author: TORBERT, Chief Justice.

text:
    Ex parte Albert Moore OWEN, James R. Owen, Jr., and Cheryl C. Owen. (Re GECC FINANCIAL SERVICES v. ST. PAUL TITLE INSURANCE CORPORATION, et al. v. Albert Moore OWEN, James R. Owen, Jr., and Cheryl C. Owen).
    81-429.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    James R. Owen, Bay Minette, for petitioner.
    Thomas P. Ollinger, Jr. of Wilkins & Dru-han, Mobile, for St. Paul Title Ins. Corp.
   TORBERT, Chief Justice.

The petitioners seek a writ of mandamus directing the Honorable Wilson Hayes, Judge of the Circuit Court of Baldwin County, to set aside an order by which he on his own initiative amended an earlier order dismissing a third-party complaint.

Defendant St. Paul Title Insurance Corporation filed a third-party complaint against the petitioners, who as third-party defendants moved to have that complaint dismissed. The trial judge on April 30, 1981, entered an order: “motion to dismiss third-party complaint granted.”

The rest of the case remained on the court’s docket and proceeded in a somewhat normal course. On November 19, 1981, two entries were made on the case action summary sheet:

1) “The motion to dismiss the Third Party Complaint that was granted by this Court on the 30th day of April, 1981, is amended to read as follows: Motion to dismiss third-party complaint — granted without prejudice to further actions.”
2) “Final Order (for Pltf. and against Deft. St. Paul Title Ins. Corp. on Counts, 1, 2 & 3 — Count 4 pending).”

Rule 54(b), A.R.Civ.P., provides that in the absence of a certain “express determination” and an “express direction for the entry of judgment,” any order which adjudicates fewer than all the claims, or which adjudicates the rights and liabilities of fewer than all the parties, “shall not terminate the action as to any of the claims or parties.” Rule 54(b) provides further that when such an order is not made “final” pursuant to that rule, then “the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

It appears in this case that as of November 19, 1981, there was no Rule 54(b) “express determination” or “express direction for the entry of judgment” made in regard to the order dismissing the third-party complaint. Thus, it further appears that the April 30, 1981, order dismissing the third-party complaint was on November 19, 1981, still “subject to revision.” Rule 54(b), A.R.Civ.P.

Petitioners contend that the trial judge could not on his own initiative amend the dismissal order to add the “without prejudice” language, but that if he did have that authority he could not do it without giving prior notice .to the petitioners. We have no difficulty in finding the trial judge’s authority to act on his own initiative. Regarding comparable federal provisions, a noted commentator has written:

“Since Rule 59(e) is silent on the power of the court to alter or amend a judgment on its own initiative it could, therefore, be argued that the court lacks power to do so. We believe that such a position is not sound. The authorizations in Rules 60(a) and 59(d) for the court to act on its own motion are only declaratory examples of the general power of a court to act on its own initiative. And we conclude that the court has the power on its own motion to alter or amend a judgment, but if the alteration or amendment is of a substantial character, so that it does not fall fairly within the purview of Rule 60(a), that the court’s action to be valid under Rule 59 must be taken by it not later than 10 days after the entry of judgment [the time allowed by Rule 59(d), F.R.Civ.P., for granting a new trial on the court’s own initiative].”

6A J. Moore, Moore’s Federal Practice ¶ 59.12[4] (2d ed. 1982). Of course, in this case the trial judge would not have been limited by the time provision of our Rule 59(d), since under Rule 54(b) the order was not final and was “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

While we consider it the better practice for the trial judge to give notice of his intention to amend an order on his own initiative, we see no reason to revise the judge’s action here. Petitioners have shown no prejudice by the trial judge’s failure to give them prior notice, since by the terms of Rule 54(b) the November 19, 1981, amendment adding the “without prejudice” language was itself not “final” and was therefore “subject to revision at any time,” either upon the court’s further initiative or upon the petitioners’ motion. We need not determine whether in other contexts prior notice might be necessary.

This Court has stated that “Mandamus is an extraordinary remedy and should be granted only to prevent a failure of justice or irreparable injury.” McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala.1979). The petitioners here have shown neither a “failure of justice” nor an “irreparable injury.” The writ of mandamus is due to be denied.

WRIT DENIED.

All Justices concur.

      . The court on November 19, 1981, signed a separate “Final Order” in which it directed the entry of a “final judgment” as to counts 1, 2, and 3 as against defendant St. Paul. That order appears to comply with Rule 54(b), A.R. Civ.P., and would therefore make the “final order” appealable as of November 19, but it did not deal with the order dismissing the third-party complaint against the petitioners.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Mary D. DAVIS, et al. v. Susie Lee Daniel THOMASTON, et al.
    81-452.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Statement of Facts corrected Jan. 3, 1983.
    Harry D. Raymon of Raymon, Nathanson & Raymon, Tuskegee, for appellants.
    William M. Russell, Jr., Tuskegee, for ap-pellees.
   JONES, Justice.

Plaintiffs, Susie Lee Daniel Thomaston and Jane Daniel Sims, initiated this cause on August 29, 1980, against certain of the heirs of Leila Daniel Dirickson, seeking the reformation of a deed due to alleged inaccuracies in the legal description of property conveyed thereby. Defendants, Mary D. Davis, Doris D. Stanford, G. W. Dirickson, Ethel Conrad, Hattie Kirk, Ross Daniel, Jr., Delilah Deavers, Gail Cowan, and Lana Jean Swatek, filed a motion to dismiss Plaintiffs’ cause, which was denied.

Defendants next answered Plaintiffs’ allegations, denying the material averments of the complaint, and raising the special defenses of res judicata, statute of limitations, laches, and lack of mutuality of mistake among the parties in the preparation and execution of the deed.

The trial court, without a jury, ordered the deed reformed. We affirm.

FACTS

Plaintiffs and Defendants are all of the heirs of Leila Daniel Dirickson. On November 7, 1963, Mrs. Dirickson executed a warranty deed, reserving to herself a life estate in the property, conveying to her son, I. W. Daniel, a life interest in certain realty, and leaving the remainder to her grandchildren, the Plaintiffs (both the grantor and her son are now dead). The deed purported to convey some 176 acres, being part of approximately 300 acres deeded to Leila Dirickson by W. W. Bowman on December 2, 1924.

The deed sought to be reformed contains the following legal description of the property therein conveyed:

“The NEVi of Section 35, Township 17, Range 23, and that portion of the west W of the NW'/i of the NWVi of Section 34, Township 17, Range 25, Macon County, Alabama containing 176 acres more or less.”

One of the alleged misdescriptions in the deed sought to be reformed is “The NEW of Section 35, Township 17, Range 23.” Plaintiff’s exhibits 22 through 24, the 1963,1964, and 1980 Macon County tax assessment records, show that this exact property is owned by persons other than the parties to this case and lies some 11 miles west of the property Mrs. Dirickson owned. Plaintiff’s prayer for reformation sought to substitute “Section 34” for “Section 35” as to the larger tract (described as the “NEVi of Section 35”); to substitute “Section 35” for “Section 34” as to the smaller tract (described as “that portion of the west W of the NWVi of the NWVi of Section 34”); and to substitute “Range 25” for “Range 23” in the description of the larger tract.

In addition to their oral testimony, Plaintiffs introduced at trial an official map of Macon County, as compiled by the Alabama State Highway Department. The map was received by the court with the limitation that anything written thereon by Plaintiffs’ counsel was not binding and would not be considered as evidence in the proceedings.

ORE TENUS STANDARD OF REVIEW

The trial judge, sitting without a jury, determined from the evidence adduced before him that the deed in question was rightly due to be reformed.

A strong presumption as to the correctness of the trial court’s findings exists on appeal, and these findings should not be disturbed unless they are unsupported by the evidence or found to be clearly erroneous and against the great weight of the evidence. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981); Raidt v. Crane, 342 So.2d 358 (Ala.1977); Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 176, 111 So.2d 906 (1959). See, also, Moore v. Lovelace, 413 So.2d 1100 (Ala.1982).

Implicitly, but necessarily, the trial court found that the grantor intended to convey to her two grandchildren a remainder interest in the only property which she owned at the time of the conveyance — her homeplaee. Quite obviously, she could not reserve unto herself a life estate in property she did not own, nor could she convey property she did not own.

Pursuant to the ore tenus standard of review, we find ample evidence to support the trial court’s factual findings; consequently, we afford credence to the trial judge’s determination that reformation of the deed was appropriate.

STATUTE OF LIMITATIONS AND LACHES

The statute of limitations on a party’s right to bring an action to have a deed reformed does not begin to run until the party’s right of possession or title is questioned. Ammons v. Ammons, 253 Ala. 82, 42 So.2d 776 (1949).

Under the deed in question, and at the time of its original execution, Plaintiffs retained only a remainder interest in the real estate. As such, their rights to possession did not arise until the death of Leila Dirickson, the life tenant, on June 5, 1980. Plaintiffs instituted this cause seeking reformation within three months thereafter, on August 29, 1980.

It is undisputed that both Plaintiffs learned for the first time in 1972 that the deed in question contained a misdescription, such knowledge coming from their grandmother, Leila Dirickson. In 1978, Mary D. Davis and Doris D. Stanford suggested to Plaintiffs that they reconvey their property holdings to. their grandmother so that the land might thereafter be sold and the proceeds used for her care and well-being. This action, contra to showing that Plaintiffs’ title was “questioned,” shows that, in fact, it was “recognized” in 1978. Applying the rule in Ammons, supra, to these facts, we are unable to accept Defendants’ suggestion that the statute of limitations should act as a bar to Plaintiffs’ cause of action.

