text:
    The CITY OF DAYTONA BEACH, etc., Appellant, v. David CARADONNA, et al., Appellees.
    No. 83-1189.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.
    Frank B. Gummey, III, Daytona Beach, for appellant.
    William F. Hathaway, of Tindell & Hathaway, Daytona Beach, for appellees.
   ORFINGER, Judge.

The issue before us is whether a city may, by subsequent legislation, impair or reduce benefits to which employees retired for disability are entitled under the pension ordinances in effect at the time of their retirement. The trial court held that the right of the retired employees became vested at the time of their retirement in accordance with the provisions of law in effect at that time, and that these benefits could not be impaired or reduced by subsequent legislation. The City appeals and we affirm.

The appellees are fourteen disabled police officers and firefighters who are recipients of disability pensions under the appellant City of Daytona Beach’s Police and Fire Department Pension Fund. On November 29, 1982, they petitioned the circuit court for a writ of mandamus seeking to compel the City to pay them certain disability benefits which the City had denied them pursuant to a 1982 amendment' to the City’s 1965 pension law which was adopted after they had been retired.

The current Police and Fire Department Pension Fund was created by Chapter 65-1443, Laws of Florida (1965), and provided a pension system for uniformed members of the Daytona Beach Police and Fire Departments to be administered by a board of trustees. The membership of the 1965 pension plan included “original” members and “new” members. An original member was defined by the ordinance as any permanent employee of the city who became a member before July 1, 1965, as well as any former employee already retired under any prior plan applicable to policemen, detectives, or firemen. A new member, on the other hand, was any permanent employee who became a member of the plan after its effective date, July 1, 1965. The appellees were all hired by the city between 1966 and 1977, and thus were new members under the 1965 plan.

The original pension plan provided no disability benefits to “new members.” In 1974 the city amended its pension plan, as pertinent here, “to make the provisions of this [1965] pension fund relating to disability and death benefits of original members applicable to all new employees as of the effective date of this article and to give all new members the option to elect to come within its provisions.” The plan then set out the method for determining total and permanent disability and for subsequent re-examination to insure continued eligibility for disability pensions under the plan. The plan made specific provision for a reduction of pension benefits by the amount of Worker’s Compensation paid to the pensioner, and required covered members to contribute 2 percent of their annual base pay.

On October 1,1982, in response to continued pressure from its actuaries that the number of employees retiring because of disability was greater than had been anticipated, resulting in higher than anticipated demand on the fund, the city again amended the pension plan and added to the ordinance the provision which forms the basis for this controversy, viz:

(c) As to any new member, in addition to the offset in the amount of any Workers’ Compensation benefits payable under Section 2-40.3, City Code, there shall be an offset to be applied against disability benefits payable hereunder of an amount equal to seventy-five percent (75%) of family earned income and one hundred percent (100%) of social security disability income payments. For this purpose, family shall mean the member and his or her spouse. For this purpose earned income shall include the higher of all of the member’s or one-half (½) of all of the member’s family income (when that family income is from a joint venture with the member’s spouse or income earned by the member’s employment or other efforts is assigned or otherwise transferred to the spouse) subject to the Federal Old-Age, Survivors, and Disability Insurance taxes, disregarding the maximum social security wage base, including income that would be subject to such taxes except that the employer is not covered under social security and shall include social security disability insurance benefit payments. For this purpose social security disability insurance benefit payments shall mean those as provided for under 42 USCA Sections 402 and 423, as may be amended. The disabled member shall be required to submit verifiable copies of the portions of his and his spouse’s Federal income tax return and other documentation showing reportable income if so requested by the Board. This offset may be applied retroactively, but with any subsequent resulting reductions to be made in future benefit payments. Any member refusing to supply the required income tax returns shall have the disability benefit otherwise payable hereunder terminated and he shall no longer be considered a disabled member.

In sum, while the 1974 ordinance provided for offsetting only Worker’s Compensation benefits, the 1982 ordinance added additional offsets for earned income of the retired employee or his family, and for social security disability benefits.

The appellees were all retired as disabled after the 1974 amendment, but before the adoption of the 1982 amendment. We are concerned only with that provision of the 1982 amendment which purports to authorize the city to retroactively offset against the benefits of already retired employees the family earned income and the social security disability income benefits, when no such offset was provided for in the law effective when these employees were retired.

It seems clear that whatever may be the right of the city to prospectively amend its retirement plan as to those employees who have not retired [see, Florida Sheriffs Association v. Department of Administration, Division of Retirement, 408 So.2d 1033 (Fla.1981) ], such right does not exist as to those employees who have already retired, because those rights became vested at the time of retirement. In State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So.2d 127 (1941) the supreme court said:

The weight of authorities is to the effect that when a government by statute once establishes a compensation or a retirement system for its said officers or employees and provides in part the funds and means for administering it according to the terms thereof, and any such officer or employee contributes money over a period of years and the contributions are placed to the credit thereof and the officer or employee has served the public or government for the designated period of years, or while serving attains a certain age or becomes mentally or physically disabled while so serving, and when the conditions arise or occur upon which by the rules and regulations of the system the said officers or employees become eligible for retirement and to receive funds to be paid out of said compensation retirement fund and the said officers or employees have met all the requirements of the act creating the retirement system, then the said officers or employees have acquired a vested right under the terms of such statute which establishes a contractual relation which may not be affected or adversely altered by subsequent enactments. This rule in a general way is supported by the previous decisions of this court in Anders v. Nicholson, [111 Fla. 849, 150 So.2d 639] supra, and State ex rel. Holton v. City of Tampa, [119 Fla. 556, 159 So.2d 292] supra.

Id. 2 So.2d at 132-133.

This holding was reaffirmed in City of Jacksonville Beach v. O’Donald, 151 So.2d 430 (Fla.1963). There, the court held that a city employee at the time of his retirement had a vested right of contract in all pension benefits conferred upon him by the law then in effect, and his wife’s right to continued pension benefits on his death vested at the same time and thus could not be impaired by legislation reducing those benefits after his retirement. The court in O’Donald expressly noted that the earlier case of State ex rel. Holton v. City of Tampa, 119 Fla. 556, 159 So. 292 (1934) was limited to its own “peculiar” facts and that regardless, the facts as presented in Holton were so confusing “as to shed no light upon the troublesome problem” before the O’Donald court. “Certainly” the court stated, “the language [in Holton ] does not commit this court to a rule that a retirement plan can be so amended after one retires under it as to affect his rights.” Id. at 431.

That benefits under a retirement plan, whether voluntary or mandatory, vest at the time of retirement, has been made clear in Florida Sheriffs Association v. Department of Administration, supra, where the supreme court, after reviewing earlier cases on the subject said:

Although, by the foregoing decisions, this Court has stated that the legislature can alter retirement benefits of active employees, the Court has also expressly held that, whether in a voluntary or mandatory plan, once a participating member reaches retirement status, the benefits under the terms of the act in effect at the time of the employee’s retirement vest. The contractual relationship may not thereafter be affected or adversely altered by subsequent statutory enactments. City of Jacksonville Beach [v. State ex rel. O’Donald, 151 So.2d 430] State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So.2d 127 (1941). [Emphasis supplied].

Id. at 1036.

Appellant attempts to distinguish the cited cases from this one by contending that disability pensions are different from length of service pensions and are thus susceptible to modification, even after retirement. Appellant cites City of West Palm Beach v. Holaday, 234 So.2d 24 (Fla. 4th DCA), affirmed, 240 So.2d 152 (Fla.1970) as support for its position, but that case does not support the city here. Hola-day merely held that where the pension ordinance made provision for a Worker’s Compensation offset against disability pensions, but made no such provision for length of service pensions, the city could not offset a Worker’s Compensation benefit against a length of service pension. Those circumstances do not exist here, where the only offset provided for in the ordinance was for Worker’s Compensation benefits paid to a retireant for service-connected disability, and which is not in contention here. Holaday indicates that the pension ordinance may provide for differences between disability pensions and length of service pensions, but the ordinance in effect here when appellees retired made no such distinction.

Similarly, cases cited by appellant which discuss when an employee is totally or permanently disabled [Shepard v. Department of Administration, 361 So.2d 208 (Fla. 1st DCA 1978) ]; whether a plan may be amended as to employees who are still employed and who have not satisfied any of the statutory conditions entitling them to pension benefits [Grady v. Division of Retirement 387 So.2d 419 (Fla. 1st DCA 1980) ]; or whether a city may offset outside income where the ordinance in effect at the time of retirement makes such provision, [State ex rel. Boehnlein v. Poland, 1 Ohio St.2d 179, 30 O.O. 2d 569, 205 N.E.2d 906 (1965); Berry v. City of Portsmouth, Virginia, 562 F.2d 307 (4th Cir.1977) ] are inapposite, because none of these facts or issues are involved here.

