text:
    In re GUARDIANSHIP OF Cynthia Lee GAMBLE. Charlotte I. GAMBLE, as guardian of the property of Cynthia Lee Gamble, Appellant, v. Ted L. WELLS, Appellee.
    No. 82-530.
    District Court of Appeal of Florida, Second District.
    April 20, 1983.
    Rehearing Denied May 24, 1983.

      Steven T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellant.
    Howard C. Hadden, Tampa, for appellee.
    Hamilton D. Upchurch, Chairman on Judiciary, and Richard A. Hixson, Staff Counsel, Tallahassee, for Ralph H. Haben, Jr., Speaker of the Florida House of Representatives, as amicus curiae.
   HOBSON, Acting Chief Judge.

Charlotte I. Gamble (hereinafter “Gamble”), respondent below, as guardian of the property of Cynthia Lee Gamble (hereinafter “the child”), appeals a final order awarding Ted L. Wells, Esquire (hereinafter “Wells”), petitioner below, whom Gamble employed in 1975 under a contingent fee contract on the child’s behalf, an attorney fee of $50,000 for services rendered which led to the passage of a 1980 legislative private relief act appropriating $150,000 to the child, but limiting her attorney fee to $10,000. Wells cross-appeals. We affirm in part, reverse in part, and remand.

On July 1, 1980, the Florida legislature enacted chapter 80-448, Laws of Florida, entitled, “An Act for the relief of Cynthia Leigh [sic] Gamble, a minor,” to compensate her for permanent physical and emotional injuries received due to the negligence of the Department of Health and Rehabilitative Services (HRS) while she was in HRS’ legal custody from 1967 to 1974. The act, approved by Governor Bob Graham on July 2, 1980, appropriated $150,000 from the funds of the state treasury to compensate the child for her injuries, directed the Comptroller to draw a warrant in that amount in her favor to be applied to a trust fund to be administered by her legal guardian, but limited her attorney fee to $10,000.

A bill to be entitled
An act for the relief of Cynthia Leigh [sic] Gamble, a minor; providing an appropriation to compensate her for personal injuries due to the negligence of the Department of Health and Rehabilitative Services; providing an effective date.
WHEREAS, on May 24, 1967, Cynthia Leigh [sic] Gamble, then 3 months old, was taken into the custody of the juvenile court of Hillsborough County and because she had no living parent was placed in the custody of the State Department of Public Welfare, and
WHEREAS, on August 6, 1967, Cynthia Gamble was admitted to Tampa General Hospital where it was discovered that she had several injuries, and
WHEREAS, on July 29, 1969, while still in the custody of the department, Cynthia Gamble was readmitted to the hospital suffering from a variety of illnesses and injuries, and
WHEREAS, on August 4, 1969, it was concluded that the child’s skeletal deficiencies and changes were the result of vitamin deficiency and trauma, and
WHEREAS, the child was placed in the home of a new foster mother and has since received adequate medical care at the Crippled Children’s Clinic to overcome the crippling and disfiguring injuries carelessly and negligently inflicted upon her while she was in the custody of the now Department of Health and Rehabilitative Services, and

The relevant facts leading to passage of the act are as follows: In January 1975 Gamble contacted Wells by telephone on the child’s behalf. She told Wells that she had been granted legal custody by the juvenile court and that the child had been abused and injured while in the previous legal custody of HRS. Thereafter, Wells, a trial attorney emphasizing in personal injury cases, inspected the juvenile court’s records and verified that Gamble had legal custody. He also contacted HRS about the possibility of obtaining its records, but realized when HRS refused to divulge them that nothing would be accomplished easily with HRS.

WHEREAS, due to the negligence of the department, Cynthia Gamble has required plastic surgery and orthopedic operations and remains crippled and disfigured, NOW THEREFORE,
Be It Enacted by the Legislature of the State of Florida:
Section 1. The facts stated in the preamble of this act are found and declared to be true.
Section 2. The sum of $150,000 is appropriated from funds in the State Treasury to the credit of the Department of Health and Rehabilitative Services, not otherwise appropriated, to compensate Cynthia Leigh [sic] Gamble for personal injuries.
Section 3. The Comptroller is directed to draw his warrant in favor of Cynthia Leigh [sic] Gamble to be applied to a trust fund to be administered and accounted for by her legal guardian in the sum of $150,000 upon funds in the State Treasury to the credit of the Department of Health and Rehabilitative Services, and the State Treasurer is directed to pay the same out of such funds in the State Treasury not otherwise appropriated. The attorney’s fee for counsel of Cynthia Leigh [sic] Gamble shall be limited to $10,-000.
Section 4. This act shall take effect July . 1, 1980.

On February 3, 1975, Gamble went to Wells’ law office. There, Wells presented her with a standard contingent fee contract entitled, “AUTHORITY TO REPRESENT.” He explained it to her, she appeared to read it, she signed it, and then he signed it.

AUTHORITY TO REPRESENT

I, the undersigned client, do hereby retain and employ, TED L. WELLS as my attorney to represent me in my claim for damages against_or any other person, firm or corporation liable therefore, resulting from an accident that occurred on the _ day of _, 19_
I hereby agree to pay for the cost of investigation, and should it be necessary to institute suit, the court costs. As compensation for his services, I agree to pay my said attorney, from the proceeds of recovery, the following fee:
33⅛% if settled without suit.
40% in the event suit is filed.
50% if an appeal is taken from the lower court by either side, or if garnishment or any proceeding after judgment has to be brought to collect the judgment or any portion thereof.
It is agreed and understood that this employment is upon a contingent fee basis, and if no recovery is made, I will not be indebted to my said attorney for any sum whatsoever as attorney’s fees. I agree that my attorney may pay my doctors’ bills from my share of the recovery.
DATED at Tampa, Fla., this 3 day of February, 1975.
CYNTHIA GAMBLE by:
/s/ “Mrs. Charlotte Gamble”
The above employment is hereby accepted upon the terms stated therein. BY: /s/ “Ted L. Wells”

According to Gamble, Wells told her that the blank spaces in the first paragraph of the document would be filled at a later time if the document was needed. Wells, however, explained that the blank spaces were not filled in because neither he nor Gamble knew the identity of the defendants) or the date(s) the child suffered her injuries.

Wells’ subsequent efforts to obtain access to the child’s HRS records in order to determine where, when and how she had been injured proved futile. On March 3,1975, he filed a motion in the juvenile court seeking to compel HRS to surrender its records for inspection by him. The court rendered an order on March 20, 1975, denying the motion on the ground that it lacked jurisdiction over HRS’ records. On May 12, 1975, Wells filed a petition for a writ of mandamus in the circuit court to direct HRS to release its records to him. The circuit court issued a writ on March 23, 1976, commanding HRS to surrender its records to him. HRS then appealed to us and we quashed the writ on December 16, 1976. See State v. Gamble, 339 So.2d 694 (Fla. 2d DCA 1976). On March 2, 1977, the Supreme Court of Florida denied Wells’ petition for a writ of certiorari. See Gamble v. State, 345 So.2d 422 (Fla.1977).

Thereafter, until November 1977, Wells wrote letters to the governor and other high state officials in an attempt to convince someone in a position of authority to direct HRS to open its records. However, his efforts were to no avail.

It finally became apparent to Wells that the only possible way of obtaining a recovery for the child would be by means of a private relief act. Thus, he telephoned Representative Richard Hodes’ office in November 1977 and requested an appointment for the purpose of convincing him to sponsor a claim bill. After meeting with Gamble and Wells in late November or early December 1977, Representative Hodes agreed to sponsor a bill.

During the 1978 legislative session, Representative Hodes introduced a claim bill calling for an award of $250,000 to the child but not containing any provision regarding an attorney fee. The bill was then referred to the House Judiciary Committee and, in turn, to the claims subcommittee and, finally, to a special master.

The special master held full evidentiary hearings for the purpose of making findings of fact and recommendations regarding the bill. He ultimately filed a report during the 1979 legislative session with the claims subcommittee recommending approval of the bill but suggesting an award to the child of only $30,000. As to Wells’ fee, his report recommended:

ATTORNEY’S FEES: Attorney of claimant has agreed to reduce his fee on a contingency fee basis to twenty-five percent of the recovery. It is the opinion of the Special Master that this is reasonable for the time and work involved in pursuit of this claim.

