text:
    Lucinda JOHNSON, et vir., Appellants, v. The SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, Appellee.
    No. 79-290.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Steven C. Burrage, of Robert D. Melton, P. A., Orlando, for appellants.
    Ira Wm. McCollum, Jr., of Pitts, Eubanks & Ross, Orlando, for appellee.
   PER CURIAM.

The summary final judgment entered herein is reversed and the cause is remanded for further proceedings, on the authority of State Farm Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA, 1980).

REVERSED and REMANDED.

ORFINGER and SHARP, JJ., and BAKER, JOSEPH P., Associate Judge, concur.


source: Caselaw Access Project

author: FRANK D. UPCHURCH, Jr., Judge.

license: Public Domain

text:
    In re the Marriage of Stephen W. JACOBSEN, Appellant, v. Mary Anna JACOBSEN, Appellee.
    No. 79-188.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    W. Ford Duane, Orlando, for appellant.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Stephen W. Jacobsen takes an interlocutory appeal from an order of the Circuit Court for Orange County denying a motion to transfer for improper venue.

Appellee Mary Anna Jacobsen sought child support, separate maintenance and child custody. Appellant and the children reside in Leon County and have never resided in Orange County. The husband moved to dismiss on the ground that the court did not have jurisdiction.. After the court denied the motion to dismiss, the husband filed a motion for transfer of venue. The court denied this motion and the instant appeal ensued.

It is uncontroverted that at the time the suit was instituted the husband and the children were residing in Leon County and had never resided in Orange County. This case is governed by the principles reviewed in Waterhouse v. Pringle, 68 So.2d 599 (Fla. 1953). See also Rivenbark v. Rivenbark, 335 So.2d 23 (Fla. 1st DCA 1976); Dones v. Green, 212 So.2d 919 (Fla. 1st DCA 1968).

The propriety of the venue of the separate maintenance aspect of this suit was accepted in appellant’s motion for transfer of venue as being properly before the court.

REVERSED and REMANDED for entry of order transferring venue of the child custody aspect of the suit to Leon County,

ORFINGER and COBB, JJ., concur.


author: ORFINGER, Judge.

text:
    Carole Jane GRAFF, Appellant, v. STATE of Florida, Appellee.
    No. 80-238.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

This is an appeal from a judgment and sentence based on a plea of guilty to a charge of violation of probation.

Appellant contends that her plea was induced by a promise that the court would let her withdraw the plea in the event he determined to sentence her to a term of imprisonment rather than continue her probation. She now requests that we relinquish jurisdiction to the trial court for the purpose of allowing her to file a motion to withdraw her plea.

The appeal is dismissed because no appeal lies from a judgment of conviction based on a plea of guilty. Rule 9.140(b), Fla.R. App.P. However, the dismissal is without prejudice to the right of appellant to question the voluntariness of her plea in the trial court or to apply for appropriate collateral relief. Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

APPEAL DISMISSED.

DAUKSCH, C. J., and COBB, J., concur.


author: PER CURIAM.

text:
    Carolyn R. DYKES, Appellant, v. Phillip R. DYKES, Appellee.
    No. TT-461.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Carroll L. McCauley, Panama, for appellant.
    Earl R. Duncan, Panama City, for appel-lee.
   PER CURIAM.

We affirm the trial court’s order as to the award of custody. However, we reverse and remand for the trial judge to provide that the husband’s exclusive use and occupancy of the marital home terminates upon his remarriage. Jones v. Jones, 330 So.2d 536, 538 (Fla.1st DCA 1976), and for consideration of the wife’s prayer for rehabilitative alimony.

ERVIN, LARRY G. SMITH, and SHIVERS, JJ., concur.


author: HURLEY, Judge.

text:
    In re the ESTATE of Stella Sternberg GOLDNER, Deceased.
    No. 78-2376.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1980.
    Alan D. Methelis of Goodman, Lembeck, Pleeter & Webber, Hollywood, for appellant Calvin J. Sternberg, co-personal representative of the Estate of Stella Sternberg Goldner.
    No appearance for appellee.
   HURLEY, Judge.

The issue in this case is whether the probate court, without first removing a co-personal representative pursuant to the provisions of Section 733.504, Florida Statutes (1977), may authorize the other personal representative to act without the consent of his co personal representative. We answer in the negative and therefore reverse.

Stella Sternberg Goldner died on July 28, 1977. Her will named her husband, Albert Goldner, and her son, Calvin Sternberg, as her executors and trustees. Thus, upon admitting the will to probate, the court appointed Albert Goldner and Calvin Stern-berg to serve as co personal representatives of the estate. It seems, however, that Goldner and Sternberg were unable to agree on the sale of certain assets, particularly three pieces of jewelry, and so, Gold-ner filed a petition to remove Sternberg as a co-personal representative. The record does not disclose why, but this petition was not ruled upon by the court.

Next, Goldner filed a pleading styled, “petition for partition and authorization to act alone without consent of co-personal representative.” Therein he alleged that he and Sternberg were residuary devisees and entitled to distribution of undivided interests in three pieces of jewelry. He claimed that the jewelry could not be partitioned and therefore, had to be sold. He further stated that Sternberg would not agree to the sale and thus, Goldner requested authorization to act alone. After an evidentiary hearing, the trial court entered the following order:

The Petition for Authority to Act Without Consent of Co-Personal Representative is granted and ALBERT GOLDNER, one of the Co-personal Representative’s of this Estate, is authorized to exercise the authority granted to personal representatives in Article Ninth of the Last Will and Testament of STELLA STERNBERG GOLDNER without the consent, concurrence or agreement of CALVIN J. STERNBERG, the other Co • personal Representative of this Estate.

As one of the beneficiaries of the property, Goldner was a proper party to file for partition under Section 733.814, Florida Statutes (1977). The statute, however, limits the court to two options: (1) partition the property, or (2) order the personal representative^) to sell any property which cannot be partitioned. Since the jewelry in question fell into the second category, the court was authorized to direct its sale, but it was not empowered to authorize such action by less than all of the personal representatives.

Section 733.615, Florida Statutes (1977), specifies in pertinent part:

If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate.

Moreover, paragraph ten of Mrs. Goldner’s will indicates that she anticipated possible difficulties in reaching agreement and therefore provided that:

In the event they [her husband and son] cannot agree, I authorize them to select a third Executor and/or Trustee preferably my attorney, HAROLD J. CONNER.

While the probate court might have achieved the same end result by directing the sale of the jewelry pursuant to Section 733.814, Florida Statutes (1977), and subsequently, if Sternberg refused to comply, removing him under Section 733.504(3), Florida Statutes (1977), the action, as taken, was both unauthorized by statute and contrary to the express provisions of the will. As such, it cannot be upheld. Accordingly, the cause is REVERSED and REMANDED for further proceedings consistent with this opinion.

GLICKSTEIN, J., concurs.

ANSTEAD, J., dissents without opinion.

      . Section 733.504 sets forth the causes for removal of a personal representative. It specifies that:
      A personal representative may be removed and his letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:
      (1) Adjudication of incompetency.
      (2) Physical or mental incapacity rendering him incapable of the discharge of his duties.
      (3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
      (4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
      (5) The wasting or maladministration of the estate.
      (6) Failure to give bond or security for any purpose.
      (7) Conviction of a felony.
      (8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
      (9) The holding or acquiring by the personal representative of conflicting or adverse interests against the estate that will or may adversely interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
      (10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of such personal representative.
      (11) Removal of domicile from Florida, if the personal representative is no longer qualified under part III of this chapter.


author: BERANEK, Judge.

text:
    W. T. PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 79-498.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his judgment and sentence on two counts of aggravated assault and one count of possession of a firearm by a convicted felon. We affirm.

We quote the factual statement in full from the defendant’s brief before this court:

Robert Sandifer and Richard Raymer were on patrol for the Ft. Pierce Police Department at about 3:00 a.m. when San-difer saw Appellant walking down, the street. The officers were looking for Appellant, whom Sandifer had known previously in Mississippi. They slowed the patrol car down and went alongside Appellant for about thirty (30) feet.
Finally they stopped the car and Sandifer got out. As Raymer was getting out, both men saw Appellant pull something from his waistband, duck behind a car, and fire several shots in their direction. The police ducked to avoid being shot. Appellant ran away.
Later that day, Sandifer and other officers went to a house, where Sandifer saw Appellant sleeping with a gun in his waistband. He seized it. When Appellant was arrested and transported to the police station, he said, “the next time he shot a cop he better take better aim.” At trial, however, he denied involvement. Over defense objection, the State was allowed to introduce evidence of the nature of Appellant’s prior conviction and the sentence imposed.

The defendant raises two points before this court. Initially defendant contends the trial court should have entered a judgment of acquittal on the aggravated assault charge because the State failed to prove a well-founded fear of imminent bodily harm on the part of the victims. Defendant also asserts error in the admission into evidence of a copy of his prior felony judgment and sentence as proof of his status as a convicted felon.

