appellee Baudo.
   PER CURIAM.

This is an appeal from an order granting the plaintiff-appellee, Kathleen G. Baudo, a new trial as to the defendant-appellant, Hale Manufacturing Company, on the issues of liability and damages. We remanded 371 So.2d 1042 the cause to the trial court for the entry of an order setting out the reasons for granting a new trial and the trial court entered a detailed order in compliance therewith. Upon review we find no error in the granting of a new trial on liability. Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977). However, the trial court gave no reasons for granting a new trial on the issue of damages and we can find no basis in the record for setting aside the jury’s determination of plaintiff-appel-lee’s damages in the first trial. Accordingly, the order granting a new trial is affirmed in part and reversed in part with directions for further proceedings consistent with this opinion.

ANSTEAD and LETTS, JJ., and JOHNSON, TOM, Associate Judge, concur.


text:
    Joseph Burton LONDON, Appellant, v. STATE of Florida, Appellee.
    No. LL-360.
    District Court of Appeal of Florida, First District.
    June 22, 1979.
    Mark King Leban and Lawrence S. Ber-rín, South Miami, for appellant.
    Jim Smith, Atty. Gen., Lee Mandell and Charles A. Stampelos, Asst. Attys. Gen., for appellee.
   PER CURIAM.

John Burton London appeals his judgment and sentence for possession of marijuana. Our review of the record establishes that the evidence was insufficient to establish possession of the drug.

Accordingly, the judgment and sentence are REVERSED.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Jack MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1058.
    District Court of Appeal of Florida, Third District.
    June 25, 1979.

      Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J. and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on December 13, 1977 (353 So.2d 605) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed December 7,1978, Fla., 366 So.2d 1162, and mandate now lodged in this court, quashed this court’s judgment with directions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on January 16, 1978 is withdrawn the judgment of this court filed in this cause on December 13, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court for proceedings not inconsistent with said opinion. Costs allowed shall be taxed in the trial court (Rule 9.400[b] Florida Rules of Appellate Procedure).


author: DIXON, Justice. MARCUS, Justice

text:
    Orlando N. HAMILTON, Jr. v. Mrs. Evelyn J. McKEE, Administratrix of the Succession of Vera Childress Jackson.
    No. 63605.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.
    Leo A. Miller, Jr., Miller & Schneider, Lake Providence, for defendants-applicants.

      James M. Miller, Hamilton, Carroll & Miller, Oak Grove, for plaintiff-respondent.
   DIXON, Justice.

At issue here is whether the succession representative has the power to obligate the succession to sell its land at private sale without having first obtained an order of court granting the authority to the representative. If not, does the subsequently obtained authorization to sell make enforceable the previously unauthorized, unenforceable agreement to sell?

Before 1938 this problem could not have arisen, because succession property could only have been sold at public sale (authorized by the judge and duly advertised). Since 1938 this is only the second time appellate courts have reached the question.

Act 290 of 1938 permitted for the first time private sales of all kinds of succession property. That act became Title 9, §§ 1451-1454 of the Revised Statutes of 1950, and was replaced by C.C.P. 3261-3263, 3281-3285, 4342, 4554. The Code of Civil Procedure retained provisions permitting succession representatives (C.C.P. 3261, 3271, 3281-3284) and tutors of minors (C.C.P. 4301, 4271) to sell property under their administration, but only with court authorization.

The reason for the requirement of public sale for property under administration, and for its long life as the only means of disposition of such property, is apparent. Public sale was called a “protective measure” by proponents of the private sale statute (Sar-py, Proposed Private Sale of Succession Assets, 12 Tul.L.Rev. 412, 413 (1938)) who argued that “the same protection can be maintained in a private sale” — the protection, of course, of public advertisement and court approval before the representative could possess the authority to sell. Only such protection could prevent the dreaded maladministration — the disposition of succession property or minors’ property for inadequate consideration.