Defendants next assert that should their statute of limitations defense not succeed, then Plaintiffs’ action was barred by the doctrine of laches. We disagree. Lapse of time alone does not establish laches. Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779 (1949). To be affected by laches, the delay should have been with notice of the existence of the right, resulting in disadvantage to another, or should have operated to bring about changes of conditions and circumstances of which there can no longer be a safe determination of the controversy. Merrill v. Merrill, 260 Ala. 408, 71 So.2d 44 (1954).

While it may be open to speculation as to why Plaintiffs first prosecuted their claim in 1980, this eight-year delay, after their knowledge of the error, does not bar the claim for laches under the instant facts. As Plaintiffs were not entitled to actual possession of the property until the death of the life tenant, we are unpersuaded that it was incumbent upon them to initiate earlier proceedings seeking to reform alleged errors in the deed’s legal description. (Indeed, in the absence of a challenge to Plaintiffs’ title, the only delay was between June 5, 1980 — the date of the life tenant’s death — and August 29, 1980 — the date of the filing of the suit.) See Merrill, supra, in which a lapse of almost twenty years in filing suit to reform a deed, standing alone, was held not to establish laches. See, also, Duncan v. Johnson, 338 So.2d 1243 (Ala.1976).

THE COUNTY MAP AS EVIDENCE

Defendants’ counsel gave no grounds for his objection to the map’s introduction, except to say, “We have no objection to the Court having a map. We object to it being introduced.” Under ARCP 44(g), historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are prima facie evidence of facts of general notoriety and interest. Moreover, it is apparent from the record that the trial judge made only very generalized use of the map in assisting him in placing in perspective the location of the property actually described in the deed as compared to the location of the property owned by the grantor. In this we find no prejudicial error.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . We note that counsel in brief correctly point out that “Range 23” is also in error, accounting for the 11-mile distance between the property as actually described and the Dirickson property.


author: MADDOX, Justice.

text:
    Mrs. Mae JOHNSON, Individually and as Administratrix of the Estate of Milford Johnson, deceased v. J. E. HUDSON, et al.
    81-496.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Joseph P. Hughes, Geneva, for appellant.
    joe c. Qassady of Cassady, Fuller & Marsh, Enterprise, for appellees.
   MADDOX, Justice.

The dual issues brought before this Court on appeal involve a lease and whether the trial court committed reversible error by admitting the testimony of certain witnesses regarding statements made by the deceased concerning the lease and whether the trial court’s construction of a renewal provision contained in the lease was proper.

On January 31,1952, Milford Johnson and wife, Mae Johnson, as lessors, entered into a long term lease with J. E. Hudson, R. G. Heath, F. M. Heath, Max Watkins, Dr. J. F. Stanley, Dr. J. T. Grimes, Graymon Brun-son, B. L. Kelley, C. M. Capps and Thomas I. Speigner, as lessees. This written lease replaced another written lease that had been originally entered into on January 29, 1951, by the lessors and five of the named lessees. The lease provided for the rental of the lessees by the lessors of a tract of land in Coffee County, Alabama, for the purpose of erecting a fishpond. The property which was the subject of the lease consisted of approximately eight to ten acres, located in a tract of land consisting of a total of 80 acres. The lease was for an initial period of thirty years “with an option for another thirty-year period.” The lease did not specify who had the option to renew for another thirty-year period, nor did it provide for the amount of rent upon renewal. The lease also contained a provision that if the lessors should sell the remainder of the 80 acres of land, the lessees would have the option to buy the land which is the subject matter of the lease, including a right-of-way, for the sum of $1,000.

Milford Johnson, one of the original lessors, died on June 19, 1980, and in 1981, the original thirty-year period of the lease being about to expire, the present lessees (under the terms of the lease) negotiated with Mrs. Mae Johnson, the widow of Milford Johnson, who was also named as a lessor in the lease, for renewal of the lease for an additional thirty-year period. Mrs. Mae Johnson refused to renew the lease, asserting that the lessees had not paid the ad valorem taxes as required by the lease, and this lawsuit was then filed by the lessees, requesting that the Court determine the rights of the parties under the lease and adjudge that the lessees were entitled to renew the lease for the additional thirty-year term. The lawsuit was filed against Mrs. Mae Johnson, individually, and in her capacity as administratrix of the estate of Milford Johnson, deceased, and was tried without a jury.

The lessees, as plaintiffs, called three witnesses: Mrs. Mae Johnson, as a hostile witness; J. E. Hudson and Dr. B. R. Justice. The surviving lessor, Mrs. Mae Johnson, as defendant, testified in her own behalf, and she did not call any other witnesses.

Over continuing objection of the defendant that his testimony was barred by the Dead Man’s Statute, Mr. Hudson was allowed to testify to certain conversations that he had with Mr. Johnson to the effect that Mr. Johnson did not want the club to pay the taxes, because the taxes would not be much, and he was afraid that if they built cabins on the property .it would cause his taxes to go up on his other property. Mr. Hudson was also allowed to testify, over continuing objection, that he offered to Mr. Johnson to pay the taxes that year but was told by him not to pay them, and that the taxes were never mentioned between them anymore. Dr. B. R. Justice, another of the plaintiffs, was called as a witness by the plaintiffs and allowed to testify, over objection by the defendant that the testimony was barred by the Dead Man’s Statute, that he had two conversations with Mr. Johnson before Mr. Johnson’s death about the taxes. The only other witness in the ease was Mrs. Mae Johnson, who was called as a hostile witness by the plaintiffs and who also testified as a witness in her own behalf.

Following the trial of the case, the court concluded that the witnesses, J. E. Hudson and B. R. Justice, were competent to testify and that the Johnsons acquiesced in the failure of the plaintiffs to pay taxes for 30 years and were therefore estopped to resist extension of the lease as provided in the option. The court further ordered that the defendant execute a renewal lease, if one was required, and restore possession to the plaintiffs and all privileges and rights provided in the lease. The defendant filed a motion to alter, amend, or vacate the judgment, or, in the alternative, for new trial, which was denied, and this appeal followed.

Our first issue to consider is whether the trial court’s permitting J. E. Hudson and B. R. Justice, who are also parties in the instant case, to give testimony of their conversations about transactions with Milford Johnson violated the express terms of this state’s “Dead Man’s Statute.” This statute, Code 1975, § 12-21-163, reads:

“In civil actions and proceedings, there must be no exclusion of any witness because he is a party or interested in the issue tried, except that no person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness or has been taken and is on file in the case. No person who is an incompetent witness under this section shall make himself competent by transferring his interest to another.”

We have noted that this statute seems to require that three conditions exist in order to make a witness incompetent to testify as to statements by a deceased, to wit:

1. The witness must have a pecuniary interest in the result of the suit.
2. His interest must be opposed to the interest of the party against whom he is called to testify.
3. The estate of the deceased person who made the statement must be interested in the result of the suit.

Taylor v. First National Bank of Tuskaloosa, 279 Ala. 624, 630, 189 So.2d 141 (1966).

As for the first two conditions, the witnesses in this case each had a pecuniary interest, See Manegold v. Massachusetts Life Ins. Co., 131 Ala. 180, 31 So. 86 (1901), and their interests were clearly opposed to the party against whom they were called to testify. With regard to the third and final condition, the Court has said:

“The competency of the witness is dependent upon the nature of the suit and whether the estate of deceased is interested. If the estate is not interested, there is no incompetency under the statute. If the estate is interested, the witness is incompetent if he has a pecuniary interest in result of the suit at the time of trial, or if his status is such that he would be so interested if he had not transferred his interest. The widow and children of testator having such an interest in the result of the suit, and testator’s estate being interested in that result, the widow and children are incompetent to testify as to any transaction with or statement by the testator unless he or she ‘. . .. “... . is called to testify thereto by the party to whom such interest is opposed.” ’ Niehuss v. Ford, 251 Ala. 529, 532, 38 So.2d 484, 487.”

Taylor v. First National Bank of Tuskaloosa, 279 Ala. 624, at 630-31, 189 So.2d 141, at 146 (1966).

Based on the facts as they appear in the record, we hold that the estate does have an interest because the rental payments due under the lease constitute rental income, depending, of course, upon this Court’s interpretation of the renewal provision. See Hanks v. Hanks, 281 Ala. 92, 99, 199 So.2d 169 (1967). Thus, each condition specified in Taylor v. First National Bank of Tuska-loosa, supra, exists in the present case and the witnesses Hudson and Johnson were not competent to testify as to their conversations with the deceased. Because the trial court erred in allowing the testimony of these two witnesses, its judgment is due to be reversed.

Although the case must be retried, we think it appropriate to address at this time the interpretation of the renewal provision in this lease. The renewal provision contained in the lease reads: “[S]aid lease shall run for a period of 30 years with an option for another 30-year period.” Appellant maintains, because nothing is mentioned in this provision as to the amount of rent to be paid, that the entire provision is indefinite and uncertain and, therefore, inapplicable. Appellant likewise contends that there is no basis whatever for an adjudication that plaintiffs are entitled to an extension on “like terms” as the trial court order provides, because this makes a new or different contract for the parties and adds to the terms of the contract, words, terms or conditions not contained in it.

Since this Court has not made any previous ruling concerning requirements of a renewal provision in a lease, we look to other jurisdictions for guidance.