We hold, therefore, that when an employee has met all the requirements of the statute or ordinance creating the retirement system and has been retired, whether for length of service or for disability, under the appropriate rules and regulations providing for such retirement, such employees have acquired a vested right under the terms of such statute or ordinance which may not be affected or adversely altered by subsequent legislation. While the city is justifiably concerned with keeping its pension system actuarily sound, any mistakes or miscalculations as to the financial demands on the fund cannot be corrected by depriving those who have already retired of the benefits provided to them by the law in effect when they retired.

AFFIRMED.

COWART, J., and STROKER, R.J., Associate Judge, concur.

      . Interestingly, Grady, though cited by the city, says in dictum that “[a] member of any plan has at the time of retirement a vested right of contract and all benefits accrued to him by the law then in effect.” Id. at 421.


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    Stephen Anthony ATKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1830.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Atkinson appeals from sentences he received after pleading guilty to charges in five separate informations involving burglaries and grand thefts. Atkinson had committed the burglary and grand theft offenses while he was on probation for armed trespass and carrying a concealed firearm, Case No. 81-5755. He also pleaded guilty to the violation of probation charge. The court imposed sentences of five years for each case, including Case No. 81-5755, each to run concurrently with the other. The sentences exceed the guidelines’ recommended sentence of any non-state prison sanction, Florida Rule of Criminal Procedure 3.988(c), and Atkinson argues the reasons for departure given by the trial judge on the score sheet were improper. Fla.R.Crim.P. 3.701(d)(ll). We disagree and affirm.

A “Category 5-Burglary” score sheet was presented to the judge at the sentencing hearing. The total point count placed Atkinson in the guideline range of any nonstate prison sanction. In departing from the guideline sentence, the judge wrote: “The defendant is presently being sentenced for 5 offenses, all committed while on a cell one (probation) disposition. It would be a travesty to simply repeat probation.”

In Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), we held that in an appropriate case, a court may rely upon a violation of probation to enhance or depart from the guidelines’ recommended sentence.

AFFIRMED.

DAUKSCH and COWART, JJ., concur.

      . Atkinson pleaded guilty to five counts of burglary, section 810.02, Florida Statutes (1983), and three counts of grand theft, section 812.014, Florida Statutes (1983).


author: ORFINGER, Judge.

text:
    STATE of Florida, Appellant, v. D.A.E., a child., Appellee.
    No. 84-184.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    James G. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellee.
   ORFINGER, Judge.

The issue presented by this appeal is whether the juvenile court may properly require the State to file a petition for delinquency in less than the 45 day time limit provided for by statute. The trial court held that such time limit could be imposed and dismissed the State’s petition for failure to file it within the time limited. We reverse.

Having been taken into custody on a charge of grand theft, appellee appeared for a detention hearing and was released from custody on this charge. The court appointed a public defender to represent the minor, required the State to file a petition for delinquency within 72 hours, and set arraignment for December 5,1983. On the appointed date, the State announced that it had not filed the petition within the time specified by the court because it had not been able to procure the necessary statements as would enable it to file the petition in good faith. The court dismissed the case.

On January 5, 1984, 42 days after the appellee had been taken into custody, the State filed its petition for delinquency based on the grand theft charge. At a subsequent arraignment hearing the court, noting that the State had failed to file the petition within the court-ordered 72 hour time period, dismissed the charge again on the ground that the court had the power to require the State to file its petition in less than the statutory 45 day time period, and that a violation of such order was ground for dismissal.

Appellant contends that because the statute allows the State to file a petition within 45 days of the child being taken into custody without court order, it was error for the court to dismiss the petition when it was filed within the time provided by the statute. The State further argues that although it did not follow the court’s order to file its petition within 72 hours, it could not have done otherwise, given that the assistant state attorney announced that the State could not have filed the petition in good faith as required by Fla.R.Juv.P. 8.110(b). That rule states:

Verification. The petition shall be signed by the state attorney, assistant state attorney, or other petitioner, stating under oath his good faith in filing the petition. No objection to a petition on the grounds that it was not signed or verified, as herein provided, shall be entertained after a plea to the merits.

Appellee responds that simply because the statute mandates dismissal of the petition after 45 days does not mean that the trial judge may not dismiss the petition in less than 45 days should he consider it appropriate.

While there appears to be no other case on point, an analogy may be found in the case of Lisak v. State, 433 So.2d 487 (Fla. 1983) where the supreme court held that during the 21 days allowed by section 39.-02(5)(c)2, Florida Statutes (1983) within which the State may seek a grand jury indictment for an offense punishable by death or life imprisonment, the juvenile court could not hold an adjudicatory hearing. While we do not find the issue here to be lack of jurisdiction, as it was in Lisak, it appears that the juvenile court similarly does not have the power to shorten the statutory time period within which the State may act, where no such limitation is imposed by the statute. The State is required to verify the fact that it makes the charge in good faith. Obviously the legislature .intended that the State have sufficient time to do so.

REVERSED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . This court has held that the State has the right to appeal from final orders in juvenile proceedings. State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), petition for rev. denied, 419 So.2d 1201 (Fla.1982). However, that issue is presently pending before the supreme court following certification of the question as one of the great public importance by the Third and Fourth District Courts of Appeal. State v. J.P. W., 433 So.2d 616 (Fla. 4th DCA 1983) agrees that review is available; State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983) holds that review is not available. The supreme court has not as yet resolved the conflict, but relying on W.A.M., we review the order of dismissal.

      . Section 39.05(6), Florida Statutes (1983) provides:
      On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody. The court may grant an extension of time, not to exceed an additional 15 days, upon such motion by the state attorney for good cause shown.


author: PER CURIAM.

text:
    Anthony J. MONTROSE, Appellant, v. STATE of Florida, Appellee.
    No. 84-813.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.
    Anthony J. Montrose, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

The transcription of the plea taking dialogue in this case is insufficient to establish the factual basis, as required by Florida Rules of Criminal Procedure 3.172(a), for a plea of guilty to aggravated battery (§ 784.045(l)(a), Fla.Stat. (1981)). The order summarily denying defendant’s 3.850 motion is reversed and this cause is remanded for a full adversary hearing and determination as to whether the underlying facts in this case as to the element of “great bodily harm, permanent disability, or permanent disfigurement” are adequate to support the guilty plea. If the trial court finds the underlying facts to be insufficient in that regard, the trial court shall also make an inquiry into, and adjudication as to, the competency of the defense counsel who represented the defendant when he entered his plea of guilty.

REVERSED AND REMANDED.

DAUKSCH, SHARP and COWART, JJ., concur.


author: GRIMES, Judge.

text:
    Rex Wayne KEEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2378.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with sexual battery of his four year old child. The jury found him guilty of attempted sexual battery.

Appellant raises six points on appeal. Two of them are without merit and will not be discussed. The third involves sentencing, but in view of our disposition of the case we need not reach it. We will address the other three points.

Appellant first contends that the information filed against him was defective. The original information charged him with sexual battery upon a child older than eleven years of age but less than eighteen years of age through the exercise of familial authority as a means of coercion. The state filed an amended information on the morning of the trial charging appellant with sexual battery upon a child less than eighteen years of age through the exercise of familial authority as a means of coercion. Appellant moved to dismiss on the premise that the amended information failed to charge an offense against him. The court denied the motion, and the case proceeded to trial.

The portions of the sexual battery statute pertinent to our consideration are as follows:

794.011 Sexual battery.—
(2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss. 775.082 and 921.141. If the offender is under the age of 18, that person shall be guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, under any of the following circumstances shall be guilty of a felony of the first degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084:
(e) When the victim is older than 11 but less than 18 years of age and the offender is in a position of familial, custodial, or official authority over the victim and uses this authority to coerce the victim to submit.

The only sexual battery statute applicable to an offense against a four year old victim is section 794.011(2), Florida Statutes (1983). Therefore, when the state realized that the child was four years old, its only choice was to charge the appellant under that section. However, the amended information failed to specify that the child was a person eleven years of age or younger and it retained the allegations of familial authority. Proof of familial authority is unnecessary for a conviction under section 794.011(2) and could be ignored as surplus-age, but proof that the child is less than eleven years old is clearly an essential element of the charge. Hence, the state did not properly charge an offense under either section.