As to Point I, we hold that a victim who sees another person in the act of shooting at him evidences a well-founded fear of imminent bodily harm when he ducks to avoid being shot. We would not bother to point out this rather obvious fact except for the frequency with which we seem faced with similar arguments. See McClain v. State, 383 So.2d 1146 (Fla.4th DCA 1980). Defendant’s reliance upon Brewer v. State, 336 So.2d 695 (Fla.4th DCA 1976), cert. denied 344 So.2d 323, 326 (Fla.1977), is misplaced. Although Brewer involved a gun and an aggravated assault charge there is no indication in the Brewer opinion that the victim was aware the gun was being pointed at him. The evidence here was more than adequate to show anticipation or fear of injury on the part of the victim sufficient to sustain the charge of aggravated assault. A brave police officer who ducks to avoid being shot is nonetheless the victim of an aggravated assault even if he is not “afraid.”

As to defendant’s arguments regarding error in admission of a copy of his prior judgment and sentence we also affirm. Defendant was on trial for possession of a firearm by a convicted felon and his status as a convicted felon was a necessary element of the charge. The State attempted to prove his status by introducing a copy of his prior judgment and sentence. This document showed a conviction of breaking and entering a dwelling house with intent to commit grand larceny and a sentence of three years imprisonment. Defendant’s objections to this document were overruled.

■ It is now asserted the document should have been excluded because defense counsel offered to stipulate defendant was a convicted felon. We find no error in the trial judge’s failure to require the State to enter into this proposed stipulation. The State should not be forced into a stipulation designed to keep relevant but damaging evidence from coming before the jury. See Aldridge v. State, 351 So.2d 942 (Fla.1977), cert. denied 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978), and Foster v. State, 369 So.2d 928 (Fla.1979), cert. denied 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). The State may introduce relevant evidence which is not unduly or unfairly prejudicial notwithstanding the defendant’s offer to stipulate to a legal conclusion.

Defendant relies upon Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979) for reversal under this point. We have some difficulty in accepting the rationale of the Fouts decision. Therein the Second District Court of Appeal held it to be reversible error in an escape trial to allow the State to reveal to the jury the nature of the crime for which the defendant was serving a term of imprisonment at the time of his escape. Defendant now seeks to extend the Fouts rationale to cover the crime of possession of a firearm by a convicted felon. Fouts deals entirely with evidence of the nature of the offense for which defendant was incarcerated at the time of his escape. In the present case there was actually no objection to the portion of the judgment showing the nature of the defendant’s prior felony conviction. Instead, defense counsel objected to the sentence and fingerprints of his client on the document itself.

We conclude that in a prosecution for possession of a firearm by a convicted felon the State may introduce a certified copy of the defendant’s prior Judgment and Sentence. This may be damaging to the defendant in the eyes of the jury but the introduction of this relevant evidence is not unfairly prejudicial nor erroneous. We note that Rule 3.986 of the Florida Rules of Criminal Procedure provides a standard form of “Judgment and Sentence” which is substantially similar to the Judgment and Sentence introduced into evidence in the instant case. We chose not to follow the rationale of Fouts v. State, supra.

The defendant has failed to demonstrate reversible error and his judgment and sentence below is hereby affirmed.

AFFIRMED.

LETTS, C. J., and WESSEL, JOHN D., Associate Judge, concur.


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. James Christopher GAVIN, Appellee.
    No. 80-100.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1980.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Raymond M. Windsor of Bernstein & Windsor, P. A., Coconut Grove, for appellee.
   LETTS, Chief Judge.

We are concerned here with a trial judge’s dismissal of an information which charged the defendant with battery upon a law enforcement officer while engaged in the lawful performance of his duties contrary to Section 784.07(2)(b), Florida Statutes (1977). We reverse.

The stated reason for the dismissal was the failure of the information to allege with specificity the lawful duties which the officer was performing. We find this ruling to be in error under the law laid down by our Supreme Court in Street v. State, 383 So.2d 900 (Fla.1980), a decision rendered after the trial judges’ ruling.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD and HURLEY, JJ., concur.


text:
    Randall V. PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 80-262.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. This affirmance is without prejudice to the defendant’s right to seek appropriate relief under Florida Rule of Criminal Procedure 3.850.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: SCHEB, Chief Judge.

text:
    David Ansgar NYBERG, Appellant, v. STATE of Florida, Appellee.
    No. 80-591.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1980.
    Baya Harrison, III, of Fuller & Johnson, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

This case presents the issue of whether the trial court must impose a mandatory sentence on a defendant convicted of first degree murder once he is recommitted to the court upon completion of treatment as a mentally disordered sex offender.

A jury found David A. Nyberg guilty of first degree murder. The court sentenced him to life imprisonment without eligibility for parole for twenty-five years as required by section 775.082(1), Florida Statutes (1975). Upon reconsideration the court .classified Nyberg as a mentally disordered sex offender under chapter 917, Florida Statutes (1975), and he received treatment at the Florida State Hospital. Upon Ny-berg’s release the court, over his objection, concluded that it was required to reimpose the life sentence with the twenty-five year mandatory provision in accordance with section 775.082(1), Florida Statutes (1975).

Nyberg here argues that the court failed to recognize that it had the option of either suspending the sentence and placing him on probation, or sentencing him to a term without reference to the mandatory term required by section 775.082 under sections 917.011(l)(a) and (b). We disagree.

Section 917.011, Florida Statutes (1979), provides:

(1) Upon completion of the treatment program, the Department of Health and Rehabilitative Services shall return those mentally disordered sex offenders committed to its custody pursuant to this chapter, as this chapter existed prior to July 1, 1979, to the committing court for recommencement of criminal proceedings. The court shall have the following alternatives for disposition of such offenders:
(a) The court may suspend the sentence of the offender and place the offender on probation subject to such terms and conditions as provided in s. 917.016.
(b) The court may sentence the offender and commit him to the custody of the Department of Corrections.
(c) The court may make any other suitable disposition of the offender as provided by law.
(2) The provisions of this section shall stand repealed on July 1, 1981.

While section 917.011 enumerates several sentencing options, we think that these options are not available to the trial court following an offender’s release unless they were available prior to the offender’s classification as a mentally disordered sex offender. This is the meaning of subsection (c), which states the option of “any other suitable disposition ... as provided by law” (emphasis added). In other words, if a crime carries with it a mandatory sentence, the court must still impose the mandatory sentence. In the present case the trial court did not have any choice initially but to impose the mandatory minimum sentence under section 775.082(1). Thus, after Nyberg’s release from the Florida State Hospital, it still had to impose the mandatory minimum sentence.

Accordingly, we affirm.

GRIMES and CAMPBELL, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Dolores A. DANIELS, Appellant, v. DIVISION OF RETIREMENT, Appellee.
    No. PP-376.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.

      Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosentahl & DeCastro, Miami, for appellant.
    Stephen S. Mathues and Augustus D. Ai-kens, Jr., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Daniels appeals from an order of the Division of Retirement denying her in-line-of-duty death benefits claimed upon the death of her husband, a fireman, due to heart disease. Section 121.23, Florida Statutes (1979). The fireman suffered a myocardial infarction while off duty after pushing heavy wheelbarrow loads on a neighbor’s construction project. The Division decided the claim pursuant to Section 120.57, after referring the matter to a DOAH hearing officer for hearing, because the Retirement Commission interprets Section 121.23 as limiting its review jurisdiction to disability retirement decisions by the Division, excluding review of death benefits decisions.

The hearing officer found:
[T]he decedent’s myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19,1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a “triggering mechanism” for ventricular fibrillation, the decedent’s activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent’s heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976.

In denying death benefits on the stated ground that the fireman’s death was caused by a ventricular fibrillation attributable to pushing a wheelbarrow on the non-work related construction project, the Division substituted findings of fact for contrary findings of the hearing officer on subjects on which the hearing officer’s recommended order was entitled to greater deference. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The Division’s order does not overcome the effect of those findings and the statutory presumption that a fireman’s death due to heart disease was suffered in the line of duty. Section 112.18(1). It was not shown that “the disease causing disability or death was caused by a specific, nonwork related event or exposure.” Cald well v. Division of Retirement, 372 So.2d 438, 441 (Fla.1979). See also Division of Retirement v. Putnam, 386 So.2d 824 (Fla. 1st DCA 1980).

The Division’s order is REVERSED and the cause is REMANDED for an award of in-line-of-duty death benefits.

BOOTH and SHAW, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    PARADISE INN and Corporate Group Service, Inc., Appellants, v. Alexander HEGEDUS, Appellee.
    No. QQ-200.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.
    George A. O’Brien, Miami Shores, for appellants.
    Thomas C. Johnson, Miami, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal an order finding claimant’s average weekly wage to be $150.00, requiring them to pay the medical bills of Dr. Turke, Dr. Harrison and Dr. Gilbert because their services were “reasonable and necessary,” and awarding an attorney’s fee based on allegedly unauthorized medical bills and benefits which they contend were timely paid. The claimant cross-appeals challenging the deputy commissioner’s finding of minimal disability and his reliance on the report of Dr. Wruble rather than Dr. Harrison’s testimony and Dr. Schofman’s report. We affirm the deputy commissioner’s order in all respects as it is supported by competent substantial evidence.