On April 19, 1979, Wells went to Tallahassee for the purpose of attending the claims subcommittee hearing on the master’s report. During the course of the hearing, the following conversation transpired between Wells and Representative Hamilton Upchurch, the subcommittee chairman, concerning the attorney fee:

Q [By Representative Upchurch] Our special master found — indicated that you stated to him that you had your case on a contingent fee arrangement of twenty-five percent?
A [Wells] Yes.
Q That is what fee you are willing to take regardless of ...
A I am willing to take anything. The fee is of no consequence to me. I am perfectly willing to allow the committee to set anything they want to without any question.
Q Occasionally, we are asked that in the Judiciary Committee or on the floor, and we need to represent to those bodies what the fee arrangement is. A Certainly.
Q It is twenty-five percent of any amount collected?
A No, as I mentioned before we originally had this case with me as an attorney; had this case not as a claim bill, but as a personal injury case, and I have a standard contingent fee contract.
Q In the posture that it is now, what is your arrangement with your client, if you would care, to tell us (inaudible)
A Well, I don’t know that I can, it is perhaps, but it is a contingent standard fee contract, but again it is of no moment to me. I want you to understand that. Anything the committee wants to provide is all right.
Q We don’t set the fee but occasionally the question is asked by the Judiciary or on the floor.
A I see. The contract provides for thirty-three and a third percent out-of-court; forty percent in court; fifty percent with appellate proceedings.
Q Would I be accurately stating the case if I was asked that and I said that your fee was forty percent or would be forty percent or would it be twenty-five percent as found by the special master?
A Twenty-five percent, yes.
Q I can fairly and accurately represent that to the Legislature that your fee would be twenty-five percent of any amount allowed by the Legislature?
A Yes.
Q Ok, thank you. (Emphasis added)

Ultimately, the subcommittee recommended the bill but increased the award to the child to $50,000. The House of Representatives approved the bill but increased the award to $150,000. It also added a $10,000 attorney fee limitation provision. The bill, however, died in the 1979 session of the Senate.

Between the 1979 and 1980 legislative sessions, Wells lobbied heavily for the bill, sending letters and telegrams urging many legislators to support it.

The bill was reintroduced during the 1980 legislative session in the same form in which it had passed the 1979 House session.

After enactment of the bill, Wells learned of the $10,000 attorney fee limitation provision. Later, upon receiving a state warrant for $150,000, he advised Gamble that he would not accept only $10,000 because he viewed the fee provision as unconstitutional. Gamble, however, refused to pay him more than $10,000. Thereafter, she retained other legal counsel per Wells’ advice. She still refused to pay him more than $10,000.

In September 1980 Wells filed a petition in the probate court for an attorney fee, costs and a charging lien, claiming in material part that the $150,000 award was the result of his five and one-half year performance under the contingent fee contract; that, under the terms of the contract, he was entitled to a fee based upon a percentage of the award, along with prejudgment interest; and that the portion of the act limiting his fee to $10,000 was an unconstitutional impairment of the obligations of the contract. Gamble, who had been appointed as the child’s legal guardian in August 1980, filed an answer and affirmative defenses in November 1980. She also demanded a trial by jury of all triable issues. On January 12, 1981, the court rendered an order granting Wells’ motion to strike her demand for a trial by jury. In July 1981 we denied without comment Gamble’s petition for a review of the order by writ of certiorari. See Gamble v. Sidwell, 402 So.2d 622 (Fla. 2d DCA 1981).

After trial, the probate court rendered a final judgment 1) awarding Wells a fee of $50,000 pursuant to the contractual provision calling for a fee of 33V3% in the event the case was settled without suit; 2) allowing $710.24 in costs; 3) impressing a charging lien in that total amount; and 4) denying prejudgment interest.

The court’s order observed in pertinent part:

When a lawyer is hired to do a job, under a contingent fee contract by one who is authorized to enter such employment contract on behalf of a minor, the contract is reasonable and necessary, and the lawyer does the job, he is entitled to be paid. Such is the case here. The minor’s next friend and legal custodian by court order, and who is now her adopted mother, entered into a standard contingent fee contract with Wells to find out who was responsible for multiple injuries sustained by the child, at various times, at unknown hands, and to recover compensation for the child. Wells worked 5½ years. His efforts resulted in recovery of $150,000.00 for the child. His contract called for one-third if no suit was filed. No damage suit was filed, although collateral suit and appeals were resorted to in exhausting legal remedies.
Wells finally got a claim bill passed through the legislature, which attempted to limit the attorney’s fee to $10,000.00. This is mere surplusage. The legislature cannot constitutionally impair the obligation of a valid contract.

At a subsequent hearing on Gamble’s motion for clarification, the court disavowed any intent to declare the attorney fee limitation provision unconstitutional. It reiterated that the provision was “mere surplus-age.”

Thereafter, Gamble filed an appeal and Wells filed a cross-appeal.

The meritorious contentions before us concern whether the contingent fee contract was enforceable; if it was enforceable, whether Wells waived his rights thereunder; if he did not waive his rights thereunder, whether the attorney fee limitation provision of the private relief act was a valid enactment in light of the constitutional prohibition against a law which impairs the obligations of a contract; and, if it was an invalid enactment, whether it was properly severable from the other portions of the act.

Gamble asserts that the contract was unenforceable. For support, she presents two arguments: first, she claims that she lacked the requisite capacity to contract on the child’s behalf; second, she contends that the terms of the contract did not encompass the possibility of the parties obtaining a recovery by means of a private relief act.

Capacity, of course, is vital to the existence and enforceability of a contract. Hogan v. Supreme Camp of the American Woodmen, 146 Fla. 413, 1 So.2d 256 (1941). Noting that a next friend of a minor has the power to act on a minor’s behalf, we held in Phillips v. Nationwide Mutual Insurance Co., 347 So.2d 465 (Fla. 2d DCA 1977), that a contingent fee contract entered into by a next friend on behalf of a minor for legal services will bind the minor if the trial court determines 1) that it was reasonably necessary to employ an attorney on the child’s behalf; and 2) that the contract was fair and reasonable when entered into. The court below indicated in its order that Gamble was the child’s “next friend and legal custodian by court order” when she entered into the contract. Implicit in its ruling is a dual finding 1) that it was reasonably necessary to retain an attorney on the child’s behalf; and 2) that the contract was fair and reasonable when entered into. Thus, we agree with the trial court that Gamble possessed the requisite capacity to enter into the contingent fee contract on the child’s behalf.

Gamble nevertheless maintains that she lacked the capacity to contract on the child’s behalf because the definition of “legal custody” at section 39.01(9), Florida Statutes (1975), does not expressly grant a legal custodian this authority. But this section specifically vests a legal custodian with the right and duty to protect and care for a dependent child. Further, chapter 39, which deals exclusively with juveniles, must be liberally interpreted and construed in conformity with its declared purposes. See § 39.001. Two of the declared purposes of this chapter (the only ones applicable under this factual setting) are 1) to assure that a dependent child receives the care which will conduce to his welfare, see section 39.001(2); and 2) to assure that a child removed from the control of his parent receives care as nearly equivalent to that which should have been given to the child by the parent. See § 39.001(3). In light of these considerations, we believe that it would be placing an unduly restrictive interpretation on the language of section 39.01(9) if we were to conclude that the legislature did not intend for a legal custodian to contract on a dependent child’s behalf in order to obtain needed relief for the child.

Gamble, who contemplated that we might endorse the trial court’s finding on the capacity issue, proposes next that the terms of the contract only covered the eventuality of the parties obtaining a recovery by means of a “claim for damages.” In other words, she submits that the court erred in reading the terms of the contract to encompass the possibility of the parties obtaining a recovery via a private relief act. However, the contract provided that the child would pay Wells a fee “from the proceeds of recovery” as “compensation for his services.” Further, there is ample evidence in the record to support the trial court’s determination that the parties intended for the language of the form contract to include the possibility of a recovery by means of a private relief act. Although Gamble testified otherwise, Wells testified that, prior to signing the contract, the parties foresaw the possibility of eventually obtaining relief via a claim bill. Moreover, the record shows that, subsequent to signing the contract, they did not engage in any further discussions regarding a fee arrangement. Also, they never filled in the blanks in the portion of the contract which mentioned a “claim for damages.” It is thus reasonable to conclude that they intended to treat this portion of the contract as surplusage.

In sum, given the operative language of the contract and the evidence regarding the parties’ conduct before and after the signing of the contract, the trial court did not err in deciding that they intended for the contract to cover the possibility that they would obtain a recovery by means of a private relief act.