Secondly, appellant challenges the adequacy of a Richardson hearing. Immediately before the trial the state filed a motion in limine seeking to prohibit appellant from calling two witnesses whose names had been included in the state’s witness list but who had not been listed in the appellant’s response to the state’s demand for discovery. Defense counsel stated that he did not include the names of prospective witnesses on his witness list when they had already been listed by the state, and that he had never encountered problems on this subject before. Florida Rule of Criminal Procedure 3.220(a)(l)(i) requires the prosecutor upon demand to furnish the names and addresses of all persons having relevant information. On the other hand, Flor-ida Rule of Criminal Procedure 3.220(b)(3) requires that within seven days after receipt of the prosecutor’s witness list, defense counsel shall furnish the prosecution with a list of persons whom defense counsel expects to call as witnesses at the trial. Therefore, regardless of his view of the prevailing practice, defense counsel was in violation of the rule for failing to furnish the prosecutor with the names of all prospective witnesses.

Where a party to a criminal case wishes to call a witness not included on the witness list, the court may exercise its discretion in permitting the witness to testify. Richardson v. State, 246 So.2d 771 (Fla.1971). However, in Richardson our supreme court quoted from Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970), as follows:

[T]he court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

246 So.2d at 775. The claim that one is surprised when an unlisted witness is called to testify, by itself, is inadequate to constitute prejudice. Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982), petition for review denied, 430 So.2d 452 (Fla.1983). Relevant evidence should not be excluded unless no other remedy suffices. Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977).

On the question of prejudice, defense counsel pointed out that the witnesses were persons connected with the child protection program whose testimony was well known to the prosecution. The prosecutor argued that had he known these witnesses were going to testify, the state would have sought to have an out-of-state witness present for rebuttal. Defense counsel disputed the state’s suggestion that the out-of-state witness could contradict what his witnesses were expected to say. The court agreed with the state’s position and refused to permit the witnesses to testify. Thereafter, defense counsel sought to proffer what his two witnesses would say and to require the state to proffer the testimony which the out-of-state witness would present in rebuttal. The court declined to permit the proffer on the premise that it was unnecessary because the court had already accepted the state’s contention that it was prejudicially harmed by the discovery violation. It was here that the court erred.

If the out-of-state witness relied upon by the state could have rebutted the testimony of the two witnesses which appellant sought to introduce, the state would have had a basis for claiming that it was prejudiced by the lack of notice. However, appellant contended that the state’s witnesses had no knowledge concerning the testimony of his two witnesses. In order to demonstrate his position, the appellant should have been offered the opportunity to proffer the testimony of his witnesses. The state could then have attempted to point out how its witness could have rebutted such testimony. At this point the court would have had all the information necessary upon which to decide whether or not prejudice actually existed. By refusing to permit the proffer, the court did not make the “adequate inquiry into all of the surrounding circumstances” required by Richardson.

Since this case will have to be retried, we shall discuss a third point which is likely to reoccur in the second trial. The child’s mother and her two aunts were the only witnesses who testified for the state. The mother did not report the alleged sexual battery until nearly two months after the incident was said to have occurred. Earlier she had denied knowledge of any such sexual battery. On cross-examination, appellant’s trial counsel explored her prior inconsistent position. On redirect the prosecutor asked:

Q. Where were you on June 28th when you told Fran Martin that you did in fact know about the sexual battery?
A. I was at Colonel Stanley’s office in Winter Haven.
Q. And what does Colonel Stanley do?
A. He’s a lie detector.
Q. Had you told Fran Martin — agreed earlier back on June the 2nd that you would take a lie detector examination?
A. Yes, sir, I did.

Appellant’s counsel objected that the questions improperly referred to a polygraph examination. During the course of the argument it became apparent that the mother had not actually taken a polygraph test. The prosecutor stated that he intended to ask her if she made the admissions concerning the sexual battery as she was preparing to take a polygraph test in order to stress the reason why she made the statement. The court overruled the objection, and the following question and answer were then given:

Q. On June 28th at the polygraph examiner’s office, did you make these statements, admit to Fran Martin, tell her that you did in fact know about the sexual battery prior to being hooked up, if you will, to a polygraph machine?
A. Yes, sir.

On appeal, appellant points out that neither the results of a polygraph test no allegations of any such examination to infer a certain result are admissible. Kaminski v. State, 63 So.2d 339 (Fla.1953). However, a statement is not improper simply because it is given prior to a polygraph examination. See People v. McHenry, 204 Cal.App.2d 764, 22 Cal.Rptr. 621 (Cal.Dist.Ct.App.1962). In this case, the record reflects that the witness never actually submitted to a test. The state was merely attempting to emphasize the circumstances under which the witness made her statement. It was entitled to show that because the witness’ statement was made in anticipation of taking the test, that explanation was more likely to be the truthful version. At the new trial, the fact that no test ever occurred can be brought out so as to negate any inference that the witness took and passed a polygraph examination. See Crawford v. State, 321 So.2d 559 (Fla. 4th DCA 1975), affirmed, State v. Crawford, 339 So.2d 214 (Fla.1976).

In view of the defect in the information and the inadequate Richardson inquiry, we reverse the judgment and remand the case for further proceedings.

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


author: HOBSON, Judge. GRIMES, Judge,

text:
    STATE of Florida, Appellant, v. Charles EDWARDS, Appellee.
    No. 83-2415.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellee.
   HOBSON, Judge.

The state appeals an order placing Charles Edwards in a drug rehabilitation program pursuant to section 397.12, Flori-da Statutes (1981), for conspiracy to traffic in heroin and trafficking in heroin. We reverse and remand.

The state filed a four-count information charging Edwards with conspiracy to traffic in heroin, in violation of sections 777.04, 893.135(l)(c)l and 777.011, Florida Statutes (1981); trafficking in heroin, in violation of sections 893.135(l)(e)l and 777.011; delivery of heroin, in violation of section 893.-13(l)(a)l; and possession of heroin, in violation of section 893.13(l)(e).

At a hearing, Edwards’ attorney advised the trial court that Edwards wished to tender pleas of nolo contendere as to the four counts with the understanding that he would be adjudicated guilty on all counts, placed on concurrent terms of probation for five years on the delivery and possession counts, and, with respect to the conspiracy to traffic and trafficking counts, placed in the Drug Abuse Comprehensive Coordinating Office, Inc. (DACCO) program for five years under section 397.12, in lieu of being sentenced under chapters 893 and 777. The assistant state attorney objected regarding Edwards’ counsel’s proposal concerning placing Edwards in the DACCO program pursuant to section 397.12 on the conspiracy to traffic and trafficking counts.

Section 397.12, Florida Statutes (1981), provides in full:

Reference to Drug Abuse Program. —When any person, including any juvenile, has been charged with or convicted of a violation of any provision of chapter 893, or of a violation of any law committed under the influence of a controlled substance, the court, Department of Health and Rehabilitative Services, Department of Corrections, or Parole and Probation Commission, whichever has jurisdiction over that person, may in its discretion require the person charged or convicted to participate in a drug rehabilitation program licensed by the department under the provisions of this chapter. If referred by the court, said referral may be in lieu of, or in addition to, final adjudication, imposition of any penalty or sentence, or any other similar action. If the accused so desires final ’ adjudication, his constitutional right to trial shall not be denied. The court may consult with or seek the assistance of any agency, public or private, or any person concerning such a referral. Assignment to a drug program may be contingent upon budgetary considerations and availability of space.

After Edwards entered pleas of nolo con-tendere at the hearing as to the four counts, the trial court determined that the pleas were knowingly, intelligently and voluntarily made, and that a factual basis existed for them. Then, over the assistant state attorney’s previous objection, the court acted in accordance with the arrangement outlined above.

The only question on appeal is whether the trial court erred by placing Edwards in the DACCO program under section 397.12 for conspiracy to traffic in heroin and trafficking in heroin. Construing section 397.-12 in light of both the purpose of chapter 397 and the restrictive language of sections 397.011(2) and 893.15, we hold that the court did so err.

Sections 397.10 and 397.011 show that the provisions of chapter 397, Florida Statutes (1981), of which section 397.12 is an integral part, are directed solely at drug users (i.e., drug abusers and drug dependents), not drug traffickers. To demonstrate, section 397.10 reveals the exact intent of section 397.12:

Legislative Intent. — It is the intent of the Legislature to provide a meaningful alternative to criminal imprisonment for individuals capable of rehabilitation as useful citizens through techniques and programs not generally available in state or federal prison systems or programs operated by the Department of Health and Rehabilitative Services. It is the further intent of the Legislature to encourage trial judges to use their discretion to refer persons charged with, or convicted of, violation of laws relating to drug abuse or violation of any law committed under the influence of a narcotic drug or medicine to a state-licensed drug rehabilitation program in lieu of, or in addition to, imposition of criminal penalties.

