author: NIMMONS, Judge.

text:
    Robert J. CARLYLE, Appellant, v. Ruth CARLYLE, Appellee.
    No. AQ-467.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.

      D. Chanslor Howell, Jacksonville, for appellant.
    Britt Whitaker, Tampa, for appellee.
   NIMMONS, Judge.

Robert Carlyle appeals from the trial court’s December 20, 1982 order adjudging him to be in criminal and civil contempt of court and sentencing him to a term of 179 days in the county jail. The order further provided that after serving that period of incarceration, he should be released from jail upon his payment to Ruth Carlyle (Robert’s former wife) and her attorney the sum of $16,000 “plus a fine of $5,000.” For the reasons mentioned below, we reverse and remand.

Basically, the order purported to identify two classes of contemptuous acts committed by the contemnor: (1) his failure to pay sums for alimony, costs and attorney’s fees previously ordered by the court; and (2) his willful failure to appear at a December 7, 1982 hearing pursuant to a previous order of the court. The type of contemptuous conduct described in category # 1 above may be dealt with only as a civil contempt, Dykes v. Dykes, 104 So.2d 598 (Fla. 3d DCA 1958), while the conduct described in category # 2 may be treated as criminal contempt. Certain deficiencies in the subject order need to be addressed.

The trial court made no finding that appellant/contemnor owed the sum of $16,000 and there is no indication as to what the sum represented.

Insofar as the order purports to invoke the civil contempt powers of incarceration to coerce payment of the sums referred to above, the order is deficient in that the court failed to make affirmative findings required by Faircloth v. Faircloth, 339 So.2d 650, 651 (Fla.1976) that either

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

See also Upchurch v. Upchurch, 418 So.2d 373 (Fla. 5th DCA 1982).

The December 20, 1982. order is also deficient because it purports to impose a sentence for criminal contempt in the absence of the contemnor. The presence of the contemnor is required in order for sentence to be imposed. See Fla.R.Cr.P. 3.840. Of course, the circumstances may dictate the need for the court to issue an order of arrest in order to secure the presence of the contemnor. In any event, the sentencing proceeding should not be conducted until the contemnor is before the court whether by voluntary appearance or pursuant to order of arrest. We do not mean to be understood as holding that the trial court erroneously found that the contemnor willfully disobeyed the order requiring his presence at the December 7, 1982 hearing. As to that aspect of the order, we only say that it was error for the court to sentence the defendant for criminal contempt in his absence.

Finally, we address that portion of the order which provided for the con-temnor ⅛ release from jail upon his payment, in addition to the previously mentioned $16,000, of “a fine of $5,000 payable to the registry of the court to be dispensed in accordance with law.” It is clear from the order that the trial court did not intend the fine to be a part of the criminal penalty imposed as punishment for the criminal contempt aspect of the order. And so the only manner in which the fine imposed can be sustained is if it is determined to be a “compensatory fine” payable to the party injured as a result of contemnor’s contemptuous conduct. South Dade Farms v. Peters, 88 So.2d 891, 899 (Fla.1956) and Langbert v. Langbert, 409 So.2d 1066 (Fla. 4th DCA 1981); compare McElhiney v. Ash Properties, Inc., 411 So.2d 291 (Fla. 1st DCA 1982). Such a fine may be imposed, the amount imposed being measured by the damages suffered and proved with reasonable certainty. Griffin v. Griffin, 375 So.2d 1086 (Fla. 1st DCA 1979); see also National Exterminators, Inc. v. Truly Nolen, 86 So.2d 816 (Fla.1956). That portion of the subject order imposing the fine is deficient in that (1) one cannot conclude from the order that it was imposed for the benefit of appellee; and (2) it cannot be determined from the order whether the amount of the fine bears any relationship to damages suffered by appellee. On remand, the trial court will reconsider the fine provision in accordance with the principles enunciated in the above cited authorities.

The order appealed is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr. and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    Dontra McNEIL, Appellant, v. STATE of Florida, Appellee.
    No. AS-29.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Dontra McNeil, pro se, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

McNeil appeals the order of the trial court denying his Fla.R.Crim.P. 8.850 motion for post-conviction relief. Appellant contended in his 3.850 motion that he meets the criteria for treatment as a youthful offender under Chapter 958, Florida Statutes. The trial court denied the motion based on section 958.04(l)(c), Florida Statutes, which provides that no person who has been found guilty of a capital or life felony may be classified as a youthful offender. Because appellant was not convicted of a capital or life felony, we reverse and remand.

Appellant entered a plea of guilty and was adjudicated guilty of murder in the second degree. Under section 782.04(2), Florida Statutes (1981), murder in the second degree is a felony of the first degree punishable by imprisonment for a term of years not exceeding life. As this court stated in Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981):

[Authorization of imprisonment for “a term of years not exceeding life” under § 782.04(2) does not reasonably support classification of the offense as a life felony for Chapter 958 purposes ....

Id. at 438. See also Brown v. State, 412 So.2d 58 (Fla. 4th DCA 1982). Therefore, the trial court erred in not considering whether appellant should be classified as a youthful offender.

Appellant’s further contention that the court must sentence him under the provisions of the Youthful Offender Act is without merit. Bell v. State, 429 So.2d 408 (Fla. 1st DCA 1983).

Accordingly, the order of March 9, 1983, is REVERSED and this cause REMANDED for further consistent proceedings.

MILLS and BOOTH, JJ., concur.

      . The offense in the instant case occurred on April 9, 1982. Thus, the 1980 amendment to section 958.04(2), Florida Statutes, discussed in Bell, applies here. We note, however, that consideration of the criteria contained in section 958.04(2), Florida Statutes (1981) is mandatory when a person meets the requirements of section 958.04(1).


author: RYDER, Judge.

text:
    Irving LEVENSON, Mather C. Ward, as Personal Representative of the Estate of R.C. Ward, M. Sibley, Individually and as Stockholders of American Laser Corporation, a Florida corporation, Appellants, v. AMERICAN LASER CORPORATION, a Florida corporation, and William H. McMahan, Mendell M. Selig, Eugene Cohen, Robert H. Still and Mark T. Griffin, Appellees.
    Nos. 82-2560, 82-2573.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1983.

      Marion E. Sibley of Sibley, Giblin, Leven-son & Glaser, Miami, and J. Hardin Peterson, Jr. of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Lakeland, for appellants.
    William S. Dufoe of Holland & Knight, Bartow, for appellee American Laser Corp.
    J.P. Carolan, III of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellees McMahan, Cohen, Still and Griffin.
    No brief filed by appellee Selig.
    Christine Rieger Milton of Mahoney, Hadlow & Adams, Jacksonville, for Peterson, Smith, Thompson, Willis & Yeenstra, objecting stockholders.
   RYDER, Judge.

Appellants, plaintiffs below, appeal from an order of the trial court disapproving that portion of a consent final judgment which distributed 25,000 shares of stock to appellants as attorney’s fees for the institution and prosecution of this action against appel-lees. The trial court ordered that the appellants be awarded a cash fee of $50,000.00 instead of the stock and approved the consent judgment in all other respects. We find that this was an abuse of discretion by the trial court and reverse.

In July 1981, appellants filed a complaint against appellee American Laser Corporation (ALC) and appellee William H. McMa-han. An amended complaint was subsequently filed naming the other appellees as codefendants. Appellants alleged that they sued on their own behalf, on behalf of all other similarly situated stockholders of ALC, and for the benefit of ALC. The complaint was not, however, filed as a class action. Appellants alleged that: there had been illegal and fraudulent activity by ap-pellees; no annual meeting of stockholders had been called or held; there were no lawful directors of ALC; funds were misappropriated; stocks were improperly issued; and appellee McMahan had failed to transfer certain patents to the corporation.

In June and July 1982, the parties stipulated to the terms and entry of a consent final judgment. The provisions pertinent to this appeal are:

2. ...
The individually named plaintiffs shall receive the following designated number of shares from the treasury of the corporation as full and complete compensation to them as attorney’s fees for the institution and successful prosecution of this litigation:
Irving B. Levenson 8,000 shares
Robert C. Ward 8,000 shares
Marion E. Sibley 9,000 shares
8. That the court directs and requires that American Laser Corporation shall, within 15 days from the date of the entry of this judgment, furnish by mail a true and correct copy of this Consent Final Judgment to each, every and all of the stockholders, and to file herein a Certificate of Service evidencing the accomplishment thereof. That each, every and all of the stockholders of American Laser Corporation within 30 days from the date of American Laser Corporation’s certificate of service, as hereinabove provided, shall file in this cause and serve upon counsel for the parties, whose names and addresses appear below, such objection or objections, as they or any one of them may deem appropriate. If no such objections are filed within the aforesaid 30-day period then this Consent Final Judgment shall be deemed automatically to have become final. In the event any such objections are filed then this Judgment shall not become final until after the disposition of any such objections which shall be duly noticed and heard by the Court.

Judge Greene accepted the consent judgment pending notice to the stockholders and disposition of any objections which might be filed.

Several stockholders of ALC jointly filed objections to the provision of the proposed consent final judgment which awarded 25,-000 shares of stock to appellant’s as attorney’s fees. The objecting stockholders alleged that: the award would double appellants’ stock ownership; appellants were representing their own interest and no benefit accrued to ALC or its shareholders; there was neither a contract nor statutory authority for the award of attorney’s fees; no proof of services or value of services performed had been presented; the attorney’s fees proposed to be awarded in the consent judgment was unreasonable; and the interests of all other shareholders would be diluted while appellants’ ownership position would be doubled. There was no objection to any other provision of the consent judgment. The objecting stockholders also filed a motion for entry of partial consent final judgment as to those provisions of the proposed consent judgment to which they did not object.