The claimant, age 63, was employed as a desk manager for a hotel when he was struck on the head during a robbery attempt. His testimony and that of his employer confirms that his average weekly wage at the time of his injury was $150.00 per week. At the hearing, he complained of constant headaches and dizziness and stated that since his accident he has been unable to work. He was seen by several doctors whose disability ratings ranged from 0-5% permanent partial disability up to 45% permanent partial disability. Because of his knowledge of their abilities in this field, the deputy commissioner appointed Dr. Wruble, an otolaryngologist, and Dr. Ehlert, a neurosurgeon as independent examiners. Based on their reports of a minimal disability, upon which the deputy commissioner placed the greatest degree of credibility, and the reports of two other doctors, the deputy commissioner found a permanent partial disability of 15%. We find the deputy commissioner sufficiently explained his reasons for choosing the medical opinions of Dr. Wruble and Dr. Ehlert over those of the other doctors. Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla. 1978). In regards to the employer/carrier’s assertion that they accepted a 17'/2% rating and paid the resultant benefits, we note the pre-trial stipulation belies this contention as it reflects their position that no permanent partial disability over 2V2% of the body was due. Accordingly, the deputy commissioner did not err in awarding a fee based upon the recovery of benefits.

The only provision of the order which deserves extended discussion is that one requiring payments of the medical bills of Dr. Turke, Dr. Harrison and Dr. Gilbert because their services were “reasonable and necessary.” We recognize this is not the standard to be applied. Atlantic Cold Storage v. Hernandez, IRC Order 2-3071 (November 22,1976). Section 440.13(1), Florida Statutes (1975), requires the employer to furnish medical attention and requires the employee to request medical attention of the employer before the employee can provide these services for himself at the expense of the employer. The statute further provides in part:

[N]or shall any claim for medical, surgical, or other remedial treatment be valid and enforceable unless within 10 days following the first treatment . .., and thereafter at such intervals as the division by regulation may prescribe, the physician or other recognized practitioner giving such treatment or treatments furnish to the division and to the employer, or to the carrier if the employer is not self insured, a report of such injury and treatment . .., provided that a judge of industrial claims for good cause may excuse the failure of the physician or other recognized practitioner to furnish any report within the period prescribed .... (Section 440.13(1))

A finding by the deputy commissioner that medical services are “reasonable and necessary” is not analogous to a finding of excu-sal. Atlantic Cold Storage v. Hernandez, supra; Baptist Hospital v. Mack, IRC Order 2-2961 (May 7, 1976), cert. den. 341 So.2d 1079 (Fla.1976). Nevertheless, we agree the award should be affirmed in this case because claimant testified, without contradiction, that his employer told him to see whatever doctors he needed to see. Further, Dr. Turke testified that he called the employer and was granted permission to treat the claimant. His testimony was not contradicted by the employer. Since claimant was referred to Dr. Harrison and Dr. Gilbert, by Dr. Turke, an authorized physician, the employer/carrier is under a duty to pay their bills. Buena Vista Construction Company v. Theis, 7 FCR 377 (March 28, 1973), and cases cited therein. Finally, concerning the employer/carrier’s argument that the medical bills should not be paid because their medical reports were not filed with the Department of Commerce or the employer/carrier, we affirm for lack of any indication in the record that this point was raised at the time of the hearing below. The parties’ pre-trial stipulation merely states the employer/carrier’s position to be “all other med unauthorized.” The order is accordingly affirmed. Ocuto v. Malone, IRC Order 2-3668 (January 24, 1979).

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.


text:
    Lillian B. BROCKMAN, Appellant, v. DADE DIVISION-AMERICAN HOSPITAL SUPPLY and American Motorists Insurance Company, Appellees.
    No. QQ-207.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.
    Albert E. Harum, Jr. of Harum & Ha-rum, Coral Gables, for appellant.
    Summers Warden, Miami, for appellees.
   PER CURIAM.

Appellant-claimant appeals a worker’s compensation order awarding her 15% permanent physical impairment of the body as a whole. Appellant contends that the judge of industrial claims was in error in failing to make appropriate findings and render a decision on whether a merger of her com-pensable accident and her preexisting condition occurred so as to entitle her, under Section 440.15(5)(c), Florida Statutes (1977), to a greater disability rating. We find error and reverse.

The judge found that appellant, a research scientist, suffered a compensable accident on March 18, 1977 when she twisted her back during her employment. He also found that appellant had suffered a series of accidents or physical ailments over the past years. In 1952, while water skiing, she suffered a cracked oscaleis. In 1956 she was involved in an automobile collision, sustaining injury to her right knee and low back, a concussion and bruises. In 1961 a lumbar laminectomy was performed. She also suffers from osteoporosis, and was treated in 1976 for a problem in her left hip. The medical evidence, as summarized in the judge’s order, included the opinion of Dr. Mims who rated appellant as having a 35% permanent partial disability of the body as a whole, with 25% preexisting the accident of March 18, 1977, with 10% resulting from the compensable accident. Dr. Weissman was of the opinion that appellant was permanently and totally disabled due to osteoporosis with compression fractures, and multiple knee and disc problems. He was unable to give a separate percentage disability for any single physical problem. Dr. Kalbac could find no objective evidence of any disability attributable to the injury of March 18, 1977, while Dr. Holmes was of the opinion that she had not yet reached maximum medical improvement.

The judge resolved the conflicts in the medical evidence by finding that the claimant reached maximum medical improvement on January 26, 1978; that she suffers a 15% residual physical impairment of the body as a whole resulting from the accident of March 18, 1977; and that the balance of her disability is not related to her accident of March 18,1977. Appellant contends, and we agree, that the evidence is susceptible to a finding that by reason of appellant’s preexisting condition, her compensable accident resulted in a disability which is greater than that which would have resulted from the compensable accident alone, so that a higher disability rating is mandated by Section 440.15(5)(c). See Thomas v. T & T Trucking, 382 So.2d 449 (Fla. 1st DCA 1980); Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209 (Fla.1974); Cypress Gardens Citrus Products v. Murchison, 240 So.2d 803 (Fla.1970); and Media General Corporation v. Curry, 382 So.2d 686 (Fla.1980). In addition to the foregoing facts, the testimony of appellant and her employer demonstrates that the employer had knowledge of her preexisting condition pri- or to the accident. However, the order contains no finding with respect to the employer’s knowledge of the preexisting condition.

Here, as in Thomas, supra, we find it necessary to require the judge to make specific findings as to whether a merger occurred under the statute and authorities cited. We have noted and reject appellees’ contention that consideration of a merger and possible increased disability rating thereby is precluded because there was no claim for “merger”, no testimony regarding merger, and no findings of merger. It is clear that the testimony focused upon appellant’s preexisting condition and the effect of her subsequent compensable injury. We think appellees were on notice of the extent of the claim, including the possibilities of a finding of a merger.

Appellant’s second point on appeal challenges the finding limiting appellant’s wage earning capacity loss to only 15%. Appellant testified that she was unable to work because of mid-back pain, low back pain, rib pain, and a tingling and numbness in her hands and right thigh. She stated that the mid-back pain and rib pain began subsequent to the 1977 accident. She further related that she had returned to work for one day, but was unable to continue because of the pain. Dr. Weissman, as previously indicated, found her permanently and totally disabled. In view of our ruling concerning the absence of adequate findings and order relating to the merger issue, we conclude that a reconsideration of that issue on remand will necessarily require a reconsideration of appellant’s wage earning capacity loss. We therefore remand for reconsideration and findings with respect to appellant’s preexisting condition and whether a merger occurred, and for further consideration of her wage earning capacity loss.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    NORTH AMERICAN ROCKWELL and Employers Insurance of Wausau, Appellants, v. Edward J. FILLIBEN, Appellee.
    No. RR-276.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.

      John R. Gierach of Gierach & Ewald, P. A., Orlando, for appellants.
    Gary F. Large of Frank Henry Molica, P. A., Merritt Island, for appellee.
   PER CURIAM.

Rockwell and Employers Insurance appeal a worker’s compensation order which increased the amount of benefits they were required to pay Filliben, their employee-insured. Appellants urge six points on appeal, including the ground that the statute of limitations precluded Filliben from claiming increased benefits. Because this issue demonstrates reversible error, it is unnecessary to discuss the remaining points on appeal.