The trial court, however, necessarily found that Wells did not waive his contractual rights in any way since it ordered that he be allowed to recover $50,000 of the $150,000 legislative appropriation pursuant to the clause in the contract which provided for a fee of 33Vs% in the event the case was settled without suit. Gamble submits that Wells expressly waived all of his contractual rights during his conversation with Representative Upchurch at the subcommittee hearing on the special master’s report. We agree with her to an extent. A review of this colloquy clearly proves that Wells waived his contractual rights. Further, he never retracted the waiver. But Wells specifically qualified the waiver by holding out for 25% of whatever amount the legislature awarded the child. In sum, we conclude that the trial court’s finding that Wells did not waive his rights in any degree is not supported by substantial competent evidence.

Gamble submits in addition that Wells implicitly waived all of his contractual rights since he actively campaigned for passage of the act after the legislature’s insertion of the $10,000 fee limitation provision during the 1979 session. But the undisputed evidence reveals that Wells did not become aware of this fee provision until after the bill was signed into law. Regardless, he could not be charged with notice of this provision prior to the act’s effective date since a statute speaks from the time it takes effect. Dewberry v. Auto Owners Insurance Co., 363 So.2d 1077, 1080 (Fla. 1978).

Wells contends that the fee limitation provision violates the contract clauses of the federal and state constitutions in that it impairs his rights under the contract. Gamble, noting that constitutional provisions and statutes in existence at the time a contract is made become a part of the contract as if expressly incorporated therein, Shavers v. Duval County, 73 So.2d 684, 689 (Fla.1954), argues that if she and Wells intended for the contract to encompass the possibility of a recovery by means of a private relief act, they must be deemed to have incorporated into the contract “a recognition that the legislature could not be bound by its contingent fee schedule” since it has the “absolute authority” under article VII, section 1(c), Florida Constitution, which antedated the contract in question, to determine the uses to which state funds may be spent. However, article VII, section 1(c), says no such thing. It simply states that “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.”

To be sure, the Supreme Court of Florida recently remarked in Brown v. Firestone, 382 So.2d 654, 663 (Fla.1980), that “[t]he Florida legislature ... may attach qualifications or restrictions to the use of appropriated funds.” Brown, however, must be read in light of the facts. There, the court was discussing the legislature’s authority to place qualifications or restrictions on a general appropriations act which set aside funds for various state projects and institutions. This is a far cry from the situation at bar. Here, the legislature appropriated funds to a private citizen and then placed a restriction on the use of such funds which canceled that citizen’s qualified obligation under a valid contract.

In any event, we do not think that the court in Brown intended to convey the message that the legislature may attach qualifications or restrictions to the use of appropriated funds which conflict with constitutional safeguards. Indeed, the court remarked on an earlier day that the payment of funds from the state treasury may be made upon the conditions prescribed by statute “[w]hen not controlled by organic law.” State ex rel. Kennerly v. Amos, 78 Fla. 552, 83 So. 393, 394 (1919).

Thus, absent evidence indicating that the parties wished otherwise, we are unwilling to go so far as to accept the contention that the legislature could insert a provision within the private relief act which negated the child’s qualified obligation under the contingent fee contract.

The attorney fee limitation provision in question clearly conflicts with Wells’ qualified right under the contingent fee contract to 25% of any recovery. Although the constitutional prohibition against impairing contracts is not absolute, Shavers v. Duval County, 73 So.2d 684 (Fla.1954), in Florida, virtually no degree of contract impairment is permissible. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975).

In order to determine how much impairment is tolerable in a particular case, the Supreme Court of Florida stated in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1980), that “we must weigh the degree to which a party’s contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy.” Id. at 780. (Emphasis added)

In this case, the “degree” to which the attorney fee provision impaired Wells’ qualified right under the contract was great. The provision restricted his fee to only $10,-000, despite the fact that he was entitled under his limited waiver to $37,500. The legislature’s “source” of authority under which it altered the contract stemmed from its plenary power to redress a moral obligation. It did not come from its inherent, broad power to regulate or police. Compare, Yellow Cab v. Dade County, 412 So.2d 395 (Fla. 3d DCA 1982); Johnson v. R.H. Donnelly Co., 402 So.2d 518 (Fla. 1st DCA 1981). The “evil” which the legislature sought to remedy was not an extensive economic or social problem. Indeed, a claim bill, by its very nature, is restricted to less than the general public. Dickinson v. Bradley, 298 So.2d 352 (Fla.1974). In sum, we believe that the degree of impairment outweighs the source of the authority and the evil sought to be remedied. Notwithstanding the trial court’s view that the fee provision was “mere surplusage,” we think that it must be characterized as unconstitutional.

The issue which remains is whether, as the trial court found, the clause limiting the attorney fee is properly severable from the other portions of the act. The Supreme Court of Florida in High Ridge Management Corp. v. State, 354 So.2d 377 (Fla. 1978), enunciated the formula to be applied in ascertaining whether an invalid portion of an act is severable from the remaining portions:

If an unconstitutional portion of an act can be logically excised from the remaining valid provisions without doing violence to the legislative purpose expressed in the valid portions, if such legislative purpose can be accomplished independently of the invalid provisions, if the act is complete in itself after striking the invalid provisions, and if the valid and invalid provisions are not so inseparable that the Legislature would not have enacted the one without the other, it is the duty of the Court to give effect to that portion of the statute which is not constitutionally infirm. Presbyterian Homes of Synod of Florida v. Wood, 297 So.2d 556 (Fla.1974); Small v. Sun Oil Company, 222 So.2d 196 (Fla.1969); Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla.1962).

Id. at 380.

The valid provisions of the act in question state that the child shall receive $150,000. With or without the unconstitutional attorney fee provision, she is entitled to receive $150,000. Thus, the legislative purpose expressed in the valid provisions can be accomplished absent the unconstitutional provision.

Accordingly, we affirm the portions of the trial court’s order striking the fee provision from the act and granting costs, reverse the portion awarding Wells a fee of $50,000 and remand with directions that the fee award be reduced to $37,500, without prejudgment interest. .

AFFIRMED in PART, REVERSED in PART, and REMANDED.

RYDER and SCHOONOVER, JJ., concur.

      . The Department of Health and Rehabilitative Services was formerly known as the State Department of Public Welfare.

      . The private relief act reads in full:

      . Gamble and the child are not blood-related.

      . See Art. I, § 10, U.S. Const.; Art. I, § 10, Fla. Const.

      . See, e.g., Frizzell v. Bartley, 372 So.2d 1371 (Fla.1979).

      . Gamble’s reply brief, p. 7.

        .Id.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    Gerald R. COLEN, Trustee, Appellant, v. William G. PATTERSON and Helen S. Patterson, Appellees.
    No. 82-1025.
    District Court of Appeal of Florida, Second District.
    April 22, 1983.
    Rehearing Denied May 31, 1983.
    Eula Tuttle Mason, St. Petersburg, for appellant.
    Ira M. Seidler, St. Petersburg, for appel-lees.
   LEHAN, Judge.

This is an appeal from a final judgment removing a cloud from title to real estate. The cloud was alleged to consist of an agreement between appellees and appellant’s assignor which was recorded by appellant. It was characterized by appellant as an option and by appellees as a first right of refusal. The agreement in pertinent part reads:

For and in consideration of $10.00 and other good and valuable considerations, receipt of which is hereby acknowledged, I, HEREBY Grant unto MAITLAND F. KNAPP, Trustee, first right of refusal for purchase of Cobb Building [legal description omitted] for the total consideration of $675,000.00, paying $175,000.00 down and balance in the form of wrap around purchase money mortgage at current interest rates prevailing at time of. closing on a twenty-five (25) year amortization schedule.

Whether the agreement is technically labeled an option or a right of first refusal, it was of indefinite duration and contained a fixed price. Such an agreement constitutes an unreasonable restraint on alienation. Iglehart v. Phillips, 383 So.2d 610 (Fla.1980). The trial court properly found the agreement to be invalid and unenforceable.

Appellant also appeals from the trial court’s judgment awarding to appel-lees their attorney’s fees. The second count of appellees’ complaint asked for damages resulting from appellant’s slander of appel-lees’ title. Under these circumstances, ap-pellees’ attorney’s fees are treated as a pecuniary loss properly recoverable by the party removing an impediment from title by court action. Lehman v. Goldin, 160 Fla. 710, 36 So.2d 259 (Fla.1948); Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973); Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976). Proof of malice is unnecessary to support a slander of title action if the act constituting disparagement is unprivileged. Maass v. Christensen, 414 So.2d 255 (Fla. 4th DCA 1982); Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). Privilege is an affirmative defense. Maass, 414 So.2d at 258. Privilege was not raised in this case, nor do we conclude that it was applicable under the facts as presented to us.