“The rule is well established that a general covenant to renew or extend a lease which makes no provision as to the terms of renewal or extension implies a renewal or extension upon the same terms as provided in the original lease, and is sufficiently definite and certain to be enforceable. This rule applies with particular force with respect to the term or length of time of the renewal or extension. The rule is subject to the exception, however, that under a general covenant to renew, the lessee is not entitled to have inserted in the renewal lease a covenant for a further renewal. Moreover, a clause or provision clearly applicable only to the original lease is not carried forward into a new lease for an additional term. Thus, a clause in a lease that failure of the lessee to give notice of desire to cancel shall be considered as evidence that he desires to continue the lease in force for another year gives the lessor no right to demand the execution of a new lease containing a similar clause.” [Footnotes omitted.]

50 Am.Jur.2d Landlord and Tenant § 1159 (1970). The Court of Appeals of the State of Georgia offers the following with regard to renewal provisions in leases:

“The general rule is that where a lease for a stated period at a stated price contains an option of renewal which fails to specify either the duration of the new term or the amount of rent, the intendment is that the renewal applies to a new term of the same duration for the same rent, and the fact that the rental value has increased in the meantime is immaterial .... The tenants having exercised their option to renew the lease by proper and timely notice, they are entitled to the occupancy of the premises for the additional five year term.”

Saunders v. Sasser, 86 Ga.App. 499, 71 S.E.2d 709, 711-712 (1952); See Crossman v. Fontainebleau Hotel Corp., 273 F.2d 720 (5th Cir. 1959); See also Miller v. Clemons, 276 S.W.2d 650 (Ky.1955). In the instant case, the only term not specified in the renewal provision is the rental amount; however, we follow the general rule of other jurisdictions that the lease implies an extension upon the same terms, and thus the rent remains $100 a year.

Appellant’s contention that renewal of this lease on the “same terms” would result in a new and different agreement is not supported by the facts in this case. The renewal provision in this lease merely constitutes an extension of the present lease. The following distinction between a “renewal” and an “extension” is made:

“As a general thing, courts which, in considering the necessity of a new lease contract when an option is given the lessee for an additional term, recognize a distinction between ‘renewal’ provisions and ‘extension’ of the lease, agree that the latter form of option does not require or contemplate execution of a new lease but simply a continuance of the original one for a further time upon compliance with the conditions for its exercise. Thus, a distinction is made between a covenant to renew and a lease for a stated term with the privilege given the lessee to hold for a further term; in the latter case, where the privilege is claimed, the original lease operates as a present demise for the additional term without any necessity for a new lease. In such case, the lessor cannot be compelled to execute a lease for the additional term, since the original lease becomes a lease for such additional term by the tenant’s exercise of the option to remain. So, an option for an extension does not require a new lease. Generally, a lease for a definite term ‘with the privilege’ of having the same premises for an additional term at the same rent, at the option of the lessee, is regarded not as a covenant for renewal of the lease at the lessee’s option, contemplating the execution of some further instrument, but rather as a provision contemplating continuance of the lease already in existence so that the lessee by holding over without notice becomes entitled to the additional term. Also, in some instances, it has been held in jurisdictions which distinguish between ‘renewal’ and ‘extension’ provisions in leases that in the absence of an express stipulation that a new lease is to be executed, there is a presumption that no new lease is intended by the parties to a lease agreement which gives the lessee the opportunity of retaining the premises beyond the original period. On the other hand, many of the courts which recognize the distinction between ‘renewal’ and ‘extension’ provisions hold or state that an option or provision for renewal contemplates the making or execution of a new lease contract or agreement for the additional term stipulated for in the option.
“In some of the cases which hold the execution of a new lease unnecessary, any distinction between a renewal and an extension seems not to have been regarded. Thus, many courts hold that no new lease is necessary or contemplated under an option either for renewal or for an extension.” (Footnotes omitted.)

50 Am.Jur.2d, Landlord and Tenant § 1180 (1970).

The facts of this particular case are important to our conclusion that the renewal provision included in this lease is an extension and not a renewal. The land leased by appellees from the appellant and her deceased husband was leased for the purpose of building a pond and cabins for a private fishing club. The fact that the appellees at their expense constructed the pond and erected a cabin and the parties initially signed a 30-year lease with a renewal provision indicates that the trial court, in reviewing the evidence, was authorized to find that the parties contemplated a long term arrangement based on the terms of the single lease without their having to execute some further instrument in the future. This is a reasonable inference which the trial court could draw, considering that the lessors reserved the same fishing rights as club members and there was not a notice of renewal provision requirement set forth in the terms of the lease. Consequently, the Court did not err in holding that the renewal provision contemplated an extension of the terms of the lease for an additional 30 years, at $100 a year, and that the parties were not required to execute a new instrument.

Because the trial court erred in allowing the testimony of witnesses Hudson and Justice over timely and appropriate objection, the judgment is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

TORBERT, C. J.; and JONES, SHORES and BEATTY, JJ., concur.


author: ADAMS, Justice.

text:
    Ex parte Bobby Ray BOZEMAN and Madge Bozeman (In re Bobby Ray BOZEMAN and Madge Bozeman v. STATE FARM FIRE AND CASUALTY COMPANY, a Corporation, Dave Lamon, and Holland and Woodard Company, Inc., a Corporation).
    81-596.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for petitioners.

      John S. Key of Eyster, Eyster, Key & Tubb, Decatur, for respondents.
   ADAMS, Justice.

This case involves the application of Rule 34, Alabama Rules of Civil Procedure. Plaintiffs, Bobby Ray Bozeman and Madge Bozeman, seek to discover certain documents in the possession of their insurer, defendant State Farm Fire and Casualty Company (State Farm). The Honorable Newton B. Powell, Circuit Judge for Morgan County, denied plaintiff’s motion for production. They filed a petition in this Court seeking a writ of mandamus to compel the production of three disputed documents.

The issue presented by this petition is: Did Judge Powell abuse his discretion in denying plaintiffs’ Rule 34 motion for production of the documents in dispute? We hold that he did not, and, therefore, we deny the writ.

Plaintiffs insured their home under a policy written by State Farm. They allege that blasting done by defendant Holland and Woodard Company, Inc., in the pursuit of quarrying, damaged their house, created a nuisance, and caused them to suffer various injuries. The incident giving rise to plaintiffs’ cause of action allegedly occurred on September 18, 1980. Plaintiffs reported their claim to State Farm. Defendant Dave Lamon, a claims representative, was assigned to the case. Plaintiffs eventually became dissatisfied with State Farm’s handling of their claim. Apparently, State Farm neither made nor offered a payment. On January 28, 1981, they sued State Farm and Lamon, alleging various causes of action including bad faith refusal to pay under the terms of the policy. Holland and Woodard Company, Inc., later was added as a party defendant.

In dispute are three documents in State Farm’s files. One is a report dated January 17, 1981, from Lamon to State Farm. The second is a memo from Lamon to Harry Dellinger, his superior, dated January 19, 1981. The third is dated February 11, 1981, and is a combined file report from Lamon to Dellinger.

State Farm opposed plaintiffs’ motion to produce as it pertains to those three documents. It argues that all three were prepared in anticipation of litigation and, thus, are not discoverable absent a showing by plaintiffs of substantial need. State Farm insists that the first two documents were prepared after it learned plaintiffs retained an attorney in this matter, and it points out that the last was prepared after suit was filed. Plaintiffs, on the other hand, contend the documents are discoverable. They acknowledge that they made no showing of substantial need under Rule 26(b)(3), A.R. C.P., but insist none was necessary. They theorize that the requested documents might reveal defendant State Farm’s motives in failing to honor their claim. That, plaintiffs argue, goes directly to the issue of whether the claim was denied in bad faith. Under their theory, the requested documents come outside the operation of the substantial need provision of Rule 26(b)(3). Alternatively, they argue that the first two documents were not prepared in anticipation of litigation and are routinely discoverable.

We disagree with plaintiffs’ contention that the documents were routinely discoverable. Although we have meager evidence in the record before us, we are able to conclude that the trial court could find that the requested documents were, in fact, prepared in anticipation of litigation. Because of that, plaintiffs’ motion for production under Rule 34 must be considered in light of Rule 26(b)(3). That rule provides, in pertinent part, that a party seeking discovery of materials prepared in anticipation of litigation must make a showing of “substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Rule 26(b)(3), A.R.C.P. A failure to make out a required showing under Rule 26(b)(3), precludes one from obtaining the discovery sought. Feaster v. American Liberty Insurance Company, 410 So.2d 399 (Ala.1982) (this court noting that impeachment, if raised, might have justified discovery); Ex parte Lord, 399 So.2d 290 (Ala.1981); Ex parte May, 393 So.2d 1006 (Ala.1981); Ex parte State Farm Mutual Automobile Insurance Company, 386 So.2d 1133 (Ala.1980). Because plaintiffs did not make the required showing of substantial need, the trial court properly denied their request for production of the documents sought.

The requirements for granting a writ of mandamus are well established:

Mandamus is a drastic and extraordinary writ. Folmar v. Brantley, 238 Ala. 681, 193 So. 122 (1939). To grant an individual a writ of mandamus, there must be (a) a clear legal right in petitioner to the order sought, (b) an imperative duty upon the respondent to perform accompanied by a refusal to do so, (c) a lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked. Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968).

Martin v. Loeb and Company, 349 So.2d 9 at 10 (Ala.1977).

More recently, this court stated:

Mandamus is a proper means of review to determine whether a trial judge abused his discretion in limiting a party’s right to discovery. Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful. Lassiter v. Werneth, 275 Ala. 555, 156 So.2d 647 (1963).