In 1970, Filliben injured his back in an industrial accident. After six years of litigation, the judge of industrial claims entered an order fixing the date of maximum medical improvement as December 5, 1973, and awarded Filliben a twelve percent (12%) permanent partial disability. The order was entered on May 3, 1976. Filliben appealed, the Industrial Relations Commission affirmed, and the Florida Supreme Court denied certiorari. Filliben v. North American Rockwell et al., 354 So.2d 980 (Fla.1977). Then on May 25, 1978, Filliben filed a petition for modification, and on April 30, 1979, he filed an “application for hearing on claim.” He sought additional remedial treatment, alleging his physical impairment had increased so that the earlier finding of twelve percent (12%) disability had been “a mistake.” Although Rockwell and Employers Insurance continued to furnish medical treatment and drugs through 1979, the parties stipulated that the last payment of compensation was made April 30, 1976. The judge of industrial claims granted Filliben’s requests for additional treatment.

A judge of industrial claims may entertain a petition for modification within two years after the last compensation paid pursuant to a compensation order, or within two years of the date copies of an order rejecting a claim are mailed to the parties. Section 440.28, Florida Statutes (1979). Clearly, the time between the date of the last payment of compensation and the date Filliben filed his petition for modification exceeds the two- year limitation, so the judge of industrial claims was without authority to enter the order now appealed.

The judge of industrial claims ruled in error that Filliben’s earlier appeal to this court and to the Supreme Court tolled the statute of limitations. Davis v. Combination Awning and Shutter Company, et al., 62 So.2d 742 (Fla.1953).

Accordingly, the judge of industrial claims’ order is quashed.

MILLS, C. J„ and McCORD and THOMPSON, JJ., concur.


text:
    MANATEE MEMORIAL HOSPITAL and Argonaut Insurance Company, Appellants, v. Ruth Betty HEIDEN, Appellee.
    No. RR-365.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellants.
    Charles H. McQuillan of McQuillan & Beltz, St. Petersburg, for appellee.
   PER CURIAM.

The employer/carrier appeals a worker’s compensation order entered July 6, 1979, finding appellee did not sustain a subsequent intervening accident which broke the chain of causation from the original com-pensable accident, awarding Heiden continued temporary total disability benefits, and authorizing remedial psychiatric care under the auspices of Dr. Shultz. We affirm the order of the Judge of Industrial Claims.

On April 12, 1975, Ruth Betty Heiden suffered a compensable accident, resulting in injuries to her lower back. A lumbar laminectomy was performed by Dr. Wallace on February 24,1977. The claimant gradually improved and was released with a rating of 25 percent anatomical and functional disability to the body as a whole as of July 1, 1977. In October of 1977, Heiden’s condition changed for the worse. It is to be noted that this worsening condition did not occur until claimant had been released from the hospital several months. The Judge of Industrial Claims found:

Following the discharge by Dr. Wallace the claimant engaged in some rather typical activities such as walking in and out of a small camper or truck type vehicle, walking around a boat show, and the like. As a result of these activities, which are not unusual nor excessive nor unreasonable, the claimant tore the scar tissue left at the operative site from the operation in February, 1977. In point of fact, the claimant began to deteriorate on or about October 17, 1977. The employer/carrier advances the rather novel position that the activities of the claimant constitute an intervening cause. It is plain that an intervening cause or an intervening accident or a post-injury accident may break the chain of causation stemming from an industrial accident or may require payment for only that portion of a person’s disability attributable to an industrial accident. However, it is plain that in this case the claimant’s activities and injuries do not constitute an intervening cause as the claimant in usual and normal activity tore scar tissue left in her back as a result of the surgical procedure resulting directly from the industrial accident. This is not in law or in fact an intervening cause but rather a continuation of the sequelae of the industrial accident. That is, the claimant is operated upon, is left with a weakness because of the operation (in this case scar tissue) and later the scar tissue is torn. Absent the industrial accident and absent the surgery, there would have been no scar tissue for the claimant to tear and it is plain and apparent from the medical evidence that it is this scar tissue and this injury to scar tissue combined with the laminectomy or linked together with the laminectomy which are causing the claimant’s present difficulties.

Our review of the record indicates no error with respect to the finding that there had been no intervening accident.

There was competent, substantial evidence in the record based on the testimony of Dr. Shultz, a duly qualified psychiatrist, that psychiatric treatment is indicated for the claimant and that from a psychiatric standpoint the claimant is presently 100 percent disabled. We therefore affirm.

WENTWORTH and JOANOS, JJ., and' LILES, WOODIE A., Associate Judge (Retired), concur.


author: JOANOS, Judge.

text:
    Debra Ann BAILEY, formerly Debra Ann Malone, Appellant, v. William Vincent MALONE, Appellee.
    No. VV-95.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.

      Benjamin T. Shuman, Orlando, for appellant.
    Janice Milin, Warrington, for appellee.
   JOANOS, Judge.

By interlocutory appeal, the appellant, Debra Ann Bailey, challenges the Escambia County Circuit Court’s denial of her motion to transfer for improper venue and her motion to dismiss for lack of personal and subject matter jurisdiction. The issues raised on appeal concern the proper venue and subject matter jurisdiction of the Es-cambia County Circuit Court over a motion to modify both child support payments and visitation rights filed by appellee William Malone, appellant’s ex-husband. We reverse the trial judge’s denial of the motion to dismiss.

On December 5, 1978 the final judgment of dissolution between the parties to this proceeding was entered in the Circuit Court of Bradford County, Florida. Since that time, appellant has moved to Levy County while appellee now resides in Escambia County. Appellant has primary custody of their infant child; appellee has visitation rights and is required to make support payments.

After falling behind in his child support payments, appellee was issued a notice by the Bradford County Circuit Court to appear on February 25, 1980 and show cause why he should not be held in contempt. On February 18th, appellee’s attorney moved for and was granted a continuance until March 3, 1980. When neither appellee nor his attorney appeared at the March 3rd hearing, the court issued an order for appel-lee’s arrest.

On February 28,1980, while the Bradford County proceeding was still pending, appel-lee filed in the Escambia County Circuit Court a motion seeking to modify the child support payments as well as to alter the child custody arrangements of the final judgment of dissolution. Jurisdiction and venue were alleged under Florida Statutes § 61.14, which provides:

When the parties have entered into . . . an agreement for payments for, or instead of, support, maintenance, or alimony ... or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed . . . either party may apply to the Circuit Court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires ....

In response to the motion, appellant filed a motion to dismiss alleging that the Es-cambia County Circuit Court lacked both personal and subject matter jurisdiction. Appellant also filed a motion to transfer the action to Bradford County, where the cause of action arose and where the court had continuing jurisdiction. Relying primarily on § 61.14, the trial court denied both of appellant’s motions.

The circumstances of this case seem to present a conflict between § 61.14 and common law jurisdictional rules. It is well established that the court which rendered the original judgment of dissolution, the Bradford County Circuit Court, has exclusive jurisdiction of any petition seeking modification of child custody. Wells, in and for Walton County v. Ward, 314 So.2d 138 (Fla.1975); Jones v. State ex rel. Greathouse, 241 So.2d 432 (Fla. 1st DCA 1970). In addition, the Bradford Court has continuing jurisdiction for the enforcement of its decree. In this case, a proceeding to enforce the original judgment was pending when the appellee filed in a different circuit a motion to modify the decree. On the other hand, § 61.14 provides that motions to modify support payments may be brought in the county where either of the parties reside even though the original decree was entered in another county. Sikes v. Sikes, 286 So.2d 210 (Fla. 1st DCA 1973).

The apparent conflict between § 61.-14 and the jurisdictional rules governing child custody has already been resolved, however, by this Court. In Elliott v. Weyman, 337 So.2d 832 (Fla. 1st DCA 1976) we held that where a petition seeks modification of both child support and custody, a circuit court which had not entered the original judgment could not retain jurisdiction over either count. The reasoning in Elliott was set forth as follows:

Since the Circuit Court of Broward County is the only court having jurisdiction of the custody question which appellant has raised, this entire controversy should be determined by that court. It is illogical that one circuit court determine modification of child support while another, at the same time, determines child custody.

Id. at 833. Section 61.14 is not in conflict with the holding in Elliott. The legislature did not intend that § 61.14 require a court to take jurisdiction in all circumstances; under § 61.14, the court only “has jurisdiction to make orders as equity requires . . . (Emphasis added.) Where a cause of action would be split between two different circuits, making an equitable determination of either part impossible, equity requires that only one circuit entertain the matter-the circuit where the original decree was rendered.

Even if the modification motion in this case had not involved child custody, § 61.14 could not justify the Escambia Court’s retention of the proceeding in regard to a motion to modify support payments. Before the modification motion was filed in Escambia County, proceedings to enforce the original decree had already been initiated in Bradford County. Appel-lee had been validly served in the Bradford County action; his attorney had even appeared before the court in order to move for a continuance. With- viable enforcement proceedings pending in Bradford County, the Escambia Court should not-have retained jurisdiction of a petition to modify the same decree which the Bradford Court was seeking to enforce. Section 61.-14 may not be manipulated to escape or ignore enforcement proceedings pending in a different county. Using the terminology of § 61.14 again, equity would require that the Escambia Court give deference to the Bradford County action.