Following a hearing on the motion for entry of partial consent final judgment, Judge Bentley entered an order which determined that the court “has the power to hear and dispose of the objections to the award of attorney’s fees ... and, if warranted, to modify the portion of the Judgment pertaining to that award without destroying the remaining provisions of the Judgment.” The trial judge based his conclusion on “the court’s inherent power to protect the interests of stockholders who were not signatories to the Judgment, but also upon the language of paragraph 8 of the Judgment itself” which authorizes the court to hear and dispose of objections filed by stockholders. The court also recognized the general rule “that consent judgments ordinarily cannot be modified over the objection of one of the parties.” The court held that the general rule did not apply under the circumstances of this case. The court then ordered that a hearing be held for the presentation of evidence and argument on the issues raised by the objections to the proposed consent judgment.

Following the hearing on the objections, Judge Bentley entered an order finding that: Appellants were attempting to act in the interest of ALC stockholders, as well as their own interest; the corporation was both benefited and harmed by the lawsuit; the amount of appellants’ actual work was nominal, although they exhibited considerable skill; ALC stock “is not susceptible to any realistic evaluation”; and the award to appellants of stock as attorney’s fees “would substantially alter the ownership positions in the corporation with consequences that are not easily foreseen .... ” The court considered the factors enumerated in the Code of Professional Responsibility together with affidavits offering opinions as to a fee. The court found that a reasonable cash fee would be $50,000.00. The court then:

ORDERED and ADJUDGED that the provisions of the consent judgment authorizing a fee payable in stock be and the same are hereby disapproved. It is further ordered and adjudged that in lieu of the provisions of the consent judgment, the plaintiffs/attorneys shall receive a cash fee of $50,000.00.

Appellants timely filed a notice of appeal of nonfinal order and a notice of appeal treating the trial court’s order as final. This court ordered consolidation of the appeals and treatment as an appeal from a final order.

While there is support in the record for the factual findings made by the trial court, we are nevertheless constrained to hold that the court erred in approving part of the proposed consent judgment while disapproving and modifying another part of that same proposed consent judgment.

Section 607.147(2) and (5), Florida Statutes (1981) provides:

607.147 Shareholders’ derivative actions; security for expenses. — In any action commenced or maintained by a shareholder of any domestic or foreign corporation to produce a judgment in its favor:
(2) No such action shall be discontinued, compromised, or settled without the approval of the court having jurisdiction of the action. Such court in its discretion, if it shall determine that the interests of the shareholders of such corporation may be substantially affected thereby, may direct that notice, by publication or otherwise, of such proposed discontinuance, compromise, or settlement be given to such shareholders. Shareholders objecting to such settlement must, within a time allowed by the court, show cause why the settlement should not be accepted and approved by the court as fair and reasonable. The court may determine which one or more of the parties to the action shall bear the expense of giving notice in such amount as the court shall determine and find to be reasonable in the circumstances, and the amount of such expense shall be awarded as special costs of the action and recoverable in the same manner as statutory taxable costs.
(5) If the action on behalf of the corporation is successful, in whole or in part, or if anything is received by the plaintiff or plaintiffs as the result of a judgment, compromise, or settlement, the court may award the plaintiff or plaintiffs the reasonable expenses of maintaining the action, including reasonable attorney’s fees, and direct him or them to account to the corporation for the remainder of the proceeds so received by him or them. This subsection shall not apply to any judgment rendered for the benefit of injured shareholders only and limited to a recovery of the loss or damage sustained by them.

This portion of the statute allows settlement of the action provided that the court with jurisdiction approves such a settlement. Objections to the settlement must show why the settlement should not be accepted and approved by the court as fair and reasonable. A reasonable award of attorney’s fees may be awarded to the plaintiffs by the court.

We read the statute as authorizing the circuit court to approve or reject the settlement proposal, but not to modify or rewrite the proposal. While the court may award reasonable attorney’s fees to the party plaintiffs, if the parties agree to a particular award of attorney’s fees in the settlement agreement, the trial court may only approve or disapprove the entire agreement including the negotiated attorney’s fees. Furthermore, objections raised by nonparty shareholders are to be considered by the trial court: The court is to determine whether the objections are such that the entire proposed settlement should be rejected as unfair and unreasonable, or approved as fair and reasonable.

An alternative ground, separate from section 607.147, Florida Statutes (1981), requires the same disposition of this appeal. Settlement agreements are favored by the courts as they are a means of resolving disputes without the necessity of a full trial, provided that the settlement is entered into fairly and in good faith by competent parties. Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (Fla.1934); Lotspeich Co. v. Neogard Corp., 416 So.2d 1163 (Fla. 3d DCA 1982); State Department of Transportation v. Plunske, 267 So.2d 337 (Fla. 4th DCA 1972).

While a decree entered upon a consent agreement is a judicial act, System Federation No. 91 v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961), the consent agreement itself may be construed utilizing principles of law which are applicable to contracts generally. Florida Education Association Inc. v. Atkinson, 481 F.2d 662 (5th Cir.1973); Guthrie v. Guthrie, 233 Miss. 550, 102 So.2d 381 (1958); McArthur v. Thompson, 140 Neb. 408, 299 N.W. 519 (1941); First National Bank of Spring Hope v. Mitchell, 191 N.C. 190, 131 S.E. 656 (1926); Greeson v. Greeson, 208 Okl. 457, 257 P.2d 276 (1953); Bank v. Scribner, 212 Tenn. 400, 370 S.W.2d 482 (1963); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); Washington Asphalt Co. v. Harold Kaeser Co., 51 Wash.2d 89, 316 P.2d 126 (Wash.1957).

A court may not rewrite an agreement entered into by the parties. The court must either approve or reject the agreement in its entirety. While the court may make suggestions for modification of a proposed decree, the court may not unilaterally modify the consent agreement. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115,99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). If the parties do not agree to modify the proposed agreement, then the court must approve or reject the agreement as presented.

Where a proposed agreement is not fair, adequate and reasonable, the court has the option to reject the offered agreement. Parker v. Anderson, 667 F.2d 1204 (5th Cir.), cert. denied,-U.S.-, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982). It is for the trial court to exercise its discretion in approving or rejecting the proposed consent agreement; it is not within the court’s discretion to insist upon modification of the proposed agreement. See Bryan v. Pittsburg Plate Glass Co., 494 F.2d 799 (3rd Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974). See also Home Development of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965); Steiner v. Physician’s Protective Trust Fund, 388 So.2d 1064 (Fla. 3d DCA 1980), petition for review denied, 397 So.2d 779 (Fla.1981).

The trial court properly entertained the objections of the nonparty stockholders concerning the attorney’s fees provision of the proposed settlement agreement. However, in weighing the objected to provision against the value of the proposed agreement as a whole, it was for the trial court to determine either: (1) the agreement as a whole was adequate, fair, wise and reasonable to all concerned, thereby warranting judicial approval; or (2) the agreement was so unfair, inadequate, unwise and unreasonable on its face as to preclude judicial approval. Parker v. Anderson, supra; Mathes v. Roberts, 85 F.R.D. 710 (S.D.N.Y.1980); American Basketball Association Players Association v. National Basketball Association, 72 F.R.D. 594 (S.D.N.Y.1976).

The court was not to substitute its business judgment for that of the parties. Mathes, supra. Moreover, the mere fact that there are objections to the proposed settlement will not render the settlement unfair or unreasonable. See American Basketball Association Players Association, supra. The objecting shareholders cannot claim the benefit of particular portions of the proposed settlement which are in their favor and repudiate those portions which are not in their favor. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963); Connor v. City of Seattle, 82 Wash. 296, 144 P. 52 (1914). See Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818 (Fla.1953); Florida Mortgage Financing, Inc. v. Flagler Plaza Corp., 308 So.2d 571 (Fla. 3d DCA), cert. denied, 317 So.2d 443 (Fla.1975).

We emphasize that the provision dealing with attorney’s fees is one part of an entire agreement. The proposed agreement was entered into after negotiation by the parties. In the “give and take” during negotiations, the parties undoubtedly agreed to the proposed attorney’s fees provision taking into consideration the other provisions of the settlement agreement. The attorney’s fees provision was part and parcel of the entire agreement. It was an abuse of discretion for the trial court to modify the one provision. The court was required to approve the stockholders’ objections and reject the entire agreement as unfair and unreasonable, or overrule the objections and approve the entire agreement as fair and reasonable. The parties may not be forced to settle their dispute with terms other than those achieved by negotiation and consent.

REVERSED and REMANDED with directions that the trial court reconsider the proposed consent agreement and objections thereto and either accept the entire proposed agreement or reject the entire agreement and allow this cause to proceed for further litigation.

BOARDMAN, A.C.J., and DANAHY, J, concur.


author: OTT, Chief Judge.

text:
    Dennis Victor DANIELS, Appellant, v. Bill GUNTER, Insurance Commissioner and Treasurer, Appellee.
    No. 82-2826.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1983.
    William A. Patterson of Masterson, Rogers, Patterson & Masterson, St. Petersburg, for appellant.
    Curtis A. Billingsley, Dept, of Ins., Tallahassee, for appellee.
   OTT, Chief Judge.

Appellant Daniels has appealed the one-year suspension of his insurance licenses. We reverse only the portion of the agency’s final order which found that appellant used a “light box” in violation of various provisions of the insurance code; such a finding is not supported by substantial, competent evidence.

Watkins, a secretary employed at appellant’s insurance agency, testified before a hearing officer that on numerous Fridays a “light box” was used by Daniels and others to trace signatures on insurance applications. Watkins also related an incident involving an irate customer who presented himself at Daniels’ office to complain that he had not signed an application which bore his signature. No allegedly forged documents were introduced, no names of alleged forgery victims were presented, and no victims of the alleged forgeries testified at the hearing. The uncorroborated testimony of Watkins is insufficient to sustain the agency’s finding that appellant improperly used the “light box.” The remaining findings and conclusions in the final order are affirmed.