Accordingly, the judgment is affirmed.

HOBSON, A.C.J., and RYDER, J, concur.


author: PER CURIAM.

text:
    Earl Richard JACOBS, Appellant, v. Bill GUNTER, Insurance Commissioner and Treasurer, Appellee.
    No. 82-2176.
    District Court of Appeal of Florida, Second District.
    April 22, 1983.
    Rehearing Denied June 6, 1983.
    William A. Patterson of Masterson, Rogers, Patterson & Masterson, P.A., St. Pe-tersburg, for appellant.
    Susan E. Koch, Dept, of Ins., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See City of Bartow v. Public Employees Relations Commission, 382 So.2d 311 (Fla. 2d DCA 1979); Austin v. Gordon, 333 So.2d 118 (Fla. 2d DCA 1976); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957).

OTT, C.J., HOBSON and RYDER, JJ., concur.


text:
    Howard Ira CUNIX, Appellant, v. Bill GUNTER, Insurance Commissioner and Treasurer, Appellee.
    No. 82-2177.
    District Court of Appeal of Florida, Second District.
    April 22, 1983.
    Rehearing Denied June 6, 1983.
    William A. Patterson of Masterson, Rogers, Patterson & Masterson, P.A., St. Pe-tersburg, for appellant.
    Susan E. Koch, Dept, of Insurance, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See City of Bartow v. Public Employees Relations Commission, 382 So.2d 311 (Fla. 2d DCA 1979); Austin v. Gordon, 333 So.2d 118 (Fla. 2d DCA 1976); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957).

OTT, C.J., HOBSON and RYDER, JJ., concur.


author: GLICKSTEIN, Judge. HURLEY, Judge, GLICKSTEIN, Judge.

text:
    PENTHOUSE NORTH ASSOCIATION, INC., Appellant, v. Remo M. LOMBARDI, et al., Appellees. Remo M. LOMBARDI, et al., Appellants, v. PENTHOUSE NORTH ASSOCIATION, INC., Appellee.
    Nos. 81-347, 81-1011.
    District Court of Appeal of Florida, Fourth District.
    April 27, 1983.
    Rehearing Denied Sept. 7, 1983.
    Rod Tennyson of Powell, Tennyson & St. John, P.A., West Palm Beach, for Penthouse North Association, Inc.

      Larry Klein, West Palm Beach; Levy, Shapiro, Kneen & Kingcade, Palm Beach, and Coleman, Leonard & Morrison, Fort Lauderdale for Remo M. Lombardi, Nadja Subric and Victoria Novotny.
   GLICKSTEIN, Judge.

This consolidated appeal raises two issues; namely, (1) whether a condominium association can bring an action in 1979 against its lessors for breach of the lessors’ fiduciary duties as officers and directors of the association in 1966 when the lease between the lessors and the association was executed; and (2) whether the lessors are entitled to attorneys’ fees in the event of the successful defense of such action.

The association’s second amended complaint alleged that in 1966 the lessors executed the lease without informing the members of the association of the escalation clause in the lease; that the lessors enriched themselves at the association’s expense; that the lessors relinquished control of the association in 1968; that but for decisions of the Supreme Court of Florida, the present action would have been brought prior to 1977; and that it was not until 1979 — when the action was finally brought — that the association knew the lessors were going to enforce the escalation clause.

The association, in contending its right to bring an action in 1979, relies upon the decision of our sister court in Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979), which was decided solely on the court’s analysis of the statute of limitations. We disagree with that analysis.

Factually, the cases are similar. There, the association brought action in 1977, alleging that the lessors of the recreational lease had breached their fiduciary duty to the condominium purchasers in 1969 by including provisions for excessive rental at a time when the lessors controlled the association. The trial court dismissed the complaint on the ground that the action was barred by the statute of limitations. The Third District Court of Appeal reversed, holding that the association’s cause of action did not accrue until the 1977 decision of the supreme court in Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977), which recognized a cause of action in favor of the condominium association and its unit owners. Therefore the association’s action was not barred. In deciding as it did, the panel in Buchwald primarily relied upon United States v. One Red Chevrolet Impala Sedan, 457 F.2d 1353, 1358 (5th Cir.1972) which we find to be clearly distinguishable from the present case and not a sound foundation for the extension constructed by our sister court.

The Chevrolet case upon which Buchwald stands or falls was an action against the government to recover property which had been forfeited pursuant to libels of information. In United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Supreme Court of the United States gave full retro-activity to its earlier decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) which held that the privilege against self-incrimination was a complete defense to a forfeiture proceeding based on criminal prosecutions against a gambler for failure to register and pay the related gambling tax. Accordingly, in Chevrolet, the Fifth Circuit recognized that the government could have absolutely no defense to the action to recover the property, which had been unlawfully forfeited to it pursuant to a statute subsequently held to be unconstitutional. It would have been an absurdity to prevent the property owner from recovery of his property under such circumstances when there was utterly no defense. The court said in Chevrolet:

Moreover, the time at which a cause of action accrues should be interpreted in light of the general purposes of the limitation statute and the practical ends to be served by the limitation of time. Crown Coat Front Company v. United States,
386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967); Cooper v. United States [442 F.2d 908 (7th Cir.1971)], supra. Looking to these purposes and practicalities, we see no possibility that due to the passage of long periods of time, appellant will be able to succeed on the basis of a stale or unjust claim. The government seized the property involved here in a manner which no one thought to be unconstitutional at the time.of forfeiture and for years afterward. However, it is clear today that the government had no right to do so. The government has lost no defenses or evidence due to the passage of time, which would entitle it to keep the property. The government simply never had, nor could it have, any such evidence or defense. Considering, therefore, the lack of governmental interest in applying the limitations period of the instant case and plaintiff’s lack of expectancy of success in the intervening years, we hold that the cause of action accrued as of January 29, 1968, the date of decision in Marchetti and Grosso.

Id. at 1358.

We agree with the result in Chevrolet. However, we find no parallel between Buchwald and Chevrolet. Instead, we liken Buchwald and the present case to those many occasions on which the Supreme Court of Florida has overturned or receded from common law rules in the area of torts. See, for example, Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932), which allowed the customer of a beauty shop to sue the operator thereof — a married woman; Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), which permitted suit against a municipality for torts committed by its police officers; and Gates v. Foley, 247 So.2d 40 (Fla.1971), which recognized wives’ claims for loss of consortium. In none of these cases did the supreme court say that as to all incidents which occurred since the' year “1” the cause of action would now accrue as of the date of its new decision. It simply turned the page on an old common law rule which it had previously recognized. Similarly, we find nothing in Hoffman v. Jones, 280 So.2d 431 (Fla.1973) to invite actions — based on accidents occurring during the millennium — in which prospective plaintiffs now believed themselves to be comparatively, not contributorily, negligent. We believe the court was of the same mind in Avila. Accordingly, we affirm the dismissal with prejudice of the association’s second amended complaint as well as the dismissal of its earlier pleading. In doing so, we expressly recognize the decision on this issue to be in conflict with Buchwald.

On the second issue, the lessors contend that they are entitled to attorneys’ fees because of the following language in Article VII of the association’s articles of incorporation:

INDEMNIFICATION

Every director and every officer of the Association shall be indemnified by the Association against all expenses and liabilities, including counsel fees, reasonably incurred by or imposed upon him in connection with any proceeding to which he may be a party, or in which he may become involved, by reason of his being or having been a director or officer of the Association, or any settlement thereof, whether or not he is a director or officer at the time such expenses are incurred, except in such cases wherein the director or officer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement the indemnification herein shall apply only when the board of directors approves such settlement and reimbursement as being for the best interests of the Association. The foregoing right of indemnification shall be in addition to and not exclusive of all other rights to which such director or officer may be entitled.

The association contends the trial court correctly denied the lessors’ motion for attorneys’ fees based on the decision of this court in Century Village, Inc. v. Chatham Condominium Associations, 387 So.2d 523 (Fla. 4th DCA 1980), which held that the indemnification clause in a condominium recreation lease was intended to apply to claims brought by third parties against the lessor, not to actions between the lessor and lessees.