We REVERSE the trial court’s order denying the appellant’s motion to dismiss. The cause now stands dismissed.

WENTWORTH, J., and LILES (Ret.), Associate Judge, concur.


text:
    Sergio Elier MORFFIS, a/k/a Sergio Blanco and Peerless Insurance Company, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1878.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Stone, Sostchin & Gonzalez and Gisela Cardonne, Miami, for appellants.
    Janet Reno, State’s Atty. and John P. Durant, Asst. State’s Atty., for appellee.

      Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ„
   PER CURIAM.

Affirmed. See § 903.27(2), Fla.Stat. (1977); Allied Fidelity Insurance Company v. State, 372 So.2d 545 (Fla.3d DCA 1979); Resolute Insurance Company v. Brinker, 338 So.2d 861 (Fla.3d DCA 1976).


text:
    D. A. D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-132.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

DISMISSED sua sponte on the authority of R. J. B. v. State, No. 79-242/T4-383 (Fla. 5th DCA Sept. 17, 1980).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


author:
MARCUS, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Terry D. BARNETT.
    No. 65748.
    Supreme Court of Louisiana.
    May 19, 1980.
    Garon, Brener & McNeely, Jacques F. Bezou, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon A. Cannizzaro, Jr., Louise S. Korns, David J. L’Hoste, Asst. Dist. Attys., for plaintiff-respondent.
   MARCUS, Justice.

Terry D. Barnett was charged by bill of information with receiving stolen things in violation of La.R.S. 14:69. Defendant filed a pretrial motion to suppress certain records seized from his place of business pursuant to a search warrant. After a hearing, the trial judge denied the motion. We granted defendant’s application under our supervisory jurisdiction to review the correctness of this ruling.

Evidence adduced at the suppression hearing reveals that on April 19, 1979, two New Orleans police officers entered defendant’s place of business, Gulf States Coin Exchange, Inc., 126 Royal Street, New Orleans, Louisiana, during business hours to execute a search warrant authorizing them to search for certain listed pieces of silverware. After searching the premises without finding the listed items, the officers were told that the pieces may have been melted down. They then requested to see defendant’s records. Defendant and the officers searched the records and found a cash voucher that indicated defendant had purchased the listed silverware. The officers seized the voucher.

Defendant contends the trial judge erred in denying his motion to suppress. He argues the search that led to seizure of the evidence sought to be suppressed exceeded the authority of the search warrant. The state argues to the contrary but alternatively argues that, even if the search did exceed the authority of the warrant, defendant consented to the search. Finally, the state contends that defendant’s rights were not violated by the search and seizure of his business records because defendant had no reasonable expectation of privacy

therein. Finding merit in the state’s latter argument, we pretermit discussion of the other issues.

In Louisiana, dealers in used or secondhand property are subject to certain licensing and record-keeping requirements. One of these statutes, La.R.S. 37:1865, provides:

The book containing the record of purchase as provided for in R.S. 37:1864 and the various articles purchased and referred to therein shall at all times be open to the inspection of the superintendent of police or sheriff of the parish or anyone designated by them of the city, town, or parish in which the second-hand dealer does business.

In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the United States Supreme Court discussed the constitutionality of a similar federal statute allowing warrantless inspection of the premises of any firearms or ammunition dealer for records or documents required to be kept and any firearms or ammunition kept at such premises. The Supreme Court stated:

[W]e had no occasion in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), to consider the reach of the Fourth Amendment with respect to various federal regulatory statutes. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), we dealt with the statutory authorization for warrantless inspections of federally licensed dealers in alcoholic beverages. There, federal inspectors, without a warrant and without the owner’s permission, had forcibly entered a locked storeroom and seized illegal liquor. Emphasizing the historically broad authority of the Government to regulate the liquor industry and the approval of similar inspection laws of this kind in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), we concluded that Congress had ample power “to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand.” 397 U.S., at 76, 90 S.Ct., at 777. We found, however, that Congress had not expressly provided for forcible entry in the absence of a warrant and had instead given Government agents a remedy by making it a criminal offense to refuse admission to the inspectors under 26 U.S.C. § 7342.
Here, the search was not accompanied by any unauthorized force, and if the target of the inspection had been a federally licensed liquor dealer, it is clear under Colonnade that the Fourth Amendment would not bar a seizure of illicit liquor. When the officers asked to inspect respondent’s locked storeroom, they were merely asserting their statutory right, and respondent was on notice as to their identity and the legal basis for their action. Respondent’s submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder’s acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all. In this context, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), is inapposite, since there the police relied on a warrant that was never shown to be valid; because their demand for entry was not pursuant to lawful authority, the acquiescence of the householder was held an involuntary consent. In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute.
We think a like result is required in the present case, which involves a similar inspection system aimed at federally licensed dealers in firearms. Federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but close scrutiny of this traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders. See Congressional Findings and Declaration, Note preceding 18 U.S.C. § 922. Large interests are at stake, and inspection is a crucial part of the regulatory scheme, since it assures that weapons are distributed through regular channels and in a traceable manner and makes possible the prevention of sales to undesirable customers and the detection of the origin of particular firearms.
It is also apparent that if the law is to be properly enforced and inspection made effective, inspections without warrant must be deemed reasonable official conduct under the Fourth Amendment. In See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the mission of the inspection system was to discover and correct violations of the building code, conditions that were relatively difficult to conceal or to correct in a short time. Periodic inspection sufficed, and inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system there at issue. We expressly refrained in that case from questioning a warrantless regulatory search such as that authorized by § 923 of the Gun Control Act. Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible.
It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer’s justifiable expectations of privacy. When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector’s authority. 18 U.S.C. § 921(a)(19). The dealer is not left to wonder about the purposes of the inspector or the limits of his task.
We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute. The seizure of respondent’s sawed -off rifles was not unreasonable under the Fourth Amendment .... [Footnotes omitted.]

The same .considerations are present in the instant case. The search was not accompanied by any unauthorized force. When the officers requested to see defendant’s records, they were merely asserting their statutory right. The lawfulness of the search does not depend upon consent. Rather, it depends on the authority of a valid statute.

The present case involves an inspection system aimed at state-licensed dealers in secondhand goods. State regulation of secondhand dealers has been in effect since 1926. Close scrutiny of traffic in secondhand goods is undeniably of central importance to state efforts in discouraging burglaries, thefts, and robberies, serious crimes that can be violent. Large interests are at stake, and inspection directly furthers those interests since it tends to limit access to channels through which thieves may safely convert stolen property into cash.

Also, as in Biswell, it is apparent that, if inspection is to be effective as a credible deterrent of the practice of buying used goods from unidentified strangers, inspections without warrants must be deemed reasonable under the fourth amendment. Unannounced, even frequent, inspections are essential. The prerequisite of a warrant could easily frustrate inspection. In any case, the protection afforded by a warrant would be negligible.

Furthermore, inspections under La.R.S. 37:1865 pose only limited threats to the dealer’s justifiable expectations of privacy. When a dealer chooses to engage in this regulated business and seeks a state license, he does so with the knowledge that his business records and the goods he purchases will be subject to effective inspection.

We have little difficulty in concluding that where, as here, regulatory inspections further urgent state interest, and the possibilities of abuse and the threat to privacy are not of important dimensions, the inspection may proceed without a warrant where specifically authorized by statute. Accordingly, the trial judge did not err in denying defendant’s motion to suppress.

DECREE

For the reasons assigned, the judgment of the district court is affirmed and the case is remanded to the district court for further proceedings in accordance with law.

DIXON, C. J., concurs.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for reasons assigned by Calogero.

CALOGERO, Justice,

dissenting.

I respectfully dissent from the majority opinion because I do not believe that the requirements of R.S. 37:1865 were properly complied with nor do I believe that the present case is analogous to United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).

The specific regulatory provisions in Louisiana relative to required records of secondhand dealers do not provide that a policeman looking for described contraband, armed with a warrant authorizing its seizure, can, after not finding the contraband, search the dealer’s business records, which were not specifically described in the warrant. Nor does the statute provide that any policeman on the force may, at any time, go into a dealer’s store and demand to inspect his records. Rather, the statute merely states that the records “shall at all times be open to the inspection of the superintendent of police or sheriff of the parish or anyone designated by them .. ..” There has been no showing in this case that the inspecting officers had been designated by the superintendent of police to go and search or inspect this dealer’s records.

The fact is that, in this case, the officers made an unsuccessful warrant search for certain pieces of silver. Displeased with the lack of results, the officers took it upon themselves, not under the color of R.S. 37:1865, to demand the defendant’s business records. The officers at the time of the search, for all the record reveals, were not authorized by the superintendent to look at the records, did not assert any right under R.S. 37:1865 and did not rely thereon at the time of the search. The prosecutor, charged with the burden of proving the legality of the search and seizure did not assert, at the hearing on the motion to suppress, that the officers were making the search under R.S. 37:1865 and did not present any evidence in reliance thereon. Therefore, I believe that the statute was not properly complied with and the search and seizure can not be validated by reference to it now.