Appellant’s license was suspended for one year, the maximum penalty authorized by section 626.641, Florida Statutes (1981). We do not know whether the same penalty would have been imposed for the remaining violations absent the finding concerning the “light box.” Therefore, we VACATE the penalty and REMAND for reconsideration thereof in light of this opinion.

HOBSON and LEHAN, JJ., concur.

      . The agency’s final order concluded that appellant’s conduct with regard to the “light box” constituted violations of section 626.611(5) (willful deception with regard to an insurance policy), section 626.611(7) (lack of fitness or trustworthiness), section 626.611(9) (fraudulent or dishonest practices), and section 626.621(6) (unfair or deceptive acts or practices), Florida Statutes (1981).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Robert Lee DIXON, Respondent.
    No. 83-1508.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1983.
    See also, 426 So.2d 1258.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for petitioner.
    Norman S. Cannella and Davis G. Anderson, Tampa, for respondent.
   PER CURIAM.

This is the third recent occasion for this court to revisit whether Norman Cannella can represent clients who were charged with crimes while Mr. Cannella was employed by the State Attorney’s office.

Petitioner, the state, petitions this court for a writ of certiorari to quash the order denying the state’s motion to disqualify Norman Cannella from representing Robert Lee Dixon, respondent, on first degree murder and armed robbery charges. We grant certiorari.

In the instant case, the state argues that Mr. Cannella’s signing of the respondent’s indictment for these charges demonstrates substantial involvement alluded to in Endress v. Coe, 433 So.2d 1280 (Fla. 2d DCA 1983), and prohibited by Florida Bar Code of Professional Responsibility Disciplinary Rule 9-101(b). The state also contends that section 905.27(1) and (2), Florida Statutes, regarding disclosure of grand jury proceedings will likely be violated by Mr. Cannella if he represents the respondent.

As to petitioner’s first argument, we find that the signing of respondent’s indictment as legal adviser to the grand jury constitutes the type of participation and investigation and the obtaining of advantage prohibited by Endress.

This finding is further reinforced by petitioner’s second argument that Mr. Cannel-la’s possible presence during the grand jury proceedings may result in the violation of section 905.27, Florida Statutes, in an effort to fully represent respondent.

Accordingly, certiorari is granted, the order denying the state’s motion to disqualify is quashed, and the cause is remanded for further proceedings consistent with this opinion.

HOBSON, A.C.J., and BOARDMAN and DANAHY, JJ., concur.

      . In Endress, this court stated:
      Absent a showing of participation to any extent in the investigation leading to a criminal charge, or some involvement in the case itself, or some advantage gained that would work to the disadvantage of the state, a former assistant state attorney should not be automatically disqualified from acting as defense counsel for a defendant investigated or charged during the time counsel served as an assistant state attorney.


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

text:
    Barbara Fé NAVARRE, Appellant, v. George E’Armond NAVARRE, Appellee.
    No. AP-149.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.
    Paul G. Komarek, Panama City, for appellant.
    D. Ross McCloy, Jr., Panama City, for appellee.
   ROBERT P. SMITH, Jr., Judge.

In an independent action filed some years after the parties’ marriage dissolution judgment, the former wife appeals from a circuit court judgment dismissing, on the merits, her suit for an accounting against the former husband.

After a 1972 marriage dissolution judgment, the former home property, previously held by the entireties, was-owned as tenants in common by the former wife, plaintiff below and appellant here, and the former husband. It was agreed below that the dissolution judgment, which is not included in this record, awarded exclusive use and occupancy of the house to the wife but was silent on the question of who was to pay on the mortgage and for taxes, insurance, repairs, and other expenditures for maintenance of the house.

The former wife occupied the house until 1979, when she moved with the children to Wisconsin. In those seven years she had made some 56 payments on the mortgage and, we assume, for insurance and taxes, and other substantial expenditures for maintenance and repair. In 1980, after she vacated, the marriage dissolution judgment was amended (by stipulation, we assume) to grant the former husband exclusive occupancy, again without provision for charges and credits between the parties on account of expenditures or on account of rental value for occupancy. For about a year, then, the former husband, now the occupant, paid on the mortgage and for the other usual expenses until the house was sold, by agreement of the parties, in January 1981. The sale proceeds and the former mortgagee’s escrow fund were then disbursed equally to the parties on their joint written instructions to the mortgagee and the real estate broker.

Plaintiff, the former wife, then filed an independent suit for an accounting from the husband, claiming from his share of the sale proceeds one-half her expenditures for the house from 1972 through 1979. She alleged she had previously been “unaware of her rights to such a credit and relied upon the defendant” to repay her those sums from his share of the sale proceeds. Subject to appropriate defenses, including that of accord and satisfaction, defendant claimed alternatively that he too, during his year of possession, had made payments on account of the mortgage, repairs and taxes, and that for these he should have credit against any award to plaintiff.

The case was tried to the court. Without reaching the question of whether plaintiff otherwise showed entitlement to an accounting, the court entered judgment for defendant, saying that “the parties mutually agreed” to the disbursement made through the realtor and “there was no concealment” in the transaction that entitled the wife to rely on the husband for any payment or reimbursement beyond a 50-50 share of the net proceeds after satisfying the mortgage.

Whether the theory of defendant’s affirmative defense is termed eompromise- and-settlement or accord-and-satisfaction, the question is whether substantial competent evidence supports the circuit court’s judgment that the wife’s act of signing a disbursal instruction to the realtor and the escrow agent, calling for a 50-50 distribution of the net sale proceeds, evidenced her agreement to forego any further claim for reimbursement on account of her seven-years’ payments sustaining the house. The husband’s testimony adds little to the significance of these signatures: he merely answered affirmatively to the ambiguously leading questions, “Did she ever acknowledge that she was entitled to more than one-half of the net proceeds?”, and “[D]id she agree to forego those proceeds in exchange for fifty-fifty split in the net proceeds of this?”

The quality of this evidence, as indicating or not an express or implied agreement to settle for one-half the sale proceeds, must be judged in context of the antecedent claims of the parties. If the antecedent history had ended with a clear dispute on the record, one might pour meaning into the wife’s signature on the disbursal instructions: in a desire to sell the house and to end the co-ownership, one might say, she deliberately if foolishly relinquished, without concealment or artifice by the husband, claims that divorce courts ordinarily honor in dissolution judgments, see Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979), appropriating law partitioning conventional tenancies in common, see Meckler v. Weiss, 80 So.2d 608 (Fla.1955): she might be deemed to have relinquished, for the presumed benefits of settling, an apparent right to credit for one-half the expenditures she made for seven years to support the house, less, perhaps, an offset for the rental value of her occupancy. For his part, the husband might be deemed in settlement to have relinquished his countervailing claim for half-credit on account of his own similar payments for a year, less the value of his own occupancy.

But her signatures on the disbursal instructions to the realtor and escrow agent, directing a split of the net sales proceeds, remain too ambiguous to support such weighty attributions in law. For they are consistent with her private purpose, if not with his, to settle accounts later, after the sale was consummated. Had his purpose to settle all accounts been clearly communicated, then perhaps her reservations, or her disclaimers then or later, would not avail her now. See State Road Department v. Houdaille Industries, Inc., 237 So.2d 270 (Fla. 1st DCA 1970).

There being no clear evidence of communications between the parties at the moment they signed the papers which the husband claims are decisive, we must look to the antecedents. There we find, two years before the consummated sale, that the wife was advised by one lawyer that she was entitled to full credit for her expenditures, that another advised her she was entitled to one-half credit, which is the amount claimed by this suit, and that the husband’s counsel advised him that he agreed with the second lawyer. Beyond that, there is no decisive evidence except the wife’s signatures and the husband’s uncertain testimony recounted above. Since no contract, including an accord upon a previous dispute, can arise except by will and agreement of the parties, we find the evidence entirely insufficient to support a conclusion that by her signatures to simple disbursal instructions the wife agreed to relinquish a claim, possibly well-founded, in which the husband was advised by counsel to acquiesce.

Reversing the circuit court’s judgment that there was an accord and satisfaction, we stop short of considering the wife’s claim on the merits of her accounting claim. The circuit court has not ruled upon that claim; we have not the benefit of the dissolution judgment on which the wife’s possession was predicated, so we cannot surely know whether discounts should be made for her tenancy; and the husband’s payments and tenancy, too, must be taken into account. Therefore we REVERSE the judgment and REMAND the case for proceedings upon the claim and the defenses other than accord and satisfaction.

WENTWORTH and ZEHMER, JJ., concur.


text:
    W.T. PARKER, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. AQ-166.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.
    W.T. Parker, pro se, for appellant.
    Jim Smith, Atty. Gen., and Leonard George, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Comer v. Florida Parole & Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980).

MILLS, SHIVERS and ZEHMER, JJ., concur.


text:
    KELLER BUILDING PRODUCTS and Alexsis, Inc., Appellants, v. Kenneth TOWNSEND, Appellee.
    No. AQ-422.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.

      Bernard J. Zimmerman of Akerman, Sen-terfitt & Eidson, Orlando, for appellants,
    Thomas R. Mooney and Sherry L. Davis of Meyers & Mooney, Orlando, for appellee.
   PER CURIAM.

That part of the order awarding claimant costs for past medical services is reversed and the cause remanded to the deputy commissioner for a determination whether medical bills were submitted as required by Section 440.13(1), Florida Statutes, and, if not, whether there was prejudice to the employer/carrier or whether good cause for noncompliance was shown. Friendly Ford v. Hurrell, 427 So.2d 207 (Fla. 1st DCA 1983). In all other respects, the order appealed is affirmed.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    Beulah THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. AR-16.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Thompson appeals her conviction and sentence for aggravated battery, Section 784.-045, Florida Statutes (1981). We affirm.