We are concerned that the parties have not mentioned section 607.014, Florida Statutes (1977) in any of their briefs, notwithstanding the apparent applicability of that statute to this case. Century Village, to which the parties refer, did not involve an action against the officers and directors of an association for breach of a fiduciary duty and contains no discussion of chapter 607. Moreover, as can be seen from section 607.-014(2) an officer and director is entitled, under certain circumstances, to indemnity, notwithstanding adjudication of liability against him in favor of the corporation.

Whether we apply section 607.014(2) or (6), the association in this case expressly undertook in Article IV to indemnify the officers and directors in circumstances such as the present; namely, the successful defense of an action brought by the association. Accordingly, the trial court erred in denying the individual s motions for attorneys’ fees. We reverse the order and. remand for a determination of those fees.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GREEN, OLIVER L., Associate Judge, concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I respectfully dissent. I would follow Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979), and reverse the order of dismissal.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

As to the first issue appellant contends in its motion for rehearing that this court overlooked the supreme court’s decision in Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla. 1977). This court’s opinion refers to that decision and deals at length with Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979), wherein our sister court, analogizing to United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir.1972), found a cause of action accruing only upon the supreme court’s Avila decision, when the lease on which the Burleigh suit was based had been executed in 1969. In the instant opinion this court explained why it thought the Avila holding was not intended to have retroactive effect.

As to the second issue, in discussing our reversal of the trial court’s denial of lessors’ attorney’s fees, appellant basically argues that we are applying section 607.014, Florida Statutes (1977) retroactively, because Article VII of appellant’s articles of incorporation, which provides for indemnification, was adopted in 1966. Had the law suit been brought before the statute was enacted we could better understand appellant’s argument. Here the law suit was not filed until 1979. Appellant appears to contend that for the statute to apply, not only the filing of the law suit but also adoption of the indemnity provision in the articles of incorporation would have had to occur after enactment of the statute. We cannot agree. Section 607.014(3) seems to us to be self-activating. Its effect does not depend on a corporation’s subsequent adoption of an indemnification for attorney’s fees provision. This discussion is in any event academic, because either the indemnity provision in appellant’s articles or section 607.014 is a sufficient basis for award of attorney’s fees to appellees.

Accordingly, the motion is denied.

HURLEY, J., and GREEN, OLIVER L., Associate Judge, concur.

      . The indemnification clause in that case provided:
      Lessee covenants and agrees with Lessor that during the entire term of this Lease, the Lessee will indemnify and save harmless the Lessor against any and all claims, debts, demands, or obligations which may be made against Lessor, or against Lessor’s title of the premises, arising by reason of or in connection with the making of this Lease and the ownership by Lessee of the interest created in the Lessee hereby, and if it becomes necessary for the Lessor to defend any action seeking to impose such liability, the Lessee will pay the Lessor all costs of Court and attorney’s fees incurred by the Lessor in effecting such defense, in addition to any other sums which the Lessor may be called upon to pay by reason of the entry of a judgment against the Lessor in the litigation in which such claim is asserted.

        Id. at 523.

      . Section 607.014(2) provides:
      A corporation shall have power to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, including any appeal thereof, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent that, the cou'rt in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
      Section 607.014(3) provides:
      To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
      Section 607.014(4) provides:
      Any indemnification under subsection (1) or subsection (2), unless pursuant to a determination by a court, shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsection (1) or subsection (2). Such determination shall be made by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit, or proceeding or by the shareholders by a majority vote of a quorum consisting of shareholders who were not parties to such action, suit, or proceeding.
      Section 607.014(6) provides:
      A corporation shall have the power to make any other or further indemnification, except an indemnification against gross negligence or willful misconduct, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.

        .See generally Judge Wetherington’s distinguished article Tort Indemnity in Florida, 8 Fla.St.U.L.Rev. 383 (1980).


text:
    FLORIDA ASSOCIATION OF the AMERICAN INSTITUTE OF ARCHITECTS and Mudano Associates, Architects, Inc., Appellants, v. PINELLAS COUNTY, Appellee.
    No. 82-1707.
    District Court of Appeal of Florida, Second District.
    April 27, 1983.
    J. Michael Huey and Mary Lou Rajchel of Akerman, Senterfitt & Eidson, Tallahassee, for appellants.
    Jean H. Kwall, Asst. County Atty., Clear-water, for appellee.
   PER CURIAM.

Affirmed. See City of Jacksonville v. Reynolds, Smith & Hills, Architects, Engi neers & Planners, Inc., 424 So.2d 63 (Fla. 1st DCA 1983).

HOBSON, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Edward Eugene ISAAC, Appellee.
    No. 82-2024.
    District Court of Appeal of Florida, Second District.
    May 4, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Glen L. Brock, Lakeland, for appellee.
   LEHAN, Judge.

The state appeals an order which granted defendant’s motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) on the ground that defendant was entrapped as a matter of law. We reverse.

Defendant, a licensed fruit dealer, came into contact with officers of the Polk County Sheriff’s Department during an undercover “sting-type” operation. The scenario, according to the officer in charge, “would be to obtain fruit, represent that fruit as stolen property, utilizing undercover agents who could visit the different licensed fruit dealers around the country without proper documentation of the fruit, and to attempt to sell the fruit as stolen property to these dealers.”

As a result of this operation, defendant was charged with trafficking in stolen fruit after defendant allegedly effectuated a sale of “stolen” fruit by two undercover officers to a Polk County fruit company. The trial court granted defendant’s motion to dismiss, adjudging that the conduct of the officers constituted entrapment as a matter of law.

The defense of entrapment “focuses upon the intent or predisposition of the defendant to commit a crime.... ” State v. Brider, 386 So.2d 818, 820 (Fla. 2d DCA 1980).

[W]here the defense of entrapment is raised, the state must show predisposition by the defendant to commit the crime. This the state may do by establishing:

1. Prior criminal activity by the defendant; or

2. Reasonable suspicion of his involvement in such activity; or

3. His ready acquiescence in the commission of the crime.

State v. Sokos, 426 So.2d 1044 (Fla. 2d DCA 1983). See Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978).

Under circumstances of the type involved here, a jury question was presented not only as to defendant’s ready acquiescence in the commission of a crime, but also as to his alleged prior criminal activity. Thus, the trial court should not have found entrapment as a matter of law. See State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA 1983); State v. Sokos, supra.

Accordingly, we REVERSE and REMAND for further proceedings consistent herewith.

SCHEB, A.C.J., and SCHOONOVER, J., concur.


text:
    Byron Mark ELLISON, Petitioner, v. STATE of Florida, Appellee.
    No. 83-625.
    District Court of Appeal of Florida, Second District.
    May 4, 1983.
    Michael D. Gelety, Fort Lauderdale, for petitioner.
   PER CURIAM.

The Petition for Writ of Certiorari is denied without prejudice to petitioner to raising the issue presented herein on appeal from final judgment in 430 So.2d 461.

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    Annette CURRAN, Appellant, v. Mary E. CRONIN, as Personal Representative of the Estate of Anthony J. Cronin, deceased, Appellee.
    No. 82-781.
    District Court of Appeal of Florida, Fourth District.
    May 11, 1983.
    M. Daniel Hughes of Chappell & Brandt, P.A., Fort Lauderdale, for appellant.
    Donald A. Orlovsky of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

We affirm upon the authority of Poe v. Estate of Levy, 411 So.2d 253, 256 (Fla. 4th DCA 1982).

AFFIRMED.

GLICKSTEIN and WALDEN, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

In a set of poorly drafted pleadings the appellant attempted to recover on a number of theories. Some of these theories were clearly barred, either by this court’s decision in Poe v. Estate of Levy or by appellant’s failure to file a timely claim with the appel-lee estate. However, I believe appellant is entitled to a trial on the merits as to her claim for the reasonable value of services rendered to the deceased. In Poe we sustained the dismissal of a similar claim on procedural grounds. However, we also recognized that such a claim, if it could be properly established, would not necessarily be barred just because the parties are cohabiting together in a marital type relationship. See Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1979) cited favorably in Poe.

      . Appellate counsel was not representing Annette Curran at the time the original pleadings were drafted and filed.


author: HOBSON, Acting Chief Judge. PER CURIAM.

text:
    Russell G. CAVERLY, Appellant, v. STATE of Florida, Appellee.
    No. 82-2793.
    District Court of Appeal of Florida, Second District.
    May 13, 1983.
    Rehearing Denied Aug. 19, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Russell Caverly was charged with driving a motor vehicle while under the influence of alcoholic beverages in violation of section 316.193(l)(a), Florida Statutes (1982). As charged, he was entitled to a jury trial under- section 316.1934(4), Florida Statutes (1982). Given that he has requested a jury trial, we reverse and remand for proceedings consistent herewith.