The overall objective and intent of chapter 897 are set forth in the chapter’s opening statute, section 397.011:

Purpose and Intent of Chapter; Disposition of Convicted Offenders.—
(1) It is the purpose of this chapter to encourage the fullest possible exploration of ways by which the true facts concerning drug abuse and dependence may be made known generally and to provide a comprehensive program of human renewal for drug dependents in rehabilitation centers and aftercare programs. This program is designed to assist in the rehabilitation of persons dependent on the drugs controlled by chapter 893. It is further designed to protect society against the social contagion of drug abuse and to meet the need of drug dependents for medical, psychological, and vocational rehabilitation, while at the same time safeguarding their individual liberties.
(2) It is the intent of the Legislature to provide an alternative to criminal imprisonment for individuals capable of rehabilitation as useful citizens through techniques not generally available in state or local prison systems. For a violation of any provision of chapter 893, Florida Comprehensive Drug Abuse Prevention and Control Act, relating to possession of any substances regulated thereby, the trial judge may, in his discretion, require the defendant to participate in a drug rehabilitation program approved or regulated by the Department of Health and Rehabilitative Services pursuant to the provisions of this chapter, provided the director of such program approves the placement of the defendant in such program. Such required participation may be imposed in addition to or in lieu of any penalty or probation otherwise prescribed by law, provided the total time of such penalty, probation, and program participation shall not exceed the maximum length of sentence possible for the offense.
(Emphasis added.)
Inasmuch as sections 397.10 and 397.011 demonstrate that chapter 397 is aimed only at drug users, as opposed to drug traffickers, it is not surprising that, as the above emphasized portion of subsection (2) of section 397.011 provides, the legislature intended that, when violations of chapter 893 occur, a trial court may exercise its discretion under chapter 397 for only those violations of chapter 893 which relate to possession.

The foregoing emphasized wording of section 397.011(2) is entirely consistent with section 893.15, Florida Statutes (1981), which states in full:

Rehabilitation. — Any person who violates s. 893.13(l)(e) or (l)(f) relating to possession may, in the discretion of the trial judge, be required to participate in a drug rehabilitation program approved or regulated by the Department of Health and Rehabilitative Services pursuant to the provisions of chapter 397, provided the director of such program approves the placement of the defendant in such program. Such required participation may be imposed in addition to, or in lieu of, any penalty or probation otherwise prescribed by law. However, the total time of such penalty, probation, and program participation shall not exceed the maximum length of sentence possible for the offense.

(Emphasis added.)

Reading the above emphasized language of section 893.15 in pari materia with the foregoing stressed portion' of section 397.011(2), and applying the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) to section 893.15, it is abundantly clear that, when violations of section 893 transpire, a trial court’s authority to exercise its discretion under section 397.12 is not just generally limited to violations of chapter 893 relating to possession, but is specifically limited to violations of section 893.13(l)(e) or (l)(f) relating to possession.

Thus, the court below lacked the power to exercise its discretion pursuant to section 397.12 regarding the charges of conspiracy to traffic in heroin and trafficking in heroin. It is not the objective and intent of chapter 397 that one who is accused of committing such offenses, which concern drug trafficking, not drug abuse, be treated under section 397.12. Moreover, these offenses cannot be treated under section 397.12 because they involve violations of sections 893.13(l)(a)l and 893.135(l)(c)l, not section 893.13(l)(e) or (l)(f) relating to possession.

Accordingly, we reverse the trial court’s order referring Edwards under the plea agreement to the DACCO program pursuant to section 397.12 for conspiracy to traffic in heroin and trafficking in heroin. However, because we are setting aside an arrangement entered under a plea agreement, we remand with directions that Edwards be allowed to withdraw his pleas of nolo contendere as to all counts.

REVERSED and REMANDED.

RYDER, C.J., concurs.

GRIMES, J., concurs specially.

GRIMES, Judge,

concurring specially.

Appellant’s convictions of conspiracy to traffic in heroin and trafficking in heroin are controlled by section 893.135(l)(c)l, Florida Statutes (1981), which requires a minimum mandatory sentence of three years and a fine of $50,000. This is in conflict with section 397.12 (1981), which authorizes a person convicted of violating any provision of chapter 893 to be placed in the DACCO program in lieu of sentencing. Section 893.135 is the later enacted statute which reflects a legislative intent to strengthen the penalties for large scale drug trafficking. As explained in Judge Hobson’s opinion, section 397.12 seems to be directed at drug users rather than drug traffickers. Therefore, I am convinced that drug traffickers convicted under section 893.135 may not be referred to the DACCO program in lieu of receiving a minimum mandatory sentence. Our sister court in State v. Ross, 447 So.2d 1380 (Fla. 4th DCA 1984), reached the same conclusion with respect to the minimum mandatory sentences required by section 775.-087(2)(a), Florida Statutes (1981).

      . Section 397.021(5), Fla.Stat. (1981), defines a “drug abuser" as follows:
      (5) “Drug abuser” means a person is so habitually dependent on the use of controlled substances as to have lost the power of self-control with respect to their use, and
      (a) Who is dangerous to himself or others as a result of such abuse, or
      (b) Whose judgment has been so impaired as a result of such abuse that he cannot rationally appreciate his need for care.

      . Section 397.021(2), Fla.Stat. (1981), defines a “drug dependent" as follows:
      "Drug dependent” means a person who is dependent upon, or by reason of repeated use is in imminent danger of becoming dependent upon, any substance controlled under chapter 893.

      . The parties may recognize that the rationale in support of our holding is different than that perhaps contemplated. This is so, however, because in reaching our decision we needed go no further than rely upon sections 397.011 and 893.15, two statutes which neither party cited below or on appeal.

      . Both statutes were slightly amended in 1983, but the changes did not indicate a shifting of legislative intent.


author: HOBSON, Acting Chief Judge.

text:
    FIRST FEDERAL SAYINGS AND LOAN ASSOCIATION OF WINTER HAVEN, Appellant, v. Glenn N. SIEGEL and wife, Nancy R. Siegel, and Harold W. Rickard and wife, Kay Rickard, Appellees.
    No. 83-2466.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.

      Roy C. Summerlin and Debra L. Cline of Summerlin & Connor, Winter Haven, for appellant.
    Stephen C. Watson and Karin Miller of Hahn, Breathitt & Watson, Lakeland, for appellees.
   HOBSON, Acting Chief Judge.

First Federal Savings and Loan Association of Winter Haven (First Federal), plaintiff below in a mortgage foreclosure action, appeals a final order rendered in favor of Glenn Siegel, his wife Nancy Siegel, Harold Rickard, and his wife Kay Rickard, defendants below. The final order granted the Siegels and Rickards’ motion to dismiss First Federal’s complaint with prejudice on the ground that the mortgage in question is subject to the “window period” provision of 12 U.S.C. § 1701j — 3 (West Supp.1984) of the Garn-St. Germain Depository Institutions Act of 1982 (Garn-St. Germain Act). We reverse and remand.

In August 1979 the Siegels executed and delivered to First Federal 1) a promissory note for the purchase of a certain parcel of real property, and 2) a mortgage securing the note and encumbering the real estate. The mortgage contained a due-on-sale clause enabling First Federal to opt to declare due and payable the sum secured by the mortgage if the property securing the mortgage was sold or transferred by the Siegels without its prior written consent. In April 1981 the Siegels conveyed the real estate to the Rickards without First Federal’s prior written consent. In the deed of conveyance, the Rickards assumed and agreed to pay the mortgage. First Federal promptly notified the Siegels and the Rick-ards of its intent to choose to enforce the due-on-sale clause. Although afforded an opportunity by First Federal to avoid acceleration of the debt by assuming or paying the loan under certain conditions, the Rick-ards declined to do either.

In February 1983 First Federal filed a complaint against the Rickards and Siegels seeking to foreclose the mortgage. However, the complaint did not contain an allegation that First Federal’s security had been impaired by reason of the transfer. Therefore, the Siegels and Rickards submitted a motion to dismiss the complaint for failure to state a cause of action, implicitly relying on decisions of Florida district courts of appeal, including ours, which hold that a lender cannot exercise a due-on-sale clause of a mortgage absent a showing that violation of the clause has impaired the lender’s security. See e.g., Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970); First Federal Savings & Loan Association of Englewood v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980); Consolidated Capital Properties, II, Ltd. v. National Bank of North America, 420 So.2d 618 (Fla. 5th DCA 1982); Woodcrest Apartments, Ltd. v. IPA Realty Partners Richardson Palmer, 3rd Investment KG, 397 So.2d 364 (Fla. 1st DCA 1981). After conducting a hearing, the trial court rendered its final order granting the motion to dismiss with prejudice.