In her first point on appeal, Thompson contends that the trial court erred in admitting her confession into evidence because the State failed to establish the corpus delicti of the crime by sufficient, independent proof. We disagree. Our review of the record convinces us that the State presented sufficient evidence independent of the confession to establish the existence of each element of aggravated battery, including proof that Thompson intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement to the victim.

Thompson also contends that the trial court should have granted her motion for judgment of acquittal because the State failed to prove that it was she, and not one of her companions, who committed the offense. That contention is also without merit. We find ample evidence in the record to show that Thompson was the guilty party.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Ronnie Lynn GAMMELL, Appellant, v. STATE of Florida, Appellee.
    No. AR-177.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Gammell appeals his conviction for grand theft, Section 812.014, Florida Statutes (1981).

The sole point on appeal is that the State failed to prove that Gammell knowingly obtained or used the property of another.

We find the evidence sufficient to show that he had such knowledge and affirm the conviction.

SHIVERS and ZEHMER, JJ., concur.


text:
    Eddie Frank REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. AR-381.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.

      Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

In this criminal appeal, Reynolds contends that the trial court erred in refusing to reinstruct the jury on the defenses of voluntary intoxication and self-defense after it had reinstructed the jury on aggravated battery and the lesser included offenses. We affirm.

Reynolds was charged with and tried for the offense of aggravated battery. At the close of the trial, the trial court instructed the jury on the elements of this offense and on all of its lesser included offenses. At Reynolds’ request, the trial court also gave instructions on voluntary intoxication and on self-defense.

The jury then retired and deliberated approximately forty minutes before asking to be reinstructed on the elements of aggravated battery. The trial court reinstructed the jury on aggravated battery and its lesser included offenses, but it refused Reynolds’ request that reinstruction be given on voluntary intoxication and self-defense. Thereafter, the jury resumed deliberation and returned a verdict of guilty as charged.

Citing Pridgeon v. State, 425 So.2d 8 (Fla. 1st DCA 1982), Reynolds argues that the trial court erred when it refused to give the requested reinstructions on voluntary intoxication and self-defense. We cannot agree.

Pridgeon is the most recent in a line of cases beginning with Hedges v. State, 172 So.2d 824 (Fla.1965), holding that when a jury is reinstructed on the offense of manslaughter, the trial court must also rein-struct on justifiable and excusable homicide. The rationale underlying those cases is that the jury must always be given a full and complete instruction on any offense charged. Because the statutory definition of manslaughter specifically excludes those homicides which are justifiable or excusable, a full and complete instruction on manslaughter must necessarily include instructions on justifiable and excusable homicide. See Section 782.07, Florida Statutes (1981).

Those cases do not' hold, as Reynolds urges, that the trial court must always rein-struet on the applicable defenses when it reinstructs on the offense charged. See Henry v. State, 359 So.2d 864 (Fla.1978), where it was held that the trial court did not err in failing to reinstruct on justifiable or excusable homicide when it had rein-structed only on first and second degree murder and not on manslaughter.

Neither the definition of aggravated battery nor that of any of its lesser included offenses excludes acts of self-defense or acts performed while intoxicated. The instruction on aggravated battery was therefore complete, and the trial court did not abuse its discretion in refusing to reinstruct on self-defense or voluntary intoxication.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


author: HURLEY, Judge.

text:
    TOYOTA MOTOR COMPANY, LIMITED, a foreign corporation, Appellant/Cross Appellee, v. Betty J. MOLL, as personal Representative of the Estates of Wendy Jane Moll, deceased, Pamela May Moll, deceased and Denise Ann Moll, deceased, Appellee/Cross Appellant. TOYOTA MOTOR SALES, USA, INC., a foreign corporation, Appellant/Cross Appellee, v. Betty J. MOLL, as Personal Representative of the Estates of Wendy Jane Moll, deceased, Pamela May Moll, deceased and Denise Ann Moll, deceased, Appellee/Cross Appellant. TOYOTA MOTOR SALES COMPANY LIMITED, a foreign corporation, Appellant/Cross Appellee, v. Betty J. MOLL, as Personal Representative of the Estates of Wendy Jane Moll, deceased, Pamela May Moll, deceased and Denise Ann Moll, deceased, Appellee/Cross Appellant. TOYOTA MOTOR COMPANY, LIMITED, Toyota Motor Sales, USA, Incorporated and Toyota Motor Sales Company, Limited, Appellants, v. Betty J. MOLL, as Personal Representative of the Estates of Wendy Jane Moll, deceased, Pamela May Moll, deceased and Denise Ann Moll, deceased, Appellee.
    Nos. 81-2103 to 81-2105, 82-532.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    See also, Fla.App., 391 So.2d 282.

      T. Rumberger, James A. Edwards of Rumberger, Kirk, Caldwell & Cabaniss, Orlando, Jay M. Smyser, Chicago, Ill., for appellants/cross appellees.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, Jack Marcus, Simons & Schlesinger, P.A., Fort Lauderdale, for appellee/cross appellant.
   HURLEY, Judge.

This appeal arises from a products liability case based on the allegation that the fuel tank system in the 1973 Toyota Corona was defectively designed. The jury found for the plaintiff. Toyota appeals, contending that the trial court erred on a critical evi-dentiary matter and, also, by allowing the issue of punitive damages to go to the jury. We disagree with both contentions and affirm.

The facts of the collision are not in substantial dispute. On the afternoon of June 16, 1979, the driver of a 1977 Mercury Cougar lost control of her car on a rain-slick portion of Interstate-95. The Mercury spun 180 degrees and came to rest sideways across 1-95. At that instant, three young sisters, Wendy, Pamela and Denise Moll, were also proceeding north on 1-95 in their 1973 Toyota Corona. They saw the Mercury and managed to stop either a short distance away or after lightly touching the Mercury’s bumper. No one was seriously injured. Moments later, however, the Toyota was struck in the left rear by a 1969 Oldsmobile traveling between twenty-eight and forty miles per hour. The impact caused the Toyota’s fuel system to rupture; the vehicle became an inferno. Tragically, the doors jammed and the three Moll sisters were burned to death.

Mrs. Betty Moll, the girls’ mother and personal representative, instituted suit against Toyota in its corporate forms as manufacturer, exporter from Japan and importer into the United States. The complaint alleged that the girls’ deaths were caused by the defective design of the fuel system and, therefore, each corporate defendant was liable under theories of negligence, breach of warranty and strict liability. The jury found for the plaintiff and returned a verdict against the manufacturer in the sum of $2,004,886 compensatory damages and $3,000,000 punitive damages.

Toyota has raised several points on appeal but, in our view, only two merit extended discussion. The first involves Toyota’s claim that the trial court abused its discretion and committed reversible error by excluding two films from evidence. Both films depicted crash-tests on selected 1973 automobiles. The trial court permitted the plaintiff to show a portion of one film which demonstrated the effect of a rear-end collision on a stationary 1973 Toyota Corona. The court, however, denied the defendant’s request to show the remainder of the film which depicted similar tests on other makes and models. On appeal, Toyota argues that the trial court’s rulings effectively prevented it from proving its state of the art defense, i.e., that the ’73 Corona was as safe as the technology of the time permitted and that it conformed to accepted standards within the industry.

At the outset, we note that the record fails to support Toyota’s contention. In fact, the record is replete with evidence of industry custom and it is simply inaccurate to suggest that the two contested rulings precluded the establishment of a state of the art defense. Moreover, we are satisfied that the trial court did not abuse its discretion by excluding the two films. As a preliminary matter, Toyota failed to demonstrate that the various vehicles depicted in the films contained design features which were representative of, or customary in the industry. Cf. Ford Motor Co. v. Havlick, 351 So.2d 1050 (Fla. 4th DCA 1977) (Letts, J., dissenting). More important, however, is the rule that a trial court possesses broad discretion over the admissibility of evidence which will inject collateral issues into the trial. Badorek v. General Motors Corp., 11 Cal.App.3d 902, 90 Cal.Rptr. 305 (3d DCA 1970) is “on all fours” with the case at bar. There, General Motors, in an effort to support its state of the art defense, attempted to introduce evidence of the design of fuel containment systems in numerous vehicles other than the one in suit. As happened here, the California trial court permitted proof of industry design practices, but refused to permit the defendant to go into the designs of specific automobiles. The trial court voiced concern that if the evidence were permitted, the trial would go on forever. The district court of appeal affirmed, holding that the evidence’s time consuming factor had to be weighed against its probative value. The same is true here. The proffered evidence had the potential of diverting the case onto time-consuming tangents. Thus, we hold that the trial court did not abuse its discretion in refusing to admit the remainder of the films. Cf. Atlantic Coast Line R. Co. v. Campbell, 104 Fla. 274, 139 So. 886 (1932).

Next, Toyota contends that the trial court erred by not granting a directed verdict on the issue of punitive damages. Again, we disagree. Punitive damages may be imposed when the defendant’s “actions or inactions amount to willfulness, wantonness, maliciousness, recklessness, oppression, or outrageous conduct.” Detroit Marine Engineering, Inc. v. Maloy, 419 So.2d 687, 693 (Fla. 1st DCA 1982). See also Piper Aircraft Corp. v. Coulter, 426 So.2d 1108 (Fla. 4th DCA 1983); see generally Courtney & Cavico, Punitive Damages: When Are They Justifiable?, Trial, August, 1982 at 52. More specifically, “punitive damages ... [are] allowed where the defendant had knowledge of a defect or dangerous condition and chose not to remedy the condition.” American Motors Corp. v. Ellis, 403 So.2d 459, 468 (Fla. 5th DCA 1981). Accord, Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980); Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979).