REVERSED and REMANDED.

BOARDMAN and SCHEB, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

On motion for rehearing, the state seeks a clarification of our opinion concerning the procedural posture in which we reviewed the trial court’s decision. The state further suggests that in granting appellant Russell G. Caverly a jury trial, our decision conflicts with our holding in State v. Whirley, 421 So.2d 555 (Fla. 2d DCA 1982).

As noted in our opinion, appellant was charged with driving under the influence of alcoholic beverages in violation of section 316.193(l)(a), Florida Statutes (Supp.1982), and the county court denied his timely request for a jury trial.

As to the procedural posture: Appellant filed a petition in the circuit court seeking to prohibit the county court from trying him without first impanelling a jury to hear the case. The circuit court denied appellant’s petition for a writ of prohibition, noting that if he was entitled to any relief it would be by a petition for writ of mandamus.

Caverly appealed. In our opinion, his petition to the circuit court set forth sufficient facts to warrant relief. Thus, the court should have treated the petition as if the correct remedy had been sought for a writ of mandamus. Art. V, § 2(a), Fla. Const.; Fla.R.App.P. 9.030(c)(3) and 9.040(c). Therefore, we treated his appeal as one from the circuit court’s denial of Caverly’s petition for relief and disposed of the matter on its merits.

As to whether our opinion conflicts with Whirley: First, we point out that Caverly was charged under section 316.193(l)(a), Florida Statutes (Supp.1982). In State v. Whirley, Whirley was charged with violation of section 316.193(3), Florida Statutes (1979).

In Whirley the defendant was not extended a right to a jury trial by the charging statute, section 316.193(3). We held that defendant did not have a constitutional right to a trial by jury since she was charged with a petit offense as defined in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).

In the case at bench, the defendant Cav-erly was charged with a violation of section 316.193(l)(a), Florida Statutes (Supp.1982). Just as in Whirley, Caverly does not have a constitutional right to a jury trial since this charge also constitutes a petit offense. See Baldwin. However, unlike Whirley, the legislature has now provided that any person who is charged under section 316.-193(l)(a) with driving a motor vehicle while under the influence of alcoholic beverages or controlled substances to the extent that his normal faculties were impaired, whether in a municipality or not, shall be entitled to a trial by jury according to the Florida Rules of Criminal Procedure. See § 316.-1934(4), Fla.Stat. (Supp.1982).

We recognize the state’s concern that now a defendant is entitled to a jury trial on the charge of driving while under the influence of alcoholic beverages, section 316.193(l)(a), but not on the charges of driving with an unlawful blood level, now section 316.193(l)(b), nor driving while intoxicated, section 316.1931, Florida Statutes (Supp.1982) (formerly section 860.01), although all three offenses carry the same penalties. Obviously, this incongruency merits legislative attention, but we do not think it any basis to deny a defendant a right accorded by the legislature.

We ordered Caverly a jury trial based on section 316.1934(4), Florida Statutes (Supp. 1982). With the clarification, we deny the motion-for rehearing.

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


text:
    Connie M. CARAKER, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 82-1839.
    District Court of Appeal of Florida, Second District.
    May 13, 1983.
    Connie M. Caraker, pro se.
    Louisa E. Hargrett, Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed. See Slusher v. State, Department of Commerce, 354 So.2d 450 (Fla. 1st DCA 1978).

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


text:
    Steven Jay CLINE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2119.
    District Court of Appeal of Florida, Second District.
    May 13, 1983.
    Robert H. Dillinger of Stolba, Lumley & Dillinger, P.A., St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983); State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983).

OTT, C.J., and HOBSON and RYDER, JJ., concur.


text:
    D.R. McCLAIN AND SONS, INC., Appellant, v. PIZZA HUT OF AMERICA, INC., and St. Paul Fire and Marine Insurance Company, Appellees.
    No. 82-2331.
    District Court of Appeal of Florida, Second District.
    May 13, 1983.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellant.
    Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for appellees.
   PER CURIAM.

Affirmed. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

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


text:
    Donald R. HARTMAN, Appellant, v. Ruth M. HARTMAN, Appellee.
    No. 82-2242.
    District Court of Appeal of Florida, Third District.
    May 17, 1983.

      Neiwirth & Neiwirth, and Ronald G. Nei-wirth, Miami, for appellant.
    Bennett M. Cooper, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

An eight-year-old agreement entered into pursuant to a dissolution of marriage, which provided to the wife a fixed monthly sum for child support so long as the children were minors and the wife did not remarry, with the added provision that such payments to the wife.would continue “regardless of which of the children may be domiciled or in her custody”, was not subject to modification so as to reduce the amount of support on the ground that custody of one of the children had been transferred to the father. The only alleged change in circumstances — change of child custody — is one which, by terms of the agreement, was not to affect the amount of support. The court will not remake the parties’ valid child support agreement. Martinez v. Martinez, 383 So.2d 1153 (Fla. 3d DCA 1980).

Affirmed.


text:
    Raymond COX, Appellant, v. STATE of Florida, Appellee.
    No. 82-1417.
    District Court of Appeal of Florida, Second District.
    May 20, 1983.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA 1983). Contra State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982).

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


text:
    Frank Arthur POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2010.
    District Court of Appeal of Florida, Second District.
    May 20, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah A. Adamson, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

HOBSON, A.C.J., and RYDER and LE-HAN, JJ., concur.


text:
    Daniel James LYLES, Appellant, v. STATE of Florida, Appellee.
    No. 82-2779.
    District Court of Appeal of Florida, Second District.
    May 20, 1983.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Russ v. State, 313 So.2d 758 (Fla.1975); Taylor v. State, 386 So.2d 825 (Fla. 3d DCA 1980).

HOBSON, A.C.J., and RYDER and LE-HAN, JJ., concur.


text:
    Ira M. AMAZON, Appellant, v. STATE of Florida, Appellee.
    No. 83-97.
    District Court of Appeal of Florida, Second District.
    May 20, 1983.
    Barry A. Cohen and Richard G. Pippinger of Cohen & Pippinger, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983).

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


text:
    Arthur Vincent FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2602.
    District Court of Appeal of Florida, Second District.
    May 25, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Kaufman, 430 So.2d 904 (Fla.1983).

BOARDMAN, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


text:
    Anna Kristine ROOK, a minor, By and Through her next friend and natural father, Gene A. ROOK, and Gene A. Rook, individually, Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 82-2201.
    District Court of Appeal of Florida, Second District.
    May 27, 1983.
    Thomas Saieva of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for appellants.
    Alan B. Watson, Law Offices of C. Wade Yeakle, III, St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. Scharfschwerdt v. Allstate Insurance Co., 430 So.2d 578 (Fla. 5th DCA May 4, 1983).

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


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge. HERSEY, Judge,

text:
    Tyrone DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1899.
    District Court of Appeal of Florida, Fourth District.
    June 1, 1983.
    Rehearing Denied Aug. 31, 1983.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a conviction of robbery with a firearm and a sentence of six years, four of which are to be served imprisoned and the balance suspended, with appellant being placed on community control for two years. We have the impression that if appellant were tried before a dozen juries, the verdict would always be the same as the present conviction; therefore it is of no small moment that the panel in this case recognize such prognosis yet reverse and order on remand that appellant be discharged. It is equally significant that a majority of the panel probably has experienced more involvement in the area of law enforcement than the law enforcement officer who performed so ably in apprehending appellant. Yet, to be worth wearing the robe of judicial office, one must vigorously apply the commandment the late Justice Felix Frankfurter recited in his sketch of Oliver Wendell Holmes that judging calls “[fjor rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution.”

The uncontradicted facts are that four youths parked a car in a shopping center parking lot, then entered one of the stores, Jeans, Etc. Appellant was one of the four. After ostensibly shopping, the four left the store. Minutes later, two of the four returned to the store with weapons and robbed it. Using his training and analysis in a commendable way, Officer Bowerstock of the Mangonia Park Police Department and his partner, Officer Thompson, responded to the resulting BOLO within approximately one-half hour, located and stopped the car appellant was driving, arrested him, and located a weapon under the front passenger seat together with apparently stolen jeans elsewhere in the car. Approximately $1,000 was taken from the store. When the car was stopped, $194 was found on its owner, a passenger who was later identified as being one of the two in the store at the time of the robbery, and $70 on appellant. All four youths were charged in a one count information with robbery with a firearm.