Furthermore, even assuming for purposes of argument that the statute was complied with, I am of the opinion that the present case is distinguishable from Biswell, supra, because I do not believe that the secondhand dealer business is subject to as pervasive governmental regulation as is the firearm industry or the liquor industry. Nor do I believe that the secondhand dealer business as a whole necessitates unannounced and frequent inspections for effective regulation of the business. This statute simply does not contain the time, scope and frequency limitations required by Biswell, supra.

Finding no merit in this argument by the state, I believe that the defendant’s other two contentions should have been considered: that the seizure of his business records exceeded the authority of the warrant; and that he did not consent to the search.

The warrant only authorized the seizure of specifically described items of silver and did not authorize the seizure of defendant’s business records. There being no valid warrant for the seizure of these records, the confiscation by the officers was made without a warrant, and was thus per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and State v. Colvin, 358 So.2d 1250 (La.1978). Therefore, the seizure of private papers not specifically described in the search warrant is unlawful, and as such the evidence so obtained should be suppressed. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The state alternatively argues that the defendant consented to the search of his business records and thus the search was permissible because a search after consent is an exception to the prohibition against warrantless searches. I do not agree with this contention. Although defendant was advised of his rights when the officers first entered the store, in the face of two “upset” police officers demanding production of defendant’s business records, with the presumed authority of a valid search warrant, it can not be said that defendant’s conduct in complying with this apparent official request could be construed as freely and voluntarily given consent. Consent given in the face of colorably lawful coercion cannot be used to validate otherwise illegal acts. Bumpers v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); and Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

For the foregoing reasons, I believe that the warrant did not cover the search of defendant’s business records, that the defendant did not freely and voluntarily consent to the search and that the search and seizure were not authorized by R.S. 37:1865. Therefore, I dissent from the majority opinion upholding the seizure of defendant’s business records and affirming the trial court’s denial of defendant’s motion to suppress.

       The Honorable Edward A. de la Houssaye III participated in this decision as Associate Justice Ad Hoc.

      . 377 So.2d 120 (La. 1979).

      . La.R.S. 37:1861-: 1870 provide:
      § 1861. “Second-hand dealer” defined
      Every person in this state engaged in the business of buying, selling, trading in, or otherwise acquiring or disposing of used or second-hand property such as jewelry, silverware, diamonds, pictures, objects of art, clothing, mechanic’s tools, carpenter’s tools, automobile accessories and supplies, and other such property, is a second-hand dealer. The provisions of this Part shall not apply to the retail jewelry, automobile, furniture, and antique business.
      § 1861.1 Secondhand dealer defined in parishes with a population over four hundred fifty thousand
      A. Notwithstanding any provisions of this Part to the contrary, every person in a parish with a population in excess of four hundred fifty thousand who is engaged in the business of buying, selling, trading in, or otherwise acquiring or disposing of used or secondhand property is a secondhand dealer subject to the provisions of this Part unless otherwise defined by law. This definition shall apply to but not be limited to owners of secondhand stores, flea markets, and antique shops. In such a parish, this Section shall not be construed as applying to dealers in motor vehicles,- dealers in used parts or used accessories of motor vehicles or wreckers or dismantlers of motor vehicles who are licensed under the provisions of R.S. 32:718 et seq.
      § 1862. License required; application; bond
      No person shall do business as a secondhand dealer in this state without having first obtained the license required by law. Any person desiring a license as second-hand dealer shall make application in writing, specifying the street number and house number of the building where the business is to be carried on. This application shall be signed by at least three property tax payers of the city or parish where the business is to be established, certifying that the applicant is of good moral character. He shall also submit with his application, a bond in favor of the city or parish, as the case may be, where the business is to be established, in the sum of three hundred dollars with security, conditioned for the due observance of all provisions of this Part.
      § 1863. Change in location to be noted on license
      If after issuance and delivery of a license under the provisions of this Part any change is made in the location of the place of business designated therein, the business shall not be conducted at the new location or under such license, until the official issuing the license notes the change on the license, and the superintendent of police of the city or the sheriff of the parish in which the secondhand dealer is doing business is notified in writing of the change.
      § 1864. Record of secondhand goods or. objects purchased required
      Every secondhand dealer as defined in this Part shall be required to maintain a book or ledger setting forth each purchase of secondhand or used merchandise when the value of any single piece of merchandise or article received shall be twenty-five dollars or more, for each single transaction. The price at which a piece of merchandise is offered for sale by a secondhand dealer shall be considered prima facie evidence of the value of the piece of merchandise. Each ledger entry shall be entered at the time of each transaction and shall contain an accurate description in the English language of the merchandise or article received including serial numbers of said objects, if distinguishable, along with the amount paid therefor.
      The name, address, sex, race, height, weight, and driver’s license number of the person or persons selling or delivering said merchandise or articles to the dealer shall be obtained and included with each ledger entry. Records of each purchase shall be preserved for a period of at least three years.
      § 1865. Book to be open for inspection
      The book containing the record of purchase as provided for in R.S. 37:1864 and the various articles purchased and referred to therein shall at all times be open to the inspection of the superintendent of police or sheriff of the parish or anyone designated by them of the city, town, or parish in which the secondhand dealer does business.
      § 1866. Daily report of entries
      Every person, licensed under the provisions of this Part shall make out and deliver to the superintendent of police of the city or town or to the sheriff of the parish in which he is doing business, every day before the hour of twelve o’clock noon, a legible and correct copy of the entries in the book mentioned in R.S. 37:1864 during the previous day. The name given by the person making a sale shall be furnished the superintendent of police or sheriff when they specially request it.
      § 1867. Disposal or changing identity prohibited during ten day period
      No second-hand dealer shall sell or dispose of or change or destroy the identity of any goods, articles or things, purchased by him before an interval of ten days from date of purchase has elapsed.

        § 1868. Hours of business
      A second-hand dealer shall neither open his place of business before the hour of 7 o’clock a. m. nor keep it open after the hour of 7 o’clock p. m. except on Saturdays and during the month of December, during which time the hour of 7 o’clock p. m. shall be extended to 10 o’clock p. m.
      § 1869. Violations; penalty
      Any secondhand dealer who violates, neglects, or refuses, to comply with any provisions of this Part, shall, for the first offense, be fined not less than twenty-five dollars, nor more than one hundred dollars or be imprisoned for not less than ten days nor more than thirty days, or both. For the second and subsequent offenses he shall be fined five hundred dollars, or be imprisoned for not less than thirty days, nor more than sixty days, or both. If convicted three times his license shall be revoked and he shall not thereafter be permitted to engage in the business of secondhand dealer in the state of Louisiana.
      § 1870. Failure to comply; penalty
      Anyone acting as a second-hand dealer without complying with the provisions of this Part shall be fined not less than two hundred and fifty dollars or be imprisoned not less than thirty days nor more than sixty days, or both.

      . The question has been raised whether La.R.S. 37:1865, which provides that the records must be open to the inspection of the superintendent of police or sheriff of the parish or anyone designated by them requires an express designation of authority to be made before the inspection can proceed. In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the inspection statute stated: “The Secretary may enter .. . . ” The actual entry was made by a federal treasury agent who showed no express authorization by the Secretary of the Treasury. The Supreme Court held the inspection valid. Therefore, we do not consider whether La.R.S. 37:1865 requires an express designation of authority before an officer can inspect the records of a secondhand dealer.

      . The present regulations were first enacted as 1926 La.Acts, No. 309.

      . We are mindful that in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court invalidated searches made without warrants pursuant to inspection statutes. These cases, however, are clearly distinguishable, as they involve inspections for compliance with safety codes, fire codes, and housing codes, none of which require frequent, unannounced inspections to maintain their effectiveness. The United States Supreme Court itself distinguished See in Biswell, stating:
      The mission of the inspection system [in See] was to discover and correct violations of the building code, conditions that were relatively difficult to conceal or to correct in a short time. Periodic inspections sufficed, and inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system there at issue.
      Furthermore, in Barlow’s, See, and Camara, the Supreme Court was not faced with inspection statutes enacted as part of a licensing scheme.


author: CALOGERO, Justice. DIXON, C. J., DIXON, Chief Justice

text:
    Jean BOURGEOIS, Individually and on behalf of her son, Johnny Cullins, and Johnny Cullins, Individually v. H. J. FRANKLIN, Catherine C. Franklin, Jack Donnow, Melvin Ockman, National Phosphate Corporation, Link Belt Corporation, A B C Insurance Company, X Y Z Insurance Company and Aetna Casualty Insurance Company.
    No. 66034.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Herman M. Schroeder, John J. McCann, McCann & Volk, New Orleans, for plaintiff applicant.
    Norman J. Pitre, Luling, Charles W. Ditt-mer, Jr., Wilson M. Montero, Jr., Martzell & Montero, John J. Weigel, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Esmond Phelps, II, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants -respondents.
   CALOGERO, Justice.