Ex parte Dorsey Trailers, Inc., 397 So.2d 98 at 102 (Ala.1981). Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).

Because we hold that the trial court properly denied plaintiffs’ request for production, there can be no abuse of its discretion. Therefore, plaintiffs are without a clear legal right sought to be enforced. That being the case, plaintiffs are not entitled to their requested writ of mandamus.

WRIT DENIED.

TORBERT, C, J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Stanley WILLIAMS v. STATE.
    7 Div. 871.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Certiorari Denied Oct. 22, 1982, Alabama Supreme Court 81-871.
    Rehearing Denied May 18, 1982.

      R. D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment convicting defendant of trafficking in cannabis, imposing against him a fine of $25,000 and sentencing him to imprisonment for nine years, with a provision in the judgment that “the first three calendar years of said sentence is mandatory imprisonment.”

The indictment expressly charged a “violation of § 20-2-80(1) of the Code of Alabama, 1975,” which provides:

“Except as authorized in chapter 2, Title 20:
“(1) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ If the quantity of cannabis involved:
“a. Is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.
“b. Is 2,000 pounds or more, but less than 10,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $50,000.00.
“c. Is 10,000 pounds or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $200,000.00.”

No issue is raised on appeal as to the sufficiency of the evidence to support the verdict of the jury, and we find no reasonable basis for such a contention. According to the undisputed evidence, an officer of the Narcotics Unit of the Department of Public Safety of Alabama, while acting as an undercover agent, negotiated with defendant and two other men relative to the purchase by the officer of some marijuana. The negotiations continued until there was a meeting of the officer with the other negotiating parties at a place along a street in Munford in Talladega County, where all four had arrived in motor vehicles. After a confrontation and a showing that the officer had the money to buy and the demonstration that the other three had the marijuana to sell, the officer, assisted by three backup officers, arrested the defendant and the other two men acting with him and seized the marijuana. Mr. David Thorne, a crime laboratory analyst of the Alabama Department of Forensic Sciences, testified that the seized material was “Marijuana or Cannabis” and that the total weight thereof was “5926 grams and that is equal to 12.98 pounds.” Defendant did not testify, and no witness testified on his behalf.

The only issues raised by appellant challenge the constitutionality of Code of Alabama 1975, (1981 Cum.Supp.) § 20-2-80(1) quoted above and § 20-2-81(a) as follows:

“Notwithstanding the provisions of chapter 22, Title 15, with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.”

Both §§ 20-2-80 and 20-2-81 are based upon Acts 1980, No. 80-587, p. 926, effective May 28, 1980. The alleged crime occurred on November 24, 1980, and the indictment alleged that it occurred subsequent to May 28, 1980.

The record shows that defendant’s indi-gency was shown to the satisfaction of the trial court and that, at defendant’s request, counsel for him was appointed, who has ably represented him on the trial and on this appeal.

Appellant’s attorney emphasizes defendant’s indigency in pressing his contentions as to the question of the constitutionality of Code of Alabama 1975, § 20-2-80(1), in prescribing “a fine of $25,000.00” as part of the punishment for the crime. He says that thereby defendant was denied “due process of law guaranteed to him by the Fourteenth Amendment to the Constitution of the United States and that such a fine is excessive and therefore violative of the Constitution of Alabama of 1901, Art. 1, Sec. 15. In support of his contention as to due process, he cites Castle v. United States, 399 F.2d 642, 652 (5 Cir. 1968), which tends, at least, to the contrary by the following:

“It might be argued that the excessive finding of an indigent violates substantive due process of law because it does not serve a legitimate end of punishment and, in fact, interferes with rehabilitation. The Supreme Court has recently indicated, however, that rehabilitation is not the only end of punishment and that special and general deterrents are still valid considerations in making the punishment fit the crime. Powell v. State of Texas, 1968, 392 U.S. 514, 88 S.Ct. 2145, 2153, 20 L.Ed.2d 1254.”

To this, it may be added, that the size of the fine is not incommensurate with the money involved in the drug traffic and the price placed on controlled substances, which in the instant case, according to the evidence, was “five hundred dollars a pound,” substantially more than the current price everywhere of an ounce of pure gold. Whether a mandatory fine fixed by a legislature constitutes a violation of the constitutional inhibition against excessive fines is to be determined largely by the preventive effect upon the commission of the particular kind of crime for which the fine is imposed. Although the judiciary is empowered to vitiate a statute in the prescription of an excessive fine, it should not substitute its own judgment as to appropriate punishment for the judgment of the legislature in that respect. Cabble v. State, Ala.Cr.App., 347 So.2d 546 (1977), cert. denied, 347 So.2d 551. We do not agree with either of appellant’s contentions that the mandatory fine of $25,000 was unconstitutional. See Wheatt v. State, 410 So.2d 479 (Ala.Cr.App.1982).

Appellant further insists that defendant’s right to be free from “cruel and unusual punishment” is violated by § 20-2-81(a), which, as appellant correctly asserts, “precludes probation altogether and precludes parole for at least three years after” commencement of the term, of his imprisonment. In dealing with this question, the history of the present law in general as to both probation and parole is to be considered. It commenced with the ratification of Amendment No. 38 of the Constitution of Alabama of 1901, which amended Art. V, § 124, by in part providing that the “legislature,” instead of the governor “shall have power to provide for and to regulate the administration of pardons, paroles, remission of fines' and forfeitures, and may authorize the courts having criminal jurisdiction to suspend sentence and to order probation.” Pursuant to Amendment No. 38, legislation was promptly enacted (Acts 1939, No. 278, p. 434) empowering the courts to suspend sentences for convictions of crime and to place the defendants on probation, and contemporaneously therewith the Legislature by Acts 1939, No. 275, p. 426, created “a board of pardons and paroles” with the authority contemplated by Amendment No. 38. Prior to the amendment and prior to authorization by the Legislature, the courts of Alabama had no power to suspend the sentence on a convicted defendant or to place him on probation. Since then, all courts having criminal jurisdiction have been empowered to suspend sentences, except sentences to death, and place defendants on probation. In re Upshaw, 247 Ala. 221, 23 So.2d 861 (1945); Ex parte, Robinson, 44 Ala.App. 469, 213 So.2d 409 (1968).

It necessarily follows that the Legislature, which now constitutionally has the plenary power under Amendment No. 38 to provide for and to regulate the administration of paroles and to authorize the courts having criminal jurisdiction to suspend sentence and to order probation is not powerless to change its laws on the subject. The legislative will as expressed in Code of Alabama 1975, § 20-2-81(a), prohibiting the Board of Pardons and Paroles from paroling one convicted of the crime of which appellant was convicted and the courts from placing him on probation, controls in the instant case and must govern our action. Wheatt v. State, supra.

It is to be observed from the history of paroles, suspension of sentences, probation and the like in Alabama as coming within the functions or powers of the legislative or the 'judicial branches of the government, they are not pillars thereof, being only about one-fourth as old as the state of Alabama. They do not rise to the stature of constitutional or inherent rights. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). They are bestowed by sovereign power as a “privilege” and not as an unalterable “right.” Pinkerton v. State, 29 Ala.App. 472, 198 So. 157, cert. denied, 240 Ala. 123, 198 So. 162 (1940); Summers v. State, 31 Ala.App. 264, 15 So.2d 500, cert. denied, 244 Ala. 672, 15 So.2d 502 (1943).

The appellant was lawfully convicted and sentenced. There is no error in the record. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author:
SCHWARTZ, Judge. JORGENSON, Judge. SCHWARTZ, Judge. FERGUSON, Judge
      JORGENSON, Judge, BASKIN, Judge

text:
    Francisco RECINOS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1841.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    On Rehearing Oct. 19, 1982.
    Bennett H. Brummer, Public Defender and Irv J. Lamel Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The only point raised in this appeal from a second-degree murder conviction challenges the trial court’s admonition to defense counsel not to communicate with the defendant during recesses in the course of his testimony. Because the circumstances surrounding the instruction conclusively demonstrate that no reversible or harmful error took place, we reject the contention and affirm.

At the trial, Recinos took the stand in his own behalf, contending that he had committed the homicide in self-defense. In the course of a lengthy bench conference during his direct examination, the following occurred.

MR. HARTMAN [prosecutor]: Judge, I have two objections I would like to have put on the record .... Number two, I would object to Mr. Zenobi speaking to the defendant in the middle of his testimony.
THE COURT: I instructed him, specifically, not to do that.
MR. ZENOBI [defense counsel]: I did not coach my defendant, whatsoever, Judge. He simply—
THE COURT: As far as I am concerned, he is like any other witness on the stand. I don’t want any communication with him during the recesses, while he is testifying.
MR. ZENOBI: There was no instruction to my witness to say anything, and I work through the interpreter, so you can ask the interpreter.
THE COURT: I don’t question that. I accept your representation on that, [emphasis supplied]

Subsequent to this colloquy, which itself revealed that defense counsel had indeed spoken with Recinos during the recess, the record contains no request or other reference to any wish by either to communicate further with the other. The court almost immediately adjourned for lunch. After-wards, the defendant’s direct and then cross-examination were completed without interruption or expressed concern about the restriction imposed by the court. Nonetheless, relying on Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), the defendant now argues that the trial court’s statement that the defendant “is like any other witness on the stand” who was not to be spoken to during recesses requires a new trial. We disagree.