The lead investigator testified that when he questioned appellant after his apprehension, appellant told him that he did not know who the other individuals in the car other than the owner were; and that he had dropped them off by some apartments on 45th Street. He further maintained that he was in the car when the robbery took place; that the car owner, Calvin Johnson, drove the car away from the shopping center; that he did not see the money that was taken, was not aware of any guns in the car, was not aware that any robbery was going to take place, and had gone into the store minutes before the robbery for the purpose of buying jeans. With such testimony in evidence during the state’s case, it is not surprising that appellant chose not to take the stand after the state rested.

To return to our original premise, we are disinterested; but a jury need not be naive. The jury in this case obviously did not believe appellant’s protestations of innocence made to the detective.

The problem in this case is that the jury should never have been given the case because appellant’s motions for directed verdict should have been granted. The first governing principle is recited in Davis v. State, 90 So.2d 629, 631-32 (Fla.1956):

Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. The conclusion as to the ultimate facts must be one which in the common experiences of men may reasonably be made on the basis of the known facts and circumstances. Wharton’s Criminal Evidence, Sec. 6.
At the same time we must not lose sight of the basic proposition that one accused of a crime is presumed innocent until proved guilty beyond and to the exclusion of a reasonable doubt. It is the responsibility of the State to carry this burden. When the State relies upon purely circumstantial evidence to convict an accused, we have always required that such evidence must not only be consistent with the defendant’s guilt but it must also be inconsistent with any reasonable hypothesis of innocence. Head v. State, Fla.1952, 62 So.2d 41; Mayo v. State, Fla.1954, 71 So.2d 899.
Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.

See also Mayo v. State, 71 So.2d 899, 904 (Fla.1954), in which the court said:

Circumstantial evidence is never sufficient to support a conviction where, after there is assumed all to be proved which the evidence tends to prove, another hypothesis still may be true, because it is the actual exclusion of each other hypothesis which clothes mere circumstances with the force of proof. Thus evidence leaving uncertain which of several hypothesis may be true, or establishing only a probability favoring one hypothesis rather than another, cannot be equal to proof of guilt, no matter how strong the probability may be. Whetston v. State, 31 Fla. 240, 12 So. 661. (Emphasis supplied.)

The second is contained in Chaudoin v. State, 362 So.2d 398, 401 (Fla. 2d DCA 1978).

In the commission of a crime, both the actor and one who aids and abets him are principals in the first degree and may be charged and convicted of the crime. Both are equally guilty. Section 777.011, Florida Statutes (1977). There are two essential conditions which must be met to result in the status of aider and abetter. Such a person is one who has the intent that the crime be committed and who, by acts or words, assists or encourages another in the actual commission of the crime. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933). It is not necessary that the aider or abetter be physically present aiding and abetting his partner in the crime; it is sufficient if, pursuant to a previous understanding, he is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actuál perpetrator. Pope v. State, 84 Fla. 428, 94 So. 865 (1923).
As in any other criminal case, the guilt of an aider or abetter can be established by circumstantial evidence. Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1974); Rosson v. State, 319 So.2d 64 (Fla. 2d DCA 1975). Such evidence, however, must meet the test first set forth above; that is, it must be both consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Evidence which establishes nothing more than a suspicion, or even the probability of guilt, is not sufficient. Davis v. State, supra.

Here, the sole proof of intent to participate is appellant’s entry into the store, minutes prior to the robbery. There is absolutely no question that a jury could— and as we have speculated, generally would — find that appellant was in the store solely to “case” it along with the other three. BUT, the reasonable hypothesis exists that he entered the store to buy jeans, or even to shoplift; and that he never intended to participate in a robbery. There is no evidence that he was there when the robbery occurred, notwithstanding showups shortly after apprehension, which clearly put him there earlier.

While we cannot point to a “red cow” to support our conclusion, there is somewhat similar precedent in two burglary eases. In Lockett v. State, 262 So.2d 253, 254 (Fla. 4th DCA 1972), this court said:

Despite appellant’s alibi, the evidence was certainly sufficient to establish (1) that it was appellant whom the witnesses saw seated in the car parked by the Ent-wistle home, and (2) that the unidentified youth seen loading the television set and guns into appellant’s car was guilty of breaking and entering a dwelling house with intent to commit grand larceny. However, upon this evidence, appellant’s guilt (of the crime charged) would necessarily depend upon a showing of aiding and abetting under Section 776.011, F.S., F.S.A., which requires proof of his intent to participate. Williams v. State, Fla. App.1968, 206 So.2d 446; Douglas v. State, Fla.App.1968, 214 So.2d 653.
Intent may be, and in fact usually is, shown largely by circumstantial evidence but if the proof of intent rests solely upon circumstantial evidence (as it does here) the proof must be not only consistent with the guilt of the accused, but also inconsistent with any other reasonable hypothesis. Broadnax v. State, Fla.1952, 57 So.2d 651 and Williams v. State, supra. The circumstances of appellant sitting in his car parked outside the Entwistle residence while stolen personal property is being loaded into the car is unquestionably consistent with guilt. Yet, it is not wholly inconsistent with a reasonable hypothesis other than guilt (of the offense charged). For example, such circumstances are not inconsistent with the hypothesis that appellant drove his car to the Entwistle residence at the request of his companion who gave a legitimate purpose as a pretext, and only after the companion emerged from the residence carrying the stolen personal property did appellant become aware of his companion’s real purpose.

Further, the Third District Court of Appeal said in A.Y.G. v. State, 414 So.2d 1158, 1159 (Fla. 3d DCA 1982);

Since there is no evidence that the juvenile actually entered the store, she may only be adjudicated of delinquency for burglary as an aider and abettor. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972). It is well established that to be convicted as an aider and abettor, the state must show an intent to participate in the perpetration of the crime. J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980). Where there is no direct evidence of intent, the circumstantial evidence relied upon to show such an intent must be such as to preclude every reasonable inference that the defendant did not intend to participate in the criminal activity. K.W.U. v. State, 367 So.2d 647 (Pla. 3d DCA), cert. denied, 378 So.2d 349 (Fla.1979).
Evidence that the defendant was present at the scene of the crime and drove the “getaway” car at the request of the perpetrator of the burglary does not exclude the reasonable inference that the defendant had no knowledge of the crime until after it occurred; thus, she did not have the requisite intent. J.H. v. State, supra; Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). Although A.Y.G.’s flight from the police may have been strong evidence that she was an accessory after the fact, she cannot be convicted as an accessory after the fact where that crime was not charged. Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969); Douglas v. State, supra.
This case graphically demonstrates the desirability and the necessity in this type of situation for the State Attorney to charge the defendant not only as a principal under Section 777.011, Florida Statutes (1979), but, in the alternative, as an accessory after the fact pursuant to Section 777.03, Florida Statutes (1979). Had the state done so in this case, the needless expenditure of time and effort would have been avoided.

As for discharging appellant, this court said in McWatters v. State, 375 So.2d 624, 625 (Fla. 4th DCA 1979):

Because a retrial of a defendant whose conviction is reversed for insufficiency of the evidence would violate the double jeopardy clause of the United States Constitution, we direct that the appellant be discharged. Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

HERSEY, J., and ANDREWS, ROBERT LANCE, Associate Judge, concur.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

The state contends in its motion that the court may have overlooked Rose v. State, 425 So.2d 521, 523 (Fla.1982), cert. denied, -U.S. -, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), which held: .

We find, however, that the record contains a chain of substantial, credible evidence to support the jury’s finding that defendant was guilty of kidnapping and first-degree murder. Whether, as defendant asserts, the evidence failed to exclude all reasonable hypotheses of innocence is for the jury to determine, and we will not reverse a judgment based upon a verdict returned by a jury where there is substantial, competent evidence to support the jury verdict. Welty v. State, 402 So.2d 1159 (Fla.1981); Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981).

While we were aware of said decision, it was not discussed in our opinion because we failed to see the necessity for same. Plainly, in the present case a jury could not reasonably exclude every reasonable hypothesis other than guilt. Stated another way, the question here is the same as that posed in Vick v. United States, 216 F.2d 228, 232 (5th Cir.1954):

Was then the jury warranted in deducing from the evidence inferences which excluded every reasonable hypothesis. but that of guilt?