First Federal contends on appeal that Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), mandates a reversal of the trial court’s final order. In de la Cuesta, the Supreme Court of the United States held that a federal savings and loan association can freely enforce a due-on-sale clause of a real property loan, notwithstanding state restrictions to the contrary, because 12 C.F.R. § 545.8-3(f), the federal due-on-sale regulation issued in 1976 by the Federal Home Loan Bank Board, preempts such state restrictions. First Federal notes that de la Cuesta has been expressly followed by our court and two of our sister courts in First Federal Savings & Loan Association of Winter Haven v. Quigley, 445 So.2d 1052 (Fla. 2d DCA 1984), First Home Federal Savings & Loan Association v. Nance, 436 So.2d 163 (Fla. 2d DCA 1983), Orange Federal Savings & Loan Association v. Dykes, 433 So.2d 642 (Fla. 5th DCA 1983), and Washington Federal Savings & Loan Association v. del Portillo, 419 So.2d 805 (Fla. 3d DCA 1982).

First Federal asserts that the court below based its ruling on a misinterpretation of subsection (c) of 12 U.S.C. § 1701j-3 of the Garn-St. Germain Act. Subsection (c) is known as the “window period” provision.

Section 1701j-3 of the Garn-St. Germain Act, which became effective on October 15, 1982, reads in relevant part:

§ 1701j-3. Preemption of due-on-sale prohibitions
(b) Loan contract and terms governing execution or enforcement of due-on-sale options and rights and remedies of lenders and borrowers; assumptions of loan rates
(1) Notwithstanding any provision of the constitution or laws (including the judicial decisions) of any State to the contrary, a lender may, subject to subsection (c) of this section, enter into or enforce a contract containing a due-on-sale clause with respect to a real property loan.
(c) State prohibitions applicable for prescribed period; subsection (b) provisions applicable upon expiration of such period; ...
(1) In the case of a contract involving a real property loan which was made or assumed, including a transfer of the liened property subject to the real property loan, during the period beginning on the date a State adopted a constitutional provision or statute prohibiting the exercise of due-on-sale clauses, or the date on which the highest court of such State has rendered a decision (or if the highest court has not so decided, the date on which the next highest appellate court has rendered a decision resulting in a final judgment if such decision applies State-wide) prohibiting such exercise, and ending on October 15,1982, the provisions of subsection (b) of this section shall apply only in the case of a transfer which occurs on or after the expiration of 3 years after October 15, 1982, ...
(2) ....
(C) This subsection does not apply to a loan which was originated by a Federal savings and loan association or Federal savings bank.

Although the mortgage in the case at bar was made and assumed during the “window period,” and although Florida is undoubtedly a “window period” state, see Kiefer v. Fortune Federal Savings & Loan Association, 453 So.2d 430 (Fla. 2d DCA 1984), quoting with , approval from Weiman v. McHaffie, 448 So.2d 1127 (Fla. 1st DCA 1984), First Federal disputes the Siegels and Rickards’ position, accepted by the court below, that the “window period” provision of section 17Olj — 3 of the Garn-St. Germain Act applies against the mortgage in question.

By virtue of both our reading of the above-quoted plain language of subsection (c)(2)(C) of section 17Olj — 3 and our review of the legislative history of section 1701j-3, see 1982 U.S. Code Congressional and Administrative News, pp. 3074-79, we agree with and therefore endorse First Federal’s argument that the mortgage here is excluded from the “window period” provision’s effect. Subsection (c)(2)(C) of section 1701j-3 and the legislative history of section 1701j-3 clearly indicates that a mortgage originated after June 8, 1976, by a federal savings and loan association, as was the mortgage in the case at bar, is not subject to the “window period” provision. Hence, the instant case is governed by the holdings of de la Cuesta, Quigley and Nance. As a result, the due-on-sale clause embodied in the mortgage is not subject to Florida case law restrictions on the enforcement of such a clause.

Accordingly, we reverse the final order dismissing First Federal’s complaint with prejudice and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

SCHEB and DANAHY, JJ., concur.

      . June 8, 1976, is the effective date of 12 C.F.R. § 545.8-3(f).


text:
    Alphonso A. ANTHONY, Appellant, v. STATE of Florida, Appellee.
    No. 84-319.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals an order denying his request for a transfer from the Florida State Hospital to his brother’s custody in Maryland. We affirm.

In 1980 appellant was charged with second degree murder. The trial court adjudicated him not guilty by reason of insanity and ordered his involuntary commitment to the Department of Health and Rehabilitative Services. The order specified that the court would retain jurisdiction consistent with section 916.16, Florida Statutes (1981).

In 1983 the trial court agreed with a hospital staff recommendation that appellant be transferred to a civil unit at the hospital. Appellant now contends that the trial court thereby relinquished its jurisdiction over appellant and could not prohibit appellant’s transfer to his brother’s custody-

We disagree. Section 916.15 allows a court to hospitalize a person found not guilty by reason of insanity. Section 916.-16 states “No such person may be released except by order of the committing court.” In this case, despite the order allowing appellant’s transfer to a civil unit, the trial court never ordered appellant released from hospitalization. Accordingly, the trial court still had jurisdiction to prohibit the transfer of appellant to his brother’s custody.

AFFIRMED.

RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.


author: CAMPBELL, Judge.

text:
    Richard Crosby STRICKLAND, Appellant, v. Barbara J. STRICKLAND, Appellee.
    No. 84-840.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.
    Thomas C. Chase of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellant.
    Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee.
   CAMPBELL, Judge.

Appellant, Richard Crosby Strickland, appeals the partial summary judgment granted in favor of appellee, Barbara J. Strickland. We agree with appellant’s contention that the trial court erred in granting partial summary judgment in favor of appellee on the issue of liability and reverse the trial court’s order.

This is a paternity action whereby appel-lee sought to have appellant declared the father of her child. Appellant made several motions to add parties and compel medical examinations, all of which were denied on the basis of the results of appellant’s Human Leukocyte Antigen (HLA) reading which indicated a 99.03% probability that he was the father of the child. In the depositions filed in support of the motion for partial summary judgment, two physicians testified that the results of appellant’s HLA test were not conclusive proof of paternity.

A trial judge may not, on a motion for summary judgment, make determinations involving the weight of the evidence or the credibility of witnesses. The party moving for summary judgment must successfully meet the burden of proving conclusively the nonexistence of genuine issues of material facts. Landers v. Milton, 370 So.2d 368 (Fla.1979); Holl v. Talcott, 191 So.2d 40 (Fla.1966). Proof of a high degree of probability does not meet that burden. Accordingly, the partial summary judgment entered in favor of appellee is reversed and the cause remanded for further proceedings.

RYDER, C.J., and LEHAN, J., concur.


author: SCHWARTZ, Chief Judge.

text:
    R.J.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-983.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven Kolod-ny, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The appellant’s adjudication of delinquency, entered on a nolo plea to possession of a concealed weapon, is reversed because the knife which was the subject of the charge should have been suppressed.

Based solely on the fact that R.J.M. was the friend of a female student who had, reportedly because of drugs, fainted at the public high school they both attended, an assistant principal, Harrell, ordered him to his office and began a complete search of his person. While it was taking place, R.J.M., saying “I guess this is what you want,” pulled the knife from his boot.

It is apparent both that Harrell did not have anything remotely resembling the reasonable suspicion of R.J.M.’s wrongdoing which is required to justify a search of a student by a school official; A.B. v. State, 440 So.2d 500 (Fla. 2d DCA 1983); State v. D.T.W, 425 So.2d 1383 (Fla. 1st DCA 1983); and that R.J.M.’s production of the weapon, occurring as it did during the very course of the thus-unlawful search, must be deemed a product of and tainted by that search rather than a voluntary surrender or abandonment of the knife. Kraemer v. State, 60 So.2d 615 (Fla.1952); State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976); Earnest v. State, 293 So.2d 111 (Fla. 1st DCA 1974); State, v. Neri, 290 So.2d 500 (Fla. 2d DCA 1974), cert. dismissed, 302 So.2d 412 (Fla.1974).

Accordingly, the adjudication under review is reversed with directions to discharge the respondent.