While the remarks embodied, as Geders and Stripling establish, an erroneous view concerning the defendant’s sixth amendment right to the assistance of counsel at all times during trial, they had no practical or prejudicial effect on what actually happened below. This is the case for two separate but interrelated reasons. In the first place, the only recess during which the court’s order was at all operative occurred in the middle of the direct examination, when the sole conceivable reason for counsel’s communication with the client was what Zenobi himself acknowledged was the improper one of coaching him concerning the questions which were yet to be asked. Hence, the trial court may not be said to have abused its discretion in imposing that limitation. See Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980) (brief recess in midst of cross-examination); cf. United States v. DiLapi, 651 F.2d 140, 149-51 (2d Cir. 1981) (concurring opinion); compare, Geders v. United States, supra (overnight recess between direct and cross-examination); Stripling v. State, supra (lunch recess between direct and cross-examination).

Second, certainly unlike Geders, and apparently unlike Stripling, defense counsel did not proffer or otherwise indicate in any way that he even desired to have a discussion' — on any permissible (or impermissible) subject — which was precluded by the order. See generally, Clark v. State, 363 So.2d 331 (Fla.1978); cf. United States v. Allen, 542 F.2d 630, 634 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). It thus appears both that any error was unpreserved and — beyond a reasonable doubt — that it made no difference whatever and was therefore constitutionally harmless. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Clark v. State, supra; see United States v. DiLapi, supra, 651 F.2d 148-49 (majority opinion). The trial court’s incorrect announcement was thus but a tree falling in the forest which, because its vibrations reached no legal eardrums, must be deemed to have made no legal sound.

Affirmed.

JORGENSON, Judge.

I respectfully dissent.

I see no difference in the facts presented here from those presented in Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), and would consequently reverse.

The Sixth Amendment right to counsel, provided for in the United States Constitution, is embraced in Article I, See 16 of the Florida Constitution. The right is that of the accused, not of the attorney. Hooks v. State, 253 So.2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1971).

I must take issue with the majority’s conclusion that “the sole conceivable reason for counsel’s communication with the client . . . was the improper one of coaching.... ” As Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) suggests, there are other ways to deal with the problem of improper coaching. 425 U.S. at 89, 96 S.Ct. at 1335, 47 L.Ed.2d at 600. I also take issue with the proposition that a proffer is required in order to preserve the record regarding attorney-client communications. No proffer was made by the state, as required by Geders/Stripling, that a conference would interfere with the orderly progress of the trial. The resulting prejudice is presumed. Once the court characterized the defendant as being like any other witness and ordered no communication with the defendant during the recess, the Geders /Stripling violation was complete.

The record reflects that prior to the colloquy set forth by the majority, a substantial portion of time was devoted to the trial court’s ascertaining how many more witnesses would testify and what measures could be taken to shorten the remaining portion of the defense case. The record further reflects that defense counsel and defendant were being assisted by an interpreter. It would certainly be apropos during a luncheon recess for counsel to explain to his client the reasons certain witnesses were not being called and to explain the events of the bench conference. This is particularly true during a luncheon recess. Since it obviously did not affect the orderly conduct of the trial, the defendant was entitled to his conference. Geders, supra; Stripling, supra.

My brother’s reliance on United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981) is, in my view, misplaced. The recess in DiLapi was only of five minutes duration and during the course of cross examination. Thus, the facts and circumstances surrounding DiLapi are closer to Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980), than the case sub judice. If we are to be guided by federal decisions in this area of the law then United States v. Conway, 632 F.2d 641 (5th Cir. 1980) is closer to our facts and has direct application since, in both cases, the recess being discussed is a luncheon recess.

The error complained of is so fundamental that it cannot be characterized as harmless. Geders, supra; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

For the reasons advanced herein, I would reverse on the authority of Stripling v. State, supra, which, in my view, we are bound to follow.

Before BARKDULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, PEARSON, FERGUSON and JORGENSON, JJ.

On Rehearing En Banc

SCHWARTZ, Judge.

Upon consideration of this cause after having granted and heard rehearing en banc, we adhere to the panel’s determination to affirm the judgment below.

We conceive that our primary task on rehearing is to apply Bova v. State, 410 So.2d 1343 (Fla.1982), which was decided by the supreme court after the panel opinions were released, to the instant case. It is true that by holding that the trial court may not restrict the defendant’s access to his attorney during any recess whatever, no matter what its length or occasion, Bova plainly invalidates the first ground of the panel’s conclusion. We think, however, that the ultimate result of Bova and the foundation of that ruling just as clearly establish the correctness of the alternative ruling that the trial judge’s statement of the law, even though mistaken, does not require reversal.

Bova affirmed the conviction because the error of the lower court in restricting consultation with counsel “over objection,” 410 So.2d at 1344, did not result in any prejudice and was therefore “harmless.” 410 So.2d at 1345. In so ruling, the court necessarily rejected the principle applied in Gideon and the other authorities in Judge Jor-genson’s dissenting opinion, and contrarily held that the access to counsel rule is neither fundamental in the sense that it does not require preservation below, nor prophylactic in that reversal will necessarily follow its violation without reference to ordinary considerations of harmlessness. Compare also, e.g., Richardson v. State, 246 So.2d 771 (Fla.1971) (failure, upon objection, to hold hearing on effect of state discovery violations requires “automatic” reversal); Ivory v. State, 351 So.2d 26 (Fla.1977) (any communication between court and jury in absence of defendant requires reversal even if contents not erroneous); Land v. State, 293 So.2d 704 (Fla.1974) (failure to make proper ruling as to voluntariness of confession requires new trial even if confession not in fact involuntary). The facts here qualify under both prongs of this determination.

First, the record shows that, unlike Bova, defense counsel acquiesced in and surely did not object to or challenge in any way the correctness of the trial judge’s statement of the law. Since an articulated statement of the defendant’s position in the trial court is an absolute prerequisite to the appellate consideration of a non-fundamental issue such as this one the conviction may properly be affirmed because of this failure alone. Lucas v. State, 376 So.2d 1149 (Fla.1979); see Clark v. State, 363 So.2d 331 (Fla.1978).

Second, the harmlessness holding of Bova applies in spades to the facts of this case. Indeed, we do not believe that what took place at the trial may be said to have ascended even to the dizzying heights of harmless error. As we understand it, harmless error occurs when a mistaken ruling, that is, a trial court decision which affects the conduct of the proceedings in some way, is shown not to have affected the final result of the litigation; in this case, the erroneous statement of the law was not shown to have constituted or led even to the sine qua non of any kind of error, harmless or otherwise: the existence of an allegedly adverse “ruling.” This is because, as the writer’s panel opinion points out, there is no indication that counsel or Recinos had any desire further to speak to the other which was precluded by the court’s announcement. Under these circumstances, the remark in question was no more than an academically incorrect observation about the law. We know of no instance in which a statement, however textually erroneous, which has no causative impact on what actually happened or did not happen below, can justify a reversal. We continue to believe that, in this context, the answer to Bishop Berkeley’s conundrum about the tree and the forest is that the court’s incorrect comment meant nothing.

Affirmed.

FERGUSON, Judge

(specially concurring).

Although I don’t concur in the majority discussion on the merits of the appeal I would affirm the conviction on the basis that the alleged error has not been preserved for review. Defense counsel not only failed to object but deferred to the trial court’s erroneous instruction. Lucas v. State, 376 So.2d 1149 (Fla.1979).

JORGENSON, Judge,

dissenting:

I adhere to the views advanced in my original dissent. I write further only to suggest that the majority errs in reaching the conclusion that access to counsel is not fundamental, nor can I agree that under these facts a prophylactic reversal is not warranted.

A fair reading of this record compels the conclusion that it is the defendant seeking access to his counsel and not counsel seeking access to the defendant. That being the case, an articulated statement of the defendant’s position is hardly possible. The error in this case is manifest. Under such circumstances, it is the State’s burden to demonstrate that the error is harmless beyond a reasonable doubt. That burden was not only not met, but not assumed. The trial court’s instruction, correctly obeyed by defense counsel, did not require further objection in order to perfect this record. The evidence of guilt is not overwhelming, nor was the restraint brief. Bova v. State, 410 So .2d 1343 (Fla.1982).

I would reverse.

DANIEL S. PEARSON, J., concurs.

BASKIN, Judge

(specially concurring).

If the trial court had prevented counsel from speaking to defendant Recinos during a recess, its ruling would have constituted deprivation of a fundamental right. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Hooks v. State, 253 So.2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1971); Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978). Because the record lacks any indication of a desire on the part of either counsel or defendant Recinos to communicate, I interpret the court’s statement as a comment on past conversations between Recinos and his attorney, and hot as a thwarting of any express or even implied fundamental right. I therefore concur in the result reached by the majority but not in its characterization of the potential error as non-fundamental.

      . On this point the present case falls squarely between Stripling, involving a regular, relatively lengthy luncheon recess after direct was concluded, and Bova, in which there was a brief, five-minute recess in the course of cross-examination. As our decision indicates, we believe the occasion rather than the length of the recess is more significant.
      We note, moreover, that the court in Stripling found reversible error before its discussion of the present issue. Thus, it is at least uncertain as to whether this ruling would have alone required a new trial, as Recinos argues here.