American Motors Corp. v. Ellis, supra, restated the well known principles which govern directed verdicts:

A motion for directed verdict should not be granted when there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.... In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiff’s favor.

Id. at 467 (citations omitted).

Here the evidence showed that the fuel tank in the 1973 Corona is a “flange-mounted” tank which is located behind the rear axle under the vehicle’s trunk area. The trunk is designed with a hole in the floor into which a steel fuel tank is inserted. Flanges on the sides of the tank fit over the edges of the hole, and the flanges are screwed into place with sheet metal screws, so that the top of the tank forms the floor of the trunk. A rigid steel pipe, approximately 14 inches in length, is utilized to fill the tank. One end of the pipe extends into the fuel tank while the other end protrudes through a hole in the vehicle’s rear panel. Significantly, the rear panel hole is sixty millimeters in diameter. The twist-off cap which is utilized to close the filler pipe is sixty-four millimeters in diameter. In other words, the cap is larger than the hole through which the filler pipe extends.

The plaintiffs expert posited three major design defects in the 1973 Corona fuel tank system: (1) the location of the fuel tank, (2) the rigidity of the filler pipe, and (3) the “bottle opener” effect which occurrs when the gas cap is pried off as a result of the filler pipe being forcibly pulled back through the hole in the vehicle’s rear panel. On the issue of punitive damages, the inquiry focused on Toyota’s knowledge of these defects and its failure to take prompt remedial action. Testimony revealed that Toyota learned as early as 1966 or 1967, that the rigid filler pipe would rotate forward, i.e., it would face into the trunk space, if the car was hit in the rear by another vehicle going twenty miles per hour. This was significant because there is virtually no protection between the trunk space and the passenger compartment in the ’73 .Toyota Corona. The 1966 or ’67 crash tests also indicated that the gas cap would be pried off as the filler neck rotated forward.

In the early seventies, Toyota conducted research which, according to one of its executives, convinced the company “that the safest location for the fuel tank is just behind the rear seat back instead of beneath the floor of the luggage compartment.” Consistent with this conclusion, Toyota changed the configuration of its Mark II model vehicle from an aft-filled behind-the-axle tank to a side-filled over-the-axle tank for the model year 1972. For the '73 model year, Toyota also changed the configuration of its Corina and Célica models from aft-filled behind-the-axle tanks to side-filled over-the-axle tanks. However, for reasons that were never satisfactorily explained at trial, Toyota chose not to change the design of the fuel containment system in the 1973 model Corona. Indeed, the ’73 Corona was the only vehicle in the entire line of 1973 model vehicles manufactured by Toyota which continued to utilize an aft-filled behind-the-axle tank.

Bearing in mind that “[a] directed verdict should not be granted where there is any reasonable evidence tending to prove the plaintiff’s case,” Howarth v. Moreau, 430 So.2d 576, 577 (Fla. 5th DCA 1983), we hold that the record in the case at bar fully justifies the trial court’s decision to submit the issue of punitive damages to the jury. Moreover, there is ample evidence from which the jury could have reasonably concluded that Toyota knew of the defects and, in wanton disregard of the safety of the purchasing public, continued to market the ’73 Corona without correcting its life-threatening design flaws. Accordingly, the judgment on appeal is

AFFIRMED.

DELL, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . The Molls’ 1973 Toyota Corona was designed in 1965 and assembled in 1972.

      . One film entitled “Cars That Crash and Bum,” portrayed six stationary vehicles — a Toyota, a Chevrolet Vega, a Plymouth Fury, a German-built Buick Opel 1900 Series, an American Motors Ambassador and a Ford Pinto— being rear-ended by another 1973 automobile traveling at about 39 miles per hour. The fuel containment system in each vehicle ruptured upon impact.

      . A 1969 crash test confirmed that the filler neck would rotate forward on impact, but in this test the gas cap remained on.

      . Letter dated March 1, 1974, from Keitaro Nakajima, Director/General Manager, Toyota Motor Sales, U.S.A., Inc., to Hon. John E. Moss, M.C., Chairman, U.S. House of Representatives’ Interstate and Foreign Commerce Subcommittee on Commerce and Finance.


text:
    Carl Anthony DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-733.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.

      Sheldon Yavitz and Paul H. Stevens, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

The principal question presented is whether the proof at trial was sufficient to sustain defendant’s felony conviction under Section 328.05(2), Florida Statutes (1979) (crimes relating to vessels’ certificates of title). We answer in the negative and, consequently, reverse in part.

In September of 1981, the defendant went to the Martin County Tax Collector’s office to register his homemade boat. During the ensuing discussion with a deputy clerk, the defendant mentioned the length of time it had taken to build the boat and produced a receipt for approximately one thousand dollars worth of material which, he claimed, he had incorporated into the boat. The defendant then provided the necessary information to the deputy clerk who typed three separate forms: the Statement of Builder, an Application for Boat Certificate of Title, and a Sales Tax Exemption Certificate. The defendant signed each form and received a Florida boat registration certificate and number which he later affixed to his boat.

Subsequent investigation revealed that the defendant had not constructed the vessel. Consequently, he was arrested and ultimately charged with five crimes: three misdemeanor counts of violating section 837.06, Florida Statutes (1979) which prohibits making false statements in writing to a public servant, one felony count of possessing a vessel with an altered hull number, in violation of section 371.77(4), Florida Statutes (1979) and one felony count of fraudulently obtaining a certificate of registration in violation of section 328.05(2), Florida Statutes (1979). At trial, the court dismissed the altered hull number charge and submitted the remaining counts to the jury which found the defendant guilty as charged.

Several points have been raised on appeal, but the only meritorious issue concerns the defendant’s conviction for violating section 328.05(2), Florida Statutes (1979). That statute provides in pertinent part that

[i]t is unlawful for any person, knowingly and with intent to defraud, to have in his possession, sell, offer to sell, counterfeit, or supply a blank, forged, fictitious, counterfeit, stolen, or fraudulently or unlawfully obtained certificate of title, registration, bill of sale, or other indicia of ownership of a vessel or to conspire to do any of the foregoing.

By its plain language, section 328.05(2) is aimed at combatting fraud against third parties. The statute operates to prevent fraudulent usage of the certificate of title occurring subsequent to obtaining possession, and not at fraudulent efforts initially made to procure the certificate of title or registration. In the case at bar, viewing all of the evidence in the light most favorable to the state, there is not a scintilla of proof to demonstrate that the defendant possessed the requisite intent to defraud a third party.

Accordingly, the defendant’s conviction for violating section 328.05(2), Florida Statutes (1979) is reversed. In all other respects, however, the judgment of conviction is affirmed.

AFFIRMED IN PART & REVERSED IN PART.

LETTS and DOWNEY, JJ., concur.

      . Renumbered as section 328.07(4), Florida Statutes (1981).


author: COWART, Judge.

text:
    Diane M. COUDRY and Thomas Coudry, her husband, Appellants, v. CITY OF TITUSVILLE, etc., and Insurance Company of North America, etc., Appellees.
    No. 82-886.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1983.

      Michael L. Reda of Cianfrogna, Telfer, Evans & Reda, P.A., Titusville, for appellants.
    G.B. McVay Voght of Pitts, Eubanks & Ross, Orlando, for appellees.
   COWART, Judge.

This case involves the question of whether under the facts of this case a city can be legally liable for injuries allegedly caused by a dangerous condition created in a city street by an independent contractor while constructing certain improvements under contract with the city and, if so, under what circumstances and what theory can the city be responsible.

In this case the city contracted with an independent contractor to construct certain improvements including surface water drains and sewers. Allegedly the contractor dug a ditch near the edge of a street and piled a mound of dirt in the street and left it without adequate barricades or warnings. Attempting to drive a vehicle between the dirt mound and the edge of the street the plaintiffs’ vehicle slid into the ditch, struck a telephone pole and the plaintiff Diane Coudry was injured. The plaintiffs appeal from a summary judgment in favor of the city arguing that a city cannot delegate or relinquish its duty to maintain its streets and to keep them in safe repair. They rely on cases such as Woods v. City of Palatka, 63 So.2d 636 (Fla.1953), Singleton v. City of Jacksonville, 107 So.2d 47 (Fla. 1st DCA 1958), and Finkelstein v. Brooks Paving Company, 107 So.2d 205 (Fla. 3d DCA 1958), as support for this position.

However, it can be seen from the plaintiffs own pleadings that this case does not involve injuries resulting from a defect in the street and does not involve injuries resulting from a breach of a city’s duty to make repairs to its street in order to eliminate an unsafe condition caused by defects in the street. Nor does it involve a case where a city is attempting to avoid its own responsibility for injuries resulting from its failure to repair street defects by trying to place responsibility on a contractor it has hired to correct these same defects for which it is already responsible. Therefore the quoted rule of law and the cases cited in support of it, are inapplicable to this case. Here, the dangerous condition was allegedly affirmatively created by the independent contractor while performing work under a contract with the city. The independent contractor remains a defendant in the pending action. The public street is the mere situs of the dangerous condition allegedly created by the contractor. The situation here is analogous to where a gas company or telephone company or anyone else hires an independent contractor to lay a gas pipe line or a cable or build anything. The gas company, telephone company or other contracting party would not be liable for the negligence of its independent contractor who, i'n performing its contract, created the exact dangerous condition alleged in this case to have been created by the city’s independent contractor. Nor would the city wherein the independent contractor was working, be liable for the negligence of such independent contractor merely because the dangerous condition was created on or in one of its streets. The fact that here the city is both the entity that contracted with the independent contractor to do construction work and was also the governmental owner of the public street does not create a liability that does not follow from either circumstance alone.