In a tort suit, where the attorneys for plaintiff and defendant, ostensibly with the assent of their respective clients, recite in open court the fact and amount of a compromise settlement without having reduced it to writing, may one of the parties thereafter enforce the settlement?

We granted writs here to review a Court of Appeal decision which held that defendants could enforce the settlement. 377 So.2d 1037 (La.1980).

We hold that what took place in this case was an attempt at compromise and that it was not effective because not in writing as required by Civil Code Article 3071.

Plaintiff, Johnny Cullins, brought suit against several defendants for injuries he suffered while working for Hooker Chemical Company. It seems that on plaintiffs first day at work, his left arm was caught in an unguarded conveyor belt and because of this injury plaintiff lost his entire arm. After a number of amended pleadings, substitutions of parties defendant and dismissals because of settlement, the case came to trial against National Phosphate Corporation, Beker Industries, certain National and Beker executive officers, Raymond Tilyou and Louis Kepfer, the insurers for the foregoing defendants, Ehrsam Company Division of Combustion Engineering, Inc., the manufacturer-designer of the conveyor belt, and its insurer.

During the second day of trial, plaintiff’s counsel recited in open court that he and counsel for National, Beker, the executive officers and their respective insurers had reached a compromise as to these defendants. The transcript of this proceeding is set forth in an appendix to this opinion. Thereafter, trial against these defendants did not proceed further, nor was any judgment oral or written then or thereafter rendered. It is the question of the enforceability of this “settlement” which is presently before the Court.

Plaintiff contends that the compromise is unenforceable because it does not meet the codal requirement of La.Civ.Code art. 3071 that “the contract must be reduced to writing.” Plaintiff further contends that the Court of Appeal erred in relying on Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979) in granting defendants’ motion. Finally, plaintiff contends that while his attorney may have agreed with defense attorneys on a settlement, he was confused as to what was taking place and did not himself acquiesce in the compromise.

La. Civil Code article 3071 provides:
“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing.”
“This contract must be reduced into writing.” (Emphasis provided.)

While the statute itself does not provide for the consequences of failure to reduce a compromise agreement to writing, this Court has previously held that a compromise which is not reduced to writing is unenforceable. Jasmin v. Gafney, Inc., 357 So.2d 539 (La.1978).

In support of the contention that the compromise settlement is enforceable even though not in writing, defendants rely upon our recent decision in Martin v. Holzer, supra. Martin is distinguishable in several respects.

Martin was a workmen’s compensation case in which, after lengthy discussion and apparent agreement in chambers (between the judge, plaintiff, plaintiff’s attorney and defense counsel) the trial judge, in open court, recited an oral judgment into the record, fully and specifically assented to by the parties. That oral judgment was followed by the court’s written judgment. We viewed those proceedings as an in-court confession of judgment precluding an appeal under C.Civ.P. art. 2085.

It was argued in Martin that the statements made in open court simply amounted to a compromise and thus under La.Civ. Code art. 3071 must be in writing to be binding. The Court rejected that argument finding that what had transpired in open court was more than simply an agreement of compromise. It was, rather, a confession of judgment. In pointing to the distinctions between C.Civ.P. art. 2085, the confession of judgment provision, and La.Civ.Code art. 3071 concerning the writing requirements for settlements, the Court said, “this article [La.Civ.Code art. 3071] is placed in the code to insure proper proof of extrajudicial agreements and does not apply to a confession of judgment during proceedings in court.” Of course the in-court memori-alization by counsel of an agreement of settlement is nonetheless extrajudicial in the sense that judgment of the court is not invoked.

Because we find no confession of judgment in this case, but rather simply an agreement of compromise, Martin and its holding are of no help to defendant. Martin is consistent with our findings here although distinguishable on the facts.

While the foregoing reasons alone prompt the result here, we deem worth noting certain other factors. In Martin the trial judge had a conversation with the interested parties, carefully recited the agreed upon statements in court and twice stopped to question the parties as to the accuracy of the agreement and the recited judgment. The trial judge in Martin was fully convinced that the parties understood what was taking place and acquiesced in the compromise and the agreed upon judgment and thereupon rendered the oral judgment followed by a written one. Here, the trial judge never conversed directly with the parties regarding this settlement, nor did he ever obtain a direct assent to the compromise from the plaintiff himself. The trial judge did not render an oral judgment based on the statements made by the attorneys and, rather than being convinced that the parties understood what was taking place and acquiesced in the compromise, to the contrary, he believed and so found upon ruling on the motion to enforce settlement, that the plaintiff did not understand the effect of his attorney’s actions and was generally confused about the proceedings.

La.Civ.Code art. 3071 is placed in the code to insure proper proof of extrajudicial agreements. Martin v. Holzer, supra. Planiol also suggests that the writing is required as a means of proof. See Planiol, Civil Law Treatise, Volume 2, Part 2, § 2291. Inasmuch as there is no judgment on the merits outlining the obligations each party has to the other when a case is settled by the parties, the law has seen fit to require the compromise agreement, which sets out those obligations, to be reduced to writing to serve as proof of the agreement and the acquiescence therein. The need for such a reduction to writing is nowhere more clearly seen than in the case at bar.

Plaintiff contends that he was confused as to what was transpiring between his attorney and the attorneys for the other parties. As stated above, these contentions are supported by the findings of the trial judge. Plaintiff further contends that he did not agree with his attorney to dismiss his claims against these defendants for the loss of his arm for only $10,000.00. The trial judge was unimpressed with these contentions stating that he thought there was a difference of opinion between plaintiff and his attorney as to the value of his claim. It is this very confusion over the compromise, its terms and the parties’ acquiescence therein that La.Civ.Code art. 3071 sought to eliminate by requiring that a compromise be reduced to writing.

Decree

Because we find what transpired in this case to have been an agreement of compromise and not a confession of judgment, and because that agreement was not in writing, the Court of Appeal writ grant with an order compelling enforcement of the settlement is reversed, the motion dismissed and the case remanded to the trial court for further proceedings.

REVERSED; MOTION DISMISSED; REMANDED.

DIXON, C. J.,

dissents with reasons.

APPENDIX

“MR. PHELPS: Mr. Dittmer and I have reached an agreement among our parties that my client will pay $10,000.00 to Mr. Cullins in settlement of any claims he has against National Phosphate Corporation, Beker Industries, Hooker and any related companies and any of their employees and, particularly, Raymond Tilyou and Louis Kupfer, and Aetna Insurance Company. Now, in connection with any policy they have insuring those individuals . . .

(REMARKS OFF RECORD)

The point of this settlement is that we do not want to have any additional lawsuits brought against one of our employees the same way that this amended petition was filed against Beker, Kupfer and Tilyou after dismissal of their employer, National Phosphate.

“MR. DITTMER: We agree that we will accept the sum of $10,000.00 in full settlement of anything against Beker Industries, Mr. Kupfer, Mr. Tilyou, their underwriters, and no further action will be taken against the aforementioned parties or against any employees of Beker Industries.

“MR. PHELPS: Well, Beker Industries did not own this plant at the time. It has to be National Phosphate Corporation and their employees. That’s what we just agreed to in the hall . . .

“MR. DITTMER: All right.

“MR. PHELPS: ... and that all those people are being released.

“MR. DITTMER: Agreed.

“MR. PHELPS: OK. All right. I think we’ve got it.

(REMARKS OFF RECORD)

“COURT: All right, Mr. Phelps, you will draft the release?

“MR. PHELPS: I will, and a motion to dismiss.

“COURT: Now, one more thing. The court must assess an expert witness fee with respect to the testimony of Fred Leibkemann. So that there is absolutely no misunderstanding, this is to be borne entirely by the party cast in judgment in this lawsuit. Further, Mr. Phelps by no stretch of the imagination will be liable for any part of this expert fee.

“MR. DITTMER: Thank you. No. OK. (JURY RETURNED TO COURTROOM)”

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

This writ was granted to determine whether a settlement agreement entered into during the course of a trial and dictated into the record constitutes an enforceable compromise. Plaintiff refused to hon- or the settlement agreement when defendants forwarded to plaintiff’s counsel a formal dismissal order and receipt, release and indemnity, along with a draft which represented the settlement funds. The trial judge denied defendants’ motion to enforce the settlement. The Court of Appeal issued a writ of mandamus granting defendants’ motion to enforce the settlement.