      . This situation, in which there is nothing to show that there would have been communication of any kind absent the order, is to be distinguished from one in which it is argued that the failure to discuss a particular subject which counsel wished to, but was prevented from undertaking would not have changed the result. We take it that it is the latter instance about which Justice Marshall in Geders commented that a defendant “need not make a preliminary showing of prejudice.” [emphasis supplied] Geders v. United States, supra, at 425 U.S. at 92, 96 S.Ct. at 1337, 47 L.Ed.2d at 602 (Marshall, J., concurring), adopted in Stripling v. State, supra, at 349 So.2d 192. While we need not directly decide the question, we would be inclined to hold that even were this language controlling, any presumption of harm has been overcome beyond a reasonable doubt in the case at bar. United States v. DiLapi, supra.


author: HENDRY, Judge.

text:
    Benjamin POLLOCK, Appellant, v. T & M INVESTMENTS, INC., Appellee. T & M INVESTMENTS, INC., Appellant, v. Benjamin POLLOCK, Appellee.
    Nos. 81-2051, 81-2102.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Rehearing Denied Oct. 19, 1982.

      Sydney L. Syna, Miami, for Benjamin Pollock.
    Louis Vernell, Miami Beach, for T & M Investments, Inc.
    Before HENDRY and BASKIN, JJ., and GAVIN K. LETTS, Associate Judge.
   HENDRY, Judge.

These consolidated interlocutory appeals seek review of the circuit court’s August 26, 1981 Order on Motion to Modify. The appealed order vacated certain terms of a May 20, 1974 final judgment entered in the instant cause and affirmed on appeal, Pollock v. Morton, 311 So.2d 206 (Fla. 3d DCA 1975), which terms provided:

“. . . the Defendant, T & M INVESTMENTS, INC., shall pay to the Plaintiff the sum of $175.00 per month as resona-ble [sic] rental value toward the rental of Plaintiff’s efficiency apartment and said monthly payments shall continue each month until, under the terms of the lease agreement, the new building to be erected by the Defendant is available for occupancy and the further terms of the lease agreement come into effect.”

The record before us reflects a long history of non-compliance by T & M with the requirement of the final judgment that it make $175.00 monthly payments to the plaintiff, Dr. Benjamin Pollock, and numerous contempt proceedings resulting in orders determining T & M’s liability for ar-rearages and imposing fines against it for contempt, which have been affirmed by this court on appeal: Pollock v. T & M Investments, Inc., 346 So.2d 620 (Fla. 3d DCA 1977); T & M Investments, Inc. v. Pollock, 374 So.2d 110 (Fla. 3d DCA 1979). The plaintiff also brought a separate action seeking to set aside a fraudulent conveyance by T & M of the property which it had acquired from him, which action resulted in a final judgment setting aside the fraudulent conveyance and affirmance by this court on appeal, Morton v. Pollock, 386 So.2d 1327 (Fla. 3d DCA 1980).

Notwithstanding its prior history of noncompliance, T & M filed with the trial court in November, 1980 a motion to modify and/or vacate the final judgment and subsequent orders entered thereon. Its stated ground therefor was the impossibility of its performance of a term reflected in the parties’ agreements and incorporated in the final judgment, that it was to construct a high-rise apartment building on property purchased from the plaintiff and properties to be acquired from surrounding landowners in a three block area of Miami Beach. (T & M had bound itself in connection with the purchase of plaintiff’s property to provide him with an ocean-front, two bedroom, top floor apartment in the building to be constructed, rent-free, for the rest of his life.) T & M contended that it was impossible for it to perform under this part of its agreement, due to its inability to purchase the necessary additional lots because some property owners were unwilling to sell at any price. Thus, the subject terms of the final judgment should be regarded as a nullity. T & M stated in its supporting memorandum that it had become aware of this impossibility in June, 1975.

Plaintiff Pollock thereafter also sought to modify the final judgment to provide for an increased monthly rental allowance, in light of increased rental values in the area since the time of entry of the final judgment. The trial court held an evidentiary hearing on the motions and took testimony of the parties regarding their understandings at the time they executed the agreements which formed the basis for the final judgment. The following findings were made by the court in its Order on Motion to Modify:

“1. The final judgment entered in this case contemplated that the ‘new building’ would be built within a reasonable period of time after the entry of that order. It was not intended to be a lifetime annuity forever continued even if the desired oceanfront highrise could not be built.
2. While there might have been different forms of relief requested, only two were presented, one to seek an increase in the monthly allowance, and the other to terminate the monthly payments.
3. It would be inequitable, unconscionable, and inconsistent with the contemplation of the final judgment to allow the existing situation to continue.
4. Any penalties or other punitive sanctions levied by the Court to date can be properly purged upon defendant’s compliance with the provisions of this Order.
5. If the Court has the power to do so, it would restrict plaintiff’s recovery to the total sum of $5,000, together with interest since May 20, 1974, through November 7, 1980.”

The order further provided, in pertinent part:

“Therefore, it is
ORDERED AND ADJUDGED that the joint applications made by both parties for the modification of the final judgment entered by this Court on May 20, 1974, be and the same are hereby granted in part and denied in part. Effective with the date of the filing of the Motion to Modify And/Or Vacate Final Judgment and Subsequent Orders Entered Thereon, the monthly sums of $175.00 per month to plaintiff shall terminate. The plaintiff shall be entitled to recover from T & M those monthly payments from the date of the final judgment May 20, 1974, through the date of the filing of defendant’s motion, November 7, 1980, together with interest at the legal rate, offset by any payments made to date and shall be entitled to no further relief.
In the event that an appeal is taken in this matter and if the District Court of Appeal, Third District, were to free this Court to reconsider the award of monthly payment between the final judgment date of May 20, 1974, and the date of the filing of T & M’s motion to modify, this Court would enter a final judgment in favor of plaintiff in the total amount of $5,000, together with interest calculated from May 20, 1974, less any payments made by T & M to plaintiff since that date, this Court having not done so only because it believes itself otherwise bound to those monthly awards by the earlier action in this case by the District Court of Appeal, Third District.”

Appellant Pollock has raised numerous issues on appeal concerning, in summary, the following points: whether the trial court was authorized to consider T & M’s motion in light of the equitable doctrines of laches and “clean hands” and if so, whether T & M made a sufficient showing of impossibility of performance to entitle it to the relief awarded, including the purging of prior orders adjudicating it in contempt and requiring it to pay attorney’s fees and costs incurred by the plaintiff. Pollock also urges error in the denial of his motion for relief from judgment. T & M contends by its appeal that the trial court erred in failing to vacate the subject terms of the final judgment and provide instead for such damages as were allegedly in the contemplation of the parties, i.e., the amount of $5,000 plus interest which the court stated it would award if it had the power to do so.

In regard to the propriety of the trial court’s consideration of the motions to modify and/or vacate we note at the outset that such motions are governed by Florida Rule of Civil Procedure 1.540, which provides, in pertinent part:

Rule 1.540. Relief from Judgment, Decrees or Orders
* * sfc ¡¡t # %
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons:
(5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, * * * (emphasis added)

While T & M’s motion raises matters accruing after entry of the final judgment which, technically, are properly brought under the above provision of the rule, Hensel v. Hensel, 276 So.2d 227 (Fla. 2d DCA 1973); Trawick’s Florida Practice and Procedure § 26-8 at 410 (1980 Ed.), it is strikingly apparent to this court that the trial court was not authorized to consider T & M’s motion since it was, first, not filed within a “reasonable time,” having been made by its own admission some five and a half years after it first became aware of the impossibility of its performance. See, e.g., In Re Trust of Aston, 245 So.2d 674 (Fla. 4th DCA 1971) (67 day delay unreasonable as matter of procedural law). Since the relief sought under this provision of the rule is equitable in nature, the equitable doctrine of laches, raised by the plaintiff below, similarly barred consideration of T & M’s motion. See generally 21 Fla.Jur. Limitation of Actions, § 94. T & M’s unexcused delay in bringing its motion deprived the plaintiff of the. knowledge that the promised apartment would in fact never be delivered, and precluded him from taking action to procure a comparable replacement residence at a time when market conditions were more favorable. Thus, the plaintiff was prejudiced by the delay.

Additionally, the equitable doctrine of “clean hands” operates as a bar to consideration of T & M’s motion, since T & M had been in continuous and chronic contempt of the final judgment and subsequent orders entered thereon, as well as of this court’s orders affirming same. Application of this doctrine has been considered by the Florida courts in the analogous post-judgment situations arising in dissolution of marriage actions where a party seeks to modify or vacate an award of alimony or child support. It has been held that under the “clean hands” doctrine, a decree for payment of alimony or child support will not be vacated or modified unless the petitioner has paid up all alimony and/or support due under the decree, or by his petition shows his inability to do so. Blanton v. Blanton, 154 Fla. 750, 18 So.2d 902 (Fla.1944); Mayer v. Mayer, 373 So.2d 931 (Fla. 4th DCA 1979); Feder v. Feder, 291 So.2d 641 (Fla. 3d DCA 1974). Sub judice, T & M’s failure to comply with court orders may not be said to be excused by its allegation that it was without available funds with which to make the required payments. As noted hereinafter, T & M holds assets in the form of real property which may be liquidated to satisfy its obligations to the plaintiff.

We find to be totally without merit T & M’s argument that the court erred in failing to vacate its liability to the plaintiff under the terms of the final judgment and subsequent orders and to substitute therefor damages in the amount of $5,000. The plaintiff had a vested property right to the arrearages previously determined to be owed him by T & M, Roffe v. Roffe, 404 So.2d 1095, 1097 (Fla. 3d DCA 1981), and cases cited, which the trial court was required to adjudicate. Accordingly, we direct that upon remand, the trial court provide the plaintiff with an early hearing for determination of the amounts due him and enter judgment for such amounts as are determined to be due. Roffe v. Roffe, supra.