As early as 1831 a sale of succession property without a court order was held to be a nullity in Elliott v. Labarre, 2 La. 326 (1831). Robert v. Brown, 14 La.Ann. 597 (1859) held the same; the following year Smelser v. Blanchard, 15 La.Ann. 254 (1860) held that an executrix was powerless to ratify, by receipt of the purchase price, a sale, void for want of an order of court, from which the terms of the sale cannot vary. These two cases were cited in the Succession of Landry, 128 La. 333, 54 So. 870 (1911) for the proposition that a sale without an order was an “absolute” nullity, and a sale whose terms varied from the order of court was a sale without an order.

Provisions for the sale of a minor’s property by a tutor parallel those relating to succession property, and require an order of court. C.C.P. 4271, 4301, 4341. Cases in this court and the Courts of Appeal involving attacks on the alienation of a minor’s property have not been consistent and uniform, and have been affected by an overriding concern for the protection of the minor. E. g. Touchy v. Gulf Land Co., 120 La. 545, 45 So. 434 (1908); see Oppenheim, The Basic Elements of Tutorship in Louisiana, 44 Tul.L.Rev. 452, 495 (1970). It has been frequently held by this court that the alienation of a minor’s property without court authorization is a nullity.

Of course the issue before us is not precisely the effect of a conveyance of succession property without court authority, but the effect of an agreement between the plaintiff and the succession representative, without authority of court, which was later obtained, to buy and sell succession property. Plaintiff demands specific perform-anee of the contract to sell 160 acres belonging to the succession of Vera Childress Jackson for $64,000.

The district court dismissed plaintiff’s suit, holding that there was no contract because the administratrix had no authority to contract without the authority of the court, which she had not obtained; that the court order subsequently obtained did not convert the letter agreement into a valid contract; that the subsequently obtained authority did not ratify or confirm the previously made agreement, the court not having been asked to ratify or confirm it: After having obtained authority to contract, held the trial judge, the administratrix had the power to accept or reject plaintiff’s offer; since she never accepted it after obtaining the authority, the succession was never bound.

The trial judge said the offer was a conditional offer to buy, when and if court authority was obtained. The Court of Appeal reversed (Hamilton v. McKee, 363 So.2d 1216 (La.App.1978)), finding that plaintiff and the administratrix executed “an agreement to sell succession property at private sale made subject to the suspensive condition that the court, as required by law, authorize the sale.” 363 So.2d at 1219.

The record before us shows the following:

On November 19, 1955 Sam Jackson filed a petition alleging that his mother, Vera Childress Jackson, died November 10, 1955, and asking a notary be appointed to search for a will. A copy of a typewritten will appears next, bearing a stamp of the clerk of court, dated November 23, 1961. The will left the 160 acres to Sam Jackson, and money to Vera’s daughters and a grandson.

Next, on April 4, 1973, Evelyn J. McKee prays to be appointed administratrix, alleges that the will filed November 23,1961 had prescribed, and filed a descriptive list of the property of the succession. Mrs. McKee was duly appointed.

On June 6, 1973 the administratrix filed a petition for authority to sell the 160 acres to S. T. McKoin, Jr. for cash at $350 an acre. On June 25, 1973 the administratrix petitioned for authority to sell the land to plaintiff, a lawyer in the parish, for $400 an acre. Sam Jackson filed an opposition which was dismissed in a judgment on August 16, 1973, which also authorized the administratrix to sell the property for cash for $400 an acre.

This is the only authorization for the sale of the property in the record; subsequently, five petitions were filed for authority to sell the property, and an opposition was filed to four of these by Sam Jackson. No action has been taken on any of these oppositions, and no subsequent authority obtained for the sale of the property. On July 22,1974 a second petition for authority was filed, citing plaintiff’s $400 an acre offer; a petition of December 16,1974 requested authority to sell at $425 an acre, citing an offer from Sam Jackson. May 12, 1975, alleging Jackson’s refusal, another petition was filed, referring to plaintiff’s offer, requesting authority to sell at $400 an acre. Then two petitions alleging offers from Lamar Bush were filed on February 4 and March 9,1976, requesting authority to sell at $500 an acre. On February 3, 1977 Hamilton filed this suit.