While a city is liable for injuries resulting from defects in its streets resulting from its failure to maintain them in accordance with their original design and for its own negligence in failing to eliminate such defects by making repairs (and remains liable for such injuries notwithstanding that faulty maintenance or repair efforts made by the city or its contractor fail to correct such defects) the city is not an insurer against the independent negligent acts of others, including its own independent contractor, merely because their negligence occurs on or in a city street. In our existing society it is absolutely essential that many entities, private, quasi public and public, construct and maintain in, on, under and above streets, roads and highways a vast number of pipes for transmission of drinking water, surface drainage water, waste water, raw sewage, treated sewage effluent, gas, oil and other fluids and cables for electricity and telephone and other power and communication transmission systems. The mere fact that a city or other governmental entity owning the street or road gives permission for normal construction activities to occur should not be held to thereby place a duty on the city to constantly supervise all activity of others in order to prevent, or warn the traveling public of, all danger resulting from such construction activity. The liability of the contractor should be enough. Otherwise the city is, effectively, being made a surety or insurer of safety as to all construction work in, along or across all of its streets. Rather than assume such responsibility and liability the city would naturally and normally just deny permission for such work or impose oppressive and suppressive conditions on contractors contrary to the interests of the public in having the construction work performed. Alleging first that it was the city’s agents that created the alleged dangerous and unsafe condition the plaintiffs in paragraph 12 of their second amended complaint also alleged generally that the city “had a duty to warn members of the public of potentially dangerous and unsafe conditions on its streets or rights of way contiguous to the streets involved.” We do not necessarily agree that the city had such a broad duty unqualified as to whether or not the city knew of the alleged dangerous condition. Assuming, however, that a city has a duty to warn motorists of known dangerous conditions created by the negligence of third parties in the area of a public street, surely a general warning, such as “This city warns motorists that city streets are potentially dangerous and unsafe” would be totally inadequate.

The shopkeeper or storeowner has a duty to periodically survey the limited area of his business premises to ascertain that they remain safe for business invitees if it is foreseeable that a dangerous condition may have been caused by third parties such as other business invitees. By analogy does a city owe a comparable duty to make itself aware of, and to eliminate or warn of, all dangerous conditions created by third parties on all city streets? If a city is to be held to such a duty, it would likewise be entitled to a reasonable time to take action to learn of dangerous conditions and to either abate them or warn or otherwise protect motorists from them. In this particular the summary judgment is correct because the second amended complaint fails to allege that the dangerous condition was known to the defendant city or had existed for a sufficient length of time so that the defendant city should have known of it, assuming, without here deciding, that it had a duty to learn.

While a city cannot, by delegating its duties to maintain and repair to an independent contractor, exonerate or insulate itself from responsibility for injuries caused by defects in streets for which it is liable, nevertheless, the same as anyone else the city can hire independent contractors to do work, whether to make street repairs, or, as here, other improvements and, thereby, avoid liability for injuries caused by the contractor’s negligence while performing the contracted work. Sovereign immunity may sometimes protect a governmental agency from liability where a private entity would have no such protection or immunity but the absence or waiver of sovereign immunity does not mean that the governmental agency has more duty, responsibility or liability than would a private entity under the same circumstances. The doctrine of non-liability of one who hires an independent contractor applies to a governmental agency the same as to a private entity. As a matter of law on the facts before the trial judge on the motion for summary judgment the persons allegedly creating the unsafe condition causing plaintiff’s injuries were agents of the city’s independent contractor and not agents of the city for whose negligence the city is legally liable. The fact that the city in this case had an employee whose duty it was to inspect the work of the independent contractor to see that the city got the performance that the city was entitled to receive under its contract is exactly analogous to the position of Sears, Roebuck and Company in Van Ness v. Independent Const. Co., 392 So.2d 1017 (Fla. 5th DCA 1981), pet. den. 402 So.2d 614 (Fla.1981). Here, as in Van Ness, the mere right of an owner (the city here) to inspect to determine that the work conforms to the contract did not change the owner (the city here) from a passive non-participant to an active participant in the construction with that right of supervision over, or direction of, the manner in which the work is performed that destroys the independent status of the contractor and renders the owner liable for negligence occurring in the performance of contracted work. Van Ness is in point and here the summary judgment in favor of the city is correct as was the summary judgment in favor of the owner (Sears) who contracted with an independent contractor in Van Ness.

The cause of action which the plaintiffs have attempted to plead against the defendant-city appears to have two theoretical bases, viz: (1) that the alleged dangerous condition in the public street was a defect that resulted from the city’s duty to maintain the street which duty is of a type not delegable to an independent contractor, and (2) that the contractor’s agents that allegedly created the alleged dangerous condition were agents of the city because the city had exercised such a degree of supervision, direction and control over the contracted work that its contractor did not have the status of an independent contractor. We hold that the summary judgment was correct as against these theories on the uncontested facts before the trial judge. Because the plaintiffs were attempting to assert that the city was directly liable for the creation of the alleged dangerous condition apparently the plaintiffs did not attempt to allege a cause of action against the city on the theory that although the city did not itself create the dangerous condition and although it was created by an independent contractor for whose acts the defendant city was not directly liable, nevertheless, “the dangerous condition was known to the defendant-city or had existed for sufficient length of time so that the defendant-city should have known of it.”

Since the case of Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963), it has been often recognized that although a summary judgment should not be refused because of facts showing an issue not framed by the pleadings and although a summary judgment may have been properly granted on the issues that were framed by the pleadings, nevertheless, when the facts submitted to the court in connection with a motion for a summary judgment show that the unsuccessful party may have a cause of action not pleaded, or a better one than pleaded, it is proper procedure to enter summary judgment with leave to amend. Because a summary judgment is usually, as here, a final judgment this leave to amend after final judgment has been considered an anomaly by many but the practice is now well established. Therefore, we affirm the summary judgment but remand with directions that the trial court permit the plaintiffs, within a reasonable time, to file such amendments to their complaint relating to the city as the plaintiffs may be advised.

AFFIRMED AND REMANDED with directions.

ORFINGER, C.J., concurs.

DAUKSCH, J., dissents without opinion.

      . Woods v. City of Palatka, 63 So.2d 636 (Fla.1953), was a case where Woods sued the city for injuries sustained when she fell into a hole in the city sidewalk which injuries and hole resulted from the city’s neglect of its duty to maintain its sidewalk in a safe condition. The city pleaded in bar a special act it had caused to be passed which simply declared that the city was not liable for personal injuries due to defects in its sidewalks. The court held the statute unconstitutional. Singleton v. City of Jacksonville, 107 So.2d 47 (Fla. 1st DCA 1958), is another case where the plaintiff alleged she was injured by reason of the failure of the city to maintain a certain sidewalk and guardrail on a viaduct. There was little, if any, actual proof that the city had built the viaduct and the city contended that it was the duty of abutting owners to maintain the sidewalks along the viaduct. The appellate court held the trial court erred in directing a verdict for the city stating the usual rule that the duty to repair and maintain city streets and sidewalks rests upon the city. Finkelstein v. Brooks Paving Company, 107 So.2d 205 (Fla. 3d DCA 1958), is closer to the facts in this case. There a motorist sued the city and its contractor who was engaged in repairing a street by resurfacing it when the plaintiff, operating a vehicle, observed an elevated manhole and, thinking he could drive over it safely, tried it and was injured when he failed. The appellate court upheld a summary judgment entered against the plaintiff and in favor of both the city and its contractor based on the plaintiff’s contributory negligence established as a matter of law. While the court in Finkelstein states nothing inconsistent with the analysis in this opinion, as a technical matter all that is said in Finkel-stein about the city’s duty and the contractor’s duty is dicta because the case was decided on the application of the contributory negligence doctrine as a complete bar and of a determination, as a matter of law, of negligence on the part of the plaintiff.

      . See Perez v. Department of Transportation, 435 So.2d 830 (Fla.1983).

      . This language is taken by analogy and adapted from paragraph 5 of the Fall-Down Negligence Complaint, Form 1.951, Forms for use with the Rules of Civil Procedure, approved by the Supreme Court, 265 So.2d 21 at 42.

      . See Purinson v. Antenna Specialists Co., 408 So.2d 617 (Fla. 3d DCA 1981), pet. den. 418 So.2d 1278 (Fla.1982); First Nat. Bank of Tampa v. Pappas, 372 So.2d 989 (Fla. 2d DCA 1979); Dorset House Ass’n, Inc. v. Dorset, Inc., 371 So.2d 541 (Fla. 3d DCA 1979); Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137 (Fla. 3d DCA 1977), appeal añer remand 382 So.2d 878 (Fla. 3d DCA 1980); Schurkman v. Stolar, 347 So.2d 653 (Fla. 3d DCA 1977); Forte v. Tripp & Skrip, 339 So.2d 698 (Fla. 3d DCA 1976); Keyes Co. v. Executive Center, Inc., 311 So.2d 734 (Fla. 3d DCA 1975); Watier v. REW Crane Service, Inc., 240 So.2d 177 (Fla. 4th DCA 1970), amended in other respects, 257 So.2d 249 (Fla.1971); McClendon v. Key, 209 So.2d 273 (Fla. 4th DCA 1968).

      . See Forte v. Tripp & Skrip, 339 So.2d 698 (Fla. 3d DCA 1976); Florida Air Conditioners, Inc. v. Colonial Supply Co., 390 So.2d 174 (Fla. 5th DCA 1980).


text:
    Charles C. RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-7.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1983.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

The appeal is dismissed. See Robinson v. State, 373 So.2d 898 (Fla.1979); Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982); Griffin v. State, 403 So.2d 623 (Fla. 5th DCA 1981).