Having determined, for the foregoing reasons, that T & M’s motion to modify was not properly before the trial court for its consideration, we find it unnecessary to address the point raised by Pollock as to whether or not T & M made a sufficient showing of impossibility of performance to entitle it to the relief awarded.

Turning now to Pollock’s contention that it was error to deny his motion for modification which sought to increase the monthly rental allowance, we do not agree. Motions for relief from judgment under the rule are addressed to the sound discretion of the trial judge and although the rule is to be liberally construed to effect relief from an unjust judgment, such relief is only available in extraordinary circumstances. Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91 (Fla. 3d DCA 1971). Under the facts and circumstances of this case, denial of the plaintiff’s motion does not present an abuse of discretion. We therefore affirm the order appealed insofar as it denies the plaintiff’s motion.

Because there will of necessity be a continuation of these proceedings in the trial court upon remand, we address one other issue raised by appellant Pollock, which will likely be raised again, that is, the dissolved status of the corporate defendant, T & M, which the court felt raised serious questions as to the propriety of ordering relief and enforcement thereof. We do not believe this to be the case. Section 607.297, Florida Statutes (1979), provides that dissolution:

“shall not take away or impair any remedy available to or against such corporation or its directors, officers, or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within 3 years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. . .”

T & M was dissolved in 1976, after entry of final judgment against it, but during the pendency of the post-trial enforcement proceedings. Under the terms of the statute, its corporate existence is said to continue for the purpose of satisfying its liabilities to the plaintiff in the instant action. City of Hollywood v. Bair, 129 Fla. 93, 178 So. 850 (Fla.1937); Air Control Products, Inc. v. Perma-Stress, Inc., 189 So.2d 412 (Fla. 1st DCA 1966). Furthermore, enforcement of judgment against T & M may be had under Section 607.301, Florida Statutes (1979). Gould v. Brick, 358 F.2d 437 (5th Cir. 1966); Chapman v. L & N Grove, Inc., 265 So.2d 725 (Fla. 2d DCA 1972). Presumably, T & M’s trustees/former directors currently hold in trust the real property acquired from the plaintiff, as well as that acquired from others in contemplation of construction of the projected apartment building. Such properties form a res out of which the final judgment, the judgment on arrearages to be rendered, and T & M’s continuing $175.00 monthly obligation to the plaintiff may be satisfied.

We do not address the other points raised by appellant Pollock, finding them to be without merit.

In accordance with the views expressed herein, the order appealed is affirmed in part and reversed in part, the final judgment is reinstated, and the cause is remanded to the trial court with directions to forthwith conduct a hearing on the plaintiff’s pending motion for determination of arrearages and to enter judgment accordingly.

      . Formerly incorporated in F.S. § 608.30 (1975).

      . Formerly incorporated in F.S. § 608.30 (1975).

      . 607.301 Transfer of property after dissolution; powers and duties of directors as trustees.—
      (1) The directors of the corporation at the time of its dissolution shall thereafter be and constitute a board of trustees for any property owned or acquired by the dissolved corporation ... In the event there be no surviving trustees or none can be located, the circuit court may appoint a trustee or trustees for the purposes of this section.
      (2) Notwithstanding the obligation of any corporation to collect its assets, pay, discharge, or make provision for all of its debts, obligations, and liabilities, and distribute any remaining property to its shareholders prior to dissolution, the trustees for a dissolved corporation shall have the power to convey any property or interest therein remaining in the corporation after dissolution or acquired by it thereafter. If the trustees of any dissolved corporation learn that the corporation continues to own any property or interest therein, the trustees shall apply the property or interest therein to the payment of any corporate debts, liabilities, or obligations known to them and, if there be none, they shall distribute the property or interest therein or the proceeds of the sale therefrom to the shareholders of the corporation at the time of dissolution.
      (3)The trustees shall continue as trustees of the property of the dissolved corporation so long as it holds of record in this state any right, title, interest, claim, lien, or demand in, to, or upon real property or for a period of 3 years after dissolution, whichever shall be longer.
      5ft ' * * * * *


author: FERGUSON, Judge.

text:
    Nicholas BONIS, Appellant, v. Susie BONIS, Appellee.
    No. 81-2272.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    As Clarified on Denial of Rehearing Oct. 19, 1982.

      Demeo & Sherman and Thomas G. Sherman, Coral Gables, for appellant.
    Scherman & Zelonker and Regina F. Zel-onker, Hialeah, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

This appeal is from a Final Judgment dissolving a marriage and awarding custody of the minor child to the wife. Appellant contends the Florida court improperly exercised jurisdiction without prior consultation with a Colorado court where the action was then pending as required by Section 61.-1314(1), Florida Statutes (1979).

The following facts are gleaned from pleadings, affidavits, and undisputed statements of facts. Appellee-wife filed a Petition for Dissolution of Marriage in Dade County, Florida on July 24, 1981. By an information affidavit filed along with the petition, in compliance with the Uniform Child Custody Jurisdiction Act (UCCJA), Section 61.132, Florida Statutes (1979), ap-pellee swore to the following:

(1) the female child of the parties was born on May 3, 1975;
(2) the parties and child resided in Brooklyn, New York from July 1976 to September 1977;
(3) the parties and child resided at Lakewood, Colorado from September 1977 to May 1st, 1978;
(4) the appellee and child resided in Brooklyn, New York from May 1st, 1978 to September, 1980;
(5) the child resided with appellant in Colorado from September, 1980 to June, 1981;
(6) in June, 1981, the child began to live with appellee at Miami Beach, Florida.

In paragraph 4 of the affidavit appellee averred:

4. Your affiant is named as a Respondent in a dissolution proceeding pending in the District Court In and For the County of Arapahoe, State of Colorado, Nicholas Bonis and Susie Bonis, Civil Action No. A80DR351, Div. 7. However, affiant has never been served with the petition filed in said cause. Affiant plans to seek dismissal of the Colorado action based on lack of personal jurisdiction. No decree has been entered in the Colorado action.

Appellant was served with the Petition for Dissolution and information affidavit by publication; copies were mailed directly to him by the clerk of the Florida court at a Colorado address provided by appellee. In response, appellant journeyed to Miami, Florida on August 13, 1981 and in a devious fashion, “snatched” the child from a day care school. He took the child with him to Massachusetts to visit with his mother. On August 14,1981 the Florida circuit court heard appellee’s Motion for Temporary Custody and entered an order determining that it had jurisdiction and ordering appellant to return the child to appellee.

Appellant returned with his daughter to Colorado on or before September 14, 1981. On that date Colorado police took custody of the child pursuant to a Colorado court order issued to enforce the Florida decree; the child was returned to appellee. A default judgment was entered against appellant on appellee’s Florida Petition for Dissolution September 8, 1981, while appellant was in Massachusetts. The final judgment from which this appeal is brought was entered on September 18, 1981.

Appellee contends: (1) the Florida trial court had jurisdiction pursuant to Section 61.1308(l)(b), Florida Statutes (1979) because appellee and the child had a significant connection with the state, (2) the Florida court was empowered to exercise jurisdiction despite the fact that appellant’s petition for dissolution had been filed earlier in the Colorado court because had this court declined to exercise jurisdiction appellant’s “child-snatching would have been rewarded”, (3) the provisions of Section 61.1314(1) did not preclude the exercise of jurisdiction because appellant’s Colorado proceeding could not qualify as a “pending” action until appellee was served and (4) the Colorado court was not exercising jurisdiction substantially in conformity with the Act because appellee had not been served with a copy of the petition which is a prerequisite to jurisdiction.

We briefly dispose of appellee’s first two contentions. Even if appellee had made a showing that she and the child had a significant connection with the State of Florida, which we doubt [compare with the facts in Brown v. Tan, 395 So.2d 1249 (Fla. 3d DCA 1981); Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1980); Howard v. Howard, 378 So.2d 1329 (Fla. 4th DCA 1980)], Section 61.1314, Florida Statutes (1979) with unmistakable clarity would still preclude exercise of that jurisdiction. Although child-snatching is one of the evils the Uniform Child Custody Act was enacted to remedy, Section 61.1304(5), Florida Statutes (1979); Brown v. Tan, an allegation or showing of child-snatching by one of the parents is not an independent statutory basis for jurisdiction, thus, contrary to appel-lee’s assertion, it will not guide resolution of the issues presented here.

Appellee’s third contention is also unavailing. An action is commenced in Florida when the complaint or petition is filed. Fla.R.Civ.P. 1.050. When an action is commenced, it becomes a pending suit and continues pending until the rendition of a final judgment. Kornblum v. Heflin, 183 So.2d 843 (Fla. 2d DCA 1966), cert. denied, 189 So.2d 632 (Fla.1966). Appellant directs us to Colorado authority which is on the point. In Lopez v. Dist. Court, Fourth Jud. Dist., Etc., 606 P.2d 853 (Colo.1980) the Colorado court, in deferring to the jurisdiction of a California court, rejected the same argument which appellee makes here:

Respondent court reasoned that the action was not ‘pending’ in the California court since the Bustamantes had not been notified of the action at the time they brought suit in Colorado. We do not agree with this interpretation of the California law...
The respondent court further justified its conclusion that there was no pending proceeding in California because the Busta-mantes, as ‘adverse parties claiming custody’ had not been served with process in the California proceeding; and, therefore, the California court had no jurisdiction to resolve the custody dispute under the Uniform Custody Act. This contention is answered by our previous discussion of the California Code of Civil Procedure provisions relating to commencement of an action and pendency of an action. Whether the California proceeding be regarded as a dissolution of marriage or as one under the Uniform Custody Act, it is clear that the proceeding was pending in that court prior to the Colorado proceeding.