It is the general rule in Louisiana that “ ‘an administrator cannot create any liability on the estate by his contracts.’ ” Succession of Huxen, 149 La. 61, 70, 88 So. 687, 690 (1921). At 27 Tul.L.Rev. 87 (1952), Powers of a Succession Representative in Louisiana, Slovenko states, page 94:

“The personal representative generally cannot subject the estate to a direct liability to third persons. An ‘estate’ cannot become a party to a contract since it is neither a person nor an artificial legal entity. Personal liability attaches to any contract which the representative makes, notwithstanding testamentary or court authority. The third party must look to the succession representative personally for claims arising out of contracts which the representative makes, and the representative, in turn, may be reimbursed for a proper expenditure from the assets of the estate upon the settlement of accounts. Since the representative as a prudent administrator is under a duty to preserve succession property, expenditures for the preservation of succession property, such as repairs, insurance and taxes, are proper expenses.”

A succession representative is a fiduciary charged with collecting, preserving and managing the property of the succession. C.C.P. 3191. In preserving, he must repair, maintain and protect the succession property, C.C.P. 3221, where the Official Revision Comment explains:

“(a) No change in the law is contemplated. It is the duty of the succession representative to make necessary expenditures for the preservation of succession property, as for instance, repairs, insurance, and taxes. Civil Code Art. 1147; Succession of Rhodes, 164 La. 488, 114 So. 107 (1927). Although a representative cannot by his contracts bind the succession, he is nevertheless entitled to reimbursement for proper expenditures. Succession of Whitehead, 3 La.Ann. 396 (1848); Succession of Nitch, 22 La.Ann. 316 (1870); Succession of Futch, 207 La. 807, 22 So.2d 125 (1945).” (Emphasis added).

During the administration, the succession representative might be required to do those things which only an owner can normally do. He might need to modify or compromise obligations owed to or by the succession (C.C.P. 3198), invest the funds (C.C.P. 3223), operate the business of the decedent (C.C.P. 3224), lease the property (C.C.P. 3226), perform the decedent’s execu-tory contracts (C.C.P. 3227), borrow money and mortgage property (C.C.P. 3228), or sell succession property (C.C.P. 3261). In every such case (except for investing succession funds, which requires only court authority) publication or notice and obtaining court authority are required.

Nowhere in the powers given to the succession representative, in alienating the property of the succession, is there a suggestion that the representative has the power to obligate the succession to alienate its property without first obtaining that authority from the court.

Nor has there been, as plaintiff argues in the alternative, a “ratification” by the administratrix by obtaining court authority to sell, and by filing two subsequent petitions (in which she recited plaintiff’s offer) to obtain authority to sell the property at $400 an acre. Defendant also filed three petitions for authority to sell at a greater price — the last two, in which oppositions are pending, seek authority to sell at $500 an acre. Until the higher offers were received, there was no reason defendant could not have accepted plaintiff’s offer at any time from August of 1973 until December of 1974. Instead, defendant’s actions are not inconsistent with her position that she considered plaintiff’s offer a continuing one which she never accepted after having obtained the authority to sell. More to the point, however, until the administra-trix obtained that authority, she is more properly considered a third person contracting to sell the property of another. “Ratification” was not in her power. Only the heirs, the owners, could ratify her unauthorized agreement, if it can be called that, to sell the land of another. (See the last sentence of C.C. 1840: “Contracts, however, made in the name of another, under void powers, will be valid, if ratified by the principal before the other contracting party has signified his dissent to the agreement.”)

And, finally, assuming that the court could have ratified the unauthorized agreement to sell, it did not. Ratification was neither sought nor given. In its judgment of August 16, 1973, the court merely authorized the administratrix to sell the property at $400 an acre. (See C.C. 2272).

We consider the inconvenience and expense incurred by the requirement of petition, advertisement and order authorizing the alienation of succession property to have been not lightly imposed by the lawmakers; when they abandoned the safety of the public sale, they relied on the courts to retain the safety derived from the petition, advertisement and order of court.

Therefore, we conclude that a succession representative does not have the power to obligate the succession to sell its property at a private sale without having first obtained the authority from court, following a petition and advertisement as required by statute; and that an authorization to sell, obtained following an agreement to sell, does not, itself, make enforceable the previously unauthorized, unenforceable agreement.

The judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated, all at plaintiff’s cost.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I dissent, agreeing with the court of appeal. Hamilton v, McKee, 363 So.2d 1216 (La.App. 2d Cir. 1978).

      . In Bennett v. Treadway, 134 So.2d 668 (La. App.1961), a seaman offered to purchase property, leaving money and a written offer with his daughter before he left for sea. He did not know that the owner was a succession, whose executor accepted the offer, adding, “ ‘Sale of property subject to Court approval.’ ” When the seaman returned, he withdrew his offer in writing two weeks before court approval of the sale was obtained. The court did not squarely meet the issue before us, but permitted the seaman to recover his deposit, holding that, since he could not have known of the need for court approval, the acceptance conditioned upon such approval was a conditional acceptance (C.C. 1805) giving the offerer the right to withdraw. The same court in 1962 enforced an agreement to buy and sell, executed by co-owners, one of whom was the tutrix of a minor owner and ordered the forfeiture of the deposit. The court distinguished Bennett v. Treadway, supra, because of the conditional acceptance there, compared with the offer then before it, which contained the condition and was unconditionally accepted. Richmond v. Krushevski, 139 So.2d 290 (La.App.1962), reversed on other grounds, 243 La. 777, 147 So.2d 212 (1962).

      . Succession of Drysdale, 130 La. 167, 57 So. 789 (1912), held that the sale of minors’ share in a succession without court authority was a nullity. In Leadman v. First National Bank, 198 La. 466, 3 So.2d 739 (1941), a bank was required to restore funds of a minor which it knowingly received from the tutrix for the purchase of a note without a court order. Wiley v. Davis, 164 La. 1090, 115 So. 280 (1928), held a lease null as to minor owners because the tu-trix had granted the lease without court authority. In White v. Hodges, 201 La. 1, 9 So.2d 433 (1942), the execution by a tutrix without court authority of instruments designed to extend the life of mineral servitudes, against the interest of the minors, was held invalid. Because C.C. 353 and 3072 require court authority before a tutor can make a compromise or transaction of a minor’s property, the Court of Appeal upset a release of minors’ tort claims made by the tutor without court authority. Blades v. Southern Farm Bureau Casualty Insurance Co., 95 So.2d 209 (La.App.1957), reversed on other grounds (that there was no tutorship, and that the father, having the power of administration while the mother lived, was not required, as the tutor was, to obtain authority of the court to compromise the claims of a minor), 237 La. 1, 110 So.2d 116 (1959). The Blades case cited cases back to 1822, when Chesneau’s Heirs v. Sadler, 10 Mart.(O.S.) 726, was decided.