Reversed.


text:
    Eduardo F. BATISTA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1438.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Humberto J. Aguilar, Miami, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Tibbs v. State, 397 So.2d 1120 (Fla.1981), affd 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Lynch v. State, 293 So.2d 44 (Fla.1974).


text:
    Emiterio ZUNIGA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1465.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We affirm the defendant’s convictions for manslaughter, aggravated battery (two counts), and use of a firearm during the commission of a felony, see Blair v. State, 406 So.2d 1103 (Fla.1981); McCrae v. State, 395 So.2d 1145 (Fla.1981); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977); Hinton v. State, 347 So.2d 1079 (Fla. 3d DCA 1977), but modify the consecutive minimum mandatory sentences imposed by the trial court to run concurrently each with the other, see Palmer v. State, 438 So.2d 1 (Fla.1983); Hernandez v. State, 446 So.2d 235 (Fla. 3d DCA 1984).

Affirmed as modified.


text:
    Lazaro BONARD, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1963.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is reversed and the cause is remanded for a new trial based on the controlling authority of Gonzalez v. State, 450 So.2d 585 (Fla. 3d DCA 1984).


text:
    Ezequiel MUHTAR and Raquel Muhtar, his wife, Appellants, v. AETNA INSURANCE COMPANY, Appellee.
    No. 83-2815.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      Stabinski & Funt and Cristina De Oli-veira, Miami, for appellants.
    Melvyn Trute and Marvin I. Moss, Surf-side, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The Muhtars, the plaintiffs below, appeal a final order of dismissal imposed as a sanction for failure to comply with a discovery order. We reverse.

The Muhtars sued Aetna Insurance Company (Aetna) when it refused to pay a claim for damage to goods which Aetna had insured for transit from Panama to Miami.

Aetna propounded a set of interrogatories which was lengthy and detailed. After three attempts to comply with such a burdensome request, including a translation of Spanish documents into English, the court dismissed the Muhtars’ suit.

As we have noted in many prior decisions, dismissal is to be used as a discovery sanction only as a last resort in those cases where the violation is willful and the inquiring party is prejudiced. Summit Chase Condominium Association v. Protean Investors, Inc., 421 So.2d 562 (Fla. 3d DCA 1982); Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Beaver Crane Service, Inc. v. National Surety Cory., 373 So.2d 88 (Fla. 3d DCA 1979). Here, the Muhtars, while not responding as quickly or fully as parties to litigation might like, made a good faith effort to, and in fact did, substantially comply with the court’s discovery order. Dismissing their suit was, therefore, an abuse of discretion which must be reversed.

Reversed and remanded.

      . The set consisted of thirty-two inquiries which, with subdivisions, totaled seventy-two questions. However interrogatory number one, which contained seventeen subdivisions, requested detailed information about each of the approximately ninety insured items. In other words, that one interrogatory required some 1,500 responses.


text:
    Raul MAYNOLDI, Appellant, v. The STATE of Florida, Appellee.
    No. 84-50.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      Albert P. Rosillo, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We reject Maynoldi’s claim that" the evidence is insufficient to support his convictions for the crimes of second-degree murder and attempted second-degree murder. We also conclude that the trial court properly imposed a thirty-year sentence on the second-degree murder conviction because (1) by virtue of the defendant’s use of a firearm in the killing, the offense was reclassified to a life felony, see § 775.-087(l)(a), Fla.Stat. (1981), punishable by imprisonment for life or for a term of years not less than thirty, see § 775.082(3)(a), Fla. Stat. (1981); and (2) as the Rules of Criminal Procedure expressly provide, this mandatory sentence, being greater than the sentence calculated under the sentencing guidelines, takes precedence over any suggested guideline sentence, see Fla.R.Cr.P. 3.701(d)(9).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Juan HERNANDEZ and Roberto Argote, Appellee.
    No. 84-264.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellant.
    Feldman & Ziegler and Kenneth Feld-man, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s order granting the defendant's motion to suppress upon a holding that there were sufficient circumstances giving rise to a founded suspicion which justify the investigatory stop in this case. Dodds v. State, 434 So.2d 940 (Fla. 4th DCA 1983); State v. Gamble, 370 So.2d 428 (Fla. 3d DCA 1979); Porter v. State, 302 So.2d 481 (Fla. 3d DCA 1974).

Reversed and remanded for further proceedings.


text:
    Myles E. MILANDER, Appellant, v. DEPARTMENT OF WATER & SEWERS OF the CITY OF HIALEAH and Leo Caraballo, Octavio Santurio, and William Whitman, individually and jointly, Appellees.
    No. 84-300.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      Holden & Holden and Frank Holden, Hialeah, for appellant.
    Stephens, Lynn, Chernay, Klein & Zuck-erman and Robert M. Klein, Miami, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The appellee city advertised for bids for the sale of a parcel of realty. The appellant Milander submitted the high bid, but the city rejected them all and did not sell the property to anyone. In entering judgment on the pleadings, the trial court correctly held that, since the bids constituted no more than offers to the city, none of which, although it had requested their submission, it was under a legal obligation to accept, Meekins-Bamman Prestress, Inc. v. Better Construction, Inc., 408 So.2d 1071 (Fla. 3d DCA 1982); City of Homestead v. Raney Construction, Inc., 357 So.2d 749 (Fla. 3d DCA 1978); see Schloesser v. Dill, 383 So.2d 1129 (Fla. 3d DCA 1980), Milander had acquired no enforceable rights. Compare, e.g., Adolpus v. Baskin, 95 Fla. 603, 116 So. 225 (1928) (when contract subject to competitive bidding is awarded, most favorable bid may not ordinarily be disregarded); Marriott Corp. v. Metropolitan Dade County, 383 So.2d 662 (Fla. 3d DCA 1980), and cases cited (same).

Affirmed.


text:
    Milton GREEN, Appellant, v. NEW TREND DEVELOPMENT CORPORATION and Lee Spiegelman, Appellees.
    No. 84-364.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Bradford J. Beilly and- Joseph J. Huss, Hollywood, for appellant.
    Samuel S. Sorota, Smith & Mandler, Patricia M. Silver and Jonathan A. Heller, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The summary final judgment entered in favor of the defendants-appellees on the sole ground that Section 725.01, Florida Statutes (1977), rendered unenforceable the agreement sued upon is reversed upon a holding that the agreement, under which the appellant released his existing right to purchase from the appellees certain specified condominium apartments in consideration for the appellees’ promise to enter into a contract to sell other specified condominium apartments to the appellant, is not an agreement for the sale of real property and thus not within the statute of frauds.

Reversed and remanded.


author: JORGENSON, Judge.

text:
    Eligio BARRIOS, Appellant, v. SUNSHINE STATE BANK, Appellee.
    No. 84-1455.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Proenza & White, Miami, for appellant.
    Sparber, Shevin, Shapo & Heilbronner and Nancy Schleifer, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and JORGENSON, JJ.
   JORGENSON, Judge.

This is an appeal by Barrios from the trial court’s order denying his motion to dismiss. For the reasons which follow we reverse.

The single issue presented by this appeal is the question of whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios’ defense of lack of personal jurisdiction and insufficiency of service of process. It does not.

Barrios, a resident of Switzerland and president of Goldstone Company, N.V., was sued as a guarantor on Goldstone, Ltd.’s $650,000 promissory note and security agreement with Sunshine State Bank when Goldstone, Ltd., defaulted. A motion on behalf of Barrios and Goldstone Company, N.V., for enlargement of time within which to answer or otherwise respond to the complaint was granted. Thereafter, Barrios moved to dismiss the complaint, contending the court lacked personal jurisdiction over him due to a failure of service of process and insufficient service of process.

Sunshine State Bank’s contention that Barrios consented to jurisdiction by virtue of the Motion for Enlargement of Time is without merit. Although the motion states within: “with respect to the Complaint served upon them ...” (emphasis supplied), it is a mere technical piece of paper and does not constitute a general appearance by Barrios’ attorney reflecting submission to jurisdiction and waiver of defense, see Public Gas Co. v. Weatherhead Co., 409 So.2d 1026 (Fla.1982), affg Weath erhead, Co. v. Coletti, 392 So.2d 1342 (Fla. 3d DCA 1980); nor could a general appearance be presumed by such motion which did not go to the merits of the case. See Moo Young v. Air Canada, 445 So.2d 1102 (Fla. 4th DCA 1984); cf. McKelvey v. McKelvey, 323 So.2d 651 (Fla. 3d DCA 1976).

Sunshine State Bank’s attempt to secure personal jurisdiction over Barrios pursuant to section 48.193(l)(g), Florida Statutes (1983), must satisfy section 48.194, Florida Statutes (1983), and it did not. See P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978). No affidavit or competent evidence showing personal service as statutorily required was submitted.