ORFINGER, C.J., and DAUKSCH and FRANK D. UPCHURCH, JJ., concur.


text:
    Marcus D. ALSTON, Appellant, v. Mary Sugg ALSTON a/k/a “Jane” Alston and the Florida Department of Highway Safety and Motor Vehicles, Appellees.
    No. 83-1145.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Male & Simon and Steven W. Simon, Miami, for appellant.
    Stanley Jay Bartel, Miami, Paul A. Ro-well, General Counsel and Judson M. Chapman, Asst. General Counsel, Tallahassee, for appellees.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Upon the confession of error filed in this cause by the appellees Mary Sugg Alston and the Florida Department of Highway Safety and Motor Vehicles, the order of dismissal under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the appellant Marcus D. Alston in accord with the stipulation filed below by all parties to this cause. See e.g., Gonzalez v. Travelers Indemnity Co. of Rhode Island, 408 So.2d 741, 742 (Fla. 3d DCA 1982); § 319.25(2), Fla. Stat. (1981).

Reversed and remanded.


author: PER CURIAM:

text:
    Mark J. FELDMAN and Mark J. Feldman, P.A., Appellants, v. Donald L. FARBER, P.A., Appellee.
    No. 83-1402.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Mark J. Feldman, Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, and Joel D. Eaton, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM:

Based on appellee’s confession of error, that an injunction is not a proper remedy in an action at law where monetary damages will adequately compensate, Supreme Service Station Corp. v. Telecredit Service Center, Inc., 424 So.2d 844 (Fla. 3d DCA 1983); Digaeteno v. Perotti, 374 So.2d 1015 (Fla. 3d DCA 1979), we reverse and remand.

Reversed and remanded.


author: WATSON, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Gregory STEPHENS.
    No. 82-KA-1491.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Dissenting Opinion Oct. 17, 1983.
    See also, 412 So.2d 1057.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric Harrington, Asst. Dist. Atty., for plaintiff-appellee.
    James Beal, Jonesboro, for defendant-appellant.
   WATSON, Justice.

Defendant, Gregory Stephens, was convicted by a jury of armed robbery in violation of LSA-R.S. 14:64. The trial court agreed to impose a ten rather than thirty year sentence if defendant revealed the name of his accomplice. After complying with the condition, Stephens was sentenced to ten years at hard labor, without benefit of parole, probation or suspension of sentence. An order of appeal was signed on July 22, 1981.

On March 30, 1982, the trial court conducted a re-sentencing hearing. Finding that Stephens had lied when he named one Calvin Easley as his accomplice, the court vacated the ten year sentence and re-sentenced defendant to thirty years. On April 5, 1982, defendant’s conviction and original ten year sentence were affirmed. State v. Stephens, 412 So.2d 1057 (La., 1982). Defendant now appeals the re-sentencing.

Defendant contends the trial court was without jurisdiction to increase the sentence while his appeal was pending.

The trial court relied on LSA-C.Cr.P. art. 881, which provides:

“Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.”

The discretion conferred by LSA-C.Cr.P. art. 881 is limited by LSA-C.Cr.P. art. 916(3):

“The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to:
¾: # ⅜ * ⅜ sfc
“(3) Correct an illegal sentence, or reduce a legal sentence in accordance with Article 913(B); ...”

The trial court is divested of jurisdiction to amend a sentence once the order of appeal is signed, except to correct an illegal sentence or to reduce a legal sentence under certain circumstances. State v. Battaglia, 377 So.2d 264 (La., 1979); State v. Alexander, 376 So.2d 146 (La., 1979). Defendant’s ten year sentence was legal. State v. Stephens, supra. After the order of appeal was signed on July 22, 1981, the trial court lacked jurisdiction to set aside or increase the sentence. The order vacating the original sentence and re-sentencing defendant is without effect.

DECREE

For the foregoing reasons, the order setting aside the original sentence and re-sentencing defendant is reversed and vacated.

REVERSED.

LEMMON, J., dissents and will assign reasons.

LEMMON, Justice,

dissenting.

The fact that the appeal of a conviction and sentence is pending in the appellate court does not deprive the trial court of the jurisdiction (meaning power and authority) to adjudicate a motion to nullify the sentence as fraudulently obtained, especially when the motion is based on evidence discovered since the order granting the appeal.

The majority holds that the pendency of an appeal divests the trial court of jurisdiction to change a sentence. However, this general rule, which simply provides that the appellate court is the appropriate forum to contest the sentence when the case is on appeal, assumes that the sentence was not obtained by fraud. A fraudulently obtained sentence may be attacked at any time, even after affirmation on appeal, and the trial court is obviously the proper forum for such an attack, because additional evidence relating to the fraud will need to be presented.

Jurisdiction is an elusive term. When a conviction and sentence have been appealed, the appellate court, which is vested with appellate jurisdiction (but has no original jurisdiction), is the proper forum to review all matters under appeal. The trial court, which has only original jurisdiction in the matter, has exhausted its original jurisdiction as to matters reviewable on appeal. However, the issue of whether the sentence was fraudulently obtained is not an issue reviewable on the appeal, because that issue was never presented to or passed upon by the trial court. That issue must be presented for the first time in a court of original jurisdiction. Thus, when a defendant makes a fraudulent representation and thereby obtains a more lenient sentence after being found guilty at trial, the trial court is the only court with the jurisdiction (meaning power and authority) to set aside the fraudulently obtained sentence, even if the conviction and sentence are on appeal or have been affirmed by the appellate court.

Neither the pendency of an appeal nor the completion of appellate review insulates a sentence from an attack based on fraud, because no system of justice can tolerate such a result. When there is an allegation that a sentence was obtained by the fraudulent representation, the trial court (where the misrepresentation was made) is the proper forum to receive the pleading attacking the sentence, as well as to conduct the contradictory hearing and to adjudicate the merits of the contention of nullity.

Perhaps it would have been preferable, as a housekeeping measure, for the trial court to have requested the appellate court to remand the matter for the nullity determination so that the entire case could have been adjudicated in one appeal, rather than piecemeal. Or perhaps it would have been preferable for the trial court to defer the hearing on the nullity of the sentence until completion of appellate review, since reversal of the conviction might have rendered moot any issues relating to sentence. However, such considerations do not address the basic question of the jurisdictional power and authority of the court of original jurisdiction to adjudicate the merits of the contention that the sentence was a nullity as being fraudulently obtained. That contention can be presented to and adjudicated by the trial court at any time, regardless of the status of any appeal.

      . LSA-R.S. 14:64 provides:
      “A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      “B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

      . A trial court must be careful not to abandon its judicial function by assuming the investigative duties of the prosecutor and law enforcement personnel. See State v. Bing, 410 So.2d 227 (La., 1982).

      . Defendant has assigned twelve errors in the trial court. As this assignment merits reversal, the remaining assignments of error need not be addressed. State v. Ricks, 428 So.2d 794 (La., 1983).

      . The sentence affirmed in State v. Stephens, 412 So.2d 1057 (La., 1982) remains valid.

      . The record of the original proceedings shows merely that the defendant was found guilty and was sentenced to ten years imprisonment, and that defendant appealed his conviction and sentence.
      The issue of defendant’s fraudulently obtaining a more lenient sentence did not arise until after the appeal from the conviction and sentence. The record of the subsequent proceedings established that the trial judge, upon discovering the possibility that fraud had been practiced, set the matter for an adversary hearing. The evidence at the hearing clearly established that the judge initially announced his intention to impose a 30-year sentence and that defendant thereafter deliberately supplied false and misleading information to induce the judge to impose a more lenient sentence. Defendant, who was represented by counsel, had a full opportunity to contest or rebut the nature of the willful misrepresentation (in which defendant falsely accused another of being his accomplice) and the purpose of inducing the trial judge to impose the lesser sentence.

      .Even today, the trial court, on motion of the district attorney or on its own motion, could adjudicate the nullity of the sentence obtained by fraud. It makes little sense for this court to require another motion and another hearing (at which the same evidence will undoubtedly be presented), rather than reviewing the complete record of the hearing which has already been held.

      . See, by analogy, La.C.C.P. Art. 2088, which expressly reserves to the trial court, during the pendency of an appeal, the jurisdiction over matters not reviewable under the appeal.
      See also, by analogy, La.C.C.P. Art. 2004, which permits a party to seek the nullity of a final judgment obtained by fraud in a civil suit. Such an action must be filed in the trial court.

      . Indeed, defense counsel, at the hearing to annul the sentence, moved to dismiss the pending appeal. The trial court denied the motion as presented to the wrong court.


text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 83-C-0315.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      Harry McCall, Jr., L. Havard Scott, III, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiff-applicant.
    J. Broocks Greer, III, Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, New Orleans, for defendant-respondent.
   PER CURIAM.

We granted writs to review a ruling by the Court of Appeal in which that court, on a procedural question, reversed a judgment in favor of plaintiff without a review of the merits of the case. Because that ruling was incorrect, the judgment of the Court of Appeal will be reversed and the case remanded to the Court of Appeal for a review of the merits of defendant’s appeal.

Plaintiff Associated Executive Control, Inc. (A.E.C.) filed suit on July 9, 1975 against defendant Bankers Union Life Insurance Company (Bankers) for a fee allegedly earned by A.E.C. for services rendered pursuant to a written agreement between the parties. By the terms of the agreement, Bankers promised to pay A.E.C.

a consulting, finding and servicing fee totalling $50,000.00 in the event that a sale is consummated for all of the stock of Security Guaranty Life Insurance Company which is owned by Bankers ... in the event that you (A.E.C.) are a moving force in the consummation of a transaction which is acceptable in the full and absolute discretion and approval of Bankers Union Life Insurance Company.

Bankers objected to the suit, contending that the petition did not state a cause of action, inasmuch as no sale was ever consummated. A.E.C. opposed Bankers’ exception on the grounds that the only reason the sale to one Ronald E. Smith was not consummated was because Bankers attempted to insert a paragraph in the sale contract which was contrary to the truth and would have deprived A.E.C. of its fee.