      . We assume without deciding that the letter agreement would have been an enforceable contract except for the want of court authority for the executrix to act. The letter was dictated by Hamilton at a meeting in his office with the administratrix and her lawyer, and signed as follows:
      “June 25, 1973 Mrs. Alwine Mulhearn Mulhearn and Smith Attorneys at Law Tallulah, Louisiana
      Re: Purchase of 160 acres, more or less, of the Vera Jackson Estate
      Dear Mrs. Mulhearn:
      This will confirm our agreement and understanding this date, wherein I have offered to pay the sum of $64,000.00 for the following described immovable property situated in the Parish of West Carroll, State of Louisiana, being owned by the Succession of Vera Childress Jackson, now in Probate No. 6647 on the docket of the Fifth Judicial District Court for the Parish of West Carroll, State of Louisiana. This land is described as the Northwest Quarter (NW ‘A) of Section Twenty (20) Township Twenty-Two (22) North, Range Eleven (11) East, West Carroll Parish, Louisiana.
      The $64,000.00 purchase price on this property shall be paid in cash immediately upon passing of the deed of conveyance in proper form as hereinafter stated. For confirmation of our financial ability to handle this matter, you have our permission to check with the Bank of Oak Grove, Oak Grove, Louisiana, attention Mr. Albert Mizell, Vice-President, or Arden J. Smith, President.
      We understand that the heirs of Mrs. Vera Childress Jackson will retain an undivided one-half (V2) interest in and to all of the oil, gas and minerals in, on and under subject property. Due to the conditions as discussed with you, you agreed to furnish me with a policy of owner’s title insurance, at the expense of the estate, assuring me of full complete fee simple title to said land free and clear of any and all encumbrances with the exception of road right of ways, drainage right of ways, any other utility rights of way, and any reservations of record in West Carroll Parish. In connection with the last, it is our understanding that a portion of this property was previously deeded to a negro church, which has been abandoned, and we would request that you place in your deed a conveyance to me of any reversion rights that the estate may own.
      We understand that all of the above is subject to approval by the Fifth Judicial District Court for the Parish of West Carroll, State of Louisiana, and in the event any heir or creditor should successfully contest this sale, then this agreement shall be null, void and of no force and effect. However, in the event of such a contest, I understand that you will agree to us joining in with your client, Mrs. Evelyn J. McKee, in attempting to secure approval of the sale by Court.
      In evidence of this agreement, I have prepared this letter in three (3) counterparts of equal dignity, which will be executed by myself, and accepted by you and Mrs. McKee, Administra-trix of the Succession of Mrs. Jackson.
      With kindest personal regards, we are
      Very truly yours,
      HAMILTON, CARROLL AND MILLER
      s/ Orlando N. Hamilton, Jr.
      Orlando N. Hamilton, Jr.
      The above terms are understood and accepted,
      s/ Alwine L, Mulhearn

        ALWINE L. MULHEARN, ATTORNEY FOR THE SUCCESSION OF VERA CIII1.DRESS ■JACKSON
      s/ Evelyn .1. McKee
      EVELYN J. McKEE, ADMINISTRATRIX OF THE SUCCESSION OF VERA CHILDRESS •JACKSON ONH:jn”

      . The Court of Appeal correctly noted that neither in Bornemann v. Richards, 245 La. 851, 161 So.2d 741 (1964) nor in Succession of Hausser, 320 So.2d 614 (La.App.1975), writ denied 323 So.2d 805 (La.1976), did the courts specifically address the issue of the succession representative’s power to bind the succession to an agreement to sell before the court authorizes the sale but contingent on court approval. However, in the Succession of Hausser, supra, the succession representative accepted an offer to buy succession immovable property for $100,000 subject to court approval. Approximately two weeks later, another party made an offer to buy the same property for $110,000. The heirs opposed the sale at the first offer and the court in dictum reasoned:
      “The executor — himself a real estate broker by profession — expressed concern that he could not consider a later offer after having accepted (subject to court approval) an earlier offer. In our view, that the succession representative had already conditionally accepted the first offer prior to receipt of the second is immaterial. He owes no obligation to the first offeror other than to present the offer to the court, and he owes this obligation only in his capacity of succession representative. The succession representative, unlike a broker, does not become the agent of both seller and buyer, but remains the representative of the succession exclusively, obliged only to the succession, and for the benefit of its creditors, heirs and legatees. ‘A succession representative is a fiduciary with respect to the succession . . C.C.P. 3191, who ‘cannot in his personal capacity or as representative of any other person make any contracts with the succession . . art. 3194 (emphasis added). Thus, even after conditionally accepting an offer, the succession representative cannot have any contractual relationship as the representative of the offeror. If, as in our case, a more advantageous offer is received after a first offer has been conditionally accepted, the succession representative has no obligation to the first offeror to reject the second offer. (One evident alternative, ordinarily, is to accept the second offer on the condition that the court both reject the first and approve the second offer.)” Succession of Hausser, 320 So.2d at 617. (Emphasis added). This reasoning in Succession of Hausser, supra, is supported by other decisions of this court in which the general rule has been that “ ‘an administrator cannot create any liability on the estate by his contracts.’ ” Succession of Huxen, 149 La. 61, 88 So. 687, 690 (1921); Succession of Worley, 40 La.Ann. 622, 4 So. 570 (1888); Carroll, Hoy & Co. v. Davidson, 23 La.Ann. 428 (1871).