The order under review is accordingly reversed.

Reversed.

      . Section 48.194, Florida Statutes (1983), reads as follows:
      Personal service outside state. — Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made. (Emphasis supplied.)


text:
    Bjorn H. ANDERSON, Appellant, v. John P. BROWN, Appellee.
    No. 83-2120.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Robert W. Horrell, Lake Worth, for appellant.
    Allen R. Seaman of Weathers & Seaman, Lantana, for appellee.
   PER CURIAM.

Affirmed. See Sun Harvesters, Inc. v. Enro Manufacturing, Inc., 449 So.2d 425 (Fla. 4th DCA 1984) and Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980).

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


text:
    Richard WISE, Appellant, v. Roy M. SIMON, A.I.A., Appellee.
    No. 83-2139.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Jose G. Rodriguez of Law Offices of Jose G. Rodriguez, West Palm Beach, for appellant.
    James J. Belcher of James J. Belcher, P.A., Pompano Beach, for appellee.
   PER CURIAM.

The award of attorney’s fees is hereby reversed on the authority of Strothman v. Henderson Mental Health Center, 425 So.2d 1185 (Fla. 4th DCA 1983).

ANSTEAD, C.J., and HERSEY and HURLEY, JJ., concur.


text:
    Robert L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2569.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Parker v. State, 336 So.2d 426 (Fla. 1st DCA 1976).

ANSTEAD, C.J., and HERSEY and HURLEY, JJ., concur.


author: DAUKSCH, Judge. SHARP, Judge,

text:
    W.W. INGHAM, Jr., Appellant, v. Honorable Frank N. KANEY, Circuit Judge for Orange County, Florida, Edward Dodds, and Betty Carter as Supervisor of Elections for Orange County, Florida, Appellees.
    No. 84-1350.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 1984.
    Robert W. Smith, Orlando, for appellant.
    Joe B. Weeks, Winter Park, for appellee Dodds.
   DAUKSCH, Judge.

This matter was presented to us as a petition for writ of prohibition seeking, essentially, review of a trial court order which enjoined the Orange County Supervisor of Elections, Betty Carter, from placing appellant’s name on the ballot in a Republican primary election. Pursuant to Florida Rule of Appellate Procedure 9.040(c) we elected to treat this as an appeal. We expedited consideration and disposition.

The order appealed declared appellant ineligible to seek the Republican party nomination for sheriff because he was in “violation” of Section 99.021(l)(b), Florida Statutes (1983). That statute provides:

In addition, any person seeking to qualify for nomination as a candidate of any political party shall, at the time of subscribing to the oath or affirmation, state in writing:
1. The party of which he is a member.
2. That he is not a registered member of any other political party and has not been a candidate for nomination for any other political party for a period of 6 months preceding the general election for which he seeks to qualify.
3. That he has paid the assessment levied against him, if any, as a candidate for said office by the executive committee of the party of which he is a member. Appellant concedes he cannot lawfully be

a Republican candidate because he did not register as a Republican until July, 1984.

By this appeal he challenges the authority, or “standing” as it is known in legalese, of Edward Dodds, appellee here and plaintiff below, to file the lawsuit to seek to have Ingham’s name not on the ballot. Ingham says Dodds is merely a citizen, albeit a member of the Republican executive body, and thus cannot be one to sue. It is certainly an interesting proposition and as much as we would like to answer this novel question, one of first impression in Florida, we must decline to do so. No matter which way we rule Ingham will not be a candidate, he doesn’t qualify; he concedes that. The question is moot.

Appeal dismissed.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I disagree that this case is moot. If the trial court erred in ordering Ingham removed from the ballot for the Republican primary election in Orange County, that order should be reversed, giving Ingham the right to be a candidate for the election. We should not speculate as to whether further court litigation may result, but instead should address 'the merits of the issue of plaintiff Dodds’ standing to bring this action.

Had Dodds, for example, been a resident of Juneau, Alaska on an extended visit to Disney, I doubt any court in Florida would rule that he has standing to question a Florida candidate’s qualification to be on a Florida primary ballot. However, the parties concede that Dodds is a resident of Orange County, and a registered Republican voter qualified, to vote for the office of sheriff in the primary election in question. In my view he has standing to enforce section 99.021(l)(b), Florida Statutes (1983), by filing this lawsuit. In view of the absence of any articulated caselaw on this subject, we should affirm — not dismiss— this appeal.

      . See Evers v. Lacy, 257 So.2d 70 (Fla. 2d DCA 1972); Orange County v. Gillespie, 239 So.2d 132 (Fla. 4th DCA), cert. denied, 239 So.2d 825 (Fla.1970); Ballard v. Cowart, 238 So.2d 484 (Fla. 2d DCA 1970).


author: CAL0GER0, Justice.

text:
    TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA et al. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 84-C-0344.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      Frank W. Middleton, Jr., J. Ashley Moore, Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiffs-applicants.
    Carlos G. Spaht, Lee C. Kantrow, David S. Rubin, Lois E. Hawkins, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant-respondent.
   CAL0GER0, Justice.

Plaintiff interim lenders assert a cause of action against a permanent lender seeking damages which were allegedly sustained when the permanent lender refused to honor a contractual “take out commitment” after the borrower defaulted on the interim loan. One plaintiff, GAMI, was the “lead” interim lender. The other plaintiffs were “participants” in the interim loan. With regard to these participant interim lenders (VISTA, LOMAS, TEACHERS and CONSTANTIN), the courts below have ruled that they have no right of action which they may assert against the “permanent lender” (EMPLOYEES’). 444 So.2d 193 (La.App. 1st Cir.1983). That ruling prompted our granting writs, and presents the narrow legal question for our consideration in this case.

The complicated financial arrangements which gave rise to this litigation were ably and thoroughly detailed in the Court of Appeal opinion. For the following reasons, we reverse the Court of Appeal’s affirmance of the trial court’s granting the exception of no right of action, and we remand the case to the trial court for further proceedings.

Pleadings must be construed reasonably so as to afford litigants their day in court, to arrive at the truth, and to do substantial justice. La.C.C.P. art. 865. Hero Land Co. v. Texaco, Inc., 310 So.2d 93 at 96 (La.1975); Haskins v. Clary, 346 So.2d 193, 195 (La.1977); Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297, 302 (La.1973). Articles of the Code of Civil Procedure are to be construed liberally and with due regard for the fact that forms of procedure implement the substantive law and are not an end in themselves. La.C.C.P. art. 5051; Lambert v. Donald G. Lambert Construction Co., 370 So.2d 1254, 1255 (La.1979). An earlier Court stated it well: “Pleading is the ‘handmaid rather than the mistress’ of justice.” Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776, 777 (1961). When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence. Henson v. St. Paul Fire and Marine Ins. Co., 363 So.2d 711 (La.1978); Haskins v. Clary, supra; Eschete v. City of New Orleans, 258 La. 133, 134, 245 So.2d 383 (1971); Erath Sugar Company v. Broussard, supra; LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727 (1966).

La.C.C.P. art. 681 provides that “[ejxcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” That article is the basis for the peremptory exception of no right of action. La.C.C.P. art. 681. Official Revision Comment (b).

The peremptory exception of no right of action raises, then, the question of whether the plaintiff has any interest in judicially enforcing the right asserted. Lambert, supra. The exception of no right of action is “a threshold device for terminating a suit brought by one without legal interest to assert it.” Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 at 334 (1972), quoting with approval Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967). See also Louisiana Law of Exceptions, 22 Loy.L.Rev. 90 (1975-76).

In Bielkiewicz, Judge Tate, then a judge of the Louisiana Court of Appeal, Third Circuit, explained the purpose of the exception of no right of action, later approved in Babineaux, 262 So.2d at 334.

The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted.
In short, the objection of no right of action raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming (for the purpose of deciding the exception) that a valid cause of action is pleaded by the petition. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727. (Emphasis in original)

Evidence may be received under the exception of no right of action for the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist. Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 at 875 (La.1974) (quoting Roy O. Martin Lumber Co. v. St. Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954)).

We were tempted initially to reverse summarily the lower courts’ granting defendant’s exception of no right of action. Nonetheless we simply granted the writ because we thought that there might have been some additional evidence offered below, which would contribute to a better understanding of the intention of the parties concerning their relationships. After granting the application and reviewing the record, we have found no such additional evidence in the record at this stage of the proceedings. There apparently was no testimony taken in the district court relative to the intent and knowledge of the several parties to the various agreements. All that appears of record so far are the numerous documents and contracts drawn up by and among the various parties, documents which do not establish conclusively the exact legal and contractual relationships between the interim lead lender, the interim participating lenders and the permanent lender. Until those legal relationships are determined and the status of each of the parties to this series of complex financial arrangements established after presentation of all evidence, it would be precipitous to dismiss any of the parties. Where doubt exists regarding the appropriateness of an objection of no right of action, it is to be resolved in favor of the plaintiffs. 22 Loy.L.Rev. 114 .(citing Babi-neaux).