If we were to follow the state’s logic, a trial judge eould never answer that question and could never grant a motion for judgment of acquittal pursuant to Florida Rules of Criminal Procedure 3.380 when the evidence was circumstantial. Instead, every case would have to go to the jury. In Vick, the court said:

In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. Kassin v. United States, 5 Cir., 87 F.2d 183, 184; Rent v. United States, 5 Cir., 209 F.2d 893, 899; McTyre v. United States, 5 Cir., 213 F.2d 65, 66. In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232, 233; cf. Yoffe v. United States, 1 Cir., 153 F.2d 570, 572; Remmer v. United States, 9 Cir., 205 F.2d 277, 287. “The weight of circumstantial evidence is a question for the jury to determine; such evidence alone or in connection with other evidence may justify a conviction. Great care, however, must be exercised in drawing inferences from circumstances proved in criminal cases, and mere suspicions will not warrant a conviction.” 20 Am.Jur., Evidence, Sec. 1217, p. 1070. As said by Judge Prettyman in Curley v. United States, supra, “The task of the judge in such case is not easy, for the rule of reason is frequently difficult to apply, but we know of no way to avoid that difficulty.”

Id. at 232. Whether we call the proof in this case mere suspicions or an absence of substantial, competent evidence, the resulting conclusion is the same; namely, that the jury should not have received the case. Accordingly, the motion is denied.

ANDREWS, ROBERT LANCE, Associate Judge, concurs.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting with opinion:

Our original opinion reversing appellant’s conviction was based upon the legal precept that where a conviction is based solely upon circumstantial evidence such evidence “must not only be consistent with the defendant’s guilt but it must also be inconsistent with any reasonable hypothesis of innocence,” quoting from Davis v. State, 90 So.2d 629, 631 (Fla.1956). We articulated our own hypothesis of innocence based upon the known facts and having done so we concluded that the result in the trial court failed the Davis test. Upon reflection I am convinced that our reasoning was flawed because we failed to give sufficient emphasis to the perspective from which the Davis rule is to be applied; that is, whether every reasonable hypothesis of innocence has been overcome by the circumstantial evidence is a question not for the trial court, nor indeed for the appellate court, but is one of fact for the jury. As our supreme court said in Rose v. State, 425 So.2d 521, 523 (Fla.1982); “whether ... the evidence failed to exclude all reasonable hypotheses of innocence is for the jury to determine .... ” The appellate function is merely to determine whether the judgment based upon the jury verdict is supported by substantial, competent evidence.

I would therefore grant rehearing and affirm the judgment as supported by substantial, competent evidence. .

      . F. Frankfurter, Mr. Justice Holmes and the Supreme Court 31 (1938).

      . He admitted seeing a zipper bank bag.


text:
    VINCENT J. FASANO, INC., Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, Appellee.
    No. 81-1712.
    District Court of Appeal of Florida, Fourth District.
    June 8, 1983.

      Larry R. Leiby and Gerald L. Solomon of Leiby & Elder, Miami, for appellant.
    George E. Loomis, West Palm Beach, for appellee.
   PER CURIAM.

Vincent J. Fasano, Inc. (Fasano), a construction contractor, appeals from a final administrative order by the School Board of Palm Beach County (School Board).

The School Board and Fasano entered into a contract on May 4, 1978, for the construction of a vocational high school in Belle Glade. The school was not substantially completed until the summer of 1980, beyond the contracted completion date.

The Superintendent of Palm Beach Schools made a written recommendation to the School Board to be considered at a January 21,1981 meeting, which suggested, inter alia, that many of Fasano’s claims for change orders (additional compensation and/or extensions for time of performance) be denied and that Fasano be assessed a certain sum as liquidated damages for tardy performance. This report was sent to Fasa-no with a cover letter dated December 30, 1980, which suggested that a formal hearing on the claims might be in order.

Fasano, by letter of January 31, 1981, agreed that a formal hearing would be in order. On March 13, 1981, Fasano submitted an “amended petition for administrative hearing.” On March 16,1981, Fasa-no filed a motion to disqualify the School Board pursuant to Section 120.71, Florida Statutes (1981), and Florida Administrative Code Model Rule 28-5.108. Fasano also filed a motion requesting a prehearing conference. A prehearing conference was held between Fasano and the School Board’s legal advisor, but no hearing officer was present. On March 23, 1981, Fasano petitioned this court for writ of prohibition to prevent any member of the School Board from acting as hearing officer. The writ was denied.

On March 23, 1981, the hearing commenced before the School Board. Fasano moved to disqualify the School Board as hearing officer. Fasano also objected to the notice of hearing as being inadequate and objected to the Board’s failure to adopt rules of procedure as required by the Administrative Procedure Act. These objections were overruled. A final order was entered August 5, 1981, and this appeal ensued.

The parties start from the premise that Fasano was entitled to a hearing under Section 120.57, Florida Statutes (1981). That section provides that “The provisions of this section shall apply in all proceedings in which the substantial interests of a party are determined by the agency [such as the School Board].” We do not agree that the Administrative Procedure Act is implicated in a breach of contract situation involving an agency and an outside contracting party, except under very limited circumstances.

School boards are subject to suit on their contracts by virtue of Section 230.22(4), Florida Statutes (1981), which provides as follows:

(4) CONTRACT, SUE, AND BE SUED. — The school board shall constitute the contracting agent for the district school system. It may, when acting as a body, make contracts, also sue and be sued in the name of the school board; provided, that in any suit, a change in personnel of the school board shall not abate the suit, which shall proceed as if such change had not taken place.

See Jones v. Braxton, 379 So.2d 115 (Fla. 1st DCA 1979); 29 Fla.Jur. Schools § 29 (1967).

The First District has said “[t]hat the capacity to be sued on [a] contract implies the power to breach [the] contract.” Jones, 379 So.2d at 119 (suit against school board). We agree with the rationale underlying this principle and hold further that breach of contract is ordinarily a matter for judicial rather than administrative or quasi-judicial consideration.

What an agency may hear and determine must be within the framework of the powers conferred upon the agency. 1 Fla. Jur.2d Administrative Law § 66 (1977). An agency has no authority “to administratively adjudicate claims made against it by persons with whom it has contracted for the purchase of materials or the rendition of services. Disputes such as these are traditionally settled in the courts of this state by adversary proceedings in which the agency as a contracting party is treated as any other citizen.” Id., citing State Road Department v. Cone Brothers Contracting Co., 207 So.2d 489, 491 (Fla. 1st DCA 1968). See San Marco Contracting Co. v. State, Department of Transportation, 386 So.2d 615 (Fla. 1st DCA 1980) (no statutory requirement of exhaustion of administrative remedies before filing suit against D.O.T.). See also Biltmore Construction Co. v. State, Department of General Services, 363 So.2d 851 (Fla. 1st DCA 1978) (agencies have no power to order specific performance); Florida Department of General Services v. Biltmore Construction Co., 413 So.2d 803 (Fla. 1st DCA 1982) (agency can sue on contract to extent it lacks adequate administrative remedy).

On the other hand, in Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979), the First District held that the Administrative Procedure Act requires state agencies to conduct formal hearings on contractors’ claims for additional compensation and for extensions of time for performance, such as the claims involved in the present case. See also Graham Contracting, Inc. v. State Department of General Services, 363 So.2d 809 (Fla. 1st DCA), dismissed, 364 So.2d 892 (Fla.1978). This construction afforded a remedy to the contractor who could not sue the Department of General Services on the contract without a waiver by the state of the doctrine of sovereign immunity. By interpreting the Act as requiring formal hearings on contractors’ claims and by holding that agency determinations on those claims can be judicially reviewed, the court held “to the extent of those remedies, the legislature has waived any claim of state immunity for state action wrongfully depriving citizens of contract rights.” Graham, 363 So.2d at 814. See Biltmore Construction Co., 363 So.2d at 854 n. 1 We, therefore, distinguish Graham, without expressing a view as to the correctness of its rationale, because in the case at bar Fasano is not precluded from pursuing his cause of action in circuit court. Indeed, his right to do so is statutorily mandated. The Graham court hinted that such a distinction might be important by distinguishing State Road Department v. Cone Brothers Contracting Co. Graham, 363 So.2d at 814. In addition, the Graham contract specifically provided for dispute resolution by means of an administrative hearing. There is no such provision in the contract between Fasano and the School Board.

Accordingly, we hold that the so-called “final agency action” appealed here is of no force and effect, is in fact a nullity and Fasano is at liberty to pursue his cause of action in the appropriate judicial forum.

The agency action is therefore quashed and this appeal dismissed.

APPEAL DISMISSED.

HERSEY, HURLEY and DELL, JJ„ concur.