The exception, originally sustained in the trial court and the Court of Appeal, was overruled in an opinion rendered by this Court on January 29, 1979. Therein we held that plaintiff’s petition did state a cause of action, notwithstanding that a sale had not been consummated, where, taking the facts as alleged in plaintiff’s petition as true, the sale was not consummated solely because of Bankers’ attempt to deprive A.E.C. of its fee in contravention of the contractual agreement. Associated Executive Control, Inc. v. Bankers Union Life Insurance Company, 367 So.2d 811 (La.1979). Accordingly, the case was remanded to the trial court for trial on the merits.

Trial was thereupon held in the Civil District Court, Parish of Orleans in November of 1980. Judgment was rendered in favor of plaintiff after a finding that the only reason the sale (of Security by Bankers to Smith) was aborted, was because of Bankers’ attempt to deprive A.E.C. of its fee.

On appeal, the Court of Appeal, without reaching the merits of the case, reversed plaintiff’s favorable judgment and dismissed plaintiff’s lawsuit on procedural grounds. Associated Executive Control, Inc. v. Bankers Union Life Insurance Company, 425 So.2d 800 (La.App. 4th Cir.1982). The court found that A.E.C. was a “business chance broker” and that under La.R.S. 37:1450, “[pjrior to amendment by Act 514 of 1978,” A.E.C. “cannot avail itself of the courts of this state to recover any fee for brokerage.”

Assuming arguendo that La.R.S. 37:1431-1459 even applies to A.E.C. in this instance, the Court of Appeal nonetheless erred in neglecting to note that La.R.S. 37:1450, upon which it relied, as it applies to “business chance brokers,” was repealed in 1978. Thus, at the time that defendant first asserted, as a bar to plaintiff’s suit, the application of La.R.S. 37:1450, in an answer filed on June 5,1979, La.R.S. 37:1450 had already been repealed. Since La.R.S. 37:1450 only provided a procedural bar to plaintiff’s existing cause of action, its repeal prior to defendant’s urging it as a defense and prior to trial of the case, makes it inapplicable. Dripps v. Dripps, 366 So.2d 544, 548 (La.1978); Ardoin v. Hartford, 360 So.2d 1331, 1338 (La.1978); Hymel v. Central Farms & Shipping Co., 183 La. 991, 165 So. 177 (1935); Garlick v. Dalbey, 147 La. 18, 84 So. 441 (1919).

Accordingly, we hold that the Court of Appeal erred in reversing, plaintiff’s judgment and dismissing plaintiff’s suit.

Decree

The judgment of the Court of Appeal is therefore reversed and the case remanded to the Court of Appeal for appellate review of the merits in this case.

DIXON, C.J., and DENNIS, J., concur.

      . The paragraph referred to provided in part:
      Buyer further represents that he has not had any dealings with, nor has he been influenced by, the firm of Associates Executive Control, Inc. ... or any of its agents, or F.D.V. deLaBarre in connection with the transaction contemplated by this agreement.

      . La.R.S. 37:1450 provides:
      No person, not licensed in accordance with the provisions of this Chapter, shall recover any fee, claim or charge for brokerage in the courts of this state.

      . Whether or not Chapter 17 of Title 37 (La.R.S. 37:1431-1459), prior to the 1978 amendments reenacting that Chapter, is at all applicable to the transaction involved in this case (the sale of stock) presents a serious question.
      Until 1978 that Chapter of the Revised Statutes was entitled “Real Estate and Business Brokers.” It was comprised of provisions applicable only to the Louisiana Real Estate Commission and primarily to the regulation and licensing of real estate brokers and real estate salesmen. However, a “business chance broker” (“any person who, for a compensation or valuable consideration, sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of a business, business opportunity, or the goodwill of an existing business for others as a vocation” — La.R.S. 37:1431(2)) was also listed among those prohibited under the Chapter from engaging in business unless licensed. La.R.S. 37:1437 prior to 1978 amendment.
      It appears far more likely that the Chapter when it referred to “sale of a business, business opportunity or goodwill of an existing business for others as a vocation,” was intended to refer to the sale of real estate and business establishments in connection therewith and not to the sale of corporate stock, as in the instant case.
      In support of this view it should be noted that in 1978 Chapter 17 entitled “Real Estate and Business Brokers” (La.R.S. 37:1431-1459), was entirely amended and reenacted as R.S. 37:1431-1464 within a Chapter newly entitled “Louisiana Real Estate License Law.” Coincident therewith the definition of “business chance broker (La.R.S. 37:1431 prior to its amendment in 1978), their licensing requirement (La.R.S. 37:1437 prior to its amendment in 1978) and thus the prohibition denying them access to the courts (La.R.S. 37:1450 prior to its amendment in 1978) was deleted entirely from the Chapter.

      .Prior to 1950, Section 15 of Act No. 236 of 1920 (the source provision for La.R.S. 37:1437) expressly made it illegal to accept a commission for performing any acts therein specified without a valid license. Under that provision, it was ruled, a non-licensed party had no cause of action for a fee allegedly earned, because it was earned illegally. Bergeron v. Mumphrey, 38 So.2d 411 (La.1949). However, that provision was eliminated from the act the following year, in 1950, leaving only the procedural bar of La.R.S. 37:1450 to the assertion of an otherwise legal cause of action. Consequently, plaintiff had, and still has, a valid cause of action for its fee, which it was only procedurally barred from asserting in the courts of this state under La.R.S. 37:1450 prior to repeal of that statute in 1978.


text:
    STATE of Louisiana v. William THOM.
    No. 82-KA-1677.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William “Chuck” Credo, Asst. Dist. Atty., for plaintiff-appellee.
    Jay C. Zainey, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant William Thom was charged by grand jury indictment with second-degree murder in violation of La.R.S. 14:30.1. After waiving a jury, he was tried by the court alone on February 18,1981, and found guilty as charged. On May 13, 1981, the trial judge sentenced him to the mandatory term of life imprisonment at hard labor. Defendant then appealed his conviction and sentence to this Court, but died with the appeal still pending. The prosecution in these proceedings is therefore abated. State v. Clayton, 427 So.2d 827 (La.1982); State v. Hamilton, 370 So.2d 874 (La.1979); State v. Ferina, 351 So.2d 1200 (La.1977); State v. Morris, 328 So.2d 65 (La.1976). Accordingly, the appeal is dismissed, the judgment of conviction is vacated, and the case is remanded to the district court with instructions to dismiss the indictment.

APPEAL DISMISSED; CONVICTION VACATED; CASE REMANDED.


text:
    STATE ex rel. Andrew Lee CARROLL v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1132.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   PER CURIAM.

We granted relator’s application for supervisory writs, 434 So.2d 410, before a complete transcript of the hearing conducted in the district court on January 11, 1983 became available. After reviewing the record as a whole, and considering the arguments of counsel in brief, we find no error in the trial judge’s ruling. Our grant of the writ application was therefore improvident and we now recall that order.

WRIT RECALLED; RULING OF THE TRIAL COURT AFFIRMED.


author: DIXON, J., MARCUS and WATSON, JJ., BLANCHE, J.,

text:
    Jon ENGLISH v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and Tulane University of Louisiana.
    No. 83-C-2023.
    Supreme Court of Louisiana.
    Sept. 22, 1983.
   In Re: Jon English, applying for Supervisory Writs and/or Writ of Review, and Stay Order to the Court of Appeal, Fourth Circuit, No. C-1357; Civil District Court, Parish of Orleans, No. 83-14981.

Denied.

DIXON, J.,

concurs in the denial. The Court of Appeal acted promptly and correctly in the exercise of its supervisory jurisdiction.

MARCUS and WATSON, JJ.,

would grant the writ, being of the opinion that the Court of Appeal erred in interfering with the conduct of the proceedings in the trial court.

BLANCHE, J.,

would further grant, believing that the trial judge acted within the discretion permitted by CCP Art. 3606 after the first continuance was agreed to by all parties.


text:
    STATE of Louisiana v. Robert McCALVIN.
    No. 82-KA-2768.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty., Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Charles Ciaccio, Asst. Dist. Attys., for plaintiff-ap-pellee.

      Prank Larre, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with distribution of marijuana in violation of La.R.S. 40:966. The prosecution arose out of his sale of three marijuana cigarettes for one dollar apiece to an undercover agent in the Jackson Square area of New Orleans. On June 2, 1982, after trial by jury in which defendant admitted distributing the marijuana but denied receiving payment, he was found guilty as charged. On June 25, 1982, the trial court then sentenced him to ten (10) years’ imprisonment at hard labor, the maximum term for the offense. Defendant has now appealed his conviction and sentence to this Court challenging the penalty imposed by the trial judge as excessive.

At sentencing on June 25, 1982, the trial court noted that defendant had been convicted on three prior occasions “... involving unlawful use of marijuana including distribution of marijuana on March 31, 1981...” and that, accordingly, “... a lesser sentence would deprecate the seriousness of [his] crime.” The trial court did not, however, order a presentence investigation, and its only apparent source of information was defendant’s testimony from the stand that he had been convicted on several prior occasions of possessory marijuana offenses. Nevertheless, under cross examination, defendant flatly denied that he had been previously convicted of distribution of marijuana and the state did not prove otherwise at trial.

We agree with counsel that the present record does not support the trial court’s view of defendant’s prior convictions and that the apparent mistake may have influenced the exercise of the court’s sentencing discretion. Cf., State v. Schaeffer, 414 So.2d 730 (La.1982); State v. Rayford, 403 So.2d 704 (La.1981). Accordingly, defendant’s conviction is affirmed, but his sentence is vacated and the case remanded to the trial court for resentencing in accord with the law.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

       BAILES, J., sitting for MARCUS, J.