This is a case where a trial on the merits will likely elicit evidence of the intent and knowledge of the parties to the various agreements concerning their respective relationships one with another, and may help to clarify and resolve the complicated legal issues at the heart of the present controversy. Although other courts in the country have wrestled with the question of the legal and contractual relationship of lead interim lenders, participating interim lenders and permanent lenders, this question is new to Louisiana and has not yet been fully explored against the backdrop of our civilian tradition and within the context of an adversarial hearing on the merits.

In this case, the record at this stage of the proceedings suggests several alternative and disputed legal relationships. A determination of the precise relationship between the interim lead/interim participating lenders and the permanent lender will depend on a judicial interpretation of the various contracts. This judicial interpretation of the contracts, in turn, may depend on factual conclusions concerning the knowledge, expectations and intentions of the parties to those various contracts. Testimony in that regard might indeed affect how a court would read the contracts and how it would solve the legal questions presented. As noted earlier, there has been no testimony to date on the parties’ knowledge, their expectations and/or their intentions. Since we expect that there will be testimony in that regard at trial and since doubts are to be resolved in favor of denying a peremptory exception and affording litigants their day in court, we will not sustain the peremptory exception of no right of action at this early stage of the proceedings. We cannot say at this point in the litigation that the plaintiffs, dismissed by the lower courts on the no right of action exception, have no legal interest in the subject matter, or in judicially enforcing the right asserted in the litigation. Where the court determines that evidence adduced at trial will be needed or helpful in rendering judgment on the exception, the exception of no right of action can be referred to the merits. 22 Loy.L.Rev. at 97.

Finally, the peremptory exception may be pleaded at any stage of the proceedings. It may be filed in the trial court prior to the submission of the case for a decision, and likewise in the appellate court if proof of the ground of the exception appears of record. The peremptory exception may even be noticed by either the trial or appellate court on its own motion. La.C. C.P. arts. 927, 928, 2163. Lambert, 370 So.2d 1254. Accordingly, the exception of no right of action may be raised again at or after trial, after being earlier denied. See Adam v. Great Lakes Dredge and Dock Company et al, 273 So.2d 60 (La.App. 4th Cir.1973), wherein the court found no error in the trial court’s permitting the filing of a second exception of no right of action after the first had been dismissed.

The court below acted precipitously in striking the right of action of all plaintiffs but GAMI under the pleadings and evidence presented. We will therefore remand the case to the trial court for further proceedings.

Decree

For the foregoing reasons, the trial court’s judgment sustaining defendant’s exception of no right of action and dismissing plaintiffs’ petition and the Court of Appeal’s affirming that judgment are reversed; the exception of no right of action is overruled and the case is remanded to the trial court for further proceedings.

REVERSED; REMANDED.

WATSON, J., concurs but would simply refer the exception to the merits rather than dismissing it at this juncture.

      . Vista Mortgage and Realty, Inc. (VISTA, successor in interest to Metroplex Realty Trust and its predecessor Justice Mortgage Investors); Lo-mas and Nettleton Company (LOMAS); Teachers’ Retirement System of Louisiana (TEACHERS); The Constantin Foundation (CONSTAN-TIN); and Great American Management and Investment, Inc. (GAMI, successor in interest to Great American Mortgage Investors).

      . Louisiana State Employees’ Retirement System (EMPLOYEES).

      . West Side Twelve Corporation; Harry J. Hart, president (WEST SIDE).

      . Cobbs, Allen and Hall Mortgage Company, Inc. (COBBS), originally a participant, withdrew before the Tri-Party Agreement was signed by GAMI, EMPLOYEES and WESTSIDE. GAMI retained COBBS’ position, so that at the time the financial deal was confected, the participation in the 13.5 million dollar loan for each of the interim lenders was as follows: GAMI with 4.5 million; VISTA with 1.5 million; LOMAS with 2.0 million; TEACHERS with 4.5 million; and CONSTANTIN with 1.0 million.

      . In pertinent part, the First Circuit Court of Appeal stated at 444 So.2d 194-95:
      Harry J. Hart, representing West Side Twelve Corporation (West Side) sought financing for acquisition and development of land in West Baton Rouge and Pointe Coupee Parishes. In July of 1973 Mr. Hart approached Great American Mortgage Investors (Great American or GAMI), concerning a loan to finance his project. Great American was interested in providing interim financing but required Hart to obtain a "take out commitment" from another lender for permanent financing. Hart successfully sought this commitment from Louisiana State Employees’ Retirement System (Employees’).
      On August 23, 1973, West Side and Great American executed a loan agreement, the principal sum of the loan not to exceed $ 13,500,000 On the same day Great American contracted with several other parties in a "Participation Agreement,” ... [which] referred to the first mortgage loan commitment by Employees’ to West Side and a prior "Agreement for a Land Acquisition and Development Loan” between Great American and West Side.
      ******
      On August 24, 1973, Great American, Employees’ and West Side entered into a “Tri-Party Agreement” [which] referred to the interim loan made by Great American to West Side and the permanent financing promised by Employees’ to West Side. Employees’ then agreed, according to the terms and conditions of the agreement, to "... pay INTERIM LENDER the unpaid principal balance of funds it has advanced to BORROWER in an amount not to exceed THIRTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100 ($13,500,000.00) DOLLARS." Such an agreement is commonly referred to as a "take-out” or a "buy-out” agreement. Employees’ received a fee of $405,000 for this commitment.

      Sometime prior to October 1974, during the interim financing period (which was to last until August 23, 1975), West Side defaulted on the loan.... On July 2, 1975, Great American made written request upon Employees' for Employees’ to "take them out” of the loan. Employees’ refused. On March 25, 1977, Great American filed for an arrangement under Chapter XI of the Bankruptcy Act.... An “Agreement Regarding Prosecution of this Claim” was entered into by parties to the Participation Agreement. The present suit was filed by these parties against Employees’ in October of 1979 alleging Employees’ owed the participants $13,429,372.44, less certain credits enumerated in the petition, (footnotes omitted) (emphasis provided)

      . The defendant also filed peremptory exceptions of no cause of action and prescription, which were overruled. There has been no appeal from that judgment.

      . The exception of no right of action is, of course, to be distinguished from the exception of no cause of action. See Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 (La. 1974); Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

      . Although suit was filed in 1979, it is still in its preliminary stages.

      . Babineaux involved a wrongful death action brought by a single plaintiff individually and as representative of four minor children. Because the legitimate or illegitimate status of one child could not be determined on the record presented, this Court found that the trial court had acted precipitously in granting the defendant’s exception and in striking the child’s right of action under the pleadings and evidence presented to it. We said at 262 So.2d at 337: "We can make no final determination of his status on the record before us, and it may be that it can be determined only through other legal proceedings.”

      . See generally Stratford Financial Corporation v. Finex Corp., 367 F.2d 569 (2d Cir.1966); Girard Bank v. John Hancock Mutual Insurance Co., 524 F.Supp. 884 (E.D.Pa.1981); In Re Alda Commercial Corporation, 327 F.Supp. 1315 (S.D. N.Y.1971); Southern National Bank of Houston, Texas v. Tri-Financial Corporation, 317 F.Supp. 1173 (S.D.Tex.1970); In Re Yale Express System, Inc., 245 F.Supp. 790 (S.D.N.Y.1965).

      . Plaintiffs’ counsel argues this case under several alternative theories, including agency, assignment, stipulation pour autrui. EMPLOYEES’ counsel, on the other hand, contends that the plaintiff participating lenders were simply unsecured creditors of GAMI whose forum for relief was the federal bankruptcy proceeding.

      . We note that in Franklin v. Commissioner of Internal Revenue, 683 F.2d 125 (5th Cir.1982), Judge Alvin Rubin, as organ of the United States Fifth Circuit Court of Appeals considered the legal characterization of a participation agreement in the context of a federal tax question and decided, of the six possible relationships between lead and participating lenders (“debtor-creditor, assignment, tenancy in common, joint venture, agency, and trust") that “[vender the terms of the participation agreement in this case, however, the participant is an assignee of a percentage interest of the loan and the lead bank is the agent for servicing the entire loan.” (emphasis provided) 683 F.2d at 128, note 9.