Plaintiff, Johnny Cullins, brought this suit against several groups of defendants for injuries he sustained working for Hooker Chemical Company. Before trial commenced, plaintiff settled with one group of defendants. On the second day of trial, during the noon recess, a compromise agreement was entered into between plaintiff and a group of defendants represented by Esmond Phelps. The trial judge announced to the jury that a settlement had been reached and that these defendants were dismissed from the lawsuit. The terms of the settlement were explained to the court and dictated into the record in the presence of plaintiff. Counsel for plaintiff agreed to the settlement and stated that no further action would be taken against defendants. The transcript of this proceeding is set forth as an appendix to this dissent. (A third settlement with the remaining defendants was made on the third day of trial, and the jury was dismissed).

Plaintiff contends that the compromise is unenforceable because it does not meet the codal requirement of C.C. 3071 that “the contract must be reduced to writing.” See Jasmin v. Gafney, Inc., 357 So.2d 539 (La.1978). Defendants rely on Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979), like the Jasmin case, a workman’s compensation suit, where this court decided that a joint stipulation in open court, recorded and transcribed, constituted a confession of judgment. In that case the court stated that C.C. 3071 is placed in the code to insure proper proof of extrajudicial agreements. Planiol also suggests that the writing is required only as a means of proof. See Planiol, Civil Law Treatise, Volume 2, Part 2, § 2291.

Requiring a writing is also meant to ensure that the parties to a compromise seriously intend to enter into a binding agreement. Verbal agreements may be binding contracts, even when a writing is contemplated, unless it is understood that neither party will be bound until the agreement is reduced to writing and executed. Johnson v. Williams, 178 La. 891, 152 So. 556 (1934); Laroussini v. Werlein, 52 La.Ann. 424, 27 So. 89 (1899); Montague v. Weil & Bro., 30 La.Ann. 50 (1878). When a written document is contemplated, if the parties intend to be bound by their original verbal agreement, then a contract subsists from that time, and the writing, when executed, is a memorial of that agreement. See Litivinoff, Offer and Acceptance in Louisiana Law; A Comparative Analysis, 28 La.L. Rev. 1, 9 (1967); Smith, Conventional Obligations, 16 La.L.Rev. 237, 238 (1956). It must appear to be the intention of the parties to make the completion of the agreement depend on the writing, because if it was merely contemplated to secure a more authentic mode of proof, then neither party can pretend the contract was not complete. Ponthier, Traite des Obligations, No. 11.

The intention of the parties here nowhere appears to be to make the completion of the settlement agreement depend upon a signing of a formal compromise agreement or dismissal order. On the contrary, the announcement in open court of the terms of the compromise is evidence that the parties regarded the compromise as complete at that time. The formal requirement that a compromise be reduced to writing was satisfied by the solemn act of dictating the compromise into the record in open court. There was nothing left for the parties to agree upon; the agreement is memorialized in the record; no further writing was contemplated; therefore the parties are bound to the terms of the compromise.

Plaintiff also complains that he was confused throughout the trial and that he did not consent to the compromise agreement. Counsel for plaintiff testified at the hearing on the motion to enforce the settlement agreement that plaintiff authorized him to enter into the settlement and that plaintiff was present in the courtroom when the terms of the settlement were dictated into the record. Plaintiff did not testify at the hearing, although he was present and heard his former attorney’s testimony that the settlement had been made with the “knowledge, authorization, and approval of Mr. Cullins.” There is no evidence in the record to substantiate plaintiff’s contention that he did not consent to the settlement agreement.

For these reasons, the judgment of the Court of Appeal should be affirmed.

APPENDIX

“MR. PHELPS: (Attorney for defendants) Mr. Dittmer and I have reached an agreement among our parties that my client will pay $10,000.00 to Mr. Cullins in settlement of any claims he has against National Phosphate Corporation, Beker Industries, Hooker and any related companies and any of their employees and, particularly, Raymond Tilyou and Louis Kupfer, and Aetna Insurance Company. Now, in connection with any policy they have insuring those individuals . . .

(REMARKS OFF RECORD)

The point of this settlement is that we do not want to have any additional lawsuits brought against one of our employees the same way that this amended petition was filed against Beker, Kupfer and Tilyou after dismissal of their employer, National Phosphate.

MR. DITTMER: (Attorney for plaintiff) We agree that we will accept the sum of $10,000.00 in full settlement of anything against Beker Industries, Mr. Kupfer, Mr. Tilyou, their underwriters, and no further action will be taken against the aforementioned parties or against any employees of Beker Industries.

MR. PHELPS: Well, Beker Industries did not own this plant at the time. It has to be National Phosphate Corporation and their employees. That’s what • we just agreed to in the hall . . .

MR. DITTMER: All right.

MR. PHELPS: . . . and that all those people are being released.

MR. DITTMER: Agreed.

MR. PHELPS: OK. All right. I think we’ve got it.

(REMARKS OFF RECORD)

COURT: All right, Mr. Phelps, you will draft the release?

MR. PHELPS: I will, and a motion to dismiss.

COURT: Now, one more thing. The court must assess an expert witness fee with respect to the testimony of Fred Leibkemann. So that there is absolutely no misunderstanding, this is to be borne entirely by the party cast in judgment in this lawsuit. Further, Mr. Phelps by no stretch of the imagination will be liable for any part of this expert fee.

MR. DITTMER: Thank you. No. OK. (JURY RETURNED TO COURTROOM)”

      . At the time the alleged settlement was made, plaintiff was being represented by Mr. Charles W. Dittmer. Plaintiff has since dismissed Mr. Dittmer as his attorney and has retained new counsel.

      . The trial proceeded for a third day against Ehrsam and its insurer but these defendants also settled after which the jury was so advised, thanked and dismissed. The enforceability of this settlement was also litigated and the trial court, just as in the case under consideration, denied Ehrsam’s motion to enforce an oral settlement. The Court of Appeal in that case, however, denied writs and that decision is now final since Ehrsam and its insurer did not seek writs here.

      .The trial judge recited for the record what he understood the agreement between the parties to be. He specifically stated that he had discussed the proposed agreement in chambers with the workman/plaintiff and the attorneys for both sides. In fact the judge’s outset comment was "... a compromise and consent judgment is hereby stipulated and agreed to as follows. Judgment is hereby entered into declaring Petitioner, Albert Martin, Sr., to be totally and permanently disabled. ...” Thus an express judgment on the merits was rendered, albeit oral. Further, in reciting the agreement for the record, the trial judge stopped twice to check with the parties to insure that he had properly stated the conditions and procured affirmative responses from both as follows:

        “COURT:
      Judgment is hereby entered into declaring Petitioner, Albert Martin, Sr., to be totally and permanently disabled under the Workmen’s Compensation Law which was applicable at the time of this injury. The injury was on September 23, 1974 and the 1973 Amendment of the Workmen’s Compensation Law is the governing Amendment, which is sixty-.five dollars a week subject to the amount paid to the Plaintiff.
      Let the record reflect that Carlos E. Lazarus, Counsel for Argonaut Insurance Company, checked and telephoned his company and they hereby agree to pay the Petitioner a lump sum amount for his having been declared permanently and totally disabled. The lump sum discounted amount to be paid to the Petitioner will be in the vicinity of sixteen thousand dollars, give or take, the exact figure to be computed. And it is to be noted that the Defendants have thus far paid $6,696.00 in workmen’s compensation benefits and $4,372.48 in medical. Is that correct gentlemen?
      “MR. LAZARUS:
      Yes, sir.
      “MR. CAMPBELL:
      Yes, sir.”

      . A confession of judgment need not be in any particular form. See J. R. Quaid, Inc. v. Cyclone Fence Co., 226 La. 398, 76 So.2d 409 (1955). Nonetheless, it must be an unequivocal confession which leaves no issue to be tried. Reciprocal agreements are not in the normal situation what is contemplated by confession of judgment. Confession has been defined in the jurisprudence as an admission by a party, in pleadings or in evidence, of the validity of his opponent’s claim in such a way as to leave no issue to be tried. A compromise settlement in a tort suit where defendant agrees to pay a specific sum while protesting that he is free of fault, and where plaintiff agrees to accept the sum while contending that defendant is at fault and he is really entitled to more, is hardly the admission, or admissions, on issues which confession of judgment contemplates.

      . Like the law pertaining to the sale of immovable property, this is an area of contractual obligations in which the legislature has decided to require a written instrument for the validity of the transaction. While La.Civ.Code art. 2275 (requiring the sale of immovable property to be in writing) does not specify the consequences of failure to reduce an agreement to sell immovables to writing, it has repeatedly been held that an oral agreement of the sale of an immovable is invalid and unenforceable unless the vendor admits the sale under oath and actual delivery has been made. Perry v. Perry, 122 So.2d 829 (La.App., 1st Cir. 1960); Manuel v. Moity, 313 So.2d 278 (La.App., 3rd Cir. 1975), writs denied 318 So.2d 48 (La.1975); Rebman v. Reed, 335 So.2d 37 (La.App., 4th Cir. 1976), writs denied 338 So.2d 699 (La. 1976); and Rutherford v. Impson, 366 So.2d 944 (La.App., 1st Cir. 1978), writs denied 369 So.2d 140 (La. 1979).