Likewise, it is clear to us that the dissolution of marriage action commenced by appellant in the Colorado court was a pending proceeding at the time appellee commenced her dissolution of marriage in Florida — under either Florida or Colorado law.

Appellee’s final argument, essentially the same as the third contention, is that the Colorado court was not “exercising jurisdiction substantially in conformity” with the Act because appellee had not been served with a copy of the Colorado petition which is a prerequisite to jurisdiction. We reject the contention. Colorado Rule of Civil Procedure 3(b) provides that “the court shall have jurisdiction from the filing of the complaint. ...” Jurisdiction in this context, is the inherent power of the court, conferred by law, to deal with the general subject matter as set out in jurisdictional allegations. That power cannot be exercised however until the parties are brought before the court. Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). Though that power cannot be exercised in absence of jurisdiction over the person (or property), the inherent power to deal with the subject is not dependent on having the parties before the court. Where, as here, the named defendant in a pending proceeding is not before the court, and the court has not attempted to determine any rights or duties of the defendant, it cannot be said that the court has exercised its jurisdiction improperly.

Four stated purposes of the UCCJA are to (1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child; (3) avoid relitigation of custody decisions of the other states; (4) make the law uniform with respect to child custody jurisdiction among states which have adopted the Act. Those purposes are not served when a court, with knowledge that the subject matter of child custody is pending in another state, totally ignores the foreign proceeding and exercises jurisdiction over a child, who has been in the state for less than a month, for the purpose of making a permanent custody award. See Hanson v. Hanson, 379 So.2d 967 (Fla. 1st DCA 1980); Trujillo v. Trujillo.

We reverse those parts of the Final Judgment for Dissolution of Marriage which makes determinations as to child custody; the case is remanded for further consistent proceedings. On remand the trial court is to proceed in accordance with Section 61.-1314(1), Florida Statutes (1979) and if appropriate, to dismiss the child custody matters for lack of subject matter jurisdiction. See Constantino v. Constantino, 386 So.2d 1274 (Fla. 3d DCA 1980).

      . Section 61.1314, Florida Statutes: Simultaneous proceeding in other states.—
      (1) A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

      . Because the hearings were uncontested there was no requirement for a transcript of the proceedings.

      . Appellant argues that by agreement the child had resided with him in Colorado for nine months prior to this dispute, and it was appel-lee who snatched the child while the child was in Miami for a visit.

      . Section 61.1308(l)(b) provides:
      (b) it is in the best interest of the child that a court of this state assume jurisdiction because:
      1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
      2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

      . Appellee relies upon Mondy v. Mondy, 395 So.2d 193 (Fla. 1st DCA 1981) wherein the court in similar circumstances exercised jurisdiction for the purpose of bringing a stop to kidnapping and “determining the best interests of the children.” The court bottomed its jurisdiction on Section 61.1308(l)(b) finding that the child and mother had a significant connection with the state. The majority opinion did not consider Section 61.1314(1) and its impact in light of the then pending Idaho dissolution action. We think Mondy is incorrect and agree with Judge Joanos’s dissent. “The Act requires that courts recognize and defer to the jurisdiction of a sister State which has properly assumed jurisdiction.”

      . Upon receiving notice of the Colorado action, though not served, appellee could have returned to Colorado, the last residence of the child and the last marital residence, for the purpose of challenging the Colorado court’s jurisdiction or for a hearing on the merits.

      . § 61.1304, Fla.Stat. (1979).


author: PER CURIAM.

text:
    Gloria HARROD, Appellant, v. UNION FINANCE COMPANY, a Florida corporation, and Guido E. Rodriguez, a/k/a Guido Rodriguez, and Adis E. Rodriguez, Appellees.
    No. 82-955.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Oct. 15, 1982.
    Nathaniel L. Barone, Jr., for appellant.
    Robey and Pelstring and R. James Pel-string, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

We reverse the trial court’s order which, for the purpose of permitting the Marreros to intervene in the reopened foreclosure action, vacated both a final judgment of foreclosure and a clerk’s sale to Harrod made pursuant thereto. The Marreros’ asserted interest in the foreclosed property derives from a deed ostensibly executed in September 1981, but not recorded until December 22, 1981, eight days after the lis pendens accompanying the foreclosure action was filed and recorded. The concern that to allow purchasers pendente lite to intervene would unnecessarily protract litigation, Peninsular Naval Stores Company v. Cox, 57 Fla. 505, 49 So. 191 (1909), which gave rise to the rule precluding intervention in a mortgage foreclosure action by a person who acquires an interest in the subject property after the recording of a lis pendens, see Andresix Corporation v. Peoples Downtown National Bank, 419 So.2d 1107 (Fla. 3d DCA 1982), and cases cited therein, is equally applicable where the prospective intervenor’s interest, although acquired beforehand, is not recorded until after the recording of the lis pendens. In our view, the rule must be the same in either case.

Reversed with directions to reinstate the final judgment of foreclosure and the clerk’s sale to Harrod.


author: MILLS, Judge.

text:
    HOMESTEAD TOMATO PACKING and Florida Farm Bureau Insurance Companies, Appellants, v. Floyd DANIELS and Division of Workers’ Compensation, Appellees.
    No. AH-474.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   MILLS, Judge.

■ The employer/carrier appeal a compensation order awarding temporary total disability, medical bills, costs, and attorney’s fees. We affirm.

There is competent substantial medical evidence to support the award of temporary total disability.

The deputy commissioner appropriately used § 440.14(l)(d), Florida Statutes (1979), in determining the average weekly wage of Daniels.

The deputy commissioner did the best he could given inadequate evidence due to the failure of the employer/carrier to produce employment records.

The employer/carrier’s argument does not reveal error in the award of attorney’s fees.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: BERANEK, Judge.

text:
    Alan S. RADER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1206.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Benedict P. Kuehne of Bierman, Sonnett, Beiley & Shohat, P. A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

After a non-jury trial, Rader was convicted of the third degree felony of tampering with physical evidence in violation of Section 918.13, Florida Statutes (1981). We reverse.

The tampering charge stems from a complex set of facts concerning the larceny of Rader’s home in Hollywood. While Rader was on a business trip to New York, a former house guest, Marlene Friedman, returned to his home with Tom, the teenaged son of her roommate, also a former house guest, and removed a sterling silverware set and approximately 1,000 silver medallions. She brought these to a pawn broker in Coral Gables and received $47,500 in cash. Before departing for New York, she left approximately $18,000 in a nightstand in her apartment. When her roommate became suspicious, Tom confessed to his mother. She immediately contacted Rader in New York and related the entire story. After telling him that she was afraid to keep the money in the apartment until he returned, Rader sent his son and daughter to get the money.

Rader returned to Florida the next evening, a Sunday, and discovered a bag containing $15,343 in his bedroom closet. There was evidence that Rader often kept large sums of cash in his home. On Monday morning, he received a telephone call from the Hollywood Police Department requesting his presence at the station. He agreed to go with the police to Coral Gables to attempt to “buy back” the property from the pawn broker. At the request of the police, Rader withdrew $50,000 of his own cash for that purpose. The money was not needed as the pawn broker had already turned over the silver coins to the Coral Gables Police. That evening Rader gave his son the $50,000, along with the $15,343 in the bag, with instructions to deposit the money in his stock brokerage account as soon as possible the next morning. The $65,000 was deposited in Rader’s account by 11:00 a. m. Tuesday morning. At 1:30 p. m., Rader began giving his statement to the police. During that statement, the police asked him for the first time to turn over the $18,000 retrieved from the apartment to the police who wanted it for evidence. Rader told the police that he had the money but did not want to turn it over to them until he consulted with his attorney. He did not, however, tell them that the money had already been deposited in the bank. The police never informed Rader that it was a crime to withhold the money. After more than a month of requests from the police for the money, Rader was charged with tampering with evidence.

We find that the evidence adduced at trial was simply insufficient to support a guilty verdict. The appellant was charged with violating Section 918.13, Florida Statutes (1972), which provides:

918.13 Tampering with or fabricating physical evidence

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability on such proceeding or investigation; or
(b) Make, present, or use any record, document, or thing, knowing it to be false.
(2) Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in § 755.082, § 775.083 or § 775.084.

Initially, we are concerned that the State never explained the discrepancy between the $18,000 that Ms. Friedman supposedly left in the apartment and the $15,000 in Rader’s home. Rader testified that he did not know whether this was the same money retrieved from Ms. Friedman’s apartment by his son, or if it was currency that he kept at the house. The State never proved that the money in the bag was indeed the proceeds of the larceny. Furthermore, it was uncontested that the money was deposited in a normal business fashion in an account with a nationally recognized brokerage house. It was not until after the money was deposited, that the police asked Rader for the first time to turn over the $18,000. The State could not possibly show that he concealed the money for the purpose of impairing its availability in the criminal trial as he did not know it was needed in a criminal trial.

Tampering with evidence is a crime requiring specific intent, and appellant lacked that specific intent. See State v. News-Press Publishing Co., 338 So.2d 1313 (Fla. 2d DCA 1976). Furthermore, there is no indication that the currency itself was subject to identification and thus its value as evidence is highly questionable. The State took a deposition from Rader and never asked specifically the location of the money. We conclude the evidence was insufficient and that the Court should have directed a verdict for defendant. The judgment is vacated and the matter remanded for further proceedings in accordance with this opinion.

REVERSED.

HERSEY and DELL, JJ., concur.